29 December 2018

Truly, Deeply and Meaningfully

The Guardian reports yet another data breach, this time involving media group Nova Entertainment.

Nova's CEO offered the usual boilerplate
We take privacy, and the security of the information we collect from our listeners very seriously, and on behalf of Nova Entertainment I deeply and sincerely regret that this incident has occurred, 
We are fully committed to achieving the best possible outcome for anyone affected by this incident.
[Nova’s investigation is] substantial and ongoing.
No doubt truly, deeply and meaningfully.

The CEO is reported as stating
We have notified the Office of the Australian Information Commissioner of this incident, and we are in the process of contacting law enforcement bodies. 
We will fully and transparently engage with these entities in relation to this incident.
It appears that  data collected from Nova's listeners in Australia over a two-year period (May 2009 to October 2011) has been “publicly disclosed”. No specifics, of course, about whether we are talking an absent password, lost unencrypted USB, misplaced laptop or swag of printouts left on top of an overflowing skip.

Nova is in the process of contacting those affected.

The information disclosed may include names, gender, dates of birth, addresses, email addresses, phone numbers, and account details such as user names and passwords.

Nova is encouraging people affected to change their passwords for their email account and all other online accounts using the same email address, username or password, including email, social media and online bank accounts.

Let's hope that we see an OAIC report that has more substance than the usual elliptical  'we talked privately with the data custodian, they assured us they were sorry and promised never ever to let happen again' report in ten lines or so.

28 December 2018

Data Sharing

'Data Collaboration, Pooling and Hoarding under Competition Law' (Faculty of Law, Stockholm University Research Paper No. 61) by Bjorn Lundqvist comments
In the Internet of Things era devices will monitor and collect data, whilst device producing firms will store, distribute, analyse and re-use data on a grand scale. Great deal of data analytics will be used to enable firms to understand and make use of the collected data. The infrastructure around the collected data is controlled and access to the data flow is thus restricted on technical, but also on legal grounds. Legally, the data are being obscured behind a thicket of property rights, including intellectual property rights. Therefore, there is no general “data commons” for everyone to enjoy. If firms would like to combine data, they need to give each other access either by sharing, trading, or pooling the data. On the one hand, industry-wide pooling of data could increase efficiency of certain services, and contribute to the innovation of other services, e.g., think about self-driven cars or personalized medicine. On the other hand, firms combining business data may use the data, not to advance their services or products, but to collude, to exclude competitors or to abuse their market position. Indeed by combining their data in a pool, they can gain market power, and, hence, the ability to violate competition law. Moreover, we also see firms hoarding data from various source creating de facto data pools. This article will discuss what implications combining data in data pools by firms might have on competition, and when competition law should be applicable. It develops the idea that data pools harbour great opportunities, whilst acknowledging that there are still risks to take into consideration, and to regulate. 
 "Portability in Datasets under Intellectual Property, Competition Law, and Blockchain' by Lundqvist argues
 In the Internet of Things, data and the transfer of data (the porting of data) will be important for competition and, generally, for Internet of Things to work and create interoperability, new services, wealth for society etc. While porting data can be excessively difficult in the current data and cloud environment, there is a discussion that also firms should be empowered by a right to transfer data or port data. Firms should have the right to transfer “its” data from platform to platform, cloud to cloud, or in-house. A mandatory right to port data could have several benefits; one being that it promotes competition between platforms, clouds and e-ecosystem providers. Several platforms collect data on the behalf of businesses making use of their platform services. Moreover, many firms use and will use “the cloud” to collect and store data in the upcoming Internet of Things paradigm, and they will make use and purchase both cloud space and data analytics. A right to port data enables firms to change platforms and cloud providers when they are not happy with the service received. A mandatory right to port datasets would create competition, and prevent markets otherwise “tip” in the favour of one monopolistic firm. A right to port data could be included in secondary legislation. The draft Free Flow Data Regulation only contains a call for self-regulation of the possibilty to port non-personal data. However, a possibility is also to update, modernise and amend the database directive to reflect the Internet of Things era. A third solution could be to create guidelines under competition law regarding collection and transfer of data under vertical or horizontal agreements. Platforms or Clouds that ‘hoard data’ under these agreements, by stipulating covenants that they (exclusively) collect and utilize the data from its business users, may risk violating competition law should they, for example, restrict the possibility to transfer or port data. Such clause should be considered in its fair light to be equivalent to a non-compete clause. Finally, after discussing these legal solutions, the article addresses whether we have a technical solution to the problem, while the blockchain technology could be a technical mean to port data without the use of legal systems.

Cloud Robotics and the law

'Cloud Robotics Law and Regulation' by Eduard Fosch Villaronga and Christopher Millard comments
This paper assesses some of the key legal and regulatory questions arising from the integration of physical robotic systems with cloud-based services, also called “cloud robotics.” The literature on legal and ethical issues in robotics has a strong focus on the robot itself, but largely ignores any background information processing. Conversely, the literature on cloud computing rarely addresses human-machine interactions, which raise distinctive ethical and legal concerns. In this paper we investigate, from legal and regulatory perspectives, the growing interdependence and interactions of tangible and virtual elements in cloud robotics environments. We highlight specific problems and challenges in regulating such complex and dynamic ecosystems, and explore potential solutions. To illustrate practical challenges, we consider several examples of cloud robotics ecosystems involving multiple parties, various physical devices, and various cloud services. These examples illuminate the complexity of interactions between relevant parties. By identifying pressing legal and regulatory issues in relation to cloud robotics we hope to inform the policy debate and set the scene for further research.

Trade Marks

'The Consumer as the Empirical Measure of Trade Mark Law' by Kimberlee Weatherall in (2017) 80(1) The Modern Law Review 57-87 comments
Although consumer responses to signs and symbols lie at the heart of trade mark law, courts blow hot and cold on the relevance of empirical evidence – such as surveys and experiments – to establish how consumers respond to alleged infringing marks. This ambivalence is related to deeper rifts between trade mark doctrine and the science around consumer decision‐making. This article engages with an approach in ‘Law and Science’ literature: looking at how cognitive psychology and related disciplines conceptualise consumer decision‐making, and how counterintuitive lawyers’ approaches appear from this perspective. It demonstrates how, especially when proving confusion, decision‐makers in trade mark demand the impossible of empiricists and are simultaneously blind to the weaknesses of other sources of proof. A principled divergence, without seeking to collapse the gaps between legal and scientific approaches, but taking certain small steps, could reduce current problems of proof and contribute to better‐informed, more empirically grounded decisions.

