Robot Persons

'Recognising rights for robots: Can we? Will we? Should we?' by Belinda Bennett and Angela Daly in (2020) Law, Innovation and Technology comments

This article considers the law’s response to the emergence of robots and artificial intelligence (AI), and whether they should be considered as legal persons and accordingly the bearers of legal rights. We analyse the regulatory issues raised by robot rights through three questions: (i) could robots be granted rights? (ii) will robots be granted rights? and (iii) should robots be granted rights? On the question of whether we can recognise robot rights we examine how the law has treated different categories of legal persons and non-persons historically, finding that the concept of legal personhood is fluid and so arguably could be extended to include robots. However, as can be seen from the current debate in Intellectual Property (IP) law, AI and robots have not been recognised as the bearers of IP rights despite their ability to create and innovate, suggesting that the answer to the question of whether we will grant rights to robots is less certain. Finally, whether we should recognise rights for robots will depend on the intended purpose of regulatory reform.

The authors argue

&The question of whether machines can think is not new, having been posited prominently by Turing in the 1950s. However the increasing sophistication of machines with developments in artificial intelligence (‘AI’) and robotics is raising new questions about the role for law in regulating these technologies. Responding to these developments, in 2017 the European Parliament passed a Resolution, calling on the European Commission to develop civil law rules on robotics and artificial intelligence. In a wide-ranging set of recommendations which included calls for ‘a common European definition for smart autonomous robots’, and for introduction of ‘a comprehensive Union system of registration of advanced robots’, the Parliament proposed a Charter on Robotics. The Resolution called on the Commission, ‘to explore, analyse and consider the implications of’ inter alia:

creating a specific legal status for robots in the long run, so that at least the most sophisticated autonomous robots could be established as having the status of electronic persons responsible for making good any damage they may cause, and possibly applying electronic personality to cases where robots make autonomous decisions or otherwise interact with third parties independently.

The European Parliament’s proposal led to considerable debate, including an open letter from experts to the European Commission arguing against recognising electronic personhood for robots. The European Parliament’s suggestion, that the increasing sophistication of robots raises questions about their appropriate legal status, arises against a backdrop of a growing debate about robots and rights which highlights the complexities of our current conceptualisations of rights, revealing the tensions between different categories and understandings of what it means to be human. With Saudi Arabia granting citizenship to a ‘female’ robot, and Japan granting residency rights to a ‘boy’ chatbot, this issue is far from a mere academic or theoretical inquiry.

Although robots and AI are often discussed in tandem, it is important to recognise the distinction between them. The term ‘robot’, coming from a Czech language term for ‘serf labour’, dates back to a Czech play from the 1920s and usually refers to a physical entity, often with humanoid-type characteristics. Increasingly robots are used to provide assistance or companionship. In contrast, artificial intelligence (AI) is associated with machine learning. As a 2016 report by the UK’s House of Commons Science and Technology Committee explained:

Robots can (and, for the most part, do) operate without possessing any artificial intelligence. It is anticipated, however, that this will gradually change over time, with robots becoming the ‘hardware’ that use, for example, machine learning algorithms to perform a manual or cognitive task. AI and robotics will, therefore, have an important degree of interdependency. Although it is difficult to anticipate precisely how these technologies will develop from our current capabilities, it is clear that they are likely to have a transformative effect on society. It is against this backdrop that we seek to analyse the legal challenges associated with articulating the nature of both rights and responsibilities associated with robotics and AI. In addressing these challenges we seek to analyse robot rights through three questions: (i) could robots be granted rights? (ii) will robots be granted rights? and (iii) should robots be granted rights?

In Part 2 we analyse the question of whether robots could be granted rights. In answering this question we assess categories of personhood in the common law tradition where human beings have either not been recognised as people, or not recognised as entitled to full human rights. We also examine those categories where legal personality is attached to non-human entities. As we argue in Part 2, the categories of legal personality are sufficiently flexible to allow for recognition of robots’ rights. We explore the possibilities for categorising robots and AI according to their capabilities and level of sophistication, and consider the possibility of some advanced robots being categorised as legal persons. In Part 3 we consider whether robots will be granted rights. We use the example of intellectual property (IP) rights for robot-created works to analyse the discussion in that area of law concerning rights being ascribed to robots and AI given robots and AI’s incursions into creativity and inventiveness. Finally, in Part 4 we consider whether robots should be granted rights. In considering this question we analyse Roger Brownsword’s work which argues that the way in which questions about new technologies are answered may depend on our conceptual starting point in terms of how we conceptualise new technology and our regulatory responses to it.

Wage Theft

The Wage Theft Bill 2020 (Vic) is discussed in a public consultation paper offering an overview of the proposed design of the offence and enforcement regime.

 The state Government intends that the  Bill will create three wage theft offences and establish the Wage Inspectorate Victoria. Wage theft offences will not apply retrospectively and the offences will only apply to an employment relationship. Importantly, ‘Employment’ will not be defined so that the common law approach applies, whereby the courts consider each case against a list of factors indicative of an employment relationship. The expectation is that the new offence will capture a broader range of cases including those involving sham contracting and employment relationships disguised as internships or vocational training.

The paper states

Liability 

The Government intends that offences will apply to all organisations that have capacity to employ including government departments, corporations, partnerships and unincorporated associations. 

