08 November 2014


'Exemplary Damages for Invasions of Privacy' by Normann Witzleb in (2014) 6(1)Journal of Media Law 69-93 comments 
As part of the [UK] government response to the Leveson Report, the Crime and Courts Act 2013 (UK) introduces new provisions on the availability of exemplary damages for media torts. This Act creates a statutory bar to the awarding of exemplary damages against a publisher who has become a member of an approved regulator but otherwise makes them available in narrowly defined circumstances. The article explores the extent to which the changes are likely to affect media publishers and, as part of this analysis, compares the new provisions with current English law as well as the relevant law in Australia, New Zealand and Canada. It also examines whether the new statutory regime is compatible with the UK’s obligations under the European Convention on Human Rights. The article concludes that the statutory measures are to be welcomed because exemplary damages have an important but limited role in deterring particularly egregious media misconduct and the provisions provide more certainty to media publishers as to when they can be ordered. The article also argues that the new provisions on exemplary damages are compatible with the UK’s obligations under the Convention.

Decent Illiberal People

'Fifteen Years Later: Reflections on Realism and Utopia in 'The Law of Peoples' by John Rawls' by Wojciech Sadurski (Sydney Law School Research Paper No. 14/93) comments 
Fifteen years ago, the last important, book-length statement about liberal values and ideals by John Rawls appeared, "The Law of Peoples". It was met with a good deal of surprise and disenchantment by many admirers of the “early Rawls" (the Rawls of "A Theory of Justice"). This essay reflects upon The Law of Peoples, and the grounds of liberal disenchantment with the book. It explores the status of "illiberal decent peoples" in the law of peoples, and connects this issue with the purposes of Rawls’ theory understood as a “realistic utopia", and argues that the inclusion of illiberal, decent peoples must be seen as a matter of moral choice rather than a concession to Realpolitik. This moral choice is supported by Rawls’ methodology in "The Law of Peoples", and in particular, the deliberately emaciated social contract, original position and reflective equilibrium. The key answers to the puzzles raised by these revisions of Rawls’ original liberal theory s are to be found, it is claimed, in the role assigned to the ideal of toleration in "The Law of Peoples". However, the use of this ideal is ill-advised as no link is demonstrated, or even asserted, between toleration and the individuals who belong to the peoples who are to be tolerated.


'Economics of Legal History' by Daniel M. Klerman in Francesco Parisi (ed) Oxford Handbook of Law & Economics (2014) surveys economic analyses of legal history.
 In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.
1) Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.
2) Law as an independent variable. Studies of this kind look at the effect of law and legal change on human behavior. Examples include analyses of the Glorious Revolution, legal origin, and nineteenth-century women’s rights legislation.
3) Bidirectional histories. Studies in the first two genres analyze law as either cause or effect. In contrast, bidirectional histories view law and society as interacting in dynamic ways over time. Laws change society, but change in society in turn leads to pressure to change the law, which starts the cycle over again. So, for example, the medieval communal responsibility system fostered international trade by holding traders from the same city or region collectively responsible. Nevertheless, the increase in commerce fostered by the system undermined the effectiveness of collective responsibility and put pressure on cities and nations to develop alternative enforcement institutions.
4) Private ordering. A significant body of historical work investigates the ability of groups to develop norms and practices partly or wholly independently of the state. Such norms include rules relating whaling, the governance of pirate ships, and, more controversially, medieval commercial law (the “law merchant”).
5) Litigation and Contracts. Law and economics has developed an impressive body of theories relating to litigation and the structure of contracts. These theories often shed light on legal behavior in former times, including contracts between slave ship owners and captains, and the suit and settlement decisions of medieval private prosecutors.

04 November 2014

Metadata and Discovery

A reminder about the potential for use by private investigators of metadata - on which the national Government is alas still apparently confused - is provided in AS v Murray [2013] NSWSC 733, which centres on the tort of intimidation.

The plaintiff [subject of a non-publication order under the Court Suppression and Non-Publication Orders Act 2010 (NSW)] sought to recover $26,666 claimed to have been paid to Stephen James Murray as a result of extortion. The plaintiff also sought orders restraining Murray from communicating to any person any representation in relation to the plaintiff and restraining Murray from communicating in any form with the plaintiff other than by communicating with the plaintiff's solicitors. The plaintiff sought exemplary damages against the defendant in respect of the extortion.