Regulating Encapsulated Placenta

'Regulation of Encapsulated Placenta' by Greer Donley in (2019) 86 Tennessee Law Review comments
Consuming encapsulated placenta is a growing trend among post-partum mothers. The perceived benefits include improved mood and energy, reduced bleeding and pain, and greater milk supply. But these effects are unproven, and consumption comes with health risks. Though its popularity is growing, encapsulated placenta is currently unregulated. This Article examines whether the FDA should regulate encapsulated placenta, and if so, whether it should be regulated as a drug, supplement, or human tissue. Because the product does not fit neatly into any of the FDA’s predetermined categories, the Article explores the optimal regulatory categorization from a policy and gender perspective. It concludes that the FDA should regulate encapsulated placenta as both a supplement and particular type of low-risk human tissue. The regulations associated with these categories will sufficiently protect women without creating such high entry barriers that the product would effectively (and paternalistically) disappear from the market.
Research and guidance about placentophagy is noted here, here and here.

'Human Placentophagy: Effects of dehydration and steaming on hormones, metals and bacteria in placental tissue' by Sophia K.Johnson, Tanja Groten, Jana Pastuschek, Jürgen Rödel, Ulrike Sammer, and Udo R. Markerta in (2018) 67 Placenta 8-14 comments
Human maternal placentophagy, the behavior of ingesting the own raw or processed placenta postpartum, is a growing trend by women of western societies. This study aims to identify the impact of dehydration and steaming on hormone and trace element concentration as well as microbial contamination of placental tissue. 
Methods: A total of nine placentas have been processed: six were studied for hormone and trace element concentrations; eight were studied for microbial contamination. The concentrations of CRH, hPL, oxytocin and ACTH in samples of raw, steamed dehydrated and raw dehydrated placental tissue were detected using ELISA. A yeast bioassay was performed in order to detect estrogen equivalent (EEQ) and gestagen equivalent (PEQ) active substances. Elements (As, Cd, Fe, Pb, Se, Hg) were analyzed using ICP-MS. Isolated colonies from tissue and placenta swab samples were identified using Vitek MS.   
Results: Following mean hormone concentrations were detected in raw placental tissue: CRH (177.88 ng/g), hPL (17.99 mg/g), oxytocin (85.10 pg/g), ACTH (2.07 ng/g), estrogen equivalent active substances (46.95 ng/g) and gestagen equivalent active substances (2.12 μg/g). All hormones were sensitive to processing with a significant concentration reduction through steaming and dehydration. Microorganisms mainly from the vaginal flora were detected on placenta swab samples and samples from raw, steamed, dehydrated and steamed dehydrated tissue and mostly disappeared after dehydration. According to regulations of the European Union the concentrations of potentially toxic elements (As, Cd, Hg, Pb) were below the toxicity threshold for foodstuffs.
The  conclusion is
 The commonly used protocols for preparation of placenta for its individual oral ingestion reduce hormone concentrations and bacterial contamination.
A different stance is adopted in 'Placentophagy and Embryophagy: An Analysis of Social Deviance within Gender, Families, or the Home (Etude 1)' by Carmen M. Cusack in (2011) 1 Journal of Law and Social Deviance 112.

Cusaack argues that
the private, eccentric acts of placentophagy and embryophagy are not illegal. Placentophagy is the eating of a placenta. Embryophagy is the eating of an embryo. This paper suggests that placentophagy and embryophagy, while not specifically legalized by statute or case law, are not acts for which a person can be charged of any crime relating to anthropophagy. Anthropophagy occurs when a human eats human tissue or blood. First, this paper proves that for the most part, anthropophagy is not illegal in the United States. Statutes and case law demonstrate that generally, the consumption of human tissue or blood is not illegal even though the possession of human blood and tissue often correlates strongly with other criminal activity. Second, this paper will argue that placentophagy and embryophagy in the home are legal anthropophagic acts; and that the policy and politics, not law, are the only obstacles for some women who question their power to possess and eat human blood and tissue.
'Human placenta processed for encapsulation contains modest concentrations of 14 trace minerals and elements' by Sharon M.Young, Laura K. Gryder, Winnie B. David, Yuanxin Teng, Shawn Gerstenberger and Daniel C. Benysheka in (2016) 36(8) Nutrition Research 872-878 comments
Maternal placentophagy has recently emerged as a rare but increasingly popular practice among women in industrialized countries who often ingest the placenta as a processed, encapsulated supplement, seeking its many purported postpartum health benefits. Little scientific research, however, has evaluated these claims, and concentrations of trace micronutrients/elements in encapsulated placenta have never been examined. Because the placenta retains beneficial micronutrients and potentially harmful toxic elements at parturition, we hypothesized that dehydrated placenta would contain detectable concentrations of these elements. To address this hypothesis, we analyzed 28 placenta samples processed for encapsulation to evaluate the concentration of 14 trace minerals/elements using inductively coupled plasma mass spectrometry. Analysis revealed detectable concentrations of arsenic, cadmium, cobalt, copper, iron, lead, manganese, mercury, molybdenum, rubidium, selenium, strontium, uranium, and zinc. Based on one recommended daily intake of placenta capsules (3300 mg/d), a daily dose of placenta supplements contains approximately 0.018 ± 0.004 mg copper, 2.19 ± 0.533 mg iron, 0.005 ± 0.000 mg selenium, and 0.180 ± 0.018 mg zinc. Based on the recommended dietary allowance (RDA) for lactating women, the recommended daily intake of placenta capsules would provide, on average, 24% RDA for iron, 7.1% RDA for selenium, 1.5% RDA for zinc, and 1.4% RDA for copper. The mean concentrations of potentially harmful elements (arsenic, cadmium, lead, mercury, uranium) were well below established toxicity thresholds. These results indicate that the recommended daily intake of encapsulated placenta may provide only a modest source of some trace micronutrients and a minimal source of toxic elements.
'A Literature Review on the Practice of Placentophagia' by Rachel Joseph, Marissa Giovinazzo and Megan Brown in (2016) 20(5) Nursing for Women's Health 476-483 comments
Placentophagia (consuming the placenta) has historically not been a common practice among humans. Over the past few decades the practice has gained attention as more women, particularly educated, middle-class, White American women, choose to partake in this practice. Purported benefits of placentophagia include pain relief, increased breast milk production, and decreased risk of postpartum depression; however, there is a lack of evidence to support these claims. The placenta can be consumed raw, cooked, or encapsulated; it can be used for keepsakes; or it can be used to make topical applications such as dermatologic creams and hair-growth products. Placentophagia has typically been viewed as a personal choice, resulting in little rigorous scientific research on the topic. More research is necessary to determine if the purported health benefits of placentophagia are proven.
'Placentophagy: therapeutic miracle or myth?' by Cynthia W. Coyle, Kathryn E. Hulse, Katherine L. Wisner, Kara E. Driscoll and Crystal T. Clark in (2015) 18(5) Archives of Women's Mental Health 673–680 similarly comments
Postpartum women are consuming their placentas encapsulated, cooked, and raw for the prevention of postpartum depression (PPD), pain relief, and other health benefits. Placentophagy is supported by health advocates who assert that the placenta retains hormones and nutrients that are beneficial to the mother. A computerized search was conducted using PubMed, Medline Ovid, and PsychINFO between January 1950 and January 2014. Keywords included placentophagy, placentophagia, maternal placentophagia, maternal placentophagy, human placentophagia, and human placentophagy. A total of 49 articles were identified. Empirical studies of human or animal consumption of human placentas were included. Editorial commentaries were excluded. Animal placentophagy studies were chosen based on their relevance to human practice. Ten articles (four human, six animal) were selected for inclusion. A minority of women in developed countries perceive placentophagy to reduce PPD risk and enhance recovery. Experimental animal research in support of pain reduction has not been applied in humans. Studies investigating placenta consumption for facilitating uterine contraction, resumption of normal cyclic estrogen cycle, and milk production are inconclusive. The health benefits and risks of placentophagy require further investigation of the retained contents of raw, cooked, and encapsulated placenta and its effects on the postpartum woman.

