Lobbying

The NSW Independent Commission Against Corruption (ICAC) Investigation into the regulation of lobbying, access and influence in NSW (Operation Eclipse) report released 22 June finds that new legislation or significant reform of the current Lobbying of Government Officials Act 2011 (NSW) - aka the LOGO Act - is required to safeguard the public interest against the inherent lobbying risks of corruption and undue influence. 

The report states 

Operation Eclipse is an investigation by the Independent Commission Against Corruption (“the Commission”) into the regulation of lobbying, access and influence in NSW. Unlike most investigations conducted by the Commission, Operation Eclipse was not concerned with whether any individual had engaged in corrupt conduct. Instead, it examined factors that could either allow, encourage or cause corrupt conduct or detract from the integrity and good repute of public administration. The Commission has power to make findings, form and state opinions, and make recommendations, even if the relevant conduct is not corrupt conduct for the purposes of the ICAC Act but is otherwise a matter within the Commission’s statutory functions. Lobbying, although widely accepted as an integral and legitimate activity for the functioning of a democratic system, carries inherent risks of corruption, undue influence, unfair access and biased decision-making that are detrimental to the public interest and effective public policies. An examination of lobbying practices in NSW was first undertaken by the Commission in an investigation known as Operation Halifax. A number, but not all the 17 recommendations made in its 2010 report, Investigation into corruption risks involved in lobbying, were adopted. Consequently, many of the inherent risks referred to above continued to prevail and the activities of a great many lobbyists were not made subject to robust regulation. The catalysts provided for Operation Eclipse were a minimalist legislative approach to the regulation of lobbying in NSW, in particular in relation to lobbying in a transparent and accountable way, combined with declining levels of public trust in government officials to conduct their duties and obligations. 

In this investigation, the Commission considered to what extent the regulation of lobbying under the existing statutory regime, found in the LOGO Act, is working in practice. Or, whether enhancements were needed to ensure both the actuality and the perception that access and influence in government and public administration are in accord with accepted standards of transparency and accountability. In line with evidence submitted during the investigation, the Commission has made nine key findings and 29 recommendations for lobbying reform. The recommendations made in this report emphasise the importance of lobbying regulation that promotes transparency of process and accountability in decision-making. They are directed to reassuring the community that lobbying practices are not conducted in unaccountable secrecy.

ICAC's  key findings are 

1 New legislation, or significant reform of the LOGO Act, is required to safeguard the public interest against the inherent lobbying risks of corruption and undue influence. 

A key finding of the Commission is that the LOGO Act fails to provide a proper and sufficiently robust framework to manage corruption risks. It does not provide the required level of assurance to the general public that democratic principles of transparency, accountability, integrity and fairness are being met. The enactment of new legislation for the regulation of lobbying is necessary to ensure accountability in the exercise of public office and public power. Strengthening transparency and accountability in lobbying will only be achieved through legislation that ensures such transparency and accountability. The LOGO Act falls well-short in these respects. The Commission is of the view that lobbying regulation in NSW can be readily strengthened by drawing on best practice standards. The recommendations in this report include proposals to adopt, as appropriate, specific concepts and mechanisms operating in other jurisdictions, including Scotland, Ireland and Canada. 

2 Oversight of improper lobbying and compliance with the LOGO Act could be improved. 

A dedicated lobbying commissioner should be appointed to focus on regulating lobbying activity and take on the new and expanded functions recommended by the Commission in this report. The regulation of lobbying currently falls within the remit of the NSWEC. However, the NSWEC operates under a statutory framework that was designed for the regulation of elections, not lobbying. Regulatory oversight of lobbying in NSW can be expected to be improved by creating a dedicated office. The Commission sees the need for expanded regulatory functions, which an appointed lobbying commissioner would be well-suited to perform, such as: 

• • oversight of an expanded Lobbyists Register 

• greater oversight of government officials, including through the use of investigative powers 

• additional scope to publish regulatory findings 

• duties to prevent undue influence and other forms of improper lobbying conduct. A related function would include the provision of guidance and education on integrity standards. 

3 The existing regulatory regime does not address or set out the ethical obligations for government officials who are lobbied. 

The LOGO Act makes provision for a Lobbyists Code of Conduct that is applicable to all lobbyists. A key finding of the Commission is that a robust lobbying regime must additionally address the obligations and conduct of government officials in processing and determining lobbying proposals. A statutory codification of common law and ethical obligations and standards in the form of a new “Lobbying Code of Conduct” should be formulated to apply to both lobbyists and those government officials being lobbied. 

4 There is insufficient information available to the public, civil society groups and the media about lobbying activities. 

The Commission notes that the current NSW Lobbyists Register only covers a small amount of the lobbying activity that takes place in NSW. As a result, it can be difficult to determine which groups or individuals have influenced key government decision-makers. A revised online NSW Lobbyists Register should be designed to make information available to the public about who is lobbying whom and about what. Those required to register should extend beyond third-party lobbyists, subject to exemptions for lower risk lobbying activities. While online lobbying registers in Canada, Ireland and Scotland differ in the range of information that regulated lobbyists are required to disclose, some elements of transparency are common to them all, including:  

• • the identity of those on whose behalf lobbying is being carried out 

• the designated public official being lobbied 

• the purpose of the lobbying 

• intended results of the lobbying. 

5 The local government sector faces considerable risk of undue influence and should be regulated by the LOGO Act. 

Investigations conducted by the Commission and interstate anti-corruption commissions indicate that local councils are often the target of improper lobbying. However, local government officials are not “government officials” as defined by, and for the purposes of, the LOGO Act. The Model Code of Conduct for Local Councils in NSW does not explicitly refer to lobbying; however, it does contain general obligations in relation to ethical and honest conduct, as well as more detailed material covering:

• improper and undue influence 

• inappropriate interactions 

• use and security of confidential information 

• recordkeeping.

