21 September 2018

Fake Credential Claims

A recent post in this blog noted the ICAN unpacking of false claims by prominent Eman Sharaobeem about her credentials (not one but two non-existent PhDs).

Earlier in the year we saw a WA parliamentary committee unpack claims by WA member of parliament Barry Urban regarding his supposed entitlement to military honours and academic credentials.

SMH today reports that WA Police have charged Urban
 with 12 offences after an investigation by the Major Fraud Squad. ... The maximum sentence he is facing is seven years in prison. 
Darling Range MP Barry Urban quit parliament in May after a damning privileges committee report. 
Police said he had been charged with five counts of utter a forged document, one count of attempted fraud and one count of forge a record. 
He is also facing five counts of giving false evidence before a parliamentary committee. 
"The five counts of utter a forged document, and one count each of attempted fraud and forge a record relate to materials and information that the man allegedly provided during applications involving WA Police Force," WA Police spokeswoman Susan Usher said.

Outreach

'Should You Bother Reaching Out? Performance Effects of Early Direct Outreach to Low-Performing Students' by David Siegel in (2017) 94(3) University of Detroit Mercy Law Review 427-438 asks
Do early alerts to students at-risk in a law school course affect their performance? Increased use of formative assessments throughout higher education, and now their required use in legal education, permits identification of students whose performance suggests they are at-risk early in a course. In legal education, formative assessments must “measure and improve student learning and provide meaningful feedback to students,” and recent research suggests individualized feedback to law students can improve students’ overall performance. Outside law schools, higher education has increasingly used early alert systems to identify and reach out to at-risk students, but their utility at improving performance is still in question. 
Beyond simply giving formative assessments with feedback, can faculty affect student performance by making individualized outreach with an early alert? I hypothesized that an early alert, through direct, personalized email outreach to low-performing students, followed by a one-on-one meeting, would improve their overall grade in the course as compared to that of students who did not receive the alert and were performing at similar levels at the same stage of the class. This paper reports the results of that experiment, conducted over two successive academic years. A quasi-experimental design was used that targeted students who performed in the lowest quintile on the first of five multiple-choice tests, with students who scored very slightly better on the first test as a control group. All students received elaborate feedback electronically within twenty-four to forty-eight hours. Performance effects were assessed by comparison of these two groups’ final course grades, which revealed no statistically significant difference between them. The implications for combining early alerts with formative assessments are discussed.
Siegel concludes
Does early, individualized, outreach to low-performing students affect their final grades? Based on two years of data from this small sample, there is no statistically significant difference between the final course grades of initially lowperforming students to whom outreach was made and those to whom it was not. Although the quiz performance paths of students who received the intervention and the control varied, there was no statistically significant difference between their final course grades in either year. 
There are several limitations to this study. First, test subjects were not randomly selected for the intervention. Second, these are very small data sets, and may well simply reflect a small numbers problem. Third, because the intervention and control groups were selected based on their performance on the first quiz, they may or may not have been representative of low-performing students in general (both groups’ average course grades were well below the class average). Fourth, the experiment compared outreach, not feedback, to students. Although the outreach involved individualized emails and, to some extent, conversation and review of each student’s quiz performance, the feedback was largely in the explanations to the multiple-choice questions, and my own discussion with the students. My feedback may simply not have been effective at correcting students’ misunderstanding or developing their knowledge. 
Should early alerts be continued? Other studies which have found no performance effect of early alerts suggest they may have other benefits. While it is difficult to imagine a negative impact of providing them, they may not merit increased use without more study of the effectiveness of different types of feedback once the early alert has made the connection with the low-performing student.

20 September 2018

Essentialism

'Cultural Appropriation Without Cultural Essentialism?' by Erich Hatala Matthes in (2016) 42(2) Social Theory and Practice 343 comments
Cultural appropriation in the arts is a diverse and ubiquitous phenomenon. It might plausibly be thought to include occurrences as varied as 1) the representation of cultural practices or experiences by cultural “outsiders” (sometimes called “voice appropriation”); 2) the use of artistic styles distinctive of cultural groups by non-members; and, 3) the procurement or continued possession of cultural objects by non-members or culturally distant institutions. 
Cultural appropriation can often seem morally problematic. When the abstract schemas above are filled in with details from actual events, we often find misrepresentation, misuse, and theft of the stories, styles, and material heritage of people who have been historically dominated and remain socially marginalized. For example, consider representations of Native Americans in Hollywood Westerns, use of Navajo motifs in fashion and marketing, and the continued retention and display of Australian Aboriginal artwork by the British Museum. The actions of pop music artists such as Miley Cyrus and Iggy Azalea have also helped to usher the language of cultural appropriation into the popular lexicon. Yet cultural appropriation has received scant attention from philosophers. 
Moreover, there is a mismatch between the sentiments of some of the major philosophical writings on cultural appropriation and the concerns expressed by scholars and critics in other disciplines. James O. Young, the philosopher who has written most extensively on cultural appropriation, acknowledges that representations or uses of cultural stories and styles by outsiders is potentially offensive, but is doubtful about its harmfulness. Indeed, he writes: “I am deeply skeptical about the claim that artists will do much harm to the cultures from which they borrow,” and he is similarly skeptical about the extent and frequency of those harms that he does acknowledge can befall cultural members. His monograph is, by design, largely a moral and aesthetic defense of cultural appropriation. In contrast, writers outside the discipline of philosophy have expressed much more concern about the harmfulness of cultural appropriation, particularly with respect to its power to oppress and silence, though explanation of the mechanisms by which appropriation causes these harms is not always fully developed. 
Consequently, my first task in this paper is an intervention in the philosophical literature on cultural appropriation. I aim to take seriously the claim that cultural appropriation can be harmful, and objectionably so. Indeed, I believe that philosophers have developed powerful conceptual resources that can be employed to bolster our understanding of the mechanisms by which cultural appropriation can cause harm by oppressing and silencing. I demonstrate this by bringing the literature on cultural appropriation into dialogue with recent philosophical work on harmful speech and epistemic injustice. Despite the fact that artistic expression is widely regarded as a form of speech, almost no one (to my knowledge) has considered how the harms of cultural appropriation might be illuminated by reference to philosophers’ work on dominating speech. One of the key insights of that literature concerns the relationship between harmful speech and systems of oppression and marginalization, and I employ this observation in order to argue that cultural appropriation is just one way, among others, in which social marginalization can interact with speech in order to cause harm. Thus, on my account, cultural appropriation has some descriptively unique features, but does not issue in a unique kind of harm. 
My second task in this paper is to consider a problem that nevertheless faces moral objections to cultural appropriation. These objections are predicated on making a distinction between cultural “insiders” and “outsiders,” or “members” and “non-members.” However, as a range of scholars has pointed out, such distinctions have the potential to fall prey to a harmful cultural essentialism. Roughly, because essentialist theses about culture are false, practices of distinguishing cultural insiders from outsiders on the basis of such theses are prone to be harmfully exclusionary. Moreover, with my account of appropriative harms in place, we can see that the harms of cultural essentialism are eerily similar to the harms of cultural appropriation. Thus, persons who make claims objecting to cultural appropriation predicated on essentialist distinctions between insiders and outsiders risk causing harms of a similar kind to the appropriations to which they are objecting. A few scholars have noted this problem in the context of cultural appropriation, but I argue that none have identified an adequate solution. In response, I argue that the account of appropriative harms that I present here, informed by work on the systematic nature of dominating speech, has the resources to explain many of the general harms of cultural appropriation while eschewing the identification of cultural outsiders in individual cases. Thus, the account not only bolsters our understanding of how cultural appropriation can cause harm, but, moreover, may provide the resources to lodge objections to cultural appropriation without exacerbating the harms of essentialism. 
This move, however, is not without dangers of its own. Though it allows us to avoid charges of cultural essentialism, jettisoning the practice of distinguishing insiders from outsiders in individual cases may sometimes vitiate objections to acts of cultural appropriation, leaving us without the resources to adequately explain the nature of the wrong in question.  Thus, in such cases, the risks of essentialism must be weighed against the importance of lodging the most complete and fitting objection to the harmful act.

