Twits

The 62 page 'Guilty as Tweeted: Jurors Using Social Media Inappropriately During the Trial Process' (UWA Faculty of Law Research Paper No. 2, 2012) by Marilyn Kravitz comments that

Social media is ubiquitous, millions of people use it worldwide. However, some of these people (albeit a small proportion) are jurors. If jurors use social media during a trial inappropriately, it can have devastating repercussions to an accused’s right to a fair trial. For example, the juror’s impartiality may be affected. This article examines why jurors use social media inappropriately. It also provides recommendations tailored to the Australian courts about how to prevent jurors from using social media inappropriately and how to contend with the relevant juror. Given the high number of Australians that use social media, the courts should seriously consider this issue.

She begins with the statement -

Picture this: you are a criminal lawyer. You worked night and day for several months to represent your client, who was charged with conspiracy to supply heroin and conspiracy to supply amphetamines. Eight co-accuseds were also charged with similar offences. At the beginning of the trial, the judge instructed the jury not to use the internet to read about anything connected with the trial. He also instructed them to base their verdict on the information that they hear in court and nothing else. The judge repeated these instructions consistently during the trial.

The jury subsequently deliver verdicts for some of your client’s co-accuseds: some are found guilty and some are found innocent. A verdict has not yet been delivered for your client. You then receive some startling news: one of the jurors in the trial chatted with a co-accused who was found innocent yesterday. Their conversation occurred entirely on Facebook messenger and they discussed the trial.

You are outraged on behalf of your client about what the juror did. You are left wondering about what you should do as a result of the juror’s actions. You also wonder what the Court will do when it finds out.

The above scenario is based on a real trial in the United Kingdom: Attorney-General v Fraill. In this case, the court sentenced the juror to eight months imprisonment as a result of her using social media inappropriately. ....

Juror misconduct due to inappropriate use of social media is an old problem in a new form. Historically, if a judge told jurors not to discuss their case, then there was little chance that a juror would be caught talking to others about it. However, social media is different. Many people, including jurors that use social media, treat social media as if it were their own personal and confidential conversation with another person or people. However, in reality, their social media use can be broadcast to a very large audience. According to Niehoff, ‘the faux intimacy of social media seduces users into believing that their communications are like hushed confessionals when they are actually more like full-throated shouts.’

There are over a dozen cases of jurors using social media inappropriately in the United States, two in the United Kingdom and one in Australia, as of the date of this article. It is possible that many jurors are inappropriately using social media in Australia, but the courts do not know about it because no one is reporting it. Alternatively, if they are not, it is highly likely that jurors will use social media inappropriately in the future due to the high number of Australians that use social media. For example, eleven million Australians use Facebook. Nine million Australians visit the site weekly and over 7 million visit it daily. The most popular Australian on Twitter is former Prime Minister and former Foreign Minister Kevin Rudd: over a million people follow him. Further, various Australians recently announced that they intend to research the area of social media and the courts. Researchers from three Australian universities, Bond University, Monash University and the University of Canberra, seek funding from the Australian Research Council to research social media and the courts. The Victorian Attorney General, Robert Clark, announced that he will create a working group to find solutions to the availability of information prejudicial to an accused on social media. The group will include people working in social media, the police and judicial officers.

The purpose of this article is to explore the current knowledge surrounding jurors using social media inappropriately. After a short description of the history of the jury and the principles underlying it, this article will explore the problems associated with jurors using social media inappropriately. It will then explore why jurors engage in this form of misconduct, along with recommendations about how to prevent this form of misconduct from occurring. The article will also examine how the courts should contend with the juror and the trial itself when it discovers that a juror used social media inappropriately.

Defamation and Reporting

'Appropriate Reforms to Defamation and Protection Laws' (UWA Faculty of Law Research Paper No. 1, 2012) by Michael Gillooly was an Invited Submission to the WA Government St Andrew's Hostel Inquiry in June this year. It is relevant to the forthcoming national Royal Commission into child abuse involving arms of the Roman Catholic Church in Australia and other institutions, and to the NSW and Victorian inquiries in the same area.

