barnold law

Cotton Wool Kids?

2012-02-09T19:46:00.006+11:00

The Australian Council for Education Research (ACER) has released information on perceptions of safety regarding minors walking (or riding) to school.

ACER comments that

a new study of neighbourhood satisfaction has revealed older residents believe it is safer for children to walk to school than the parents of primary school-aged children believe to be the case

The study, by Australian Council for Educational Research (ACER) Research Fellow Ms Catherine Underwood, examined survey responses from over 800 residents aged 60 years and over and from over 500 parents of students aged 5 to 12 years living in six Victorian municipalities

The survey revealed that 79% of older residents living in metropolitan areas and 69 per cent of those living in regional areas believe it is safe for children to walk or ride to school on their own. In contrast, only 40% of parents living in metropolitan areas and 36% of those living in regional areas agreed that it is safe for their child to travel to school independently.

Regrettably there's no indication from ACER about the extent to which the perceptions match realities (we may well perceive that are reds under the bed and wiccans aloft on broomsticks with kitties but that doesn't necessarily make it so).

There's also no indication of to what extent perceptions are reflected in parental behaviour and in anxiety on the part of minors who've been warned - and warned again - about stranger danger. Cotton wool kids, without the resilience desirable to success in a sometimes turbulent world?

The SMH, having picked up ACER's information (the Council doesn't appear to have released a substantive report), is running with it ... noting instances where parents have been reproved by police for letting the kids out unaccompanied. (The ACT Police alas seem to lack that zeal - or officiousness - in dealing with the decidedly unaccompanied minors who haunt the skatepark near Canberra Uni very late at night.)

ACER goes on to report that -

There was similar disagreement between parents and older residents about whether it is safe for children to walk or ride to the local park or playground. Around 75% of older residents living in metropolitan areas and 68% of those living in regional areas agreed that it is safe for children to do so, compared to only 34% of metropolitan parents and 49% of regional parents.

Ms Underwood said the disparity between parents’ and older residents’ views on whether it is safe for children to independently walk or ride through their neighbourhood appears to be reflected in their perceptions of the danger presented to children by strangers.

‘Stranger danger’ was seen as a barrier to children’s independent outdoor activity by 44% of metropolitan older residents and 51% of regional older residents.

Concern about ‘stranger danger’ was much higher among parents, with 76% of parents living in metropolitan areas and 71% of parents living in regional areas indicating that it is the most significant barrier to their child’s physical activity in the neighbourhood.

It would be interesting to see data from a more in depth study of parental and community perceptions of 'stranger danger', given several decades of research indicating that minors are significantly more likely to experience sexual assault, physical violence or other injury from intimates (parents, siblings, cousins, uncles, family friends, the parish priest) than from the stereotypical stranger.

ACER states that

Road safety was the second most significant barrier identified by parents.

Around half of the parents surveyed (44% of metropolitan parents and 51% of regional parents) agreed that there is a lot of traffic along most nearby streets, making it difficult or unpleasant to go for walks. Here, older residents’ responses were closer to parents’, with 31% of metropolitan older residents and 38% of regional older residents agreeing that heavy traffic makes it difficult or unpleasant to walk.

One of this blog's crueller readers responded to ACER's "Opinion split on walking to school" headline with the quip "Opinion split on usefulness of research" ... and on its enthusiastic embrace by the mass media.

Family Violence

2012-02-09T18:24:00.003+11:00

The Australian Law Reform Commission has released its 541 page report [PDF] on Family Violence and Commonwealth Laws — Improving Legal Frameworks (ALRC report 117).

The report calls for a common interpretative framework, with inclusion in Commonwealth laws of the same core definition of family violence -

systemic benefits would flow from the adoption of a common interpretative framework across the specified legislative areas, promoting seamlessness and effectiveness in proceedings involving family violence for both victims and decision makers. Importantly, it should also enhance consistency in the treatment of family violence across the legislative frameworks, reinforced by appropriate and regular training.

The common interpretative framework recommended in Family Violence — A National Legal Response is based on a core definition of family violence, describing the context in which behaviour takes place, as well as the types of conduct — both physical and non-physical — that may fall within the definition of family violence. The context, set out in the first part of the definition, is violent, threatening or other behaviour that coerces or controls a family member or causes that family member to be fearful. The second part of the definition provides a non-exhaustive list of the types of behaviour that may constitute family violence.

The report discusses disclosure and issues management, noting tools and methods that may be used to identify family violence-related safety concerns. It recommends that

Department of Human Services (DHS) staff providing customer services should facilitate the disclosure of family violence-related safety concerns by providing information about how family violence may be relevant to a person’s social security, child support and family assistance case, at the point of registration and at subsequent intervention points.

The identification of family violence-related safety concerns should result in an appropriate issues management response, which may include referral to a Centrelink social worker or other expert service providers. To assist with this, and to reduce the need for a customer to re-disclose, the ... DHS should consider developing and implementing a ‘safety concern’ flag to be placed on a customer’s file where family violence-related safety concerns are identified. This flag should be available to relevant agencies subject to informed consent of the customer and with appropriate privacy safeguards.

In dealing with Social Security the report comments that the Australian social security system is based on four key principles -

1. it is based on need—measured by reference to the income and assets of the applicant;

2. it is fair and reasonable to expect unemployed people receiving income support to do their best to find work, undertake activities that will improve their skills and increase their employment prospects and, in some circumstances, contribute something to their community in return for receiving social security payments and entitlements;

3. relationship status determines eligibility and rates of payment — a person who is a member of a couple receives a lower social security payment than one who is single; and

4. residence is a requirement to preserve social security benefits for those settled in the Australian community.

To ensure fairness in administration of the social security system and to provide a level of self-agency, greater transparency and consistency is required in relation to the information a person can rely on to support a claim of family violence. The ALRC therefore recommends that a broad range of types of information should be available and establishment of defined ‘intervention points’ at which Centrelink should promote disclosure of family violence. Centrelink procedures should be included in social security legislation or the Guide to Social Security Law, rather than Centrelink’s e-reference, which is not publicly available.

In discussing the impact of family violence on relationships the ALRC notes that relationships are inherently difficult to define, but recognises that the effect of family violence may not always be considered appropriately in social security decisions regarding relationships. Recommendations in Chapter 6 aim to ensure that the impacts of family violence are expressly considered in social security decisions through amendments to the Social Security Act 1991 (Cth) and the Guide to Social Security Law. It notes that

Family violence is relevant to proof of identity and residence requirements attached to certain social security payments. The requirement to provide original proof of identity documents and tax file numbers can create a barrier for persons experiencing family violence to obtain access to social security payments and entitlements. Similarly, residence requirements may mean that certain visa holders or newly arrived residents are unable to access independent financial assistance through the social security system and therefore may not have adequate financial support to enable them to leave a violent relationship.

Chapter 8 concerns determining capacity to work, with improved administration and content of the 'capacity to work' tools and processes to protect the safety of victims of family violence. The chapter also

examines ways in which Job Services Australia (JSA)—the national employment services system—Disability Employment Services (DES) and the Indigenous Employment Program (IEP) systems respond to the needs of job seekers experiencing family violence. The ALRC recommends that the Department of Education, Employment &Workplace Relations (DEEWR), as contractor of JSA, DES and IEP providers, should ensure that providers appropriately and adequately consider the existence of family violence when tailoring service responses.

The report makes recommendations to ensure that a person’s experience of family violence is adequately considered in negotiation and revision of requirements for activity-tested social security payments and the granting of exemptions from such requirements. Chapter 9 considers barriers to accessing Crisis Payment and urgent payments, with recommendations to provide better protection for victims of family violence, including removing the requirement for Crisis Payment that either the victim or the person using family violence must have left the ‘home’. It recommends amending the Social Security Act 1991 (Cth) to ensure that family violence can be taken into consideration in decisions to waive the repayment of a social security debt—for example, where the debt was incurred due to economic abuse or duress by a family member.

In dealing with the contentious issue of Income Management the report notes that -

‘Income management’ is an arrangement under the Social Security (Administration) Act 1999 (Cth) by which a proportion of a person’s social security and family payments is quarantined to be spent only on particular goods and services, such as food, housing, clothing, education and health care. The aim, as indicated by the Department of Families, Housing, Community Services & Indigenous Affairs, is to ensure that ‘income support payments are spent in the best interests of children and families and helps ease immediate financial stress’.

The ALRC identifies three broad issues that arise in relation to the ways in which income management affects victims of family violence:

the appropriateness of compulsory income management to victims of family violence;
applying voluntary income management to victims of family violence; and
practical issues that victims of family violence face in accessing necessary funds.

The report consequently recommends introduction of a flexible and voluntary form of income management—an ‘opt-in and opt-out’ model—to better protect the safety of people experiencing family violence. It examines practical issues arising in relation to accessing income managed funds.

The ALRC considers that to reflect the underlying principles of accessibility and self-agency articulated in Chapter 2 of the Report, at the very minimum it is necessary to ensure that victims of family violence are able to access and control their income management account—whether through a BasicsCard, voucher or other form of payment or credit. In particular, the limited definition of ‘priority needs’ is contrary to these principles and poses particular difficulties for victims of family violence. The ALRC therefore recommends that the Australian Government should amend the definition of ‘priority needs’ in s 123TH of the Social Security (Administration) Act 1999 to include travel or other crisis needs for people experiencing family violence. In light of difficulties with the income management account system and BasicsCards, the ALRC also suggests that the Government should review the existence and operation of these in the course of any introduction of an opt-in and opt-out income management model.

In discussing Child Support and Family Assistance the report notes "the major point of intersection between the child support and family assistance legislative schemes: the ‘reasonable maintenance action’ requirement" (to receive more than the minimum rate of Family Tax Benefit (FTB) Part A, eligible parents must be in receipt of child support). It suggests that Family violence exemptions are a key protective strategy for victims of family violence in both child support and family assistance contexts.

Exemptions enable victims to opt out of obtaining child support payments—where this would place them at risk—without a consequent reduction to their FTB Part A payments. Due to this significant protective role, the ALRC recommends that exemptions should be set out in family assistance legislation.

Further information about exemptions should be contained in the Family Assistance Guide.

The current framework for family assistance comprises a range of payments and is primarily governed by two statutes: A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). Chapter 14 discusses the family assistance framework and the ways that it addresses family violence, focusing on the two primary family assistance payments—Family Tax Benefit (FTB) and Child Care Benefit (CCB). Chapter 14 recommends reforms specifically targeted at family assistance law and policy, particularly in relation to CCB—to improve access to increased CCB in cases of family violence (including child abuse), by lowering the eligibility threshold where children are at risk of abuse.

In relation to Employment Law the ALRC calls for a "national and phased approach" -

Family violence is not simply a private or individual issue, but rather a systemic one arising from wider social, economic and cultural factors. Accordingly, effective measures to address family violence need to operate in both the private and public spheres. This is particularly so in the context of employment, as the line between private and public—or family life and work—is increasingly unclear. As one stakeholder ... commented during a consultation, ‘workplaces are becoming our new communities and therefore they must be a place for change’.

Chapter 15 examines the intersections between family violence and Commonwealth employment law and, together with Chapters 16–18, recommends reforms to employment-related legislative, regulatory and administrative frameworks to improve the safety of people experiencing family violence. The ALRC suggests a phased implementation of the reforms outlined in Chapters 15–18 as follows:
Phase One — coordinated whole-of-government national education and awareness campaign; research and data collection; and implementation of government-focused recommendations.
Phase Two — continued negotiation of family violence clauses in enterprise agreements and development of associated guidance material.
Phase Three — consideration of family violence in the course of modern award reviews.
Phase Four—consideration of family violence in the course of the Post-Implementation Review of the Fair Work Act 2009 (Cth).
Phase Five—review of the National Employment Standards (NES) with a view to making family violence-related amendments to the right to request flexible working arrangements and the inclusion of an entitlement to additional paid family violence leave.

In discussing the Fair Work Act the ALRC characterises that statute as "the key piece of Commonwealth legislation regulating employment and workplace relations", noting that it "establishes a safety net comprising: the NES, modern awards and national minimum wage orders; and a compliance and enforcement regime. It also establishes an institutional framework for the administration of the system comprising Fair Work Australia (FWA) and the Fair Work Ombudsman (FWO)". The report accordingly considers

potential reform of the Act, its institutions, and agreements and instruments made under the Act. The ALRC suggests ways in which these institutions and their processes may function to protect the safety of those experiencing family violence. In addition, Chapter 16 examines:
family violence clauses in enterprise agreements—the ALRC concludes the Australian Government should support the inclusion of family violence clauses and recommends that the FWO should develop a guide to negotiating such clauses;
individual flexibility arrangements in enterprise agreements—the ALRC considers the appropriateness of individual flexibility arrangements (IFAs) in circumstances where an employee is experiencing family violence and recommends that the FWO should include information on negotiating an IFA in such circumstances in existing guidance material;
modern awards—the ALRC considers ways in which modern awards might incorporate family violence-related terms and suggests this should be considered in the course of the modern award reviews to be conducted by FWA in 2012 and 2014; and
the general protections provisions under the Fair Work Act—the ALRC recommends that prior to the Australian Government considering inclusion of a family violence-related ground under the general protections provisions, the Australian Human Rights Commission (AHRC) should examine the possible inclusion of a family violence-related protected attribute under Commonwealth anti-discrimination law.
Chapter 17 considers possible amendments to the NES. Minimum statutory entitlements, such as those provided for under the NES, are important to ensuring fairness and consistency in access to the entitlements and, ideally, to consistent decision making and employer responses. As a result, as part of Phase Five of the ALRC’s suggested strategy for phased implementation of reforms contained in [the] Report, the ALRC recommends that the Australian Government should consider amending the NES. In particular, the ALRC recommends that there should be consideration of: whether family violence should be included as a circumstance in which an employee should have a right to request flexible working arrangements; and whether additional paid family violence-related leave should be included as a minimum statutory entitlement under the NES.

The report notes that occupational health and safety (OHS) laws are "being harmonised across Australia, with a Model Act, Model Regulations and Model Codes of Practice forming the basis of the harmonised OHS regime from 1 January 2012". Chapter 18 examines ways in which the Commonwealth OHS system protects employees experiencing family violence and, where it does not do so, how that might be addressed. The chapter examines:

legislative duties of care; the nature and role of regulatory guidance; the importance of further consideration of family violence as a possible work health and safety issue, including research and data collection; as well as increased awareness, education and training around family violence and its impact as a possible work health and safety issue.

The central premise underlying Chapter 18 is that, where family violence is a possible OHS issue, employees should be given the highest level of protection reasonably practicable, and employers should introduce measures to address family violence and create and sustain safe work environments. The chapter 18 contains two main approaches to the issue of family violence as a possible work health and safety issue. First, under the Commonwealth OHS system, legislative and regulatory duties appear to be sufficiently broad to capture some circumstances in which family violence may affect an employee in the workplace. In these instances, in terms of employer obligations, the risk posed by family violence is analogous to the risk posed by other forms of workplace violence. As a result, lack of knowledge, rather than legislative inadequacies, represent the greatest challenge in such instances and so improving awareness and understanding of family violence as a possible OHS issue is the focus of reforms.

The ALRC makes a range of recommendations focused on: increasing awareness of family violence and its impact as a possible work health and safety issue; the incorporation of systems and policies into normal business practice to develop the capacity of employers and employees to effectively manage family violence as an OHS risk; and data collection mechanisms to establish an evidence base upon which to plan future policy directions in this area.

Secondly, in instances in which it is more difficult to establish that family violence would engage an employer’s duty of care or be covered by existing OHS law, for example where it is more analogous to psychosocial hazards, the ALRC recommends that additional research be undertaken in this area. In particular, the ALRC recommends that Safe Work Australia should identify family violence as a research priority, examine the effect of the harmonised OHS regime on duties and obligations owed in relation to family violence as a possible OHS risk and consider ways to extent and improve data coverage, collection and analysis in this area.

The ALRC notes that superannuation, as a form of long-term saving for retirement, "serves an important role and, for many Australians, is one of the most significant forms of wealth", with successive governments having introduced measures to maintain and enhance superannuation savings, largely through compulsory superannuation membership and contribution and preferential tax treatment. Chapter 19 examines ways in which the Australian superannuation system does, or could, respond to protect those people experiencing family violence. In doing so, the ALRC makes a number of recommendations, but also acknowledges the specific role that superannuation plays as a long-term form of savings and recognises the policy tension between the need to preserve superannuation benefits until retirement and the need, in limited circumstances, to allow early access to superannuation funds.

The first part of Chapter 19 deals with circumstances in which a victim of family violence may have been coerced into taking action in respect of their superannuation and considers spousal contributions and self-managed superannuation funds (SMSFs). The ALRC concludes that the treatment of superannuation should be considered in the context of a wider inquiry into how family violence should be dealt with in respect of property proceedings under the Family Law Act 1975 (Cth). The ALRC also makes a number of suggestions with respect to compliance action taken in relation to SMSFs and recommends changes to guidance material with respect to establishing, managing and winding up a SMSF.

The second part of the chapter examines circumstances in which a victim of family violence may wish to seek early access to superannuation benefits, for example, for the purposes of leaving a violent relationship. In considering early release on the basis of severe financial hardship, the ALRC recommends amendments to the eligibility requirements for making an application and to guidance material for decision makers in granting early release. The ALRC also considers early release of superannuation on compassionate grounds and makes recommendations in relation to guidance material and training for decision makers.

The report also considers migration, commenting that -

The policy challenge in the area of migration is to ensure accessibility to the family violence provisions for genuine victims of family violence while preserving the integrity of the visa system, given that attaining permanent residency in Australia is highly sought after.

Partner visas form part of Australia’s family migration stream, allowing non-citizens to enter and remain in Australia on the basis of their spouse or de facto relationship (both opposite and same-sex) with an Australian citizen or permanent resident. All applicants for a partner visa must be sponsored by an Australian citizen or permanent resident. The Migration Regulations 1994 (Cth) include an exception in the case of family violence, which provides for the grant of permanent residence notwithstanding the breakdown of the spouse or de facto relationship on which their migration status depends. In Chapter 20 the ALRC makes recommendations to improve the accessibility of the family violence exception for victims — in particular, to expand the exception to cover secondary applicants for onshore permanent visas.

A non-citizen who wishes to enter Australia for the purpose of marrying an Australian sponsor can apply for a Prospective Marriage visa (Subclass 300), that allows for entry into Australia for a nine-month period, within which the marriage must take place. After the marriage, an application can be made for permanent residence on the basis of the married relationship. The ALRC recommends that holders of a Prospective Marriage (Subclass 300) visa who have experienced family violence but who have not married their Australian sponsor should also have access to the family violence exception.

The ALRC also recommends targeted education and training for visa decision makers, competent persons and independent experts, as well as better information dissemination for prospective visa applicants and visa holders in relation to legal rights, and family violence support services, prior to and upon arrival in Australia.

The report wraps up with a discussion of evidence, centred on the evidence required to support a claim under the family violence exception. It notes the clear policy tension between the principles of accessibility and system integrity.

If evidentiary requirements are too strict and rigid, it may prevent access to the family violence exception for genuine victims. On the other hand, if evidentiary requirements are not sufficiently robust, there is scope for fraudulent claims or other abuse of the family violence exception for migration outcomes. This was an area identified by stakeholders as being in need of substantial reform.

The ALRC recommends a new model for dealing with non-judicially determined claims of family violence. The key recommendation is for the Migration Regulations to be amended to provide that any evidence—in addition or as an alternative to statutory declaration from ‘competent persons’—can validly support a non-judicially determined claim of family violence. In addition, the ALRC recommends that the prescriptive requirements governing statutory declaration forms from competent persons in reg 1.26 should be repealed, allowing applicants to bring a wide range of evidence in support of their family violence claim. Where the visa decision maker is not satisfied that an applicant has suffered family violence, referral can be made to an independent expert within the Department of Human Services (Centrelink).

Such a system will increase accessibility and flexibility to victims of family violence while maintaining the need for robust scrutiny of evidence. In particular, integrity measures are reinforced through building on moves towards specialisation within the Department of Immigration and Citizenship (DIAC) and retaining the mechanism for referral to an independent expert.

The area of judicially-determined claims of family violence has proven less problematic in practice. Here, the ALRC recommends the repeal of the requirement contained in reg 1.23 of the Migration Regulations that the violence, or part of the violence, must have occurred while the relationship was in existence.
Partners of temporary visa holders

A number of temporary or provisional visas provide a pathway to permanent residency—that is, to be eligible for a permanent visa, a person must have previously held a temporary or provisional visa. For secondary visa holders of temporary visas, the ALRC recommends—in Chapter 20—that a new temporary visa be created to allow victims of family violence to remain in Australia for a period of time to access services and make arrangements to return to their country of origin or to apply for another visa.

The associated discussion of refugee law notes that Australia is a signatory to the UN Convention Relating to the Status of Refugees (the Refugees Convention), the key international instrument that regulates the obligations of states to protect refugees fleeing from persecution. Chapter 22 considers the position of asylum seekers who seek protection in Australia as refugees on the basis of having experienced family violence.

While family violence claims can fall under the definition of a refugee as contained in the Refugees Convention, this remains a complex area of the law marked by inconsistent decision making.

The ALRC recommends that the Minister for Immigration & Citizenship should issue a direction under s 499 of the Migration Act 1958 (Cth) in relation to family violence in refugee assessment determinations. Such a direction should refer to guidance material on family violence contained in DIAC’s Gender Guidelines. The Gender Guidelines should be the subject of ongoing, comprehensive and periodic review.

The ALRC recommends that DIAC amend its instruction, Ministerial Powers—Minister’s Guidelines — s 48A cases and requests for intervention under s 48B, in the Procedures Advice Manual 3 to refer to secondary visa applicants who are the victims of family violence.

These recommendations are intended to improve consistency in decision making, and to ensure that procedures allow for, and support victims in, making family violence claims under the Refugees Convention.

Copyright Review

2012-02-09T18:09:00.001+11:00

The Australian Attorney-General has announced a new review of the Copyright Act 1968, to be headed by the excellent Jill McKeough -

University of Technology Sydney Dean of Law, Professor Jill McKeough will lead an Australian Law Reform Commission (ALRC) review into the operation of copyright in the digital environment.

“In our fast changing, technologically driven world, it’s important to ensure our copyright laws are keeping pace with change,” Attorney-General Nicola Roxon said.

“I’m delighted to announce the appointment of Professor McKeough to lead this inquiry and provide advice to government on the effectiveness of our copyright laws.

“Professor McKeough’s expertise in intellectual property, consumer protection and commercial law, make her eminently qualified to lead this in-depth review of the Copyright Act.

“The Gillard Government is determined to get the balance right between providing incentives for creators and innovators and encouraging new opportunities within a digital economy including via the National Broadband Network.

“The inquiry will consider whether the exceptions in the Federal Copyright Act are adequate and appropriate in the fast paced digital environment,” Ms Roxon said.

Draft terms of reference will be released for consultation shortly.

Sorrell

2012-02-09T17:54:00.002+11:00

'Informing and Reforming the Marketplace of Ideas: The Public-Private Partnership for Data Production and the First Amendment' (Uni of Wisconsin Legal Studies Research Paper No. 1189) by Shubha Ghosh notes that -

In 2011, the Supreme Court held that the First Amendment applied to the commercialization data in Sorrell v. IMS. While the case at issue dealt with state regulation of pharmacy data, the Court's holding extends to regulation of data in many contexts from government created databases to search engines and social media sites. This Article contains a critique of the decision, emphasizing that the majority and dissent take polar opposite positions without adequately addressing the normative foundations for data regulation and the institutional arrangements within which such regulation occurs. The critique provides a normative framework for the free flow of data and information that takes into consideration classic liberal principles, autonomy principles, and fairness. This normative framework is used to analyze the regulatory structures within data commercialization occurs, including intellectual property law, state law on open records, and information access initiatives. The Article offers three examples drawn from disputes involving tax assessment data, the data transparency projects of the Obama Administration, and protection of databases in Europe, to illustrate the issues raised by the Sorrell decision.

Ghosh concludes that -

As the Supreme Court's analysis in its 2011 Sorrell decision, the marketplace of ideas is grounded in the free flow of data and information. While the majority viewed this marketplace in laissez-faire terms, the dissent recognized that the marketplace for data is created through a network of government regulations and policies. Unfortunately, however, neither the majority nor the dissent addressed adequately either the normative framework for the marketplace of ideas or the regulatory structures that make the generation and exchange of data possible. This paper fills both of those gaps.

The normative framework for the marketplace of ideas requires a consideration of class liberal principles with regards to freedom and rules, of autonomy with respect for individual notions of privacy, and of fairness with respect to distribution across individuals. The First Amendment as a check on communication of data and information needs to adequately balance these three notions with more weight applied to one or two of these principles depending upon the context. The majority in Sorrell emphasized the concept of autonomy by deciding in favor of a laizzez-faire [sic] view of the marketplace of ideas. The dissent leaned towards the classic liberal position with an emphasis on the market harms that arise from a concentrated market for data arising from the market power of pharmaceutical companies in targeting doctors. Neither adequately balanced the principles nor fully considered fairness to patients and consumers in the analysis. Such consideration may have produced a more nuanced set of decisions, as opposed to ones that turned on the dichotomy between free markets and regulation.

Neither majority nor the dissent addressed the network of government regulation that makes communication of data possible. The dissent came closer to acknowledging this network but focused largely on food and drug regulation. As set forth in this paper, however, the network is more complex, consisting of intellectual property laws as well as state and federal regulations of information provided to and used by administrative agencies. This set of regulations give rise to a host of compelling legal problems involving the use of data from the sale of tax assessment records to the open government initiatives under the Obama Administration. This paper details this set of information and shows that the free speech concerns raised in Sorrell may be quite extensive. Given the varied contexts for the commercialization of data, the laissez-faire approach adopted by the majority may not do justice to the range of regulatory issues and governmental interests.

How government can both create and regulate the dissemination of data and information will continue to be a policy issue. Private companies see data as a resource for exploitation at the same time that data is generated through the panoply of transactions and regulations that define our lives. The Sorrell majority decision leads to an unregulated market for data. This paper has made the case that the dissent's views may become more salient once we recognize the complex web of governmental interests that inform data commercialization.

Juvie

2012-02-09T17:47:00.002+11:00

The Australian Institute of Health & Welfare (AIHW) has released a 127 page report [PDF] on Juvenile detention population in Australia 2011 (Juvenile justice series no. 9).

The report notes that

In Australia, the state and territory governments are responsible for dealing with young people involved in crime. Most young people in the juvenile justice system are either supervised in the community or are unsupervised, but some are detained. This report presents information on the number of young people in detention in 2011 and describes recent trends in the detention population.

Around 1,000 young people are in detention throughout Australia

On an average night in the June quarter of 2011 there were 1,055 young people in detention. Over one-third (36%) were detained in New South Wales. Almost half (48%) of those in detention were unsentenced, and in most states and territories, between 43% and 68% were unsentenced. The exception was Victoria, where just 22% were unsentenced.

Rates of detention are stable

On an average night in the June quarter 2011, there were 0.35 young people aged 10–17 per 1,000 in juvenile detention throughout Australia, compared with 0.33 per 1,000 in the June quarter 2007. There was little change in the rates for unsentenced and sentenced detention.

Throughout the 4 years to 2011, detention rates were highest in the Northern Territory, where they ranged from 0.75 per 1,000 to 1.78 per 1,000, and lowest in Victoria, where they ranged from 0.10 per 1,000 to 0.16 per 1,000.

Indigenous young people are over-represented in all states and territories

On an average night in the June quarter 2011, an Indigenous young person aged 10–17 was 20 times as likely to be in unsentenced detention and 26 times as likely to be in sentenced detention as a non-Indigenous young person.

This over-representation was highest in Western Australia, where an Indigenous young person aged 10–17 was 29 times as likely to be in unsentenced detention and 50 times as likely to be in sentenced detention as a non-Indigenous young person in the June quarter 2011. In the remaining states and territories for which an over-representation ratio could be calculated, an Indigenous young person aged 10–17 was between 18 and 22 times as likely to be in unsentenced detention and between 16 and 22 times as likely to be in sentenced detention as a non-Indigenous young person. Levels of over-representation were not calculated for states and territories where there were fewer than 5 Indigenous or 5 non-Indigenous young people aged 10–17 in detention.

Indigenous young people were over-represented throughout the 4 years, although the level of Indigenous over-representation fell for both unsentenced and sentenced detention.

von Hannover again

2012-02-08T18:57:00.007+11:00

The European Court of Human Rights (ECHR) has released its judgment in Case of Von Hannover v. Germany (no. 2) (Applications nos. 40660/08 and 60641/08).

The 'von Hannover' is Princess Caroline of Monaco, litigant in von Hannover v Germany (2004) 40 EHRR 1, the landmark European Union privacy case.

The current case originated in two applications against the Federal Republic of Germany lodged with the Court under Article 34 of the EU Convention for the Protection of Human Rights and Fundamental Freedoms by Monegasque national Princess Caroline von Hannover and German national Prince Ernst August von Hannover on 22 August and 15 December 2008 respectively. The applicants alleged that the refusal by the German courts to grant an injunction against any further publication of photos of them infringed their right to respect for their private life as guaranteed by Article 8 of the Convention.

Princess Caroline and her husband Ernst August von Hannover had taken exception to publication by Frau im Spiegel magazine of a photographs showing them on a skiing holiday in St Moritz in 2002. The photo was accompanied by an article on Caroline's ailing father Prince Rainier of Monaco, which included the statement -

The first magnolia buds are flowering in the grounds of Monaco Palace – but Prince Rainier (78) appears to have no interest in the burgeoning spring. He goes for a walk outside with his daughter Stéphanie (37). She supports him as he walks along slowly. He is cold despite the sunshine. The old gentleman is weary. The Monacans saw their prince for the last time three weeks ago at a circus festival. He had appeared bright and cheerful, walking along beside his daughter who was laughing. But since then he has not left the palace. Not even for the Saint Devote celebration held in honour of the national patron saint. The country is worried, as are Prince Rainier’s children. Prince Albert (who is currently taking part in the Olympic Games in Salt Lake City), Princess Caroline (on holiday in St. Moritz with Prince Ernst August von Hannover) and Princess Stéphanie take it in turns to look after their father. He must not be left alone at home when he is not well. Not without his children’s love.

The German courts held that the report concerned a topic of general interest and that the public had a legitimate interest in learning about the behaviour of Rainier's children during his illness.

In the first instance the German Federal Court of Justice indicated that although the press could, as a matter of principle, make its own decision regarding the content of its publications and the applicants had indeed been in a public place amongst other people, neither the article nor the photo related to an event of general interest or contemporary society. A celebrity’s holidays fell within the core area of his/her private sphere. The publication of the article and photo had been for entertainment purposes only and was not in any way relevant to matters of public interest, so could only be done with Ms Hannover's consent. A second photo exclusively related to her private life and - because it only served entertainment purposes - could not be published without her consent. However, the Court noted that although another photo - that at the heart of the dispute decided by the ECHR - contained "no information having any connection with an event of contemporary society or contributing to a debate of general interest", the accompanying text was of public interest -

The information also concerned the ill-health of the reigning Prince of Monaco. His ill-health was thus an event of contemporary society on which the press was entitled to report. The journalistic quality and the conception of the article are not decisive because the principle of the freedom of the press does not allow the applicability of a fundamental right to depend upon the quality of the press coverage or how the article is drafted. This also applies to the comments in the article on the conduct of members of the family during the prince’s illness, and, moreover, the applicant has not complained about the article in that respect. The photo in question supports and illustrates the information being conveyed.

Accordingly, the Hannovers were not able to prevent publication of the photo. In particular nothing about the actual photo had constituted a violation of privacy; there was nothing to suggest that the photo had been taken surreptitiously or through use of an illicit surveillance device that would have rendered its publication unlawful. That conclusion was endorsed on appeal to the German Federal Constitutional Court.

Princess Caroline and her husband disagreed, claiming that the refusal by the German courts to grant an injunction against any further publication of the photos infringed the right to respect for their private life guaranteed by Article 8 of the European Convention on Human Rights.

The ECHR concluded that -

The Court observes that, in accordance with their case-law, the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest. They also examined the circumstances in which the photos had been taken.

The Court also observes that the national courts explicitly took account of the Court’s relevant case-law. Whilst the Federal Court of Justice had changed its approach following the Von Hannover judgment, the Federal Constitutional Court, for its part, had not only confirmed that approach, but also undertaken a detailed analysis of the Court’s case-law in response to the applicants’ complaints that the Federal Court of Justice had disregarded the Convention and the Court’s case-law.

In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the latter have not failed to comply with their positive obligations under Article 8 of the Convention. Accordingly, there has not been a violation of that provision.

Surveillance Studies

2012-02-08T18:35:00.004+11:00

the miasmas of theory and academic jargon are on occasion just as much a barrier to understanding the 'surveillance state' as obfuscation or omission by government agencies.

'Critical Surveillance Studies in the Information Society' by Thomas Allmer in 9(2) tripleC - Cognition, Communication, Co-operation (2011) seeks to "clarify how we can theorize and systemize economic surveillance". Allmer comments that -

Surveillance studies scholars like David Lyon stress that economic surveillance such as monitoring consumers or the workplace are central aspects of surveillance societies. The approach that is advanced in this work recognizes the importance of the role of the economy in contemporary surveillance societies. The paper at hand constructs theoretically founded typologies in order to systemize the existing literature of surveillance studies and to analyze examples of surveillance. Therefore, it mainly is a theoretical approach combined with illustrative examples. This contribution contains a systematic discussion of the state of the art of surveillance and clarifies how different notions treat economic aspects of surveillance. In this work it is argued that the existing literature is insufficient for studying economic surveillance. In contrast, a typology of surveillance in the modern economy, which is based on foundations of a political economy approach, allows providing a systematic analysis of economic surveillance on the basis of current developments on the Internet. Finally, some political recommendations are drawn in order to overcome economic surveillance. This contribution can be fruitful for scholars who want to undertake a systematic analysis of surveillance in the modern economy and who want to study the field of surveillance critically.

Allmer's formula - an algrebra of surveillance - is a hoot.

'Being Watched Watching Watchers Watch: Determining the Digitized Future While Profitably Modulating Preemption (at the Airport)' by Matthew Tiessen in 9(1/2) Surveillance & Society (2011) is similarly inward looking, with the requisite genuflections to the guru du jour. Tiessen comments that -

Gilles Deleuze once wrote in “Postscript on the Societies of Control” (1992) that in the future (our present) our societies would be controlled or “disciplined” using subtly unobtrusive and strategically applied forms of “modulation.” That is, the rigid physical enclosures of Foucault’s disciplinary society would inevitably yield to more flexible, immaterial, and imperceptible forms of modulation that continually respond and adapt to life’s unpredictability. In this paper I describe how the use of naked body scanners at today’s airport is a most suitable expression of this dematerialized form of discipline, seeming at the same moment to both threaten and protect privacy, to be both non-intrusive and invasive, to both prepare for and determine seemingly unknowable but inevitable futures.

