Margins and Personality rights

Two significant items on personality rights, privacy and defamation

'International Publications and Protection of Reputation: A Margin of Appreciation But Not Subservience?' by Barbara McDonald in 62(3) Alabama Law Review (2011) 477-511 -

explores the modern phenomenon of libel proceedings in foreign courts by citizens of other countries, the approach of courts and legislators in dealing with so-called "libel tourists", and the international policies and principles which determine whether a court will accept jurisdiction over a libel action or enforce a foreign libel judgment. It argues that, in this context, not all foreign claimants are to be dismissed as opportunistic "tourists" and also that, sometimes, regardless of enforceability, there is a value to a claimant in a respected foreign court’s ruling on the libel. Defamation law is strongly reflective of attitudes and national values. While core constitutional law values drive U.S. courts to depart dramatically from the usual assumptions about enforcement of the judgments of civilized nations, the article argues that courts must recognise that universal values of freedom of speech and protection of reputation may play out differently in countries of different social and historical backgrounds. The concept of a margin of appreciation, a concept borrowed from modern European jurisprudence, may assist courts to respect the libel laws of other countries where they do not conform exactly to those of the forum.

'Looking Again at Photographs and Privacy: Theoretical Perspectives on Law’s Treatment of Photographs as Invasions of Privacy' by David Rolph (Sydney Law School Research Paper No. 11/07) notes that -

Courts in the United Kingdom, Australia and New Zealand are increasingly entertaining claims for invasions of privacy. Many of these cases involve the publication of photographs by a media outlet. In the United Kingdom in particular, the means of protecting personal privacy has been the adaptation of the existing, information-based cause of action for breach of confidence. This has entailed treating photographs as a form of information. This essay analyses the imposition of liability for the publication of intrusive photographs, as it is developing in the United Kingdom, using Campbell v MGN Ltd [2004] 2 AC 459 and Douglas v Hello! Ltd [2008] 1 AC 1 as case-studies. It applies critical insights from leading theorists on photography, such as Barthes, Berger and Sontag, to suggest that the judicial treatment of photography is underdeveloped.

ERAtional

With the gibe about 'points' in the preceding post it's timely to recall the 30 May statement by Senator Kim Carr regarding 'Improvements to Excellence in Research for Australia' -

After several years of development, the first round of the Excellence in Research for Australia (ERA) initiative was run in 2010, with results published by the Australian Research Council (ARC) earlier this year in the ERA National Report. The exercise has been an overwhelming success in meeting its objective of providing institutions, researchers, industry and students with a sound, evidence-based means of identifying areas of strength and potential, as well as areas where we need to do better.

So overwhelmingly successful, it seems, that it will be changed.

These assessments were made against international benchmarks using the indicators that have been developed over time – in many instances over many decades – by the disciplines themselves. This has underpinned the strong support for the ERA methodology across the higher education research sector.

The silence of the lambs is a signifier of "strong support"?

Now we need more support, more silence, and just a tweak or two of the infrastructure funding "roadmap" noted here?

I have said all along that we are keen to undertake meaningful consultation. We remain open to suggestions on enhancements to what we know to be a very good scheme.

Oops, some ungrateful lambkins have been bleating -

I have been aware for some time of concerns within the sector about certain aspects of the exercise, particularly the ranked journal lists. These concerns have been communicated to me directly, reported in the sector media, and voiced in the ARC's extensive sector consultations ahead of preparations for the second iteration of ERA in 2012.

Hardly surprising, dare I say, when a journal that purveys astrology, quantum mysticism, dowsing, remote healing and other manifestations of what hoary old sceptics such as myself would characterise - fairly or otherwise - as parapsychology (ie World Futures) is 'ranked' and therefore has a value for academic advancement. To adapt the words of Johnny Rotten, just get the DIISR points and don't worry about the bollocks.

The Minister went on to comment that -

The ARC has advised me that consultation has revealed that there is a widespread preference for limited change, to ensure that ERA 2010 and ERA 2012 outcomes can be compared. Overall, however, the ARC considers that making a small number of changes to the ERA 2010 methodology could substantially enhance the integrity and acceptance of the ERA 2010 evaluation exercise, without compromising comparability.