The judgment states that
There is no doubt that the plaintiff paid the sum of $26,666 as a result of extortion. The plaintiff gives uncontradicted evidence to that effect and there is no reason to doubt that evidence. The only real question in this case is whether the extortionist was the defendant.
The extortion began in about December 2011 when the plaintiff received, at work, an unsolicited email from a person who identified themselves as "Felicity Jones". In a series of emails the extortionist demanded $26,666 and threatened to reveal to the plaintiff's wife, family and employer personal information concerning the plaintiff, and in particular the fact that the plaintiff had joined an internet dating site, if the plaintiff did not pay the amount demanded. It was apparent from the email sent to the plaintiff that the sender had considerable information concerning the plaintiff and appeared to have obtained that information by hacking into the plaintiff's computer and mobile telephone.
Eventually arrangements were made for the money to be paid in cash by leaving it at a place nominated by the extortionist, which is what happened. The plaintiff heard nothing further until 8 November 2012 when the extortionist began to make a fresh demand for $40,000. In response, the plaintiff engaged a computer forensic expert who was able to identify the IP address from which it was highly likely that the extortionist's emails had been sent. That IP address belonged to Telstra Corporation Limited (Telstra). The plaintiff then commenced these proceedings on 9 February 2013 initially seeking preliminary discovery against Telstra for records in relation to the IP address and against Vodafone Hutchison Australia Pty Ltd (Vodafone) for records kept in relation to the mobile telephone number from which the extortionist sent the plaintiff text messages.
Metadata, in other words, with discovery by a private agent rather than by the AFP, ASIO or other government agency.

The judgment goes on to state that
Preliminary discovery against Vodafone did not lead anywhere. However, preliminary discovery against Telstra revealed that two Telstra account holders had accessed the IP address identified by the forensic expert. One account holder was the defendant. The information disclosed by Telstra also disclosed a post office box number as the billing address for that account. The second email address was said to belong to a Christopher Robbins. It may be inferred that that name is fictitious. As a result of the information provided by Telstra, the plaintiff sought preliminary discovery against the Australian Postal Corporation (Australia Post). Material produced by Australia Post showed that the post office box belonged to the defendant and gave a physical address for the defendant in Huntingdale, Victoria. Using that address, the plaintiff joined the defendant and applied for search orders, which were granted on 15 March 2013.
The independent solicitor appointed by the court sought to execute those orders on 18 March 2013. However, the defendant refused to comply with them. In the meantime, the plaintiff arranged for a private investigator to conduct surveillance of the defendant. Following the attempt to execute the search order the defendant, at approximately 9 pm on 18 March 2013, drove to a place where he worked and appeared to place something in a large bin. Subsequently the private investigator searched that bin, but only found garden refuge.
A further search order was made by the court on 20 March 2013. That order was executed on 22 March 2013. During the execution of that order the defendant claimed that his home had been burgled and that a computer had been stolen. The defendant also conceded that he worked as a private investigator and had investigated the plaintiff about four years previously. He said that he may have a file relating to that investigation, although that file could not be found. The defendant did, however, have other files relating to his work as a private investigator. The search party found an internet thumb drive. The defendant denied that he had any other means of accessing the internet. However, shortly afterwards the search party found a Netgear-Bigpond wireless server. The defendant denied that he knew the login name and password for that device. However, the IP address associated with that device is the same as the IP address that the forensic expert identified as the one from which it was highly likely the emails had been sent. The search order was also executed at other premises.
As a result of the search order two computer towers, two memory cards and a laptop were located and impounded. Among material found were copies of a number of the emails that had been sent to the plaintiff under the name Felicity Jones.
In my opinion it is clear from this material that the defendant is the extortionist. That conclusion is supported by the fact that the emails were sent from an IP address associated with the defendant and the fact that the defendant had copies of the offending emails. It is also supported by the defendant's behaviour. Although nothing was found in the bin, the defendant's behaviour in driving to it at around 9 pm at night, the claim that he had been the victim of a burglary whilst under surveillance, the absence of any evidence of a burglary and the absence of the defendant's file relating to the plaintiff, strongly suggest that that file was destroyed by the defendant. The fact that the defendant had investigated the plaintiff four years earlier explains how the defendant chose the plaintiff to be the object of his extortion.
In the email the defendant sent to my associate he complains about the way the search order was executed. However, Mr Stevens, the independent solicitor appointed to conduct the search order, has provided a detailed account of the steps he took to serve and execute the order. I accept that evidence and, in my opinion, it demonstrates that there was no unfairness in the way the order was executed.
The Court concluded that Murray committed the tort of intimidation and referred to an offence under s 249K of the Crimes Act 1900 (NSW).

