07 March 2018

Data Protection

'The introduction of data breach notification legislation in Australia: A comparative view' by Angela Daly in (2018) Computer Law and Security Review comments
Australia's recently-passed data breach notification legislation, the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), and its coming into force in 2018, makes an internationally important, yet imperfect, contribution to data breach notification law. Against the backdrop of data breach legislation in the United States and European Union, a comparative analysis is undertaken between these jurisdictions and the Australian scheme to elucidate this argument. Firstly, some context to data breach notification provisions is offered, which are designed to address some of the problems data breaches cause for data privacy and information security. There have been various prominent data breaches affecting Australians over the last few years, which have led to discussion of what can be done to deal with their negative effects. The international context of data breach notification legislation will be discussed, with a focus on the United States and European Union jurisdictions, which have already adopted similar laws. The background to the adoption of the Australia legislation will be examined, including the general context of data privacy and security protection in Australia. The reform itself will be then be considered, along with the extent to which this law is fit for purpose and some outstanding concerns about its application. While data breach notification requirements are likely to be a positive step for data security, further reform is probably necessary to ensure strong cybersecurity. However, such reform should be cognisant of the international trends towards the adoption of data security measures including data breach notification, but lack of alignment in standards, which may be burdensome for entities operating in the transnational data economy.

Relatedness and biography

'Privacy Versus Relatedness: Managing Device Use in Australia’s Remote Aboriginal Communities' by Ellie Rennie, Tyson Yunkaporta, and Indigo Holcombe-James in (2018) 12 International Journal of Communication comments
Aboriginal Australians living in remote communities are likely to be “mobile only” users. The sharing of devices among kin is common and linked to demand sharing practices that stretch back to presettler times. While sharing can produce benefits (acting as a form of insurance), it can also lead to privacy-related problems among this group, including illicit use of banking and social media accounts via shared devices. In this article, we examine the ways in which the aspect of Aboriginal sociality known as relatedness is interacting with online privacy frameworks designed for individual device use and device management. The findings suggest that the sociotechnical frameworks of platforms and devices do not accord with cultural dynamics, including obligations to others. Moreover, efforts by individuals and Elders to avoid privacy-related problems are leading to digital exclusion in various forms, from the deliberate destruction of devices to whole communities opting out of mobile infrastructure.
'Privacy's Double Standards' by Scott Skinner-Thompson in (2018) 93 Washington Law Review comments 
Where the right to privacy exists, it should be available to all people. If not universally available, then particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This, despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections. 
This Article unearths disparate outcomes in public disclosure tort cases, and uses the unequal results as a lens to expand our understanding of how constitutional equality principles might be used to rejuvenate beleaguered privacy tort law. Scholars and the Supreme Court have long recognized that the First Amendment applies to the substance of tort law, under a theory that state action is implicated by private tort lawsuits because judges (state actors) make the substantive rule of decision and enforce the law. Under this theory, the First Amendment has been used to limit the scope of privacy and defamation torts as infringing on the privacy invader’s speech rights. But as this Article argues, if state action applies to tort law, other constitutional provisions should also bear on the substance of common law torts. 
This Article highlights the selective application of constitutional law to tort law. And it uses the unequal effects of prevailing public disclosure tort doctrine to explore whether constitutional equality principles can be used to reform, or nudge, the currently weak protections provided by black letter privacy tort law. By so doing, the Article also foregrounds a doctrinally-sound basis for a broader discussion of how constitutional liberty, due process, and equality norms might influence tort law across a variety of substantive contexts.
'Judicial Biography in Australia: Current Obstacles and Opportunities' by Tanya Josev in   (2017) 40(2) University of New South Wales Law Journal 842 comments
Judicial biography – or the scarcity of it – is a matter of ongoing complaint in legal and academic circles in Australia. Judicial biography has been variously described as ‘an undeveloped branch of scholarship in Australia’, ‘as rare as hen’s teeth’, ‘small and undistinguished’, having ‘received little academic attention’, subsisting within the ‘wider malaise ... afflict[ing] the study of Australian legal history’, and, rather damningly, as an area of scholarship in ‘parlous condition.’ Supreme Court judges, or judges of the colonial era, seem to have fared somewhat better than their High Court and Federal Court counterparts in having their intellectual portraits sketched by biographers, but this is not to suggest that there is burgeoning scholarship in the area in any sense. 
Consider the production of biographies of High Court judges. Of the 53 justices of the High Court, only 15 have been the subject of an extended biography (or multiple biographies): there are book-length treatments of the lives of Justices Griffith, Barton, Issacs, Higgins, Evatt, Dixon, Barwick, Murphy, Gibbs, Stephen, Wilson, Deane, Gaudron, Kirby, and Gleeson. Of these Justices, 10 had public careers outside of their life in the law: Griffith, Barton, Higgins, Evatt, Barwick and Murphy served as politicians; Isaacs served as a politician, and later, as Governor-General; Stephen and Deane also served as Governor-General; and Dixon took leave from the Court on several occasions to undertake diplomatic duties overseas. Others took on roles as champions of particular social causes within the law, either prior to judicial appointment, or in retirement. Biographers of these justices, therefore, have often dedicated a greater portion of their study to their subject’s activities off the bench, rather than on it. Biographies of those judges who embarked on a career at the bar, and moved directly to a long period of service on the bench, are in short supply. The judicial life, it seems, is not a popular subject of extended biographical treatment. 
Why might this be so? In recent years, the (few) biographies produced of eminent Australian jurists have been received with enthusiasm, both within and outside the legal arena – no argument could be made for a total lack of interest in the genre. Admittedly, judicial biographies are unlikely to be commissioned as mass-market or popular biographies, as Stuart Macintyre describes them; these biographies are written for a general readership, and usually take widely known historical figures, celebrities, or even contemporary politicians as their subject. These are marketed seasonally as holiday-reads or gifts, and are notable for their straightforward narrative (‘full of anecdote, lightly referenced’) and handsome production. Judicial biography more likely fits within the separate genre of scholarly biography: the biographer usually has expertise in their subject’s field, is likely to be writing to a specific audience, and is expected to produce a rigorous critical analysis of their subject’s intellectual influences and output – in addition to providing an account of their public life. The expectations of this type of biography are perhaps much higher than that of popular biography. The likelihood of judicial biographies being marketed as ideal gifts for all manner of festive occasions, of course, is low. But this is not to say that judicial biography ought have a narrow readership – David Marr’s Barwick and A J Brown’s biography of Justice Kirby are prominent examples of judicial biographies that received accolades and attention in the wider literary sphere, and point to the potential for further penetrating work in the area that informs the public’s conception of the judicial function. 
In these circumstances, why are book-length treatments of the lives of Australian judges so rare? Are there particular obstacles to producing judicial biography here, and, if so, how might these be overcome? These are the central enquiries examined in this article. I seek to examine briefly some of the difficulties in accessing the judicial ‘archive’ in Australia, and to provide some tentative suggestions as to how biographers might be encouraged to take on judges as their subjects in the future. If a case needs to be made for the production of judicial biography before proceeding further, however, let it be this, in the words of James Thomson:
does [the] nurturing of ... [judicial] biographical scholarship matter? Yes – if beneath the rhetoric of judicial neutrality and autonomy lurk personal values and preferences. ... [and] revelation of previously undisclosed information concerning important cases might enhance understanding of judges’ decision-making processes.
A perceptive judicial biography, then, might disclose to the reader the extent to which contemporary legal principles have been shaped by an individual judge. Such a biography might shed light on how the judge’s education, relationships, life experience, and career in the law ultimately shaped the judge’s own perception of the judicial role. But there is a greater case to be made than this. It is the case for the writing of legal history itself. Just as Australian political and literary biography is appreciated for its role in preserving and providing an interpretation of the lives of prominent Australians who have shaped our social and cultural fabric, so should judicial biography be regarded. The individual forces that have developed the law of Australia should also be recorded, revealed, examined: judges also shape, albeit indirectly, the social and political fabric of the nation.