As always, we are in the business of making refinements that improve the operation of ERA. I therefore commissioned the ARC to produce an options paper outlining different ways we might be able to utilise these indicators to address these concerns, and to consider any implications arising from the potential adoption of alternatives. I placed particular emphasis on the absolute need to maintain the rigour of the ERA exercise, to ensure the comparability of the results of the next iteration with ERA 2010, and to pay close attention to the detailed concerns of the sector. Within those parameters, however, I wished to explore ways in which we could improve ERA so the aspects of the exercise causing sector disquiet – especially issues around the ranked journals list – could be minimised or even overcome.

Steady, Sir Humphrey, steady.

As the result of this process, I have approved a set of enhancements recommended by the ARC that deal substantially with those sector concerns while maintaining the rigour and comparability of the ERA exercise. These improvements are:

• refinement of the journal quality indicator to remove the prescriptive A*, A, B and C ranks;
• introduction of a journal quality profile, showing the most frequently published journals for each unit of evaluation;
• increased capacity to accommodate multi-disciplinary research to allow articles with significant content from a given discipline to be assigned to that discipline, regardless of where it is published ... ;
• alignment across the board of the low volume threshold to 50 outputs (bringing peer-reviewed disciplines in line with citation disciplines, up from 30 outputs)... ;
• modification of fractional staff eligibility requirements to 0.4 FTE (up from 0.1 FTE), while maintaining the right to submit for staff below this threshold where affiliation is shown, through use of a by-line, for instance).

Problems?

As with some other aspects of ERA, the rankings themselves were inherited from the discontinued Research Quality Framework (RQF) process of the previous government, and were developed on the basis of expert bibliometric advice. Patterns of their utilisation by the RECs and detailed analysis of their performance in the ERA 2010 exercise, however, have made it clear that the journal lists themselves are the key contributor to the judgements made, not the rankings within them.

There is clear and consistent evidence that the rankings were being deployed inappropriately within some quarters of the sector, in ways that could produce harmful outcomes, and based on a poor understanding of the actual role of the rankings. One common example was the setting of targets for publication in A and A* journals by institutional research managers.

In light of these two factors – that ERA could work perfectly well without the rankings, and that their existence was focussing ill-informed, undesirable behaviour in the management of research – I have made the decision to remove the rankings, based on the ARC’s expert advice.

Carr concluded that -

The journals lists will still be of great utility and importance, but the removal of the ranks and the provision of the publication profile will ensure they will be used descriptively rather than prescriptively.

These reforms will strengthen the role of the ERA Research Evaluation Committee (REC) members in using their own, discipline-specific expertise to make judgments about the journal publication patterns for each unit of evaluation.

What that means - the Government's enthusiasm for openness and transparency has apparently yet to trickle down through some parts of the education machine - few people yet know. We might thus be cautious in endorsing the Minister's confidence that -

these improvements will strengthen the ERA methodology and minimise the unintended consequences arising from inappropriate external use of the indicators, while maintaining the comparability of future rounds with the ERA 2010 results.

Blogging

Somewhat to my surprise this blog apparently features in a list of "the top 20 legal blogs across Australia, the UK and the US", along with gems such as Warwick Rothnie's blog and that of Stephen Warne. That has impressed one of my smarter students, underwhelmed my partner and amused practitioner peers.

I am unpersuaded that legal blogging is perceived by the academy as more than a quaint and vaguely threatening pastime, something that along with submissions to law reform bodies (highlighted in my 'Opening The Door To Justice: Questions About The National Information Regime' paper for last week's Justice Connections conference) is a diversion from the zealous pursuit of DIISR points, grant applications or the gameplaying highlighted in Pierre Schlag's paper highlighted earlier this week.