The flying public, meanwhile, is caught in the confusing middle, not knowing what to believe. They find themselves trapped in an undefined surveillance grid that both threatens and protects their freedoms. Will the scanners see through clothing and catch underwear-bombs, or won’t they? Will security agents scan, save, and distribute their naked images or won’t they? The public is left with questions rather than answers. This whole (visual) apparatus which was designed to create clarity and transparency seems opaque.

I suggest, then, that the opacity both of the issues at stake as well as of the scanned images of our naked bodies, confounds our categories and challenges long taken for granted social conventions about, for example, habeas corpus, privacy, security, the present, the future, potentiality, etc. Appearances, it seems, are still deceiving – even if what’s being made to appear are high-resolution scans of our naked bodies.

Monkey

2012-02-07T17:46:00.002+11:00

I've been rereading 'A note on the facticity of animal trials in early modern Britain; or, the curious prosecution of farmer Carter’s dog for murder' by Piers Beirne in Crime, Law and Social Change: An Interdisciplinary Journal (2011) after being reminded by a colleague of the 'Hartlepool Monkey' case.

Beirne states that

For a century or so there has been a lively debate on the meaning of animal trials in early modern and medieval Europe. One unresolved issue in this debate is the geographical and jurisdictional incidence of animal trials, including their facticity in Britain. This essay explores some neglected evidence in this regard, namely, three British animal trials identified in E.P. Evans’ (1906/1987) authoritative text The Criminal Prosecution and Capital Punishment of Animals.

From the imposition of Norman law in the late eleventh century and onwards, the significance of nonhuman animals to human social relationships is routinely documented in Britain in official state papers, judicial records and law books. From these it is clear that nonhuman animals — henceforth, “animals” — were used and abused by humans in the course of numerous aspects of British state formation including, for example, military practices, transport and the introduction of horse-powered postal and espionage systems. Animals’ importance is confirmed, too — ironically woven together with their sinews and clad in their skins for the eyes of posterity — as state-sanctioned manuals and regulations associated with the cultivation of wished-for husbandry methods, the regulation of so-called game, vermin and animal waste products, and the development of commodity markets in cattle, fish and woollens. On the smaller stage of everyday life, if often with no less drama, animals’ ubiquitous presence in humans’ social life is reflected in official records of interpersonal disputes to do with fences, wills, contracts and an emergent law of private wrongs.

He goes on to comment that -

a strong caution must be issued, namely, that the question of whether or not animal trials existed in Britain cannot be resolved at a purely empirical level. This is so not least because any accounting requires proper conceptual identification of the basic characteristics of animal trials. Whether there were precisely 191 animals trials in medieval and early modern Europe — as portrayed in Evans’ list, with one of this number in Scotland and two in England — or 91 or 1001, depends to a crucial extent on how a trial is defined. Do the characteristics of these trials lie in some Weberian-like construct whose legal thought can be categorized as formal and rational and whose institutions are staffed and enforced by a professional cadre of judges, lawyers, bailiffs and gaolers?

Instead, might trials also consist in institutions of conflict resolution that are less formal and more ad hoc and impromptu? In this respect, consider, for a moment, a legend in the old fishing town of Hartlepool, County Durham, about some local fishermen who had hanged a monkey. During the Napoleonic Wars (1799–1815), at a time when many coastal dwellers feared a naval-led invasion from across the ‘English’ Channel, a French ship was apparently wrecked off Hartlepool in a violent storm. The ship sank and, looking through the wreckage, Hartlepool fishermen came across the ship’s sole and very wet survivor — a pet monkey dressed in a military-style uniform At a special trial held on the beach the fishermen questioned and perhaps tortured the monkey, mindful that the animal might be a French spy. The monkey was duly found guilty of espionage, sentenced to death by hanging, and to that end a makeshift gallows was summarily erected from a ship’s mainmast. (The Hartlepool legend perhaps has some credibility because, according to the Act Concerning Wrecks of the Sea, 1275, all ships and goods forced on shore were not to be considered wreckage if “a Man a Dog or a Cat escape quick out of the Ship” — in such cases the contents of the ship were to pass into the possession of members of the town where the goods were found).

The monkey might, of course, have been an unfortunate cabin boy.

Football

2012-02-07T05:52:00.006+11:00

I'm watching the dawn come up at a friend's house and digesting Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34, the interlocutory order that's presumably soon to be considered by the full bench of the Federal Court. The order concerns the copyright dispute between Telstra and Optus (the dominant Australian telcos) over streaming of broadcasts of football games to a range of devices.

The NRL and AFL - representing the football clubs in the two largest football competitions - have granted Telstra the exclusive licences to communicate matches to the public via the internet and mobile devices. That licencing involves substantial revenue. Last year Optus began offering its 'TV Now' service, enabling users to record free-to-air television programs for replay on compatible devices: Apple devices, MS-based personal computers, Android devices and 3G devices. That service reflected the timeshifting for personal use provisions in the Copyright Act 1968 (Cth), under which domestic consumers are allowed to make a copy of free to air broadcasts for subsequent personal viewing (ie not on a commercial basis). The recorded content delivered by Optus under its service was held in the Optus cloud - its servers - rather than on the device used by Optus' customers. Optus's terms & conditions for consumers using TV Now specified that its customers would comply with s 111 of the Copyright Act, ie copying solely for private and domestic use.

Convergence remains a work in progress and as yet there is no full compatibility between devices such as a MS Windows personal computer and an iPhone. As a result TV Now involved multiple copies of the free to air broadcast, specific to the particular type of device, with the consumer receiving a streamed recording. In practice the Optus customer initiated 'recording' of the broadcast by through an electronic program guide. Optus then generated four unique recordings (one for each type of device) of the selected program for the personal use of the consumer. A subsequent request to access the content - ie to play the recording - resulted in Optus streaming the relevant copy to the corresponding device. Access varied: consumers with PCs, Android and 3G devices needed to wait until after the broadcast had concluded (eg the match had to finish before you could see any of the recording), whereas consumers with Apple devices could watch the action with only a short delay (within about two minutes of what was happening on the field). Consumers with any of the devices under the Optus service could view the recording within 30 days of the original broadcast.

The football leagues, claiming the service infringed their copyright in broadcasts, forecast an injunction against Optus. The telso responded with action in the Federal Court, claiming there had been unjustified threats of infringement under s 202 of the Copyright Act 1968 (Cth) regarding some live and recorded NRL and AFL matches of September and October 2011. Telstra, as exclusive licensee, was later added as a party.

Telstra and the two leagues as copyright holders alleged that Optus in making cinematograph films under s 10(1) of the Act infringed their interests in the free to air broadcasts and communicated the infringing recordings to users of its service for viewing on the consumer's devices. Optus unsurprisingly contended that it customers had made the films or copies, with those users not infringing because of the s 111 timeshifting exception (ie the provision for private and domestic recording).

Rares J of the Federal Court considered seven issues -

1. Who performed the acts involved in recording the NRL broadcasts, AFL broadcasts and AFL films ('the Copyright Works') for the operation of the TV Now service?

2. Does s 111 mean that the recording was not an infringement of copyright? If section 111(2) does not apply, is Optus liable for copyright infringement by way of authorisation?

3. When the recording was viewed, who did the acts of electronically transmitting the Copyright Works?

4. When recordings were streamed to a user, was this a communication 'to the public'?

5. Did Optus make the Copyright Works available online?

6. If the answer to 5 is 'yes', was this to the public?

7. Is the digital file comprising the NRL footage streamed to users an 'article' within the meaning of s 103 or an 'article or thing' within the meaning of s 111(3)(d) and, if so, was it distributed for the purpose of trade?

The Court's conclusion was that service did not infringe copyright in the broadcasts of the AFL and NRL games in the particular ways alleged by the rightholders.

In relation to the question of who did the recording the finding was that the consumer made each recording of a broadcast by clicking on the device's 'record' button. Rares J indicated that the consumer was solely responsible for the creation of the recording: each TV Now user decided whether to make the recording and only that user had the means of being able to view them. If the user did not click 'record', no recording would be brought into existence for subsequent play. Rares J indicated that the service was substantially similar to use of a VCR, DVR or similar device to copy a free to air television broadcast. Optus provided all the significant technology for making, keeping and playing the recording but the consumer's agency was no different to that where an individual utilised technology at home to legitimately record a broadcast.

Rares J was satisfied that recording the broadcasts was not an infringement of copyright, given s 111(1) and (2) of the Act. The evidence suggested that individual TV Now users watching a broadcast or film of a football game or television program on their mobile device or PC would only be doing so for personal pleasure or interest. In particular the Court noted that the consumers agreed with the terms and conditions of the TV Now service limiting use to a non-infringing use that complied with s 111(1). Rares J indicated that watching a broadcast 'near live' (through an Apple device) was consistent with the definition of 'private and domestic use'. It will be interesting to see whether the free to air broadcasters respond by seeking a statutory fix.

In considering whether Optus communicated the recording when the TV Now user played it the Court held that the users were responsible for any such communication by seeking to play the programs they had earlier selected for recording. That responsibility reflected the shape of the TV Now service, with the consumer determining the content of any streaming to them of a recorded program. The situation of a TV Now user clicking 'play' was "quite unlike" that of someone browsing the net who was unaware/uncertain of what content may be delivered by clicking on a link. The TV Now user had previously determined that what would be recorded; by seeking to play the recording the consumer determined that their device would display the recording just as if they had inserted a video cassette or DVD into a VCR or DVD player and pressed 'play'.

Was the communication to the public? Rares J held that no communication 'to the public' occurred. The fact that the user may be with one or more other persons, such as family members or friends, when the communication is received will not, ordinarily, convert its private and domestic nature to being that of a communication 'to the public'. When the user made the recording and when that consumer made the communication of it, no infringement occurred. The digital file streamed to the TV Now user was not an infringing 'article' or 'article or thing'.

Notices

2012-02-07T05:28:00.004+11:00

'Reversing the Privacy Paradox: An Experimental Study', presented by Victoria Groom & M. Ryan Calo at last year's US Telecommunications Policy Research Conference (TPRC 2011), represents -

a collaboration between a privacy scholar and a PhD in human-computer interaction aimed at testing the efficacy of user experience as a form of privacy notice. Notice is among the only affirmative requirements websites face with respect to privacy. Yet few consumers read or understand privacy policies. Indeed, studies show that the presence of a link labeled “privacy” leads consumers to assume that the website has specific privacy practices that may or may not actually exist.

One alternative to requiring consumers to read lengthy prose or decipher complex symbols is to influence a user’s mental model of the website directly by adjusting the user interface. Use of particular design elements influences users’ cognitive and affective perceptions of websites and can affect behaviors relevant to privacy.

We intend to present the results of an ongoing, experimental study designed to determine how strategies of “visceral notice” compare to traditional notice. Drawing on a rich literature in human-computer interaction, social psychology, and cognitive psychology, we examine whether website design features can instill in people a more accurate understanding of information practice than a privacy policy.

The experimental study features a between-participants design manipulating a single factor — design feature — with eight unique conditions. The eight design features include two instances of traditional notice: a link to a typical privacy policy, and a link to privacy policy featuring simplified language and an intuitive presentation of information. Visceral notice features were inspired by strategies identified in the social psychology literature to affect attitudes and behaviors associated with privacy. These strategies include self-awareness, informality, and anthropomorphism. A control condition with no privacy policy or design feature will also be evaluated.

Study participants will be assigned to use one of eight websites, each with a distinct design feature. Approximately 120 participants will be recruited online and complete the study at their personal computer, promoting external validity. Participants will be told they are evaluating a search engine, and must use the website’s search engine to find answers to a quiz.

Our study design enables the collection of both behavioral data and users’ cognitive and attitudinal evaluations of the site. We will measure user navigation behavior, the disclosure of personal data, such as home town, and the disclosure of incriminating personal experiences, such as downloading pirated music. Using a post-task questionnaire, we will determine participants’ mental models of the website’s data usage and policies, as well as participants’ evaluations of the website’s likely use of their personal information.

These measures will enable us to compare the effects of each of the eight design features on perceptions of privacy. We will compare traditional notice strategies with visceral notice strategies. While traditional notice is the current standard under the law, we anticipate visceral notice strategies will prove superior in eliciting accurate perceptions of the website’s information policies, and will generate less disclosive behavior. We will discuss the implications of the study’s results for both law and design.

They conclude that -

The research presented highlights the weaknesses of explicit notice. It is not surprising that current legal regulations promote reliance on explicit notice. Explicit notice is relatively easy to enforce because web providers must simply post information to be in compliance. Yet legal requirements of notice do not require any impact on user behavior or attitude - and, indeed, privacy policies generally achieve neither.

Visceral notice strategies, in contrast, provably affect privacy-related behaviors such as disclosure and concern.

Clearly more study is warranted, but visceral notice strategies may prove a useful replacement for or, more likely, supplement to explicit notice in many settings.

Radicalisation

2012-02-06T18:16:00.010+11:00

The UK House of Commons Home Affairs Committee has published a report on The Roots of Violent Radicalisation, warning about right-wing extremism and the significance of the net "as one of the most significant vehicles for promoting violent radicalism - more so than prisons, universities or places of worship". Given hyperbole about the net the report also notes that "direct, personal contact with radicals is in many cases also a significant factor", although commenting that witnesses told the Committee the internet plays "a part in most, if not all, cases of violent radicalisation".

The report is essentially an expression of conventional wisdom. It notes that although the UK government has statutory powers under the Terrorism Act 2006 allowing law enforcement agencies to order the removal of unlawful material from the internet, the Committee recommends that ISPs should be more active in monitoring hosted material. The expectation is that agencies will provide the ISPs with appropriate guidance, advice and support. The Government should also work with ISPs to develop a code of practice for removal of material that promotes violent extremism and provide more support to civil society groups that want to challenge on-line extremist material.

The Committee emphasises -

• the need for better liaison and information-sharing between prison authorities, the police, the UK Border Agency and other relevant authorities following the release of prisoners who have been convicted of terrorist offences or who are otherwise considered to be at risk of violent radicalisation.
• the importance of reviewing the list of proscribed organisations - the prospect of de-proscription could in certain circumstances create an incentive for organisations to renounce their support for violence.
• the threat from the far-right, "which consists mostly of solitary, disaffected individuals rather than organised terrorist units".

The report was promoted by the Committee chair with the statement that -

The July 7th bombings in London, carried out by four men from West Yorkshire, were a powerful demonstration of the devastating and far-reaching impact of home-grown radicalisation.

We remain concerned by the growing support for non-violent extremism and more extreme and violent forms of far-right ideology.

The conviction last week of four men from London and Cardiff radicalised over the internet, for a plot to bomb the London Stock Exchange and launch a Mumbai-style atrocity on the streets of London, shows that we cannot let our vigilance slip. More resources need to be directed to these threats and to preventing radicalisation through the internet and in private spaces. These are the fertile breeding grounds for terrorism.

We do not believe universities are “complacent to the risks” of radicalisation as has been suggested. Those engaged in public life must ensure that the language they use reflects the same tone.

Individuals from a wide variety of backgrounds are vulnerable to radicalisation. There is no typical profile or pathway to becoming radicalised. It is a policy of engagement, not alienation that will successfully prevent radicalisation.

In discussing universities the report states that -

In the Prevent Review, the Government drew a link between university education and terrorist activity, but our evidence suggests that there may be a much less direct link than was thought in the past, and a recent Home Office document suggests that individuals involved in violent extremism are little different to others around them in terms of their education. The Prevent Review says this:
More than 30% of people convicted for Al Qa'ida-associated terrorist offences in the UK between 1999 and 2009 are known to have attended university or a higher education institution. Another 15% studied or achieved a vocational or further education qualification. About 10% of the sample were students at the time when they were charged or the incident for which they were convicted took place. These statistics roughly correspond to classified data about the educational backgrounds of those who have engaged recently in terrorist-related activity in this country: a significant proportion has attended further or higher education.

We believe there is unambiguous evidence to indicate that some extremist organisations, notably Hizb-ut-Tahrir, target specific universities and colleges (notably those with a large number of Muslim students) with the objective of radicalising and recruiting students.
The Henry Jackson Society , whose staff carried out some of the analysis on which this was based, highlighted several specific cases:
• at least four individuals involved in acts of terrorism in the UK were senior members of a university Islamic Society (Kafeel Ahmed, Waseem Mughal, Yassin Nassari and Waheed Zaman);
• Omar Sharif, a suicide bomber in Tel Aviv in 2003, was radicalised during his first year at King's College London after he attended Hizb-ut-Tahrir meetings on campus;
• Anthony Garcia, convicted for his role in the 2004 'fertiliser' bomb plot, attended religious talks in the late 1990s at the University of East London Islamic Society; and
• Mohammed Naveed Bhatti, convicted for his role in Dhiren Barot's 2004 'dirty bomb' plot, was studying at Brunel University and met Barot in the university's prayer room.
However, Universities UK expressed concern that:
Simplistic linkages have been made between violent radicalisation and the fact an individual has attended university without acknowledgement that the radicalisation process is far more nuanced and difficult to predict ...

What is not taken into account is that the proportion of young men now participating in higher education stands at 41%, a fact that indicates that attending university may actually reduce the risk of vulnerability to violent radicalisation.
A Home Office Rapid Evidence Assessment of open source empirical studies published more recently found that individuals involved in Islamist violence "tend to be educated to a similar level ... as the broader population in which they live".

When asked whether attending university meant an individual was more at risk of extremism, Professor Geoff Petts, representing Universities UK replied that universities "acknowledge the threat, but we do not see evidence to support that". Nabil Ahmed, of the Federation of Student Islamic Societies, added:
There are various myths surrounding the issue of campus extremism. There is far too much sensationalism and insufficient evidence or expertise in this wider discussion ... There is a notion that campuses are hotbeds of extremism, which is unfounded in the expertise and experience of the sector and the experience of students. There is a notion that, just because these people who have gone on to become terrorists went to university, in some way those two things are connected—the evidence suggests not. There was an independent inquiry, for example, into the case of Umar Farouk Abdulmutallab, who went to UCL, which showed that he was not actually radicalised at university.
Professor Petts argued that the evidence that extremist groups were actively targeting universities was "circumstantial" and Nabil Ahmed said that he had not come across any instances of campus preaching that would be in breach of British law. Other students we met through SOAS, including practicing Muslims, were adamant that they had not encountered anyone on campus who supported terrorism.

Hannah Stuart of the Henry Jackson Society said that she understood why the Federation of Students Islamic Societies felt the need to defend Muslim students against the media focus on them, but pointed out that Umar Farouk Abdulmutallab was a former president of his University's Islamic Society, who had been convicted in the US in October 2011 for a failed bomb attack on an aircraft. She said:

I think it is not just about the admittedly very small number of Muslim students who have gone on to commit terrorist acts but it is about the atmosphere that is created sometimes on campus by Islamic societies or other organisations who consistently invite a certain type of speaker that does not reflect the plurality of Islam in this country.

Charles Farr claimed that the Prevent Review had not stated that terrorists themselves were active recruiters in universities, but rather that the Government was concerned about people "who are speaking regularly against core UK values and whose ideology incidentally is also shared by terrorist organisations" and the fact that this appeared to be going unchallenged. Other witnesses gave examples of such individuals who were allowed to speak on campus, for example Raed Salah, who is banned from entering the UK for his anti-semitic views but was admitted to the country by mistake in June 2011, and Al Qa'ida supporter Anwar Al-Awlaki who, we were told, addressed a UK university by video link.

Professor Neumann undertook a study in 2007 for the European Commission which came to the conclusion that:
Like prisons or like the internet, universities were places of vulnerability ... because you get people of a certain age, often away from home for the first time, often feeling quite lost and often experiencing a sort of crisis of identify and so on. That makes it easy for extremist groups to pick them up.

In discussing the internet and radicalisation the report commented that -

Many of our witnesses cited the internet as the main forum for radicalisation. Sir Norman Bettison, the Association of Chief Police Officers' lead for Prevent, told us that "the internet does seem to feature in most, if not all, of the routes of radicalisation". It was regarded as particularly dangerous as it was now one of the few unregulated spaces where radicalisation is able to take place. According to the Home Office, the internet "plays a role in terms of sustaining and reinforcing terrorist ideological messages and enabling individuals to find and communicate with like-minded individuals and groups". This seemed to be contradicted by more recent Home Office-commissioned research, which concluded that the internet "does not appear to play a significant role in Al Qa'ida-influenced radicalisation". Even those witnesses who attributed a significant role to the internet tended to support that report's conclusion that some element of face-to-face contact was generally essential to radicalisation taking place, including with regards to the extreme far right, but by definition this does not deal with the issue of self radicalisation which by its very nature takes place in isolation and concerns have been expressed about the impact of 'Sheikh Google' on individuals who may be vulnerable, but have not been identified as starting on a journey of self radicalisation ...

The Home Office launched a Counter-Terrorism Internet Referral Unit in 2010 to investigate internet-based content which might be illegal under UK law and take appropriate action against it, although Sir Norman Bettison described it as "a pebble thrown into the World Wide Web ocean". It had received 2,025 referrals thus far, about 10% of which led to websites or web pages being taken down. Sir Norman believed that the referral site needed greater publicity which would in turn require greater capacity: at the time of our inquiry it consisted of around a dozen officers. Charles Farr told us:
Every internet service provider (ISP) has acceptable behaviour codes for use on their systems. So having that conversation, even where the website is operating in a broadly legal space, is not unusual for them. Governments all around the world have those conversations with ISPs every day, and the public will very often make their own representations to ISPs about particularly unacceptable content that may still be legal on websites around the world.
He later clarified that Governments would only make representations if websites were breaching the law.

Under the Terrorism Act 2006, if a law enforcement agency approached a hosting provider in respect of the Act's provisions regarding liability for hosting terrorist content, they would be compelled to take it down and if an internet service provider failed to remove the content upon receipt of a valid notice under section 3 of the Act, it would be committing an offence.[101] The Internet Service Providers' Association argued that:
When section 3 notices of the Act are invoked to remove material then there is no issue; when they're not invoked it becomes more problematic. As in other areas, ISPs are not best placed to determine what constitutes violent extremism and where the line should be drawn. This is particularly true of a sensitive area like radicalisation, with differing views on what may constitute violent extremist.
Professor Neumann, who co-authored Countering Online Radicalisation for the International Center for Radicalisation in 2009, told us that the Government had implemented a number of their recommendations:
One of our recommendations was to bring strategic prosecutions—not necessarily taking down websites but to prosecute the people who are producing the content for the websites. That has happened, to some extent. There is also a mechanism that the Government have introduced for deciding what kind of content should be taken down and that has also been done. Most importantly, we believe that there is no technical solution to this problem and that this problem needs to be addressed differently, and the Government have followed us there.
However, he considered that more remained to be done:
The most profitable way for any Government to address this problem is to bring political pressure, in some cases, to bear on internet providers-big internet companies who are hosting extremist videos in places like YouTube, Google, Facebook ... They do that to some extent but they could do it more consistently. I believe that, for example, all the measures that have been taken by YouTube to clean up its act have always been in response to political pressure, both from the United States and the United Kingdom ...

This is not about freedom of speech. All these websites, whether it is YouTube or Facebook, have their own rules. They have acceptable behaviours. They all say, "We are against hate speech" and they are very effective in removing sexual content or copyright content. Why can they not be equally effective at removing, for example, extremist Islamist or extremist right-wing content? Primarily, I believe it is because it is not in their commercial interest and that is why it is so important that politicians and Governments bring political pressure to bear.
The Internet Service Providers' Association argued that it would be "impractical" for ISPs to be expected to proactively monitor material, given the sheer volume of content online, as well as undesirable, given the implications for freedom of expression.

Assistant Chief Constable John Wright, the National Prevent Coordinator for the police, added that there was a need for greater international cooperation, given that most of the websites are hosted outside the UK's jurisdiction. The Internet Service Providers' Association confirmed that if material was hosted outside of the UK, a UK intermediary would be unable to remove it. They agreed that "to improve this, greater international cooperation could be explored, although what constitutes violent extremist under the law in one country is not necessarily the same elsewhere."

Given the impossibility of comprehensively controlling the internet, it is necessary to employ other methods to tackle the issue. Alyas Karmani argued:
If you are thinking about banning the internet, you have just got to provide a counter-narrative. That is what we do at STREET, so what we do is we identify their narrative and then you have to put an equally effective counter-narrative, because if you ban one site, 10 others emerge, and the sophistication of various ideologues in terms of promoting on the internet and through social media is highly proficient.
The Government has been attempting to counter terrorist ideology, this work being led by the Research, Information and Communications Unit at the Home Office; however, Charles Farr admitted that: "Getting that message across ... to a group of people who would rarely read the media that we would normally work with, is very challenging". The Government's focus will be on "increasing the confidence of civil society activists to challenge online extremist material effectively and to provide credible alternatives."

Jamie Bartlett was also concerned that children were not developing the skills that would enable them to sift critically material on the internet:
A lot of the information that looks very trustworthy and accurate—and people tend to go on aesthetics of websites—is absolutely bogus but we are not taught this in schools because it has happened so quickly. People are not being taught in school how to critically evaluate internet-based content and I think that is one of the biggest weaknesses that we face at the moment.
The Counter-Terrorism Internet Referral Unit does limited but valuable work in challenging internet service providers to remove violent extremist material where it contravenes the law. We suggest that the Government work with internet service providers in the UK to develop a Code of Conduct committing them to removing violent extremist material, as defined for the purposes of section 3 of the Terrorism Act 2006. Many relevant websites are hosted abroad: the Government should also therefore strive towards greater international cooperation to tackle this issue.

Given the impossibility of completely ridding the internet of violent extremist material, it is important to support defences against it. We support the Government's approach to empowering civil society groups to counter extremist ideology online. The whole area of communications technology and social networking is complex and extremely fast-moving. A form of interaction that is commonly used by thousands or even millions of people at one point in time may only have been developed a matter of months or even weeks earlier. It follows that legislation and regulation struggle to keep up and can provide a blunt instrument at best. Leaders in fields such as education, the law and Parliament also need to be involved. Evidence taken by this committee in regard to the riots in London last August showed that some police forces have identified social networks as providing both challenges and opportunities, with the message from one chief constable that the police recognised that 'we need to be engaged'. In respect of terrorism, as in respect of organised crime, the Government should seek to build on the partnership approach to prevention that has proved successful in the field of child abuse and child protection.

Regulatory realignment

2012-02-05T16:03:00.003+11:00

The TGA, the Australian counterpart to the US FDA and other regulators of pharmaceuticals and medical devices, has belatedly announced that it will do further testing of breast implants.

Previous posts in this blog have noted the TGA's bureaucratic incapacity, with suggestions that it lacks the will and/or wherewithal to proactively address substantive concerns regarding the safety of devices (eg breast implants, artificial hip joints, stents) , alternative medications such as Sensaslim (associated with a notorious scammer) and the production of mainstream pharmaceuticals. The TGA's initial response to revelations about injury in French-manufactured implants was dismissive. Not our problem. Not here. The organisation is now shifting ground, with the ABC reporting that

start a new batch of tests on breast implants that were the subject of a national safety recall almost two years ago.

In April 2010, the TGA recalled PIP breast implants after French authorities discovered that the manufacturer had been caught substituting an unauthorised silicone gel in the breast prosthesis.

The gel had not been tested for safety in humans.

The renewed activity by the watchdog comes amid growing concern about the health risk the PIP implants pose to women.

Late last year the French government recommended 30,000 women with the implants have them removed, while British government says it will remove the implants if women want them removed. ...

In June 2010 the TGA conducted a range of laboratory tests on eight PIP samples they had obtained from Medical Vision Australia.

The samples tested had expiry dates over just three different years, which indicates the testing was not extensive. ...

On January 4 the TGA said the reported rupture rate of PIP implants was just 0.4 per cent

Let's not celebrate too quickly.

the TGA's assurances over the rupture rate have come under fire from a former TGA adviser, Professor John McNeil from the School of Public Health at Monash University.

Professor McNeil says the TGA should not be reporting rates of rupture based on such flimsy data.

He says the TGA was relying on a spontaneous system of reporting which was not mandatory and therefore an inadequate tool with which to calculate a rupture rate.

Asked if the statement about a 0.4 per cent rupture rate provided false sense of reassurance for women, Professor McNeil said, "Yes, but it's a false reassurance".

In recent days, the TGA has played down its pronouncements on the rupture rate, preferring to emphasise confirmed ruptures.

The TGA's acting national manager, Dr Brian Richards, says the TGA is not moving away from its statements, but the shift is to provide better information to women and doctors.

In the meantime, Perth plastic surgeon Dr Timothy Cooper says he has conducted a study of all his patients whom he implanted PIP breast prosthesis and discovered a rupture rate of 20 per cent. ...

In early 2011, the French also discovered that the silicone in the implants failed intradermal irritation tests in rats, fuelling fears that the implants were the cause of inflammation in women's tissue that doctors and women were reporting.

The TGA did not mention that the PIP implants had failed this irritation test until last month, a year after the test results were published by French authorities.

The TGA says it is now in the process of conducting its own intradermal irritation tests in the PIP implants and the results will be made public soon.

Time to ask some hard questions about the TGA's operation and its history of misplaced reassurance.

Names

2012-02-05T14:38:00.003+11:00

'Naming, Identity, and Trademark Law' by Laura Heymann in 86(2) Indiana Law Journal (2011) 382-444 comments that -

As the process of creation in the age of digital media becomes more fluid, one pervasive theme has been the desire for attribution: from the creator’s perspective, to receive credit for what one does (and to have credit not falsely attributed) and from the audience’s perspective, to understand the source of material with which one engages. But our norms of attribution reflect some inconsistencies in defining the relationship among name, identity, and authenticity. A blog post by a writer identified only by a pseudonym may prove to be very influential in the court of public opinion, while the use of anonymous sources by established journalists may be viewed as unethical. Supreme Court jurisprudence both touts the benefits of anonymity and decries it as a barrier to the free flow of information. In the commercial realm, consumers file suit when the memoir they have purchased turns out to be largely fiction but seem far less concerned when a company emerges from a public relations disaster with a new name, leaving its old one to the dustbin of history.

This conflicted response may be further complicated by the fact that we think about names in a very personal way, as a core part of our identity. But names are not, strictly speaking, our identity - they are merely symbols of our identity that denote a particular set of characteristics at a particular time. Indeed, as naming theory tells us, the denotative function of a name is what makes a word a name at all. It is for this reason that an individual or a corporation can adopt a new name without being accused of fraud and why a company can sell products under more than one trademark.

Naming law - whether the law of personal names or the law of trademarks - tends to reflect these principles of naming theory. In large part, the law focuses on a name or mark’s denotative effect, interfering only when confusion or changes to the essential nature of the referent renders the name’s identifying function uncertain. And, indeed, in the instances when the law is inconsistent with naming theory - attempting to regulate the connotations associated with names rather than their denotative function - we might question whether it is achieving an appropriate goal. Confining naming law to this important but limited function achieves a balance between respecting the autonomy of individuals and entities to choose the names with which they represent themselves to the public and ensuring that such choices do not significantly frustrate the flow of information that allows the public to engage in decision making

Patents

2012-02-04T11:45:00.003+11:00

'The Natural Phenomena Exclusion: Reflections on Substance and Method in the Crowded House of European Patent Law' by Justine Pila in Intellectual Property at the Edge: The Contested Contours of IP (Cambridge: Cambridge University Press 2012) edited by Dreyfuss & Ginsburg considers the 'natural phenomenon' exclusion in patent law, ie patent protection is provided for inventions rather than for discovery of something that is naturally occurring.

Pila indicates that -

This paper responds to a chapter by Professor Ted Sichelman in which he criticizes the conceptual apparatus developed by the US courts for applying the natural phenomena exclusion from US patentability on the ground that it fails “to promote the progress of science and useful arts” as the US constitutional clause granting federal patent authority requires. The focus of the response is the problem which Sichelman’s analysis underlines for European law concerning the appropriate method for establishing the limits of European patentability. In the argument made, European patent law is a crowded house in which “substantive convergence” around principles is inevitable but unsatisfactory: it will generally be the product of complex institutional dynamics as much as principled policy making, and in the absence of unified methodology and values will fail to ensure coherence or consistency within the European patent system. ...

The foundational principles of European patentability are contained in the Convention on the Unification of Certain Points of Substantive Law on Patents for Inventions (S.P.C.), on which the Convention on the Grant of European Patents (E.P.C.) is also based. Article 1 S.P.C. establishes the obligation of Contracting States to grant patents “for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.” Article 2 S.P.C. creates exceptions to this for “inventions the publication or exploitation of which would be contrary to ordre public or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by a law or regulation”, and “plant or animal varieties or essentially biological processes for the production of plants or animals” excluding “micro-biological processes and the products thereof”. Both provisions have an E.P.C. counterpart – Article 1 S.P.C. in Article 52(1) E.P.C., and Article 2 S.P.C. in Article 53(a) and (b) – the only differences of current importance being that Article 52(2) E.P.C. defines an “invention” within the meaning of Article 52(1) to exclude “discoveries ... as such” (among other things), and that Article 53(a) E.P.C. clarifies that an invention is not to be excluded from patentability on order public or morality grounds “merely because it is prohibited by law or regulation in some or all of the Contracting States” (emphasis added).

European patent law is an increasingly crowded house with no clearly defined boundaries and no clear hierarchy of legal norms. As mentioned above, its foundational legislative instruments are the S.P.C. and E.P.C., both of which are the products of intergovernmental agreements negotiated over a period of more than 20 years by the Council of Europe, the European Economic Community and two specially-convened diplomatic conferences. The E.P.C. is of particular importance due to its creation of a system for the grant of European patents and the E.P.O. to administer it. It was concluded in 1973 and later revised several times, including to incorporate the Biotech Directive. Consistent with the nature of a “European patent” as a bundle of national (E.P.C. Member State) patents, it is implemented and supplemented by those States’ national laws, at least some of which must be interpreted consistently with the Boards’ interpretation of the E.P.C. By its incorporation of the Biotech Directive, it is also the subject of EU jurisprudence, including decisions of the C.J.E.U., which take constitutional priority over decisions of national courts and the E.P.O. in all EU Member States, but which are not binding on the E.P.O. as a non-EU entity. Finally, and by its concern with property and other “fundamental rights”, it is the subject of decisions of the European Court of Human Rights, which, while not formally binding, are recognized as an important source of human rights jurisprudence, and the starting point for interpretation of the Charter.

Marketing

2012-02-03T18:24:00.004+11:00

From the deliciously named McCann Truth Central - I do love the chutzpah of advertising agencies - comes The Truth About Privacy -

Four forces are shaping the new privacy norms. Technology’s ascendance, omnipresent celebrities, the end of embarrassment,and the role of social networking in civic life are all pushing us into a brave new world of sharing.

Technology’s ascendance:
Asked for their spontaneous associations with the word ‘privacy’ in our groups, the first words that came to mind for our respondents were all related to technology. Technology has a created a more fluid and borderless world. As one younger person from the US said, “You put your info in a little lake, and then it goes into a river and then it goes into the ocean.” Unlike the real world it’s harder and harder to see where the ‘edges’ are which makes it harder to give consumers a sense of control over their own data.