Personality Rights, Privacy and Copyright

'Recognition and Protection of Personality Rights: Classification and Typology' by Johann Neethling in (2018) 9(3) Journal of European Tort Law comments
In this article the premise is that personality interests exist in factual reality independently of any legal recognition. This emphasis on the pre-legal existence of individual personality interests is not merely of philosophical interest, but of cardinal jurisprudential and practical significance as it brings to the fore the fact that the qualities of personality interests are not determined by legal principles, but primarily by their nature in the sphere of factual reality. A jurisprudential definition and delineation of personality interests, which is essential to enable protective measures to be properly applied in practice, does not detract from this. This classification and typology therefore take account of factual reality, supplemented on a comparative law approach by the personality rights identified and delimited by jurists, the courts and legislatures, as well as typical examples of infringements of personality sanctioned by the different legal systems. Accordingly, the following classification and typology of personality rights are proposed: the right to life, the right to physical integrity, the right to physical liberty, the right to reputation, the right to dignity, the right to feelings, the right to privacy, and the right to identity.
'Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspectives' by Caroline Ncube and Desmond Oriakhogba in (2018) 21 Potchefstroom Electronic Law Journal comments
A photograph taken by a monkey was in the centre of a copyright claim in the famous monkey selfie case in the United States of America. Suing as next friend of the monkey named as Naruto, the People for the Ethical Treatment of Animals contended that copyright in the photograph belonged to the monkey as author of the photograph since the monkey created the photograph unaided by any person. On the motion of the defendants, the case was dismissed by the US district court on the ground that the concept of authorship under US Copyright Act cannot be defined to include non-human animals. The dismissal order was confirmed by a three-judge panel of the US Court of Appeal of the Ninth Circuit. This paper reviews the case in the light of the concept of authorship and ownership, with specific focus on authorship of photographs, under the Nigerian Copyright Act and South African Copyright Act. In so doing, it examines and relies on Ginsburg’s six principles for testing authorship to the authorship of photograph under the Acts. It also relies on the concepts of subjective rights and legal personality to explain the implication of conferring copyright ownership on non-human animals. It argues that for authorship of, and ownership of the copyright in, a photograph to be established under the Nigerian Copyright Act and South African Copyright Act, a legal person must have created the photograph. Consequently, for purposes of argument, the paper proceeds on the assumption that the monkey selfie case originated from Nigeria or South Africa. After analysing of relevant statutory provisions and case law, the paper finds that the Nigerian Copyright Act and the South African Copyright Act do not envisage conferral of authorship in particular, and copyright protection in general, to a non-human animal. It then concludes that the courts in both countries would not reach a different conclusion from the one made by the US courts.
'Unmasking the Right of Publicity' by Dustin Marlan comments 
In the landmark case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank articulated the modern right of publicity. The right is now most often seen to protect the strictly commercial value of one’s “persona” — the Latin-derived word originally meaning the mask of an actor. Among other criticisms, the right of publicity is frequently accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for an alienable, proprietary right in one’s personality. Why might Judge Frank have been motivated to create a transferable intellectual property right in the monetary value of one’s persona distinct from the psychic harm to feelings, emotions, and dignity protected under the rubric of privacy? 
Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through seminal works including Law and the Modern Mind, Why Not a Clinical Lawyer-School?, and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Freud, Piaget and Jung, to describe the distorting effects of infantile and unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between dual parts of the personality supported the realist interpretation of lawmaking as a highly subjective and indeterminate activity. Indeed, though Judge Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a great deal of attention to the personality in his scholarly works. 
In the spirit of Judge Frank’s psychoanalytic jurisprudence, this Article suggests that the right of publicity’s aim, apart from the personal right to privacy, may be understood through the psychoanalytic conception of the personality — divided into public and private spheres. In the psychological sense, the term persona, or “false self,” refers to an individual’s social façade or front that reflects the role in life the individual is playing. That is, as a metaphor for the actor and their mask, the persona is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions, and subjective interpretations of reality anchored in their private “true self.” However, the law’s continued reliance on a dualistic metaphor of the personality — i.e., divided sharply into inner (private) and outer (public) subparts — appears misguided amidst a growing technology, internet, and social media-driven need for interwoven privacy and publicity rights.