Corporate liability 

The Government intends that the Bill will pierce the corporate veil using an attribution model of liability and will permit the conduct engaged in by an officer or the directors of a body corporate to be attributed to the body corporate where it is appropriate to do so. ‘Officers’ will be defined similarly to the Corporations Act 2001 (Cth) definition, to enable prosecution of directors and secretaries of companies. This will also enable prosecution of persons who make decisions affecting the whole or a substantial part of the business and/or a corporation’s financial standing. 

The Bill will stipulate that the conduct of an associate or agent of the employer can be attributed to an ‘officer’, director or employer when the conduct of that associate or agent is explicitly or implicitly authorised and within the actual or apparent scope of their employment. The Bill will provide that implicit authorisation can be established by the existence of a corporate culture within the body corporate that directs, encourages, tolerates or leads to the relevant conduct being carried on. If the body corporate is liable, criminal liability may also be attributed to corporate decision makers unless the officer is able to demonstrate that they took reasonable precautions and exercised due diligence to prevent the conduct. This attribution model and the consideration of a corporate culture will serve as a significant deterrent and is anticipated to lead to behavioural change. 

Complicity 

The Government intends that Part II, Division 1, (1) of the Crimes Act 1958 (Vic) will apply to the wage theft offences. This will enable prosecution of third parties that are complicit in the offending including third parties who ‘intentionally assist’ in the offending. This may include: • head franchisors who ‘encourage’ franchisees to engage in wage theft to assist their business viability; and • businesses involved in supply chain contracting, who intentionally contract at a price for services that they know will involve the commission of the wage theft offence. The Bill will exclude persons who are not officers acting under the direction of an employer from being captured by the complicity provisions. 

Jurisdiction 

The Government intends that the Bill will provide that the offences apply to employers regardless of whether the services are performed in more than one Australian jurisdiction or partly outside Australia. The nexus between Victoria and the services performed will enable this when: • the employee or employer is based in Victoria; or • the entitlements are paid or attributable within Victoria; or • the services are mainly performed in Victoria. 

Key Concepts 

The offences will be crafted to ensure those who dishonestly engage in underpayment of employee entitlements and authorise such conduct will be held responsible. 

The Government intends that the offences will not be strict liability offences. Rather, the offences will be directed at addressing criminal conduct and will therefore require that the specified mental element and conduct be proven beyond reasonable doubt. The Bill will create new specialised definitions that will enable the particulars of this kind of offending to be captured by the criminal law when an employer is acting dishonestly. 

Dishonesty 

Each offence will require consideration of whether the accused acted ‘dishonestly’. A new and distinct definition of ‘dishonesty’ will be a central feature of the Bill. 

This specialised term will depart from the common law meaning of ‘dishonesty' as is typically applied to the general theft offence in Victoria. The general approach to theft requires consideration of whether the accused acted without a belief in a legal right to obtain the property acquired. The dishonesty of the accused is determined by subjective consideration of their state of mind. More specifically, the court will consider whether the accused believed that they had a legal right to take the property and deprive the other person of it. The existing formulation is insufficient for determining culpability for wage theft as it does not allow proper consideration of the surrounding circumstances, including whether the belief of the accused was reasonable or an expression of wilful blindness. 

‘Dishonesty’ for the purposes of the new wage theft offence will mean dishonest to the standards of a reasonable person. An employee’s consent to the withholding of an entitlement will be irrelevant to determining the accused’s dishonesty. This new definition will therefore import an objective standard tailored to the very specific conduct the wage theft laws intend to deter. Specifically, these laws will not tolerate widespread and disingenuous claims that the deliberate withholding of entitlements amounted to a “mere mistake” where there is substantial evidence indicating that the employer in question did know —or should have known—what the correct legal entitlements payable were. 

Entitlements 

‘Employee entitlement’ will be specially defined to include any amount payable by an employer to an employee in accordance with the relevant laws, contracts or agreements. This may include wages, allowances, gratuities, superannuation and other accruals such as leave. 

Employee entitlement record 

The Wage Theft Bill 2020 will contain two record keeping offences that recognise the fact that wage theft is both concealed and propagated by fraudulent record keeping. In concert with the definition of ‘entitlement’ an ‘employee entitlement record’ will include any record of an employee entitlement required to be kept at law. 

The offences 

Theft of employee entitlements 

The Government intends that the new ‘theft of employee entitlements’ offence is the primary offence. It will criminalise the conduct of an employer who ‘dishonestly’ withholds entitlements, such as wages, from an employee. The offence is not intended to capture employers that make genuine mistakes. However, it will capture those that fail to undertake reasonable action when they suspect or are alerted to a mistake in respect of the payment or attribution of employee entitlements. Importantly, the offence will stipulate a conduct element that can be attributed to employers and officers. For example, where a payroll officer is acting under the implicit or explicit direction of the company, their conduct can be attributed to the company for the purposes of the offence. 

Penalty: Individuals who commit this offence will face fines of up to $198,264 and up to 10 years in jail. Companies will face fines of up to $991,320. 

Falsification of an employee record 

It is common for employers engaging in wage theft to falsify employee entitlement records as a means of either carrying out their wage theft or covering up their wage theft. The Government intends that the falsification offence will include producing, making or copying a record that is misleading, false or deceptive. It will also include the alteration of a record or the provision of information that causes the record to be misleading or false. The prosecution will be required to prove the falsification was done dishonestly with a view to obtaining a financial advantage or preventing a financial advantage from being exposed. The definition of falsify will not capture people who accidentally mis-record details and rectify payroll errors in an appropriate and honest manner. 

Penalty: Individuals who commit this offence will face fines of up to $198,264 and up to 10 years in jail. Companies will face fines of up to $991,320. 