Platforms and Persons

'Evaluating the legitimacy of platform governance: a review of research and a shared research agenda' by Nicolas Suzor, Tess Van Geelen and Sarah Myers West in (2018) International Communication Gazette states
This paper provides an overview of the key values that we argue should underpin an index of the legitimacy of the governance of online intermediaries. The aim is ultimately to allow scholars to rank the policies and practices of intermediaries against core human rights values and principles of legitimate governance in a way that enables comparison across different intermediaries and over time. This work builds on the efforts of a broad range of researchers already working to systematically investigate the governance of social media platforms and telecommunications intermediaries. In this paper, we present our review and analysis of the work that has been carried out to date, using the digital constitutionalism literature to identify opportunities for further research and collaboration.
The theme of this special issue is the deeply contested political question of how human rights should be protected in a digital environment. ‘Digital constitutionalism’ encompasses “a constellation of initiatives that have sought to articulate a set of political rights, governance norms, and limitations on the exercise of power on the Internet” (Gill et al., 2015: 2). One of the key challenges of the digital constitutionalism project is to articulate appropriate limits on the private exercise of power by online intermediaries, how those limits may be imposed, and by whom.
This is a complex problem, and requires a new understanding of constitutionalism in an era where regulation is not only, or even not primarily, done by the state (Black, 2001). We take a broad view of ‘governance’ that encompasses all ‘organized efforts to manage the course of events in a social system’ (Burris et al., 2008: 3). This broad definition focuses attention particularly on the policies and practices of online intermediaries as key actors in the governance of online behaviour.
Intermediaries play a critical role in governing the internet by developing and managing its infrastructure. By ‘intermediaries’, we mean the broad range of entities that “bring together or facilitate transactions between third parties on the Internet” (OECD, 2010: 9). Intermediaries of all types --- the owners of physical pipes, the providers of core routing services, the search engines that make content visible, the content hosts, and the social media platforms --- all shape how people communicate in important but different ways. They are the focal points of control, where pressure can be most effectively deployed to influence user behavior (Goldsmith and Wu, 2006), and the decisions that they make have a real impact on public culture and the social and political lives of their users (DeNardis, 2014). In order to progress the political project of digital constitutionalism, more needs to be known about how intermediaries govern their networks and how their decisions impact the basic rights of individuals in different contexts. In this paper, we present an outline of the values we suggest ought to be measured, a guide to the work that has already been completed, and a sketch for future projects to build upon in their own research design.
Susan Watson, whose 2015 work was noted here and in my doctoral dissertation, has produced 'The Corporate Legal Person' in (2018)  Journal of Corporate Law Studies

She comments 
The argument set out in this article is that the modern company is a creature of the state, with corporate legal personality derived from the state through the process of incorporation. Once incorporation takes place a legal person is created. Status as a legal person is different to the type of sociological personality that a group of individuals may develop organically that is recognised by the law. Also status as a legal person means corporate legal personality is more significant than just a shortcut mechanism to describe a collective of individuals or a set of characteristics. It is argued that the modern company is a nexus for contracts; a legal entity that is a legal person that derives its legal personality from the state. Far from being a “convenient heuristic formula”, corporate legal personality attaching to the nexus or entity separate from shareholders and all other corporate participants is the defining characteristic of the modern company.