Extending the provisions of the LOGO Act to local government would, among other matters, allow the lobbying regulator to provide guidance about the appropriate policies and procedures that would best suit the circumstances of local councils, particularly regarding matters about planning, land use, the environment and community amenities. 

6 The movement of certain former public officials between the government sector and lobbying roles is currently unregulated, presenting a risk of undue influence over government. 

In NSW, post-employment cooling-off periods are generally confined to ministers and parliamentary secretaries. Other classes of public official, including members of Parliament, ministerial staff and senior public sector executives, do not face the same restrictions. The Commission’s view is that post-employment restrictions should be considered for a broader range of officials in high-risk categories. Greater transparency about the movement in, and out of, key government roles is also recommended and could be achieved by establishing a “Former Public Officials” list. This list would contain the names of relevant former public officials who have moved into lobbying roles. 

7 The published summaries of ministerial diary disclosures are not sufficiently detailed or meaningful for the public to understand who is meeting whom and why. 

Since 2014, extracts from ministerial diaries have been published that record scheduled meetings held with external parties, including lobbyists. In their current format, these ministerial diary disclosures are not easily accessible or searchable, making scrutiny and analysis difficult. Importantly, the published descriptions are usually too short and too vague to adequately explain what the meetings are about. To ensure accountability, members of the community should be able to know which ministers have met with lobbyists and the purpose of such meetings. For this to happen, the publication of ministerial diary disclosures must be strengthened in terms of content, format and timeliness. The Commission recommends that the oversight of diary disclosures should fall to the regulator of the LOGO Act. 

8 Lobbyists are not explicitly prohibited from giving gifts to government officials. 

The LOGO Act and Lobbyists Code do not place specific obligations or restrictions on lobbyists in relation to gift-giving. Although gift-giving by lobbyists is not commonplace, this anomaly should be corrected. 

9 Recordkeeping practices in relation to lobbying activities are inadequate. 

NSW Government agencies should be required to adopt minimum standards and a model policy on recordkeeping, the disclosure of records, and protocols around scheduling and conducting meetings with lobbyists. Numerous acts, regulations and procedures require NSW public officials to validate or give an account of their decisions or record information. Open government initiatives, such as the State Records Act 1998, the GIPA Act, and Standing Order 52 of the Legislative Council are mechanisms used to acquire information, usually in relation to a government decision, that has become a matter of broad public interest. A key finding of the Commission is that greater accountability can be achieved by strengthening recordkeeping provisions and their oversight.

ICAC's recommendations are 

 R 1 That the Lobbyists Code of Conduct be renamed the “Lobbying Code of Conduct” and imposes standards and obligations on public officials with regard to how lobbying proposals are received, considered and determined. These standards and obligations will be consistent with the obligations at law that apply to the discharge of public functions and the exercise of public powers. 

R 2 That the “Lobbying Code of Conduct” includes general principles that a public official must adhere to when receiving, considering and determining a lobbying proposal, including the obligations: • to act honestly, impartially and disinterestedly • to act in the public interest and not for any extraneous purpose • not to act improperly, including by improper preferencing or favouritism. 

R 3 That the “Lobbying Code of Conduct” also sets out some detailed standards and obligations including:

a) a prohibition on undocumented or secret meetings and communications with lobbyists, which entails obligations to:

i. document all communications with lobbyists, including those held away from government premises, apart from immaterial or ephemeral communications 

ii. avoid discussing substantive matters with lobbyists in social settings

b) an expectation that a public official makes all reasonable efforts to seek the views of all parties whose interests are likely to be affected by the adoption of a lobbying proposal 

c) a prohibition on improper preferential treatment of a lobbyist on the basis of any existing or former relationship (for example, a conflict of interest situation) 

d) that a public official should discourage lobbying representations relating to proposals in situations where there are formal assessment procedures in place for determining the merits of the proposal, and that these procedures (for example, those relating to development applications, tenders, grants and unsolicited proposals) offer a more suitable channel through which representations can be made 

e) that a public official must not divulge information to lobbyists that would provide them with an unfair advantage over other interested parties, including other lobbyists 

f) a requirement to report any reasonably suspected breach of the “Lobbying Code of Conduct” to the lobbying regulator. 

R 4 That, with respect to the proposed “Lobbying Code of Conduct”, the obligations on, and oversight of, government officials should extend to circumstances where an official is “lobbied” by a person or entity acting in their/its own interests; that is, not “representing the interests of others ”. 

R 5 That the lobbying regulator be empowered and resourced to:

• develop minimum standards and a model policy relating to interactions with lobbyists and others making representations to government, which should: – address recordkeeping, disclosure of records and protocols for organising and conducting meetings – prohibit undocumented or secret interactions with lobbyists or other persons making representations to government 

• ssess and report on agencies’ compliance with minimum standards 

• give advice to agencies and individual government officials about compliance with minimum requirements and better practice 

• liaise with organisations such as the State Archives and Records Authority and the Information and Privacy Commission 

• direct an agency or public official to provide any lobbying-related documents or records.

Such a direction would operate in a manner similar to the power in s 15 of the State Records Act 1998. In addition, the lobbying regulator should, subject to a public interest test, have the power to direct an agency to make public any document or record concerning lobbying communications. 

R 6 That all public sector agencies subject to the LOGO Act be required to adopt policies and procedures that conform to minimum established standards issued by the lobbying regulator. 

R 7 That all professional lobbyists (third-party lobbyists and in-house lobbyists) be required to register with the lobbying regulator and make entries into the NSW Lobbyists Register. 