Online Intermediaries

'The Liability of Australian Online Intermediaries' by Kylie Pappalardo and Nicolas Suzor in (2018) 40(4) Sydney Law Review 469 comments
This article provides a comprehensive review of the current state of Australian online intermediary liability law across different doctrines. Different aspects of Australian law employ a range of tests for determining when an actor will be liable for the actions of a third party. So far, these tests have primarily been developed in cases brought under the laws of defamation, racial vilification, misleading and deceptive conduct, contempt of court, and copyright. In this article, we look across these bodies of law to highlight common features and doctrinal differences. We show that the basis on which third party intermediaries are liable for the actions of individuals online is confusing and, viewed as a whole, largely incoherent. We show how the main limiting devices of liability across all of these schemes — intention, passivity, and knowledge — are ineffective in articulating a clear distinction for circumstances in which intermediaries will not be held liable. The result is a great deal of uncertainty. We argue that intermediary liability law should develop by focusing on the concept of responsibility, and that existing principles in tort jurisprudence can help to guide and unify the different standards for liability. 
The authors argue
 Online intermediary liability law in Australia is a mess. Internet intermediaries, including telecommunications providers, internet service providers (‘ISPs’), content hosts, search engines, social media platforms, and e-commerce and payment providers all play a major role in enabling (and restricting) the information that people can see and post online.[1] The legal bases on which intermediaries are liable for the actions of individuals online is confusing and, viewed as a whole, largely incoherent. As the internet has grown up, courts and legislatures around the world have struggled to extend the reach of territorial laws to adequately deal with online communications and interactions. As pressure has mounted to find a way to enforce local laws to deal with specific emerging tensions, the legal response has been haphazard. In Australia, liability under separate doctrines has developed out of their particular bodies of common law jurisprudence in almost complete isolation. The result is a great deal of uncertainty; the rules and standards for third-party liability in copyright differ from those in defamation, in other torts, in contract, and in civil content regulation and criminalised speech. Courts, legislatures, lobbyists, and civil society groups are struggling to articulate a coherent basis upon which intermediaries should be required to act to enforce the law against their users in a way that is effective, fair, and does not chill investment in online services. This is an increasingly heated and important debate, but the possibility of reaching any broad consensus remains elusive. 
The pressure to find a way to enforce local laws to deal with specific emerging tensions is reflected across a number of separate ongoing legal debates in Australia. The High Court of Australia’s decision in Roadshow Films Pty Ltd v iiNet Ltd[2] that iiNet, an ISP, was not liable for copyright infringement by users of its service has led successive governments to respond with a confusing range of policy options. This has included first mooting a substantial legislative reversal of the decision,[3] then a failed attempt to require ISPs to negotiate with rightsholders in the shadow of a threat to introduce more burdensome regulation,[4] and new laws requiring ISPs to block access to websites that infringe copyright in certain circumstances.[5] In defamation law, first instance courts are struggling to articulate the appropriate reach of defamation law beyond website operators and on to search engines.[6] In 2014, the Australian Law Reform Commission (‘ALRC’) recommended the introduction of a civil action for serious breaches of privacy,[7] which it suggested should probably also apply to intermediaries who fail to remove private information from their networks after they have been notified of a serious invasion of privacy.[8] A separate 2011 report by the ALRC into content regulation recommended that internet intermediaries ought to be required to block or remove ‘prohibited’ content available on or through their networks.[9] This recommendation follows a failed attempt from 2008 through 2012 to empower the Australian Communications and Media Authority to designate prohibited content to which ISPs must block access.[10] The Australian Government has also created the role of ‘eSafety Commissioner’,[11] with the power to request that large social network sites remove ‘cyberbullying’ content targeted at Australian children.[12] The eSafety Commissioner’s remit has recently been extended beyond children to include identifying and removing illegal online content and tackling image-based abuse.[13] A 2017 review considered how federal law may require intermediaries to remove sexual images posted without the consent of the subject[14] — a phenomenon colloquially known as ‘revenge porn’.[15] This is an issue that the Australian Government is still determining how to resolve.[16] 
None of these initiatives express a coherent or consistent articulation of when, exactly, an online intermediary will be liable for the actions of their users. There are conflicting authorities both within and between separate bodies of law that impose different standards of responsibility on online intermediaries. Courts are struggling to adapt the law to apply to new technological contexts in a way that adequately balances competing interests from within the confines of existing doctrines. The legislative process is alternately heated and stalled; policymakers too are struggling to articulate balances that are acceptable to all stakeholders. 
In this article, we provide an overview of the current state of Australian intermediary liability law, and argue that a greater focus on responsibility can help to guide and unify the different standards for liability. In Part II, we explain the struggle to regulate the internet, the competing tensions, and the growing pressure for intermediaries to take a more active role in upholding the law and enforcing social norms. In Part III, we provide a comprehensive review of online intermediary liability case law in Australia. We show that there is a common struggle to articulate the boundaries of intermediary liability law within and among different doctrines. This struggle is manifesting in a body of case law that relies on apparent intent and actual or imputed knowledge of wrongdoing to found liability in ways that distort the historical bounds of liability in each doctrine. In Part IV, we examine the main devices that delineate the scope of intermediary liability across different doctrines: the classification of ‘active’ versus ‘passive’ actors; the role of intent; and the role of knowledge. These concepts, we argue, are ineffective in clearly articulating the circumstances in which intermediaries will not be held liable. Accordingly, they fail to provide intermediaries with legal certainty or adequate guidance for acceptable conduct. We conclude by suggesting that intermediary liability law should develop by focusing on the concept of responsibility to ground liability. 
Existing, long-established principles in tort jurisprudence have long helped courts to work through and articulate the boundaries of liability. The legal inquiry that looks to the role that intermediaries play in the wrongful acts of others is not unique to online regulation, or to defamation, content regulation or copyright law. In tort law, too, courts occasionally look beyond immediate injurers to background actors ‘whose carelessness is alleged to have set the stage for the injury’.[17] The task of distinguishing actors who are liable for wrongdoing from those who are not goes to the heart of tort law and theory.[18] In imposing liability for causing harm, tort law ‘is only secondarily about who pays; the primary focus is on how people are allowed to treat each other’.[19] 
Tort law has largely dealt with the issue of secondary liability by closely examining the actual role that the secondary actor has played in causing the relevant harm. While courts engaged in this inquiry have used different terms over the years, including ‘proximity’, ‘closeness’ and ‘directness’, the question is fundamentally the same: was the intermediary’s conduct causally significant in bringing about the harm suffered by the plaintiff?[20] The principles that have emerged from this jurisprudence focus on the imposition of negative duties (that is, duties not to harm) and the reluctance to impose affirmative duties to proactively protect another from harm caused by a third party (except in discrete circumstances).[21] It is only where the intermediary has played a causally significant role in establishing the circumstances that are likely to lead directly to the harm that the intermediary will be held responsible. These established principles, we suggest, are likely to be more effective at identifying when an intermediary will have a responsibility to act than the more common distinctions based on intention, passivity, or knowledge. We suspect that it might be possible for these existing principles of responsibility to inform the development of different areas of online intermediary liability law without wholesale doctrinal shifts, but we leave this work for a future article.