Omnipresent celebrities:
Celebrities have raised the bar for what is and isn’t acceptable to share in public. The name Kim Kardashian seems more likely associated with a focus group about fragrances or luxury products. But in our groups, the name was associated with changing privacy norms. Celebrities like the Kardashians have capitalized on Twitter and other social media trends, sharing their lives more than ever before with their fans. Now anyone can become a celebrity if they just tweet enough!

The end of embarrassment:
With so much being shared, it’s much harder to actually be embarrassed about something these days. Many in our groups wondered why politicians or stars caught making risqué tweets or texts were often trying to cover their actions. As one person noted. “Everything is hanging out… so why should I be embarrassed about, you know,anything?” How many of us have overheard (or had) a private conversation in public on a cell phone?

The role of social networking in civic life:

The most overwhelmingly positive aspect of this networked world is the increased sense of connection associated with online sharing. Social networks have become the new place to gossip, to have a rant, and to get important news about your friends, family and community. While for some a shift towards a digital village may be alienating, for many others it’s brought them closer to friends and family who live far away.For many, including older consumers, it has brought a renewed sense of connection with civic life.

Presumably, having become a celebrity simply by twittering - perhaps the aim of one of my more frenetic colleagues - one can be more connected with civil society.

The report goes on to claim that -

All of these factors ensure that there is less and less of a clear separation between public and private. More and more we seem to be asking ourselves: What is appropriate to share and what should we hold close? Further, what is it appropriate to search about others? Our research suggests that searching and snooping is becoming more commonplace. Lately it’s actually become quite normal for us to find out excessive amounts of information about a casual acquaintance or someone we hardly know, simply because that information is out there. While only 1 in 10 admit to the old-fashioned snooping of reading someone’s diary, many more have used technology to learn about the lives of others. 40% of people say they’ve looked at the online photographs of people they hardly know. As a young respondent from Australia commented,“I’ve stalked people on Facebook, everyone does.” In a world where more and more people are searching for information about us online, we need to devote more time to managing our online brand (or multiple online brands). People describe needing to separate the ‘virtuous me’ that is suitable for family and employers (no drunken party pics) from the ‘popular me’ which we must project to friends and social acquaintances that we seek to impress. Some even resort to anonymity to protect their identity from unwelcome snooping. As online identity and privacy becomes a more complex business and at the same time more brands seek to interact with their customers online, it begs an important question: Which version of your customer are you interacting with today?

Given that surveillance is 'natural' and 'inevitable' marketers apparently should be unabashed. McCann offers 'the privacy equation' -

Implicit in the varying importance of different types of data is a marketplace where data is a valuable good, to be traded and monetized. We think of this as the privacy equation.

A big part of the privacy equation is having active tools to maintain control of your side of the equation, your personal privacy online. Globally we see that people are becoming accustomed to taking protective measures. 73% have taken the basic step of securing anti-virus software for their computer. Nearly half (47%) are being selective about who they add to online social networks, only ‘friending’ their real life friends and acquaintances. There seems to be a debate among generations about who is better at managing their privacy. The older group believes that the brave new world of sharing may someday catch young people off guard.

But young people are taking more active measures to protect themselves: 84% of those under 30 with a social networking profile have changed privacy settings, while only 58% of those over 40 have done so. One trend we noticed is that the older generations are looking to one another – to their community – to manage their technology. They rely on anecdotes and warnings from friends and family to help them secure themselves in the face of new and varied threats. Young people, on the other hand, tend to use technology to manage their friends and community.

That supposedly means -

For all types of company and brands, there are four key dynamics to privacy when it comes to maintaining a proactive,productive and share-worthy relationship with consumers: Control, choice, commitment and compensation are the key to assurance and trust.

People want a commitment from companies that they won’t pass personal data [ie their telephone number or email address] on to third parties. 55% (56% US) of people select this as one of their top 3 most important criteria when deciding to trust a brand. They also want a choice about how their data will be used. 51% (57% US) say it is important to know exactly how their data is going to be used.

When it comes to control, people want to be in command of which pieces of data they share. 49%(55% US) think it is very important to have this control, reflecting their sensitivity level for different types of data. Consumers also want compensation. They want a reason to share data, an understanding of how they will benefit. 31% (30% in US) say this is a top criterion for sharing data

All in all a fatuous and on occasion disingenuous report with little original data and no substantive original insights.

Diversions

2012-02-03T18:08:00.003+11:00

'The use of police cautions and youth justice conferences in NSW in 2010' [PDF] by Elizabeth Moore of the NSW Bureau of Crime Statistics & Research (BOCSAR) assesses whether the philosophy of the Young Offenders Act 1997 (NSW) is "being adhered to in respect to the nature of offences being diverted and the use of the hierarchical approach to sanctioning". It describes the use of police cautions, youth justice conferences (YJCs) and proven Children’s Court appearances among a cohort of young people in NSW in 2010, with data drawn from the NSW Re-offending Database (ROD).

The Act applies to young people in NSW aged between 10 and 17 years at the time of the offence. A number of offences are excluded from the Act and must result in a court appearance. These include most sexual offences, offences that result in the death of any person, serious drug offences and traffic offences (if the offender is old enough to hold a driver’s licence).

Whether the offence can be dealt with through the YOA is only one determining factor in selecting the appropriate level of intervention. A number of other factors influence the decision, including the age of the young person at the time of the offence, the seriousness of the offence (taking into account the harm to the victim and the level of violence involved), prior offending history, and whether the young person makes an admission of guilt (Clancey, Doran and Maloney, 2005). If an admission of guilt is not made, offences cannot be processed by way of a police caution or a YJC. The legislation specifies a limit of three police cautions per individual. No such limits are prescribed for YJCs. It is, however, generally understood that a young person would not be offered multiple YJCs if they continued to re-offend (Clancey, Doran and Maloney, 2005).

Despite the fact that there is a great deal of public interest in the Act, little is known regarding the proportion of young people receiving multiple police cautions and YJCs.

Moore indicates that -

Overall, the results were in the expected direction when the hierarchy of sanctions under the Act are considered (ie from police caution to YJC to proven court appearance). Very few young people in this cohort received more than three police cautions and/or YJCs. Additionally, no young person was given a YJC for homicide related offences that are excluded under the Act. Juvenile offenders, however, were much more likely to receive a caution or be referred to court than to be referred to a Youth Justice Conference.

The philosophy of the Act has largely been adhered to, at least insofar as the gradation of sanctions and the types of offences being diverted are concerned.

Moore's separate paper 'Youth Justice Conferences versus Children’s Court: a comparison of time to finalisation' [PDF] compares police-referred youth justice conferences (YJCs), court referred YJCs and Children’s Court matters on the time to finalisation, and assesses the contribution of index offence- and/or offender-related characteristics as potential confounders.

The study utilised data from the NSW Re-Offending Database (ROD) for three cohorts of young people: those with a court-referred YJC held in 2010 (C-YJC), those with a police-referred YJC held in 2010 (P-YJC), and those with a proven Children’s Court (CC) appearance finalised in 2010. Negative binomial regression models were fitted to determine index offence- and offender-related characteristics associated with time to finalisation.

The C-YJC cohort had a significantly longer time to finalisation compared to the CC cohort and the P-YJC cohort, even after controlling for confounders. In addition, the CC cohort had a significantly longer time to finalisation compared to the P-YJC cohort. Older age, being Indigenous, having a case dealt with in a Metropolitan region, and having more concurrent index offences remained significant predictors of an increase in number of days to finalisation in the adjusted model.

The findings suggest that police should be encouraged to refer eligible matters to a YJC given the time-related efficiency identified via this pathway. The findings suggest it may be appropriate to consider further revising the legislated time-frames as there may be legitimate reasons for why delays occur.

HK Personality

2012-02-01T09:05:00.003+11:00

'No Personality Rights for Pop Stars in Hong Kong?' by Peter Yu, on SSRN and as a chapter in The New Law of Brands and Reputation in the Asia Pacific Rim (Cambridge: Cambridge University Press 2012) edited by Andrew Kenyon, Ng-Loy Wee Loon & Megan Richardson, notes that -

Referred to as 'the Pearl of the Orient' for generations, Hong Kong is a glamorous city known for its lavish lifestyle and the rich and famous. Its entertainment products, in particular movies, television programs, and music, are highly popular in not only Asia, but also different parts of the world. Yet, the region does not offer strong protection of personality rights to celebrities. This development provides an interesting contrast to developments in the United States, where Hollywood actors receive very strong protection of their name, likeness, image, voice, or other personal attributes. The lack of protection also contrasts strongly with that of China, which offers in its civil code a right of portrait.

This book chapter begins by tracing the American origin of the right of publicity as an independent cause of action. It underscores the difference between this discreet right and the type of protection available in Commonwealth jurisdictions. The chapter then discusses the leading case in Hong Kong, Lau Tak Wah Andy v. Hang Seng Bank Ltd. The chapter explores why Hong Kong has yet to offer strong protection of personality rights despite having fertile conditions for such development. The chapter concludes by focusing on three areas of influence that may impact the future development of personality rights in Hong Kong.

Yu concludes that -

Although there has been a growing trend to harmonize intellectual property standards throughout the world, personality rights are unlikely to be the subject of such harmonization. The reasons are twofold. First, countries remain deeply divided over how a celebrity‘s identity is to be protected. In light of these deep divisions, it is unlikely that an international consensus would emerge in the near future. Indeed, international harmonization has been slow even in areas where there are greater international consensus, such as the promotion of access to essential medicines in less developed countries and the protection of traditional knowledge and cultural expressions. n this area of law, one can only imagine how limited harmonization will be in the near future.

Moreover, one of the major champions of international harmonization — the United States — has yet to attain consensus over the protection of personality rights at the national level. To date, the strength and scope of protection under state rights of publicity vary from state to state. Although there have been proposals calling for the establishment of a federal right of publicity statute, those proposals have yet to be adopted. Without a federal right of publicity, it is unlikely that the United States would seek greater international harmonization in the near future.

Although Hong Kong has many successful entertainers and entertainment products, it has yet to offer strong protection of personality rights. The lack of such protection provides a useful case study to understand the development of intellectual property protection in the Asia Pacific region. Through the historical British roots of Hong Kong intellectual property law, the study highlights the path-dependent nature of intellectual property development as well as the challenges confronting the establishment of new intellectual property rights. The limited protection in Hong Kong also foreshadows the larger debate about the future of protection for brands and reputation in the Asia Pacific region.

While it remains unclear whether Hong Kong will eventually offer stronger protection of personality rights, there is no doubt that the issue will deserve our close attention in the near future. There are, indeed, strong reasons both for and against greater protection of personality rights in Hong Kong. Hopefully, this chapter will provide the much-needed groundwork to help us understand better the need for and challenge in strengthening protection in this area.

FTC Breach

2012-01-30T19:57:00.003+11:00

'The 10 Year Anniversary of the FTC’s Data Security Program: Has the Commission Finally Gotten Too Big for Its Breaches?' [PDF] by David Zetoony in 1 Stanford Technology Law Review (2012) 1-11 questions action by the US FEderal Trade Commission over data breaches and data security.

Zetoony argues that -

An online company provides products to individuals and small businesses. Like most online companies, it collects various types of information from its customers such as email addresses for notifications, mailing addresses for product shipment, and credit and debit card numbers for payment.

From its inception, the company’s management takes data security very seriously. The company forms an interdepartmental team to assess potential vulnerabilities to the company’s website, computers, and physical building, creates a written data security plan and policy, and, each year, conducts a data inventory to help identify where it stores the information that it collects and who has access to that information. As the company grows, it may even hire a Chief Privacy Officer who does everything from training employees on how to shred old invoices to making sure that the company’s growing list of outside vendors don’t have disparate data security practices. This company has complied with its obligation to secure consumer data, right?

Maybe not. The Federal Trade Commission’s settlements with SettlementOne Credit, ACRAnet, Inc., and Fajilan and Associates, Inc. suggest that in addition to enacting good practices for their own operations and making sure that their vendors do the same, companies are responsible for making sure that their customers have adequate data security. Although the FTC cites several statutes as the basis for this “duty to police customers,” it is not at all clear that the FTC’s theory could survive judicial scrutiny. Part I of this article provides a brief history of the FTC’s success over the past ten years to position itself as the primary federal regulator concerning issues of data security. Part II discusses the FTC’s recent enforcement actions and settlements with SettlementOne Credit, ACRAnet, and Fajilan. Part III analyzes the limits of the FTC’s data security enforcement powers. As part of this analysis, it reviews the scope of the new duty that the Commission proposes as part of the Reseller settlements, and analyzes whether the duty that the Commission seeks to impose can be supported by the Commission’s authorizing legislation. Finally the article concludes that the Commission’s attempt to create a new duty to police customers lacks firm statutory support and may not be successful if challenged in court.

Shipping

2012-01-30T19:34:00.004+11:00

The 64 page Maritime Transport and Destabilizing Commodity Flows (SIPRI Policy Paper no. 32) by Hugh Griffiths and Michael Jenks of the Stockholm International Peace research Institute argues that over 60% of ships involved in reported cases of sanctions-busting or illicit transfers of arms, drugs, other military equipment and sensitive dual-use goods that could be used in the development of missiles and weapons of mass destruction are owned by companies based in the EU, NATO or other OECD states. That's not particularly surprising: much of the world's shipping is controlled by the North, albeit crewed by people from The South.

The report [PDF] is ambitiously claimed to be the first comprehensive study on maritime trafficking.

The authors comment that -

Maritime transport dominates international trade in licit and illicit goods. It accounts for the majority of seizures and suspect shipments of military equipment and dual-use goods (goods that have both civilian and potential military applications, including in the development of weapons of mass destruction and missiles) originating from or destined for embargoed states such as Iran and North Korea. It is the primary means of delivering shipments of conventional arms to actors involved in conflicts in Africa. Sea transport plays a major role in global flows of narcotics and associated chemical precursors. It is also the main mode of transport for other illicit and potentially destabilizing commodities, such as smuggled tobacco, oil and counterfeit goods.

One reason why maritime transport offers the greatest scope for trafficking of destabilizing commodities is that it is more difficult for states to monitor and control than any other means of international bulk transport. Jurisdiction over merchant shipping in international waters rests with a vessel’s flag state and, as a result, ships suspected of carrying destabilizing commodities cannot be boarded — and the commodities seized — without the prior agreement of the flag state.

The majority of ships involved in reported destabilizing military equipment, dual-use goods and narcotics sail under so-called flags of convenience and are registered in flag states with limited regulation and control of their merchant fleets. Nevertheless, the ships’ owners are mainly companies based in European Union, North Atlantic Treaty Organization and Organisation for Economic Co-operation & Development member states.

The most common ship types used in reported destabilizing military equipment, dual-use goods and narcotics transfers are general cargo ships and container ships. Ships involved in cases where the owner, commercial operator or officers appear to have been complicit in the transfer have an average age of more than 27 years. These ships tend to have poor safety and environmental inspection records or to have been involved in previous accidents or pollution incidents. A majority of the flags of convenience under which these vessels sail have been consistently targeted for inspection by port state control (PSC) regimes on the basis of poor performance in previous inspections.

They go on to argue that -

Arms proliferation networks are increasingly adopting techniques pioneered by drug trafficking organizations that integrate their logistics operations within the global supply chain through the use of sealed shipping containers, which are carried aboard vessels that are owned by mainstream shipping companies and engaged in licit trade. Such techniques represent the most cost-effective method when traffickers are confronted by well-resourced and coordinated surveillance operations supported by international agreements such as United Nations arms embargoes and counter-narcotics conventions.

There are significant differences between the frequency with which different types of commodity involved in destabilizing transfers are seized when detected. While almost all reported cases involving narcotics and precursors end in seizure
of the commodity, seizure rates for destabilizing military equipment and dual-use goods transfers are highly dependent on the countries involved. Significantly, more than half of reported destabilizing transfers to or from Iran and North Korea have resulted in seizure, but the seizure rates for shipments ultimately destined for embargoed states, regions or groups in Africa have been very low.

In response SIPRI offers seven recommendations -

1. Efforts to counter maritime trafficking should recognize the utility of PSC as a ‘choke point’ to monitor and control poorly regulated flag of convenience ships suspected of involvement in destabilizing commodity flows.
2. The more advanced PSC regimes should initiate outreach, training and technical cooperation to PSC authorities at ports identified as being more frequently visited by vessels suspected of involvement in particular destabilizing commodity flows.
3. At national level, operational links should be strengthened between PSC authorities and export control, customs, security and intelligence agencies. PSC authorities should be trained to identify suspect cargoes and ships.
4. At international and regional levels, formal and informal information sharing on suspect vessels should be improved between different governments and relevant PSC authorities.
5. Political support should be enhanced for a holistic approach to maritime security, using technologies, instruments and assets currently used for environmental protection, ship monitoring, fisheries protection and other aspects of maritime governance and surveillance in order to better target destabilizing maritime trade.
6. Governments should initiate dialogue with global shipping industry representatives on addressing destabilizing maritime trade, in particular the growing use of containerization.
7. In the EU, a mechanism should be established for sharing information on suspect shipments and ships that effectively shares information with and between relevant government agencies and PSC authorities.

Creativity

2012-01-30T13:35:00.008+11:00

As an aficionado of Byzantine history, of imposture and of clerical squabbling - even more vicious than the conflicts within academia - I was amused by a reader's pointer this morning regarding allegations against South Australian religious figure Prokopios Kanavas. He has reportedly been called to a meeting of Greek Orthodox Community of South Australia council leaders to discuss claims Kanavas has made on his Facebook profile.

Kanavas has been in the news over the past two years. Kanavas was sacked as an SA police chaplain in 2011 when the state government was made aware of information that allegedly affected his "suitability" for the role, apparently centred on claims that he had been defrocked as a priest in 2008, joined the Greek army, subsequently being ordained by other church authorities and then moving to Adelaide.

His profile reportedly features claims that Kanavas completed a degree of theology and international law at the Hebrew University of Jerusalem, represented the Patriarchate of Jerusalem at conferences and restored a monastery at his own expense. The university reportedly indicates that there is no record of him studying at the institution. What's claimed to be a letter from the Patriarchate of Jerusalem contests the other claims.

If Kanavas has indeed been creative with his CV, he's not alone. Past entries in this blog have highlighted the creativity of figures such as Stephen Wilce, Dusan Milosevic, Greg Mortenson, Vitomir Zepinic, James Montgomery and Rex Crane.

Those figures were more modest than some pre-modern identity criminals, crazies or enthusiasts. Matthew vii 15 warns of false prophets "who come to you in the clothing of sheep, but inwardly they are ravening wolves". Some of those wolves were impressively dressed.

Gregory of Tours' Historia for example features an enthusiast who at the end of the sixth century declared himself to be Christ, travelling in the neighbourhood of Arles in company of Mary, performing miracles and gathering followers until struck dead by a representative of Bishop Aurelius. Ecclesiastical fraudster Paulus Tigrinus successfully conned Pope Boniface IX and Antipope Clement VII into colluding in his assertion that he was the wandering Patriarch of Constantinople. False bishops Adelbert and Clement, active in Germany around 744 CE, gained attention for unorthodoxy (Adelbert told his followers it was unnecessary to confess their sins because he already read their hearts) and assertion that their authority was confirmed by a miraculous letter from Jesus Christ that had supposedly fallen from heaven and been picked up by the Archangel Michael. Lest we scoff too much about mediaeval credulity regarding unorthodox delivery of correspondence we might recall the golden tablets and magic spectacles of Latter Day Saints founder Joseph Smith or the beliefs espoused by Tom Cruise after conversion to Scientology. Franciscan friar James of Jülich was sentenced to be boiled alive in 1392 after the bad career move of pretending to be a bishop and falsely ordaining numerous priests.

Meanwhile Christian Gerhartsreiter (aka Christopher Chichester and Clark Rockefeller) has been ordered to stand trial for the 1985 murder of landlord John Sohus. Gerhartsreiter's career of imposture is described in The Man in the Rockefeller Suit: The Astonishing Rise and Spectacular Fall of a Serial Imposter (New York: Viking 2011) by Mark Seal.

Sharing

2012-01-30T07:41:00.006+11:00

The communique from the New Zealand and Australian Prime Ministers regarding the annual Australia-New Zealand Leaders’ meeting on 29 January features an item on data exchange -

Criminal History Sharing

The Prime Ministers agreed to enhance the reciprocal sharing of criminal history information for employment vetting purposes and plan an initial six month trial with Queensland to test how consistent and systematic requests for criminal history checks for employment purposes can be facilitated between Australia and New Zealand. They also directed officials to accelerate the work under way on reciprocal information sharing to support border control and law enforcement, consistent with free movement of people across the Tasman.

Last month, following revelations about a $21m fraud in a Queensland government health agency, the state premier announced that -

Currently Queensland Police conduct background checks via the Federal Government’s CrimTrac national database, which is limited to Australian jurisdictions only.

Ms Bligh said she had discussed with both Prime Ministers the need to broaden CrimTrac to include New Zealand’s criminal records database. This would allow police to easily identify any employees who had been previously convicted of criminal offences in New Zealand.

“Like all Queenslanders, I am angry and appalled at the theft of $16 million from taxpayers that should have been spent on health services,” Ms Bligh said.

“That’s why I have acted immediately to get answers on how and why this has occurred.

“Queensland Police have a good working relationship with their counterparts in New Zealand on a case-by-case basis but the data is not exchanged as part of their respective criminal history checking processes.

“But it has become clear there may be a heightened risk of people with criminal histories remaining undetected given the free flow of Australian and New Zealand citizens who are able to live and work in both countries.

“That’s why I have this morning spoken directly with Prime Minister Julia Gillard and the New Zealand Prime Minister John Key to discuss how we can work together to share information that will stop criminals from exploiting this loophole.”

Ms Bligh said both Prime Ministers shared her concerns about the need to tighten up procedures and were seeking urgent advice on the next steps that were needed.

“Whilst this fraud has occurred against the people of Queensland, the exclusion of New Zealand criminal histories from CrimTrac meant this could have happened to any public sector agency across Australia,” Ms Bligh said.

“Similarly, Australian criminals may be taking advantage of this situation in New Zealand.

“It is critical law enforcement agencies on both sides of the Tasman are able to quickly access the most accurate information on anyone who has a history of offending, especially where they are working in positions of trust. ... We will leave no stone unturned in getting answers and I won’t hesitate to hold those responsible to account.”

New Zealander Hohepa Morehu-Barlow, who among other things claimed to be royalty, was arrested last month after claims that $21m had been embezzled from Queensland's health authority. That news coincided with conviction of New Zealander Warren Attfield for another fraud in Queensland. Attfield was sentenced to five years in a NZ prison in 1996 after admitting defrauding South Wood Exports of $2.8m to fund his gambling, described in Two over three on Goodtime Sugar: the New Zealand TAB turns 50 (Wellington: Victoria University Press 2000) by David Grant. At the end of his sentence Attfield moved to Australia and in the absence of an Australian criminal record became finance officer at the Yaamba Aboriginal & Torres Strait Islander Corporation for Men. He defrauded the corporation of over $300,000, confessing when the organisation did not have enough money to pay staff wages.

Yaamba's former manager Bob Salam is reported as stating that -

he would not have hired him if he had known about [Attfield's] convictions.

"We were looking for a bookkeeper and his name came up," Salam said.

Attfield presented a reference from another Aboriginal corporation in Kalgoorlie, Western Australia, but did not mention any convictions, he said.

"We didn't get a check ... He was a good employee, he seemed to be going great guns. He was getting the books done and seemed pretty clued up on stuff."

Salam said he knew Attfield liked a bet but never suspected he had a gambling problem or was stealing money to pay for it.

"I used to go to the TAB with him," he said.

Organ Harvesting

2012-01-28T17:14:00.005+11:00

'What makes killing wrong?' by Walter Sinnott-Armstrong & Franklin Miller in Journal of Medical Ethics (2011), in a provocative discussion of organ harvesting, argues that it is not morally wrong to kill people: "killing by itself is not morally wrong, although it is still morally wrong to cause total disability".

What makes an act of killing morally wrong is not that the act causes loss of life or consciousness but rather that the act causes loss of all remaining abilities. This account implies that it is not even pro tanto morally wrong to kill patients who are universally and irreversibly disabled, because they have no abilities to lose. Applied to vital organ transplantation, this account undermines the dead donor rule and shows how current practices are compatible with morality.

The article addresses ongoing disagreement among ethicists, lawyers and medical practitioners regarding organ donation after cardiac death (DCD), ie where a patient is neurologically damaged and cannot function without a respirator. Removal for transplantation of organs - eg hearts, livers, kidneys, gonads - from someone who has a pulse but is vegetative is controversial, with US practitioners insisting on a 'dead donor' rule (ie the person whose organs are being removed must be definitively dead). The authors comment that

the dead donor rule is routinely violated in the contemporary practice of vital organ donation. Consistency with traditional medical ethics would entail that this kind of vital organ donation must cease immediately. This outcome would, however, be extremely harmful and unreasonable from an ethical point of view [because patients who could be saved will die]. Luckily, it is easily obviated by abandoning the norm against killing.

They argue that rendering someone totally and permanently incapacitated is just as bad as taking a life. Killing a totally disabled patient does that person - although Sinnott-Armstrong & Miller would presumably disagree with the reference to 'person' - no harm: killing cannot disrespect the patient's autonomy because the patient is so incapacitated as to lack autonomy.

The authors dismiss notions that life is "sacred", arguing that the only relevant difference between death and life and death is the existence of abilities. A fundamentally neurologically-injured person no longer has those abilities.

if killing were wrong just because it is causing death or the loss of life, then the same principle would apply with the same strength to pulling weeds out of a garden. If it is not immoral to weed a garden, then life as such cannot really be sacred, and killing as such cannot be morally wrong.

Dot Regulation

2012-01-27T15:10:00.004+11:00

'Balancing Internet Regulation and Human Rights' by Aleksey Ponomarev indicates that -

It’s not a secret that with the development of the Internet the transition from freedom into control can be noticed. Having been considered as a completely independent medium of communication which lays outside of any state jurisdiction according to views of "digital libertarians" in the early days of the Internet, cyberspace is becoming fully, and extensively, regulated space that we have ever known. This article aims to analyze the current instruments of Internet regulation both legal and through Internet architecture, and to find a balance between necessity of regulation in one hand and obligation to follow human right standards on the other hand. For this purpose various Internet control and censorship techniques is discussed, as well as international human rights standards which might be jeopardize by exercising of such control. In the end the attempt to strike a balance between Internet regulation and human rights is has been made.

Ponomarev concludes that -

it is clear that the Internet can be a tool to expand our fundamental rights, empowering us with boundless information and connecting us with individuals and communities around the world. While it is a powerful and positive forum for free expression and exchange of ideas and knowledge, the Internet poses a profound danger to our fundamental rights, serving as a tool for criminals and even terrorists. Threats come also from private sector which restricts privacy and freedom of knowledge. However there is a common view about free and independent Internet, it is obvious that state regulation is inevitable. And least clear of all is how we can regulate the Internet in such a way that allows us to draw on its benefits, while limiting the very real and serious dangers of abuse. The regulation is complicated due to the inherent nature of the Internet — a decentralized, user-driven network that is under the control of no government and that transcends nearly all borders.

Although regulation of cyberspace is not easy task it does not mean that it is not needed. While it is true that market and social norms influence the Internet to some extent, in reality law and architecture are main regulators of cyberspace. Legal and technological measures are applied separately or in a combination. In some cases, for example when all parties are located within the physical territory of a particular state, regulation is rather effective, but when information comes from external sources it is almost impossible to control that flow of the Information. The law of the regulating state cannot be normally applied to foreign entity and states. Various technologies of the Internet filtering aimed to restrict the access of ‘harmful’ or ‘unwanted’ information or web-pages are neither effective, nor reliable (in case of geo-identification for example). Above-mentioned technologies cannot only be easily circumvented, but are also extremely costly and might violate fundamental human rights of Internet users.

Both legal and technological measures of the Internet regulation jeopardize rights and freedoms which constitute the highest values of free democratic society. Internet filtering methods such as Deep Packet Inspection as well as self-censorship measures constitute the highest danger for human rights.

Traditional rights to freedom of speech and expression, right to privacy and freedom of knowledge also should be protected in the Internet, as in the real life. Thus, all international human rights instruments apply to the cyberspace as well. Moreover one can witness the emergence of a new generation of rights – Internet rights. The said rights support the basic principles of the Internet architecture, guarantee the freedom of the Internet and free flow of information within cyberspace.

However all rights and freedoms are not absolute and are a subject to restrictions, cause there is tension between individual right and obligation of the state to exercise its functions social and security functions. Ways of finding a balance are provided in human rights instruments, however it is very difficult not to overstep the prescribed rules. According to the author’s view traditional rights should be reaffirmed and new Internet rights fixed by adapting a new international legislation focused on Internet. An attempt to unify possible exception from human rights should be made, harmonization of moral and national security limitation should also be reached. As Internet is international phenomena a collective efforts of states should be taken in order to regulate the Internet. The treaties might be realized in form of ‘soft law’ – declarations, recommendations, reports, as well as acts of international organizations, non-governmental organizations. It matters little whether these instruments are “non-binding” because this law is more likely to be enforced in the so-called ‘court of public opinion’ than in a judicial forum.

Special mechanisms should be designed to pressure states to refrain from violating rights. Civil organizations and human rights advocate representing the opinion of the society should be part of that mechanism. Moreover every user should be given a chance to participate in the process of regulation of the Internet influencing technologies of the Internet control.

Finally, people should not forget that the Internet was made for providing new opportunities for communication, business, information sharing, as well as for promoting human rights and freedoms all over the world. Thus any restrictions of both well recognized and innovative rights should be accurate and limited according to the interests of the society.

HomoPanic

2012-01-26T16:07:00.008+11:00

In a small and belated step the Qld Attorney-General Paul Lucas has announced that the State Government "is set to change" the Qld Criminal Code to "remove doubts about how and when a partial defence involving a sexual advance can be used and remove doubts about the so-called “gay panic” defence". Set but hardly in a rush, given the promise that the "Government would introduce a Bill to Parliament this year" ... presumably after the impending election, an election that many pollsters predict will result in the ALP's loss of office.

The Criminal Code currently provides for a partial defence of provocation that could be used to reduce a conviction from murder to manslaughter where a defendant claimed they were provoked into killing someone. The Attorney General somewhat disingenously comments that

members of the community had recently raised concerns that this could be used to establish a so-called “gay-panic defence”, where defendant claimed the victim made a homosexual advance towards them and provoked them into committing the act.

That advance need not be violent, involve any physical contact or be made by someone whose physical strength, age or other attribute gives them an advantage.

Criticisms of a 'homopanic defence' have been voiced for many years, including in Queensland Law Reform Commission recommendations [PDF] and in works such as 'Hatred, murder & male honour: Gay homicides and the "homosexual panic defence"' by Stephen Tomsen in 6(2) Criminology Australia (1994) 2, 'More Folk Provoke their Own Demise (Homophobic Violence and Sexed Excuses - Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)' by Adrian Howe in 19 Sydney Law Review (1997) 336 and the 1998 Final Report [doc] by the NSW Working Party on the Homosexual Advance Defence. Concerns regarding the defence include suspicions that no advance was made in particular instances and law should signal to male adults that a wink, caress or invitation does not justify homicide ... if you are a bloke who isn't interested, just say no rather than kicking someone to death. One writer highlighted the gendered nature of the defence with the quip that "if every woman killed every man who made unwanted physical advances to them there would be a lot of dead men around".

Kirby J in Green v R [1997] HCA 50; (1997) 191 CLR 334; (1997) 148 ALR 659; (1997) 72 ALJR 19 commented that -

For the law to accept that a non-violent sexual advance, without more, by a man to a man could induce in an ordinary person such a reduction of self-control as to occasion the formation of an intent to kill, or to cause grievous bodily harm, would sit ill with contemporary legal, educative, and policing efforts designed to remove such violent responses from society, grounded as they are in irrational hatred and fear.

In my view, the 'ordinary person' in Australian society today is not so homophobic as to respond to a non-violent sexual advance by a homosexual person as to form an intent to kill or to inflict grievous bodily harm. He or she might, depending on the circumstances, be embarrassed; treat it at first as a bad joke; be hurt; insulted. He or she might react with the strong language of protest; might use such physical force as was necessary to effect an escape; and where absolutely necessary assault the persistent perpetrator to secure escape. But the notion that the ordinary 22 year old male (the age of the accused) in Australia today would so lose his self-control as to form an intent to kill or grievously to injure the deceased because of a non-violent sexual advance by a homosexual person is unconvincing. It should not be accepted by this Court as an objective standard applicable in contemporary Australia.

Last week Lucas received a recommendation from a special committee established in November 2011. He has now commented that -

We made it crystal clear from day one that the Queensland Government does not believe that anyone should be able to use a claim of non-violent homosexual advance to reduce a conviction from murder to manslaughter.

That’s why we listened to the expert advice of the Queensland Law Reform Commission in 2008 and ensured strengthened legislation was passed so words alone could not amount to a partial defence.

However, I received a number of representations from the gay community last year and consequently set up an expert committee comprised of key stakeholders to examine the laws.

The committee has completed its review and based on the recommendations of legal expert and retired Court of Appeal Judge John Jerrard, we will be amending to law to ensure the intent of the partial defence provisions are clear.

Section 304 is to be amended to ensure that an unwanted sexual advance will not be enough to establish provocation unless there are exceptional circumstances (eg "where a battered woman who knows that refusal of a sexual advance from her partner is a precursor to assault and she takes immediate action to stop this from happening”).

Spooks

2012-01-26T09:02:00.007+11:00

The Prime Minister has released an unclassified 48 page overview of the Report of the Independent Review of the Intelligence Community (IRIC), promoted as "the first comprehensive review of the Australian intelligence community since the 2004 Flood inquiry into Australia’s intelligence agencies".

Much of the activity of most national intelligence/security agencies is secret ... secret from "independent" observers, from competing agencies in the 'intelligence community' and of course from the public. That means in the near term it is impossible for anyone outside the magic circle to rigorously appraise claims about the benefits of particular initiatives and determine whether money is being well spent. Responses to independent reviews are thus as much a matter of faith as of hard fact. (With the benefit of history - through for example the release of archival material, memoirs by intelligence operatives at the end of their careers and the occasional public inquiry after something has gone embarrassingly wrong in a way that couldn't be spun - it is clear that many spooks were misdirected, incompetent, egregiously wasteful or dismissive of legal frameworks.)

The Prime Minister's media statement indicates that the review found the agencies are "performing well following a period of significant growth to deal with the security challenges of the 9/11 decade".

• Australia and its citizens are safer than they would otherwise have been as a result of intelligence efforts
• Our intelligence capabilities have contributed significantly to the global security effort
• Australia has built intelligence capabilities broadly commensurate with our growing security challenges
• The current basic structure of the Australian Intelligence Community (AIC) remains appropriate, including the operational mandate of agencies

They would say that, wouldn't they.