Lawrence Solum commented in 'Blogging and the Transformation of Legal Scholarship' in 84 Washington Law Review (2006) 1071-1088 that -

blogging is essentially epiphenomenal — an effect and not a cause. Blogging is merely a particular medium — a currently popular form of web-based publishing. Nonetheless, the emergence of academic legal blogging is an important indicator of other trends — real causes that are driving significant transformative processes. These trends include the emergence of the short form, the obsolescence of exclusive rights, and the trend toward the disintermediation of legal scholarship.

We should not ask "will blogging somehow transform legal scholarship?", as that is "the wrong question". (Solum's assessment is one with which I agree. This blog is neither an attempt to transform legal publishing (and writing) or to refashion teaching, although - as suggested by Melbourne academic Sinclair Davidson - it might be a contribution to a conversation.)

Douglas Berman's 'Scholarship In Action: The Power, Possibilities and Pitfalls of Law Professor Blogs' in the same issue of the WLR commented that -

A general debate concerning whether law blogs can be legal scholarship makes little more sense than a general debate concerning whether law articles or law books can be legal scholarship. Blogs — like articles and books — are just a medium of communication. Like other media, blogs surely can be used to advance a scholarly mission or a range of other missions.

Looking through the debate over law blogs as legal scholarship, I see a set of bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about what exactly legal scholarship is and why legal scholarship should be considered an essential part of a law professor’s vocation. And the key follow-up question is whether blogging should be part of that vocation.

Solum suggests that -

if blogs will play a role in the transformation of legal scholarship, it will be a modest one. It seems to me that blogs can function in two ways that contribute to the emergence of the new order of short-form, open access, disintermediated legal scholarship. First, blogs themselves can serve as the medium by which short-form scholarship is written and disseminated. That is, blog posts can be legal scholarship. If anyone ever thought otherwise, they simply were not paying attention. Blogs can be legal scholarship because anything that can be written can be written as a blog post. Blogs lend themselves to very short pieces — but blog posts of over one thousand words are not uncommon and even longer pieces can be broken into several posts. Second, blogs can serve to introduce and disseminate legal scholarship. In this regard, the interaction between SSRN and the blogosphere is instructive. On Legal Theory Blog, I mention or discuss several hundred SSRN papers every year. Other blogs interact with SSRN in similar ways. A similar point can be made about the blogosphere and other forms of legal scholarship. For example, the "Legal Theory Calendar" is a feature of Legal Theory Blog. The calendar publicizes talks, workshops, and conferences that may be of interest to academics who work in legal theory. Because many workshop, colloquium, and conference Web sites have a Web page that includes links to the papers that will be presented, blogs can link both to the event and to the downloadable paper—once again creating a new channel for the dissemination of legal scholarship. Moreover, each individual legal scholar can create her own blog — which can serve as vehicle for the promotion of the scholar’s own work.

One might think that blogs are replacing or supplementing the traditional intermediaries. There is something to that thought. I am not arguing that the old intermediaries will disappear. Blogs serve as an alternative channel of information about legal scholarship — an alternative form of "peer review" that is more competitive, open, and transparent than the traditional peer review processes. Blogs are more competitive for obvious reasons. Peer-reviewed journals are expensive to produce and their boards of editors are self-perpetuating; although some fields have many competing peer-reviewed journals, the editorial boards frequently interlock. By contrast, the entry barriers to starting a blog are low, and each new blogger is free to compete for readers. Blogs are more open and transparent — except for anonymous blogs — because their assessments of legal scholarship are available to the whole world via the Internet. By contrast, most peer-reviewed journals keep the identity of reviewers secret and reveal only which articles were accepted. The reasons for acceptance and rejection (but not the identity of the reviewers) are usually communicated to the author (or rejected aspirant), but are rarely disclosed to others. Of course, competition and transparency can cut in multiple directions. Some bloggers may compete for readers by emphasizing the accessible and eschewing complex ideas that are difficult to understand. Some bloggers may respond to transparency by self-censorship — blogging only when they have "something nice" to say. But precisely because blogging is transparent, such behaviors are likely to be noticed by readers. Blogs, like journals, acquire reputations that affect readership and the ways that readers use the information they glean from blogs.