27 December 2018


'When digital health meets digital capitalism, how many common goods are at stake?' by Tamar Sharon in (2018) Big Data and Society 1–12 comments
In recent years, all major consumer technology corporations have moved into the domain of health research. This ‘Googlization of health research’ (‘GHR’) begs the question of how the common good will be served in this research. As critical data scholars contend, such phenomena must be situated within the political economy of digital capitalism in order to foreground the question of public interest and the common good. Here, trends like GHR are framed within a double, incommensurable logic, where private gain and economic value are pitted against public good and societal value. While helpful for highlighting the exploitative potential of digital capitalism, this framing is limiting, insofar as it acknowledges only one conception of the common good. This article uses the analytical framework of modes of justification developed by Boltanksi and Thevenot to identify a plurality of orders of worth and conceptualizations of the common good at work in GHR. Not just the ‘civic’ (doing good for society) and ‘market’ (enhancing wealth creation) orders, but also an ‘industrial’ (increasing efficiency), a ‘project’ (innovation and experimentation), and what I call a ‘vitalist’ (proliferating life) order. Using promotional material of GHR initiatives and preliminary interviews with participants in GHR projects, I ask what moral orientations guide different actors in GHR. Engaging seriously with these different conceptions of the common good is paramount. First, in order to critically evaluate them and explicate what is at stake in the move towards GHR, and ultimately, in order to develop viable governance solutions that ensure strong ‘civic’ components.
Sharon argues
In the last few years, every major consumer technology corporation, from Google to Apple, to Facebook, Amazon, Microsoft and IBM, has moved decisively into the health and biomedical sector. These are companies that, for the most part, have had little interest in health in the past, but that by virtue of their data expertise and the large amounts of data they already have access to, are becoming important facilitators, if not initiators, of data-driven health research and healthcare. 
This ‘Googlization of health research’ (GHR), as I have called this process elsewhere (Sharon, 2016), promises to advance health research by providing the technological means for collecting, managing and analysing the vast and heterogeneous types of data required for data-intensive personalized and precision medicine. Apple’s ResearchKit software, for example, which turns the iPhone into a platform for conducting medical studies, allows researchers to access diverse types of data (sleeping patterns, food consumption, gait), to recruit larger numbers of participants than average in clinical trials, and to monitor participants in real time (Savage, 2015). Similarly, the new analytics techniques and data repositories offered by consumer technology companies seek to overcome limitations in traditional medical analytics methods and infrastructure. DeepMind, for example, Google’s London-based artificial intelligence offshoot, is applying deep learning for the prediction of cardiovascular risk, eye disease, breast cancer and patient outcomes, in collaboration with several hospitals (Poplin et al., 2018; Ram, 2018). Verily, Alphabet’s life science branch, is developing new tools to capture and organize unstructured health data, for example in its ‘Project Baseline’ in partnership with Stanford and Duke University. The study will collect and analyse a wide range of genetic, clinical and lifestyle data on 10,000 healthy volunteers, with the aim of comprehensively ‘mapping human health’ (Verily, 2018). Google, Microsoft, Amazon and IBM have also begun packaging their clouds as centralized genomic databases where researchers can store and run queries on genomic data. 
Many of these techniques still have not delivered on their promises, all the while introducing a host of new challenges and limitations, such as new selection and other types of biases (Agniel et al., 2018; Hemkens et al., 2016; Jardine et al., 2015). Yet their potential, if not over-hyped, remains promising (Fogel et al., 2018), and places these corporations in a privileged position in the move towards personalized medicine and Big Data analytics – and broader healthcare vistas. Indeed, most recently a number of these companies have begun moving into the domains of electronic health record management, employee healthcare and health insurance (Farr, 2017; Farr, 2018; Wingfield et al., 2018). 
Beyond these promises, GHR also raises a number of challenges and risks. First amongst these are concerns of privacy and informed consent. GHR is an instance of data-intensive research characterized by the use of large digital datasets and Big Data analytics, where traditional mechanisms put in place to protect research participants are increasingly under strain. These issues may be exacerbated in situations where consumer technology companies, whose data-sharing practices often are not subject to the same privacy-protecting regulations and codes of conduct as those of medical researchers, are involved (Zang et al., 2015). The potential for ‘context transgressions’ (Nissenbaum, 2010), whereby data may flow between medical, social and commercial contexts governed by different privacy norms, is greater here. Furthermore, broader questions about the value of personal health data and publicly generated datasets, and what market advantage is conferred to commercial entities who can access them and develop treatments and services based on this access, will emerge. In other words, in GHR initiatives, concerns that are common in the practices of digital capitalism are imported into the health realm (Sharon, 2016). 
A recent controversy surrounding a data sharing partnership between Google DeepMind and the NHS illustrates how some of these issues are already playing out. Announced in 2016, the collaboration between DeepMind and the Royal Free London, a NHS Foundation Trust, granted DeepMind access to identifiable information on 1.6 million of its patients in order to develop an app to help medical professionals identify patients at risk of acute kidney injury (AKI). The terms of this agreement have been analysed in depth by Powles and Hodson (2017, 2018), who argue that it lacked transparency and suffered from an inadequate legal and ethical basis. Indeed, following an investigation, the Information Commissioner’s Office (ICO, 2017) ruled that this transfer of data and its use for testing the app breached data protection law. Namely, patients were not at all aware that their data was being used. Under UK common law, patient data can be used without consent if it is for the treatment of the patient, a principle known as ‘direct care’, which the Trust invoked in its defence. But as critics argue, insofar as only a small minority of the patients whose data was transferred to DeepMind had ever been tested or treated for AKI, appealing to direct care could not justify the breadth of the data transfer. 
Of course, GHR collaborations taking place in different jurisdictions will be provided with different opportunities and face different legal challenges. And despite the global profile of the corporations in question, national and regional guidelines for the management of AI and Big Data in health will impact what GHR collaborations can and cannot do. But the DeepMind case also raises questions beyond data protection, privacy and informed consent, which have to do with the newfound role that tech corporations will play in health research and healthcare, and new power asymmetries between corporations, public health institutions and citizens that may ensue. For example, will these corporations become the gatekeepers of valuable health datasets? What new biases may be introduced into research using technologies, such as iPhones, that only certain socio-economic segments of the population use? What role will these companies, already dominant in other important domains of our lives, begin to play in setting healthcare agendas? These are questions that concern collective and societal benefit – broadly  speaking, the common good. They point to the need to situate the analysis of GHR in the wider context of the political economy of data sharing and use, and they foreground a number of concerns that move beyond (just) privacy and informed consent, including social justice, accountability, democratic control and the public interest. 
These values are the focus of the growing body of literature in critical data studies that draws on a political economy critique to address the development of new power asymmetries and discriminations emerging in Big Data infrastructures (Taylor, 2017; van Dijk, 2014; Zuboff, 2015). In this context, new Big Data divides can be expected based on access to and ownership of data, technological infrastructures and technical expertise, with important repercussions for who shapes the future of (health) research (boyd and Crawford, 2012). However, by focusing on the new power asymmetries emerging between data subjects and corporations, critical data studies tend to frame data sharing in terms of two incommensurable logics: public benefit and private, corporate gain. In this article, I argue that this dichotomy is limiting, insofar as it only allows for one vision of the common good, while a plurality of conceptualizations of the common good are at work in GHR. In the following, I use the interpretive framework of economies of worth developed by the sociologists Luc Boltanski and Laurent Thevenot (2006 [1991]) to identify a number of moral repertoires that each draw upon different conceptualizations of the common good and that are mobilized by actors in GHR-type initiatives. Doing so depicts a much richer ethical terrain of GHR than is accounted for in most critical analyses of digital capitalism. 
This is valuable for several reasons. First, it is paramount that the moral orientations of actors in GHR be taken seriously, insofar as they influence and guide decision-making processes that are currently taking place. Here I draw on the constructivist tradition that views the discourses, repertoires and logics that convey moral orientations as performative; as contributing to the enactment of technological futures (Foucault, 1965; Latour and Woolgar, 1979). Critical research on GHR must engage with these competing moral orientations and conceptualizations of the common good. Second, this type of mapping is a necessary first step towards critically evaluating different moral repertoires, insofar as it contributes to rendering explicit the trade-offs that will be involved in the enactment of different repertoires. In the current situation, where no comprehensive ethical and policy guidance for GHR exists, this is required if we are to have serious public deliberation about what is at stake in the move towards GHR. Finally, while Boltanski and The´venot’s framework was developed as a descriptive project, I argue that it can be used to help develop normative guidelines for governance of GHR-type projects, and that this should be further developed into a research programme. Here, solutions can be thought of as combinations of repertoires, where different repertoires can check and balance each other. Such solutions will have a good chance of adoption insofar as they will appeal to a wide range of actors. Further, if what Boltanski and The´venot call the ‘civic’ order of worth embodies the most publicly legitimate conception of the common good, we can design solutions that ensure the presence of strong civic components. For this, however, the civic repertoire must be ‘updated’, so to speak: it must first engage seriously with competing conceptions of the common good that are mobilized in the empirical reality of GHR. The article thus seeks to map and analyse the different orders of worth invoked by actors involved in GHR as a first step towards this endeavour.