Failure to keep employee entitlements offence 

The ‘failure to keep an employee entitlement record’ offence will hold employers who dishonestly fail to keep employment records criminally liable if their failure is accompanied by an intention to gain a financial advantage or prevent a financial advantage from being exposed. This offence will cover circumstances where partial records are kept if this has been done with the intention to gain a financial advantage or prevent exposure. 

The offence will be drafted to ensure that where the failure to keep an employee entitlement record is either expressly or implicitly authorised, the conduct can be attributed to the relevant body corporate, director(s) and ‘officer(s)’. The offence will stipulate that the existence of a corporate culture that directs, encourages or tolerates the relevant conduct will amount to implicit authorisation attributable to the relevant body corporate, director(s) or ‘officer(s)’. This construction of the offence recognises that an employer’s failure to keep a record may not be to gain a direct financial advantage, but to obscure a financial advantage being gained by another person. The offence will not capture employers who fail to keep a record because of an oversight. 

Penalty: Individuals who commit this offence will face fines of up to $198,264 and up to 10 years in jail. Companies will face fines of up to $991,320. 

Defences 

The offences will not capture employers who have done their best to comply with the law. The Government intends to be very clear that these employers will not be punished for unwitting errors. As such, a due diligence defence and, in circumstances where the officer may not have been directly involved in the offence, a reasonable measures defence, will be included in the Bill. The due diligence defence will apply to the theft of employee entitlements offence and extend to ‘officers’, directors, corporations, partnerships and unincorporated associations. 

The defence will specify that where the employer has undertaken all reasonable steps to pay or attribute employee entitlements within a reasonable time the offence will not be made out. Employers must demonstrate proper business practices and attempts to comply with the law. What is ‘reasonable’ for a company will depend on the circumstances and evidence in each investigation. The Bill will stipulate the employer bears the legal burden of proving the defence on the balance of probabilities. 

Enforcement 

The Government intends to establish Wage Inspectorate Victoria (the Inspectorate) under the proposed Bill with responsibility for investigating and prosecuting the new wage theft offences. The Inspectorate will be established as a statutory body corporate and defined as a public entity for the purposes of the Public Administration Act 2004. 

Governance 

The Inspectorate will be provided with powers and functions related to the enforcement and prosecution of the offences created by the Wage Theft Bill 2020, as well as information and evidence gathering powers necessary to support the investigation of potential offences. 

Commissioner and staff of the Wage Inspectorate Victoria 

The Government intends for there to be a Commissioner of the Inspectorate appointed by the Governor in Council on the recommendation of the Minister for Industrial Relations. All functions and powers of the Inspectorate will be vested in the Commissioner, as well as the ordinary powers, duties, responsibilities and day to day management and governance functions. These functions and powers are set out in detail later in this Paper. The Commissioner will be responsible for undertaking the strategic leadership of the Inspectorate for the purpose of achieving the objects of the Wage Theft Act. The Commissioner will act fairly, impartially, independently and act in the public interest. The Government intends that the Inspectorate will also incorporate current functions and powers with respect to the Child Employment Act 2003, the Long Service Leave Act 2018 and the Owner Drivers and Forestry Contractors Act 2005. 

The role of the Minister for Industrial Relations 

The Government intends to provide the Minister for Industrial Relations with the authority to give written directions (of a general nature only) to the Commissioner about the performance of their functions. Investigative and prosecutorial functions of the Inspectorate will be independent and not subject to Ministerial direction or control. Confidentiality and disclosure obligations of Commissioner, staff and inspectors The Government intends to provide confidentiality provisions and restrictions on the disclosure of information obtained in the course of administering the Act. 

Enforcement Model 

The Government intends that the enforcement model will include the necessary powers to enable the Inspectorate to inquire into and investigate wage theft offences, including the power to bring criminal proceedings. The Inspectorate may also have functions to provide information and assistance to persons seeking to recover unpaid entitlements through new streamlined court processes. 

Appointment of wage theft inspectors 

The Government intends to provide for the appointment of wage theft inspectors with investigative power conferred upon them within the Wage Theft Act. Wage theft inspectors will also become ‘investigating officials’ under Part III of the Crimes Act 1958 by virtue of their investigative role, although it is not intended to rely on these powers to investigate and enforce wage theft offences. 

Powers of the Inspectorate 

The Government intends that the Commissioner will be the head of the Inspectorate. It is intended that the Inspectorate have the following powers: • all functions and powers of a wage theft inspector, including but not limited to: – the power to enter premises (including with a warrant) – the power to obtain information and documents – the power to seize evidence – the power to bring criminal proceedings • the power to apply for and execute search warrants • the power to enter into agreements and contracts • to power to accept undertakings, and enforce against any undertaking which may have been breached • the power to recover costs (and pay any costs in the event that they are awarded against the Inspectorate); and • the power to do all things necessary or convenient to be done for or in connection with the performance of its functions, achieving objectives, etc. 

Inspector powers 

The Government intends to provide that the purposes for which powers of inspectors may be exercised include inquiring into or investigating an alleged wage theft offence or verifying information received in relation to a wage theft complaint. It is intended that inspectors will have the power to compulsorily examine on oath, with appropriate safeguards and protections for individuals. 

Power to enter premises 

The Government intends to provide inspectors with a power to enter premises, at a reasonable time, for the purpose of inquiring into an alleged wage theft offence. Inspectors must hold a reasonable belief that there are documents, persons or other things at the premises that are relevant to the suspected offence in order to exercise this power and may enter either by consent or through the service of a written notice. It is intended to be an offence to fail to comply with the entry notice without a reasonable excuse and a statement to this effect must be provided as part of the notice. 