19 September 2018

Health Qualifications

Chapter 10 of the ICAC report noted in the preceding post deals with Ms Sharobeem's qualifications, of interest regarding vetting, identity offences and the national Health Practitioner Regulation Law regime (and an echo of the Zepinic fraud noted here and here).
This chapter examines whether Eman Sharobeem falsely claimed to be a qualified psychologist holding two PhDs and a masters degree and whether she treated clients of the Immigrant Women’s Health Service (IWHS) as a psychologist. 
Ms Sharobeem’s educational qualifications 
Ms Sharobeem told the Commission that, in 1984 or 1985, she obtained a degree in commerce/accounting and business administration from Ain Shams University, in Cairo, Egypt. The Commission made enquiries with Ain Shams University and was advised that its records indicated that Ms Sharobeem had been awarded a bachelor of arts in business.  
Ms Sharobeem told the Commission that she did not complete any tertiary education in Australia, except for a TAFE office management course. She never obtained a masters or a doctorate degree by undertaking a course of studies at any educational institution. She said that, in about 2002, however, she received an honorary PhD from the American University in Cairo (“the American University”) for her work and research relating to “women and girls, microfinance and management”. 
Ms Sharobeem said that came about when she was working as a general manager for the External Relations Department at the National Council for Women (NCW) in Egypt. She was informed by a professor from the American University, that it was “planning” to award her an honorary PhD. She was not told whether it was a PhD in psychology or another discipline. One of the staff in the NCW human resources department called her sometime later to congratulate her on receiving an honorary degree, and issued her with a business card showing her as having a PhD. From that point on, she was addressed and known as “Dr Eman Sharobeem”. She said the Arab League had also issued her with a card describing her as a doctor. 
Ms Sharobeem told the Commission that she did not receive a degree certificate or any other documentation evidencing the awarding of an honorary degree by the American University. She said that there was a document that proved the honorary degree was conferred on her, but it must have been burnt during the Arab Spring in 2011 when the NCW building was set on fire. All her attempts to locate a copy had been unsuccessful. 
The Commission made enquiries with the American University in Egypt. It advised that there was no record of any degree, honorary or otherwise, ever having been awarded to Ms Sharobeem by that institution. The Commission accepts that evidence. In doing so, the Commission takes into account that it is extremely unlikely that the recipient of an honorary degree from a university would not be given any documentation such as a degree certificate or at least an official letter of confirmation, evidencing that the degree had been conferred on that individual. 
The Commission is satisfied that Ms Sharobeem was never awarded an honorary degree from the American University. 
Ms Sharobeem’s representation of academic qualifications 
Ms Sharobeem denied falsely identifying herself as Dr Sharobeem or misrepresenting herself as having a PhD in psychology. She maintained that she was entitled to call herself a doctor by virtue of her honorary doctorate, and denied having provided IWHS with a curriculum vitae (CV) containing false academic qualifications. 
There was no reference to Ms Sharobeem having an honorary doctorate in the letter and CV she submitted in 2004  as part of her application for a job at IWHS. If she really believed, at that time, that she had an honorary degree it is most likely that she would have included it in her CV in order to enhance her prospects of gaining employment with IWHS. However, her IWHS staff file did contain another CV, dated 4 December 2006. The 2006 CV identified her as “Dr Eman Sharobeem” and stated that she obtained a PhD with a thesis major in psychology and minor in community management, and a masters in community management, both from the American University. The 2006 CV also stated that she also held a diploma in management of community organisations from the University of Technology, Sydney (UTS). Ms Sharobeem admitted to the Commission she did not hold any of the qualifications identified in the 2006 CV. Although she had commenced a UTS diploma course in community organisation, she never completed the course. She also conceded that she never wrote a thesis on psychology. She claimed to have written a thesis on community management at UTS, but said that she no longer had a copy. 
Ms Sharobeem told the Commission that the 2006 CV was created by her on her home computer and was “wishful play”, “wishful thinking”, and an attempt to “understand how to phrase the honorary degree in simple terms”. Although she accepted that the information in the 2006 CV concerning her academic qualifications was incorrect, she denied that the 2006 CV was a false document. That denial reflects her lack of credibility as a witness. 
Ms Sharobeem told the Commission that she did not submit the 2006 CV to IWHS, and therefore its location in her IWHS personnel file must have been the result of someone “fabricating” it to be used against her. It is inherently implausible that anyone could have obtained the 2006 CV that Ms Sharobeem herself created on her home computer, then arrange for it to be included in her IWHS personnel file for the purpose of it potentially being used against her one day. The Commission rejects Ms Sharobeem’s explanation, and is satisfied that she was responsible for placing the 2006 CV on her IWHS staff file knowing that it contained false information concerning her qualifications. 
Representation as a qualified psychologist at IWHS 
Ms Sharobeem admitted to the Commission that she was not a trained psychologist and had never been registered as a psychologist. She denied she falsely held herself out as a qualified practising psychologist to the IWHS board, staff, clients and the community in general. 
A number of witnesses told the Commission that they were led by Ms Sharobeem to believe she was a qualified psychologist. 
Watfa El-Baf, an administrative officer at IWHS, gave evidence that Ms Sharobeem told IWHS staff that she was a psychologist. Another IWHS administrative officer, Marie Abboud, told the Commission that, in about 2004, when Ms Sharobeem first started working as the IWHS manager, she called herself “Mrs Eman Sharobeem”. However, from about 2008 or 2009, she started calling herself a doctor and signed documents as “Dr Sharobeem”. Ms Abboud recalled that, in about 2009, Ms Sharobeem told her that she had studied psychology. 
Sok Luong Chan, who was the project coordinator of IWHS’s Cabramatta office, told the Commission that, at some point in time, Ms Sharobeem told her she had obtained a PhD and subsequently became a psychologist. 
Audrey Lai, an IWHS board member, gave evidence that Ms Sharobeem had told her that she was a qualified psychologist; although, she “did not renew her registration with the Psychology Board as she was not charging people”. 
Svetlana Maric, who became a board member for IWHS in 2005 and later became a caseworker at NESH, also gave evidence that Ms Sharobeem told her she was a psychologist. 
Julie Watton, who was a board member of IWHS and Non-English Speaking Housing Women’s Scheme Inc (NESH), gave evidence that Ms Sharobeem had talked to her about finishing a degree, which she may have said was in psychology, and sometime later she started calling herself “Dr Sharobeem”. Ms Watton told the Commission that her recollection of her previous conversation with Ms Sharobeem, and Ms Sharobeem’s change of title, led her to believe that Ms Sharobeem had obtained a degree and become a doctor of psychology. 
There were a number of documents in evidence before the Commission that Ms Sharobeem had signed as “Dr Sharobeem”. 
Despite this evidence, Ms Sharobeem maintained that she did not represent herself to IWHS staff or board members as a qualified psychologist. She claimed that, at one point, she corrected Ms El-Baf ’s misunderstanding that she was a psychologist. She also suggested that NESH project coordinator Nevine Ghaly had planned to frame and defame her, and had, for that purpose, influenced Ms El-Baf and Ms Abboud to believe what Ms Ghaly wanted them to believe. 
The Commission rejects Ms Sharobeem’s evidence and accepts the evidence of the other witnesses on this issue. The consistent and corroborative testimony of the   six witnesses is more persuasive than Ms Sharobeem’s unsupported denial. It is inherently unlikely that all six witnesses were lying or mistaken when they gave their evidence to the Commission. In accepting their evidence, the Commission also takes into account the objective evidence that Ms Sharobeem signed IWHS documents as Dr Sharobeem and the other evidence, set out below, that she misrepresented herself to others as being a psychologist. 
The Commission is satisfied that Ms Sharobeem intentionally made false representations to IWHS staff and board members that she was a qualified psychologist. 