Prediction is perilous, and I have no special knowledge of the future of legal scholarship. But I do have an opinion: we are moving in the direction of open access to disintermediated short-form legal scholarship. I am much less confident about the specific forms and institutions the future will take. But I do have an opinion: blogs will play only a modest supporting role in the future of legal scholarship. Scholarship is about "papers", not "posts".

In practice, in the enterprise university, scholarship is often about "points" rather than insights or "papers" per se. Reflecting the criticism by US Chief Justice John Roberts noted here, Berman comments that -

Although teaching realities in law schools still unduly reflect our trade school history, scholarship realities for law professors now unduly reflect a graduate school affinity. Formally and informally, law professors are discouraged from researching and writing on doctrinal issues. The forms and content of the most praised (and the most questioned) types of legal scholarship push law professors — especially pretenure law professors — to focus on big, abstract issues that will interest other academics, and to avoid working on small, concrete issues that concern practitioners, judges, and policymakers.

For some current and future law professors, the modern conception of "serious legal scholarship" is a cause for celebration. For those who enjoy researching and writing about big and abstract issues, the current norms of legal scholarship justify spending a lot of professional time on favored activities. But for those interested in the development of legal doctrines and legal practice, the modern professorial equation is much different. Indeed, the emphasis on certain types of scholarship not only discourages working on doctrinal issues, but also rewards law professors for maximizing time spent with other academics and minimizing time spent with students and practitioners. In the law professor marketplace, strong student evaluations or a major bar lecture is nice, but a workshop at Chicago or a conference at Harvard is golden. Lengthy articles, especially if well placed and well cited, lead to raises; innovative teaching materials or an effective amicus brief lead to inquiries about how a traditional article is progressing.

He concludes -

These observations about the modern state of law teaching and legal scholarship highlight additional reasons why I see blogging as a valuable activity for law professors. As suggested before, blogging produces an extraordinary synergy and connection between teaching and scholarship (and service, too). I have used my blog in different ways in six different classes I have taught in recent years. Blog posts have provided the stimulus (and some text) for much of the "traditional" scholarship I have recently produced. Blogging has directly and indirectly played a role in a broad array of service opportunities and activities. Indeed, my most thoughtful posts often at once serve as innovative teaching materials, an effective amicus brief, and the start of a traditional article.

After Panlock

A 36 page Centre for Employment & Labour Relations Law working paper by Caroline Kelly on 'The problem of workplace bullying and the difficulties of legal redress: an Australian perspective' [PDF] considers physical and psychological abuse in commercial and non-commercial environments. That abuse was analysed in a paper by Patricia Easteal at last week's Justice Connections conference.

Kelly comments that -

there has been an increasing recognition of workplace bullying as a serious issue both internationally and within Australia. Research clearly indicates its disturbing prevalence in the modern workplace and, moreover, illuminates the burdensome pecuniary and non-pecuniary costs of workplace bullying for the victim, the workplace and the wider community.

Presently there are various legal avenues that may be available to individuals who are the targets of workplace bullying. At common law, workplace bullying may give rise to a number of actions both in tort and contract. Under statute, targets of workplace bullying may be able to pursue legal redress pursuant to occupational health and safety legislation, anti-discrimination legislation or workers’ compensation legislation. In addition to this, in certain circumstances, targets of bullying in the workplace may also seek recourse through the Fair Work Act 2009 (Cth) if they can demonstrate the breach of an enterprise agreement or modern award, unfair dismissal or adverse action.

She argues that -

it is apparent that these avenues may prove inadequate or unavailable for many victims of workplace bullying; where some are highly limited in their application, others may give rise to evidentiary problems as well as great cost and uncertainty. Though a wide variety of avenues of legal redress exist, none target workplace bullying as a legally cognisable harm in itself. Both individually and collectively, it will be contended that these avenues ultimately fail to address this serious issue and that, as a result, the legal landscape that confronts victims of workplace bullying is fragmented and inaccessible, with a number of substantial lacunae. To further demonstrate this point, a case study which is representative of both the nature of workplace bullying itself, and the difficulties of pursuing legal redress in its wake, will be examined.