The Government intends that an inspector who exercises a power of entry has the following powers: • conduct inquiries into suspected or alleged wage theft offences; • inspect or examine anything (including a document) at the premises; • seize anything (including a document) at the premises that may afford evidence of the commission of an offence against the Act if the inspector reasonably suspects that the document or thing may be concealed or destroyed, or its forensic value diminished if not seized; • inspect, and make copies of or take extracts from, any document produced; • take photographs and document observations; and • exercise any other power conferred on the inspector by the Act. 

Power to require production of documents and answer questions 

The Government intends to provide a power for an inspector who enters premises to require production of documents or part of a document, examine that document or part, and require a person at the place to answer any questions put by the inspector. It is intended to be an offence for a person to, without reasonable excuse, refuse or fail to comply with this requirement. 

Search warrants 

The Government intends to provide inspectors with the power to apply for and obtain a search warrant in order to seize evidence in circumstances where the evidence is unable to be obtained using ordinary investigative powers. It is intended that the rules that apply for search warrants in the Magistrates Court Act 1989 apply to search warrants under the Wage Theft Act and that search warrants be issued in accordance with the Magistrates Court Act and in the prescribed form under that Act. 

Power to obtain information, documents or attendance 

The Government intends that the Inspectorate be provided with a general power to obtain information or evidence for the purpose of ascertaining whether an offence has been committed or investigating a suspected contravention. This power can be exercised by serving a written notice requiring the recipient to: • provide the Inspectorate any relevant information before a specified time and in a specified manner; • produce to the Inspectorate any relevant document or thing in the person’s possession, custody or control a specified time and in a specified manner; and • attend and give evidence or answer any relevant questions on oath or affirmation before the Inspectorate at a specified time. 

It is intended that the power to compel attendance and compulsorily answer questions only be used if the Inspectorate is unable to obtain the information by consent or through the exercise of other powers. 

It will be an offence for a person who is given a written notice requiring attendance, without reasonable excuse, to refuse or fail to: (a) take an oath or make an affirmation when required to do so; or (b) answer a question that the person is required to answer by the Inspectorate. The penalty for this offence is intended to be 240 penalty units or imprisonment for 2 years. 

Power to accept undertakings 

The Government intends that the Inspectorate will have the power to accept undertakings from an employer in relation to an alleged contravention of a relevant offence. The primary purpose of the undertakings is to prevent future contraventions of the relevant offence. The undertakings will not be used to recover employee entitlements or seek similar remedies. It is intended to be an offence to fail to comply with an undertaking and the Inspectorate can apply to the Magistrates’ Court for an order enforcing the undertaking. 

Criminal prosecution of the wage theft offences 

The Government intends that the Inspectorate will be responsible for bringing criminal proceedings for the new wage theft offences. The decision to bring criminal proceedings will lie with the Commissioner following an assessment of the evidence and a determination that there is a reasonable prospect of conviction and it is in the public interest. 

Criminal offences relevant to the exercise of the Inspectorate’s powers 

It is intended that when exercising powers or imposing a requirement upon a person, the inspector must show their identity card to the person and advise the person of their obligation to comply with the requirement, and that failure to do so will be an offence. 

To the extent considered necessary to ensure that the inspectors exercise their powers and perform their functions in accordance with the Act, the Government intends to include the following relevant offences: • intentionally hindering or obstructing an inspector in exercising his or her powers or inducing or attempting to induce any other person to do so • intentionally hindering or obstructing a person assisting an inspector • impersonating an inspector • assaulting, threatening or intimidating an inspector or attempting to assault, threaten or intimidate an inspector • assaulting, threatening or intimidating a person assisting an inspector or attempting to assault, threaten or intimidate a person assisting an inspector • failing to produce documents when required, permit entry to premises or otherwise comply with a requirement of an inspector made in the exercise of a power under the Act; and • giving information or producing a document to an inspector that a person knows to be false or misleading in a material particular. 

These offences are intended to have a penalty of 60 penalty units, with the exception of the assault offences which should attract a maximum penalty of 2 years’ imprisonment or 240 penalty units or both for natural persons. Consistent with the approach taken in relation to the wage theft offences, it is intended that bodies corporate will be liable for five times the penalty units of those imposed on natural persons. 

Referrals to other Regulators 

The Government intends for the Inspectorate to be able to refer wage theft matters to other agencies in appropriate circumstances and receive referrals from relevant agencies. It is intended that there be information sharing powers to enable the Inspectorate to work collaboratively with other agencies.

Fertility and Donor Linking

'The Donor-Linking Practices of Australian Fertility Clinics' by Fiona Kelly, Deborah Dempsey and Charlotte Frew   in (2019)  27 Journal of Law and Medicine  355 comments

  While Australia is a world leader in providing statutory donor-linking services – the practice whereby individuals connected through donor conception seek access to information about each other – there has been only limited exploration of how fertility clinics respond when approached with donor-linking requests. This article reports on 19 qualitative interviews conducted with Australian fertility clinic staff that explored how clinics manage requests to share identifying and non-identifying information about parties involved in donor conception. Our findings indicate that fertility clinics have experienced an increase in donor-linking requests in recent years, but that they are typically dealt with on an ad hoc basis. Two approaches to donor linking were identified: (1) an "active" approach where clinics supported donor linking and were willing to engage in outreach to see if the other party was open to information exchange; and (2) a "passive" approach whereby clinics were reluctant to facilitate linking and were unwilling to outreach to other parties. The variety of responses to donor-linking requests highlight the ways in which donor-conceived adults, parents and donors can have dramatically different access to information, depending on the clinic that provided treatment.