Exemptions for organisations that are small or lobby infrequently should apply (based on the Scottish or Canadian systems). As is currently the case with third-party lobbyists, all lobbyists should:

• provide relevant details about their organisation and staff that engage in lobbying activities 

• complete mandatory training 

• disclose if they represent a foreign principal 

• file statutory declarations with the lobbying regulator. 

R 8 That all regulated lobbyists on the Lobbyists Register should disclose:

• date and location where face-to-face lobbying communications took place 

• the name and role of the government official(s) being lobbied 

• a description of their lobbying communications 

• a description of the purpose and intended outcome of their lobbying communications 

• whether lobbying was undertaken on behalf of another party.

Exemptions, similar to those in Scotland and Ireland, should be introduced. 

R 9 That lobbyists should file information electronically that is then automatically published on the Lobbyists Register. 

The register should allow any person to alert the lobbying regulator of any information that is considered missing or inaccurate. 

R 10 That the lobbying regulator should have powers to determine whether a person or entity is required to register and whether the information required for the Lobbyists Register is accurate and up-to-date. 

This could include issuing information notices and making use of the Lobbyists Watch List. Failure to register may require the lobbying regulator to provide an adequate opportunity to comply, as there is with third-party lobbyists. 

R 11 That, in order to reduce the administrative burden, lobbyists required to be registered in NSW should be permitted to provide or rely on registration documentation filed with other jurisdictions, such as a jurisdiction under the Commonwealth. 

This could include relevant statutory declarations made in order to satisfy fit and proper person requirements. 

R 12 That the diary and overseas travel information of ministers and parliamentary secretaries should be published:

• monthly, not quarterly 

• in a single, searchable document or database formatted for easy access to enable public scrutiny 

• displaying each minister’s name against his/her portfolio. 

R 13 That the NSW Government creates a pre-set menu of options that must be used to indicate the purpose of each meeting disclosed in the diary summaries of ministers. 

These options could be based on the categories of lobbying set out in s 4(1) of the LOGO Act or another classification that adequately covers the types of disclosable meetings held by ministers. The individual ministers ultimately should be responsible for supplementing the indicated entry by adding a clear description of the specific purpose of the meeting. 

R 14 That the LOGO Act be amended to improve oversight of post-separation employment provisions by providing that the lobbying regulator may require any relevant former public official during the cooling-off period, who has a role in an organisation that employs lobbyists (whether or not a lobbyist themselves), to provide it with information concerning:

a) the terms and conditions of any employment or engagements undertaken by former public officials in the cooling-off period 

b) the nature of any employment or engagement referred to in (a) 

c) whether any employment or engagement undertaken in the cooling-off period has or does involve information obtained during his/her period as a public official 

d) whether any employment or engagement undertaken in the cooling-off period involves or relates to any former portfolio functions or responsibilities pertaining to his/her former position as a public official. 

R 15 That the LOGO Act be amended to restrict ministerial and parliamentary secretary advisers of sufficient seniority from engaging in any lobbying activity relating to any matter that they had official dealings with in their last 12 months in office, for a period of 12 months after leaving office, except with the approval of the lobbying regulator. 

Based on criteria published by the lobbying regulator, the restriction period could be removed, modified or made subject to conditions. 

R 16 That the LOGO Act be amended to mirror the provisions of s 16 of the Gaming and Liquor Administration Act 2007. 

This would provide secretaries and agency heads with authority to designate high-risk roles and associated “key officials” where appropriate. Officials in such roles would be subject to a six-month restriction on employment in certain areas related to their public duties. Based on criteria published by the lobbying regulator, the restriction period could be removed, modified or made subject to conditions. 

R 17 That, in the absence of any other new measures to reduce the risks associated with lobbying by former public officials, the LOGO Act be amended to introduce a “Former Public Officials” list, to be managed by the lobbying regulator. 

For a period of four years after leaving office, all former public officials involved in lobbying activities would be required to ensure they are named on this list, including those working for third-party lobbyists. 

R 18 That the NSW Government: 

• creates a dedicated NSW lobbying commissioner whose primary purpose is to regulate the LOGO Act. The lobbying commissioner could head a standalone lobbying commission, or serve within an existing oversight agency 

• provides the lobbying regulator with additional resources and powers to carry out the expanded functions set out in this report. 

19 That the role of the lobbying regulator be clarified by creating clear legislative provisions that allow it to:

• oversee the conduct of both public officials and lobbyists under the “Lobbying Code of Conduct” and LOGO Act, including the criminal, administrative and ethical aspects of the regulation 

• establish formal processes for accepting complaints and referrals in relation to lobbying matters 

• have powers with respect to auditing compliance 

• investigate suspected breaches (including of its own initiative) and make referrals for further investigation or sanction (if required) 

• publish and disseminate any relevant findings 

• have an advice-giving and standard-setting function. 

R 20 That the LOGO Act be amended to give the lobbying regulator responsibility for setting the conditions of the Lobbyists Watch List. 

R 21 That the requirement for ministers and parliamentary secretaries to publish summaries from their diaries should be set out in the regulation to the LOGO Act rather than a Premier’s Memorandum. 

The lobbying regulator should be responsible for compliance. 

R 22 That the NSW Government gives the lobbying regulator power to investigate and report on indirect lobbying that involves alleged unlawful and/or dishonest conduct. 

R 23 That the NSW Parliament ensures that induction training for new members of Parliament is extended to existing members and addresses the administrative and ethical requirements of public officials in relation to lobbying. Such training should also be mandatory for parliamentary and ministerial staff. 

R 24 That the Lobbyists Code of Conduct be amended to prohibit lobbyists (as defined in the LOGO Act) from offering, promising or giving gifts or other benefits to a public official who is, has been, or is likely to be lobbied. 