What is the solution? Kelly suggests that "legal reform is necessary to address this issue" -

Based, in part, on specific legislative initiatives that have been implemented in countries such France and Belgium, this paper will propose a new, targeted statutory regime which seeks, through civil means, to name, proscribe and prevent workplace bullying in specific terms. The proposed legislation seeks to tackle workplace bullying on an individual level, through the proscription of workplace bullying behaviours, and on an organisational level, through the imposition of new obligations upon the employer to provide a workplace free from bullying. The enactment of such legislation under the umbrella of the Fair Work Act would enliven the complaint and compliance mechanisms of both the courts and the regulatory agencies of the Fair Work System. The proposed legislation would therefore tackle the problem of workplace bullying systematically and comprehensively, operating in both a preventive and remedial capacity. Such an approach, this paper will argue, is fundamental in counteracting the cultural normalisation of bullying in Australian workplaces.

Disciplinarity and 'chew-on-the-furniture' boring

From Pierre Schlag's 'The Faculty Workshop' (University of Colorado Law Legal Studies Research Paper No. 11-12 ) -

what we have in most faculty workshops are extremely stylized (and formally redundant) presentations. One can easily begin to suspect then that it's not at all about the speaker. And to say it outright: Most of the time it isn't. Instead, what matters most is the disciplining effect enacted through the highly stylized questions that the speaker is asked to answer. Again, most people think that it is the speaker who is being disciplined (and surely some speakers may feel that way on occasion). But the speaker is merely the occasion for the reciprocal disciplining of audience members by each other. We are signaling to each other via our questions and thereby constructing for ourselves and each other the appropriate genre for the law review article/faculty workshop performance.

Much of this reciprocal disciplining is a subtle negotiation — performed largely by way of non-verbal cues (smile, nod, sigh, sitting up, reclining back, dropping the eyelids down to half mast, taking care of email, whispering in a neighbor's ear, reading faces, and so on).

The non-verbal cues effectively valorize or devalorize the questions asked by the audience members. The speaker (being an outsider) is often oblivious to the specific meanings engendered: Not knowing the identity of the faculty characters (or the institutional dynamics) he or she can only make educated guesses as to where the valences of faculty power may lie.

Law professors, of course, will have a hard time thinking that such non-verbal cues matter much. Life of the mind and all that. But the cues actually do — because everyone (at least at non-dysfunctional law schools) refrains from saying what they actually think. If one of your colleagues asks a dumb question, for instance, you can't really be expected to say "Well, that's pretty fucking stupid — isn't it? Work on that one ahead of time — did you?" And likewise if the speaker drones on, you can‟t really say, "So your paper — it's kind of boring. Actually, chew-on-the-furniture hurt-yourself-boring." What could a speaker possibly say to that? "No, it's not." "Well, it's interesting to me." "I've got a lot of smart people on my side." You see the point. Besides, it's not nice. That's why the infinitely more delicate (even if not altogether conceptually nuanced) non-verbal cues are so important.

Of course, it's not just the non-verbal cues that matter. The actual questions asked are important as well. But you already know the standard questions. As a gentle reminder here, I will simply list them as rapidly as possible in a single paragraph. Please do read as quickly as you can. Here goes: the rules v. standards question, the institutional competence question, the this-bit-of-history is against you question, the have you considered ... question, the 'on page 18 you say ... and yet in footnote 262, you say' ... question, the capillary trench warfare question, the I've actually worked on this as a lawyer question, the real law/real politick question, the rational utility maximizer would have done otherwise question, the cognitive error/bias of your choice question, the where's your empirical support question, the in terrorem effects question, the perverse incentives question, the institutional design question, the but you have not dealt with ... question, the how would you deal with .... question, the somewhat nastier, wouldn't you have done better arguing that ... question, and, of course, the ubiquitous what should the courts do question.

