08 September 2017


'Compensation for Breach of the General Data Protection Regulation' by Eoin O'Dell comments
Article 82(1) of the General Data Protection Regulation (GDPR) provides that any “person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered”. As a consequence, compliance with the GDPR is ensured through a mutually reinforcing combination of public and private enforcement that blends public fines with private damages.
After the introduction, the second part of this article compares and contrasts Article 82(1) GDPR with compensation provisions in other EU Regulations and Directives and with the caselaw of the CJEU on those provisions, and compares and contrasts the English version of Article 82(1) GDPR with the versions of that Article in the other official languages of the EU, and concludes that at least 5 of the versions of Article 82(1) GDPR are unnecessarily ambiguous, though the CJEU (eventually, if and when it is asked) is likely to afford it a consistent broad interpretation. However, the safest course of action at this stage is to provide expressly for a claim for compensation in national law. The third part of this article compares and contrasts the compensation provisions in the Irish government’s General Scheme of the Data Protection Bill 2017 with existing legislation and case-law in Ireland and the UK, and with incorporating legislation and Bills in other EU Member States, and concludes that the Heads of the Scheme do not give full effect to Article 82(1) GDPR. Amendments to the Scheme are therefore proposed.
To ensure that any person who has suffered such damage has an effective remedy pursuant to Article 47 CFR, Member States will have to provide, pursuant to Article 19 TEU, remedies sufficient to ensure effective legal protection in the fields of privacy and data protection. In particular, they will have to provide expressly for a claim for compensation, incorporating Article 82(1) GDPR into national law. Claims for compensation are an important part of the enforcement architecture of the GDPR. Private enforcement will help to discourage infringements of the rights of data subjects; it will make a significant contribution to the protection of privacy and data protection rights in the European Union; and it will help to ensure that the great promise of the GDPR is fully realised.

07 September 2017


The short 'Death to the Privacy Calculus?' by Bart P. Knijnenburg, Elaine M. Raybourn, David Cherry, Daricia Wilkinson, Saadhika Sivakumar and Henry Sloan comments 
The “privacy calculus” has been used extensively to describe how people make privacy-related decisions. At the same time, many researchers have found that such decisions are often anything but calculated. More recently, the privacy calculus has been used in service of machine learning approaches to privacy. This position paper discusses the practical and ethical questions that arise from this use of the privacy calculus. ...
Laufer and Wolfe coined the term “calculus of behavior” to refer to the cognitive process that under- lies people’s disclosure decisions. Many researchers have since used the term “privacy calculus” to describe privacy-related decision behaviors, and it has become a well-established concept in privacy research. Other researchers, however, have demonstrated that people rarely take a truly calculative approach to privacy decision making, and are often prone to take mental shortcuts instead. We discuss these departures from rationality, how they come about, and the impact they have on the presumed normative justifications for existing privacy solutions. This will lead us to a relatively new type of privacy solution, user-tailored privacy, which addresses some of the ethical questions raised by existing solutions. User-tailored privacy uses the privacy calculus prescriptively, with the risk/benefit tradeoff serving as an objective function for machine learning algorithms. We will argue that this use of the privacy calculus raises its own set of practical and ethical questions that may cause ethical dilemmas. In outlining these questions, we hope to spark a discussion of the ethical concerns regarding user-tailored privacy

03 September 2017

Animals, Authority and Activism

The Economy and Infrastructure Committee of the Victorian Parliament's Legislative Council has released the 55 page report of its Inquiry into the RSPCA Victoria.