The Prime Minister commented that -

the Australian intelligence community played a vital role in keeping Australians safe and protecting Australia’s security interests. The review demonstrated that the investment in the intelligence community over the past decade had resulted in more capability and increased performance.

The overview [PDF] notes that the Review was primarily concerned with six agencies – Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service (ASIS), the Defence Imagery and Geospatial Organisation (DIGO), the Defence Intelligence Organisation (DIO), the Defence Signals Directorate (DSD) and the Office of National Assessments (ONA). After consultation with what a dyspeptic reader might characterise as the usual suspects the authors considered "six key issues" -

1. How well the intelligence community is positioned to support Australia’s national interests, now and into the future;
2. Development of the intelligence community over the last decade, including implementation of intelligence- related reforms;
3. Working arrangements and relationships between the intelligence agencies and policy and operational areas of government;
4. Working arrangements and relationships between the intelligence agencies and their international partners;
5. Arrangements and practices within the intelligence community for collaborative work, including legislative arrangements; and
6. Level of resourcing dedicated to the intelligence community and apportionment of resources across the community, noting that any future proposals would need to be offset consistent with the Government’s overall fiscal strategy.

They conclude that -

• The intelligence community has grown substantially over the last ten years in response to increasing demand, mainly in relation to terrorism, fighting wars and countering espionage (including cyber attacks), proliferation of weapons of mass destruction and people smuggling
• The investment made in building up the intelligence agencies has been justified and rewarded with more capability and increased performance
• That capability and performance has enabled Australia’s agencies to make an effective contribution as a member of the international intelligence partnerships and their relationships with those partners are at a very high point which some interviewees described as ‘the strongest they have ever been’
• The investment made in the intelligence agencies has resulted in improved capability and performance in Australia but it also gains Australia access to intelligence from international partners (through its contribution to common intelligence objectives) which Australia could never acquire by itself
• The intelligence agencies are working well together. They understand the need to cooperate and are paying close attention to developing fusion centres and other cooperative working arrangements (such as the Counter-Terrorism Control Centre) which have been developed over the last few years and will continue to evolve in future
• The intelligence agencies are also beginning to work more effectively with the other members of the recently expanded National Security Community. This evolution will take time – as is the case with any requirement for a significant shift in corporate behaviour – and it should be focused on those areas of common activity where closer cooperation can produce better results. The Review did not detect any lack of willingness to further develop these cooperative working arrangements
• The principal new challenges for the next five years or so will be to better align the AIC’s priorities with the new geo-political and technological realities facing Australia as a middle power with global interests.

Readers wanting insights into the AIC might benefit from consulting Democratic Oversight of Intelligence Services (Leichhardt: Federation Press 2010) edited by Daniel Baldino, Terror, Security & Money: Balancing the Risks, Benefits & Costs of Homeland Security (Oxford: Oxford Uni Press 2011) by John Mueller & Mark Stewart, reports by ASIO and its peers to the Parliamentary Joint Committee on Intelligence & Security (JCIS) or even works such as Top Secret America: The Rise of the New American Security State (New York: Little Brown 2011) by Dana Priest & William Arkin - the latter illustrative of confusion, proliferation and intelligence community driven real estate development.

Messaging

2012-01-24T18:26:00.002+11:00

The Australian Communications & Media Authority (ACMA) has announced acceptance of an enforceable undertaking [PDF] from Vodafone Hutchison Australia (VHA) to "rein in wayward dealers telemarketing the products of Vodafone and 3 Mobile after receiving complaints about unsolicited calls from consumers on the Do Not Call Register". Those calls were in contravention of the Do Not Call Register Act 2006 (Cth).

The undertaking is a reminder that Vodafone, along with its peers, is still having trouble with the behaviour of its dealer network - evident in the data breach highlighted in past posts on this blog. ACMA Chair Chris Chapman stated that -

The cornerstone of the undertaking is that VHA will be auditing and reporting back to the ACMA on all its dealers’ telemarketing activities. If it finds any of its dealers potentially breaching the Do Not Call Register Act, it must report the dealer to the ACMA immediately

Given ACMA's past permissiveness Vodafone is presumably quivering in its Doc Martens.

Under the enforceable undertaking Vodafone has also committed to -

- require all its subsidiaries and dealers to keep comprehensive records of the telemarketing calls made
- implement robust procedures around recording VHA’s customers’ consent to be called by, or requests to opt out of receiving, telemarketing calls from VHA, its subsidiaries or any dealer.

ACMA has meanwhile announced acceptance of an enforceable undertaking, including correctional measures, from Nokia.

ACMA commenced an investigation into the Finnish company’s SMS marketing activity after complaints that customers could not work out how to unsubscribe from ‘tips’ sent by Nokia. In particular, the messages did not include details of how Nokia could be contacted, as required by the Spam Act 2003.

The investigation found that while a number of the ‘tips’ provided customers with factual information about their mobile phone handsets, some of them amounted to promotion of Nokia’s products and services, including mobile phone accessories, and that the messages therefore needed to include an unsubscribe facility.

‘SMS allows businesses to reach their customers no matter where they are or what they are doing,’ said ACMA Acting Chairman, Richard Bean. ‘But with that opportunity come responsibilities under the Spam Act, including the obligation to include an unsubscribe facility in marketing messages.’

Nokia has undertaken to -

- appoint an independent consultant to audit its systems and processes
- develop a plan to carry out the independent consultant’s recommendations
- train its employees engaged in SMS marketing about complying with the requirements of the Spam Act
- make a payment of $55,000.

Canadian Privacy

2012-01-24T13:46:00.002+11:00

In Jones v. Tsige, 2012 ONCA 32 the Ontario Court of Appeal has found that Ontario law recognises a right to bring a civil action for damages for the invasion of personal privacy (ie the so-called 'privacy tort').

The judgment concerns the appeal from that by Justice Kevin M.V. Whitaker of the Superior Court of Justice dated 23 March 23 2011 reported at 2011 ONSC 1475, 333 D.L.R. (4th) 566.

The 2012 judgment the Appeal Court indicates that -

In July 2009, the appellant, Sandra Jones, discovered that the respondent, Winnie Tsige, had been surreptitiously looking at Jones’ banking records. Tsige and Jones did not know each other despite the fact that they both worked for the same bank and Tsige had formed a common-law relationship with Jones’ former husband. As a bank employee, Tsige had full access to Jones’ banking information and, contrary to the bank’s policy, looked into Jones’ banking records at least 174 times over a period of four years.

The central issue on this appeal is whether the motion judge erred by granting summary judgment and dismissing Jones’ claim for damages on the ground that Ontario law does not recognize the tort of breach of privacy.

The Court went on to comment that -

For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of “the pressing need to preserve ‘privacy’ which is being threatened by science and technology to the point of surrender”: “The Law and Privacy: the Canadian Experience” at p. 1. See also Alan Westin, Privacy and Freedom (New York: Atheneum, 1967). The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by the principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.

In discussion it adds that -

I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. ...

These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

Finally, claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of expression and freedom of the press. As we are not confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims. A useful analogy may be found in the Supreme Court of Canada’s elaboration of the common law of defamation in Grant v. Torstar where the court held, at para. 65, that “[w]hen proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.”

In conclusion -

In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls:
1. the nature, incidence and occasion of the defendant’s wrongful act;

2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;

3. any relationship, whether domestic or otherwise, between the parties;

4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.
I would neither exclude nor encourage awards of aggravated and punitive damages. I would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, I would not encourage such awards as, in my view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified. ...

It is my view that in this case, Tsige committed the tort of intrusion upon seclusion when she repeatedly examined the private bank records of Jones. These acts satisfy the elements laid out above: the intrusion was intentional, it amounted to an unlawful invasion of Jones’ private affairs, it would be viewed as highly offensive to the reasonable person and caused distress, humiliation or anguish.

In determining damages, there are a number of factors to consider. Favouring a higher award is the fact that Tsige’s actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. Jones was understandably very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. On balance, I would place this case at the mid-point of the range I have identified and award damages in the amount of $10,000. Tsige’s intrusion upon Jones’ seclusion, this case does not, in my view, exhibit any exceptional quality calling for an award of aggravated or punitive damages.

Coptalk

2012-01-24T07:43:00.002+11:00

The Canberra Times reports that Warren Allistair Tamplin has pleaded guilty in the ACT Magistrates Court after accessing "secret information from the national police database while working for the Australian Federal Police".

Tamplin worked as a protective services officer; according to a statement of facts tendered in court he "repeatedly accessed records from the database over three years from 2007 to 2010, using his AFP email address to send the information to a personal email account". He pleaded guilty to charges of recording proscribed information in breach of police regulations.

The CT notes that Tamplin committed one of the offences on the same day that he completed an AFP online security course, in which participants learned it was illegal to distribute police information.

Details of the accessed information were suppressed. He reportedly had emailed some of the information, classed as protected or highly protected, to other people outside the police force.

He was eventually discovered after a fellow staffer received an email purporting to be from the New York Police Department, which included a link to Tamplin's website and an invitation to join an email list.

Investigators audited Tamplin's official AFP email account and found that he had been sending information from the police database to himself and others. Tamplin told investigators that he had set up a security industry website as a personal project with a view to starting his own business after he left the federal police.

He said the website was based on news and information about terrorism, mostly obtained from the search engine Google or news sites.

He had also created an email distribution list to share information with other law enforcement workers.

Tamplin told investigators there was ''no truth in the news and he needed to 'get out what really happened'''. But he also said he did not make any money from the records he sent out and believed the information was ''open source'' and ''as good as gossip''.

He conceded that management would take a ''pretty dim'' view of his behaviour and acknowledged that he did not have the authority to copy the information.

Losses

2012-01-21T17:59:00.002+11:00

The UK Information Commissioner (ICO) has highlighted responses to three data breaches.

In the first former health worker Juliah Kechil has pleaded guilty to unlawfully obtaining patient information by accessing the medical records of five members of her ex-husband’s family in order to obtain their new telephone numbers. She had been a Health Care Assistant in the Royal Liverpool University Hospital's outpatients department. She was fined £500 and ordered to pay £1,000 towards prosecution costs, along with a £15 victim surcharge following conviction under s 55 of the Data Protection Act at Liverpool City Magistrates Court. The Commissioner notes that -

Royal Liverpool University Hospital began an investigation in November 2009 when the defendant’s father-in-law contacted the hospital after receiving nuisance calls which he suspected had been made by his former daughter-in-law. Having changed his phone number in July 2009 following unwanted calls from Ms Kechil, he was immediately concerned that there had been a breach of patient confidentially.

Checks by the hospital revealed that all of the patients whose details had been compromised were not at any time under the medical care of Ms Kechil and she had no work-related reasons to access their records. She accessed the information for her own personal gain without the consent of her employer. The accesses were traced through audit trails which were linked to the defendant’s smartcard ID.

The Commissioner noted that the ICO - somewhat more positive than the Australian OAIC - "continues to call for more effective deterrent sentences, including the threat of prison, to be available to the courts to stop the unlawful use of personal information".

In the second response Praxis Care Limited, a care provider with offices in the Isle of Man and Northern Ireland, has "taken action to improve its data protection practices" following a joint ruling by the ICO and the Office of the Data Protection Supervisor (ODPS) for the Isle of Man.

Praxis Care Limited breached both the UK Data Protection Act and the Isle of Man Data Protection Act by failing to keep peoples’ data secure. An unencrypted memory stick, containing personal information relating to 107 Isle of Man residents and 53 individuals from Northern Ireland, was lost on the Isle of Man in August last year. Some of the data was sensitive and related to individuals’ care and mental health. The stick has not been recovered.

Praxis has "now committed to making sure that all portable devices used to store personal data are encrypted", with personal information that is no longer needed being disposed of securely in line with the company’s updated data security guidance. The Commissioner commented that -

Carrying people’s personal information around on an unencrypted memory stick is clearly unacceptable. The fact that some of the personal details stored on the device were out of date and so surplus to requirements makes this breach all the more concerning.

The ICO will continue to work closely with other data protection regulators where it is clear that a data breach extends across national boundaries.

A separate undertaking has been signed by the Chartered Institute of Public Relations (CIPR), the organisation whose practitioners tend to advise on the thing to say when clients let personal information go feral.

The CIPR has made a formal undertaking with the ICO over the loss of up to 30 membership forms on a train in May last year. The Institute - nothing like looking ahead, given the frequency of data breaches - did not have a policy in place for handling personal data outside of the office. It has agreed to review its data protection policy and "make sure that it is communicated to staff" by the end of February.

Blundr

2012-01-21T13:04:00.007+11:00

Another day, another data breach.

This time it's a warning from the Australian Securities & Investment Commission (ASIC) and exposure of a weakness in the Grindr and Blendr social network services, with claims in the SMH that -

A popular "meat-market" smartphone app that spawned a sexual revolution in Australia's gay community has been compromised by a Sydney hacker, potentially exposing intimate personal chats, explicit photos and private information of users.

Grindr, with a reported 100,000 Australian users in mid 2011, and the straight Blendr, combine geospatial awareness with personal profiles. In essence participants can use a mobile phone or other wireless device to view the profiles of other participants within a particular proximity and exchange information. It's discussed in studies such as 'There’s an App for that: The Uses and Gratifications of Online Social Networks for Gay Men' by David Gudelunas in 16 Sexuality & Culture (2012), Gaydar culture: gay men, technology and embodiment in the digital age (Ashgate 2010) by Sharif Mowlabocus and 'Queer theory, cyber-ethnographies and researching online sex environments' by Chris Ashford in 18(3) Information & Communications Technology Law (2009).

The SMH reports that -

The hacker discovered a way to log in as another user, impersonate that user, chat and send photos on their behalf.

The vulnerabilities are also present in Blendr, the straight version of the app, according to a security expert who said both apps had "no real security" and were "poorly designed". Fairfax Media is not aware that Blendr has been hacked but the potential was there, according to the security expert.

The founder of the apps, Joel Simkhai, conceded both were vulnerable and he was rushing to release a patch to address the issues. He said he had originally been waiting until new architecture was built "within weeks" but was now releasing an update to both apps "over the next few days".

In a telephone interview about the vulnerabilities last Friday he said it was news to him about the potential for text chats to be monitored and claimed the company had never experienced a "major breach" in which a large portion of users were affected.
"We [do] get people trying to hack into our servers," he said. "That's something that I am aware of and we certainly have a team in place that are working to prevent that."

But by Tuesday Mr Simkhai admitted that he was "aware of some vulnerabilities" but he would not talk about them in detail to avoid a hacker exploiting them.

"We are certainly aware of a lot of these vulnerabilities and ... they will be fixed as fast as humanly possible," he said.

He could not say how many people had attempted to take advantage of the vulnerabilities but said a website created by the hacker had exploited some of the flaws in Grindr. That website was shut down after Friday's interview with Fairfax Media after he sought legal action.

The website, registered on July 14 last year, allowed the hacker to search for any Grindr user regardless of their location, and capitalised on the vulnerabilities to offer other services not designed by the apps. ...

At one point, according to sources who saw the website before it was taken down, it listed users' Grindr pseudonyms, passwords, their personal favourites (bookmarked friends) and allowed them to be impersonated, and thus have messages sent and received without their knowledge. At one point, the website also allowed users' profile pictures to be replaced.

It is understood the hacker changed the profile picture of numerous Sydney Grindr users to explicit images. One user who was targeted confirmed they had been banned due to a perceived terms of service violation.

It is understood the hacker took advantage of the fact the apps used a personalised string of numbers known as a hash, instead of a user name and password, to log in. The hash is exchanged between users' smartphones so they can communicate with each other but the hacker discovered it could be replaced with another users' hash to enable the hacker to:
• Log in as any user
• See the user's favourites
• Change their profile information and profile picture
• Talk to others as the user
• Access pictures sent to the user
• Impersonate a user's "favourite" and talk to them as a friend
A security expert - who did not wish to be named because he didn't have Mr Simkhai's permission to analyse his systems - said that the Grindr and Blendr apps "had no real security".

They are "very poorly designed ... [with] poor session security and authentication", the expert said. "It wouldn't be too hard to secure this."

The security expert demonstrated with permission of a user how he could log in as them and take over the app.

In a statement Mr Simkhai said keeping his platform secure from hackers was a "number one priority".

What are consumer expectations about privacy and data protection in such services? What are service operator responsibilities? I'm reminded of the iBill data breach several years ago.

In 2006 it was revealed that personal information for over 17 million customers of the online payment service iBill (the dominant payment intermediary in the online adult content industry) was available on the net, being used by spammers and identity theft criminals. The data included consumer names, phone numbers, addresses, email addresses, IP addresses, credit-card types and purchase amounts. It appears to have been taken by an iBill employee. I've noted elsewhere that the iBill data breach was not disclosed by the company. Given that the data did not include Social Security, credit-card or driver's-license numbers, no US laws required iBill (or the adult content companies for which they provided payment services) to warn people. A year after the FBI first learned of the loss they had also failed to issue any public warnings.

ASIC has meanwhile "advised clients of online stockbroking firms to urgently review their account security". Its media release states that -

During regular surveillance of the Australian financial markets, ASIC has become aware of several stockbroking account intrusions involving unauthorised access and trading.

ASIC recommends that as soon as possible users of online stockbroking accounts:
• ensure their computer virus software is up-to-date;
• change their passwords; and
• check their transaction history.
ASIC also recommends users do this regularly, as with bank accounts.

If you become aware of any unauthorised trading on your account, you should contact your stockbroker immediately. This will help to ensure that any further unauthorised activity can be prevented.

ASIC is working with online stockbroking firms to help those clients who have been impacted.

ASIC is also working with other authorities to identify the source of the intrusions and pursuing a line of enquiry consistent with similar incidents in overseas markets.

Seduction

2012-01-21T12:48:00.002+11:00

'Marriage as Punishment' by Melissa E. Murray in 100(2) Columbia Law Review ( 2012) 101-168 comments that -

Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used - and importantly, continues to be used - as state-imposed sexual discipline.

Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who 'seduced and had sexual intercourse with an unmarried female of previously chaste character' under a 'promise of marriage.' Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.

The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.

With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.

Murray concludes that -

In January 2010, Theodore Olson, one of the lawyers litigating Perry v. Schwarzenegger, outlined “The Conservative Case for Gay Marriage.” Speaking to social conservatives who have resisted efforts to expand civil marriage to LGBT individuals and those who are undecided about marriage equality, Olson argued that “same-sex unions promote the values conservatives prize,” including accountability, social stability, and economic partnership. For Olson, the allure of marriage equality is obvious: Marriage is a disciplinary institution and its expansion to include same-sex couples would necessarily include more people within the ambit of the state’s disciplinary reach.

Olson’s account of marriage’s disciplinary possibilities accords with marriage’s history. As this Article recounts, from the mid- nineteenth century to the mid-twentieth century, marriage played an integral role in the enforcement and administration of criminal seduction statutes. Recovering this history of marriage and seduction not only reveals the complicated relationship between criminal law and family law, it also makes clear that family law, through the institution of marriage, was, no less than criminal law, an important disciplinary force in the lives of men and women.

The history of criminal seduction offers useful lessons for the contemporary practice of marriage. Though the popular discourse of marriage focuses on the institution’s many salutary benefits, it elides more substantive discussion of its disciplinary content and punitive history. As this Article argues, marriage, like the criminal law, continues to be one of the technologies of discipline that is deployed by the state in the project of constructing and replicating a disciplined citizenry.

Recognizing and acknowledging marriage’s disciplinary qualities complicates the extant jurisprudence of rights that, most recently, has focused on the right to marry. As this Article has argued, marriage’s role as a technology of discipline requires us to reconsider the marriage right as more than simply a right of access, but rather a right of access to the disciplinary force of the state.

Reframing the right to marry and the institution of marriage along these lines would allow a more accurate depiction of marriage—one that is transparent and forthright about marriage’s disciplinary character. Greater transparency and accuracy in our discourses of marriage is important for those who seek marriage, and for those who would avoid it. Transparency not only helps illuminate what marriage is — it prompts us to think seriously about alternatives for those who would prefer to live their lives outside of the state’s disciplinary domains. Accordingly, this Article strives not only toward a more accurate understanding of marriage, but toward the possibility of sexual liberty untethered to marriage.

Upstairs

2012-01-21T12:10:00.006+11:00

Posts in this blog over the past two years have noted the misadventures of self-described "eerily accurate, profound clairvoyant" and witch Eilish De Avalon, a person whose supposed ability to see the future didn't save her from a traffic dispute with the police and whose claim that a Victorian court had no jurisdiction over witches was - quelle horreur - not accepted by that court.

The Northern Star reports that -

A mother and daughter told a court only God had the authority to order them to pull down an illegal extension to their South Golden Beach property, but the magistrate took a different view.

So far God apparently hasn't endorsed the statement by afflicting the magistrate with boils, a plague of toads and scorpions, or other indications of His displeasure.

The item indicates that

In a hearing at Mullumbimby Local Court on Thursday, Byron Shire Council argued the downstairs area of the property was not approved to live in as part of the original development consent and it should be demolished.

The council's governance manager, Ralph James, said despite several requests over the past two years, the property owner had not taken any reasonable steps to get the downstairs development approved or cease use of the area.

"Of concern was the fact that the house was located in an area that is subject to flooding," he said.

It's unclear whether the property owners are unfussed about inundation, welcoming floods as a God working in the same mysterious ways that include affliction with cancer, freckles, a taste for Elvis or ability to make cheap gibes in a blog.

The NS goes on to note that -

The council was originally notified of the illegal extensions by a community member and the matter was listed for December 1, 2011 but the defendants failed to attend.

When the matter was heard, the women submitted a written argument stating they did not have to submit to the jurisdiction of the court, or the council

God was only jurisdiction they recognised, she told the court.

No sign, alas, of whether non-recognition of Australian jurisdictions purportedly obviates the need to pay tax, observe the road rules, refrain from the keeping of slaves or burning witches, and other niceties.

Ms De Avalon's meanwhile out of custody, after two months in prison, and delighting the mass media with headlines such as "Witch ritual in church incites Father's fury". The Herald Sun - where would we be without it - reports that -

A witch who went to jail for dragging a policeman 190m with her car has hijacked a wedding ceremony being performed by the reverend Father Bob Maguire.

Father Maguire said he felt like the "devil took over me" when Eilish De Avalon conducted a Pagan Handfasting Ceremony at a Brighton Catholic church.

Father Maguire said he had warned the woman to tone back her scripts for the January 7 wedding but was "taken for a ride" on the day.

Ms Avalon, who was jailed for two months last June after pleading guilty to recklessly causing serious injury, dangerous driving, driving while suspended and using a mobile phone while driving, yesterday confirmed to the Herald Sun it was the first time she had performed the ceremony in a church, but declined to speak further.

Handfasting ceremonies are performed for same-sex couples, opposite gender couples and for multiple partners.

The bride and groom's hands are tied during the ceremony and vows are usually taken for a year and a day.

At the end of some services, the couple jump over a broomstick. ...

Fr Maguire said: "She is using me as an endorsement to blow her own trumpet. She took an opportunistic advantage of the parish.

"I was taken for a ride and blindsided. Once in the saddle she took over the place. It was like the devil got a hold of me.

Cybertravel

2012-01-20T14:58:00.002+11:00

'The Future of Cybertravel: Legal Implications of the Evasion of Geolocation' by Marketa Trimble in 22 Fordham Intellectual Property, Media & Entertainment Law Journal (2012) considers geolocation questions.

Marketa comments that -

Although the Internet is valued by many of its supporters particularly because it both defies and defeats physical borders, these important attributes are now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by Internet users based on their geographical location – a territorial partitioning of the Internet. This article, as opposed to earlier literature on the topic discussing the possible virtues and methods of raising borders in cyberspace, focuses on an Internet activity that is designed to bypass the territorial partitioning of cyberspace and render any partitioning attempts ineffective. The activity – cybertravel – permits users to access content on the Internet that is normally not available when they connect to the Internet from their geographical location. By utilizing an Internet protocol address that does not correspond to their physical location, but to a location from which access to the content is permitted, users can view or use content that is otherwise unavailable to them. Although cybertravel is not novel (some cybertravel tools have been available for a number of years), recently the tools allowing it have proliferated and become sufficiently user-friendly to allow even average Internet users to utilize them. Indeed, there is an increasing interest in cybertravel among the general Internet public as more and more website operators employ geolocation tools to limit access to content on their websites from certain countries or regions.

This paper analyzes the current legal status of cybertravel and explores how the law may treat cybertravel in the future. The analysis of the current legal framework covers copyright as well as other legal doctrines and the laws of multiple countries, with a special emphasis on U.S. law. The future of the legal status of cybertravel will be strongly affected by the desire of countries and many Internet actors to erect borders on the Internet to facilitate compliance with territorially defined regulation and enjoy the advantages of a territorially partitioned cyberspace. This paper makes an attempt to identify arguments for making or keeping certain types of cybertravel legal, and suggests legal, technical, and business solutions for any cybertravel that may be permitted.

She suggests that -

If we accept the premise that cybertravel, or the capability of a user to use the Internet as if he were located in a location other than where he is physically located, is socially valuable and worth permitting in some form, the question turns to the conditions under which cybertravel could be legal. ... the existence of this capability does not depend on permitting anonymity on the Internet; anonymization and cybertravel need not go hand in hand.

Thinking about the possible future of cybertravel requires a consideration of all the various policies and business motives that lead website operators to limit access to their content on the Internet. First, website operators design content limitations to enhance user convenience by localizing accessible content, for example by showing advertisements for local businesses. Second, website operators may have contractual obligations with content providers, for example to limit access to video programs that a provider has licensed only for certain countries or regions. Third, the operators may limit access to content to comply with laws that prohibit certain types of content in certain countries, for example by blocking gambling when it is outlawed by some countries; prohibitions may also apply, however, for less-maligned content that may be made inaccessible because of countries’ legal requirements – for instance, countries’ consumer protection laws may require certain products to be offered only if they have been certified for use in the country. Fourth, website operators may decide voluntarily to limit access to content to avoid being exposed to personal jurisdiction and liability in certain countries where they wish to avoid litigation, taxes, regulation or some other type of obligation. Finally, website operators may implement access limitations for security reasons; for example, a bank will not allow a user from outside the account holder’s country of residence to log into the account holder’s account because the bank assumes that such a login is a fraudulent attempt to access the account.

The first type of restriction – content localized for advertising or for user convenience – should cause the least difficulty. There should be no reason for prohibiting users from viewing this type of content as if they were sitting in another country. In fact, website operators such as Google and Lufthansa offer links to allow users to switch easily among different country versions. This switching may not be completely without cost to the website operator, however; if users regularly escape the “convenience” of localized content and use other country versions in lieu of their own local versions, it may diminish website operators’ advertising revenues because they lose some of the advantage that a partitioned cyberspace provides in allowing them to charge premium advertising rates for advertisements that target local consumers.

Cybertravel that is used to evade the other types of access limitations listed above is problematic. It is unrealistic to expect countries to allow users connecting to the Internet from their territory to bypass any prohibitions against certain content or activities by cybertraveling to another country where such content or activities are expressly or implicitly permitted. Allowing cybertravel for these purposes would defeat the public policies behind the prohibitions and undermine national sovereignty. Similarly, it is difficult to defend cybertravel that is used for the purpose of bypassing geolocation tools employed by website operators who are complying with contractual obligations, seeking to avoid personal jurisdiction and liability, or protecting themselves and others against criminal activities. The question is whether there is a way to permit cybertravel when it is conducted to avoid these types of limitations but the conduct has a legitimate goal, such as accessing one’s own bank account from a foreign country. The method of cybertravel is not important, because the tools for its implementation will change; what is important is that travel to another portion of cyberspace be possible.

There are three perspectives from which possible solutions for the future of cybertravel will arise: legal, technical and business. As has been shown by other examples in the Internet environment, a combination of solutions from all three perspectives seems most likely to succeed. For example, laws that prohibit copyright infringement have not stopped online music piracy, and neither have filters that have been imposed by Internet service providers or automatic warnings that are generated by college campus service providers. Although these measures and laws addressing piracy have probably slowed online music and film piracy, the solutions had to be assisted by business solutions, such as iTunes and Netflix, to offer a legal and viable alternative to piracy.

As discussed earlier ... a number of legal doctrines cover issues potentially associated with cybertravel; however, because these doctrines were neither created for nor shaped with cybertravel in mind, court interpretation will be required to determine to what extent the doctrines may make illegal all or some instances of cybertravel. Whatever the status of cybertravel will be, it will be beneficial to clarify the applicability of existing laws to cybertravel and possibly draft specific regulations to govern cybertravel further. If IPv6 makes IPv4 obsolete and a transition actually occurs to permanently assigned or embedded IP addresses, the transition could provide momentum for the creation of cybertravel-specific legislation, and perhaps even for an agreement on a legislative solution at the international level.

Within some permitted extent, cybertravel, as an equivalent to physical international travel, could be subject to reasonable limitations; traditionally, the obligation to carry a passport is considered one such limitation, and a digital passport could serve this purpose for cybertravel. The passport could either be a virtual equivalent to a physical passport and carry the same personally identifiable data of the holder/Internet user, or be a document with only limited information, such as the user’s location. The location identified in either type of passport could be either the current physical location of the user or the place of residence or domicile of the user, depending on the criterion that was set as the factor determining the accessibility of the Internet content.

Although intuition seems to dictate the selection of the user’s current physical location as the determining factor, the other option – place of residence or domicile – should not be excluded summarily. The prevailing principle of territoriality of law suggests that current physical location be the correct solution; under the principle, laws apply territorially, or alternatively stated, the prescriptive jurisdiction of a country extends only to the country’s borders – and outside its borders only to the extent that the country’s jurisdiction covers acts that have effects within its borders. Another principle, the principle of personality of law, exists as well, but with less applicability because the principle of territoriality of law applies to the vast majority of the legislative activities of a country. The use of residence or domicile as the determinative factor for access to Internet content would present a remarkable opportunity to introduce the principle of personality of law for activity on the Internet. Under this principle countries legislate for their own nationals and permanent residents and the laws follow those persons wherever they travel. An analysis of the issues surrounding personality of law on the Internet is beyond the scope of this paper and deserves a separate study, but is worth mentioning.

A law for digital passports cannot exist without a technical implementation. It is not difficult to imagine such a system if the IPv6-related vision of permanently assigned or embedded IP addresses that would identify specific devices (or even persons if the devices were embedded in human bodies) becomes a reality; the law could make it illegal to change or reroute an IP address because that act would be equivalent to forging a physical passport. The digital passport would inform each website operator about the location of the user, or the user’s residence or domicile, depending on the information in the passport.

Knowing exactly how many cybertravelers are connecting to a website and from what locations could assist intellectual property owners, for example, in the creation of tailored licensing schemes; if information about cybertravelers were to include personal identifiers, the system could become what Paul Goldstein described in 1994 as the “celestial jukebox” – a service that would allow on-demand access to copyrighted works from anywhere in the world for a fee. The digital environment is perfectly equipped to implement this system; in such a world, each user could access copyrighted works from anywhere in the world and be charged only for works that the user accessed. This is where a technical solution would prompt the need for a business solution.

What hampers progress towards a celestial jukebox are the significant transaction costs associated with the identification and location of right holders and the negotiation of licenses with multiple right holders. The magnitude of these costs must be addressed in order for global licensing to be feasible, and there are initiatives being developed in this area to pave the way for this type of solution; for example, experts have proposed that the World Intellectual Property Organization create and administer an international repertoire database, and other experts are exploring possibilities for cross-border collective management of rights in the digital environment.

Even without a celestial jukebox solution that would cover all works globally, and even without digital passports, there is clearly space for smaller-scale business solutions to meet the challenges of cybertravel. If content is limited because of the contractual obligations of website operators, cybertravel could be enabled by global or regional licensing schemes that would allow operators to offer selected content either worldwide or in selected countries. Instead of paying cybertravel providers to facilitate cybertravel, users would pay for access directly to website operators, who would then bear any licensing costs and any other costs associated with the content, such as a public television licensing fee.

Of course, these solutions are directed only towards access to content that is restricted because of contractual limitations; any content that is illegal in a country will continue to be inaccessible to users accessing the Internet from that country, and potentially to nationals or permanent residents of that country even when they are temporarily present in another country, if digital passports are used. For certain types of content – and the instances of these types of content are likely to be limited – countries may reconsider the legal status of content in light of the possibilities afforded by digital passports. For example, some countries might reconsider their stance on online gambling if they have the ability to tax users located in their country who use foreign online gambling sites.

The solutions also fail to address cases in which access to content is limited by a website operator’s or content provider’s choice; these cases arise because of issues of jurisdiction, taxation or online security. When website operators or content providers decide sua sponte to restrict their content to certain viewers, users have minimal recourse; only in rare circumstances will a government direct private entities to make content more widely available than it already is. Here a system of digital passports could prove useful; for example, if access to content were based on a user’s permanent residence, content could be made available to a qualified user while he was temporarily located in another country, without exposing the website operator to jurisdiction or taxation in that country.

Finally, knowledge of the numbers and physical locations of cybertravelers could make possible not only sophisticated licensing arrangements but also agreements – either private (meaning between individual content providers and website operators) or international (meaning among countries) on an acceptable level of free spillover. In the physical world, it is accepted that due to international travel, some content limited to a certain country will be available to those who travel to that country. For example, when distribution rights under copyright are licensed for one country, it is understood that some of the copyrighted works will land in the hands of persons who are present in the country only temporarily and those persons may carry the work with them to other countries; laws provide exceptions for individual users to do this because it is considered natural spillover. Exceptions for a similar reasonable spillover could be permitted for cybertravel. However, without information about the extent of cybertravel, it is impossible to find arguments to support the exceptions for the spillover; a passport system would allow the collection of such information.

Abuse

2012-01-20T09:51:00.003+11:00

The Australian Institute of Health & Welfare has released its 150 page Child Protection Australia 2010-11 report [PDF], indicating that the number of notifications of child abuse or neglect to state/territory child welfare departments continued to fall in 2010–11, although the number and rate of children in substantiated cases remained stable.

There was a 13% fall in the number of children subject to notifications of possible child abuse or neglect compared with the previous year. During the same period, the number of children in substantiated cases (ie where a govt agency "concluded that the child has been, is being, or is likely to be abused, neglected, or otherwise harmed") was stable - rising by less than 1%.

In 2010–11, there were 237,273 notifications of potential child abuse or neglect involving 163,767 children. Of these notifications, over half were investigated and just over a third were substantiated.

There were 31,527 children involved in substantiated cases during 2010–11, ie 6.1 for every 1,000 Australian children aged 0–17. The report notes that -

Children aged under 12 months were most likely to be the subject of a substantiation of child abuse or neglect. However, over the past five years we have seen a large fall in reported rates of abuse and neglect for those under 12 months of age, from 17 to 12 per 1,000 children

The number of children on care and protection orders at 30 June 2011 rose by 4% from the previous year. The number of children in out-of-home care at 30 June 2011 rose by 5%. Although the total number of children on care and protection orders and in out-of-home care has increased, the number of new admissions into out-of-home care per year has fallen, suggesting that children on existing orders may be staying longer in out-of-home care.