R 25 That any fundraising event, where an attendee pays for any form of exclusive or private access to a minister, should be classified as a “scheduled meeting” for the purposes of Premier’s Memorandum M2015-05 and consequently be disclosed in published summaries of ministerial diaries – along with the fact that it was paid access. This information should be published irrespective of whether any lobbying takes place. 

R 26 That clause 13 of the Lobbyists Code of Conduct applies to all classes of lobbyist. However, this should not prevent members and supporters of a political party from lobbying in relation to policy issues. 

R 27 That the prohibition on paid advocacy – as outlined in clause 2(a) of the Members’ Code of Conduct (Legislative Assembly) and the Members’ Code of Conduct (Legislative Council) – be extended beyond the promotion of matters in the NSW Parliament or its committees, to any communication with any other public officials, and that clause 7A of the Constitution (Disclosure by Members) Regulation 1983 (relating to disclosure) be amended accordingly. 

R 28 That the NSW Government establishes a “Lobbying Reform Panel” comprising appropriately qualified persons to examine and formulate proposed legislative reforms. Appropriate secretariat services for the panel should be provided. 

R 29 That, over a 12-month period, the “Lobbying Reform Panel” undertakes the required work under recommendation 28 and, by the end of the 12-month period, the panel provides a report setting out the provisions it recommends be incorporated into revised legislation. .

Identification

'From Knowing by Name to Personalisation: Meaning of Identification Under the GDPR' by Nadezhda Purtova comments 

Despite its core role in the EU system of data protection, the meaning of identification remains unclear in the data protection law and scholarship with a spotlight focused on the legally relevant chance of identification, i.e. identifiability. 

While Article 29 Working Party interpreted identification broadly, as distinguishing one in a group, this interpretation has been questioned in light of the EUCJ decision in Breyer. This paper tackles this uncertainty. 

This paper offers an integrated socio-technical typology of identification where, in addition to the known identification types (look-up-, recognition-, session- and classification identification), personalisation is added as a new identification type, meaning a relatively unique characterisation where one is individualized by being mapped in relation to multiple dimensions within a multidimensional space. 

The paper clarifies the legal meaning of identification under the GDPR. It proposes a contextual interpretation of Breyer, which negates Breyer’s restrictive potential and brings all identification types within the GDPR. 

The paper concludes with a discussion of the implications of this reading of identification for data protection in terms the applicability of the GDPR to new data technologies and practices such as facial detection and non-tracking based targeted advertising, effects of certain privacy preserving technologies such as federated learning of cohorts, consequences for invoking data protection rights when identification is not possible, but also in terms of the need to clearly define the objectives of the data protection law.

Clouds

'Privacy in the Clouds, Revisited: An Analysis of the Privacy Policies of 40 Cloud Computing Services' (Queen Mary Law Research Paper No. 354/2021) by Felicity Turton, Dimitra Kamarinou, Johan David Michels and Christopher Millard comments 

In this paper, we analyse the results of a detailed survey of the privacy policies, and data protection terms more broadly, of 40 major cloud computing services, including Amazon Web Services, Google Cloud, and Microsoft Azure. We review terms relating to controller and processor designations; purposes and legal bases for data processing; individuals’ rights of access, rectification, and erasure of personal data; the right to data portability; security and data breach notification; monitoring; transfers of personal data outside of the EEA; and appointment of a Data Protection Officer. Where relevant, we compare the results to those of previous surveys conducted in 2010, 2013, and 2015 to show how cloud privacy policies have developed over time, including changes that appear to have been made in response to the General Data Protection Regulation. 

 'Contracts for Clouds, Revisited: An Analysis of the Standard Contracts for 40 Cloud Computing Services' by Michels, Millard and Turton offered a related survey of the standard contracts of 40 cloud services: 

In this paper, we report the results of a detailed survey of the standard contracts for 40 major cloud computing services, including Amazon Web Services, Google Cloud, and Microsoft Azure. We cover a broad range of contractual issues, including clauses dealing with choice of law, termination, data retention, liability, and intellectual property. We compare the results to those of previous surveys conducted in 2010, 2013, and 2015 to show how cloud contracts have developed over time. In particular, we identify changes with regard to choice of law and of forum, and warranty and liability provisions. We conclude that over the past ten years, standard cloud contracts have become more tailored to customer location, for instance by having distinct terms for US and European customers, and more in line with European consumer protection law, including by having distinct terms for businesses and consumers.

Privacy

'The New Privacy Law' by Ari Ezra Waldman in (2021) 55 UC Davis Law Review comments 

We are in a second wave of privacy law. The first wave was characterized by privacy policies, self-regulation, and notice and choice. But in the last three years, nine proposals for comprehensive privacy legislation have been introduced in the United States Congress and 42 have been introduced in the states. From the perspective of practice, almost all of these proposals are roughly the same – they require individuals to exercise control rights and rely on internal corporate compliance for ongoing monitoring. This second wave of privacy law is undoubtedly different from the first, but how? This essay provides a new taxonomy to understand changes in US privacy law, distinguishing between two ‘waves’ along three metrics: their practices, theories of governance, and underlying ideologies. A first wave was characterized by privacy policies, self-regulation, and limited regulatory enforcement. Its practices were focused on notice, its governance was self-regulatory, and its ideology was laissez faire. A second wave almost uniformly relies on internal corporate compliance structures to manage data collection, processing, and use. Its practices are focused on compliance, its governance is managerial, and its underlying ideology is neoliberal. This taxonomy offers privacy law scholars a new way to understand and critique the current state of the field. The essay concludes with four research questions for scholars to pursue.