The authors state

Donor linking is the practice whereby individuals connected through donor conception – donor-conceived children and adults, recipient parents and donors – seek access to identifying and non-identifying information about each other. It can be achieved through statutory registers (where they exist and the applicant meets certain eligibility requirements), inquiries made to fertility clinics or sperm banks, direct-to-consumer DNA testing, non-statutory online voluntary registers, or social media searches using information contained in a donor profile. While it is difficult to gauge exactly how many people are participating in donor linking, the advent of linking legislation in a growing number of jurisdictions and the rise in informal linking as documented in the media, suggest it is increasing in popularity.

While Australia is a world leader in providing statutory donor-linking services to the donor conception community, little is known about how the practice is managed within the fertility industry. In particular, there has been only limited exploration of how fertility clinics respond when approached with donor-linking requests. Given that clinics are often the first place someone might turn when trying to locate donor relatives, particularly in States without donor-linking legislation, knowing what clinics do when donor-linking inquiries are made is important to understanding the complex landscape of donor linking in Australia.

A small body of research has begun to emerge on the use of Australia's statutory donor-linking registers. This literature indicates that use of the registers is growing across all applicant groups (donor-conceived adults, donors and recipient parents). At the same time, it is impossible to know what percentage of eligible applicants apply as we have no record of the total number of donor conception births in Australia, and many donor-conceived people do not know they are donor conceived. Early research also suggests that applications for information frequently lead to face-to-face contact between donor relatives. However, statutory registers are only available in three States and many donor-conceived people do not fall within the ambit of the legislation because they were conceived before it came into force, are not yet old enough to apply, or are not aware of the existence of the registers. In situations where there is no State register, or where the potential applicant does not meet the eligibility criteria, they are likely to turn to the fertility clinic (or treating hospital) when looking for information about donor relatives. Since 2005, the National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (the NHMRC Guidelines) have specified that clinics only use donors who agree to disclose identifying information about themselves to any resultant offspring, and clinics have been required to record all relevant information about parties involved in donor conception programs. Where the State has a statutory register, clinics are obliged to provide the information to the register. In States without a register, it is the responsibility of the clinic to maintain the records. Many Australian clinics also have pre-2005 records, though there are some instances of records being lost or destroyed, or difficult to locate or understand. Where pre-2005 records exist, the NHMRC Guidelines require that they be preserved by clinics.

While clinics are the natural starting point for many people looking for information about their donor relatives, little is known about this type of linking. The small body of research that has emerged has focused on the experiences of individuals who have requested information from a clinic. Virtually nothing is known about clinic-based linking from the perspective of clinics. To fill this information gap, we conducted 19 qualitative interviews with fertility clinic staff across seven Australian States and Territories to explore policies, practices and processes regarding the management and sharing of identifying and non-identifying information about parties involved in donor conception. Clinic staff were asked about the frequency and nature of donor-linking requests, how they responded to them, the challenges and impediments to donor linking in the clinic setting, and how they are preparing for donor linking in the future. Our findings indicate that clinics have experienced an increase in donor-linking requests in recent years, but that they are largely dealt with on an ad hoc and often inconsistent basis. Two approaches to donor linking were identified among the clinics: (1) an "active" approach, meaning that clinics were open to facilitating donor linking and were willing to engage in outreach to see if the other party was open to information exchange; and (2) a "passive" approach whereby clinics were reluctant to facilitate linking and were unwilling to outreach to other parties to ask if they were open to contact. The variety of responses by fertility clinic staff to donor-linking requests highlight the ways in which donor-conceived adults, recipient parents or donors can have dramatically different access to information, depending on the clinic that provided treatment.

Machines

The Machine As Author' by Daniel J. Gervais in (2019) 105 Iowa Law Review comments

The use of Artificial Intelligence (AI) machines using deep learning neural networks to create material that facially looks like it should be protected by copyright is growing exponentially. From articles in national news media to music, film, poetry and painting, AI machines create material that has economic value and that competes with productions of human authors. The Article reviews both normative and doctrinal arguments for and against the protection by copyright of literary and artistic productions made by AI machines. The Article finds that the arguments in favor of protection are flawed and unconvincing and that a proper analysis of the history, purpose, and major doctrines of copyright law all lead to the conclusion that productions that do not result from human creative choices belong to the public domain. The Article proposes a test to determine which productions should be protected, including in case of collaboration between human and machine. Finally, the Article applies the proposed test to three specific fact patterns to illustrate its application.

Rings

Sitting in on a grad law workshop where students are discussing gifts, conditional gifts and rings.

In Cohen v Sellar (1926) 1 KB 536 McCardie J commented

 (a) If a woman who has received a ring in contemplation of marriage refuses to fulfil the conditions of the gift she must return it. 

(b) If a man has, without a recognised legal justification, refused to carry out his promise of marriage, he cannot demand the return of the engagement ring. 

(c) It matters not in law that the repudiation of the promise may turn out to the ultimate advantage of both parties. A judge must apply the existing law as to the limits of justification for breach. 

(d) If the engagement to marry be dissolved by mutual consent, then in the absence of agreement to the contrary, the engagement ring and like gifts must be returned by each party to the other.

In Papathanasopoulos v Vacopoulos [2007] NSWSC 502 Smart AJ found that if a woman refuses without legal justification to marry her fiancé, she cannot keep the engagement ring and must return it.