The judgment states that 
By [the] unlawful threats, the defendant compelled the plaintiff to pay the sum of $26,666. The plaintiff is entitled to recover that sum as damages.
In my opinion, the plaintiff is also entitled to injunctions in the form that he seeks. There are two bases for those injunctions. First, the plaintiff is entitled to an injunction to restrain threatened further conduct that would amount to the tort of intimidation. Second, the plaintiff is entitled to restrain the defendant from using confidential information that the defendant obtained improperly by hacking into the plaintiff's computer.
As to the first basis, s 66 of the Supreme Court Act 1970 (NSW) provides: (1) The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury. (2) Subsection (1) applies as well in a case where an injury is not actionable unless it causes damage as in other cases. ...
It will often be appropriate for the court to grant an injunction to restrain the threatened commission of a tort where damages are an inadequate remedy. In the present case, damages are clearly not an adequate remedy. The vice in the defendant's conduct is as much in the threat as in the conduct that completes the tort and there is no means by an award of damages to compensate the plaintiff for the injury caused by that threat. As to the second basis, the court will grant an injunction to restrain the publication of improperly obtained confidential information; see Meagher, Gummow and Lehane's Equity Doctrines & Remedies, 4th ed (2002) LexisNexis Butterworths at [41-045]. The information obtained by the defendant was confidential because it was personal information concerning the plaintiff. It was clearly obtained improperly because it was obtained by hacking into the plaintiff's computer.
The injunctions sought by the plaintiff are expressed very broadly. However, there is no relationship between the plaintiff and the defendant. The defendant has no reason either to contact the plaintiff or to make representations concerning the plaintiff other than in furtherance of his attempts at extortion. There are difficulties in formulating narrower injunctions which achieve the objective of preventing the defendant making further threats and carrying out those threats, and at the same time making it clear what the defendant must not do. For those reasons, in my opinion, it is appropriate to grant injunctions in the terms sought by the plaintiff.

Minors and Family Law

'Justifying Children's Rights' by John William Tobin in (2013) 21 International Journal of Children's Rights aims to
 interrogate some of the central questions posed by these competing theories and assess whether the idea of human rights for children can be justified. It consists of three parts. Part I considers the preliminary question of whether such an inquiry is necessary. It concludes that an examination of the conceptual foundations of children’s rights serves two critical functions – one practical and one philosophical. From a practical perspective, it has the capacity to assist in resolving broader dilemmas with respect to the meaning of these rights and encourage more reflective practice by proponents of children’s rights (Reynaert 2012, 156). It also has the potential to dampen opponents’ skepticism about the idea of children’s rights by establishing a ‘secure intellectual standing’ that can address its ‘conceptual doubts.’ (Sen 2004, 317.) 
Tobin comments
Can the idea of human rights for children be justified? Does an answer to this question really matter? Children’s rights are, after all, already recognized in international law, most notably the Convention on the Rights of the Child (‘CRC’). They are increasingly included in national constitutions (Tobin 2005) and considered by judicial bodies at the international, regional and domestic levels (Tobin 2009; Sloth Neilsen 2008). They are also increasingly used as a policy framework by governments (Lundy 2012; Stalford 2011), a research paradigm by scholars (Reynaert 2009) and as an advocacy tool by civil society worldwide (Fernando 2001; Tobin 2011).