23 December 2018

Media Ownership, Competition and the FAANGs

The report by the Expert Panel of its Inquiry into the Competitive Neutrality of the National Broadcasters released earlier this month features the following 'Key points'-
• This Inquiry is about whether the National Broadcasters—the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS)—are competing fairly with the private sector. The National Broadcasters have pursued new opportunities in changing media markets and new competitive circumstances have emerged. 
• Most significant competitive pressures for news, entertainment and advertising are coming from giant international companies. Nonetheless, the National Broadcasters are forces in Australian markets, with their competitive weight enhanced by secure funding at a time of higher commercial risk, supported by relatively high productivity growth. 
• Competitive neutrality seeks to ensure that competition is not distorted by public entities taking inappropriate advantage of government ownership. It is not intended to prevent public entities from competing, nor to relieve discomfort from competitive processes which are bringing benefits to consumers as they rapidly adopt and enjoy new services. 
• The Commonwealth’s Competitive Neutrality Policy (CNP) is focussed on government trading corporations and its relevance to the National Broadcasters is more limited. Nevertheless, the National Broadcasters operate under a best endeavours approach to competitive neutrality. 
• With respect to their business activities (with user-charging), the National Broadcasters are abiding by a best endeavours approach to competitive neutrality. It is unlikely to be front of mind but mostly conforms to good internal business organisation. There is no evidence that costs are not appropriately allocated. And prices are generally set to market rates. 
• Different regulatory circumstances facing the National Broadcasters, compared to the private sector, represent Parliamentary decisions which are difficult to bring to financial account. 
• Some improvements in transparency and internal procedures are possible. The separate Treasury review of the CNP may clarify improvements arising from the recommendations of the Harper Review of Competition Policy. 
• Beyond the application of the competitive neutrality management guidelines to business activities, the question arises as to how competitive neutrality principles about competing fairly without distortion might apply to the free services delivered by the ABC and SBS. 
• Free ABC and SBS services are having some competitive impact. Submissions included complaints about the ABC’s online news service and SBS’ multi-channel and streaming services. But the National Broadcasters are established and funded to provide free services. So long as they operate within their statutory Charters they are operating in the public interest. 
• Submissions questioned whether the ABC and SBS were operating within their Charters. The Charters are written very broadly, and reporting against the Charters is not detailed or robust enough to settle doubts. Accountability is difficult, especially as there is no opportunity for Charter complaints to be addressed. 
• Given their market shares, and other factors, this Inquiry considers the National Broadcasters are not causing significant competitive distortions beyond the public interest. 
• While the National Broadcasters are not prohibited from competing, some improvements in the way they interact with markets should be contemplated.  
The  Terms of Reference were contextualised as
Government businesses compete with the private sector in a number of markets. The Commonwealth Competitive Neutrality Policy requires that government business activities should not enjoy net competitive advantages simply by virtue of their public sector ownership. At the same time, competitive neutrality principles do not imply that government businesses cannot be successful in competition with private businesses. Both National Broadcasters provide important services for the benefit of the Australian community in line with a legislated Charter. Some aspects of this they undertake or deliver in competition with private sector operators. It is timely to consider how the national broadcasters operate in modern media context and whether the ways they compete with the private sector are appropriate. These policy issues have not been reviewed in depth since the 1997 report by Bob Mansfield considered the way in which the national broadcasters conduct business activities within the confines of competitive neutrality principles. It is also timely to conduct this Inquiry in concert with the wider review of Competitive Neutrality Policy being undertaken by the Treasury.
The specific Terms were
This Inquiry will explore the practices of the national broadcasters and advise the Government on whether they are operating in a manner consistent with the general principles of competitive neutrality. The Inquiry will consider how Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS) operate within the markets of which they are part and the basis on which they are competing with the private sector. This should focus on:
• the application of competitive neutrality principles to the business activities of the ABC and SBS, including in operational decision making and risk management 
• the cost structures of business activities 
• the regulatory obligations for ABC and SBS compared to those for private sector operators, insofar as this these relate to competitive neutrality principles 
• the adequacy of current compliance and reporting arrangements, and 
• complaints and accountability mechanisms operated by the broadcasters, insofar as they relate to competitive neutrality principles.
The panel will also make observations on the role of national broadcasters in the modern media environment.
The Executive summary states
This Inquiry ... was launched by the Minister for Communications in March 2018 following concerns raised with the Government by Members of Parliament and Australia’s commercial media industry focussing on whether the National Broadcasters are operating appropriately in the modern media environment. The National Broadcasters provide important services for the benefit of the Australian community in line with their legislated Charters. Some aspects of this they deliver in competition with private sector operators. In rapidly changing media markets the National Broadcasters have pursued new opportunities and so new competitive circumstances have emerged.   Most significant competitive pressures for news, entertainment and advertising are coming from giant international companies, the so-called FAANGs (Facebook, Apple, Amazon, Netflix and Google) placing advertising revenues of Australian media companies under pressure. (The FAANGs’ participation in Australian markets is part of a separate inquiry by the ACCC into digital platforms). Nonetheless the National Broadcasters are appreciable forces in the Australian market, with their competitive weight enhanced by secure government funding at a time of higher commercial risks and low returns. Their capacity to compete has been supported by a relatively high rate of labour productivity growth. 
This Inquiry is asked to look at the National Broadcasters’ operations through the lens of competitive neutrality. Competitive Neutrality Policy stems from COAG agreements on competition policies and seeks to ensure that competition is not distorted by public entities taking inappropriate advantage of public ownership. According to the 1995 Competition Policy Agreement: The objective of competitive neutrality policy is the elimination of resource allocation distortions arising out of the public ownership of entities engaged in significant business activities: Government businesses should not enjoy any net competitive advantage simply as a result of their public sector ownership. These principles only apply to the business activities of publicly owned entities, not to the non-business, non-profit activities of these entities. The 1996 Commonwealth Competitive Neutrality Policy (CNP)—which details the application of competitive neutrality principles within the Commonwealth sector—notes that: Competitive neutrality does not imply that government businesses cannot be successful in competition with private businesses. Government businesses can achieve success as a result of their own merits and intrinsic strengths, but not as a consequence of unfair advantages flowing from government ownership. Competitive neutrality is not intended to prevent public entities from competing, nor to relieve discomfort from competitive processes which bring benefits to consumers. 