Representation as a qualified psychologist at other agencies 
Ms Sharobeem denied that she falsely represented to various agencies that she was a qualified psychologist with a PhD in psychology. 
There was documentary evidence before the Commission showing that Ms Sharobeem falsely represented herself as a psychologist with a doctorate in psychology to various agencies. The following are some examples of those documents and Ms Sharobeem’s explanations. Ms Sharobeem sent emails as follows:
  • 30 May 2005 to a TAFE officer 
  • 14 December 2006 to officers at the NSW Department of Education, TAFE and Sydney South West Area Health Service 
  • 30 January 2007 to an officer at the NSW Department of Education and Training 
  • 30 January 2007 to the Smith Family 
  • 10 August 2007 to the Western Sydney Regional Organisation of Councils. 
All of these emails attached her CV, which stated that she held degrees, including a PhD in psychology, a masters in community management, and a diploma in management or community management. There were slight variations in detail in each CV. 
Ms Sharobeem admitted that the educational qualifications set out in the CVs were wrong, but claimed they were unintentional mistakes. She denied that she sent out the CVs knowing they contained false information about her academic qualifications, in order to give the recipients the false impression that she was a trained psychologist. 
The Commission rejects her denial. It is implausible that over a period of more than two years, she would mistakenly send emails to various recipients attaching various CVs, all with false academic qualifications. 
On 7 June 2006, Ms Sharobeem sent an email to the Coptic Orthodox Church attaching minutes of a meeting dated 16 May 2006. She told the Commission that she had proofread the minutes, which she said were an English translation of what was discussed at the meeting in Arabic. The minutes recorded that she introduced herself as Dr Sharobeem with a PhD in psychology. Ms Sharobeem told the Commission that she was suggesting at the meeting that she was a person who had a PhD, and not that she was a trained psychologist. 
On 27 May 2015, Ms Sharobeem received a text message in which the sender asked her: “To put the correct credits and names at the end of the DVD, we need to confirm that you have a (PhD) in psychology”. Ms Sharobeem responded with a text message on the same day saying, “Yes I do”. Those three words constituted the entire text of her message. When giving evidence to the Commission, Ms Sharobeem disagreed that her response was confirmation that she had a doctorate in psychology. She claimed her response was meant to refer to the honorary degree she claimed to have received from the American University. 
There is no merit to Ms Sharobeem’s claim that it was not her intention to portray herself as a psychologist, rather than someone with an honorary degree in psychology. The Commission has found that Ms Sharobeem did not have an honorary PhD. In any event, she conceded that she never clarified to anyone, either in her official capacity as IWHS manager or outside work, that her status as a doctor was based on an honorary degree and not on completion of postgraduate university studies in psychology. 
The Commission is satisfied that Ms Sharobeem knowingly made false representations to government and other agencies that she was a qualified psychologist with a PhD in psychology. 
Representations to the media 
The Commission also investigated whether Ms Sharobeem held herself out as a qualified psychologist to the public through the media. She denied having done so and claimed she only made herself known in the general community as the holder of an honorary doctorate. 
In evidence before the Commission were two radio interviews conducted with Ms Sharobeem. One was an interview on 29 July 2012 on ABC Radio National with Rachel Kohn. The other was an interview on 7 December 2014 on the Sunday Profile program with Richard Aedy. In both interviews, Ms Sharobeem talked about her studies in psychology, obtaining two degrees, a graduation ceremony at the completion of her studies and being a doctor in psychology. During the Sunday Profile interview, the following conversation took place:  
[Mr Aedy]: You are a psychologist yourself? 
[Ms Sharobeem]: I am. 
[Mr Aedy]: Do you see clients? 
[Ms Sharobeem]:  I do. That’s the best time of my day when I interact with the client one-on-one and see the client growing with me to a better and safe place.
A number of witnesses gave evidence that Ms Sharobeem saw patients in the capacity of a psychologist. 
Ms Abboud told the Commission that she gave out Ms Sharobeem’s business cards, in which she was described as “Dr Eman Sharobeem”, to people asking to see a psychologist, and made appointments for them to see Ms Sharobeem as a psychologist. Ms Abboud said that a number of people on IWHS client lists saw Ms Sharobeem as a psychologist; some on a regular basis. 
Ms El-Baf told the Commission that people from Centrelink, church, police and counsellors, called for or were referred to Ms Sharobeem as a psychologist. 
Ms Chan recalled receiving telephone calls at IWHS’s Cabramatta office from people asking for an appointment to see a psychologist or a counsellor. She contacted IWHS’s Fairfield office to find out if such an appointment could be made and, if so, the identity of the psychologist or counsellor. She was told such appointments could be made and that Ms Sharobeem was the psychologist/ counsellor. Although no distinction appears to have been made in this instance, between a psychologist and a counsellor, Ms Chan’s evidence is consistent with the evidence of Ms Abboud and Ms El-Baf, that there was an understanding within IWHS that Ms Sharobeem was a psychologist. 
Jihan Hana, an IWHS facilitator, told the Commission that she always knew Ms Sharobeem as Dr Sharobeem, believed her to be a doctor in psychology, and even received counselling from her herself for a brief period. In the counselling sessions, Ms Sharobeem referred to herself as a psychologist. 
Reda Shehata, a volunteer at NESH and a friend of Ms Sharobeem, told the Commission that she knew Ms Sharobeem as Dr Sharobeem, and believed her to be a practising psychologist from IWHS. She also said there was someone known to her who saw Ms Sharobeem as a psychologist for a couple of months. 
Ms Maric gave evidence that IWHS provided psychological counselling to people. During her time at NESH in 2013 and 2014, she was aware of some clients being referred by NESH to IWHS for psychological counselling. She understood that Ms Sharobeem was the only psychologist employed at IWHS. 
In her evidence to the Commission, Ms Lai said that she referred clients from Centrelink to Ms Sharobeem in the belief that she was a trained psychologist. 
There was documentary evidence that showed that Ms Sharobeem saw a significant number of IWHS clients as patients, including those referred to her by medical practitioners. She also provided official letters to government and community organisations about individuals she saw, in which she made diagnoses of mental health conditions of the kind that would normally be made by a qualified psychologist. One of the documents was titled “Dr. Eman Sharobeem Client Details”. It listed numerous names of persons, their contact details and appointment dates and times. Ms Sharobeem agreed that it was a list of clients she saw. Although she claimed she only saw them in the capacity of a caseworker or IWHS manager, not as a psychologist, the document title is indicative of her holding herself out as a qualified doctor. 
During the public inquiry, Ms Sharobeem was shown a number of mobile telephone text messages of various dates she sent or received, which related to requests from people to see a psychologist and arrangements made for her to see them. One example was a text message to her dated 5 February 2015. The sender commenced the message with “Hi doctor, my name is ...”, reflecting the sender’s belief that Ms Sharobeem was a doctor. A text message dated 12 October 2015 said, “Hi dr. Eman ... I have a marital separation issue. R u working as a psychologist regarding this issues ??”. Ms Sharobeem replied to that text message on the same day, “Yes, but have very long waiting list”. It is particularly clear from that response that she was holding herself out as a psychologist who was able to provide advice. During the public inquiry, Ms Sharobeem was also referred to a Viber text message, dated 9 April 2015, in which she said, “My apologies, I had patients with me. Will call soon”. 
Ms Sharobeem denied that what she said at the interviews about being a qualified psychologist was a lie. She said her comments were a “misrepresentation of what I wanted to say”. She initially sought to justify her false statements by claiming to have completed certificates in psychology after doing short courses, although not from a university and despite not being able to recall the first subject she studied. She eventually admitted that the representations she made in the interviews were “absolutely wrong” and misleading, however claimed she did not mean to mislead anyone. 