As in previous years, the vast majority of children in out-of-home care lived in home-based care, primarily in foster care (45%) or with relative/kinship carers (46%).

The report states that -

Aboriginal and Torres Strait Islander children continue to be over-represented within the child protection system. Aboriginal and Torres Strait Islander children were 7.6 times as likely as non-Indigenous children to be the subject of a child protection substantiation, and 10 times as likely to be in out-of-home care.

The most common type of substantiated abuse for Indigenous children was neglect, which made up 38% of all substantiated cases, compared with 23% for non-Indigenous children.

Reality

2012-01-20T09:34:00.002+11:00

Early year law and justice studies students would benefit from reading the short 'Uses and abuses of crime statistics' (NSW Bureau of Crime Statistics and Research) [PDF] by Don Weatherburn

Weatherburn, with understandable exasperation, comments that "Large sections of the media habitually distort, misrepresent and exaggerate the facts on crime". He goes on to note that -

Between 2000 and 2009, the Australian national murder rate fell by 39 per cent, the national robbery rate fell by 43 per cent, the national burglary rate fell by 55 per cent, the national motor vehicle theft rate fell by 62 per cent and all forms of other theft fell by 39 per cent. Australia is now into its 11th straight year of falling or stable crime rates. Property crime rates in some States are lower than they’ve been in more than 20 years. You might think this a cause for celebration but the vast majority of Australians still think crime is going up. The reason for this is fairly clear. Most people get their information about crime from the media—and large sections of the media habitually distort, misrepresent and exaggerate the facts on crime.

The abuse of crime statistics is so common it has in some quarters engendered great skepticism about them. The saying there are ‘lies, damned lies and statistics’ is probably nowhere more frequently uttered than in the context of crime statistics. Yet whether we like them or not, crime statistics are here to stay. We have to make judgments about the prevalence of crime, about trends in crime, about the distribution of crime and about the impact of Government efforts to prevent and control crime. We cannot base these judgments on personal experience and anecdote. They have to be based on statistical information. The challenge facing those who produce and use crime statistics is how to do so in a way which is not misleading and which helps rather than hinders our understanding of crime. This bulletin is designed to help those unfamiliar with crime statistics to understand their uses and abuses.

Crunching Breaches

2012-01-19T16:57:00.005+11:00

'Empirical Analysis of Data Breach Litigation', a paper by Sasha Romanosky, David A. Hoffman & Alessandro Acquisti for the 39th Telecommunications Policy Research Conference (TPRC) 2011, comments that -

Legal privacy scholarship typically emphasizes the various ways that plaintiffs fail when bringing legal actions against entities when their personal information is lost or stolen. However this scholarship often considers only a small set of published judicial opinions from large-scale data breaches. And so, little is actually known about the characteristics and disposition of a representative set of data breach lawsuits.

Using a unique sample of anually-collected data from Westlaw and PACER, we analyze the court dockets of over 200 federal data breach lawsuits from 1998 to 2011, making this, to our knowledge, the first empirical examination of data breach litigation. We use discrete outcome regression models to estimate the probability that a data breach will result in a lawsuit, and the probability that, once filed, the case will reach settlement. We find that breaches resulting from the unauthorized disclosure or disposal of personal information are 6.9% more likely to result in lawsuit, relative to breaches caused by lost or stolen hardware, whereas breaches caused by cyber-attack are only 2.9% more likely to result in lawsuit.

These results suggest that plaintiffs respond more to the careless or negligent handling by a firm of their personal information, than to the firm’s inability to withstand a cyber-attack or misfortune of losing a laptop. However, while these properties may explain the probability of lawsuit, we find that breach characteristics (size, cause and types of information lost) do not significantly predict the outcome of a data breach lawsuit. Instead, the probability of settlement appears to be driven by the presence of actual financial loss, and class certification.

The authors conclude that -

The proliferation of data breach disclosure laws has heightened awareness of data breaches and catalyzed a flurry of lawsuits by alleged victims of identity theft. These disputes have arisen from the vigorous debate surrounding the use, and dissemination of personally identifiable consumer information. On one hand, collection of both public and private consumer information spawns innovation and reduces consumer costs. For example, data aggregators such as Choicepoint provide valuable services both to retail consumers (facilitating low-cost insurance premiums and lending rates) and corporate or government entities (employee background checks, assisting law enforcement, etc.). On the other hand, consumer advocates argue that the aggregation and storage of this personal information pose great risk to consumers, and its inadvertent or negligent disclosure can lead to many forms of identity theft, fraud, and abuse.

While most legal scholarship has highlighted the difficulties that plaintiffs face when bringing lawsuits because of these data breaches, to our knowledge, there has been no empirical research that has systematically and rigorously examined these suits. Using a hand-collected dataset of over 200 lawsuits, we provide a first-ever empirical analysis of federal data breach litigation in the United States. Our results suggest that individuals are more likely to file suit when the breached is caused by careless or negligent disclosure of personal information, relative to lost or stolen hardware. We also find that disclosure of financial information, though not social security numbers, also significantly increases the probability of suit. Moreover, while these characteristics of the breach (size, cause, types of information lost) were found to be strong predictors of the probability of lawsuit, they were not found to be significantly correlated with the outcome of the suit. Instead, specific instances of identity theft or fraud, class certification and multi-suit litigation were each found to significantly increase the probability that a data breach lawsuit would result in settlement.

The unconditional probability that any given data breach will result in a lawsuit is very small, 5.5%. Nevertheless, conditional on being filed, lawsuits settle almost twice as often as they are dismissed (51% versus 27%, respectively). While this result is still somewhat lower than current literature would predict (Eisenberg and Lanvers; 2009, table 4), it represents a novel insight because legal scholarship typically only emphasizes the failures of data breach claims. However, despite the large proportion of settled cases, the overall probability that any given data breach will settle is still only around 3%. Defendants, however, are surely not immune to the threat and expense of litigation: public actions brought by government entities are very successful, and legal fees can reach millions of dollars.

But is litigation the proper solution? Recall how we identified 86 unique causes of action alleged by plaintiffs for essentially the same event: the unauthorized disclosure of personal information. Does this huge diversity suggest that the current legal system is ill-equipped to efficiently resolve modern data breach harms? Does it expose the limitations of common law and statutory claims brought by individuals seeking redress from data breaches and resulting harms, be they actual, emotional, or anticipated harm?

In an attempt to address these questions, the US Department of Commerce (Department of Commerce, 2010) the Federal Trade Commission (FTC, 2010) have each crafted guidelines for a comprehensive privacy framework identifying best practices for the collection, use and protection of personal information. In particular, the Department of Commerce specifically asks, “should baseline commercial data privacy legislation include a private right of action?” (Department of Commerce, 2010, 30). That is, what role should a private right of action have in redressing harms from privacy intrusions? The outcome of such a proposal, presumably, would allow private individuals to bring legal actions, and obtain redress, for a firm’s mere violation of new data protection or consumer privacy statute. However, the tensions generated by such a proposal are grueling: on one hand, the threat of private class-action litigation may be necessary in order to induce firms to protect personal information, especially in light of the limited resources of public enforcement agencies such as the FTC, SEC, state attorneys general. On the other hand, such a liability regime could impose socially excessive costs on firms as a result of potentially massive damage awards and legal fees.

First Peoples

2012-01-19T15:53:00.006+11:00

The Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples has presented its 303 page final report [PDF] to the Australian Government.

The Panel was appointed by the Government in December 2010. It was tasked with "leading a broad national consultation program to seek views from across the Australian community about ideas for recognising Indigenous people in our nation's Constitution". In formulating its recommendations it adopted four principles to guide its assessment of proposals for constitutional recognition of Aboriginal and Torres Strait Islander peoples, namely that each proposal must:

• contribute to a more unified and reconciled nation;
• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;
• be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
• be technically and legally sound.

The report states that -

Current multiparty support has created a historic opportunity to recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia, to affirm their full and equal citizenship, and to remove the last vestiges of racial discrimination from the Constitution.

The Panel accordingly makes several recommendations for changes to the Constitution, which would be achieved through a constitutional referendum.

The Panel recommends that section 25 of the Constitution, be repealed. That section, dealing with the House of Representatives, states that -

... if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted.

The Panel also recommends that section 51(xxvi) be repealed. That section deals with the powers of the Parliament. It reads -

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ... The people of any race, for whom it is deemed necessary to make special laws

Alongside those repeals a new ‘section 51A’ should be inserted. The Panel recommends that the section be along the following lines:

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;

Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;

Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;

Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;

the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

The Panel further recommends that the repeal of section 51(xxvi) and the insertion of the new ‘section 51A’ be proposed together.

A new ‘section 116A’ should be inserted, along the following lines:

Section 116A Prohibition of racial discrimination

(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.

(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

Additionally, a new ‘section 127A’ be inserted, along the following lines:

Section 127A Recognition of languages

(1) The national language of the Commonwealth of Australia is English.

(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.

The Panel makes recommendations on the process for the referendum

a. In the interests of simplicity, there should be a single referendum question in relation to the package of proposals on constitutional recognition of Aboriginal and Torres Strait Islander peoples set out in the draft Bill (Chapter 11).

b. Before making a decision to proceed to a referendum, the Government should consult with the Opposition, the Greens and the independent members of Parliament, and with State and Territory governments and oppositions, in relation to the timing of the referendum and the content of the proposals.

c. The referendum should only proceed when it is likely to be supported by all major political parties, and a majority of State governments.

d. The referendum should not be held at the same time as a referendum on constitutional recognition of local government.

e. Before the referendum is held, there should be a properly resourced public education and awareness program. If necessary, legislative change should occur to allow adequate funding of such a program.

f. The Government should take steps, including through commitment of adequate financial resources, to maintain the momentum for recognition, including the widespread public support established through the YouMeUnity website, and to educate Australians about the Constitution and the importance of constitutional recognition of Aboriginal and Torres Strait Islander peoples. Reconciliation Australia could be involved in this process.

g. If the Government decides to put to referendum a proposal for constitutional recognition of Aboriginal and Torres Strait Islander peoples other than the proposals recommended by the Panel, it should consult further with Aboriginal and Torres Strait Islander peoples and their representative organisations to ascertain their views in relation to any such alternative proposal.

h. Immediately after the Panel’s report is presented to the Prime Minister, copies should be made available to the leader of the Opposition, the leader of the Greens, and the independent members of Parliament. The report should be released publicly as soon as practicable after it is presented to the Prime Minister.

In discussing the contentious issue of sovereignty the report comments that -

The four principles agreed to by the Panel for its assessment of proposals for constitutional recognition include that a proposal 'must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples'. For this reason, the Panel has recorded the voices of those who have raised questions about the continuing sovereign status of Aboriginal and Torres Strait Islander peoples.

As the National Indigenous Lawyers Corporation of Australia noted in its submission, recognition or attribution of sovereign status is unlikely to be given any serious consideration in this round of reform. It counselled, however, that it would 'be remiss of the Panel not to state clearly in its report that recognition of our sovereign status is an aspiration of Aboriginal people and Torres Strait Islanders and an issue that will need to be confronted at some stage in the not too distant future'.

Advice received by the Panel is that the sovereignty of the Commonwealth of Australia and its constituent and subordinate polities, the States and Territories, like that of their predecessors, the Imperial British Crown and its Australian colonies, does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples. It derives from the majority view of the High Court in Mabo v Queensland (No 2) that the basis of settlement of Australia is and always has been, ultimately, the exertion of force by and on behalf of the British arrivals. Advice to the Panel is that recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled. Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.

Any proposal relating to constitutional recognition of the sovereign status of Aboriginal and Torres Strait Islander peoples would be highly contested by many Australians, and likely to jeopardise broad public support for the Panel's recommendations. Such a proposal would not therefore satisfy at least two of the Panel's principles for assessment of proposals, namely 'contribute to a more unified and reconciled nation', and 'be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums'.

While questions relating to sovereignty are likely to continue to be the subject of debate in the community, including among Aboriginal and Torres Strait Islander Australians, the Panel does not consider that these questions can be resolved or advanced at this time by inclusion in a constitutional referendum proposal.

Qualitative research undertaken for the Panel in August 2011 found that 'sovereignty' and 'self-determination' were poorly understood concepts. Given the apparent diversity of current understanding in relation to the meaning of sovereignty and its significance, any such proposal is also unlikely to satisfy the fourth of the Panel's principles, namely the requirement that it be 'technically and legally sound'.

Rich and strange

2012-01-16T16:15:00.006+11:00

One of my more affluent friends quips that you can tell what God thinks about money by the people he gives it to.

I'm reminded of that aphorism in reading Ashton v Pratt (No 2) [2012] NSWSC 3, a dispute over the wealth of colourful entrepreneur Richard Pratt.

The ABC reports that -

A former Penthouse Pet and mistress to the late cardboard mogul Richard Pratt has lost her multi-million-dollar claim on his estate.

The New South Wales Supreme Court ruled that Madison Ashton and her billionaire lover did not intend to enter into a legally binding relationship.

It also found a $100,000 payment she accepted from Mr Pratt finalised any deal made between the pair.

The judgment is more interesting, bother for its affirmation of a range of legal principles and for reported conversations that on occasion read as bad soap opera. Do people really speak that way?

The Court indicates that -

Between about 1995 and 1997, the plaintiff Madison Ashton provided what are euphemistically called escort services to the late Richard Pratt, a married man of exceptional wealth, from time to time, for reward. This came to an end when Ms Ashton married a third party in April 1997. Following the breakdown of her marriage, and of a subsequent de facto relationship, contact between Ms Ashton and Mr Pratt resumed in October 2003. Ms Ashton contends that in a conversation between them in November 2003, Mr Pratt promised her that, in consideration of her not returning to the escort industry but providing services (non-exclusively) to him as his mistress on occasions when he was in Sydney (which was typically one and sometimes two nights per week), he would settle $2.5 million upon trust for each of her two children, pay her an allowance of $500,000 per annum, and in addition pay her $36,000 per annum for her rental accommodation and $30,000 per annum for travel expenses in connection with her proposed business. Ms Ashton now sues Mr Pratt's widow, as the executor of his estate, on those promises, in contract and alternatively equitable estoppel. The main issues are:
1) Whether (as a matter of fact) Mr Pratt made the alleged promises;

2) If so:

(a) whether the promises were sufficiently certain to amount to a contract;

(b) whether they were intended to create legal relations; and

(c) whether they are unenforceable for public policy reasons;

3) If not enforceable in contract, whether the promises are enforceable by way of equitable estoppel; and

4) Whether Ms Ashton's claims are not maintainable by reason of having been previously compromised and released, in February 2005 or November 2005.

Fans of 'lives of the rich & famous' will presumably enjoy passages such as

Ms Ashton was adamant that her obligations to Mr Pratt did not require that her relationship with him be exclusive, so that she was at liberty to bestow her favours on others also. In about February 2004, Ms Ashton commenced - she says with Mr Pratt's concurrence - a sexual relationship with one Mr Sean Bowman, a bodyguard of Mr Pratt who had apparently intimidating qualities, which relationship continued, at varying degrees of intensity, until mid to late 2005.

I am more enthused by the restatement of law, such as -

Save for tendering some documents, the defendant called no evidence. Mr Gray had sworn an affidavit which had been filed and served, but ultimately was not read. Ms Ashton's evidence therefore was, although strongly challenged, uncontradicted. In these circumstances, it is worth recording the approach of the court to the finding of facts.

The plaintiff bears the onus of proof. In a civil case such as this, the standard to which she must prove her case is the balance of probabilities, but this nonetheless involves "actual persuasion" [Watson v Foxman (1995) 49 NSWLR 315, 319].

18In the case of a claim against a deceased estate founded on the oral utterances of the deceased, which only the deceased could have denied, the Court scrutinises the claimant's evidence closely [Plunkett v Ball (1915) 19 CLR 544, 548-549 (Isaacs J); Bovaird v Frost [2009] NSWSC 337, [45]; Varma v Varma [2010] NSWSC 786, [418]-[422]], and although there is no absolute legal requirement for it, ordinarily looks for some corroboration [Re Hodgson (1886) 31 Ch D 177; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)].

19In certain circumstances, a court may infer from a party's failure to call a relevant witness that the evidence such a witness would have given would not have assisted the party's case, so as to enable the more ready drawing of adverse inferences otherwise available on the evidence [Jones v Dunkel (1959) 101 CLR 298]. This does not arise unless it is established that the relevant witness has relevant knowledge to put before the Court, and is under the control of the party who might be expected to have called that witness, or at least is not practically available to the other party [Payne v Parker [1976] 1 NSWLR 191, 196, 197].

There are many reasons for doubting the reliability of Ms Ashton's version. These include that she (orally) denied having had a drug habit in late 2004 and 2005, when her affidavit evidence referred to "my habit at that time" - which she incredibly explained as a reference to her not having a drug habit at the time; that she denied any knowledge of Mr Bowman seeing a woman by the name Michelle, when in a statement to police in early 2006 she had asserted that he was doing so; and that she was unable to explain why her claim included $500,000 per annum allowance for some years after Mr Pratt's death. Further, for reasons that will appear, I have found myself quite unable to accept Ms Ashton's claims to have had a telephone conversation as she claims with Mr Pratt on 11 February 2005.

More fundamentally, while Ms Ashton's Statement of Claim pleaded that the relationship came to an end in 2004, and her affidavit evidence was to the same general effect, her oral evidence was that their relationship continued, albeit much more sporadically, until late 2005. However, the telephone records of the parties provides strong evidence that their "relationship", such as it was, had concluded by about April 2004, which corresponds with when Mr Pratt resumed his relationship with Ms Hitchcock, and Ms Ashton commenced a relationship with Mr Pratt's bodyguard, Mr Bowman. Between 7 May and 19 July 2004, there was telephone contact between them on only three days. Thereafter, the next telephone contact was on 17 January 2005. The tenor of Ms Ashton's 19 January 2005 letter is against there being an on-going "mistress" relationship at that time. The records evidence one short (1 minute) telephone call by Ms Ashton to Mr Pratt on 19 January 2005, another (2 minutes) on 25 January, and several on 7 February 2005, but none thereafter. As well as the telephone records being devoid of any evidence of later contact between them, Ms Ashton was unable to name any person who saw them together after mid 2004 - which was not assisted by her unconvincing resort to Mr Pratt's driver and concierge, when she was later to say that they did not in any event meet at his apartment at that time. I therefore do not accept her assertion of an on-going relationship with Mr Pratt after mid-2004.

Moreover, as was pointed out on behalf of the defendant, there were some differences between the version in Ms Ashton's affidavit, and the version in her verified pleading. The pleaded version was that Mr Pratt promised to establish a trust fund of $2.5 million for each of her two children "to be managed by the plaintiff for the benefit of the said children who are presently minors" - not that he would make the arrangements for setting up of the trust, as her affidavit version describes. Secondly, it was pleaded that Mr Pratt would pay the rent on her rented apartment, when the affidavit version was that he would pay rent for her if she moved out of that apartment. But I do not find those discrepancies particularly telling. Reference was also made to the circumstance that the pleading referred to a "retainer of $500,000 nett of taxation", while the affidavit referred to it being "tax free"; I see no significance at all in this supposed discrepancy.

On the other hand, in the context of the extraordinary wealth involved and the extraordinary circumstances of this extraordinary case, including the evidence bearing on Mr Pratts' relationship with Ms Hitchcock, I do not accept that Ms Ashton's account is inherently incredible. Some corroboration, albeit not independent, of Ms Ashton's version of the critical November 2003 conversation is provided by her letter of 19 January 2005. About it, the following observations must be made. First, it does not refer to the alleged allowance of $500,000 per annum, which - at least on one view - was the most significant of the alleged promises. Ms Ashton says that she raised this in her subsequent telephone conversation with Mr Pratt, and described its omission from the letter as a "huge mistake". Secondly, the letter does not assert an entitlement to be paid in accordance with the promises, but seeks a "payment figure" by way of "financial help"; it asks for a payment in the light of damage to Ms Ashton's reputation said to have been inflicted by Ms Hitchcock. This tends against a view that the promises were intended to be legally binding and enforceable.

Similarly, some further corroboration is afforded by the circumstance that Ms Ashton consulted solicitors with a view to initiating the present claim in January 2009, while Mr Pratt was alive, at a time when she could not have known that he would soon die, although it was not formally asserted until December 2009, after his death. Nonetheless the claim had been raised by Ms Ashton against Mr Pratt during his lifetime, in the 19 January 2005 letter, at a time when he was able to answer it, and in circumstances in which, even after his death, Mr Gray became sufficiently appraised of it to be able to answer it. At least to an extent, this distinguishes her claim from those which typically attract the rigours of Plunkett v Ball and Re Hodgson. ...

I therefore find, on balance, that Ms Ashton and Mr Pratt had a conversation in or about November 2003 substantially to the effect deposed to by Ms Ashton, in which he told her that he would establish trusts of $2.5 million for each of her two children, pay her an allowance of $500,000 per year, pay up to $36,000 per annum for rental accommodation for her (or buy her a house in the eastern suburbs), and pay $30,000 per annum for her business expenses, particularly travel.

In considering claims regarding a contract between the cardboard czar and Ms Ashton the Court comments that -

I do not accept that the terms of the arrangements discussed in the November 2003 conversation are too uncertain and incomplete to make a contract. Nonetheless, I am unpersuaded that Mr Pratt and Ms Ashton intended to make a contract. In the absence of express statement that their arrangements were or were not intended to be legally binding, intention to create legal relations is an inference of fact, determined objectively; accordingly, Ms Ashton's subjective intentions in that respect are not relevant [Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 105-7, [24]-[28]; Darmanin v Cowan [2010] NSWSC 1118, [204]-[215]].

Family, social, and domestic arrangements do not normally give rise to binding contracts, because the parties lack the necessary intention [Teen Ranch Pty Ltd v Brown (1995) 87 IR 308, 310 (Handley JA, referring to Balfour v Balfour [1919] 2 KB 571)]. In Balfour, a husband's promise to pay his wife an allowance of 30 per month until she could rejoin him in Ceylon was held not binding for lack of intent that it be legally enforceable. In Cohen v Cohen (1929) 42 CLR 91, Dixon J (as he then was) held an arrangement between intending husband and wife as to a dress allowance to be not a contract (at 96):
The parties did no more, in my view, than discuss and concur in a proposal for the regular allowance to the wife of a sum which they considered appropriate to their circumstances at the time of marriage.
In Jones v Padavatton [1969] 2 All ER 616, a mother's promise to maintain her daughter at a specified rate if she would go to England and read for the Bar with a view to later practising in Trinidad was held not legally binding, notwithstanding that performance would necessitate the daughter abandoning secure accommodation and employment in Washington and her teenage son's education there. The court found that the arrangement between the mother and daughter was a family arrangement depending on the good faith of the parties in keeping the promises made and was not intended to be a binding agreement. The daughter's claim thus failed. Salmon LJ said (at 621):
Did the parties intend the arrangement to be legally binding? This question has to be solved by applying what is sometimes (although perhaps unfortunately) called an objective test. The court has to consider what the parties said and wrote in light of all the surrounding circumstances, and then decide whether the true inference is that the ordinary man and woman, speaking or writing thus in such circumstances, would have intended to create a legally binding agreement.
As Ward J has recently explained in Darmanin (at [206]), there is a rebuttable presumption of fact that arrangements or agreements made in a family are not intended to have legal force, the rationale being that, at the time of making the alleged promise, the parties would not have regarded their arrangements in terms of legal consequences. As her Honour also explained (at [207]), this presumption has been applied beyond the family context to other social and domestic arrangements [citing, as examples, Coward v Motor Insurer's Bureau [1963] 1 QB 259; Buckpitt v Oates [1968] 1 All ER 1145; and Parker v Clark [1960] 1 All ER 93].

As I observed in Bovaird v Frost (at [52]), there are of course many examples of cases involving promises to confer benefits on a friend or relative, in consideration of the latter taking up residence with the former or rendering household or personal services, in which the requisite intention to create legal rights and obligations has been found - particularly where implementation of the arrangement involved the promisee leaving existing advantages or selling an existing residence [Wakeling v Ripley (1951) 51 SR (NSW) 183; Todd v Nicol [1957] SASR 72; Parker v Clark; Schaefer v Schumann [1972] AC 572; Tanner v Tanner [1975] 1 WLR 1346; Raffaele v Raffaele [1962] WAR 29; Re Gonin (deceased) [1979] Ch 16]. In Wakeling v Ripely, the act of the plaintiff in leaving a salaried position in Cambridge on the faith of a promise to take up accommodation in Bowral, was considered so serious that it would have been obvious to the defendants that the plaintiffs were relying upon what was considered a definite assurance and a definite agreement, such that it could be inferred that there was an intention to create legal relations; this may be contrasted with Jones v Padavatton, supra. But in this context it is also recognised that a sacrifice might be made in reliance upon a promise on the basis simply of trust in the promisor to honour the promise of support, not because of an intention to create legally binding relations [see Jones v Padavatton, 625 (Fenton Atkinson LJ); Darmanin, [209]].

In the present case, the intent of the arrangements was to establish the basis of the relationship of "mistress". The context was social. Although Ms Ashton agreed not to return to the escort industry, she had already left it and was already embarked on establishing an alternative business, so it was not as if it was obvious that she was relying on an enforceable promise. The parties neither sought legal advice, nor recorded their agreement in writing. Ordinary people in their position would not have intended that in the event that either did not fulfil their respective promises, the other could enforce the promise in a court. There is considerable force in the defendant's submission that it would not have been envisaged that, if Ms Ashton returned to the escort industry, Mr Pratt could obtain an injunction to restrain her; nor that if she did not fully perform the role of "mistress", he could claim damages for disappointment. ...

While in my view this is a case in which the presumption applies and is not rebutted, I am in any event satisfied that the parties did not in November 2003 intend to make a contract. The conclusion which I have reached below on the public policy issue also favours the view that the parties did not intend to create legal relations.

What about public policy?

The defendant did not plead a defence that any such contract as was asserted by the plaintiff was void, illegal or unenforceable on grounds of public policy. However, in my opinion, where a court forms the view that a contract may be void, illegal or unenforceable on public policy grounds, it is bound to address the issue, even if the parties prefer to ignore it [cf Hyde Park Residence Ltd v Yelland [2001] Ch 143, 160 [44]]. In this case, the attention of the parties was drawn to the matter and submissions on it invited; and although not adopted by the defendant, senior counsel for the plaintiff in response made oral and written submissions and referred to some relevant authorities on the issue ...

One of the heads of public policy under which contracts have traditionally and conventionally been held void and illegal is that they are sexually immoral and/or prejudicial to the status of marriage. In Girardy v Richardson (1793) 1 Esp Cas 13, 170 ER 275, Lord Kenyon CJ held that where the wife of the plaintiff - who managed the business of his house in letting the lodgings - let rooms to the defendant who was a "woman of the town", knowing of the defendant's mode of life, the contract for use and occupation of the rooms upon which the plaintiff sued was " contra bonos mores " and could not found an action. The classic case is Pearce v Brooks (1866) LR 1 Exch 213, in which the plaintiffs let on hire to the defendant, a prostitute, a new horse-drawn vehicle, with knowledge that it was to be used in the course of her trade. The contract was held illegal on the ground of sexual immorality. In Upfill v Wright [1911] 1 KB 506, the plaintiff by his agent let a flat to the defendant for a term of three years, the agent knowing that the defendant was the mistress of a certain man, and assuming that the rent would be provided by that man on account of her being a "kept woman". The court held that as the flat was let for an immoral purpose, the plaintiff was not entitled to recover the rent.

In more modern times, the House of Lords in Fender v St. John-Mildmay [1938] AC 1 held that a promise made by a spouse, after a decree nisi for the dissolution of the marriage had been pronounced, to marry a third person after the decree became absolute, was not void as being against public policy. But Lord Wright explained (at 42) (emphasis added):
The law will not enforce an immoral promise, such as a promise between a man and woman to live together without being married, or to pay a sum of money or to give some other consideration in return for immoral association . But nothing of the sort was suggested in this case. On the contrary, the promise, if carried out, would have regularized an immoral association. English law recognises the right of divorced people to marry though their former consorts are alive. The law has furthermore sacrificed a rigid idea of morality to the idea of making reparation by enforcing obligations under seal by a man to pay money to a woman in respect of past immoral cohabitation, though it might have been said that to enforce such obligations tended to encourage immorality.
... Changes in social mores have resulted in a more liberal attitude to contracts providing for or relating to extramarital cohabitation, such that a contract is no longer to be regarded as contrary to public policy merely because the parties are living together in a de facto relationship [Carter Peden and Tolhurst, Contract Law in Australia, 5th ed, [25-32]]. But the old rule has not been completely obliterated. The question is, what is its remaining content?

In Queensland, in Andrews v Parker [1973] Qd R 93, the parties lived together in a de facto relationship. Subsequently, the man agreed to transfer title in his house to the woman subject to terms including that she reconvey the title if she returned to her husband. In due course she did, and asked the plaintiff to leave the house, offering to pay $4,000. The man left but the woman failed to pay. Stable J held that the original agreement to transfer the house was not contrary to public policy as it did not bring about a state of extramarital cohabitation , because one already existed. His Honour said that the court was not to judge the actions of the parties in the light of the 19th century cases, and was bound to apply the public policy of the day and to consider contemporary moral standards. An important point, however, is that the contract did not bring about a state of extramarital cohabitation: it already existed.

In England, in Horrocks v Forray [1976] 1 WLR 230, the defendant - the mistress of a man - bore him a daughter, whom the man thereafter wholly maintained and supported providing living accommodation, clothing, holidays and day-to-day expenses. He subsequently bought a house and told the solicitor that it was for the defendant and her daughter, whom he installed in it, though not conveying it to her. Upon his death in a motor vehicle accident, by his will all his estate devolved on his wife; neither she nor his executors had known of his association with the defendant nor of the purchase of the house. The executors brought an action for possession of the premises on the ground that the defendant's licence terminated on the man's death. She contended that she had a contractual licence to live there for life or while her daughter was of school age. The Court of Appeal upheld the County Court judge's decision that the circumstance that the man intended to provide some security for the defendant was insufficient to bring into existence a binding contract in the nature of a licence, and in all the circumstances there was no evidence justifying the inference that she had a contractual licence. This result was reached without reliance on public policy considerations, but Scarman LJ said (at 239):
When an illegitimate child has been born, there is certainly nothing contrary to public policy in the parents coming to an agreement, which they intend to be binding in law, for the maintenance of the child and the mother. Parents of an illegitimate child have obligations towards the child. So far from its being contrary to public policy that those obligations should be regulated by contract, I would have thought it was in the public interest that they should be so.
... The New South Wales Court of Appeal held, in Seidler v Schallhofer [1982] 2 NSWLR 80, that an agreement which provided for the continuation of a de facto relationship for a specified period and thereafter for marriage or separation was not void as being contrary to public policy, because the "immorality" of the relationship was already in existence when the agreement was executed, so that the agreement merely formalised what was to happen to the financial aspects of the relationship once the cohabitation came to an end. Further, it was said that the concept of public policy had changed - as appeared from, amongst other factors, Commonwealth and State legislation which ameliorated the consequences of extramarital associations - at least to the extent of allowing such an agreement to be enforced. ...

In Nichols v Nichols (Supreme Court of New South Wales, Needham J, 12 December 1986, unreported) the plaintiff who lived principally with his wife and family had a sexual relationship with the defendant, whom he supported including by paying her rent; they had children, whom he also supported. He purchased a flat and installed the defendant and their sons in it, where he spent at least one night per week. ...

It is now provided by statute that notwithstanding any rule of public policy to the contrary, two persons who are not married may enter into a domestic relationship agreement or termination agreement which is enforceable in accordance with the law of contract [(NSW) Property (Relationships) Act 1984, s 45, s 46]. But as the relationship between Mr Pratt and Ms Ashton did not contemplate cohabitation, it was not a domestic relationship within the Act.

In the more recent cases to which reference has been made, there are two notable features that have saved the relevant contract from illegality on the grounds of immorality: the first is that the contract did not bring about a state of extramarital cohabitation, but made provision in respect of one that already existed; and the second is that it did not involve meretricious sexual services, but a sexual relationship as part only of a wider relationship that included cohabitation and aspects of mutual support. As Hope JA pointed out in Seidler v Schallhofer (at 87), the effect of what Lord Wright said in Fender was that the agreement was not illegal as tending to encourage sexual immorality because the immorality already existed, and although the effect of the promise would be to continue it, the purpose of the promise was to bring it to an end after the divorce decree became absolute.

So far as I can tell, no case stands contrary to the proposition that it is still the law that a contract to provide meretricious sexual services is contrary to public policy and illegal. Seidler v Schallhofer said as much in 1982, as did Marvin v Marvin in 1976 in California. While social mores have no doubt continued to change, as authority stands such a contract remains contrary to public policy and illegal. This view of the law is confirmed by Markulin v Drew (New South Wales Supreme Court, Young J, 12 August 1993, unreported), which bears considerable similarity to the present case. The plaintiff (woman) alleged a contract whereby she was "to see the deceased every three months as well as telephoning him occasionally, and the deceased would pay her $40,000 clear per year, purchase her a 'top' car and a beautiful home anywhere in Sydney she'd like to live, as well as providing a large sum of money which would be sufficient for the plaintiff to live on for the rest of her life without working for a living". Illegality (for promoting sexual immorality) was pleaded as a defence. Young J (as his Honour then was) reviewed the authorities, and, adopting the statement in Treitel on Contracts, 8 th ed, 390-392, that "a distinction is now drawn between contracts with purely meretricious purposes and those which are intended to regulate stable extra marital relationships", accepted that neither in England nor Australia did the law now refuse to enforce as illegal contracts which involved cohabitation between people who are not married to each other - even if one or both of them is married to someone else - but also observed that the former rule had not been completely deprived of content. His Honour explained:
Accordingly the distinction that Treitel is making is between a man and a woman who are sharing a life together though not married including sexual relations on the one hand and a man and a woman who are living independent lives but the man is rewarding the woman for sexual services which she provides from time to time. Indeed, in this modern age it may be that it is the woman who is rewarding the man for sexual services he provides from time to time.

It should be remembered, however, that traditionally there were in fact three classes of cases: (i) a contract of cohabitation; (ii) a contract by a man with a woman to provide occasional sexual services; and (iii) an agreement with a common prostitute. Cases such as Bainham v Manning (1691) 23 ER 756 suggest that while relief would not be given to a man against a bond he had given to a common strumpet or prostitute, equity would not countenance a transaction whereby a man had given a bond to a housekeeper to secure a sum of money to her if she provided "secret services", presuming attending on her master for sex if required. Accordingly, "meretricious" probably means not a contract with a prostitute, but a contract treating a woman as if she were a prostitute.
The arrangements between Ms Ashton and Mr Pratt involved none of the saving graces which enabled a different result to be reached in the cases to which I have referred. Those arrangements were not made to facilitate continuation of an existing cohabitation, but to establish the "mistress relationship". The evidence does not reveal a relationship, or consideration, beyond "meretricious sexual services". In my view, on the current state of the authorities, the arrangements were contrary to public policy and illegal in the relevant sense. Had they otherwise constituted a contract, it would have been void as contrary to public policy.