Schlag comments that -

All these questions function to construct and delimit the "ideal" law review article — the one that will successfully negotiate the gantlets of faculty workshops everywhere and score five million plus downloads. There are actually several genres that conform to these requirements, but life is brief, patience is thin, and time is fleeting, so here very quickly then is the formula for the Mother of all Law Review articles (circa 2000-2010).

This is what you must write:

1. In the article, pick a fight with a certain accepted legal approach, tradition, whathaveyou which, as you are about to show, is on at least one significant point demonstrably wrong. Bonus points if the approach, tradition, whathaveyou is already not well liked.

2. Deploy a mid-level but intellectually non-trivial theory as your framework. It should come from some extra-legal field (eg psychology). It should not be so forward-leaning as to make your audience feel cognitively challenged, but it should nonetheless be sufficiently aggressive as to imply the breaking of new ground. (Stay away from the French.)

3. Make the mid-level theory yield (this is extremely important) what is at once a common sense and a center-liberal solution. This greatly increases your (incredibly marginal) chances that some official body will actually adopt your solution — adoption being something that is oddly treated as a sign of good scholarship as opposed to what it is (or might be) — namely, a sign of good service. Hewing to a common sense center-liberal solution also greatly increases your chances that the immediate audience will believe you are right.

4. Leave enough ambiguity in your text to prompt and sustain a maximum degree of self-gratifying audience projection. A relatively crude way of doing this (though it works) is to take a fairly well settled common law notion (eg "decide cases narrowly") which people already know and extrapolate it to a vastly more self-inflated version of itself—to which you will then attach a fancy new Latinate name. In terms of symbolic economy, it's a win/win: the old knowledge of law is made to feel hot and new while the hot and new is made to feel solidly grounded in the law. Remember: No one in the legal academy has ever gone wrong by regressing towards the mean unless, of course, 1) they overdo it, or 2) they're too obvious about it — as in actually announcing it: "Regressing to the Mean — A Proposal for ..." Even then, apparently, there's not much risk.

5. In terms of tone, you basically want the stylistic equivalent of (4) above. That is to say that you want to appear servile—while nonetheless making it obvious to others that this servile affect is in service of establishing your dominance. In sharp contrast to when you were a lawyer, you want to make sure everyone understands this.

Vote early, vote post-mortem

Announcing that "Many Zimbabwean voters are centenarians and some are in prams", a 62 page report by Professor R W Johnson for the South African Institute of Race Relations suggests that no fair referendum or election can be held in Zimbabwe on the basis of the current electoral roll.

In releasing Preventing Electoral Fraud in Zimbabwe [PDF] the Institute comments that -

Though life expectancy in Zimbabwe has dropped to 45 years, the voters’ roll, as it stood in October 2010, contains the names of:

• roughly 1 490 ‘new’ voters (never previously registered) aged over 100;
• some 41 100 voters (some new and some earlier listed) aged 100 or more, which is four times the number of centenarians in Britain;
• about 4 370 new voters over 90 years old; and
• a total of some 132 500 such nonagenarians.

The roll also has roughly 16 800 voters who not only share the same date of birth — recorded as 1st January 1901 — but were also toddlers at the time that Cecil Rhodes died in March 1902. All of them are now more than 110 years old.

The roll also lists about 230 new voters under the voting age of 18. In October 2010, many of them were under ten years old while one was a baby and quite a number were aged two.

To make matters far worse, the current roll is also based on the 2008 voters' roll, which contains about 2.5m names too many, given Zimbabwe’s probable population size. This phantom vote is more than enough to settle the outcome of any election. ...

Instead of removing these 2.5m fictitious entries, the Registrar-General, Mr Tobaiwa Mudede, an outspoken Zanu-PF supporter, has added more than 360 500 new voters to the current roll. Yet many are far too old or too young to merit inclusion. "If experience is any guide, phantom 'voters' are likely to vote early and often in the next Zimbabwean poll,” Johnson cautions.

Johnson comments that -

Comparing the voters’ roll as of October 2010 with the roll used in the 2008 harmonised elections, we find that in 2010 there are 366,550 new voters who have not appeared on any previous roll. This is extremely surprising considering that the overall population of Zimbabwe has been falling due both to a very high mortality rate and large-scale emigration. It might have been expected, nonetheless, that there would be some new voters in the youngest age group of roughly 18 to 25.