In Western Australia, following statutes in the ACT, Victoria and elsewhere (and Kathleen Clubb v Alyce Edwards and Anor; John Graham Preston v Elizabeth Avery and Anor [2019] HCA 11 noted here), the Attorney-General has introduced the Public Health Amendment (Safe Access Zones) Bill 2021 (WA) which amends the Public Health Act 2016 (WA) to 

create safe access zones around premises at which abortions are provided. These zones will ensure that those who want to access abortion services can do so in a safe and private manner. The Bill also prohibits publication and distribution of certain recordings to protect the privacy and dignity of those who access abortion services.

Recognition

'The Politics of Recognition in the Age of Social Media' by William Davies in (2021) 128 New Left Review comments 

In the decade after the fall of the Berlin Wall, critical theorists paid renewed attention to what Charles Taylor famously called ‘the politics of recognition’. The demand for recognition, Taylor suggested, was linked to modern notions of identity—a person’s understanding of their fundamental defining characteristics, of who they are. Since our identity is partly shaped by others’ recognition, people can suffer real damage if society mirrors back a demeaning image of themselves. Thus, women in patriarchal societies may be induced to internalize a sexist self-image, to suffer the pain of low self-esteem. White rule has for generations projected a demeaning picture of black, indigenous and colonized peoples, saddling the oppressed with crippling forms of self-depreciation. In this respect, due recognition was a vital human need. Taylor saw the uncertain quest for recognition as linked to the 18th-century emergence of individualized identities, premised on a concept of inner authenticity. Meanwhile Axel Honneth’s Kampf um Anerkennung (1992) outlined a moral theory in which recognition, achieved via political struggle, was constitutive of personhood. Nancy Fraser developed a dualistic rejoinder, later in critical dialogue with Honneth, which balanced recognition with redistribution in the quest for equality. 

The timing of this turn towards recognition was significant. It coincided with the triumph of capitalist globalization, when the conceptual foundations of critical theory and emancipatory politics were deeply contestable and contested. Just as the collapse of state socialism undermined the confidence of Marxist critique, so the aggressive market universalism that followed produced some hesitancy with regard to Kantian critique. For different reasons and in different ways, Taylor, Honneth and Fraser all attended to the critical link between the two traditions: Hegel. Recognition, in its concrete, cultural and historical varieties, was to be a constitutive part of justice. The dialogical dimensions of subjectivity, underplayed or ignored by both Marxism and liberalism, would become integrated within critical theory and radical politics. 

A key reason for taking the politics of recognition seriously was that it had its own empirical and historical momentum. The demand for recognition had become integral to what Fraser termed ‘folk paradigms of justice’—the moral vernacular of the social movements that emerged after the 1960s. Multiculturalism was a sociological fact. Despite considerable differences between these theorists, one reason why they deemed recognition philosophically and politically important was that it palpably mattered to political and moral actors themselves. The renewed theorization of recognition was therefore a continuation of what Luc Boltanski had identified as a longstanding problematic: how to register the everyday suffering and demands of ‘lay’ actors with the meta-critique offered by theoretical scholarship. ... 

My intention here is to come at the current explosion of recognition demands from a different perspective: to consider how transformations in the public sphere have led to a mutation in how recognition is demanded and supplied. The key condition for this is the digital platform, which has ushered in a new era of public participation in which recognition of status is never adequately achieved by anyone, so injustice feels ubiquitous. In the attention economy of social media, public actors may long for recognition, but have to settle instead for varying quantities of ‘reputation’, or simply the ‘reaction’ of immediate feedback. The task, I suggest, is to retain some loyalty to how everyday critiques and expressions of suffering articulate themselves, but also to arm ourselves with critical resources against the latest tricks pulled by what Jodi Dean terms ‘communicative capitalism’. The rise of platform capitalism has occasioned a new phase which needs to be understood, if critique is not to be ensnared by a platform logic of rating and trolling. 

Critical theories of recognition start from the intuition that misrecognition is a form of moral harm that undermines self-esteem and the capacity for full personhood, but which also motivates the struggle for justice. Drawing on Hegel’s inter-subjective theory of moral agency, Taylor and Honneth both argue that individual selfhood develops through social relations, with respect to the family, civil society and the state. For Taylor, the problem became acute with the advent of modernity, because recognition could no longer be established through tradition or ritual alone. Individuals were expected to develop themselves in a distinctive and autonomous fashion, but then discovered that they depended on others to recognize their authentic self. There was a precarious dimension to modern subjectivity, in that truth must emerge from within, yet its validation must be granted socially. ‘What has come about with the modern age’, Taylor argued, ‘is not the need for recognition but the conditions in which the attempt to be recognized can fail’. 

For Taylor, this precarity was a symptom of the bourgeois public sphere, which usurped earlier valuation systems built upon honour. It was organized around two potentially conflicting ideals. On the one hand, individuals entered it as equals, without bringing any prior status with them. In the language of recognition, this involves respecting the equal dignity of all human beings (but in practice only property-owners). On the other hand, its great achievement was to establish new gradations of value on the basis of criticism, opinion and deliberation, rather than on the basis of honour. Under liberal democracy, much of the value of recognition—as an artist, politician or entrepreneur—derived precisely from the fact that it is not equally distributed but won on some principle of merit. Honneth referred to this approvingly as the individualist achievement principle, which ensured that recognition could not be taken for granted. Everybody received equal recognition for having cultural potential, but not for the use they make of it. 

A key challenge lies in how this balance between recognition of equality and recognition of inequality is handled. Honneth’s ambitious theory of justice-as-recognition offered one response. Honneth articulated three domains in which recognition is accorded in different forms: within the family as love, within the legal system as rights, and in civil society and the public sphere as esteem and solidarity. It is the task of the legal system to allocate equality of rights, but the task of civil society and the public sphere to differentiate cultures, merits and identities. Honneth’s challenge to Marxism, and to Fraser in their exchange, is to suggest that even class conflict and demands for redistribution are fuelled originally by the injury of misrecognition, for example that the contribution of the worker to production is not adequately recognized by the labour market. 