Vicki Papathanasopoulos had received a $15,250 engagement ring on the condition that she would marry Andrew Vacopoulos. She called off the engagement (and wedding) ten days after the engagement party and receipt of the sparkler, with words to the effect “the wedding is off, here take the ring, I don’t want it.”

She then removed the engagement ring and placed it on the coffee table in front of Vacopoulos. She stated that during the remainder of his time at the family home, about half an hour, the ring remained on the table in front of him. At no time did he attempt to pick up the ring or take the ring with him. He responded with words to this effect, “I do not want the ring it is a gift for you, you can keep it.”

At some stage after Vacopoulos she “put all of the photographs, jewelry ( [sic] ) and other items that were symbolic of my relationship with [AV] in a box and packed them away in a wardrobe in my room.” About 24 August 2005 she said to Vacopoulos in a telephone conversation, “with the presents we got from the engagement on your side, I want you to pick them up I don't want them, ring my dad to organise a time to pick them up so I'm not in the house". Papathanasopoulos complained that in September he telephoned her at work, declared his love for her and said he wanted her back.

She said that she told him to stop telephoning her and leave her alone, terminating the conversation. Papathanasopoulos telephoned her mother and told her that she wanted to throw out all the items Vacopoulos had given her. Her father threw the box with all the items in the rubbish bin. In the early afternoon of 29 September 2005 Vacopoulos sent an email which stated, amongst other things: “Your dad said that he tore up my photos and threw the ring in the garbage. Why is this happening, I don't want it to happen".

Vacopoulos later made a claim in the NSW Local Court for the return of the engagement ring or compensation for its value. Magistrate George in the Local Court found for Vacopoulos, ordering Papathanasopoulos to compensate Vacopoulos for the ring's value. Papathanasopoulos appealed, claiming that the ring was a gift and that she was entitled to deal with it as she pleased.

Stewart AJ commented

If a party rejects the gift of an item as the magistrate found, it is not open to her, if she later takes control of the item, to claim the item as a gift when she continues to assert that she does not want it and asks for it to be thrown out. A party cannot be forced to take or accept a gift … Upon VP rejecting the gift she became a bailee of that item so long as she had it in her control. It is not open to a bailee to cause the item bailed to be thrown into the garbage bin. This is especially so where the item is valuable and no proper notice was given and but a short time had elapsed. Holding a small item, such as an engagement ring is not a great chore. I do not accept the contention that it was irrelevant that VP rejected the gift of the engagement ring.

The Supreme Court found that Papathanasopoulos was the holder of a “conditional gift”: the engagement ring would only become her property after their marriage took place. He said that, legally, a woman who receives a ring in contemplation of marriage, and who later refuses to marry, must return the ring unless there is some legal justification for her decision - for example acts of violence towards her, or evidence that her fiancé was unfaithful.

Smart found that there was no such justification. By changing her mind about the marriage, Papathanasopoulos was rejecting the gift; “upon rejecting the gift she became a bailee of that item so long as she had it in her control” responsible for it until Vacopoulos asked for its return.

Papathanasopoulos’s claim that the gift became absolute when Vacopoulos told her that she could keep it was rejected by Smart, construing Vacopoulos' statement as merely an attempt to preserve the relationship rather than evidence that he was giving her the ring to do with as she pleased. The appeal was dismissed; Papathanasopoulos was again ordered to pay compensation and Vacopoulos’s costs.

'Rituals of Engagement: What Happens to the Ring When an Engagement is Called Off?' by James Duffy, Elizabeth Dickson and John O'Brien in (2020) 94 Australian Law Journal 61 comments

Whether due to the beauty, the cost, or the sentiment of an engagement ring, it is an asset that people hold valuable. In recent years, Australian popular media has been captured by stories of celebrities who have broken off engagements, but then quarrelled over who is entitled to the engagement ring. James Packer, Mariah Carey, former Australian cricket captain Michael Clarke and Lara Worthington (then Bingle), have all supposedly been involved in disputes surrounding expensive engagement rings. The rule of thumb that a man should spend two to three months of annual salary on an engagement ring meant that Packer and Carey were dealing with a 35 carat, 10 million dollar ring, and Clarke and Bingle a 4.7 carat, $200,000 ring. It is hard to tell whether these disputes were real or fabricated (Bingle allegedly flushed her engagement ring down the toilet). Whatever the case, they do raise an interesting question as to who is legally entitled to keep the ring on dissolution of an engagement. 

As will be outlined in this article, the law surrounding engagement rings has been quite stable in Australia. Australian courts have adopted the thorough reasoning of Justice McCardie in the 1926 English High Court (King's Bench Division) decision of Cohen v Sellar. It came as a surprise when in 2017, the New South Wales Local Court in Toh v Su questioned whether Cohen v Sellar still represented good law.  The Magistrate did not follow the reasoning in Cohen v Sellar, and suggested that a more modern view regarding the treatment of engagement rings was required. This article suggests that there are conceptual difficulties with the substance of the decision in Toh v Su, and procedural issues relating to the doctrine of precedent, which mean that this decision should not be adopted by other courts. As a decision of the New South Wales Local Court, the judgment (at present) may not be of great moment. Difficulties will arise however, if other courts in the New South Wales jurisdiction or beyond, adopt the reasoning contained in the judgment.