There is also a very unlikely total of 49,239 new voters over the age of 50 – and this when average life expectancy in Zimbabwe has fallen to 44.8 years. Even more surprising is the fact that 16,033 of these new voters are over the age of 70 years, while 1,488 of them are over the age of 100. ...

Then again, a number of these new voters have no valid address, despite the stipulation requiring this. ...

Further, it is important to point out that the 366,550 new voters who have been added to the roll as of October 2010 are by no means equally distributed around the country, as one might expect. In the extreme cases, one finds that the constituency of Cheredzi South has only 33 new voters added to its roll while the constituency of Gokwe Nembudziya has no less than 13,896 new voters added to its roll. There can be no satisfactory reason for such extraordinary variations.

One of the most striking anomalies is the number of exceptionally old people among the new voters. There are, indeed, no less than 4,368 new voters over the age of 90 years on the voters’ roll as at 1st October 2010. If one amalgamates the list of new voters with the old list, one finds an extraordinary total of 132,540 persons over the age of 90 on the roll. Given the average life expectancy of less than half that figure, this is completely incredible. In addition, we find that once again these nonagenarians are not evenly distributed among constituencies. Instead, they are again bunched into the same minority of constituencies which have had exceptionally high numbers of new voters added to them. ...

Finally, there are no less than 16,828 registered voters with the same date of birth, given as 1st January 1901. It might be argued that the enumerator simply gave this birth date to all very senior citizens who were in doubt as to their true age – though that already suggests an impermissible degree of official intervention in the registration process. However, if one's credulity is stretched by this extraordinary number of 110-year-olds, it is stretched way beyond breaking point when one learns that no less than 1,101 of these 110-year-olds are registered in Mr Mugabe's birthplace, Zvimba, presumably to act as a reserve category capable of producing particularly pleasing results for Zanu-PF there. ...

To conclude, then, the Zimbabwe voters’ roll, as at October 2010, is not only a wholly incredible document but an extremely dangerous one, which lends itself to all manner of electoral manipulation or ballot-stuffing. It is more or less guaranteed to produce disputed results. It is beyond redemption and cannot even be used as one of the building blocks in the construction of a new and authoritative voters' roll. It simply has to be scrapped completely, while work on a proper roll must begin again from scratch.

In Australia meanwhile the Australian National Audit Office (ANAO) has released a 122 page report on Management of the Aviation and Maritime Security Identification Card Schemes.

The report comments that -

Consistent with their legislative frameworks, the ASIC and MSIC schemes provide for the involvement of a range of entities, including both industry organisations and Australian Government agencies. OTS, a division within DIT, administers the regulatory framework for the schemes on behalf of the Australian Government, and AusCheck, a branch within AGD, coordinates the background checks of ASIC and MSIC applicants. There are also over 1200 industry participants that regulate access to secure areas where the display of ASICs and MSICs is required, in excess of 200 bodies that are authorised to issue the cards, and some 250,000 cardholders, who are required to meet their obligations to properly display a valid security card while in a secure area. ...

[S]some of the risks associated with the current delivery model could be better managed by OTS. These risks primarily relate to issuing bodies and visitor management and are inherent in the devolved nature of the schemes.

As previously noted, the regulatory framework of the ASIC and MSIC schemes includes over 200 authorised issuing bodies that process applications, produce and issue the identification cards. The majority of cards (80 per cent), however, are issued by a small number (20 per cent) of issuing bodies. Further, 35 per cent of all cards are issued by commercially based ‘third party’ issuing bodies, that have a limited ongoing relationship to the applicant. While the schemes prescribe mandatory standards for issuing bodies, these standards are not being consistently met by some issuing bodies. This includes how an applicant’s operational need for the card is established and maintaining adequate records to demonstrate that an applicant’s identity has been confirmed. ...