Honneth’s main goal was to bridge the divide between ‘a moral theory going back to Kant, on the one hand, and communitarian ethics, on the other’. The constitutive psychological function of recognition supplied the universal-normative principle, while the conditions and struggles for recognition were historical and local. But they also had the effect of democratizing the articulation of injustice, such that moral and critical agency could stem from the person who experienced misrecognition, and not simply the one who observed it. By anchoring his understanding of misrecognition in social psychology, specifically the work of George Mead, Honneth hoped his theory was broad enough to encompass the manifold non-public and ‘non-political’ ways in which recognition is withheld, for instance within the home, at considerable cost to the person.

Blockchain Hype

"‘Lex Cryptographia,’ ‘Cloud Crypto Land’ or What? – Blockchain Technology on the Legal Hype Cycle" (King's College London Law School Research Paper Forthcoming) by Michael Schillig comments 

 Based on an analysis of the literature on the interaction of law and DLT/blockchain, the paper argues that hype cycle dynamics apply in legal discourse. Thinking in hype cycle categories provides a structured way for analysing the potential legal implications of a particular innovation. This critical engagement with enthusiasts, sceptics and pragmatists throughout the different stages may help to present a more realistic picture of DLT/Blockchain’s potential from a legal perspective in the short and medium term. Consequently, the paper discusses the potential for disruption to the legal system envisaged by enthusiasts at the height of inflated expectations, attempts to deconstruct the arguments levelled at the technology by its detractors during the trough of disillusionment, charts the emerging legal landscape that seeks to accommodate and harness the potential of DLT/blockchain on the slope of enlightenment, and concludes by risking a glimpse towards the plateau of productivity.

Competition

'Big Tech Acquisitions — Towards Empirical Evidence' by Pauline Affeldt and Reinhold Kesler in (2021) 12(6) Journal of European Competition Law & Practice 471–478 comments 

Big Tech, commonly associated with the firms Google, Apple, Facebook, Amazon, and Microsoft (GAFAM), makes up the most valuable companies worldwide in 2020. In the ten years leading up to 2020, these five companies alone acquired more than 400 firms, predominantly in the technological sector. However, most of these transactions were not scrutinised by competition authorities as they did not reach the traditional turnover thresholds, whereas those reviewed were not blocked following current merger control procedures. Prominent examples include the Google/YouTube, Facebook/Instagram, Facebook/WhatsApp, and Microsoft/GitHub mergers. 

As a result, a number of policy reports voice their concerns about the competitive effects of such acquisitions that target potential competitors but fly under the radar because of the features and challenges of the digital economy. In particular, firms in the digital economy often start to monetise only once they have acquired a large user base, thus not meeting current turnover thresholds for merger investigation. Furthermore, digital industries are typically characterised by multi-sidedness, (indirect) network effects, access to data raising privacy issues, and often zero prices on one side of the market (typically the user side). Competition is then often about non-price outcomes, such as quality of service, data collection, and innovation. Consequently, some of these reports conclude that merger control enforcement needs to be updated to properly account for these particular features. Germany, as one example, already considers the transaction value of the acquisition and in 2021 gave the competition authority power to intervene and prohibit abusive practices when a company has a paramount significance for competition across markets. Other authorities, like the Federal Trade Commission in the United States, announced that they will review all acquisitions made by Big Tech in the past, irrespective of their size. 

Besides the discussion about the necessity to update current merger control, authorities are also starting to implement ex ante regulation of dominant digital platforms to complement antitrust intervention and restore competition in digital markets. In late 2020, the European Commission presented its proposal for the Digital Markets Act containing behavioural obligations for large online platforms (so-called ‘gatekeepers’) aimed at reducing entry barriers and ensuring fairness in the relationship between the platform and its different user groups. The United Kingdom recently announced that it will set up a Digital Markets Unit within the Competition and Markets Authority (CMA) to enforce a new code of conduct applicable to platforms with considerable market power (digital businesses with so-called strategic market status), forcing platforms to be more transparent about the services they provide and how they use consumers’ data. The proposal also requires firms with strategic market status to report all acquisitions to the CMA. 

A particular case in point for these acquisitions is the market for mobile applications. In 2020, consumers spent 110 billion US dollars on the two major app platforms, whereas worldwide mobile advertising revenue amounted to close to 200 billion US dollars. Examples include the large takeovers of WhatsApp and Instagram by Facebook. While the former acquisition led to Facebook being fined by the European Commission for combining user data, the latter has been in the spotlight of the Big Tech hearing in the US House Judiciary Committee suggesting that one intention of the acquisition was to eliminate a potential competitor. Other prominent examples involve acquisitions of popular apps that were discontinued in the aftermath, such as Microsoft shutting down Wunderlist. However, the majority of acquisitions involve apps that are small and rather unknown. All of these acquisitions take place in a market that is, in principle, characterised by a competitive and dynamic environment with many apps and developers being active. This suggests that acquisitions will not only have an impact on the acquirer and the acquired firm, as often suggested by the current debate, but also on competitors. 

Because of these features that are representative for many digital markets, we study big tech acquisitions in the Google Play Store. Specifically, we look at the acquirer’s strategy and the development of the acquired app in terms of prices, data collection, and innovation. 

Based on comprehensive lists of all GAFAM acquisitions from 2015 to 2019, we identify more than 50 app acquisitions in the Google Play Store. We then match these with a comprehensive dataset covering almost all apps in the Google Play Store. This allows us to not only observe the acquired apps along with GAFAM as a developer, but also many competing apps. Relevant outcomes include app and in-app prices, updating behaviour, and requested privacy-sensitive permissions. To the best of our knowledge, we are the first to empirically study the effects of big tech acquisitions based on a product-level dataset in a very important online market. 