The Committee's Terms of Reference were to
 inquire into, consider and report on, no later than 22 August 2017, the Royal Society for the Prevention of Cruelty to Animals Victoria (Inc) in relation to —
(1) the appropriateness and use of its powers pursuant to the Prevention of Cruelty to Animals Act 1986, including in the context of its other objectives and activities;
(2) the appropriateness and use of funding provided by the Victorian Government, including in the context of its other objectives and activities; and
(3) any other consequential matters the Committee may deem appropriate. 
The Chair’s foreword states that the Report
primarily looks at two issues: the use of its powers by the RSPCA Victoria; and its expenditure of government funding.
For the most part it appears that the objections raised by stakeholders in relation to RSPCA Victoria relate to the organisation’s historical practices.
For example the organisation has in the past been involved in animal rights activism, in some instances campaigning against activities that are legal in Victoria, such as duck shooting.
Some stakeholders suggested that RSPCA Victoria inspectors were involved in campaigns and action relating to commercial animals, overstepping their statutory function.
Since the Independent Review of the RSPCA Victoria Inspectorate in 2016 it has made good progress towards focusing on the prevention of cruelty to companion animals rather than engaging in animal rights activism.
The RSPCA Victoria now needs to focus on developing stronger stakeholder relationships. Many of the organisations the Committee engaged with believe that a more collegial approach to prevention of cruelty to animals would be of great benefit to the sector.
Both the government and the RSPCA Victoria should ensure greater transparency and provision of information about the role and powers of inspectors. 
The Committee's Findings and recommendations  are
Finding 1: Many of the issues identified in the Inquiry evidence relate to historical issues associated with RSPCA Victoria animal rights activism. Progress has been made to address these issues as a result of the Independent Review of the RSPCA Victoria Inspectorate in 2016.
Legislative powers and responsibilities of RSPCA Victoria
Recommendation 1: That the Victorian Government and RSPCA Victoria provide more transparency, information and detail with regard to the powers of RSPCA Victoria inspectors under the Prevention of Cruelty to Animals Act 1986 and the Memorandum of Understanding between the RSPCA Victoria and the Victorian Department of Economic Development, Jobs, Transport and Resources. .
Recommendation 2: That RSPCA Victoria ensure that it investigates cruelty to commercial animals in emergency situations only, in line with Division 2 of Part 2A of the Prevention of Cruelty to Animals Act 1986
Ongoing concerns
Finding 2: Stakeholder issues with the level of activism in some campaigns run by the RSPCA Victoria are justified. However, there was some confusion from stakeholders, and a number of the concerns raised related to campaigns run by RSPCA bodies in other jurisdictions. .
Recommendation 3: That RSPCA Victoria in consultation with the Victorian Government consider ways to improve engagement and collaboration with animal stakeholder organisations. .
Finding 3: All government grant funding provided to RSPCA Victoria’s inspectorate is used, and is required to be used, for inspectorate purposes only.
The report followed the 2016 independent review of the RSPCA Victoria inspectorate.by former Victoria Police Chief Commissioner Neil Comrie after rising cruelty reports, 'significant changes in the social landscape', and public concern about RSPCA Victoria’s capacity to deal with large scale serious cruelty incidents. The final Comrie report in September 2016 made two findings and 22 recommendations, including
• an internal assessment of RSCPA Victoria’s budgetary position, and if necessary preparing a budget submission to the Victorian Government for incremental increases
• improving the safety culture of the inspectorate
• staff management improvements
• an organisational restructure
• improvements to collaboration and cooperation
• improvements to the inspectorate, inc updated accommodation, reviewing equipment provided to inspectors, and better use of volunteers to assist with reports that are not the primary responsibility of the inspectorate
• Domestic Animals Act: – reduce workload on DAA, eventually having all DAA work done by councils
• actively pursuing court costs
• lobbying government for the ability to issue infringement notices
The Comrie review made recommendations in four categories: operational management, collaboration, legislation and activism -
Finding 1: That the RSPCA Board has authorised the CEO to: a. commence the necessary processes to acquire a case management/intelligence software platform for the Inspectorate b. proceed with the necessary arrangements to secure the secondment of a Victoria Police intelligence analyst to the Inspectorate for a twelve ‑ month pilot period.
Finding 2: The RSPCA Board has authorised the CEO to take all steps necessary to secure the location of a specialist prosecutor within the Police Prosecutions Unit.
Recommendation 1: Following implementation of all recommendations in this Report, the RSPCA reassess their budgetary position and the demand for Inspectorate services at that time and if warranted, take the necessary steps to develop a budget submission to the Victorian Government for an incremental increase to their recurrent budget allocation.
Recommendation 2: That the RSPCA take all necessary action to improve the safety culture at the Inspectorate.