During the public inquiry the Commission also played a video recording of SBS’s Insight program, episode 15 from 2012, which was on the topic of polygamy. Ms Sharobeem appeared in that program and told the host of the show and the audience in the studio that she was a psychologist. At the Commission, she admitted “that was [the] wrong interpretation of who I was”. 
The Commission is satisfied that Ms Sharobeem publicly promoted herself during media appearances on radio and television as a trained psychologist, who had completed studies and obtained degrees in psychology. 
Did Ms Sharobeem treat IWHS clients? 
The Commission also examined whether Ms Sharobeem pretended to be a psychologist when treating IWHS clients. 
Ms Sharobeem told the Commission that she told IWHS clients that “I’m a doctor in psychology” but that was a “brief ” way of really telling them she had an honorary degree. She claimed that she mostly communicated with clients in Arabic and that saying in Arabic that she was a doctor in psychology “gives more meaning than the word in English”. 
Ms Sharobeem admitted that she was not qualified to treat patients as a psychologist and was never registered as one. She denied ever treating anyone as a psychologist. She told the Commission that she only provided clients with counselling when needed, and referred them on to qualified psychologists where required.  
The Commission is satisfied that the consistent and corroborative testimony of the witnesses referred to above, the documentary evidence and evidence of the text messages shows that she did hold herself out to IWHS clients as a psychologist and that she saw patients in that capacity. 
Did Ms Sharobeem receive referrals as a psychologist? 
In her evidence to the Commission, Ms Sharobeem accepted that doctors may have believed she was a qualified psychologist but maintained that she did not psychologically treat any patients referred to her by doctors or make psychological diagnoses. She claimed that she only conducted assessments of those people, and then referred all the cases to a psychologist. 
At the public inquiry, Ms Sharobeem was shown referrals of patients by doctors dated 23 November 2009, 29 December 2009, 9 June 2010 and 3 February 2014, all of which thanked Ms Sharobeem for seeing the patients referred. Ms Sharobeem admitted she saw the patients, but insisted that she was never involved in treating them. 
She claimed that she just “managed” their cases, by talking to them to determine whether they needed to see a psychologist or required another form of assistance. She also told the Commission that many Arabic-speaking people came to see her, because she was well-known within the Arabic community, as “a woman who is wise and know[s] how to deal with” people under pressure from issues relating to racism, bullying, education, family issues, cultural transition and religious conflict. 
Ms Sharobeem was shown the following documents:
  • An “Enhanced Primary Care Program Referral Form for Allied Health Services under Medicare” dated 7 May 2009 in which Ms Sharobeem was named as the “servicing allied health professional”. Ms Sharobeem said she did not remember the document. 
  • A letter dated 22 July 2009 to the University of Western Sydney in which the writer was identified as “Dr Eman Sharobeem, Psychologist, Service Manager”. The letter referred to the “psychological status” of the client as being “assessed” and also referred to “psychological analysis”, “counselling” and “treatment process” for the client. The letter outlined three months of ongoing psychological treatment. Ms Sharobeem said she did not know the client, and sought to cast doubt as to whether she was, in fact, the author of the letter. 
  • A letter dated 18 December 2009 to the NSW Department of Housing in which the writer was identified as “Dr Eman Sharobeem, Psychologist, Service Manager”. The letter referred to a psychological analysis of the client in question and treatment for depression and anxiety over six months. Ms Sharobeem said “psychologist” was “wrongly written” in the letter. She attempted to dissociate herself from the letter by claiming that she did not have a definite recollection of writing it, but if she did write it, she probably used the wording of the psychological diagnosis made by the psychologist involved in the case. There is, however, no reference to any other psychologist in the letter. 
  • A letter dated 29 January 2010 to the Parramatta office of the NSW Department of Immigration and Citizenship in support of an application for a protection visa, in which the writer was identified as “Dr Eman Sharobeem, Manager”. The letter concerned a female victim of domestic violence. The letter stated that the person’s “psychological status was assessed and certain levels of stress and anxiety were identified, as a result of suppressed personal issues and violence”.  Ms Sharobeem agreed that she assessed the person and identified the person as suffering from stress and anxiety. She said that, although she was not a qualified psychologist, stress and anxiety were easy to detect. 
  • A letter dated 20 November 2010 to the Tribunal of the Catholic Church in which the writer was identified as “Dr Eman Sharobeem”. The letter stated that the person referred to in the letter presented with “stress, anxiety and depression symptoms”. Ms Sharobeem claimed the person came to see her after having been previously psychologically assessed as suffering from those symptoms, and she merely acknowledged in the letter what she was told by the person. 
  • A letter dated 17 September 2011 to a caseworker at the Australian Red Cross, in which the writer was identified as “Dr Eman Sharobeem, Service Manager, Psychologist”. The letter confirmed that the person in question had suffered from the effects of torture and trauma and was therefore unfit to work. Ms Sharobeem told the Commission the word “psychologist” should not have been used. She claimed that she expressed her opinion as a caseworker, not a psychologist. 
  • A GP Mental Health Treatment Plan dated 5 February 2014 by a referring general practitioner, which included a history of the patient’s mental health diagnoses, and identified Ms Sharobeem as a psychologist and a mental health professional involved in the patient’s care. Ms Sharobeem accepted that she had no experience in diagnosing psychotic disorders, but denied having done so. She said she may have talked with the client in this case, who was Egyptian, “briefly about the culture at home”, and claimed the client then saw a qualified psychologist.
Ms Sharobeem sought to distance herself from direct responsibility for the letters by raising the possibility that she had signed and sent letters out without checking their contents were correct. The Commission rejects that evidence. 
All of the above documents were associated with issues relating to mental health. Ms Sharobeem frequently purported to be a doctor and a psychologist in her correspondence when she was neither, expressed views of a medical nature, and made diagnoses. Ms Sharobeem took no steps to correct documents in which she was incorrectly identified as a psychologist by medical practitioners. She did not qualify her status in any of the relevant documents by explaining that she was a counsellor providing services as a caseworker only and not as a psychologist. 
The Commission is satisfied that Ms Sharobeem held herself out as a qualified psychologist, and practiced as such, without any formal qualifications or training. Her conduct involved her accepting referrals from health professionals and other community organisations, making psychological diagnoses, and treating people as patients in the capacity of a psychologist. 
Parolee X 
There was evidence that a parolee (“Mr X”), whose name is subject to a non-publication direction under s 112 of the Independent Commission Against Corruption Act 1988 (“the ICAC Act”), came to see Ms Sharobeem in 2011 after obtaining a referral from a general practitioner to see a psychologist. 
Ms Sharobeem told the Commission that Mr X was a young man whose family was well-known to her, and trusted her to care for and help him. She denied providing him with psychological care or treatment, or representing herself to anyone as his treating psychologist. She claimed that, after she saw Mr X, she made an appointment for him to see a psychologist, whose details however she was unable to provide to the Commission.  
Department of Corrective Services (DCS) records identified Ms Sharobeem as Mr X’s psychologist. His DCS breach of parole report, dated 6 July 2011, stated that Mr X “scheduled an appointment with a psychologist on 7 July 2011” and also referred to “Contact with [Mr X’s] treating psychologist on 8 July 2011”. Ms Sharobeem did not deny that she was seeing Mr X at that time, but maintained that she did not provide psychological treatment to him but merely offered him counselling. 
In a further breach of parole report of 15 August 2011, Ms Sharobeem was referred to several times as “the offender’s treating psychologist” or “the offender’s psychologist”. There was a note by DCS staff that “Contact with the offender’s treating psychologist on 10 August 2011 confirmed the offender has continued attending weekly psychological and gambling counselling. [Mr X’s] psychologist stated that she continues to work closely with both the offender and his family...”. 