Despite this widespread engagement with the discourse of children’s rights some still believe that the idea of children’s rights has ‘failed to secure a coherent… intellectual foundation’ (Minnow 1995; Guggenheim 2005, ix) and ‘remains largely undertheorised’ (Dixon & Nussbaum 2012). This is not to suggest that the conceptual foundations of children’s rights have been entirely neglected. This may have been the case twenty-five years ago, when Michael Freeman lamented the absence of a ‘reasoned normative thesis’ to explain the moral grounds for children’s rights.(Freeman 1987, 300). In the intervening years, scholars, including Freeman himself, have increasingly sought to answer his question, ‘what is the moral justification for giving rights to children?’ (Freeman 1987, 304). The literature tends to fall into three broads camps – those who support the idea of rights for children because of its role in securing their dignity (Freeman 1992, 2007, 2010; Eekelaar 2008; Archard 2004); those who oppose the idea of rights for children because of their lack of capacity (Griffin 2009; Purdy 1994); and those who oppose the idea because of concerns such as the impact of rights on the family structure (Guggenheim 2005; Goldstein et al 1998; Seymour 2005), the Western origins of human rights, or a preference for alternative discourses such as obligations (O’Neil 1988, 2002) or an ethic of care (Arneil 2002; King 1997).
This paper aims to interrogate some of the central questions posed by these competing theories and assess whether the idea of human rights for children can be justified. It consists of three parts. Part I considers the preliminary question of whether such an inquiry is necessary. It concludes that an examination of the conceptual foundations of children’s rights serves two critical functions – one practical and one philosophical. From a practical perspective, it has the capacity to assist in resolving broader dilemmas with respect to the meaning of these rights and encourage more reflective practice by proponents of children’s rights (Reynaert 2012, 156). It also has the potential to dampen opponents’ skepticism about the idea of children’s rights by establishing a ‘secure intellectual standing’ that can address its ‘conceptual doubts.’ (Sen 2004, 317.)
Part II explores whether the idea of human rights for children under the CRC can be justified. A focus on the CRC has been adopted because, although this instrument has been described as ‘the unavoidable contemporary context for thinking about the status of children’ (Archard 2004, 218), its conceptual foundations have escaped the close attention of commentators. It will be argued that there is an overlapping consensus as to the conceptual foundations of children’s rights under the CRC. This consensus is facilitated by a conception of dignity in which all human beings, including children, have unique value and a conception of children as being vulnerable relative to adults yet possessing an evolving capacity for agency and autonomy. It is this conception of children, which is empirically grounded and socially constructed, that provides the foundation for the ‘special’ human rights that are granted to children under international law.
Moreover, this conception of human rights for children is grounded in an interest theory rather than the rival will theory of rights. Children may sometimes lack the capacity to exercise their rights but it is their interests, not their capacity, which found their rights. With respect to the determination of which interests justify elevation to the status of a human right, a social interest theory is preferred to other explanations, such as an ‘urgent’ (Beitz 2005, 109-10) or ‘basic’ interest theory (Buchanan & Hessler 2009, 213). This social interest theory consists of both descriptive and substantive dimensions. The former refers to the deliberative process by which interests are elevated to the status of rights, whereas the latter demands that this process should include both rights-holders and duty-bearers. However, this requirement creates a serious dilemma when seeking to justify the CRC conception of rights, because the drafting process was dominated by Western states and completely excluded children. Part III therefore uses the social interest theory of right to assess whether the conception of rights under the CRC can be justified. It concludes that this is the case and that this instrument is capable of producing a culturally sensitive, dynamic, inclusive and relational conception of rights that remedies many of the deficiencies associated with the traditional conception of human rights as being Western, adult-centric, individualistic trumps.
The national Attorney-General has meanwhile commissioned the Family Law Council to report on 'Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems'.