The authors comment

Given the adoption of Cohen v Sellar principles into Australian common law, it came as a surprise that Magistrate Brender in Toh v Su questioned the modern relevance of Cohen v Sellar and refused to follow the decision. The case involved Mr Toh proposing to Ms Su on 5 December 2015 and giving her an engagement ring. On 5 March 2016, Toh said to Su (in the presence of a friend) that he no longer wished to marry Su or be in a relationship with her. He also stated that "everything that belongs to   each party will be returned to each party". 

Toh brought an action in a New South Wales Local Court (Downing Centre) seeking the return of the engagement ring, as well as several other gifts. Toh sued for the engagement ring on the basis that it was a gift conditional on marriage, and as the marriage did not go ahead, he was entitled to its return. If Cohen v Sellar was applied in this case, the result would be that as Mr Toh, without recognised legal justification, refused to carry out his promise of marriage, he could not demand the return of the engagement ring. The Magistrate held however that Mr Toh was unable to reclaim the engagement ring, on the basis that it was an unconditional gift and therefore became the absolute property of Ms Su. 

The fact that the marriage did not go ahead was irrelevant, as there were no conditions attached to the giving of the ring. While his Honour acknowledged that it would be possible to give an engagement ring with conditions (borne from words or conduct), his Honour felt that the default position for any engagement ring is that it should be viewed as a gift given without condition. 

Magistrate Brender reached this conclusion based on the supposed effect of two pieces of legislation. First, his Honour held that, given the abolition of action for breach of promise to marry in s 111A of the Marriage Act, "there is arguably no room for the operation of the rule of recovery [of the engagement ring] in the event the marriage does not proceed". 

Second, given the passing of the Family Law Act 1975 (Cth) and the principle of no-fault divorce, his Honour stated that, "it would be surprising, given that statute, if the common law still determined legal rights between parties to a proposed marriage by reference to whether or not their conduct in breaking off an engagement was justified or not". 

The first criticism that can be made of his Honour's judgment is that there are jumps in logical reasoning. It is not clear why the enactment of s 111A of the Marriage Act abolishing the action of breach of promise to marry should affect a decision as to who should keep an engagement ring. It is simply suggested as a matter of fact, that it does. One possibility is that the Magistrate was concerned (despite the presence of s 111A(2), considered in the next paragraph) with the "deposit or pledge" analogy of an engagement ring. If one party breaches their promise to marry they forfeit the deposit of the ring. Breach of promise to marry was previously recognised as a legal wrong, with attendant legal consequences regarding the loss of a deposit. Given the abolition of action for breach of promise to marry, it could be argued that since there is no legal obligation to honour a promise of marriage, you should not be liable to lose a deposit if you default on your promise. ... 

Comparative law and case law aside, treating an engagement ring as an unconditional gift would seem inconsistent with the current wording of s 111A of the Marriage Act. Subsection (2) states that the abolition of the "breach of promise" action in subs (1) "does not affect an action for the recovery of any gifts given in contemplation of marriage which could have been brought if this section had not been enacted". An action brought for recovery of an engagement ring in Australia prior to the enactment of s 111A(1) would be subject to common law Cohen v Sellar principles. Cases such as Kais v Turvey, Papathanasopoulos v Vacopoulos and Loumbos v Ward all make it clear that an engagement ring is properly characterised as a conditional gift. It is difficult to understand how the fundamental nature of this gift can be changed by abolishing a separate (though somewhat related) cause of action in breach of promise to marry. 

Whatever reasoning informed Magistrate Brender's decision, it does not account for the clear intention of the Commonwealth Parliament in 1975, as contained in s 111A(2), that the law relevant to the disposition of gifts given in contemplation of marriage is undisturbed by the abolition of the action for breach of promise in s 111A(1). The contemporary meaning and symbolism of an engagement ring is a social question. On that basis, it would seem more appropriate for the Commonwealth Parliament to decide how such a gift should be characterised, and the attendant consequences that flow from such a characterisation for those who terminate an engagement. 

Similar legislation from different countries around the world highlight how this task could be achieved. In England and Wales, the Law Reform (Miscellaneous Provisions) Act 1970 (UK) removed any cause of action for breach of promise to marry. The British Parliament acted upon a 1969 report by the English Law Commission, suggesting that the action be removed. As a separate question, the Law Commission (and subsequently the Parliament) dealt with the legal entitlement to gifts conditional upon marriage, where the marriage did not proceed. Section 1(1) of the Act removed any action for breach of promise to marry: An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall be brought in England and Wales for breach of such an agreement, whatever the law applicable to such an agreement.

Section 3 of the Act deals with gifts given in contemplation of marriage: (1) A party to an agreement to marry who makes a gift of property to the other party to the agreement on the condition (express or implied) that it shall be returned if the agreement is terminated shall not be prevented from recovering the property by reason only of his having terminated the agreement. The gift of an engagement ring shall be presumed to be an absolute gift; this presumption, may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.

The effect of this s 3 in England and Wales is that the decision in Cohen v Sellar no longer represents good law in those countries. [74] Perhaps this is what influenced the Magistrate in Toh v Su (and earlier Justice McPherson in Wynen v Jenkins) to question whether Cohen v Sellar was still good law in Australia. It is important to note however, that the law governing entitlement to engagement rings in England and Wales is determined by the clear wording in s 3(2) of the Law Reform (Miscellaneous Provisions) Act 1970 (UK). The law was not changed, by implication, from the wording of s 1 (the equivalent of s 111A(1) of Australia's Marriage Act) in isolation. This was the implication that the Magistrate sought to draw in Toh v Su, and absent more direct statutory language in the Marriage Act, it is argued that it was not a logical implication to make.