Ms Sharobeem told the Commission that she did not recall having a conversation with the report writer about working closely with Mr X in relation to his problems. She said that she had worked with Mr X and his family. She claimed not to remember telling anyone from DCS that she was a psychologist, although she did recall receiving calls from DCS about Mr X, and suggested that Mr X may have told the DCS officers that she was his treating psychologist. 
The Commission rejects Ms Sharobeem’s evidence that she did not tell DCS officers she was Mr X’s psychologist. The Commission also rejects the possibility that it may have been Mr X, and not Ms Sharobeem, who told the DCS officers that she was his treating psychologist, and that the DCS officers mistook her as such when communicating with her about Mr X. That is because the relevant DCS records demonstrate Ms Sharobeem was providing information about Mr X to the DCS officers in the capacity of a psychologist treating Mr X, and not just as someone offering Mr X counselling and support as she claimed. 
For example, it is stated in the DCS case note report dated 20 July 2011 that “Dr Eman Sharobeem” advised that she will “continue to counsel offender weekly but unsure if this is the most appropriate treatment for offender”. It is not clear whether by “treatment” she was referring to her weekly counselling sessions or the rehabilitation program that was being considered for Mr X at the time. In any event, it is clear that she was expressing an opinion on the appropriateness or otherwise of a treatment for Mr X. A further case note report dated 1 September 2011 recorded that, “Dr Sharobeem (offender’s psychologist) ... stated she would no longer be offering psychological counselling or gambling counselling to the offender”. By the express use of the words “psychological counselling”, the DCS officers would reasonably assume that Ms Sharobeem was providing Mr X with not just support counselling but counselling as a psychologist. 
There is nothing to suggest in the DCS documents that any doubt had ever been raised in the minds of the DCS officers as to whether or not Ms Sharobeem was, in fact, Mr X’s treating psychologist or that, when she was contacted by them in relation to Mr X, she communicated to any of them that she was not Mr X’s psychologist. 
It is unlikely that DCS officers would have identified Ms Sharobeem in DCS records as being Mr X’s treating psychologist, and made references in their breach of parole reports and case notes to Ms Sharobeem having that role, if she never told them or confirmed to them that she was Mr X’s psychologist. 
That Ms Sharobeem represented herself to DCS as a qualified psychologist is consistent with her history of falsely representing herself as a qualified psychologist to others over a period of years. The Commission is satisfied that Ms Sharobeem falsely represented herself to DCS officers to be Mr X’s treating psychologist and that she saw Mr X in that capacity. 
Further remarks 
From the evidence available to the Commission, it is not possible to establish with certainty exactly when Ms Sharobeem first started to use the title “Dr”, purport to be a qualified psychologist or provide treatment as a psychologist. However, given her 2006 CV, and in the absence of any evidence showing that her practice of misrepresenting herself as a qualified psychologist ceased at any point before IWHS was closed in 2016, it can be reasonably inferred that this conduct occurred between at least 2006 and 2016. 
Evidence obtained by the Commission shows that Ms Sharobeem sometimes held herself out to hold just one PhD, and on other occasions claimed to have two PhDs. For example, in her 2011 application to the NSW Community Relations Commission to become a part-time commissioner, and in a 2014 email to an officer at the Anti-Discrimination Board NSW (both of which are discussed in chapter 11 of this report), she claimed to have a PhD in psychology from the American University, and a second PhD in management in organisational leadership from UTS. The available evidence shows that she consistently represented herself as a psychologist with at least one PhD in psychology. She also often claimed to have a masters degree in community management or social science. 
Ms Sharobeem’s false pretences created significant risks to the community in that she saw vulnerable people who required psychological treatment from a qualified professional. 
Corrupt conduct 
The Commission finds that, between at least 2006 and 2016, Ms Sharobeem improperly exercised her official functions by falsely claiming to be a qualified psychologist with a PhD in psychology, and providing psychological treatment to IWHS clients and patients referred to her. 
Ms Sharobeem’s conduct was corrupt conduct for the purpose of s 8 of the the ICAC Act. This is because her conduct constituted or involved the dishonest exercise of her official functions and therefore comes within s 8(1)(b) of the ICAC Act. Her conduct also constituted or involved a breach of public trust and therefore comes within s 8(1)(c) of the ICAC Act. 
The Commission is satisfied, for the purpose of s 9(1)(a) of the ICAC Act, that, if the facts it has found were proved on admissible evidence to the criminal standard of beyond reasonable doubt and accepted by an appropriate tribunal, they would be grounds on which such a tribunal would find that Ms Sharobeem committed an offence of using a protected title under s 113 of the Health Practitioner Regulation National Law (NSW). That section provides it is unlawful for a person to knowingly or recklessly take or use a title that could be reasonably expected to induce a belief that the person is registered in the health profession listed in one of the health professions  in the table to the section. The table includes “psychology” under the category of professions and “psychologist” under the category of titles. 
The Commission is also satisfied, for the purpose of s 9(1)(b) of the ICAC Act, that, if the facts as found were to be proved on admissible evidence to the requisite standard of on the balance of probabilities and accepted by an appropriate tribunal, they would be grounds on which such a tribunal would find that Ms Sharobeem committed a disciplinary offence of misconduct. 
Accordingly, the Commission is satisfied that the jurisdictional requirements of s 13(3A) of the ICAC Act are satisfied. 
The Commission is also satisfied, for the purpose of s 74BA of the ICAC Act, that Ms Sharobeem engaged in serious corrupt conduct. This is because her conduct:
  • involved serious dishonesty in falsely representing herself as a qualified psychologist to her clients, government authorities, community organisations and the community at large 
  • involved providing psychological treatment to a number of people over a period of years without having the requisite professional qualifications or training, thereby creating a risk to the health of members of the public at large 
  • involved an extreme departure from the objects and purpose of IWHS to promote good health, including mental health, among people from a culturally and linguistically diverse background 
  • occurred over a significant period of time 
  • involved a substantial breach of public trust motivated by her own self-aggrandisement, which may have affected the official functions of a number of public sector agencies 
  • could constitute a criminal offence under s 113 of the Health Practitioner Regulation National Law (NSW), which carries a maximum penalty of $30,000. 
The Commission finds that, between at least 2006 and 2016, Ms Sharobeem engaged in serious corrupt conduct by improperly exercising her official functions by falsely representing herself to be a qualified psychologist with a PhD in psychology and providing psychological treatment to IWHS clients and patients referred to her. 
Section 74A(2) statement 
The Commission is satisfied that Ms Sharobeem is an “affected” person with respect to the matters dealt with in this chapter. 
The Commission is not of the opinion that consideration should be given to obtaining the advice of the Director of Public Prosecutions (DPP) with respect to the prosecution of Ms Sharobeem for the criminal offence of using a protected title under s 113 of the Health Practitioner Regulation National Law (NSW) in relation to her use of the title of psychologist. This is because proceedings for this offence must be commenced within six months from the date on which the offence was alleged to have been committed, and this period has now expired. 
The Commission is of the opinion that consideration should be given to obtaining the advice of the DPP with respect to the prosecution of Ms Sharobeem for offences under s 87 of the ICAC Act in relation to her evidence that:
  • she was awarded an honorary doctorate from the American University 
  • she did not claim to be a psychologist when providing care to Mr X. 
Given that Ms Sharobeem no longer works for IWHS, which itself is no longer in existence, the issue of whether consideration should be given to the taking of action against her for a disciplinary offence or with a view to her dismissal does not arise.