We find that half of the acquired apps are discontinued, which tend to be smaller, less frequently updated, and less privacy-intrusive than acquired apps that are continued. Following the acquisition by GAFAM, the monetization strategy seems to change as apps become free of charge but request more privacy-sensitive permissions. Compared with the whole Play Store, GAFAM seems to target more attractive apps, e.g., with respect to updating, data collection, and demand.

In discussing the literature on big tech acquisitions the authors state 

 The literature on the competitive effects of big tech mergers or acquisitions is predominantly theoretical. It is often motivated by the example of incumbent high-tech companies buying up start-ups feared to be emerging or potential competitors. Typical features of digital industries include (direct and indirect) network effects, multi-sidedness, free provision of a service to one side of the market (while typically the advertising side pays), and the importance of data. On the side of the market that does not pay for the product or service, competition is then often about non-price outcomes, such as the quality of service, data collection, and innovation. Accordingly, research on big tech mergers or acquisitions mainly focuses on innovation rather than price effects, while data are not traditionally at the core of most of the analyses. 

For these digital industries, Motta and Peitz (2020)7 provide an overview of competitive effects of such acquisitions along with several theories of harm resulting in a call for stricter merger control. The theoretical model, in which an incumbent can acquire a potential competitor, highlights that the competitive effects of the acquisition depend on the likely counterfactual: if the start-up has the ability to pursue its project absent the merger, the acquisition is always anti-competitive. The acquisition can only be pro-competitive if the potential competitor is unable to pursue the project absent the merger and if the incumbent has an incentive to develop the project following the acquisition. Instead, Cabral (2020) provides a more cautious note, highlighting the importance of technology transfer through acquisitions and the discouragement of entrants’ innovation incentives due to strict merger policies. In particular, Cabral (2020) argues that digital industries are characterised by high uncertainty about where the next competitive threat comes from, which lowers the preemption motive for acquisitions. Rather, due to poorly working markets for technology transfer, acquisitions are a means for incumbents to appropriate complementary technology. If this technology is worth more in the hand of the incumbent, the higher acquisition price generates innovation incentives for entrants in the first place. 

This relates more broadly to studies on incentives to innovate for both the incumbent and start-up with an intervening competition authority. Letina, Schmutzler, and Seibel (2020)9 show that a prohibition of acquisitions leads to reduced innovation efforts and, as a result, the authors argue that acquisitions should rather be challenged in industries where innovation effects are considered small to justify enhancing competition. In contrast, Fumagalli, Motta, and Tarantino (2020) show that merger policy does not need to be lenient towards all acquisitions of potential competitors. The beneficial effects of acquisitions on innovation can instead be reached by policies pushing incumbents to early acquisitions of financially constrained start-ups. Kamepalli, Rajan, and Zingales (2020) show that acquisitions by the incumbent lower payoff prospects of new entrants and thus discourage them from investing (‘kill zones’). Bryan and Hovenkamp (2020) study acquisitions of start-ups in a model with two incumbents, one leader and one laggard, where the start-up does not have the ability to enter the market. Absent limits on start-up acquisition, the leader will always acquire the start-up to prevent the laggard from catching up technologically. This also implies that start-ups bias their R&D investment towards improving the leader’s technology rather than towards technology helping the laggard to catch up. They propose antitrust intervention in the form of compulsory licencing to laggards in cases of start-up acquisitions by dominant incumbents. Differently from the previously mentioned papers, Katz (2020) models competition for the market rather than in the market. In his infinite horizon entry model, the incumbent and entrant compete for the market for one period, then one of them exits the market while the other reaps monopoly profits until the next entry event. He argues for higher antitrust scrutiny of incumbents’ acquisitions of emerging or potential competitors when competition is for the market; however whether the prohibition of mergers increases or decreases innovation incentives of entrants depends on the characteristics of the concerned market. 

Cunningham, Ederer, and Ma (forthcoming) show empirically for the pharmaceutical industry that incumbents acquire (possible) entrants to discontinue the target’s innovation, thus pre-empting potential competition, thereby coining the term ‘killer acquisitions’. However, the relevance of killer acquisitions for digital markets is a priori not clear, as these markets are often characterised by an abundance of products (translating to many entrants) paired with an unpredictability of success that considerably weakens the pre-emption motive. 

The only empirical papers studying acquisitions of GAFAM comprise Gautier and Lamesch (2020) and Koski, Kässi, and Braesemann (2020). Gautier and Lamesch (2020) look into acquisition strategies, finding acquisitions between 2015 and 2017 by GAFAM to take place in the firms’ core segments and mostly accompanied by shutdowns. Koski, Kässi, and Braesemann (2020) find entry rates and venture capital funding to be reduced in the target’s product market following big tech (GAFAM and IBM) acquisitions for the period from 2003 to 2018. 

To the best of our knowledge, we are the first to empirically study GAFAM acquisitions in the market for mobile applications based on product-level data. The market for mobile applications is a prime example of a relevant online market, as it entails a dynamic environment with many active apps, in which innovation and privacy considerations are more important parameters of competition than price. It is also a market in which different types of acquisitions take place and spillovers can be studied

HateSpeech

'Should We Protect Animals from Hate Speech?' by Josh Milburn and Alasdair Cochrane in (2021) Oxford Journal of Legal Studies comments 

Laws against hate speech protect members of certain human groups. However, they do not offer protection to nonhuman animals. Using racist hate speech as our primary example, we explore the discrepancy between the legal response to hate speech targeting human groups and what might be called anti-animal or speciesist hate speech. We explore two sets of possible defences of this legal discrepancy drawn from the philosophical literature on hate speech—non-consequentialist and harm-based—and find both wanting. We thus conclude that, absent a compelling alternative argument, there is no in-principle reason to support the censure of racist hate speech but not the censure of speciesist hate speech. 