The Court's conclusion is that -

Ms Ashton and Mr Pratt had a conversation in or about November 2003 substantially to the effect deposed to by Ms Ashton, in which he told her that he would establish trusts of $2.5 million for each of her two children, pay her an allowance of $500,000 per year, pay up to $36,000 per annum for rental accommodation for her (or buy her a house in the eastern suburbs), and pay $30,000 per annum for her business expenses, particularly travel.

However, Ms Ashton's case in contract fails - although the terms of those arrangements were not too uncertain and incomplete to amount to a contract - first because Mr Pratt and Ms Ashton did not intend to enter into binding and enforceable legal relations, and secondly because public policy denies enforceability to any such contract as alleged.

Ms Ashton's estoppel claim also fails, first because she incurred no relevant detriment, and secondly because of the same public policy, the operation of which is not limited to contractual claims.

Moreover, Ms Ashton's claims are not maintainable, because they were the subject of an accord and satisfaction in February 2005, when she accepted $100,000 in full and final satisfaction of all her claims against Mr Pratt; and they were again released in November 2005.

Roadmap

2012-01-13T17:13:00.007+11:00

It's fascinating to discover the analogies that people use to make sense of the world. Aging football star Gary Ablett disproved evolution (at least to his satisfaction) by referring to a jar of Vegemite and the celestial clockmarker. The telephone, as a past post noted, is used to characterise prayer. Aging tennis star (and pastor at the Victory Life Centre church in Perth) Margaret Court has been somewhat more adventurous in denouncing advocacy of same-sex marriage as promoting "unhealthy" and "unnatural" unions.

"I actually love homosexual people," the 69-year-old said in a telephone interview. "I do not have anything against them. It's just my view [about gay marriage] and it's in the scriptures ... The Bible will always be the TV guide to my life".

Uh huh. She had denied a penchant for hatespeech, explaining that

To dismantle this sole definition of marriage and try to legitimise what God calls abominable sexual practices that include sodomy, reveals our ignorance as to the ills that come when society is forced to accept law that violates their very own God-given nature of what is right and what is wrong.

Reportage by Reuters alas does not give details of which celestial "TV guide" is used by Ms Court, an exponent of the prosperity gospel, faith healing and unpleasantness about people whose lives differ from what she characterises as "the silent majority".

Presumably her version skips those oh so inconvenient prohibitions in the Old Testament (no pork, no shellfish, no flatfish, no garb of mixed fibres), exhortations to immolate witches and punishments for failing to engage in ethnic cleansing, and permissiveness - if not actually encouragement - regarding concubinage, slavery and other practices that would raise an eyebrow if depicted on free to air broadcast television during the children's period. If she's reading the guide selectively - a bit of channel surfing perhaps - she can ignore the OT unhappiness about female agency and the exposure of her body as she danced about the tennis court. A female pastor? Hmm. Perhaps she popped into the kitchen for a warm cup of cocoa during an ad break and missed the vibe about gender roles.

The Victory Church website indicates that the institution is led by "Rev Dr Margaret Court AO, MBE".

Senior Minister, Ps Margaret Court was officially ordained to Christian ministry in 1991 after seventeen years of service for the Lord. In the same year she established Margaret Court Ministries Inc, an outreach ministry to take the gospel to the people and to hold miracle and healing meetings throughout the city.

Ps. Margaret says, "Victory Life Church is the fulfilment of a vision God gave to me some time ago, that a mighty work of mercy, love and compassion be established in this great city of Perth." She sees this work as her greatest challenge yet; far surpassing her days in pro-tennis which saw her extraordinary vision, talent and determination take her to the top in that sport. She retired from the tennis circuit in 1976 with sixty-two Grand Slam titles to her credit. Margaret and Barry have three daughters, a son and four grandchildren.

Being much in demand, not only in Australia but also overseas, Margaret teaches and ministers with a very powerful healing anointing. Victory Life Centre has been blessed with leaders who know the call of God on their lives, and that He has call them to serve at this Church. As a result, a number of the areas of ministry which God had shown Ps Margaret to establish are now in place.

The site allows you to order a prayer online and to shop, perhaps in the best tradition of the TV guide.

The sense of some items on her blog is unclear. Not being blessed with a cosmic connection I'm still grappling with "A governmental decree is speaking forth, in faith and power, from human lips what God has previously ordained from eternity past.". Other items are deliciously retro -

I love my nation and have proudly fought battles in the tennis court and stood under it’s flag many times. I believe God’s hand has been over our nation for good as we have acknowledged Him and looked to Him. Because of this we have been a blessed nation.

It is sad to see a minority able to exercise influence over the majority. May the silent majority be silent no more. Our education system, hospitals, freedom of speech owe a debt of gratitude to our Christian heritage. We need to celebrate it .

In August last year the blog states that

In Genesis 2:24 it says: “Therefore, a man shall leave his father and mother and shall be joined to his wife and they shall become one flesh.” It says it again in Ephesians 5:31. Marriage is ordained by God – it is all the way through the bible that a husband and wife would multiply the earth.

The bible is a living book; it is our TV guide to life and how to have a successful marriage and how to raise a family. It also says that homosexuality, adultery, fornification, is an abomination. God loves the person and we are to love the people but nowhere does it say that two people of the same sex should marry and have children.

Let us all be a Voice and stand up for marriage and family as God has ordained it

Conveniently there's no citation of Leviticus ... but people engaged in theological channel surfing presumably don't need to worry about consistency, getting to quote Genesis but not some of the nasty or merely (to a contemporary eye) more ludicrous bits.

A reader notes that "in May 2001 [she] received an Honorary Doctorate (Doctor of Laws Degree) from Oral Roberts University, USA for her contribution as a Pastor not only to the body of Christ but also to the community". An honorary degree from an institution perhaps best known for funding scandals and a history of segregation.

Sociologists of religion and of conversion narratives might relish the explanation that -

Living life as a normal housewife and mother was a new challenge. But more than anything, Margaret wanted to find out more about her new Christian life. In her search, well-meaning people gave her wrong counsel regarding inner healing and deliverance which actually threatened her life and sanity.

Gradually, feelings of uselessness, inferiority, unworthiness began to manifest into physical ailments and soon Margaret suffered from fear, depression, insomnia and a torn valve of the heart. The once healthy, fittest woman in the world was now weak and fearful and afraid to go to sleep. She cried out to God for a better way!

God answered her prayers. After watching a life-changing video by Dr Fred Price in 1979 which taught on how faith can grow and how you can overcome any area of defeat in your life, Margaret began to attend a newly formed church in Perth.

Equasy

2012-01-12T10:59:00.003+11:00

Jeff Stier in a review in Reason notes "the sad story of psychopharmacologist David Nutt’s brief term as chairman of the British Advisory Council on the Misuse of Drugs".

Shortly after he was appointed to the position in May 2008, the Sun reported that Nutt thought Ecstasy and LSD should be removed from the legal category ostensibly reserved for the most dangerous drugs, kicking off a Fleet Street frenzy.

Instead of backing down, Nutt doubled down. In a satirical article published by the Journal of Psychopharmacology in January 2009, he analyzed “an addiction called ‘Equasy’ that kills ten people a year, causes brain damage and has been linked to the early onset of Parkinson’s disease.” Nut added that Equasy “releases endorphins, can create dependence and is responsible for over 100 road traffic accidents every year.”

Had Nutt not revealed that Equasy was simply the time-honored sport of horseback riding, activists certainly would have rushed to introduce a ban. Nutt pointed out that since Equasy causes acute harm to one out of 350 riders, it is far riskier than Ecstasy, for which the fraction is one out of 10,000. His point, of course, was that prohibition has less to do with risk than with the importance society attaches to a risky activity. As Snowdon puts it, “If the cultural baggage is put to one side, and activities are assessed on the basis of mortality rather than morality, there are glaring inconsistencies in the way laws deal with different hazards.” In October 2009, British Home Secretary Alan Johnson fired Nutt for failing to recognize that “his role is to advise rather than criticise.”

Nutt's 'Equasy − An overlooked addiction with implications for the current debate on drug harms' in 23(3) Journal of Psychopharmacology (2009) 3-6 [PDF] comments that -

arguments about relative drug harms are occurring in an arcane manner, at times taking a quasi-religious character reminiscent of medieval debates about angels and the heads of pins!

The reasons for this are multiple and complex, but one major element is that the drug debate takes place without reference to other causes of harm in society, which tends to give drugs a different, more worrying, status. In this article, I share experience of another harmful addiction I have called equasy to illustrate an approach that might lead to a more rational and broad-based assessment of relative drug harms.

The dangers of equasy were revealed to me as a result of a recent clinical referral of a woman in her early 30’s who had suffered permanent brain damage as a result of equasy-induced brain damage. She had undergone severe personality change that made her more irritable and impulsive, with anxiety and loss of the ability to experience pleasure. There was also a degree of hypofrontality and behavioural disinhibition that had lead to many bad decisions in relationships with poor choice of partners and an unwanted pregnancy. She is unable to work and is unlikely ever to do so again, so the social costs of her brain damage are also very high.

So what was her addiction – what is equasy? It is an addiction that produces the release of adrenaline and endorphins and which is used by many millions of people in the UK including children and young people. The harmful consequences are well established – about 10 people a year die of it and many more suffer permanent neurological damage as had my patient. It has been estimated that there is a serious adverse event every 350 exposures and these are unpredictable, though more likely in experienced users who take more risks with equasy. It is also associated with over 100 road traffic accidents per year – often with deaths. Equasy leads to gatherings of users that often are associated with these groups engaging in violent conduct. Dependence, as defined by the need to continue to use, has been accepted by the courts in divorce settlements. Based on these harms, it seems likely that the ACMD would recommend control under the MDAct perhaps as a class A drug given it appears more harmful than ecstasy

Nutt went on to state that -

Making riding illegal would completely prevent all these harms and would be, in practice, very easy to do – it is hard to use a horse in a clandestine manner or in the privacy of one’s own home! I suspect there would be little public or government support for such an option despite the banning of inter-species violence from equasy recently enacted in the Anti-Hunting bill. Indeed why should society want to control harmful sports at all? This attitude raises the critical question of why society tolerates –indeed encourages – certain forms of potentially harmful behaviour but not others, such as drug use. There are many risky activities such as base jumping, climbing, bungee jumping, hang-gliding, motorcycling which have harms and risks equal to or worse than many illicit drugs. Of course, some people engage in so called ‘extreme’ sports specifically because they are dangerous. Horse riding is not one of these and most of those who engage in it do it for simple pleasure rather than from thrill seeking, almost certainly in complete ignorance of the risks involved. Other similarly dangerous yet fun activities are rugby, quad-biking and boxing. With the exception of boxing, which is outlawed in some European countries, sports are not illegal despite their undoubted harms.

So why are harmful sporting activities allowed, whereas rela- tively less harmful drugs are not? I believe this reflects a societal approach which does not adequately balance the relative risks of drugs against their harms. It is also a failure to understand the motivations of, particularly younger people, who take drugs and their assessment of the perceived risks compared with other activities. The general public, especially the younger generation, are disillusioned with the lack of balanced political debate about drugs. This lack of rational debate can undermine the trust in government in relation to drug misuse and thereby undermining the government’s message in public information campaigns. The media in general seem to have an interest in scare stories about illicit drugs, though there are some exceptions ...

OH&S

2012-01-12T10:12:00.004+11:00

Catching up with the November 2011 Work-related injuries in Australia: Who did and didn’t receive workers’ compensation in 2009–10 [PDF] report from Safe Work Australia, the national government agency established in 2009 under the Safe Work Australia Act 2008 (Cth). It is jointly funded by the national and state/territory governments under 2008 intergovernmental agreement, with primary responsibility of improving work health and safety and workers’ compensation arrangements across Australia.

Safe Work Australia partially funded the Australian Bureau of Statistics’ Work-Related Injuries, Australia, 2009–10 (WRIS) survey in using workers’ compensation claims data to measure work health and safety performance in Australia.

That survey collected information for the period from a sample of people aged 15 years and over who had worked in the previous 12 months and experienced a work-related injury or illness in that time. The November report does not cover all workplace injuries; instead it is restricted to employees, ie those worker who are entitled to workers’ compensation (excluding the self-employed who now make up over 6% of the workforce). An injury is counted in the WRIS survey if the worker felt it arose out of their employment. There is no requirement for the worker to seek medical attention for their injury as is the case with workers’ compensation.

Safe Work Australia indicates that 567,500 employees were injured while working during the period but only 38% received workers’ compensation (representing a slight decrease on the number of employees injured in 2005–06 and an increase on the 33% who were compensated). The number of employees who applied for workers’ compensation but did not receive it increased from 3.8% of injured employees in 2005–06 to 5.4% in 2009–10.

The report indicates that -

The amount of time taken off work following an injury impacted on whether the employee applied for workers’ compensation. The data showed that only 23% of injured employees who took no time off work applied for workers’ compensation compared with 73% of injured employees who took 5 or more days off work.

Male employees were more likely than female employees to receive workers’ compensation though the gap between the sexes has closed slightly in the four years since that last survey. In 2005–06, 38% of male employees received compensation which rose to 42% in 2009–10 while for female employees the proportion increased from 26% to 33%.

A greater proportion of female employees compared with male employees felt their injury was too minor to claim (32% and 28% respectively). A greater proportion of female employees also thought they were not covered for workers’ compensation or not eligible for it, 10% compared with 8% for male employees.

Age played only a small role in whether an employee received workers’ compensation or not. In 2009–10, 36% of injured employees in the 15–24 years age group received compensation compared with 41% in the 55 years and over age group. Similar patterns existed for both male and female employees.

Employees with leave entitlements were more likely than casuals (employees without leave entitlements) to receive compensation. In 2009–10, 48% of employees with leave entitlements received compensation compared with 32% of employees without leave entitlements. Employees without leave entitlements were more likely to think their injury was too minor to claim and more likely to think they were not covered by workers’ compensation.

Part-time employees were less likely to apply for compensation compared with full-time employees. Part-time shiftworkers were the least likely to apply for compensation of all employee groups.

Consistent with statisticcs for the US, Canada and UK employees born in countries that did not have English as its main language were less likely to apply for workers’ compensation compared (34%) with those born in Australia (44%) and those born in main English speaking countries (45%).

Who was being injured? Work Safe Australia indicates that "labourers and machinery operators & drivers" were the occupation groups most likely to receive workers’ compensation. Managers and Clerical & administrative workers were the least likely to receive it. Injuries incurred in falls were the most likely to be compensated. Injuries from "Exposure to mental stress" were the least likely to be compensated. Bad news if you were bullied.

The report indicates that -

Sick leave was the most common type of financial assistance other than workers’ compensation accessed by injured employees. For injuries involving less than 5 days of work, 31% used sick leave. For injuries involving 5 or more days, 20% of injured employees used sick leave. Medicare or other social security payments were accessed by 7% of all injured employees. The data show that no financial assistance was received by 12% of employees who incurred injuries that involved 5 or more days off work.

Ethical Identity Regulation?

2012-01-11T16:32:00.003+11:00

The 290 page Security & Privacy: Global Standards for Ethical Identity Management in Contemporary Liberal Democratic States (ANU Press) by John Kleinig, Peter Mameli, Seumas Miller, Douglas Salane & Adina Schwartz is concerned with the ethical dimensions of identity management technology – electronic surveillance, the mining of personal data, and profiling – in the context of transnational crime and global terrorism.

The authors comment [PDF] that the ethical challenge at the heart of their study is

to establish an acceptable and sustainable equilibrium between two central moral values in contemporary liberal democracies, namely, security and privacy. Both values are essential to individual liberty, but they come into conflict in times when civil order is threatened, as has been the case from late in the twentieth century, with the advent of global terrorism and trans-national crime.

We seek to articulate legally sustainable, politically possible, and technologically feasible, global ethical standards for identity management technology and policies in liberal democracies in the contemporary global security context. Although the standards in question are to be understood as global ethical standards potentially to be adopted not only by the United States, but also by the European Union, India, Australasia, and other contemporary liberal democratic states, we take as our primary focus the tensions that have arisen between the United States and the European Union.

This tension provides a good example of the kinds of challenges involved in developing global standards. It is exemplified by the 2006 disclosure concerning the US government’s access to SWIFT transactions and the controversy that has followed it, as well as the earlier and ongoing controversy over the 2004 US–EU Passenger Names Records (PNR) agreement. It also makes itself known in the ongoing debate over national identity cards. The first two conflicts make it clear that, however difficult it may be to develop global standards for the management of personal data, such standards are needed and that every effort should be made to develop them or at least to implement procedures for addressing conflicts among them.

Naturally, authoritarian states do not share the liberal values underlying this project – values such as individual autonomy and privacy. Nevertheless, to the extent that such authoritarian states are evolving or are likely to evolve toward some form of liberal democracy, the results of this study will also be relevant to these states. Our purpose is to articulate standards and institutional initiatives that are sufficiently specific to determine – or at least substantially constrain – the requisite detailed security and privacy policies and prescriptions in national as well as international and transnational jurisdictions.

The project distinguishes itself from other work in this field in two major respects. Firstly, the multi-disciplinary team of experts brought together for this project has enabled the integration of: (a) ethical principles, (b) national and international legal considerations, (c) effective law enforcement practices, (d) oversight and accountability concerns and (e) knowledge of existing and emerging technology, such as database mining and knowledge discovery technology, in the development of a framework of determinate and feasible ethical standards for identity management technology in the global security context.

Secondly, the study has drawn on an international team of experts and focuses on common international standards and solutions, as befits the trans-jurisdictional and transnational nature of the problems to be addressed. Specifically, the project involves not only US personnel and institutions but also EU, Indian, and Australasian expertise.

Virtualisation

2012-01-11T14:24:00.004+11:00

In following up the recent post on R v Peacock I'm impressed by the empiricism evident in 'Male Sex Work and the Internet Effect: Time to Re-evaluate the Criminal Law?' by Chris Ashford in 73 The Journal of Criminal Law (2009) 258–280, exploring UK law regarding sex work through an examination of Gaydar.

Ashford comments that -

Over 50 years after Wolfenden the new medium of the Internet offers one possible remedy to the apparent desire of the 1957 and present-day public to ‘clean up’ the streets. One site in particular has become the focus of the online world for gay men in England and Wales — Gaydar.

Gaydar is something of a phenomenon. QSoft Consulting, the company behind Gaydar.co.uk and its related URLs, states it currently has over 3.8 million members. This is an extraordinary number for a company first launched back in 1999 and which had 78,000 members back in November 2000, prompting Fountain to say of Gaydar in 2004: ‘previously, this much sex was available to you only if you were rich or powerful or famous’.

Gaydar is just one example of the consequences of what Cooper has called ‘the Triple A Engine’. According to Cooper, the Internet offers a triad of access, affordability and anonymity and in doing so, the Internet acts as a powerful force in the area of sexuality. Searching for escorts and sex workers from home offers access to thousands of escorts across the country from one central location.

People do not have to spend time, money and resources travelling around seeking out willing sex workers, rendering the use of the Inter- net for this purpose an affordable activity. There is the additional aspect of a perceived anonymity granted by the Internet. There is no risk you will be encountered driving into a red light district by disapproving friends, be seen entering a brothel by work colleagues or one’s own partner. In other respects, the advertisement nature of Gaydar profiles enables parallels to be drawn with the personal profiles and sex worker profiles offered in gay publications.

After insightful comments based on number crunching of Gaydar user profiles he notes that -

Eighty years ago, American sexologist, W. J. Robinson, commented
... it is fair to assume that [prostitution] will continue to persist in the future; but it will persist not because it always has; it will persist because it satisfies a definite and important biological need, and answers it in a way that no other present arrangement does..
Though written in the 1920s, it is a view that still holds true today. Technology is supporting the continuous operation of sex work and promoting the growth of new sex industries in online pornography and online exhibitionism. Moreover, Koken et al. noted in their study published in 2004 that male sex workers who have sex with other men ‘operate at the unique intersection of two major taboos: engaging in homosexual activity and the illegal exchange of sex for money’. English culture, however, both legal and social, has changed dramatically over the last decade, rendering homosexuality much less of a taboo, which makes it different to society in the USA at the time of that Koken et al. were writing.

It is perhaps therefore understandable that male-for-male sex work is not merely at the margins of the Internet, but can flourish on a ‘main- stream’ social networking site such as Gaydar, where users can find instant sexual encounters, an online masturbation exhibition, an escort and a plumber within the same virtual queer community.

The growth in technology has not led to the decline of real-world sex in favour of virtual sex despite the predictions of some and the emergence of new technology platforms such as Second Life. Yet technology does offer the possibility to move sex away from the streets. Walker et al. noted that the Internet can transform ‘visible’ crime into ‘invisible’ crime and if the UK government intends to follow the Swedish model of transforming sex work into an ‘invisible’ practice, the Internet may be its greatest tool. If, however, the aim of the UK government is to stop sex work, the search must continue.

It has not been the purpose of this article to contribute to the existing debates on whether the current legal position represents an over- extension of legal paternalism or offers important safety nets for those engaged in sex work. However, that debate must take far more account of the emerging and complex issue of same-sex male sex work that is supported and offered through the Internet.

His 'Queer theory, cyber-ethnographies and researching online sex environments' in 18(3) Information & Communications Technology Law (2009) 297-314 comments that -

Both the act and the commission of the act of sex have been transformed by technology. This has in turn led to emerging research that seeks to consider online research methods and methodologies that take account of the new medium, with a number of studies examining specific groups and the behaviour of those groups from a socio-legal perspective. This paper will seek to consider the application of queer theory to researching so-called ‘virtual’ or online sex groups. It will examine how the virtual spaces, and the researchers who survey them, are constituted. The ethical and practical issues that emerge in surveying these groups from a queer theory perspective will also be explored.

He goes on to note that -

Sex environments, and their intersection with law, whether it be in the areas of sex work or non-commercial public sex that I have explored, or other sites such as bathhouses and phenomena such as barebacking, have been traditionally difficult to access and study. The Internet has offered a valuable new tool to explore these locations and it has also been an important tool for these groups in the creation of ‘new space’ (Coomber, 1997). Developing approaches to this e-research, and the observation of virtual environments, remains an area of rapid development as researchers develop and explore new approaches to this social phenomenon (DiMarco & DiMarco, 2003; Hamman, 1997; Kanayama, 2003; Livingstone, 2003; Ward, 1999).

Riggle et al. (2005) have pointed to the growing popularity of online surveys and the need for an examination of issues specific to conducting online research in relation to lesbian, gay, bisexual and trans virtual communities. Although recent years have seen a number of online studies published that do examine specific LGBTQ issues (see for example Ashford, 2007, 2008, 2009), many of these surveys, including my own, often continue to operate within what I would term the ‘heteronoramative straightjacket’.

This ‘heteronormative straightjacket’ should be viewed in the light of Fine's (1993) work which pointed to a series of lies within ethnography that are widely disseminated in print, but known by ‘insiders’ to be false. Fine described these illusions as ‘essential to maintain an occupational reputation’. This may take the form of an absence of information rather than an outright lie but may be an element of the researcher that continues to be shielded from wider view. While Campbell's (2004) assertion that ‘I am less an academic gone native than a native gone academic’ is unusual in that it is in print, it is a statement that researchers may be more familiar with privately. The gay male academic who will use Gaydar or Craigslist in order to meet other men socially or sexually may appear ‘normal’ within the conference community but not within the published academic community. The queer academic almost goes through a process of castration as the words pass from an author's brain and on to the screen or page. Goode (1999) describes ‘thousands of ethnographers who have spent uncountable hours in close proximity with the people whose lives they shared and behaviour they observed, engaging in almost every imaginable activity with them, only a few dozen have had the courage to step forward and tell the world about their more intimate moments’.

Perhaps an earlier example of such can be found in John Alan Lee's 1978 text, Getting sex. The text sought to both explore and celebrate a range of sex locations from the disco and classified advert through to the bathhouse and tearoom/public lavatory, yet it was written with a degree of voyeuristic objectivity to the descriptions of the dynamics of the sex locations. As noted earlier, the later publication of Lee's diary online reveals his academic and personal lives and the inter-connectivity of the two.

Today's ‘cyber-ethnographies’ (Davis, 2009, p. 52) offer an opportunity to explore ‘sex’ and/or ‘sexuality’ at close quarters without engaging in corporeal acts of sex. Queering the body in cyberspace has become routinised and yet our responses to that and wider ‘cyber-ethnography’ issues remain under-explored.

Another such issue is the anonymity afforded by the Internet. Such anonymity may have been believed to enable users to create ‘false’ identities with perhaps the most extreme example being in the arena of inter-generational sex (Simpson, 2005) where people may lie about their age so as to enable them to interact with a group who would ordinarily reject them. More often though, the Internet is a medium of play through which identity can be explored (Turkle, 1995), or ‘queered’ beyond the bounds of the corporeal ‘reality’.

It is perhaps therefore, unsurprising that this anonymity can create dangers in terms of the accuracy of gathered data. Correll's (1995) study of bulletin boards was triangulated through follow up interviews on the phone or in person with many of her respondents but some respondents refused to take part in the follow up via either of these methods. There is a danger that such methods of triangulation, however well accepted by the research ‘community’, may be an attempt to force queer identity into orthodox moulds. ‘Truth’ in the virtual world is established by researchers through seeking to understand the ‘real’ or corporeal dimension to the space rather than appreciating the ‘truth(s)’ that may be grounded within the virtual space.

For the researcher, who may be constrained by their own ‘real world’ gendered or sexual identity (see for example, Berliner, 2008), the virtual space can offer an opportunity to queer their own identity, to create a ‘false’ identity or explore a dimension of their hidden self through the course of their research, yet this may be falsely viewed as ‘masking’ or a ‘smoke screen’ rather than an identity of equal ‘value’ or ‘worth’. Nor is the research limited by ‘real world’ assumptions and definitions of gender and/or sexuality.

The Internet also offers a range of advantages for the researcher in terms of the ‘intimacy’ of the Internet environment (McKenna et al., 2002) and the greater self-disclosure given to strangers outside one's own social circle (Derlega & Chaikin, 1977). This perhaps reflects the ‘liberation’ that can be found in overcoming the bounds of the corporeal and the perceived ‘safety’ that such an apparent separation of ‘virtual’ and ‘real’ identities may allow.

This space also offers an opportunity to overcome ‘gating features’ that may be present in the physical space, whether it be on the basis of appearance, visible shyness or social anxiety (McKenna et al., 2002), although virtual sex communities, threatened by the intrusion of the legal ‘real’ world are developing online strategies to ensure that only perceived ‘true’ members of a community, for example, the dogging/public sex community, can discover more sensitive information such as the corporeal identities of online users or the location of the corporeal meeting space.

These virtual sex environments also afford an ease with which to seek out and find those with similar interests and desires or indeed those interested in knowing about people's interests and desires. The use of these spaces by the police and other parties beyond the traditional player is arguably distorting the operation of the space. The presence of these lurkers creates challenges for the researcher in considering the precise nature of their impact on the active participants (Lindlof & Shatzer, 1998) and wider notions of privacy (see more generally Fenwick, 2000; McCullagh, 2008; O'Brien, 2008). The policing of some legal phenomena has already resulted in the use of websites as sites of surveillance for law enforcement officials where groups might otherwise be hidden (Ashford, 2007).

Worth reading by legal scholars interested in new media and cyberspace.

Names

2012-01-11T10:02:00.008+11:00

In Australian and overseas law codes about personal names serve to shape national identity, allocate risk and position individuals as subjects of the state.

The Age reports that Victorian Registry of Births, Deaths & Marriages figures indicate that 12,939 people in that state changed their names in 2010-11, with over 50,000 changes nationally.

Some new names are rejected by the registry on the grounds they are considered to be obscene or offensive, include numbers or symbols such as 1, @ or !, resemble an official title or rank recognised in Australia, such as a regal title, or are considered to be against the public interest and will cause confusion in the community. Names rejected in the past have included Batman and Jesus Christ.

The article states that -

Authorities say apart from the people who change their name every year, 900,000 others use at least one alias. In most cases, there are legitimate reasons for having a second name. Many women go by both their married and maiden names, some performers have stage names, some writers have noms de plume.
But there are fears a small proportion of people changing their names or creating aliases are doing so for nefarious reasons, such as to commit fraud.

A federal Attorney-General's Department spokesman said all jurisdictions across Australia were pursuing measures to ensure name changes were not being used to obscure criminal activity or mask bankruptcy.

The move includes national bans on name changes by registered sex offenders, limiting the number of name changes that can be made and requirements that requests will not be granted unless a registrar is satisfied the reason is legitimate.

Rejected name changes include -

Prime Minister
Pappa Smurf
Motorcycle Feelgood
Smart Arse
Cu L8r

In November last year NSW Attorney-General Greg Smith SC announced that -

The NSW Government is leading the way in a national crackdown on criminals changing their names to avoid detection, which will include an alert list for high-risk offenders. ... [He] hoped State and Territory Ministers would to agree to a 10-point plan developed by NSW when they gather in Launceston today ahead of a meeting of the Standing Council on Law and Justice.

Mr Smith said NSW was asked to report on ways of ensuring all jurisdictions had robust laws and processes in place, so there was no weak link that could be exploited by criminals and name-change information could be obtained in a timely manner.

There will also be a National Proof of Identity Framework and an electronic document verification system so registries that look after births deaths and marriages (BDMs) can verify people’s identity, and that they are not using illegal documents.

“Unfortunately some people change their name to conceal a criminal record, avoid detection by police, facilitate the commission of a crime or to simply create multiple identities,’’ Mr Smith said.

“This abuse of the system is a risk to the safety of the community and the police.

“The danger is heightened when you are talking about those convicted of serious crimes, such as pedophiles, moving interstate to escape detection and unleash their misery on unfortunate victims.”

Mr Smith said that under the strategy;
- All serious sex offenders must obtain approval before changing their name;
- Police will be asked to provide an alert list for high-risk individuals to BDMs;
- Prisoners and parolees will have to obtain approval and their supervising authorities will notify BDMs of the change; and
- People can only change their name three times in a lifetime.
... “Inconsistencies between jurisdictions allow people to forum shop and find the place with the weakest safeguards,’’ Mr Smith said.

“This heightens the need for harmonisation in this area and these changes should go a long way to eliminating abuses of the system.”

The Communique issued after that intergovernmental meeting states that -

Change of name

Ministers agreed to consider implementing a best-practice approach to the change of name process in order to minimise abuse of the system, and agreed to remove this project from the agenda.

Law regarding self-characterisation and reinvention through name changes of course features some delights. The New Mexico Court of Appeal in 2004 for example permitted Mr Snaphappy Fishsuit Mokiligon to change his name to Variable. A later petition to change his name to the F word was denied in Re Mokiligon, 2005-NMCA-021, 106 P.3d 584 (N.M. Ct. App. 2004). Registration in the UK reportedly included change from George Garratt to Captain Fantastic Faster Than Superman Spiderman Batman Wolverine The Hulk And The Flash Combined. Change to Tarquin Fin-tim-lin-bin-whin-bim-lim-bus-stop-F’tang-F’tang-Olé-Biscuitbarrel from John Desmond suggests that Desmond was trying too hard. US Courts have made inconsistent decisions on applications to change to Santa Claus, with for example a rejection in Ohio and support in Utah. In 2001 the Utah Supreme Court permitted David Porter to rename himself as Santa Claus, commenting that -

Porter's proposed name may be thought by some to be unwise, and it may very well be more difficult for him to conduct his business and his normal everyday affairs as a result. However, Porter has the right to select the name by which he is known, within very broad limits.

Litigation in Australia over names in passports, the electoral roll and the BDM registers includes

- Re Prime Minister John Piss the Family Court and Legal Aid v Department of Foreign Affairs & Trade [2000] AATA 1028,
- Re Nevil Joseph Brewer called "Abolish Child Support and Family Court" and Australian Electoral Commission (AAT 9 February 1996), Prime Minister John Piss the Family Court and Legal Aid v Electoral Registrar [2000] VSC 512 and
- Informal v Chief Electoral Officer [1992] TASSC 2.

FCTC

2012-01-10T15:42:00.003+11:00

Given current debate about Australia's tobacco products plainpaper packaging regime it is interesting to see 'Tobacco industry attempts to influence and use the German government to undermine the WHO Framework Convention on Tobacco Control' by Thilo Grüning, Heide Weishaar, Jeff Collin & Anna Gilmore in 21 Tobacco Control (2012) 30-38.

The article notes that Germany has been identified as one of a few high-income countries that opposed a strong Framework Convention on Tobacco Control (FCTC), the WHO's first global public health treaty. It examines whether the tobacco industry had influenced the German position on the FCTC.

Drawing on previously confidential tobacco industry documents the authors argue that -

The tobacco industry has identified Germany as a key target within its global strategy against the FCTC. Building on an already supportive base, the industry appears to have successfully lobbied the German government, influencing Germany's position and argumentation on key aspects of the FCTC. It then used Germany in its efforts to weaken the FCTC. The evidence suggests that the industry enjoyed success in undermining the Federal Health Ministry's position and using Germany to limit the European Union negotiating mandate. The tactics used by the tobacco industry included the creation of controversy between the financial, trade and other ministries on one side and the health ministry on the other side, the use of business associations and other front groups to lobby on the industry's behalf and securing industry access to the FCTC negotiations via the International Standardization Organization.

The evidence suggests that Germany played a major role in the tobacco industry's efforts to undermine the FCTC. Germany's position consistently served to protect industry interests and was used to influence and constrain other countries. Germany thus contributed significantly to attempts to weaken an international treaty and, in doing so, failed in its responsibility to advance global health.

Normativity

2012-01-09T11:37:00.004+11:00

As a follow up to the recent post on R v Peacock I note '(Homo)Normative Legal Discourses and the Queer Challenge' by Chris Ashford in 1 Durham Law Review (2011) 77-98.

Ashford comments that -

Recent legal reform in English law has dramatically changed the legal status of the homosexual. Once a social and legal pariah, the contemporary queer finds themselves apparently benefiting from unprecedented legal rights. However, this article seeks to argue that these new-found rights - whether they be in the construction of the family, the workplace or in the operation of leisure - operate so as to enshrine in law a homosexual identity anchored in domesticity and Rubin’s conceptualisation of ‘good’ sex. This article seeks to explore the emergence of the new (homo)normative legal discourse and how two sexual phenomena - barebacking and public sex - continue to present socio-legal challenges to its operation.

He argues that -

despite over forty years passing since the legalisation of ‘homosexual acts’ between men, the law continues to create a sexual closet for those identities that not only defy the (hetero)normative but the emergent assimilationist (homo)normative. This process of closetisation extends to the self-defined heterosexual too. The emergence of dogging among heterosexuals has similarly produced an act that defies the (hetero)normative and in so doing, attracts the attention of the police.

The good queer stays home with their civil partnered ‘hubby’. A penchant for Gaydar might be tolerated so long as it leads to safe sex indoors, but the he outdoors remains trapped in a legal discourse that defines it as ‘bad sex’, and anti-homonormative, evocative, as with bareback sex, of a homosexual history that does not easily sit with the new legally re- constructed homosexual. ...