ICAC Qualifications Report

The NSW Independent Commission Against Corruption (ICAC) report on an investigation of Eman Sharobeem notes concerns regarding her qualifications.

The report states
Those entrusted with public funds should use those funds for the public purposes for which they are provided. Unfortunately, on occasion public funds may be misused for personal gain rather than the public good. This investigation by the Independent Commission Against Corruption (“the Commission”) concerned such a case. The investigation primarily concerned allegations that Eman Sharobeem, when service manager or chief executive officer (CEO) of the Immigrant Women’s Health Service (IWHS) and the person in day-to-day charge of the Non-English Speaking Housing Women’s Scheme Inc (NESH), misused public funds entrusted to those agencies for the financial benefit of herself and members of her family. 
Other matters investigated included whether Ms Sharobeem falsely claimed certain academic qualifications and then used them to obtain employment as a part-time commissioner and board member of the Community Relations Commission (CRC) and member of the Anti-Discrimination Board (ADB) NSW. 
The Commission found that, between 2007 and early 2016, Ms Sharobeem improperly exercised her official functions at IWHS and NESH to misapply public funds to benefit herself and members of her family. Up to $773,000 was misused. The Commission was not able to identify the precise amount of funds misused because, as noted in chapter 2 of this report, while over $443,000 in IWHS funds were transferred from the IWHS bank account to Ms Sharobeem, the Commission could not preclude the possibility that some of that money was reimbursement for work-related expenses. Given the limited funding received by both organisations, the misuse of funds represented a substantial amount of public funds entrusted to those organisations for public purposes. 
The Commission also found that Ms Sharobeem knowingly falsified information provided to funding bodies, improperly arranged for a family member to be employed at NESH and have personal use of a NESH vehicle, falsely represented herself as a qualified psychologist and provided psychological treatment to IWHS clients and others, and used false academic qualifications to obtain paid employment with the CRC and the ADB.
 The Commission found that Ms Sharobeem engaged in serious corrupt conduct by:
Between 2009 and 2015, improperly exercising her official functions to benefit herself by arranging to obtain up to $443,000, through transfers to her bank account, from IWHS by way of reimbursement for the cost of goods and services she had purchased for personal use, knowing that she was not entitled to such reimbursements (chapter 2) 
Between February and June 2015, improperly exercising her official functions to benefit herself by arranging for the transfer of funds totalling $13,500 from IWHS to Andrew’s Designer Jewellery, knowing that the payments related to the purchase of jewellery for personal use and that she was not entitled to use IWHS funds for that purpose (chapter 2) 
between 2010 and 2014, improperly exercising her official functions to benefit herself by arranging for the transfer of funds totalling $3,850 from IWHS to a wardrobe supplier, knowing that the payments related to the purchase of wardrobes for personal use and that she was not entitled to use IWHS funds for that purpose (chapter 2) 
In about December 2013, improperly excercising her official functions by submitting an invoice for $210 to IWHS, which she knew to be false, in order to obtain payment from IWHS of $210 for pest control services at her home, knowing that she was not entitled to use IWHS funds for such a purpose (chapter 3) 
In about June 2015, improperly excercising her official functions by submitting an invoice for $3,878 to IWHS, which she knew to be false, in order to obtain payment of $3,878 from IWHS for the purchase of a gate at her home, knowing that she was not entitled to use IWHS funds for such a purpose (chapter 3) 
In March 2014, improperly excercising her official functions by submitting a receipt for $489 to IWHS, which she knew to be false, in order to obtain payment of $489 from IWHS to reimburse her for payment for a Classic Holiday Club VIP membership pass for herself, knowing that she was not entitled to use IWHS funds for such a purpose (chapter 3) 
In June 2015, improperly excercising her official functions by submitting an invoice for $6,900 to IWHS, which she knew to be false, in order to obtain reimbursement of her personal credit card expense of $5,900, and to cover the use of the IWHS credit card to pay $1,000, for the purchase of a massage chair for her personal use, knowing that she was not entitled to use IWHS funds for such a purpose (chapter 3) 
Between January 2009 and February 2016, improperly exercising her official functions to benefit herself or members of her family by using the IWHS credit card to pay $35,211.39 for personal goods and services, knowing that she was not entitled to use IWHS funds for such a purpose (chapter 4) 
Between 2007 and 2016, improperly exercising her official functions to benefit herself or members of her family by causing payments totalling $31,157.87 to be made to Sydney Water Corporation and the State Debt Recovery Office (SDRO) by direct transfer of IWHS funds for personal expenses, knowing that she was not entitled to use IWHS funds for such a purpose (chapter 4) 
Between May 2014 and March 2015, improperly exercising her official functions to obtain $99,685 through submitting invoices to IWHS, falsely claiming she had worked as a facilitator and causing payment of those invoices to be made to her by IWHS (chapter 5) 
Between May 2014 and March 2015, improperly exercising her official functions to obtain $34,050 for her son, Richard Sharobeem, through submitting invoices to IWHS, falsely claiming he had worked as a facilitator and causing payment of those invoices to be made to him by IWHS (chapter 5) 
Between May 2014 and February 2015, improperly exercising her official functions to obtain $7,750 for her son, Charlie Sharobeem, through submitting invoices to IWHS, falsely claiming he had worked as a facilitator and causing payment of those invoices to be made to him by IWHS (chapter 5) 
Between 2011 and 2015, improperly exercising her official functions to benefit herself by arranging for IWHS to pay $59,558.70 for work on her property at 92 Smart Street, Fairfield, knowing that, as owner of that property, those costs were her responsibility (chapter 6) 
In 2014, improperly exercising her official functions to benefit herself by falsely stating in an application to the NSW Community Building Partnership that IWHS was the owner of her property at 92 Smart Street, Fairfield, with the intention of obtaining public funds to pay for work on her property (chapter 6) 
In 2015, improperly exercising her official functions by knowingly falsifying statistics relating to the numbers of attendees for IWHS programs reported in the IWHS 2014–15 annual report, which she submitted to the South Western Sydney Local Health District (SWSLHD), knowing the false statistics would be relied on by NSW Health and the SWSLHD in determining IWHS’s funding (chapter 7) 
Between 2013 and 2015, improperly exercising her official functions by providing false statistics to the Smith Family in order to falsely represent to the Smith Family that IWHS had conducted the Multicultural Parenting Project and the Steps to Employment Project programs in accordance with its contractual obligations to the Smith Family (chapter 7) 
Between January and April 2014, improperly exercising her official functions to transfer a total of $13,500 from the IWHS bank account into her bank account and then arranging for NESH to reimburse IWHS for that amount (chapter 8) 
On 16 March 2015, improperly exercising her official functions to transfer $3,000 from the NESH bank account to her own bank account in order to reimburse herself for the $3,000 payment she made to Westmead Private Hospital for her son’s medical procedure (chapter 8)  
In late December 2014, improperly exercising her official functions to apply $18,000 in IWHS funds towards the purchase of a Mercedes car for her husband, Haiman Hammo, and then arranging for NESH to reimburse IWHS for that amount (chapter 8)I
In early 2015, improperly exercising her official functions to arrange for her son, Richard Sharobeem, to be hired as a paid employee of NESH (chapter 9) 
For a period of about six months from late December 2014 or early January 2015, improperly exercising her official functions to facilitate the exclusive use, including personal use, of a NESH motor vehicle by her son, Richard Sharobeem (chapter 9) 22. between at least 2006 and 2016, improperly exercising her official functions by falsely representing herself to be a qualified psychologist with a PhD in psychology and providing psychological treatment to IWHS clients and patients referred to her (chapter 10) 
In March 2011, knowingly submitting false academic qualifications to the CRC for the purpose of obtaining financial advantage by being appointed to the paid position of part-time commissioner of the CRC (chapter 11) 
In about December 2012, knowingly submitting false academic qualifications to the ADB for the purpose of obtaining financial advantage by being appointed to the paid position of a board member of the ADB (chapter 11). 
No findings of serious corrupt conduct were made against any other person. Section 74A(2) statement Statements are made in the report pursuant to s 74A(2) of the Independent Commission Against Corruption Act 1988 (“the ICAC Act”) that the Commission is of the opinion that consideration should be given to obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of Ms Sharobeem for the following offences:
• the common law offence of misconduct in public office (chapters 2, 3, 4, 5, 6 and 8) 
• fraud contrary to s 192E of the Crimes Act 1900 (“the Crimes Act”) (chapters 2, 4, 5 and 11) 
• obtaining benefit by deception contrary to s 178BA of the Crimes Act (chapters 2 and 4) 
• publishing a false statement contrary to s 192H of the Crimes Act (chapter 3) 
• using a false document contrary to s 254 of the Crimes Act (chapter 3) 
• giving false or misleading evidence to the Commission contrary to s 87 of the ICAC Act (chapters 2 and 10). 
The report features  the following corruption prevention recommendations
R1 That the SWSLHD, in conjunction with relevant non-government organisations (NGOs), develops additional outcomes-based key performance indicators (KPIs) that reflect the critical objectives of the services that it funds. Where possible, measurement of these KPIs should not be based solely on information self-reported by NGOs. 
R2 That the SWSLHD adopts a coordinated and holistic framework for monitoring its funded NGOs that incorporates and links NGO governance capability, performance measures and financial reporting. This should entail less reliance on self-reported information. 
R3 That the SWSLHD considers allocating additional staff to manage the NGOs it funds. Considerations for setting adequate staffing levels could include the nature of the service, the vulnerability of the client groups, and the potential governance and financial risks that could arise. 
R4 That the SWSLHD requires funded NGOs to provide it with copies of audit management letters from external auditors. 
R5 That the SWSLHD conducts an initial, thorough review of its funded NGOs, focusing on financial competence and whether adequate governance arrangements are in place to ensure probity around funding arrangements. 
R6 That the SWSLHD develops risk metrics and conducts regular risk assessments of funded NGOs. The risk metrics should have regard to the risks that small NGOs can be prone to, including: • limited staff numbers • perverse incentives to falsify client data, either to enhance reputation or to lobby for increased funding • volunteer boards with limited time and skills to properly oversee the financial and administrative practices of the NGO and that members of these boards may not be aware of their responsibilities as managers of the CEO and/or other senior staff • poorly segregated financial practices and controls • CEO/coordinators with limited skills in managing staff, and in overseeing financial practices and systems. 
R7 That the SWSLHD checks and, wherever possible, verifies the qualifications, and continued registration (where relevant), of NGO employees. This should adopt a risk-based approach by focusing on qualifications that are: • mandatory to perform the service • required for the provision of medical, psychological and allied health services or • linked to the provision of any other services that could bring risks to the NGOs’ clients, and to the NGOs themselves. These checks could take the form of spot checks, risk-based checks or randomised checks on NGO staff members. 
R8 That SWSLHD considers requiring funded NGOs to maintain an internal reporting or whistleblowing program that aligns to better practice (such as AS 8004-2003), and/or guidance issued by the NSW Ombudsman. Among other things, this should facilitate reporting directly to the SWSLHD or a similar representative body. 
R9 That the NSW Department of Family and Community Services (FACS) considers requiring funded NGOs to provide it with copies of audit management letters from external auditors. 
R10 That FACS, in conjunction with relevant NGOs, develops additional outcomes-based KPIs that reflect the critical objectives of the services that it funds. Where possible, measurement of these KPIs should not be based solely on information self-reported by NGOs. 
R11 That FACS considers, as part of its ongoing review of its contract governance framework, implementing checks and (wherever possible) verifying qualifications, and continued registration (where necessary) of NGO employees.R 
R12 That FACS considers requiring funded NGOs to maintain an internal reporting or whistleblowing program that aligns to better practice (such as AS 8004-2003) and/or guidance issued by the NSW Ombudsman. Among other things, this should facilitate reporting directly to FACS or a similar representative body  