Australian media consumers have rapidly adopted and enjoyed new services brought forward by competition. The CNP is focussed on government trading corporations and its relevance to the National Broadcasters is more limited. Nevertheless, the National Broadcasters operate under a best endeavours approach to competitive neutrality. Here competitive neutrality is intended to cover the business activities of the ABC and SBS.  ... The Panel drew on these investigations in assessing the detailed responses provided by the National Broadcasters to a range of specific and general questions about their competitive neutrality practices. Submissions from other stakeholders were also relevant. 
The Panel referred to four tests: 1. Have there been complaints to the Australian Government Competitive Neutrality Complaints Office (AGCNCO)? 2. Are there specific examples of significant pricing or other market distortions? 3. Do the average market shares of the National Broadcasters signal material competitive impact, and have there been significant changes? 4. Do the National Broadcasters have internal processes for proper cost allocation and market entry? 
With respect to their business activities, the Panel concluded that the National Broadcasters are abiding by a best endeavours approach to the CNP. These matters seem unlikely to be front of mind for the National Broadcasters, but the requirements mostly seem to correspond to good internal business organisation. Thus costs are separately identified and allocated, and prices are mostly set to market rates. Tax and debt neutrality have little relevance. Regulatory neutrality presents a more complex picture. There are strongly divergent views around the relative weight of the different regulatory arrangements faced by the National Broadcasters, compared to private sector businesses. But the Panel concluded that these have been set by Parliament and therefore represent decisions in the public interest. 
The cost burdens of these different regulations are difficult to bring to useful financial account. Moreover, there have been no competitive neutrality complaints about the National Broadcasters put this century to the Government’s complaints agency, the AGCNCO, and market shares of the National Broadcasters do not show significant change (although this may change in a rapidly changing market with new services). Some improvements in competitive neutrality transparency and internal processes are possible and warranted. The separate Treasury review of the CNP arising from the Harper Review of Competition Policy may clarify competitive neutrality reporting requirements. The Panel considers that the National Broadcasters should continue to abide by the CNP on a best endeavours basis. 
A wider relevance of competitive neutrality principles? 
Beyond the application of the CNP to business activities, the Inquiry’s Terms of Reference invite the question as to how competitive neutrality principles might relate to the whole of the services (free services) provided by the ABC and SBS. The Harper Review called for a potential broadening of the competitive neutrality principles stating: Government business activities that compete with private provision, whether for-profit or not-for-profit, should comply with competitive neutrality principles to ensure they do not enjoy a net competitive advantage simply as a result of government ownership. The Treasury Review of the CNP may throw further light on this but in the meanwhile the Panel has been asked to make an assessment with respect to the National Broadcasters. The National Broadcasters questioned the relevance of a wider application of competitive neutrality principles. They have received no guidance as to a wider application. (Indeed, the Panel can find no evidence that they received the guidance about the best endeavours requirement foreshadowed by COAG in November 2000 for just their business activities). But in any case, in relation to the general principles of competitive neutrality, the ABC points to the requirement in its Charter to take account of the services provided by the commercial and community broadcasting sectors. Similarly, SBS refers to the requirement in its Charter to contribute to ‘the overall diversity of Australian television and radio services’ and to take into account the contribution of the ABC and the community broadcasting sector. Free services offered by the ABC and SBS are having some competitive impact.    
The Panel's finding are
Competitive neutrality principles (Chapter 2) 
1. A best endeavours approach by the National Broadcasters to the application of the Competitive Neutrality Policy to their business activities continues to be appropriate. 
2. More generally, the general principles of competitive neutrality are relevant to the other forms of market participation by the National Broadcasters. 
The media landscape (Chapter 3) 
3. The media landscape is likely to continue to change rapidly, creating new forms and points of competition, which may continue to impact adversely on some commercial organisations. It is worth noting the proposed merger of Fairfax and Nine Entertainment is a response to these pressures and may be indicative of further market consolidation. 
4. Rapid market changes are resulting in an increase in the instances in which the National Broadcasters are ‘rubbing up’ against a range of domestic private sector competitors. 
5. Major sources of competition in media markets are likely to continue to be international companies with resulting impact on all domestic media organisations. 
The role of the National Broadcasters (Chapter 4) 
6. The National Broadcasters have adapted to the challenge of change by extending the range and type of their services, taking full advantage of market developments and technological innovation, to the benefit of the public. 
7. In order to comply with their Charters, the National Broadcasters seek to maximise their reach by being significant providers of content across all platforms. Their capacity to do so is limited by their budgets. 
Application of the Competitive Neutrality Policy to business activities 
Cost allocation and pricing 
8. The Panel notes that the National Broadcasters generally price to market and there is no evidence that they are not appropriately allocating costs. 
Regulatory neutrality 
9. The Panel notes the differences in the regulatory arrangements for the National Broadcasters and the private sector. However, the Panel is unable to bring regulatory comparison to useful financial account. 
10. The Panel notes that the Australian and Children’s Screen Content Review, currently with Government, is considering the content elements of the regulatory regime as it applies to commercial broadcasters and any decisions will follow from that review. 
Taxation neutrality 
11. The Panel notes that to the extent that taxation issues are relevant to Competitive Neutrality Policy relating to the National Broadcasters, the evidence is that the National Broadcasters in effect comply with competitive neutrality requirements. 
Debt neutrality 
12. The Panel notes that to the extent that issues relating to debt are relevant to competitive neutrality, there is no evidence that the National Broadcasters do not comply with competitive neutrality requirements. 
Operational decision-making and risk management 
13. The Panel notes that the evidence is that operational decision-making and risk management are appropriate, deriving from conventional business practices, and therefore conforming to competitive neutrality requirements. 
Competitive neutrality complaints and accountability mechanisms 
14. The Panel notes that there is an independent complaints process in place for competitive neutrality that has not been used this century with regard to the National Broadcasters. 