The next criticism of the judgment is his Honour's reliance upon the "no-fault" divorce provisions of the Family Law Act 1975 (Cth). His Honour argued that given fault was no longer relevant to obtaining a divorce (and subsequent property settlements), it should not be relevant to determining property rights upon dissolution of an engagement. At face value, this argument has some appeal, but the analogy breaks down when one considers the status of the engagement ring before, and after, marriage occurs. When a marriage has occurred, an engagement ring is no longer a conditional gift. The gift becomes unconditional, and is the absolute property of the donee (traditionally, a wife). The "no fault" provisions of the Family Law Act simply mean that the issue of who called off the marriage cannot be used as leverage to determine who should keep the engagement ring. The ring may stay with the wife or be returned to the husband as part of a property settlement, but there is no question that, until such time, the wife would be the legal owner of the engagement ring.

The situation is different when a marriage does not occur, because the condition on which the engagement ring was given has not eventuated. This means that legal entitlement to the engagement ring is in issue. Based on Cohen v Sellar principles, the idea of fault (who called off the engagement) is important to determining who gets to keep the ring. It would certainly be possible to extricate the notion of "fault" from who is entitled to keep an engagement ring, but this would mean a retreat from Cohen v Sellar principles. The result would be that the engagement ring is returned to the person who gave it, regardless of who called off the engagement. There are many who would consider this a fair result, and in Toh v Su, Mr Toh pleaded his case on this basis. Such a change however, should ultimately come from the legislature, and the overruling of Cohen v Sellar principles in the absence of clear legislative guidance was not an appropriate step for a Magistrate to take.

Looking forward, whether fault should continue to play a role or not in who keeps an engagement ring upon dissolution of an engagement is an interesting social question. No fault divorce is an expedient that makes property settlements simpler and less acrimonious. Whether the policy drivers applicable to no fault divorce should extend to legal entitlements to an engagement ring is a debate worth having, but not a debate that should be decided by a Local Court of New South Wales. In any event, that debate is a different one to whether an engagement ring is a conditional or unconditional gift. This article contends that neither the Marriage Act or the Family Law Act 1975 (Cth), separately or in combination, have the effect of changing the essential nature of an engagement ring, which is a conditional gift.

Neurosurveillance

'Neuro-Surveillance and the Right to be Human at Work' by Valerio De Stefano in On Labor comments

In 2018, the news reported that some assembly line workers had been asked to wear caps that monitor brain waves in order for managers to adjust the pace of production and workflows. Some observers raised doubts on the reliability of these tools, and even cast doubts on their actual functioning, but it is undeniable that forms of mental surveillance are increasingly coming to our workplaces. “Sociometric badges”, wearable tools tracking emotions and stress by collecting data on heartbeats and the tone of voice, for instance, are spreading in the United States. 

In 2018, the news reported that some assembly line workers had been asked to wear caps that monitor brain waves in order for managers to adjust the pace of production and workflows. Some observers raised doubts on the reliability of these tools, and even cast doubts on their actual functioning, […] 

Most of these practices should be urgently restricted. Losing one’s mental privacy arguably threatens one of the core elements of being human. If this occurs at the workplace, where workers are already subject to quasi-dictatorial managerial prerogatives, the consequences could be disastrous. Yet, no significant attention has been devoted to how neurotechnologies, and other forms of mental surveillance, may impact on workplaces. 

Besides brain waves monitoring and emotional tracking, facial scans are also widely used in recruitment, with artificial intelligence analyzing “how a person’s face moves” to detect ”how excited someone seems about a certain work task or how they would behave around angry customers”. Research projects exploring how to connect brains to technological devices are underway that could have detrimental consequences for workers. 

The more these practices progress, the more labour scholars should raise concerns about them. Experimentations and implementation of these practices need data, and workplaces are perfect data mines. If regulation is not brought up-to-speed, the future world of work risks being one where employers require employees to use tools that collect data on their brain activity to engage in a unrestrained quest for productivity, to predict their behavior and even to monetize on their data by making them accessible to third parties. 

Given the imbalance between employers and workers, there is limited possibility for workers to refuse such surveillance without risking to lose their jobs. This is why European countries have promoted governance of these practices through collective bargaining and workers’ representatives’ involvement. The EU General Data Protection Regulation provides that EU Member States may introduce, by law or by collective agreements, “specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees’ personal data in the employment context”. 

Much more heed, however, needs to be paid to “neuro-surveillance at work”. Neuroscientist Marcello Ienca, for instance, called for the recognition of new human rights to face the rise of neurotechnology, including rights to mental privacy and integrity.

AI Lawyering

Would you get better results from a cup of coffee and a thoughtful Google search?

'Applied Natural Language Processing for Law Practice' by Brian S. Haney comments

 Scholars, lawyers, and commentators are predicting the end of the legal profession, citing specific examples of artificial intelligence (AI) systems out-performing lawyers in certain legal tasks. Yet, technology’s role in the practice of law is nothing new. The Internet, email, and databases like Westlaw and Lexis have been altering legal practice for decades. Further, cutting edge AI technology has been around since the early twentieth century. Despite technology’s evolution across other industries, in many ways the practice of law remains static in its essential functions. 

The dynamics of legal technology are defined by the organization and quality of data, rather than innovation. This Article explores the state-of-the-art in AI applications in law practice, offering three main contributions to legal scholarship. First, this Article explores various methods of natural language database generation and normalization. Second, this Article provides the first analysis of two types of machine learning models in law practice, deep reinforcement learning and the Transformer. Third, this Article introduces a novel natural language processing algorithm for legal writing.