16 September 2018

Obscurity

'Search Engines and the Right to be Forgotten: Squaring the Remedy with Canadian Values on Personal Information Flow' by Andrea Slane in (2018) 55(2) Osgoode Hall Law Journal 349-347 states
The Office of the Privacy Commissioner of Canada (“OPC”) recently proposed that Canada’s private sector privacy legislation should apply in modified form to search engines. The European Union (“EU”) has required search engines to comply with its private sector data protection regime since the much-debated case regarding Google Spain in 2014. The EU and Canadian data protection authorities characterize search engines as commercial business ventures that collect, process, and package information, regardless of the public nature of their sources. Yet both also acknowledge that search engines serve important public interests by facilitating users’ search for relevant information. This article considers specifically what a Canadian right to be forgotten might look like when it is seen as an opportunity to re-balance the values at stake in information flow. This article aims to bring Canada’s existing legacy of balancing important values and interests regarding privacy and access to information to bear on our current information environment. 
Slane comments
As evidenced by slogans like ‘lest we forget’ and let ‘bygones be bygones,’ ‘remembering’ and ‘forgetting’ play important social functions: We need to both learn from history and be able to move on from the past. The right to be forgotten that has entered global public consciousness in the last few years has inspired both concerns about suppressing history1 and reminders that total remembering is both new and damaging to data subjects and communities. However, the impetus behind the right to be forgotten is less about grand social values of remembering and forgetting, and more about managing personal information flows in the digital age: It is about trying to address vast power imbalances between data subjects and various digital information brokers, including information location service providers such as search engines. 
In Canada, the Office of the Privacy Commissioner of Canada (“OPC”) recently proposed that the data protection regime governing the private sector, the Personal Information Protection and Electronic Documents Act (“PIPEDA”), should be interpreted to obligate search engines to abide by fair information principles, in particular the principles of accuracy and appropriate purposes. Applying PIPEDA to search engines would be a new practice, even though the OPC claims that it is merely applying the current legislation. As recently as 2017, it seemed that only voluntary cooperation would be requested of search engines. For example, in the Federal Court’s affirmation of the OPC findings in AT v Globe24h.com, the defendant’s website was found to have violated PIPEDA when it scraped court and tribunal documents containing personal information from publicly accessible legal databases and allowed them to be indexed by general search engines. The Federal Court issued a declaratory court order, as endorsed by the OPC, which allowed the complainant to appeal to Google to honour its voluntary search alteration policies: The court did not directly issue an order to compel Google to do so. 
The European Union (“EU”), however, already requires search engines to honour complainants’ requests to remove personal information from search results in certain circumstances. The data protection regime in the EU characterizes search engines as primarily commercial business ventures that collect, process, and package information, regardless of the public nature of their sources.  Search engine results are in this sense a product sold by the search engine company—not directly to the user, but rather to advertisers and other data brokers with an interest in search result content and compilation. If this understanding of search engine results as an information product were adopted in Canada, as currently proposed by the OPC, then a search engine company could be deemed to be subject to PIPEDA, in that it “collects, uses or discloses [personal information] in the course of commercial activities.” While the OPC has rightly suggested that it would be unreasonable to require search engines to abide by PIPEDA as a whole, in particular with regard to securing consent for all of its collection and use of personal information, there are nonetheless significant ways that PIPEDA could be applied in a workable and rights-balancing way. This article considers what a finding that search engines are subject to PIPEDA would mean, and how it could be justified and limited in a principled fashion that respects our commitment to privacy, access to information and freedom of expression. In other words, what would a Canadian right to be forgotten look like? 
The right to be forgotten is generally recognized as arising from European sensibilities regarding personality rights. European privacy and identity rights provide strong protections for individual autonomy in the domain of identity formation and presentation, giving individuals more control over how they are discussed and portrayed in public. European data protection law operates as an outgrowth of this broader and stronger protection of citizens’ identity. This commitment is rooted in European emphasis on human dignity, respect for one’s ‘private life,’ and protection from damage to one’s reputation by either government or private actors. These rights are enshrined in multiple constitutional documents of the EU, and illustrate the more general trust that European legal culture places in government regulation to protect these interests, and their distrust of private markets to do so. 
The United States, on the other hand, is often regarded as having the opposite of European sensibilities when it comes to personal information flow. In the United States, privacy is rooted in liberty rather than dignity, as a right to be ‘free from’ government interference in one’s private life, with far fewer and more limited restrictions placed on private actors. Constitutional protection for privacy only extends to unreasonable search and seizure, and any private rights to privacy are consequently derived from statute or common law and often lose out to the much stronger constitutional protection for freedom of speech, which is notoriously strong in the United States. US legal culture stresses an acute distrust of government regulation, and instead places much more trust in markets to deal with private problems. 
Canada tends to fall somewhere in between these two interpretations: Our Charter of Rights and Freedoms does not contain express protection for privacy beyond protection from unreasonable search and seizure — although Quebec’s additional Charter of human rights and freedoms does, and is closer to the European approach to privacy, using similar language in fostering respect for “private life.” However, section 1 of the Canadian Charter has allowed privacy interests to be more readily balanced against freedom of expression than in the United States, as more restrictions can be justified as reasonable in a “free and democratic society.” Canada consequently approaches some issues of personal information flow differently than the United States—for example, publication bans to protect the privacy of some crime victims are constitutionally possible in Canada but not in the US. However, Canada has not embraced personality rights to the extent that the EU has, and significant recent gains in Canada for freedom of expression (specifically regarding publication of defamatory content) illustrate that Canada places more value on freedom of expression and less on protecting reputation than Europe. Canadian law on intermediary liability for information posted online by others is also less developed than in these jurisdictions. 
Discussions about the right to be forgotten are emerging along with the rapid development of our technology-based information landscape. Real concerns about actual and potential pervasive surveillance—from government, companies, peers, and the broader public—have resulted in heightened anxiety about being able to protect one’s identity and interests. Revelations of broad government surveillance of communications, commercial entities amassing vast quantities of data about consumer behaviour (including emotional responses to various stimuli, tracking online and app-enabled interactions with others, and geo-location technologies in many portable devices), as well as the explosion of social media, have fueled these concerns. Anonymity has always been a central strategy for protecting one’s privacy online, but it is becoming increasingly difficult to remain unidentified. We all now have large dossiers with data held by various public, private, and personal actors, with little knowledge of what is in them, and how they are combined (including from both private and public sources). Proponents of the right to be forgotten are attempting to intervene against this power imbalance. 
Search engines have become the primary means by which we find information, including of course about people: We search for people we know or hear about, and occasionally check our own names. Google has emerged as the worldwide leader in online search services, credited with over 90 per cent of the global market share. Google’s success has been attributed to its algorithms, by which the company processes information gathered from publicly available webpages and delivers the results in list form to a user, partly based on the user’s previous search history. The aim is to deliver the most relevant material at the top of the list. Information presented further down the list is deemed less relevant and most people do not even look at search results beyond the first page or two. Online reputation management services have long profited from the willingness of companies and individuals to pay for techniques such as Search Engine Optimization (“SEO”) to manipulate search results so positive information rises to the top and negative information is pushed down the list. These services are expensive, however, so only wealthy individuals can benefit from this private regulation of information flow: Without a right to be forgotten, ordinary people are at the mercy of the algorithms. 
Online identity — the profile that emerges when online information connected to a person’s name or other identifier is aggregated and made available to others — has increasingly become a central component of our social and professional lives. Youth are increasingly being taught about ‘self-branding’ as an important part of educational and professional success: They understand that online identity is central to many forms of social evaluation. Lisa Austin described privacy as the regime by which we secure and bolster the conditions for self-formation and presentation, online and off. She argued that data protection principles establish the ground rules for creating and safeguarding an identity-favourable environment. The problem with pervasive surveillance, then, is its possible effects on identity formation, revision, and tailoring to suit various social interactions. It can stifle one’s capacity to express “yourself freely in the here and now.” Erving Goffman noted that every individual has multiple identities, and that social interaction is built on which ‘face’ is put forward in a particular relational context. With the explosion of data collection from so many different directions and via so many channels, we have been rapidly losing the capacity to meaningfully influence, much less control, this process. The right to be forgotten, in its various forms, has the goal of allotting data subjects greater control over the flow of information about them. 
This article explores what a Canadian variant of the right to be forgotten might look like in relation to search engines as a particular type of business that collects and packages publicly available personal information about individuals. Part I will consider the different versions of this ‘right’ in the EU, specifically obscurity, oblivion, and erasure. In particular, it will explore how the EU deals with publicly and indirectly collected information, given that until now data protection regimes generally have not regulated the collection and processing of such information. Part II will consider the digital information dynamics related to publicly available personal information, and what the normative impetus behind regulating these information dynamics might be. It will include a discussion of the difference between what search engines do and what news sources do, and how it may be possible to restrict the former while preserving the importance of expression and access to information regarding the latter. Part III explores the possibility of dividing publicly available personal information into three subcategories: information that should not have been published in the first place; information that is publicly available from public sector sources, but to which public access has been legitimately restricted; and information that, while legitimately and publicly available, has been given more prominence than warranted by way of a search engine’s algorithm. Also important is whether this information has caused the data subject some harm. It also considers the current Canadian approach to each of these categories, and explores how the right to be forgotten might fit into our already established or developing normative approaches to personal information flow. Part III concludes by suggesting a creative solution to the especially complex and novel dynamics of information flow.

15 September 2018

Big Data South

'(Big) Data and the North-in-South: Australia’s Informational Imperialism and Digital Colonialism' by Monique Mann and Angela Daly in the forthcoming 'Big Data from the South' special issue of Television and New Media edited by Stefania Milan and Emiliano Trere comments 
Australia is a country firmly part of the Global North, yet geographically located in the Global South. This North-in-South divide plays out internally within Australia given its status as a British settler-colonial society which continues to perpetrate imperial and colonial practices vis-à-vis the Indigenous peoples and vis-à-vis Australia’s neighbouring countries in the Asia-Pacific region. This article draws on discuss five seminal examples forming a case study on Australia to examine big data practices through the lens of Southern Theory from a criminological perspective. We argue that Australia’s use of big data cements its status as a North-in-South environment where colonial domination is continued via modern technologies to effect enduring informational imperialism and digital colonialism. We conclude by outlining some promising ways in which data practices can be decolonised through Indigenous Data Sovereignty but acknowledge these are not currently the norm so Australia's digital colonialism/coloniality endures for the time being.

US Fashion Protection

'A Design of its Own: How to Protect the Fashion Industry' by Gianna Cresto in American Intellectual Property Law Association Quarterly Journal (Forthcoming) discusses the gap in [US] intellectual property protections for the fashion industry.
 First, it details why fashion is art of the type that typically qualifies for copyright protection, and not just a means of covering the body. Next, it discusses why this hybrid nature makes it unique and worthy of protection under current U.S. copyright law. Because designs are often chosen not just for their functional purpose, but for their artistic and expressive qualities, clothing is different from many other types of works protected by IP frameworks, including trademark and patent. The dual purpose and ability of fashion to be used as a form of expression should not keep if from the protection it deserves. The Supreme Court addressed the standard for copyright protection in the context of clothing design in Star Athletica v. Varsity Brands
This Note suggests that this recent development marks an opportune time to push for new legislation that will expand the Star Athletica ruling. These increased protections for the fashion industry should be developed by drawing on other forms of IP protection for fashion in the United States, and protections in place in other countries. These hybrid works call for a hybrid solution. Though its solution, this Note fills the gap for fashion designs, particularly for designers that are just starting out or less conspicuous when it comes to branding.