The Council's review is cover the following, with an interim report in 2015 and a final report in 2016.
(1) The possibilities for transferring proceedings between the family law and state and territory courts exercising care and protection jurisdiction within current jurisdictional frameworks (including any legal or practical obstacles to greater inter-jurisdictional co-operation).  
(2) The possible benefits of enabling the family courts to exercise the powers of the relevant state and territory courts including children’s courts, and vice versa, and any changes that would be required to implement this approach, including jurisdictional and legislative changes.  
(3) The opportunities for enhancing collaboration and information sharing within the family law system, such as between the family courts and family relationship services.  
(4) The opportunities for enhancing collaboration and information sharing between the family law system and other relevant support services such as child protection, mental health, family violence, drug and alcohol, Aboriginal and Torres Strait Islander and migrant settlement services.  
(5) Any limitations in the data currently available to inform these terms of reference.

02 November 2014


'Nations, States, and Territory' by Anna Stilz in (2011) 121(3) Ethics 572 comments
Nationalists hold that the state derives its territorial rights from the prior claim of a cultural nation to territory. This article develops an alternative account: the legitimate state theory. This view holds that a state has rights to territory if it meets the following four conditions: (a) it effectively implements a system of law regulating property in that territory; (b) its subjects have a legitimate claim to occupy the territory; (c) the state’s system of law “rules in the name of the people,” by protecting basic rights and providing for political participation; and (d) the state is not a usurper. 
It is tempting to view each legitimate state as having the right to exercise political authority within a given set of boundaries. But what gives a state the right to these boundaries? Consider the United States: its original border encompassed only the eastern half of the country up to the Mississippi River (excluding Florida). The Midwest was acquired in the Louisiana Purchase from France in 1803, Florida purchased from Spain in 1821, Texas annexed in 1845, the Southwest ceded after the Mexican-American War in 1848, and Alaska purchased from Russia in 1867. Then Hawaii was added in 1898, after a group of businessmen who had overthrown its government pleaded for an- nexation. Finally, Puerto Rico, Guam, the Philippines, and Cuba were ceded after the Spanish-American War. Given this (largely tainted) history, we might ask: Does the United States have a right to all the territory within its current boundaries? What, if anything, differenti- ates its current relation to the territory of Hawaii, say, from its current relation to the territory of the Philippines? (The Philippines became independent again in 1946.) To ask these questions is to ask what grounds territorial rights.
Beyond answering our questions about the rights of states with relatively settled boundaries — like the United States — an account of territorial rights could also help resolve the disputes involved in cases of settlement, secession, and decolonization. Many states have at- tempted to extend their boundaries by subsidizing settlers, as Israel has done in Palestine, or Morocco in the Western Sahara. Is settlement a legitimate way to acquire new territory? Or consider secession: often, secessionist groups forcibly appropriate territory, as during the secession of Eritrea from Ethiopia in 1993 or of Bangladesh from Pakistan in 1971. But if these groups had no right to the territory they seized, they may have committed an unlawful taking. Finally, even when some population is freely granted independence, as in cases of consensual decolonization or secession, we still need a theory of territorial rights to determine the boundaries of the new jurisdiction. So a theory of territorial rights can aid in two important tasks: explaining the legitimacy of long-settled boundaries and demarcating new ones.
We should begin our investigation into territorial rights by looking at the claims to territory that states actually make. States claim a bundle of rights over territory, which we can divide into three basic elements. First, they claim territorial jurisdiction, which entitles them to make and enforce law within their borders. Territorial jurisdiction is the right to establish or maintain a distinct system of law on part of the earth’s surface. When a state has this right, outsiders ought not to interfere with its exercise of authority within its boundaries or set up alternative institutions there. Second, a state claims resource rights in its territory: states attempt to use and control extractable minerals, oil, and other natural resources and to profit from their sale. Finally, states claim the right to control borders and to regulate the movement of people and goods across the territory.
Of course, the fact that existing states claim these three rights doesn’t mean their claims are valid: we must ask whether these claims can be justified. Here, I investigate the justification of the first, central element in this bundle, the right to territorial jurisdiction. Justifying the rights of resource and border control requires a more complex approach. These rights are parasitic on the prior right of territorial jurisdiction, and they are also limited by external legitimacy conditions that constrain how the state should exercise these rights when their exercise affects foreigners. For that reason, this article considers only territorial jurisdiction, on the theory that we can then extend the view to control of borders and resources in a second step. I will not argue for or against international freedom of movement or resource privileges here.
Instead, my main aim is to develop an alternative to the currently dominant account of territorial jurisdiction, the nationalist theory. The nationalist theory holds that the state derives its territorial rights from the prior collective right of a nation to that territory. A nation is a group defined by cultural characteristics that its members believe themselves to share, including language, traditions, or a common pub- lic culture, combined with an aspiration to political self-determination. On the nationalist view, a state has a right to a territory if (a) the nation it represents has a prior right to the land in these areas and (b) the state is properly authorized by that nation.5 One reason why the nationalist theory is attractive is that it seems to provide a good expla- nation of why a particular state should have rights over a particular territory. On the nationalist view, the French state has rights over the territory of France—and not, say, the territory of Norway—because it represents the French nation, to whom this territory already belongs.
In what follows, I argue that invoking nations is neither necessary nor sufficient to explain territorial rights. In Section I, I show that the nationalist account is more problematic than it seems: it has trouble explaining how nations acquire territorial jurisdiction and has implications that fail to match our intuitions in particular cases. My arguments may not conclusively refute the nationalist theory, but I believe they point out enough difficulties to make it worth considering an alternative view. In Sections II–IV, I then develop a different account of territorial rights, the legitimate state theory. The legitimate state theory holds that a state has rights to a territory if and only if it meets the following four conditions: (a) it effectively implements a system of law regulating property there; (b) its subjects have claims to occupy the territory; (c) its system of law “rules in the name of the people,” by protecting basic rights and providing for political participation; and (d) the state is not a usurper.
I conclude the article in Section V by raising what I think is the most important objection to my legitimate state theory: the annexation objection. In addressing this objection, I make room for the territorial claims of “peoples” who have a past history of shared statehood. I allow for a residual claim of the people to reconstitute themselves as a legitimate state on their territory when their prior state fails, becomes illegitimate, or is usurped. The recognition of this claim distinguishes my legitimate state theory from other views in which peoplehood plays no role. Against nationalist theorists, however, I argue that “the people” is not a cultural group but is simply the collective subject of a prior state. And I claim that the people’s territorial right is a very distinctive kind of claim: “the people” can exercise this right only in extraordinary circumstances. Once it is understood how the legitimate state theory incorporates a people’s residual rights, I believe its main competitor—the nationalist theory—loses some plausibility by comparison.