Recommendation 3: That the RSPCA implement measures to retain valuable staff in the Inspectorate, including establishing incremental salary levels that recognise experience and responsibility and also adopt more contemporary, flexible working arrangements such as part ‑ time employment and job sharing.
Recommendation 4: That the RSPCA consider all viable options for the efficient recruitment of Inspectors, including group assessments and the development of a priority list to be drawn upon when future vacancies occur.
Recommendation 5: That the People and Culture Department of the RSPCA in conjunction with the management of the Inspectorate, undertake a training needs analysis of the role of Inspector. A robust, skills based, accredited training program should then be developed to meet the specific needs of RSPCA Inspectors and successful completion of this program should be an obligatory component of the probationary period leading to authorisation of an Inspector under the POCTAA.
Recommendation 6: That, as far as possible, the RSPCA remove peripheral and corporate administrative functions from the Inspectorate to allow it to focus on operational responsibilities, especially supervision.
Recommendation 7: That supervisory responsibility and accountability be strengthened in the Inspectorate by the creation of new roles of Team Leader and Senior Inspector within a regional service delivery model.
Recommendation 8: That the RSPCA provide the necessary structure, support functions, training and development to ensure that the Inspectorate Manager, Team Leaders and Senior Inspectors provide strong leadership as well as meeting their management obligations.
Recommendation 9: That the RSPCA introduce a new structure and operating model.
Recommendation 10: That the RSPCA ensure that radio monitoring is the shared responsibility of Inspectorate administrative staff from 8am to 6pm each week day on a two ‑ hourly rotational basis
Recommendation 11: That the RSPCA review its existing memoranda of understanding, standard operating procedures and protocols with other organisations to ensure that these arrangements reflect the proposed operating environment of the Inspectorate, including the new approach to case management.
Recommendation 12: That the RSPCA take the action necessary to provide relevant policies, procedures and templates to Inspectors online.
Recommendation 13: That the RSPCA undertake a review of the accommodation arrangements for the Inspectorate and take the necessary steps to provide accommodation that meets the operational needs of that group under the proposed operating model.
Recommendation 14: That the RSPCA undertake an equipment needs analysis to ensure that the equipment issued to Inspectors enables them to undertake their duties more safely and efficiently.
Recommendation 15: That the RSPCA utilise specially selected and suitably trained and supported volunteers to assist with reports that are not the primary responsibility of the Inspectorate. This will involve direct contact with identified complainants to advise them of referrals or the actions taken by the RSPCA or to offer other advice, information or educational material. This may include seeking additional advice from complainants where critical information may be missing from relevant reports.
Recommendation 16: That the RSPCA: a. engage with Department of Economic Development, Jobs, Transport and Resources (DEDJTR) to identify strategies to reduce the workload related to Domestic Animals Act 1994 matters that is currently, by default, being directed to the RSPCA; b. engage with local government to ensure that there is a clear understanding of the future focus for the Inspectorate on animal cruelty and that Domestic Animals Act 1994 matters directed to the Inspectorate will be referred to the relevant local government (and complainants advised accordingly); and c. develop and implement a communications strategy to better inform and educate the community that the future role of the Inspectorate is to be confined to prevention of cruelty to animals and that the Inspectorate will no longer respond to Domestic Animals Act 1994 reports.
Recommendation 17: That the RSPCA ensure that the prosecutor responsible for POCTAA prosecutions actively pursues the payment of court costs awarded to the RSPCA.
Recommendation 18: That the RSPCA actively pursue with the State Government the authority to issue infringement notices: a. for lower level offences that are not to the requisite level of seriousness to warrant criminal prosecution; and b. for failing to meet the requirements of Notices to Comply issued under Section 36G of POCTAA
Recommendation 19: That the RSPCA engage with the State Government to seek an amendment to the POCTAA to allow for the fostering out and/or transfer of ownership of seized animals held for extended periods pending the resolution of court proceedings.
Recommendation 20: That the RSPCA further explore with DEDJTR the viability of licensing the keeping of horses as an aid to better management of animal welfare and cruelty reports.
Recommendation 21: That RSPCA Victoria, while continuing its legitimate advocacy role, discontinue its public activist campaigning against the existing laws of this State.
Recommendation 22: To ensure that effective governance and accountability arrangements are in place regarding the implementation of the recommendations in this report, the RSPCA: a. ensure that one senior executive in the organisation is the accountable officer for the delivery of these recommendations; b. make that officer responsible for the preparation of the implementation plan for consideration of approval by the Board; c. task a Board committee to oversight regular reports on progress against the implementation plan; and d. publish progress on implementation of these recommendations in RSPCA annual reports for the next three years