Competition law and the attention economy

'Blind Spot: The Attention Economy and the Law' by Tim Wu in (2018) Antitrust Law Journal comments 
Human attention is a resource. An increasingly large and important sector of the economy, including firms such as Google, Facebook, Snap, along with parts of the traditional media, currently depend on attentional markets for their revenue. Their business model, however, present a challenge for laws premised on the presumption of cash markets. This paper introduces a novel economic and legal analysis of attention markets centered on the “attention broker,” the firms that attract and resell attention to advertisers. 
The analysis has important payouts for two areas: antitrust analysis, and in particular the oversight of mergers in high technology markets, as well as the protection of the captive audiences from so-called “attentional theft.”
Wu states
Human attention, valuable and limited in supply, is a resource. It has become commonplace, especially in the media and technology industries, to speak of an “attention economy” and of competition in “attention markets.” There is even an attentional currency, the “basic attention token” (BAT) which purports to serve as a medium of exchange for user attention. Firms like Facebook and Google, which have emerged as two of the most important firms in the global economy, depend nearexclusively on attention markets as a business model. 
Yet despite the well-recognized commercial importance of attention markets, the law has struggled when it encounters the attention economy. Antitrust agencies, tasked with assessing the effects of mergers and controlling anticompetitive behavior, seem to lack a way to understand the market dynamics when the firms offer “free products” that are actually competing for attention. Meanwhile, those tasked with consumer protection have no good paradigm for dealing with attentional intrusions stemming from non-consensual, intrusive advertising or debates over the use of telephones on airlines. This essay aims to provide a legal and economic analysis to help face the challenges here described. In other work, I have described the rise and spread of the “attention industry,” the businesses that depend on the resale of attention, a global industry with an annual revenue of approximately $500 billion. 
This essay builds on that work by focusing on the economic decisions implicit in “Attention Brokerage.” As described here, brokerage is the resale of human attention. It is to attract attention by offering something to the public (entertainment, news, free services and so on), and then reselling that attention to advertisers for cash. Examples of pure Attention Brokers include social media companies like Instagram and Facebook, search engines like Google or Bing, ad-supported publishers like Buzzfeed or AM News, and some television channels like CBS or NBC. The Brokers’ activities are critical to the operation of attention markets, for the business model creates much of the competition for attention that this paper describes. 
This approach offers new promise for the antitrust law and some of the challenges it confronts in the attention economy. Markets and market definition are central to contemporary antitrust law, and this paper offers a new approach to the definition of attention markets, in cases where enforcers and courts may otherwise become confused by the presence of a “free” product or by two-sided market analysis. It suggests defining the relevant consumer markets based on “time spent” (or just “time”) as the currency, and then making use of the familiar economic concept of substitution to find an appropriate market. And so, for example, in a case centered on online mapping products, an enforcement agency may ask whether products like Google Maps, Waze, and Apple Maps are, in fact, substitutes for each other in attention markets. The law can then address appropriate market definition by asking whether other products, like streaming video, compete for the same attention as online maps. That makes possible the use of an “Attentional Small but Significant and Non-Transitory Increase in Price” test, or “A-SSNIPS” test as an aid to finding the appropriate market definition for consumer markets. 
The implications of this paper are not merely theoretical. Armed with a better analysis, it would not be too late for an American antitrust agency to challenge some of the relevant acquisitions consummated over the 2010s, like Facebook-Instagram, or Google-Waze, under either Section 7 of the Clayton Act, or Section 2 of the Sherman Act. The passage of years might, in fact, provide clearer evidence of whether such mergers have, in fact, generated efficiencies, or instead yielded either higher advertising prices, or increased the ad-load experienced by consumers, or resulted in quality effects, like diminished privacy protections. xxx In any event, taking attention markets seriously will be essential for agencies confronting a new generation of challenges raised by importance of the businesses that resell human attention. The goal of this paper is to encourage economists and agencies to develop workable models that help the law face these challenges.
'Freedom: The Holberg Lecture, 2018' by  Cass R. Sunstein asks
 If people have freedom of choice, do their lives go better? Under what conditions? By what criteria? 
Consider three distinct problems. (1) In countless situations, human beings face a serious problem of “navigability”; they do not know how to get to their preferred destination, whether the issue involves health, education, employment, or well-being in general. This problem is especially challenging for people who live under conditions of severe deprivation, but it can be significant for all of us. (2) Many of us face problems of self-control, and our decisions today endanger our own future. What we want, right now, hurts us, next year. (3) In some cases, we would actually be happy or well-off with two or more different outcomes, whether the issue involves our jobs, our diets, our city, or even our friends and partners, and the real question, on which good answers are increasingly available, is what most promotes our welfare. The evaluative problem, in such cases, is especially challenging if a decision would alter people’s identity, values, or character. Private and public institutions -- including small companies, large companies, governments – can help people to have better lives, given (1), (2), and (3). 
This Essay, the text of the Holberg Lecture 2018, is the basis for a different, thicker, and more elaborate treatment in a book.

13 September 2018

Police Accountability

The report of the Inquiry into the external oversight of police corruption and misconduct in Victoria by the Victorian Parliamentary committee on the state's Independent Broad-based Anti-Corruption Commission (IBAC) has recommended that all serious police misconduct be investigated by a new independent police misconduct and corruption division within IBAC.

The Committee was required to:
1. Examine the current system for the oversight of police corruption and misconduct in Victoria, in particular the role of IBAC and the Victorian Inspectorate. 
2. Identify and assess best‐practice models for the oversight of police. 
3. Identify and review the main challenges to the effective oversight and investigation of complaints and disclosures about police in Victoria. This will involve an examination of the legal framework for the oversight of police in Victoria. The review will encompass both the legal responsibilities of those overseeing police as well as the perspectives and experiences of complainants, including marginalised Victorians. 
4. Consider best‐practice strategies to improve the oversight and investigation of police corruption and misconduct and how they may be implemented in Victoria. 
The Committee notes
Police play a critical role in society, preventing and combating crime, enforcing the law and protecting, assisting and engaging with the community in a myriad of ways. The job of a police officer is a demanding one: they can be called on to make split‐second decisions in complex, stressful and dangerous circumstances. In order to do their jobs effectively, police officers have distinctive powers to arrest, detain, search and use force against individuals. However, the use of these powers is strictly governed by the law and by the understanding that effective and legitimate policing rests on the consent and confidence of the community—an understanding central to the values and commitments of Victoria Police. While the majority of Victoria Police officers do a fine job in serving the community, the maintenance of public confidence in police depends to a considerable degree on how officers who do the wrong thing are held accountable. In this regard, an effective system for handling complaints and disclosures (‘whistleblower’ complaints) is vital. 
In 2016, the Independent Broad‐based Anti‐Corruption Commission Committee’s Strengthening Victoria’s integrity agencies? report identified that there were concerns among some stakeholders about the impartiality and effectiveness of the current police complaint‐handling and oversight systems in Victoria. Some stakeholders called for the creation of a new, independent body to receive, handle and investigate all complaints about police, instead of Victoria Police and IBAC, along the lines of the Office of the Police Ombudsman for Northern Ireland (PONI). ... 
The Committee found that Victoria’s mixed civilian review system—in which the responsibility for handling and investigating complaints is shared between Victoria Police and IBAC as an independent oversight body—is a robust one that can, with improvement, meet the relevant best practice principles. The Committee does not therefore recommend the creation of a new independent body to receive, handle and investigate all complaints about police.
However, the Committee’s research, and evidence received during this Inquiry, demonstrate that the complaints and police oversight system needs significant improvement. The Committee has therefore made 69 recommendations to improve the transparency, impartiality, effectiveness and efficiency of the system.
In particular, the Committee considers that IBAC needs to give greater priority to its functions of handling, investigating and oversighting complaints about police. For example, IBAC investigates only approximately 2% of the allegations it determines warrant investigation, referring the rest to Victoria Police, including a range of serious police misconduct matters. In order to enhance the attention IBAC gives to serious police misconduct, and police oversight generally, the Committee has recommended the establishment of an adequately staffed and empowered Police Corruption and Misconduct Division within IBAC. Further, the Committee has recommended that, unless there are exceptional circumstances, IBAC, rather than Victoria Police, investigate serious police misconduct. In order to assist IBAC in carrying out these important functions, the Committee has recommended the conferral of selected additional investigative and oversight powers on it.
The Committee’s recommendations address the need for significant improvements in the complaints system across a wide range of functions and activities, including the receipt, handling, assessment, referral, investigation, review and oversight of complaints and disclosures about police. In particular, the Committee emphasises the importance of the accurate assessment of all complaints to ensure, for example, that serious police misconduct is not wrongly classified as a customer service issue or similar lower‐level concern.
Further, the Committee has made recommendations, from a complainant‐centred perspective, to improve the public information about the complaints system that is available (including high quality data on the operation of the system). It has also made recommendations to ensure that complainants, especially vulnerable complainants, are better communicated with and supported throughout the process. In addition, the Committee has identified a range of necessary improvements to ensure the impartiality and thoroughness of Victoria Police complaint investigations (particularly at the regional level). This includes the better management of issues such as officer complaint histories and conflicts of interest. Finally, the Committee has recommended that Victoria Police and IBAC make more use of conciliation as a way of effectively resolving complaints.