Politically, the division in legal responses to sexuality in recent years can be explained as the emergence of a new paradigm. Former British Prime Minister, Tony Blair noted in his memoirs that
in the old days, a Conservative was hard line on law and order and on ‘political correctness’ issues like immigration and gays. The left-winger was liberal, the right-winger illiberal. My generation had defined a new paradigm: what you did in your personal life was your choice, but what you did to others was not.
Unfortunately, this simplistic utilitarian argument becomes more complex with variable constructions about public and private. Any act is arguably private until someone else views it, and thus the question is one of propensity towards being public or private. Public ‘open air’ sex, may be as public or private as sexual acts in a commercial sex club or sauna, with people as likely to come upon a scene as a child might in the home. It is the cultural construction of certain spaces as locations of ‘bad sex’ that renders them the focus of law. Similarly, the act of bareback sex is in the confines of a silent relationship semi-acceptable, yet the public celebration of barebacking is to position the act in the public consciousness and thus render it transgressive.

Blair’s former ‘spin doctor’, Alastair Campbell, indicates in his diaries that Blair may have had similar difficulties with the constitution of families, a ‘public’ definition of a series of relationships between individuals, rather than how people actually live their lives. Campbell notes one incident on the BBC Today programme in 1996 in which Blair was described as being ‘... a bit of a disaster area ... he got a bit caught on gay couples and whether that constituted a family’.

The emergence of a (homo)normative narrative that seeks to exclude queer challenges, whether they take the form of bareback sex or public sex is perhaps unsurprising. Since the ‘legalisation’ of homosexuality in 1967, a process of assimilation has been taking place. Harding likens it to the Borg, characters in the popular science fiction franchise, Star Trek, their slogan: ‘You will be assimilated ... Resistance is Futile’ seems somewhat apt.

However, it is perhaps worth adding that Bronski has commented that assimilation has historically, been ‘not an equitable exchange’. He has argued that a ‘more honest’ paradigm of assimilation is ‘the protection payoff’ rather than the populised notion of a ‘melting pot’. For many immigrants to America, a new name, and an adjustment to identity and customs were necessary in order to become ‘American’. Similarly, to become first tolerated, and then accepted, queer ‘immigrants’ have been forced to adapt and conform to an ever-evolving paradigm of (homo)normativity. Yet, this process has also created the queer refugees. Those who desire public sex and those who seek to queer the HIV/AIDS narratives surrounding bareback sex are all rejected, and cast out. These groups defy the (homo)normative paradigm and the law becomes case as a tool of coercion and punishment.

Today’s immigrant queers, the acceptable gays of the (homo)normative, serve to exert further pressure on their former compatriots, encouraging them to join them in the brave new land of gay adoption, same-sex marriage and employment protection.

These legal changes perhaps reflect Weeks’ observation that ‘our culture has all too readily justified erotic activity by reference to something else – reproduction or the cementing of relationships usually – and has ignored the appeal of the erotic as a site of freedom, joy and pleasure’.

Afraid or just underwhelmed

2012-01-09T06:57:00.007+11:00

I'm struck by 'Drug tests find favour in white-collar sector' in today's SMH (here) and 'Tipples at work face testing times' (here). Both in the same paper. Both by Melissa Davey. Both very very thin. The difference is that the paragraph order has been changed. Perhaps the item's simply a work in progress ... or the SMH getting more bang for it's buck, with double exposure (presumably to the delight of the quoted enterprise) of the same content about the dangers - oh be afraid, be very very afraid - of employees ingesting substances.

One of the versions begins with the bang -

If you think a couple of glasses of wine at lunch or taking a few sleeping pills before bed is OK because you work a desk job or do not operate heavy machinery, take heed.

While workplace drug testing is legislated in the mining and transport industries, more white collar industries are showing interest, according to a drug testing service.

''In one case a fatigued office worker put an electric stapler through his thumb, while in a separate incident a worker came back from lunch after a couple of drinks and got his tie caught in a paper shredder,'' said the Australian Workplace Drug Testing Services director, Tony Graham.

While not legislated in most workplaces, office staff are being asked to fill up little white cups and get tested, Mr Graham said. The amount of drug tests his company carried out increased 25 per cent last year.

The other version leaves the shredder and stapler to the end of the article.

Tests are up by 25%? Whahoo! The SMH gives no indication of the baseline or relativities. Was Mr Graham's company (elsewhere promoted as "Totally Professional - Legally Defensible - Workplace Alcohol & Drug Testing Services") doing 500 or 500,000 or 5,000,000 tests? We don't know. Does the company have a major chunk of the market? Is it growing at the expense of Medvet - the entity that also proclaimed its professionalism and compliance with testing standards? Again, no indication.

What about privacy, employment and other law regarding workplace substance testing? No indication. No discussion.

Overall, it's disappointing journalism, the sort of writing that's prone to appear in the media 'silly season' when staff are on leave and editors are scratching for filler.

Less egregious repackaging by the SMH is evident in 'Implants advice off the mark' and 'Toothless health watchdog dithers on implants as women worry', an article by Michael Moore criticising the Therapeutic Goods Administration's handling of the implants scandal in France. Moore correctly highlights questions about regulatory incapacity at the TGA (noted here and here).

Hicklin and Peacock

2012-01-08T18:48:00.016+11:00

I'm looking forward to reading the judgment in R v Peacock, the UK case in which a vendor of erotica has been found not guilty of an offence under the Obscene Publications Act 1959 [PDF]. Mr Peacock had been charged under that Act with distributing DVDs featuring scenes of "extreme gay sex acts". His acquittal after a jury trial involved the legal test of whether those images would “tend to deprave and corrupt” the viewers, a test dating from R v Hicklin (1868) LR 3 QB 360 at 371.

Cockburn CJ in that case stated that

I think the test of obscenity is this, whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.

As I've written elsewhere, that test was used in the UK and elsewhere for a century as the basis of restrictions on comics, film, poetry, paintings and novels (including what we might now regard as some of the leading - or merely more famous - works of modernist literature). The Australian Customs (Prohibited Imports) Regulation prior to 1984 for example prohibited importation of material that was "indecent or obscene or was likely to encourage depravity".

In discussing Peacock obscenity law specialist Myles Jackson, an obscenity law specialist, commented that

Perhaps illogically, of these sexual acts, fisting and urination are completely legal to perform in real life; and thus it is only the representation of these acts on film which may be considered obscene and therefore attract criminal liability.

The UK Crown Prosecution Service relied on guidelines that identify images of consensual “sadomasochistic material which goes beyond trifling and transient infliction of injury”, “torture with instruments”, “activities involving perversion or degradation” and “fisting” as potentially being suitable for prosecution. Non-consensual activity also - and more reasonably - attracts prosecution.

In R v Penguin Books Ltd [1961] Crim. L.R. 176, the 'Lady Chatterley Case', Byrne J glossed 'deprave and corrupt' as

to render morally unsound or rotten, to destroy the moral purity or chastity; to pervert or ruin a good quality.

In Peacock the jury determined that the acts in question did not “tend to corrupt or deprave those who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”. In essence, although some acts are not what everyone might choose to watch - or engage in - after a long day at work they were probably not going to deprave adults who were aware of the content of the videos, chose the videos on that basis and quite possibly had engaged in such acts themselves. The consumers for Mr Peacock's products were thus not 'innocents' who would be led astray when encountering particular graphics and language that relate to what many UK adults actually do.

The decision coincides with the ALRC's inquiry into content classification and a Senate inquiry.

Australia moved away from Hicklin - see for example the acerbic comments by South Australian CJ Bray quoted in 'Depravity, Corruption and Community Standards' by Richard Fox in 7(1) Adelaide Law Review (1980-1981) 66 [PDF] - from 1948 onwards, with Fullagar J in R v Close [1948] VLR 445 [PDF] commenting that 'obscene' had nothing to do with corrupting or depraving susceptible people: it described what is offensive to current standards of decency and not that which may induce sinful thoughts.

In Crowe v Graham (1968) 121 CLR 375 Barwick CJ indicated that material was indecent if "having regard to the manner and circumstances in which it was presented, it would offend the modesty of the average man or women in sexual matters". Windeyer J indicated that the question was whether contentious material transgresses the contemporary standards of decency of the Australian community.. A shift to a 'reasonable adult' test reflected a notion of 'community standards' ("the standards of morality, decency and propriety generally accepted by reasonable adults") and a recognition by a contemporary liberal democratic state that consenting adults have divergent tastes.

Fox for example notes that -

His Honour maintained a biting criticism of the deficiencies of the law which, if it did not directly shape, at least gave rational direction to the revamping which took place. His theme was twofold: first, in an age of moral pluralism diversity had to be tolerated. The law was not designed to make nor was it capable of making men virtuous. Its proper concern was not private morality but public propriety and decorum. Its aim was to define the minimum standards of citizenship and no more. Secondly, insofar as prohibitions had to be predicated on such shifting standards as the current level of public tolerance of sexual expression, the courts had to be open and receptive to the enlightenment of research and should not excessively rely for knowledge on intuition and introspection.

In Popow v. Samuels (1973) 4 SASR 594 Bray commented on the 'obscenity' of films sold to male adults -

I think it was only intended to arouse and only likely to arouse erotic impulses in men. I do not think any of the material has a tendency to induce the commission of sexual crime. It does not incite to sadism or violence. I do not think that the arousal of erotic feelings in an adult male is itself an offence. Advertisements, films, literature at the present time notoriously, continuously, clamourously and blatantly appeal to the erotic instincts of men. I cannot think that that offends contemporary standards of morality. There would surely be louder and more effective protests if it did. I think that the tendency of this material is to induce erotic thoughts and impulses in adult males, these being the relevant audience. I think it would succeed with some, perhaps, if that is the test, with a significant proportion, of such males. It would undoubtedly fail to do so in many cases, either for reasons of good taste or because of the inadequacy of the material. The mere arousal of erotic impulses does not, in my view, in any relevant manner tend in itself to deprave or corrupt. There is, to my mind, something ludicrous about the application of such portentous words as "deprave" and "corrupt" to these trivial and insipid productions. ...

No doubt ... there was a time when anything tending to induce people to behave in a manner contrary to the Christian code of sexual ethics, and I mean by that absolute chastity outside monogamous marriage, or even to question the validity of that code, could be held liable to deprave or corrupt. That cannot, in my view, be said today. Not all sexual immorality within the meaning of that code can be said to deprave or corrupt ... and I would add that "deprave" and "corrupt" are strong words, not apt to include what society would regard as indulgence in a reprehensible but excusable peccadillo.

Peacock is concerned with commercial dissemination of the videos. The decision does not mean that it is legal to create, distribute or possess criminalised content (notably child pornography).

It should be read in the context of UK law such as R v Brown [1993] 2 All ER 75, aka the Spanner Case, in which the UK court took a different stance to same sex versus straight sex consensual S&M on the basis of a Hicklin-era offences against the person statute. It should also be read in conjunction was past policing action, for example the abandonment in 1998 of action by the West Midlands police against the University of Central England and publisher Random House over a book of photographs by Robert Mapplethorpe. The Crown Prosecution Service eventually decided that there was no realistic prospect of a successful conviction. The police had expressed concern regarding photos with similar themes to those in the Peacock case, offering to take no further action if the publishers, and the University (which held a copy of the book in its library) agreed to destroy all the copies of the book and the photos. The potential defendants refused. The CPS announced that there was "insufficient evidence to provide a realistic prospect of conviction against any person or company", noting that a book must tend to deprave or corrupt a significant number of the people who see it. That was considered by the CPS to be "highly unlikely", as the two offending pictures were published along with 380 others and most of the people who would be interested were art students or artists.

Copy Me

2012-01-06T17:31:00.011+11:00

I was asked today about the scope for establishing a version of Kopimi in Australia, and indeed whether there's any point apart from making geeks feel just a tad less unloved.

Kopimi (pron. copy me) - which I irreverently characterised as Piratbyrån at prayer - is in the news with reports that Sweden has recognised that informal organisation of information liberationists as a religion, centred on The Church of Kopimism. The Church reportedly claims that "kopyacting" - sharing information through copying - is akin to a religious service.

The BBC reports that Swedish government agency Kammarkollegiet "finally registered the Church of Kopimism as a religious organisation shortly before Christmas".

"We had to apply three times," said Gustav Nipe, chairman of the organisation.

The church, which holds CTRL+C and CTRL+V (shortcuts for copy and paste) as sacred symbols, does not directly promote illegal file sharing, focusing instead on the open distribution of knowledge to all.

It was founded by 19-year-old philosophy student and leader Isak Gerson. He hopes that file-sharing will now be given religious protection.

"For the Church of Kopimism, information is holy and copying is a sacrament. Information holds a value, in itself and in what it contains and the value multiplies through copying. Therefore copying is central for the organisation and its members," he said in a statement.

"Being recognised by the state of Sweden is a large step for all of Kopimi. Hopefully this is one step towards the day when we can live out our faith without fear of persecution," he added.

Would Australia recognise a local Kopimism as a religion and consequently grant special treatment (tax dispensations, a statutory defence for copyright infringements?) to clergy or ordinary members of that affinity group?

We could look to the High Court's decision in Church of New Faith v Commissioner of Pay-Roll Tax (1983) 154 CLR 120, where a majority held that the Church of New Faith (conventionally known as Scientology) was a religion.

In the decision - discussed in Kaye, Bruce --- 'An Australian Definition of Religion' by Bruce Kaye in 14(2) UNSW Law Journal (1991) 332 [PDF] - the Court emphasised an individual's belief in the supernatural and the individual's conduct that was broadly attributable to that belief (ie the belief was 'lived' rather than being fashion statement). Conduct such as compliance with codes or other doctrine, the practice of worship, teaching and proselytising is 'religious' only if the motivation for engaging in that conduct is religious (as distinct from example for a purely financial benefit).

The decision followed more than a decade of controversy over the basis and activity of Scientology, with Hugh Urban in The Church of Scientology: A History of a New Religion (Princeton: Princeton University Press 2011) for example noting strong judicial criticism of Scientology in several liberal democratic states, a history of systemic illegality in the US, criticisms that it was a cynical and opportunistic scam perpetrated by L Ron Hubbard and associates, and claims that rebadging of Dianetics as a religious organisation was an effort to deal with claims that Hubbard was operating a cult or a very successful business.

The High Court heard an appeal from the Victorian Supreme Court's decision in Church of New Faith v Commissioner of Pay-Roll Tax (1983) 1 VR 97, in which the state court upheld a decision by the state's Commissioner of Pay-Roll Tax that Scientology was not a religion. The Victorian decisions were based on the claim that Scientology was a philosophy rather than a religion, with "the trappings of religion" (such as a quasi-clerical garb and symbol) having been acquired after the organisation's establishment in a deliberate effort to give the semblance of a religion and thereby gain favourable tax treatment or other benefits.

Mason Ag CJ and Brennan commented that

The question whether Scientology is a religion cannot be answered, for there seem to be important, perhaps critically important, tenets of Scientology which the parties left without full examination. The question which can be answered is whether the beliefs, practices and observances which were established by the affidavits and oral evidence as the set of beliefs, practices and observances accepted by Scientologists are properly to be described as a religion.

The High Court supported a broad definition of religion, although cautioning against a "too broad" meaning. Mason and Brennan stated that -

The mantle of immunity would soon be in tatters if it were wrapped around beliefs, practices and observances of every kind whenever a group of adherents chose to call them a religion ... A more objective criterion is required ... We therefore hold that, for the purposes of the law, the criteria for religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.

Wilson and Deane JJ, with the majority, indicated that there was no single characteristic which could be used to identify an organisation as constituting a religion. The most that could be done was to formulate a range of indicia from past decisions -

• that the particular collection of ideas and/or practices involved belief in the supernatural, ie belief that reality extended beyond that which was capable of perception by the senses;
• that the ideas related to man's nature and place in the universe and his relations to things supernatural;
• that the ideas were accepted by adherents as requiring or encouraging them to observe particular practices having supernatural significance; and
• that, however loosely-knit and varying in beliefs and practices adherents might be, they constituted an identifiable group or identifiable groups.

Murphy J articulated a broader position, indicating that it was not the role of the courts to pass judgement on the validity of the beliefs of the adherents of a religion.

Mason and Brennan referred to Adelaide Company of Jehovah's Witnesses Inc. v The Commonwealth (1943) 67 CLR 116, commenting that -

An endeavour to define religion for legal purposes gives rise to peculiar difficulties, one of which was stated by Latham C.J. in Jehovah's Witnesses Inc. (1943) 67 CLR, at p 123
It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world..
The absence of a definition which is universally satisfying points to a more fundamental difficulty affecting the adoption of a definition for legal purposes. A definition cannot be adopted merely because it would satisfy the majority of the community or because it corresponds with a concept currently accepted by that majority. The development of the law towards complete religious liberty and religious equality to which Rich J. referred in Jehovah's Witnesses Inc. (1943) 67 CLR, at p 149 would be subverted and the guarantees in s. 116 of the Constitution would lose their character as a bastion of freedom if religion were so defined as to exclude from its ambit minority religions out of the main streams of religious thought. Though religious freedom and religious equality are beneficial to all true religions, minority religions - not well established and accepted - stand in need of especial protection ... It is more accurate to say that protection is required for the adherents of religions, not for the religions themselves. Protection is not accorded to safeguard the tenets of each religion; no such protection can be given by the law, and it would be contradictory of the law to protect at once the tenets of different religions which are incompatible with one another. Protection is accorded to preserve the dignity and freedom of each man so that he may adhere to any religion of his choosing or to none. The freedom of religion being equally conferred on all, the variety of religious beliefs which are within the area of legal immunity is not restricted.

The HCA judgment should be considered in the context of UK and Australian judicial decisions rejecting claims for recognition as a religion or more broadly for charitable status. In essence, instances where an organisation is not considered to be a church (or corresponding religious entity) are typically where the organisation is not considered to be genuine. What's genuine? A belief system or practice cannot be legitimately characterised as a religion if it -

• is no more than a sham or a parody of a religion (bad luck for Jedi enthusiasts)
• is contrary to laws that do not discriminate against religion generally, against particular religions or against conduct of a kind that is characteristic only of religion;
• otherwise envisages or promotes conduct that is inconsistent with the prevailing public policy, such as being subversive of morality.

In Re Jones [1907] SALR 1990, concerned with the Incorporated Body of Freethinkers of Australia, there was no recognition because the organisation was held to lack a religious purpose. Its members did have beliefs, often strongly held and strongly expressed. Those beliefs included the tenet that "science provides for life and that materialism can be relied upon in all phases of society", with the Freethinkers organisation accordingly campaigning against religious belief systems and organisations. The court held that campaigning against another religion or religion per se cannot itself be a religion. In Bowman v Secular Society Ltd [1917] AC 406 a decade later the UK court was similarly unsympathetic, again holding that the Secular Society - whose objects included promotion of "the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action" - could not have a religious purpose because it worked against already established religions or against the idea of religion.

Lord Parker in Bowman famously stated that:

The abolition of religious tests, the disestablishment of the Church, the secularisation of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath are purely political objects. Equity has always refused to recognise such objects as charitable.

It is unlikely that an Australian version of Kopimism - or an institutionalised group of Jedi, the Church of the Flying Spaghetti Monster (somewhat more benevolent that various Christian and Islamic sects) or fans of pizza & red wine - would gain recognition as a charity or as a religion.

In practice Sweden's recognition of Kopimism means little more than the organisation's name is protected (ie can't be appropriated by another entity, such the Church of the New Faith), the organisation appears in a national register of religious entities (statisticians rejoice!) and is eligible to apply for financial support from the government. It won't necessarily gain that support if it does apply. Registration does not necessarily provide adherents - and the spokespeople for Kopimism are at best vague about requirements for adherence - with a strong defence regarding copyright infringements.

Authorship

2012-01-05T21:12:00.007+11:00

I've been rereading the judgment in Penguin Books USA Inc, Foundation for 'A Course in Miracles' Inc and Foundation for Inner Peace Inc v New Christian Church of Full Endeavor Ltd and Endeavor Academy 55 USPQ2d 1680, 1691 (S.D.N.Y. 2000), following up a student query about Cummins v Bond (1927) 1 Ch. 167 and other cases whethe 'authorship' of a work was unsuccessfully attributed to a phantasm or divinity.

In the UK case the court considered a medium's claim to rights in the 'Chronicles' of Cleophas, 'automatic writing' supposedly - via a spirit known as The Messenger - from author Cleophas, who had been a contemporary of Christ and was able to offer 'insider' accounts of events depicted in the Bible. Ms Geraldine Cummins (1890-1969), the medium, sought to stop unauthorised publication of that text, which was subsequently promoted with the words

In this chronicle, the Christian will find confirmation of his most cherished beliefs, while the claim of psychic science to the possibility of obtaining exact knowledge by supernormal means is vindicated to the full.

The non-believer, on the other hand, might simply have fallen asleep after encountering page after page of prose such as -

Now the inn was set in a barren place, no great journey from Jerusalem. Truly the face of that region seemed as the countenance of some old bald head which is scored and wrinkled, scourged by the furies of life and time. Only in spring did any green things show themselves, and that but sparsely. Soon the grasses drooped and died. With summer these rocky valleys and clifted hills were stripped of plant and flower, and the eyes of men were greeted only with the bare and pitiless stones that burned the feet with the coming of the noonday sun.

Mary might well have pined and drooped when compelled to five in the midst of such harshness; and at times her spirit yearned for the vine clad slopes of Galilee, for the rich blossom of that land, for the peace of the deep blue waters of the lake. Yet she was content because her dream grew and increased in loveliness.

In the season of harvest the innkeeper made great preparation and caused his housewife and handmaid to scour the house; for he deemed that many pilgrims would soon pass by that way, journeying to Jerusalem for the Feast of the Tabernacles.

It was a year when the hearts and minds of many Jews were turned towards the Holy City of Zion. So the belief of the innkeeper was fulfilled. Travelers passed by that way in great numbers; and Mary and the housewife served them, labouring early and late. Among them were certain Jews who had come from a far land that lay beyond the Euphrates.

They smiled upon Mary and desired that she should serve them. They were not as other pilgrims, but wore costly robes. So their host sought to do the strangers honour, and the maid bore meat and wine in haste, setting them before each grey beard.

And as they ate their fill they spoke with one another, saying: "Peradventure, we shall see Herod, the king, at Jerusalem, and he may lighten the darkness of our ignorance."

Whereupon the innkeeper inquired of them as to their purpose in this pilgrimage, and as to the knowledge they sought to acquire from a ruler who was not held in any great esteem by the faithful.

One white bearded sage said: "We have learned that the hour of the birth of the Messiah is at hand. We have seen the star that heraldeth His coming and we would find Him out and pay Him homage."

"And where shall he be found?" asked the innkeeper.

"The prophet hath declared that Bethlehem is chosen as His birthplace. 'Thou, Bethlehem, art not the least among the cities of Judaea.' So it hath been written. 'Wherefore, we would seek Him there."

"Nay, not in Bethlehem," spoke another bearded stranger. "Masters, ye are wise men. Wherefore should the King of Israel thus be born in a small city, without the knowledge of the people?"

The Chancery judge unsurprisingly found that he lacked jurisdiction in "the sphere in which the spirit moves" and was not prepared to hold that "authorship and copyright rest with some one already domiciled on the other side of the inevitable river. That is a matter I must leave for solution by others more competent to decide than me". Bad news if you are a spirit seeking copyright protection!

Sweet J in the 'Miracles' judgment comments that -

The centerpiece of this litigation is a lengthy written work entitled "A Course in Miracles" (the "Course"). The Course, currently published by Penguin in a single volume over a thousand pages in length, is divided into three sections: the text ("Text"), a workbook for students ("Workbook"), and a manual for teachers ("Manual"). The Course can loosely be categorized as belonging to that genre of "New Age" spiritual texts which seem to pop out of the post-industrial cultures of the northern hemisphere like the quarks which particle physicists tell us materialize spontaneously in the fabric of space-time. Nevertheless, despite its New Age trappings, the Course is explicitly grounded in Christian theology.

Its somewhat bewildered, bewildering, yet not terribly novel message appears to be that the world humans perceive with their senses is merely an illusion projected by our minds outside of ourselves, and that the true world is "God," who is love, which is "all there is." This is an admittedly subjective summation, but perhaps more informative than the cryptic summation provided in the Course itself: "Nothing real can be threatened. Nothing unreal exists. Herein lies the peace of God."

The Course originated in 1965 with Dr Helen Schucman, an associate professor of medical psychology at Columbia University's College of Physicians & Surgeons, who after experiencing "some tension at work", srtarted taking dictation from The Voice (subsequently identified as that of Jesus Christ). The Voice had told her: "This is a course in miracles. Please take notes." She obliged, and eventually over 2 million copies of the book were sold.

The judgment continues -

At some point during the summer of 1975, after it became apparent that an interest for the Course was developing, Schucman heard from the Voice that copyright registration should be sought for the Course, ostensibly in order to preserve the form of the Course against the possibility of incomplete or corrupted editions. Schucman asked that the registration be in the name of the nonprofit organization, the Foundation for Para-Sensory Investigation.

A submission to the court included the statement that -

When A Course in Miracles was originally published in June of 1976, we made a firm commitment to seek out and listen to the Voice of the Holy Spirit before making any decisions related to the Course. None of us was prepared, however, for one particular instruction from Jesus to Helen Schucman, scribe of the Course. He wanted A Course in Miracles copyrighted and, she stated emphatically, he was quite adamant about this. ... the idea of a copyright struck all of us as somewhat out of character when applied to a spiritual teaching such as A Course in Miracles. Nevertheless, even though we could not envision a need for the Course to be copyrighted, we of course listened to Jesus and proceeded to contact the [U.S.] Copyright Office. ...

We were informed that a copyright could not be granted to a non-physical author such as Jesus, nor to "Anonymous." On the other hand, Helen's name could not appear on the Course's copyright page because Jesus had cautioned her against publicly associating her name with it, lest people confuse her role with his and the Holy Spirit's. Therefore, our guidance was that the copyright registration should be filed with the author listed as "Anonymous," followed by Helen's name in parentheses, while the copyright itself was officially assigned by Helen to the Foundation for Inner Peace.

From there it was down hill all the way, with disputes about unauthorised copying the dictation from on high.

The Court indicated that -

even if Schucman had not made herself available to receive this revelation, and even if the original material did not reflect her personal tastes, it is undisputed that the dictated material was subsequently edited: personal references were removed, punctuation was added, chapter and section headings were created, and other work was done to shape the material into the final form it took in the published Course. Even if all of these editorial changes and additions were "approved of" by Jesus, it is undisputed that many of them were initiated by Schucman [and associates] i.e., many changes were not simply dictated, but were initially the impulse of Schucman and those others, with Schucman then "checking" to see if the changes would pass muster with Jesus, a process quite similar to that used by the Contact Commission. Significantly, the initial creative spark for these changes came from Schucman and the others, not from Jesus, and, as in Urantia, materially contributed to the structure of the Course. These editorial changes thus satisfy the "minimal degree of creativity," Feist, 499 U.S. at 346, required by copyright law.

Defendants, in their memoranda of law, play down the editorial contributions of Schucman, stating that she was only a scribe taking dictation. This is not borne out by the evidence, however, even when viewed in the light most favorable to Defendants. Schucman's interaction with the Voice was similar to the Contact Commission's interaction with the divine beings in Urantia: although in each instance the non-human author had the final say, the humans had at least some input into, and effect on, the form and content.

The case is discussed in 'Gutenberg's Legacy: Copyright, Censorship, and Religious Pluralism' by Thomas Cotter in 91(2) California Law Review (2003).

Filkin

2012-01-05T12:51:00.004+11:00

Reading the 56 page Filkin Report [PDF] - aka the UK govt report on The Ethical Issues Arising From The Relationship Between the Police and Media: Advice to the Commissioner of Police of the Metropolis and his Management Board in conjunction with the Leveson Inquiry (‘Culture, Practices and Ethics of the Press’) about improper access by UK journalists to personal information.

The report was produced by Elizabeth Filkin, a former Parliamentary Standards official. She states that -

In July 2011 there were perceptions that phone hacking at the News of the World was more widespread than had previously been identified, and that the Metropolitan Police Service (MPS) may not have investigated these concerns thoroughly. The then Commissioner of the MPS and an Assistant Commissioner resigned. In July 2011 the then Commissioner Sir Paul Stephenson asked me to review the relationships between the MPS and the media. ...

There was speculation that cosy relationships involving excessive hospitality, between some senior police officers and News of the World journalists, undermined the willingness of the police to pursue possible criminal offences beyond the two convictions in 2007.

Her terms of reference were -

To advise the Commissioner of Police of the Metropolis and his Management Board as follows:
• Generally as to ethical issues arising from the relationship between police and media;
• The proper purpose of the relationship between senior officers/staff and more junior officers/staff and media executives and reporters at all levels;
• Steps that should, or might, be taken to improve public confidence in police/media relations;
• Whether there are practicable steps that should be taken to improve transparency of police/press relationships;
• What, if any, hospitality is it acceptable for police officers/staff to receive or provide from/to the media;
• What evidence in relation to these issues should be led by the MPS to the Public Inquiry announced by the Prime Minister on 13 July 2011?

Filkin comments that -

I have reviewed the current constraints for the MPS in providing information to the media: The Children and Young Persons Act 1969, the Magistrates Court Act 1980, the Contempt of Court Act 1981, the Police and Criminal Evidence Act 1984, the Data Protection Act 1998, the Official Secrets Act 1989, the Misconduct in a Public Office Guidance, the Police (Conduct) Regulations 2008, the Bribery Act 2010, the Police Staff Discipline Procedures, and the numerous MPS internal policies and standard operating procedures. It is clear that these are not always adhered to.

The resultant "key messages" are -

1. It is critical for policing legitimacy that the MPS are as open and transparent as they can be and the media plays an important part in this. On occasions the MPS has not been open enough in providing the right information to the public.
2. The media is vitally important in holding the MPS to account on behalf of the public.
3. The media is essential in informing the public about the work of the police service and its role in the justice system.
4. It is impossible for an organisation to control every contact with the media. Any proposed solution will rely on police officers and police staff ‘living’ a set of core principles and making judgements about their application.
5. In the past it has not been sufficiently clear to police officers and staff what principles should underpin contact with the media. This has resulted in practices which have been damaging.
6. Where relationships with the media appear partial or selective, this creates a serious problem which is damaging to public confidence and to the MPS.
7. Police officers and staff are the best ambassadors for the organisation in providing information to the public. They are part of the public they serve.
8. The problems that I have been told about and the changes that I suggest are to do with broad organisational issues including leadership and management throughout the MPS. A narrow view focused only on the specific task of handling the media will not be productive.

Deathmarks and ADR

2012-01-04T11:49:00.007+11:00

The Commonwealth Attorney-General's Department has released a set of documents regarding the Philip Morris Asia challenge to the Tobacco Plain Packaging Act 2011 (Cth) that received Royal Assent and became law in Australia on 1 December 2011. As noted in previous posts in this blog, the Act restricts use of tobacco company trade marks in retail packaging of tobacco products but does not extinguish the trade marks ... in essence the Marlboro Man and other signifiers can still ride, just not very freely.

Philip Morris Asia is challenging the Australian regime, which the Government has justified on public health grounds and as consistent with international health obligations under the WHO Framework Convention on Tobacco Control. The challenge is based on what Philip Morris argues is a breach of the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. That bilateral agreement features scope for dispute resolution by an international tribunal, with arbitration being conducted under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules 2010.

Just before Christmas the Government provided its Response to Philip Morris Asia’s Notice of Arbitration. The Government states that -

As the proceedings brought by Phillip Morris Asia concern the Government’s right to take regulatory measures to protect public health, it is important that the public have access to information relating to the proceedings. The Government is committed to achieving transparency in these proceedings.

The A-G's website accordingly features a copy of the Australia - Hong Kong Bilateral Investment Treaty [PDF], the Philip Morris Asia Limited Notice of Claim [PDF] and November 2011 Notice of Arbitration [PDF], and the Australian Response to the Notice of Arbitration [PDF].

The latter states that -

PM Asia is incorporated in Hong Kong and asserts that the plain packaging measure impacts on investments that PM Asia owns or controls in Australia, namely its shares in Philip Morris Australia Limited (“PM Australia”), the shares that are held by PM Australia in Philip Morris Limited (“PML”), and the intellectual property and goodwill of PML. PM Asia acquired its shareholding in PM Australia (and hence a purported indirect interest in the shares and assets of PML) only on 23 February 2011.

This recent acquisition was made by PM Asia against the backdrop of:
a) the Australian Government’s long-standing regulation and control of the manufacture and sale of tobacco in Australia, and its ratification of the World Health Organization (“WHO”) Framework Convention on Tobacco Control (“FCTC”);

b) the Australian Government’s establishment of a National Preventative Health Taskforce (“Taskforce”) in April 2008 to consider how to reduce harm from tobacco usage, which led to the Taskforce considering the impacts of packaging on tobacco usage, engaging in a consultation exercise in which PML participated and, ultimately, recommending in June 2009 that the Australian Government mandate the sale of cigarettes in plain packaging and increase the required size of graphic health warnings;

c) the Australian Government’s announcement, on 29 April 2010, of its decision to implement plain packaging and to mandate updated and larger graphic health warnings for all tobacco products; and

d) continuing objections or public complaints on the part of PM Australia, PML and also Philip Morris International Inc. (the ultimate holding company for the Philip Morris group) – in the course of the remainder of 2010 and early 2011 – to the effect that the plain packaging legislation would breach Australia’s international trade and treaty obligations.
Thus, PM Asia acquired its shares in PM Australia on 23 February 2011, both in full knowledge that the decision had been announced by the Australian Government to introduce plain packaging, and also in circumstances where various other members of the Philip Morris group had repeatedly made clear their objections to the plain packaging legislation, whereas such objections had not been accepted by the Australian Government.

It continues -

Against this backdrop, PM Asia’s claims under the BIT inevitably fail, both as to jurisdiction and the merits:
a) Article 10 of the BIT does not confer jurisdiction on an arbitral tribunal to determine pre-existing disputes that have been re-packaged as BIT claims many months after the relevant governmental measure has been announced.

b) The plain packaging legislation cannot be regarded as a breach of any of the substantive protections under the BIT. PM Asia made a decision to acquire shares in PM Australia in full knowledge that the decision had been announced by the Australian Government to introduce plain packaging. An investor cannot make out a claim for breach of (say) the fair and equitable treatment standard or of expropriation in circumstances where (i) a host State has announced that it is going to take certain regulatory measures in protection of public health, (ii) the prospective investor – fully advised of the relevant facts – then acquires some form of an interest in the object of the regulatory measures, and (iii) the host State then acts in the way it has said it is going to act.