Conclusions regarding the application of the Competitive Neutrality Policy to business activities 
15. The National Broadcasters are meeting the best endeavours approach to the Competitive Neutrality Policy (which applies to their business activities), insofar as best endeavours has been defined. 
16. With respect to the cost allocation methods used by the National Broadcasters for their business activities, there is no evidence that they do not conform with the Competitive Neutrality Policy. Pricing to market is evidence of no significant competitive distortion. This has been confirmed by independent consultants. 
17. The average market share of commercial activities of the National Broadcasters are not large, have not increased markedly over time, and do not give rise to concerns. Nonetheless, competitive impacts may still occur in particular sub-markets. 
Competitive neutrality principles relating to other market distortions 
Online news 
18. The Panel finds that in relation to the provision of online news services, the ABC and SBS are behaving in accordance with their Charters. These services also comply with the general principles of competitive neutrality. 
Terms of trade with content providers 
19. The Panel notes that the issues raised in relation to ‘terms of trade’ are essentially contract issues and do not relate to competitive neutrality. However, there may be scope for the National Broadcasters to improve the way they interact with market participants to ensure transparency and good business practice (see Chapter 8). 
Advertising and marketing of own services 
20. The Panel notes the National Broadcasters are able to promote their services online. This is consistent with the way they have always promoted their radio and television services to ensure the widest possible audience reach. The Panel considers normal competitive interactions are occurring, and there are no concerns for competitive neutrality principles. 
21. The Panel notes there is nothing in the National Broadcasters’ Charters, nor in the general principles of competitive neutrality, that prevents them from promoting their own services. The Panel notes that in the context of the Competitive Neutrality Policy, competitive advantages arising from size are not considered a concern.  
‘Commercialisation’ of SBS 
22. The Panel notes that what has been exhibited by private sector organisations is competitive discomfort. As long as the National Broadcasters’ decisions are endorsed by their Boards and are subject to parliamentary review then, by definition, the activity is in the public interest. 
Conclusions regarding competitive neutrality principles relating to other market distortions 
23. The issues raised reflect increased competition generally in the digital space whether streaming services or online news services. 
24. They also reflect a context of increased viewer demands and expectation along with the rapid take-up of new technologies. 
25. As stated above, as long as the National Broadcasters are within their Charters then, by definition, the activity is in the public interest. 
26. However, the Charters of both National Broadcasters are broad and open to interpretation by the Boards. 
27. In relation to the matters under review by this Inquiry, both National Broadcasters would benefit from more public transparency around how they approach the issues of fair competition. 
28. Accountability is difficult, especially as there is no opportunity for Charter complaints to be addressed. 
Observations on the role of the National Broadcasters in the modern media environment (Chapter 8) 
Capacity to compete 
29. The Panel considers that the National Broadcasters should be able to adapt to new market opportunities in the public interest. However, choice will be limited by a finite budget. 
30. The Panel notes that the amount of money being generated by SBS through advertising revenue represents a small percentage of total television advertising, and therefore, is not considered material. 
31. Furthermore, following the Efficiency Review of 2014 the SBS budget was cut and the Government stated that SBS should make up part of the shortfall through advertising.
The associated recommendations are
Competitive neutrality principles (Chapter 2) 
1. If decisions on the Review of the Commonwealth’s Competitive Neutrality Policy by the Treasury enhance competitive neutrality management guidelines or extend competitive neutrality principles more generally, then the National Broadcasters should conform to these requirements on a best endeavours basis. 
2. At the same time, the National Broadcasters should be provided with guidance (as previously foreshadowed by COAG) as to how they should comply. 
Issues raised by stakeholders (Chapter 6) 
Radio broadcasters 
3. The Panel notes that issues to do with technical regulation, especially licence areas, have not been fundamentally reviewed since their inception in the 1930s. The Panel has referred these issues to the Department for further policy consideration. 
Application of the Competitive Neutrality Policy to business activities 
Regulatory neutrality 
4. The Panel notes that neither the Content Review, nor this Inquiry, address the content issues raised by commercial radio, and draws this to the attention of the Department for future policy consideration. 
5. The Panel considers that a fresh approach to regulatory impact statements should be applied to decisions in prospect, to ensure regulations remain relevant, are consistent with competitive neutrality and are not causing market distortions beyond the public interest. 
6. In relation to those matters that do not fall within the scope of this Inquiry, or other reviews currently underway, those matters should be referred to the Department for further policy consideration. 
General recommendations regarding the application of the Competitive Neutrality Policy to business activities 
7. As identified by the Ernst & Young Report, there are a number of areas where the ABC could improve its approach to cost allocation and pricing to enhance transparency and give greater confidence that its costing and pricing practices are aligned with competitive neutrality principles. 
8. The National Broadcasters’ processes for commercial business activities appear adequate. However, changes should be made to ensure that there are processes in place for improved transparency, accountability and reporting. Competitive neutrality principles relating to other market distortions 
Dealings with smaller providers 
9. The Panel notes that ABC Commercial, in collaborating with smaller companies, must observe best practice business negotiations to avoid appearance of unfair competition (see also Chapter 8). 
Observations on the role of the National Broadcasters in the modern media environment (Chapter 8) 
10. The Panel supports the ABC’s commitment to improve transparency and accountability through its corporate plan and invites SBS to do likewise. 
11. The Panel notes that the National Broadcasters’ annual reports are of necessity ‘backward looking’ documents. The Panel considers that the National Broadcasters should provide a statement of intentions covering how they intend to spend their funds in the future which would provide Parliament and the public with greater transparency and accountability of the expenditure of funds. 
12. The Panel considers that the National Broadcasters should improve their reporting of Charter performance in the context of the general principles of competitive neutrality. If this enhanced reporting does not occur, the government should consider a way of managing complaints about Charter performance in this area. 
Market entry and participation 
13. The Panel is of the view that appropriate guidance from the Board would give some substance to the ABC's Charter obligation to take account of commercial broadcasters. 
14. While SBS has no equivalent Charter obligation, there seems no reason why the SBS Board should not pursue similar benefits for the market. 
Longer term funding framework  
15. The Panel recommends that government considers options, drawing on the UK example, to give a longer term framework for the funding of the National Broadcasters, accompanied by increased transparency and accountability to the benefit of consumers and competition more broadly.