OTS has developed a compliance framework that aims to cooperatively encourage compliance through education and audit activities, with the focus being on high-risk participants. While the framework is appropriately targeted at high-risk participants, it could be strengthened if information obtained through OTS’s audit, inspection and stakeholder programs was used to better inform and focus the schemes’ compliance activities.

A further area of concern is visitors entering secure areas at airports. Visitors can obtain a visitor identification card (VIC) and, although a VIC holder must be supervised, they do not need to undergo the background check required for an ASIC. Concerns about the VIC regime have been raised by the Joint Committee of Public Accounts and Audit over a number of years. Revised regulations to tighten the VIC scheme are being developed, although these changes have been slow to eventuate. The total number of VICs being issued is not known, but around 40 000 were issued at one delivery gate alone at a major airport in 2009–10. Moreover, many VICs are issued repeatedly to the same individuals, effectively bypassing the ASIC background checking process. ...

It is difficult to obtain a reliable count of the total number of current ASIC and MSIC cards, or the currency of all cards on the AusCheck database. This is despite the database being established to provide a comprehensive record of all ASIC and MSIC applicants and cardholders. Each issuing body also maintains a database of its cardholders. Although AusCheck has developed a range of controls over the integrity of the information entered into its database, changes in one database do not always flow through to the other. As a consequence the two data sets differ markedly

The release coincides with claims that security at Australian defence facilities and embassies has compromised through deliberate fabrication by government vetting personnel of security clearances.

The ABC reports that whistleblowers who were formerly subcontracted to the Defence Security Authority (DSA) claim that they were given direct instructions from senior Defence staff to use false data in order to speed up security vetting of civilian and military personnel.

The three people were involved in checking documents supplied by applicants for a security clearance. Once the checks were complete a report was sent to ASIO to see whether the applicant was a person of interest on the ASIO data base. Pressure to reduce a backlog in processing (the DSA was handling about 23,000 security checks per year as of 2009) is claimed to have resulted in staff using bogus details to fill in gaps in thousands of applications, "including top secret level clearances sent to ASIO" -

Information like where you live, or previous employment, they didn't really care about that stuff, just make it up, put in some dates, put unemployed for periods that were missing, addresses just put the area address, or find a street or make some information up to fill in those gaps ...

There was a large percentage of the applications that came my way that did have gaps, that did have problems that needed to be phoned up about - I would think about 25 per cent.

The analyst started to get impatient with me because she said,'this is what you do, we do this all the time', manufacturing certain birth dates, filling in gaps of addresses. ...

I took a couple of applications aside from my day's work and I said this has this problem, and this has that problem, one of them didn't have a birth certificate, there is not an address here, no employment, questions like that," she said.

"[I] asked what do you want me to do about it? And I was told these words: 'Be creative'."

InfoLib as usual

A report [PDF] by the UN Special Rapporteur on freedom of expression regarding the right to freedom of opinion and expression on the internet is business as usual

Special Rapporteur Frank La Rue warns that "fearful Governments are increasingly restricting the flow of information on the Internet due to its potential to mobilize people to challenge the status quo" -

In recent months, we have seen a growing movement of people around the world who are advocating for change – for justice, equality, accountability of the powerful and better respect for human rights.

However, the unique features of the Internet, which allow individuals to spread information instantly, to organize themselves, and to inform the world about situations of injustice and inequality, have also created fear among Governments and the powerful.

The report "explores key trends and challenges to the right of all individuals to exercise their right to freedom of expression" under article 19 of the International Covenant on Civil &Political Rights.

Legitimate expression continues to be criminalized in many States, illustrated by the fact that in 2010, more than 100 bloggers were imprisoned. Governments are using increasingly sophisticated technologies to block content, and to monitor and identify activists and critics.

There should be as little restriction as possible to the flow of information via the Internet, except in a few, very exceptional, and limited circumstances prescribed by international human rights law.

Essentially, this means that any restriction must be clearly provided by law, and proven to be necessary and the least intrusive means available for the purpose of protecting the rights of others.

Governments should "develop a concrete and effective plan of action" to make the net "widely available, accessible and affordable to all segments of the population".