The Government offers a number of preliminary observations before contesting specific claims by Philip Morris. Those observations are -

First, the Australian Government is implementing plain packaging to protect the public health of Australia’s population from an addictive and dangerous substance that causes widespread death and disease in Australia (and around the world). The protection of public health is an objective of fundamental importance to all Governments, and the WHO and the FCTC Secretariat have indicated their strong support for plain packaging as an effective public health measure.

Secondly, the Australian Government’s plain packaging initiatives are based on a broad range of studies and reports, and supported by leading Australian and international public health experts. The evidence demonstrates that use of logos, symbols, designs, colours and other forms of advertising on tobacco packaging increases attractiveness to consumers, can mislead consumers into thinking some tobacco products are safer than others, and also decreases the prominence and effectiveness of health warnings. Tobacco advertising can be particularly effective on young people, the age group most likely to become addicted to smoking.

Thirdly, in so far as PM Asia contends that plain packaging measures will lead to a decline in cigarette prices (and hence increased consumption) and to an increase of market participation in illicit tobacco products (cf Notice of Arbitration, para. 6.3), those contentions are not accepted. Further, even if correct, the Australian Government has power to implement a range of measures, including further increases to the rate of excise, to ensure that cigarette prices do not fall to a level which would lead to an increase in consumption. In addition, the Australian Government will continue to vigorously enforce its laws against illicit trade in tobacco.

Fourthly, plain packaging is not an alternative to other tobacco control measures but is an integral part of the comprehensive suite of measures adopted by Australia to respond to the public health problems caused by tobacco. These measures ... are based on the comprehensive tobacco control strategy recommended by the Taskforce in 2009. The implementation of this wide-ranging set of measures will be critical to achieving significant reductions in smoking rates in Australia.

Fifthly, PM Asia claims at various junctures in its Notice of Arbitration that plain packaging eliminates branding. PML will however retain the ability to place brand names, including any variant, on tobacco packaging. Plain packaging does not prevent product differentiation or identification of a product’s place of origin on its packaging (cf. Notice of Arbitration, para. 1.4).

What the plain packaging measure in fact restricts is the ability of tobacco companies to advertise their products by packaging them with attractive branding and other designs. This is the real substance of PM Asia’s concern. By preventing such advertising on retail tobacco packaging, as one of the principal remaining means for PML and other tobacco companies to advertise tobacco, the Australian Government intends that plain packaging will contribute to efforts to reduce smoking rates in Australia.

In contesting the tobacco giant's claim of expropriation the Government states that -

The Australian Government rejects PM Asia’s claim that it has breached the obligation under Article 6 not to deprive investors of their investments or subject investors to measures having effect equivalent to such deprivation.

PM Asia has not in fact been deprived of the purported investments it made on 23 February 2011; nor has PM Asia been subjected to measures having equivalent effect.

Further, plain packaging measures are non-discriminatory regulatory actions of general application designed and adopted by the Australian Government to achieve the most fundamental public welfare objective – the protection of public health. Such measures do not amount to expropriation, are not equivalent to expropriation, and do not give rise to a duty of compensation.

After arguing that there has been no discriminatory action, the Government requests the arbitral tribunal -

a) to declare that it has no jurisdiction over PM Asia’s claims, or that they are inadmissible;
b) alternatively, to dismiss PM Asia’s claims in their entirety; and
c) to order that PM Asia bear the costs of the arbitration, including Australia’s costs of legal representation and assistance, pursuant to Article 42 of the UNCITRAL Arbitration Rules.

In essence, it is arguable that PM Asia - knowing that restrictions on packaging were in the pipeline - acquired the Australian interests in order to take action under the BIT and with an awareness that the value of interests would be eroded by the restrictions. The tribunal might be unimpressed by PM Asia's claim for compensation regarding assets with a value that was presumably going to be reduced by “billions of Australian dollars”. Article 6 of the BIT specifies that compensation reflects “the real value of the investment immediately before the deprivation or before the impending deprivation became public knowledge whichever is the earlier”. Given that PM Asia acquired the interests after the impending deprivation became public knowledge (and arguably with the intention to thwart the restrictions) it would appear to have no interest at the relevant time.

Consequences?

2012-01-03T18:35:00.011+11:00

A reader has kindly pointed me to 'Sydney women turn to US dads for sperm donation' by Rosie Squires in the [Sydney] Sunday Telegraph, highlighting consequences - intended or otherwise - of post-2009 restrictions on anonymity for sperm donors.

Squires claims that -

Sydney women are importing sperm from the US because Australian men are too scared to donate.

Local donations to IVF clinics have all but stopped since it became easier for children to track down their biological fathers.

IVF Australia head Professor Michael Chapman told The Sunday Telegraph that donor shortages had become critical, falling from 100 to 10 at his clinic in the past four years.

"Last year we only had two or three donors on our books," Professor Chapman said. "Today around Australia there are about 50 donors, but the demand is still substantially higher than that."

As a result, IVF Australia started importing sperm from the US two months ago.

Professor Chapman said donor imports were "not ideal" but would help reduce waiting times for insemination.

In January last year a law came into effect stating that all sperm donors must agree to provide identifying information so that the child would be able to contact them once they reached 18.

Fertility specialist Professor Peter Illingworth said the change in the law was directly linked to the drop-off in sperm donors.

"There is no doubt that when the law was first introduced, it affected the number of men willing to donate sperm. It is a big undertaking. Being a donor is very serious and the fact is, not many men are willing to do it," he said.

Illingworth's clinic has reportedly 'been careful in its choice of an offshore sperm bank' -

"We have for a long time been looking for a way to improve sperm donor numbers in Australia.

"We have now found an agency in the US whose donors have given consent to provide identity to the child after they turn 18," he said.

Professor Illingworth said sperm donors would also stick to strict NSW regulations stipulating that each donor could only supply four families with sperm.

Professor Chapman said Australian clinics needed more local donors because importing sperm was "not ideal".

"There is still that issue that, despite their undertakings, an overseas donor perhaps is less likely to be tracked in the future," he said.

The article claims that in the 12 months to September 2011 some 194 babies were born in NSW through sperm donations, consistent with figures in the Senate committee report highlighted last year.

In April 2010 the Telegraph claimed that -

A critical shortage of donor sperm has forced the state's largest IVF clinic to launch an online advertising campaign targeting male generosity.

Tougher restrictions on imported sperm has shrunk already scarce supplies while new legislation, which gives children the right to know the identity of their donor father, has seen a big decline in donor numbers.

Fertility experts said there were less than 10 registered sperm donors left in NSW, forcing many of the state's 24 IVF clinics to close the books on couples keen to conceive by donor insemination.

In NSW the Assisted Reproductive Technology Act 2007 (NSW) and the Assisted Reproductive Technology Regulation 2009, in effect from 1 January 2010, establish a central ART donor register.

The Register features information about gamete donors and children born as a result of ART treatment using donated gametes (sperm and ova), with individuals conceived using donated gametes (once they turn 18), their legal parents and donors being able to access certain information.

The Register contains -

• the donor’s full name
• the donor’s residential address
• the donor’s date and place of birth
• the donor’s ethnicity and physical characteristics
• any medical history or genetic test results of the donor or the donor's family that are relevant to the future health of -
• a person undergoing ART treatment involving the use of the donated gamete
• any offspring born as a result of that treatment
• any descendents of any such offspring
• the name of each ART provider that has previously obtained a donated gamete from the donor and the date on which the gamete was obtained
• the sex and year of birth of any offspring of the donor.

The Register also includes the following information about a child born as a result of ART treatment using donated gametes -

• the donor conceived child’s full name, sex and date of birth
• the name of the woman who gave birth to the child
• the full name and date and place of birth of the donor of the gamete.

Not all of that data is currently publicly available. Adults who were donor conceived after the legislation came into effect (ie who reach adulthood after 2017) will have mandatory access to -

• the donor's full name
• the donor's residential address
• the donor's date and place of birth
• the donor's ethnicity and physical characteristics
• any medical history or genetic test results (prior to donation) of the donor or the donor's family that are relevant to the future health of -
• a person undergoing ART treatment involving use of the donated gamete, or
• any offspring born as a result of that treatment, or
• any descendent of any such offspring
• the name of the ART provider that provided the above information, and
• the sex and year of birth of each other offspring of the donor.

There is no requirement on donors to keep their information current.

Some people of course were donor-conceived prior to the legislation. Mandatory access to the Register does not operate retrospectively. For donors whose donated sperm, eggs or embryos were used prior to 1 January 2010 access to some/all information will be dependent on them -

• voluntarily adding their details to the Register and
• consenting to having their information released.

Against Digital Transcendentalism

2012-01-03T17:21:00.005+11:00

As a corrective to some of the more fatuous writing about 'revolution by twitter' and cyberliberation 'Recording Everything: Digital Storage as an Enabler of Authoritarian Governments' (Brookings Institution Paper 2011) by John Villasenor argues [PDF] that -

Within the next few years an important threshold will be crossed: For the first time ever, it will become technologically and financially feasible for authoritarian governments to record nearly everything that is said or done within their borders – every phone conversation, electronic message, social media interaction, the movements of nearly every person and vehicle, and video from every street corner. Governments with a history of using all of the tools at their disposal to track and monitor their citizens will undoubtedly make full use of this capability once it becomes available.

The Arab Spring of 2011, which saw regimes toppled by protesters organized via Twitter and Facebook, was heralded in much of the world as signifying a new era in which information technology alters the balance of power in favor of the repressed. However, within the world’s many remaining authoritarian regimes it was undoubtedly viewed very differently. For those governments, the Arab Spring likely underscored the perils of failing to exercise sufficient control of digital communications and highlighted the need to redouble their efforts to increase the monitoring of their citizenry.

Technology trends are making such monitoring easier to perform. While the domestic surveillance programs of countries including Syria, Iran, China, Burma, and Libya under Gadhafi have been extensively reported, the evolving role of digital storage in facilitating truly pervasive surveillance is less widely recognized. Plummeting digital storage costs will soon make it possible for authoritarian regimes to not only monitor known dissidents, but to also store the complete set of digital data associated with everyone within their borders. These enormous databases of captured information will create what amounts to a surveillance time machine, enabling state security services to retroactively eavesdrop on people in the months and years before they were designated as surveillance targets. This will fundamentally change the dynamics of dissent, insurgency and revolution.

The coming era of ubiquitous surveillance in authoritarian countries has important consequences for American foreign policy as well, impacting issues as diverse as human rights, trade, nuclear nonproliferation, export control, and intellectual property security.

Villasenor comments that -

In 2008, social scientist Mohammed Ibrahrine published a paper titled “Mobile Communication and Sociopolitical Change in the Arab World” that highlighted the important role of mobile phones in “empowering and mobilizing marginalized groups” and “increasing the range of alternative actions available to individuals, opposition forces, and civil society groups.” It was an early observation of the now widely recognized power of mobile communications to organize dissent.

However, some aspects of the ability of information technology to shift the balance of power away from repressive regimes and in favor of their opponents are temporary. When, as has been the case, the flood of electronic information is too voluminous for authoritarian governments to capture, store, and effectively analyze in its entirety, the information advantage can indeed lie with regime opponents. It is an advantage that has recently been exploited to varying degrees of success in Tunisia, Iran, Syria, Egypt, Libya, and elsewhere.

But the ability to record everything will tilt the playing field back in favor of repressive governments by laying the foundation for a plethora of new approaches to targeting dissent. When all of the telephone calls in an entire country can be captured and provided to voice recognition software programmed to extract key phrases, and when video footage from public spaces can be correlated in real time to the conversations, text messages, and social media traffic associated with the people occupying those spaces, the arsenal of responses available to a regime facing dissent will expand. Some changes will be immediate and tactical. Instead of implementing broad social media or Internet shutdowns in response to unrest,44 governments in possession of complete communications databases will be able to conduct more selective censorship or alteration of message traffic during periods of instability. This will provide a greater capability to shape or quell dissent.

Pervasive monitoring will provide what amounts to a time machine allowing authoritarian governments to perform retrospective surveillance. For example, if an anti-regime demonstrator previously unknown to security services is arrested, it will be possible to go back in time to scrutinize the demonstrator’s phone conversations, automobile travels, and the people he or she met in the months and even years leading up to the arrest.

There are also longer-term consequences that include a thinning in the ranks of regime opponents. By definition, organized dissent requires that dissenters have the ability to exchange information. Prominent opponents of repressive governments have learned to expect tracking of their movements and interception of their phone calls and other forms of electronic communications. But when technology enables an entire country’s worth of communications to be intercepted, the circle of people whom dissidents will be able to recruit to their ranks will narrow.

In addition, knowledge that communications are archived will reduce the willingness of dissidents to speak frankly even over encrypted communications. Time will often favor an authoritarian government able to store intercepted data that is initially too securely encrypted to decode. Due to some combination of advances in code-breaking, computing capabilities or intentional or unintentional compromise of decryption keys, many encrypted messages will become decodable by state security services. Awareness of the likelihood that all messages – including those that are encrypted – will eventually be read by security services will chill dissent.

He concludes that -

Declining storage costs will soon make it practical for authoritarian governments to create permanent digital archives of the data gathered from pervasive surveillance systems. In countries where there is no meaningful public debate on privacy, there is no reason to expect governments not to fully exploit the ability to build databases containing every phone conversation, location data for almost every person and vehicle, and video from every public space in an entire country.

This will greatly expand the ability of repressive regimes to perform surveillance of opponents and to anticipate and react to unrest. In addition, the awareness among the populace of pervasive surveillance will reduce the willingness of people to engage in dissent.

The coming era of ubiquitous surveillance in authoritarian countries has important implications for American foreign policy. Strategies for engaging with these countries will benefit from specific consideration of the presence, growth and increasing impact of these enormous digital databases. This will impact human rights, trade, export control, intellectual property security, and the operation of multinational businesses with in-country facilities, subsidiaries, or subcontractors.

Finally, the use by authoritarian governments of systems that record everything in the complete absence of privacy considerations will lead to a long list of other unforeseen and generally negative consequences. Unfortunately, the residents of those countries, as well as the rest of us, will soon start to find out just what those consequences are.

Dark Clouds

2012-01-03T17:11:00.004+11:00

'Government Cloud Computing and the Policies of Data Sovereignty' by Kristina Irion argues that -

Government cloud services are a new development at the intersection of electronic government and cloud computing which holds the promise of rendering government service delivery more effective and efficient. Cloud services are virtual, dynamic and potentially stateless which has triggered governments’ concern about data sovereignty. This paper explores data sovereignty in relation to government cloud services and how national strategies and international policy evolve. It concludes that for countries data sovereignty presents a legal risk which can not be adequately addressed with technology or through contractual arrangements alone. Governments therefore adopt strategies to retain exclusive jurisdiction over government information.

She concludes -

If cloud computing is the next paradigm in computing than governments can not miss this trend and continue to migrate public digital assets to cloud services. Governments find themselves in the dilemma to ensure sovereignty over data residing in the cloud which is virtual, dynamic and potentially stateless. Data sovereignty is an ideal conception of information ownership which compensates for the progressing virtualization of information where digital data is stored and processed remotely. For governments this means:
Government’s control over all virtual public assets, which are not in the public domain, irrespective whether they are stored on own or third parties’ facilities and premises, and which are governed under an effective information assurance framework, including, where appropriate, strategies to retain exclusive jurisdiction over government information.
Countries treat this issue as a legal risk which can not be adequately addressed with technology or through contractual arrangements alone. Hence, in applying their national risk management strategy the countries surveyed (US, UK, Australia, and Canada) restrict cloud solutions for sensitive government information (medium- and high-risk) to their territory which contradicts the cloud technology’s global philosophy.

The call for international policy to remedy the complexity of divergent, and at times conflicting, regulations of different countries pertaining to cloud computing can help to establish a viable commercial environment. International standard-setting may, however, not go far enough to provide a solution to governments’ data sovereignty concerns over transborder flows of government data. From a risk-management point of view the territoriality paradigm which favors national cloud services would preempt any international agreement build on mutual trust.

Besides, the concept of data sovereignty offers a proposition how to strengthen the link between the data owner and the all types of data not limited to the protection of personal information. Cloud computing presents a scenario to argue that it is not enough to update and harmonize existing regulation but to take information ownership rights to a new level.

Discrimination law

2012-01-02T11:14:00.004+11:00

The NSW Court of Appeal in Sydney Local Health Network v QY and QZ [2011] NSWCA 412 has found that the partner and friend of a man who died with HIV were not discriminated against under the Anti-Discrimination Act 1977 (NSW) because of the way his autopsy was carried out. Mr B died in 2007, apparently by his own hand, with the coroner under the Coroners Act 1980 (NSW) ordering an autopsy by the Department of Forensic Medicine regarding a 'suspicious death'.

In QY & QZ v Sydney South West Area Health Service (EOD) [2010] NSWADTAP 48 they argued that they experienced discrimination on the basis that forensic pathologists at the Glebe morgue had not provided a service to them (reconstructing Mr B's body) that the morgue would have provided had he not suffered the disability of HIV. They were therefore forced to tell some of Mr B's family of his illness. Mr B is dead and presumably beyond caring about his privacy or the distress of his relatives.

NSW does not reconstruct the dissected cadavers of people known to have HIV. That reconstriction is a matter of the morgue's occupational health & safety rules:

Hepatitis C or HIV positive bodies are not to be reconstructed after autopsy. All family members are informed and asked to view the body before autopsy. After completion of the autopsy, the body is double bagged, the outer bag yellow and to be clearly labelled with 'not reconstructed', then placed in the body storage area.

In the initial finding Mr QZ and Ms QY (the partner and friend) were held to be capable of suffering discrimination as a relative or associate with a disability or associates of people with a protected sexual orientation. the Court of Appeal disagreed, ruling that the B was not a "person" at the time of the alleged discrimination and that they were not "relatives or associates". Young JA

A person is only an associate so long as the relationship continues.

It may be that there is a certain illogicality in confining [the law] to association with living persons. However, the pattern of growth of the Act is that the legislature by degrees amends the act to deal with more and more situations and, as at 2007, it had only progressed this far.

Campbell JA commented -

I have reached the same conclusion as his Honour concerning the fate of the appeal, but on narrower grounds. I am not persuaded that it is only a living person who can be a "person" within the meaning of the Anti-Discrimination Act 1977. However an "associate" of a person within the meaning of the Act must be a person who is living at the time that the discrimination in question is alleged to have occurred. That is a sufficient reason why there has been no contravention of the Act in the present case. ...

There is no reason readily apparent from a reading of the Act why discrimination on the basis of a characteristic of someone who was once a relative or associate, but is no longer a relative or associate at the time of the differential conduct, is not also prohibited. However, that consequence flows from the language of the Act. It may be that Parliament took the view that certain circumstances were unlikely, or occurred too infrequently to warrant legislating against. These circumstances might include:
(1) discrimination on the basis of a characteristic that a deceased associate had;

(2) discrimination on the basis of a characteristic that any other person who was once an associate but is no longer an associate had; and

(3) discrimination on the basis of a characteristic that a former spouse or relation by affinity had.
However it cannot be said that there is any basis in the text of the Act for concluding that that was so.

Protecting living persons against discrimination is not the sole object of the Act. As well, the terms of the Act shows that it has an objective of affecting societal standards by discouraging discrimination and promoting equality. One way in which it does this is by attaching sanctions to discriminatory conduct on the basis of a particular characteristic. This creates an incentive not to engage in such behaviour, which has a tendency to protect all persons with the particular characteristic (whether now alive or not) from future discriminatory behaviour.

The court examined if HIV/AIDS met the definition of disability. It also considered whether the morgue could be said to have provided a "service' to Mr B's friends in terms of the Act. Young JA referred to Jackson, The Law of Cadavers (Prentice Hall Inc, New York, 1936) which quotes Foley v Phelps 37 NYS 471, 474 (1896)-

The right is to possession of the corpse in the same condition it was in when death supervened. It is the right to what remains when breath leaves the body, and not merely to such a hacked, hewed, and mutilated corpse as some stranger ... may choose to turn over to an afflicted relative.

The Court referred to s 52A of the Coroners Act in ruling that a doctor performing the autopsy was not liable for the consequences.

QZ and QY were ordered to pay the costs of the health service representing the morgue.

Privacy Case Notes

2011-12-30T16:36:00.010+11:00

The Office of the Australian Information Commissioner (OAIC), the national agency that incorporates the Commonwealth Privacy Commissioner, has released 13 case notes regarding the Privacy Act 1988 (Cth).

Those notes ("intended to offer a synopsis only and not to be a comprehensive account") are -

• S and Telecommunication Company [2011] AICmrCN 13
• R and Credit Reporting Agency [2011] AICmrCN 12
• Q and Financial Institution [2011] AICmrCN 11
• P and Retail Company [2011] AICmrCN 10
• O and Professional Association [2011] AICmrCN 9
• N and Law Firm [2011] AICmrCN 8
• M and Law Firm [2011] AICmrCN 7
• L and Insurer [2011] AICmrCN 6
• K and Finance Company [2011] AICmrCN 5
• J and Commonwealth Agency [2011] AICmrCN 4
• I and Insurance Company [2011] AICmrCN 3
• H and Registered Club [2011] AICmrCN 2
• G and Parking Services Organisation [2011] AICmrCN 1

Highlights are as follows.

In S and Telecommunication Company (re NPP 6.1 and 6.7) the complainant had attempted to access personal information held by a telco, which the person believed included correspondence to a law enforcement agency. The telco relied on its internal privacy policy in its explanation of its decision to deny access, going on to quote exceptions under NPP 6 (ie denial of access to an individual when access would prejudice activities being carried out by, or on behalf of, a law enforcement body) when the complainant pursued the matter.

In R and Credit Reporting Agency (re s 18G(a) of the Act 1988) the complainant became aware the agency had linked the person's consumer credit information file with the credit files of other individuals. The complainant advised the agency that there was no connection to the other individuals. The credit reporting agency refused to remove the links. The Commissioner considered that by linking the complainant's personal information to other individuals the agency had failed to take reasonable steps to ensure the accuracy of information in its records and that the agency had thus not met the requirements of s 18G(a). A conciliation took place.

In Q and Financial Institution (re s 6 and NPP 2.1) the complainant contracted with a buyer to sell his car, which was under finance to a financial institution. The financial institution advised a prospective buyer that the vehicle had been under finance but the account had recently been paid in full. The prospective buyer later obtained a letter from the financial institution confirming receipt of funds to finalise the account; subject to clearance of these funds it would release its security interest in the vehicle in ten working days. In providing this information to the prospective buyer the institution denied disclosing the complainant's personal information, arguing that the letter to the prospective buyer only contained details about the complainant's vehicle and did not mention the complainant's name or account number. The prospective buyer was aware that the complainant owned the car and that the car had been under finance. The fact that the prospective buyer had previous knowledge of these details did not lessen the institution's obligation under NPP 2.1 to only disclose an individual's personal information for the primary purpose of its collection, or for a secondary purpose where it can rely on one of the exceptions at NPP 2.1(a) to NPP 2.1(h). The Commissioner considered that the prospective buyer could have reasonably ascertained that details in the letter related to the complainant's account with the institution; on that basis the letter contained personal information about the complainant, contrary to NPP 2. Conciliation was reflected in the institution's agreement to change its practice, offer an apology and offered a goodwill payment.

In P and Retail Company (re NPP 1.1 and 1.2) the complainant alleged that a retail company recorded outbound calls it made without providing notification of that recording the calls. The complainant objected on the basis that there had been no notification or request for consent. The retailer advised the complainant that there had been notification through its interactive voice response system when the complainant made the first inbound call to the company, claimed as providing awareness and consent. The Commissioner referred to the Telecommunications (Interception and Access) Act 1979 (Cth) - all parties must have actual knowledge that the telephone conversation will be monitored, with notification occurring prior to the activity taking place for both inbound and outbound calls - before indicating that the subsequent calls received by the complainant were a continuation of the original incoming call where notification had been provided. The Commissioner appears to have been unimpressed by the retailer's claim of implied consent. The collection of personal information during such calls was unfair and unlawful, with the retailer failing to comply with NPP 1.2.

In O and Professional Association (re NPP 6.1 and 6.2) the complainant sought access to that person's completed and marked exam paper from a professional association, along with access to the associated documents used to mark and rate performance along with all relevant documentation used in assessment of an application for special consideration. The association (NSW Bar Council?) refused to provide access to most documents, including working papers for marking. The Commissioner considered the exception under NPP 6.2, concluding that access would reveal evaluative information generated in connection with the association's commercially sensitive decision making process and that the association had provided an explanation through its personal analysis letter. The Commissioner declined to investigate the complaint under s 41(1)(a) on the grounds that the association had not interfered with the complainant's privacy.

In N and Law Firm (re NPP 1.2 and 10) the complainant alleged that a law firm improperly collected personal information, including their health information, using covert film surveillance. The law firm was acting for an insurer, with the information being subsequently disclosed during court proceedings. The Commiossioner noted that NPP 10.1(e) allows collection of sensitive information for the establishment, exercise or defence of a legal or equitable claim. In this instance the collection was necessary for the defence of a legal claim; the Commissioner accordingly declined to investigate under s41(1)(a) of the Act.

In M and Law Firm [2011] (re NPP 2) another law firm, acting on behalf of the complainant's former utility provider, commenced debt recovery with the complainant. The complainant subsequently settled the debt and was advised by the utility provider that debt recovery would cease. Oops, prior to receiving advice of the settlement the lawyers sent correspondence to the complainant's neighbour seeking information about the complainant's whereabouts. The branding of the law firm, including on the letter to the neighbour, identified that its legal expertise included debt collection. The complainant complained that the law firm had contacted the neighbour and revealed an outstanding debt. The Commissioner concluded that the correspondence amounted to a disclosure of the complainant's personal information. The complainant would reasonably expect that an organisation would disclose its name, and the complainant's name, to contact a third party in the circumstances, which included the law firm not being able to contact the complainant. Disclosure by the law firm was consistent with NPP 2.1(a); the law firm had not interfered with the complainant's privacy. The Commissioner referred the complainant to the Australian Competition & Consumer Commission to consider whether the debt collection practices were consistent with ACCC debt collection guidelines.

In L and Insurer the Commissioner noted the xemption in s 7B(5) for action under a State contract. The complainant, who had lodged workers compensation claims with two current employers, alleged the insurer disclosed details about a third unrelated compo claim to solicitors handling the claims for the two current employers. The Commissioner considered that, as the appointed claims manager of a state government body, the insurer was a contracted service provider to a state body. Additionally, the insurer had handled the complainant's personal information in relation to the two current workers compensation claims, for the purpose of directly or indirectly meeting its obligations as claims management agent for the state government corporation. The insurer's actions were thus exempt under the Privacy Act.

In contrast, I and Insurance Company (re NPP 3) concerned an insurance company collecting the complainant's personal information from a third party insurance industry database. The complainant was a loss assessor and the insurer was investigating alleged fraud. The complainant's file on the industry database featured multiple enquiry listings about the complainant and inaccurately listed the purpose for those enquiries. The insurer attributed the multiple enquiries to inexperienced staff andagreed that several of the descriptors were inaccurate. The Commissioner found that the insurer had recorded incorrect descriptors against the complainant's personal information and by not using a reference number was unable to verify why it had made the enquiries, or to find the various entries when it needed to correct the information. The insurer had thus not taken reasonable steps to ensure the personal information it disclosed was accurate and complete. In conciliation the insurer's procedures were changed, the complainant's personal information on the industry database was amended and the complainant received an unconditional apology.

In K and Finance Company (re ss 18E and 6 of the Act and para 65 of the explanatory notes to the Credit Reporting Code of Conduct) the complainant claimed to have signed as guarantor for a loan for a family member. The finance company providing the loan to that relative subsequently listed a serious credit infringement on the complainant's consumer credit information file held by a credit reporting agency. A copy of the loan contract obtained by the Commissioner showing the complainant was a joint borrower with the family member rather than a guarantor for the loan and that the complainant was made aware at the time of signing the loan contract that personal information might be disclosed to a credit reporting agency. The financier had sent demand letters to the complainant's last known address, with the mail had been returned marked 'not known at this address'. A collection agent visited the complainant's last known address and reported the complainant was no longer at the address, the complainant's home telephone number had been disconnected, and messages left by the finance company on the complainant's mobile telephone went unanswered. The Commissioner concluded that at the time of the listing the account was overdue, with the finance company having made reasonable efforts without success to contact the complainant. The complainant had stopped making payments under the credit contract and that the actions of the complainant would indicate to a ‘reasonable person' an intention to no longer comply with obligations in relation to the debt. The financier had not interfered with the complainant's privacy.

In J and Commonwealth Agency (re IPP 1, 10 and 11) the complainant claimed that during lodgement of an application with Administrative Appeals Tribunal (AAT) regarding a decision made by an Australian Government agency that agency obtained the complainant's fingerprints and provided them to a law enforcement body for the purpose of analysing certain documents. The agency advised that it had submitted the fingerprints for the sole purpose of having them forensically tested, as part of its duty to check the veracity of documents for an external tribunal. The law enforcement agency confirmed that, in line with its standard procedure, it would destroy the information when advised to do so by the referring agency. The Commissioner concluded that use of the fingerprints was consistent with the purpose for collecting the fingerprints – to check the veracity of documents – and was therefore authorised under IPP 10.

In H and Registered Club (re NPP 1.1, 1.3 and 4.2) the complainant alleged that a registered club interfered with their privacy by scanning their driver licence and, in doing so, recording unnecessary information. The complainant conceded that the club was required to collect their name, address and signature but argued the collection of the other information on the licence (inc date of birth, driver's licence number, driver's licence type and photograph) to be unnecessary. The club relied on statutory obligations to retain certain personal information for five years, stating it had a procedure in place to delete the information after that time. It would not agree to cease or alter its identity scanning practices, instead continuing to offer patrons the option of manually completing and signing its entry register. The club advised that a privacy statement is displayed at its entrance regarding collection and handling of their personal information; the statement is also displayed on the terminal when identification is scanned. The Commissioner decided that the offer of deletion coupled with the alternative option of manual sign-in adequately dealt with the collection issues in the complaint.

In G and Parking Services Organisation (re NPP 1.1, 1.2 and 4.2) the complainant alleged that a parking services organisation had no reason to collect the person's personal information and sought destruction of the information. The parking body had a short business relationship with the complainant and believed it was owed money from that relationship, going on to obtain a subpoena for records held by a state government department. These records contained the complainant's personal information, relating to the complainant. Sounds like the WA problem noted recently. The complainant alleged there was a mistake - there was no debt and it was thus unnecessary for the organisation to collect/hold the personal information. The complainant had not received a response after raising the issue with the parking body. That body indicated to the Commissioner that at the time it collected the complainant's personal information it believed the complainant owed money. It noted that the information was not obtained by deception but through a court subpoena. It went on to note that it later identified that there had been an administrative error: the complaint did not owe a debt. No matter, it seems: when the information was collected from the state government department the organisation believed in good faith that the information was necessary to pursue the non-payment for its services. That received a pat on the head from the Commissioner, which noted that the parking body did not need the complainant's consent before it collected the information, which was necessary for its activities and "was collected by lawful and fair means and not unreasonably intrusively". The Commissioner was similarly persuaded by the body's claim that it was required to keep the complainant's personal information to meet obligations with other laws, including taxation and corporations law. The body had written to the complainant, outlining why it needed to continue to hold the personal information in its records and the timeframe for destruction (ie for at least five years). The case note states that the Commissioner is "satisfied that the organisation had a legitimate reason for retaining the complainant's personal information". The implication seems to be that if you act in good faith in seeking recover a non-exiostent debt you get to keep the data for seven years, rather than apologising for your ineptitude and deleting the info forthwith.

Fou

2011-12-30T12:22:00.005+11:00

It is axiomatic that application charges and processing charges have the potential to fundamentally inhibit community use of freedom of information law and thereby reduce both the transparency and accountability espoused by the Commonwealth Government in announcing changes to the Freedom of Information Act 1982 (Cth) last year.

In a conference paper and law journal article earlier this year I highlighted concerns regarding the legislation, arguing that the commitment of many Australian government agencies - and of senior officials - to the 'open government' philosophy was at best uncertain. Enthusiasm, as in the fatuous Gruen Government 2.0 report, for fashionable tools such as Twitter does not offset resistance on the part of Ministers, agency heads and midlevel bureaucrats to letting sunlight into the bowels of public administration. Vampires, watercolours and mushrooms may need to be kept in the dark; the public are made of stronger stuff and should not be.

The absence of FOI application charges and low processing charges is an acceptable cost for the operation of a contemporary liberal democratic state.

Along with closure of National Archives offices it is thus disturbing to see responses by national government agencies to the discussion paper [PDF] released by the Office of the Australian Information Commissioner in October this year. The Commissioner states that -

Fees and charges have always played a central and at times contentious role in the operation of the Freedom of Information Act 1982 (FOI Act).

The policy of the FOI Act is that agencies can impose charges to recoup some of the costs incurred in processing FOI requests. This ability to impose a charge also plays a practical part in the discussions that are held between agencies and applicants about defining and managing the scope of requests.

On the other hand, the FOI Act recognises that charges can impede the exercise by the community of the right to seek access to government documents. A stated object of the Act is that it should be administered 'as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost'. Agencies also have a discretion under the Act not to impose a charge or to waive or reduce a charge.

FOI charges have figured prominently in much of the debate about the operation of FOI laws in Australia. Some complain that charges are assessed or imposed by agencies so as to frustrate access to government information. Others counter that only minimal charges are collected and that the true cost of FOI to Australian government and the community is understated.

Important legislative changes were introduced in 2010 to the FOI fees and charges regime. Those changes abolished application fees and reduced the charges that agencies can impose.

In introducing those changes, the Australian Government recognised the importance and sensitivity of this step and foreshadowed that the Australian Information Commissioner would be asked to commence a review of the charges regime within a year of these changes commencing.

In its response the Department of Foreign Affairs & Trade (DFAT) - not widely known for its frugality or efficiency - has called for the reinstatement of application fees. That call is echoed by the Department of Resources, Energy & Trade (DRET), which suggests $50 per application for non-personal requests [PDF]. The Department of Finance & Deregulation [RTF] suggests $40. IP Australia proposes a waivable application fee for all requests, personal or otherwise [PDF]. The response by the Department of Prime Minister & Cabinet (fear not, Sir Humphrey Appleby lives!) is a work of silky equivocation rather than leadership.

The agencies acknowledge that historically the cost of collecting the charges has outweighed the revenue; the Defence Department accordingly advises against reinstatement [PDF]. The calls for reinstatement appear to reflect -

• a desire to inhibit unstructured requests
• the failure of agencies to point potential applicants to information in other formats (eg in Hansard, Annual Reports and agency websites

What about processing fees? Not much joy for civil society advocates, journalists and academics from DFAT and DRET. The latter proposes $44.87 per hour for search and retrieval (an increase from the current $15), $59.83 per hour for decision-making (up from $20), $13.16 per page for transcripts (up from $4.40), and $0.30 per page for photocopying.

DFAT has proposed that foreign citizens be charged at a higher rate, citing an applicant from an overseas university who sought documents for an essay, taking up the time of a senior official for two weeks, and paid nothing for the documents after successfully applying for a waiver on financial hardship grounds.