 The authors argue 

 Imagine a group—let us call them the ‘White Defence League’ (WDL)—who distribute leaflets in a residential area. In their leaflets, the WDL decry the ‘propaganda’ spread by anti-racists and argue that white people are morally superior to those of other races. They further argue that white people should prioritise other white people—even if that means ignoring the exploitation, suffering and death of non-white people. If the WDL were operating in a liberal state with laws against ‘hate speech’, it is not hard to imagine that its members would face criminal prosecution for distributing the leaflets.1 In the UK, for example, members of the WDL might face prosecution for the distribution of ‘written material which is threatening, abusive or insulting’, that, regardless of the intent of the distributors, is likely to stir up ‘racial hatred’. 

But now imagine a different group, which we could call the ‘Human Defence League’ (HDL). The HDL also distribute leaflets in that same residential area. In their leaflets, they decry the ‘propaganda’ spread by animal-rights and vegan activists, and argue that humans are morally superior to other animals. They further argue that humans should prioritise other humans—even if that means ignoring the exploitation, suffering and death of non-human animals. While the claims and arguments of the HDL are very similar to the claims and arguments of the WDL—except, of course, that they are decrying animals, rather than non-white people—the HDL would not be subject to censure under hate-speech laws in the UK or any other liberal state. 

There is thus a discrepancy between the legal response we could expect to the WDL’s and HDL’s respective leafleting campaigns. Our question is whether such a discrepancy is justified in criminal law. As such, we put to one side the related but separate questions concerning, first, whether hate-speech laws are justified at all (more on this shortly); second, the morality of engaging in hateful speech (ie engaging in hate speech may involve many wrongs whether or not it is the law’s business); and, third, the possibility of non-criminal legal means for challenging hate speech. In this article, we will explore several potential justifications for the discrepancy, ultimately concluding that none of them are successful. This leads to the conclusion that, in principle, there is no reason to believe that members of the WDL should face criminal sanction while members of the HDL should not. Unless a better justification for the discrepancy can be identified, either both (in principle) should face sanction or neither should. 

Before exploring reasons for endorsing the discrepancy in earnest, we want to note two things. First, we acknowledge that, for some readers, even asking this question is distasteful, given historical and contemporary uses of animalising and dehumanising insults against non-white people. In response, we first note that the purpose of this article is absolutely not to equate the moral worth of non-white people with that of animals. We acknowledge that there are important differences between humans (of all races) and animals, and the nature and kind of injustices they face. We are interested only in the narrow question of what relevant differences there might be between the two for the purposes of hate-speech law, including differences in the impact that hate speech directed at these respective groups might have. We further note that the power of animalising language rests upon the fact that animals are themselves marginalised. If animals were afforded the respect that we (the authors) believe they are due, these insults would lose their rhetorical strength. We finally note that this comparison is intended to be a starting point to explore comparisons between hate speech targeting human minorities—racial, gender, sexual, religious and so on—and what we might call anti-animal or ‘speciesist’ hate speech. The specific comparison is not an end in itself. 

The second consideration that we want to acknowledge is that there is already controversy about how, if at all, states can justify laws against hate speech, as well as what constitutes hate speech. To reiterate, the purpose of this article is not to take a stance on the question of justification. And yet, in exploring possible rationales for the discrepancy outlined, we will naturally examine a range of possible justifications for hate-speech laws. And though we acknowledge that there are difficult questions about the line between ‘merely’ hurtful speech and speech that could fairly be called hate speech, we wish to put that question aside. We are here focusing on the core question of whether one can distinguish paradigmatic forms of hate speech—racist, sexist, homophobic, ableist, etc—from what we might call anti-animal or ‘speciesist’ hate speech. Thus, we are not going to attempt to offer a definition or conception of hate speech, speciesist or otherwise, beyond noting that ‘hate speech’ is often thought to include material that is neither (in the colloquial sense) hateful nor speech. For now, we simply ask that readers allow that the WDL’s actions would typically be viewed as hate speech, while the HDL’s—though structurally identical—would not. 

But while a precise definition of hate speech is not to be offered, it is reasonable to ask what kinds of anti-animal speech are motivating this enquiry. Some current practices that strike us as potential examples of speciesist hate speech include the following. First—and this is the kind of case that inspired the HDL vignette—pro-animal-agriculture organisations (including governmental organisations) publishing literature or films claiming that great harms inflicted on animals should be tolerated or ignored for the sake of seemingly less weighty human interests. Second, articles written by avowedly speciesist critics of animal protectionism claiming that animals’ interests do not matter simply because they belong to animals. Third, the public campaigning of conservationists built upon explicit declarations that the lives and suffering of members of certain non-native animal species matter less than the lives and suffering of members of native animal species. While each of these instances has a clear analogy in the case of hate speech targeting humans, each also brings with it its own particular conceptual and normative puzzles, which there is not space to explore fully here. Though these examples help motivate the enquiry, it might be the case that not all do (or should) constitute ‘hate speech’ proper. 

This article advances by examining a variety of different ways in which the legal discrepancy in responses to the WDL’s and HDL’s leafleting might be justified. We split these into two groups. The first section explores what we refer to as ‘non-consequentialist’ defences of the discrepancy—in that they justify the differential treatment in terms unrelated to the impact that the speech has (or is likely to have). The second addresses defences of the discrepancy grounded in claims about harm resulting from hateful speech. Our conclusion will be that none of the reasons to defend the discrepancy canvassed are satisfactory, leading to the conclusion that either both the WDL and the HDL should be open to censure or neither should.