Gillooly notes that

This is an advice to the Government of Western Australia made as part of its inquiry into the conduct and response of relevant public officials and government agencies in relation to allegations of sexual abuse at St Andrew's Hostel in Katanning, and related organisations.

It addresses what might be appropriate reforms to current WA defamation or protection laws in respect of:

1. Allowing a person who reports child sexual abuse, believing it to be true, to have statutory protection from defamation proceedings.

2. Whether designating additional positions or authorities for this purpose would be appropriate (consistently with the currently designated mandatory reporters, the Department for Child Protection or Western Australia Police).

3. Whether the Public Interest Disclosure Act 2003 (WA) can be suitably amended, or alternatively, provides an appropriate model for that purpose.

4. Any other mechanisms or protections that could be considered to ensure that those who have a valid complaint of child sexual abuse can disclose it appropriately.

He goes on to comment that

There is no doubt that reports about child sexual abuse, whether actual or suspected, which are made to an appropriate person, honestly and in good faith, would be protected by the defence of qualified privilege. Nonetheless, the long standing existence of that protection proved an insufficient inducement to members of the hostel community to come forward and voice their concerns about the activities of the Warden. It is submitted that the reason is the common law nature of the defence. Because the defence is rooted in the common law, it suffers from certain deficiencies as a form of encouragement to potential complainants:

First, the defence can only be stated in the broad terms of general principle. The virtue of this generality is that qualified privilege is flexible enough to apply in a multitude of different situations. In this regard it can be contrasted with its distant cousin, absolute privilege, which only applies in a narrow range of specifically enumerated circumstances. However, the defence’s generality and flexibility are also its major weaknesses for present purposes, for there may be some element of uncertainty attaching to the precise scope of its application. Hence, it fails to provide a potential reporter with a clear and specific statement of his or her immunity from action.

Second, the defence is not readily accessible to non-lawyers. Its existence and elements are to be found in the interstices of the common law, and considerable specialist knowledge is required to grasp its full implications.

Third, like all common law principles, the defence is open to change retrospectively and without notice by judicial decision.

Gillooly makes several recommendations -

Amendments to the Children and Community Services Act 2004

1. That a specific and explicit right to report child abuse for members of the public be enacted. The insertion into Part 4 Division 9A of provision along the following lines is suggested:

Section XXX. Voluntary reporting of child sexual abuse

(1) A person, who believes or suspects that a child has been, is being or will be the subject of sexual abuse, may report that belief or suspicion to the CEO of the Department of Child Protection, the Commissioner of Police or any of their officers.

(2) A person making a report under subsection (1) shall state their reasons for forming the reported belief or suspicion.

2. That the subsection 129(2) protection be extended to cover reporters exercising the new right enacted pursuant to Recommendation 1. The insertion into s 129(1) of a new paragraph along the following lines is suggested:

Paragraph 129(1)(exxx) (exxx)

makes a report under section XXX;

3. That special provisions relating to defamation proceedings be enacted in order to: (i) cast the onus with respect to good faith under the new defence on the plaintiff; (ii) enable a defendant to obtain a declaration of falsity in an appropriate case; and (iii) penalise the use of defamation proceedings to deter good faith reporting of child sexual abuse.

The insertion, after s 129, of a new section along the following lines is suggested:

23 Section129XXX. Provisions relating to defamation proceedings

(1) In any proceedings for defamation, when a defence under s 129(1)(exxx) and (2) is relied upon, the defendant need not prove that he or she acted in good faith, but the onus of proof lies on the plaintiff to establish the defendant’s lack of good faith in order to defeat the defence.

(2) Where defamation proceedings fail due to successful reliance by a defendant on a defence under s 129(1)(exxx) and (2), and the plaintiff proves the falsity of the defamatory imputations conveyed by the report made under s XXX, the court may make a declaration of the falsity of those imputations.

(3) A person shall not threaten or foreshadow the initiation of defamation proceedings in order to deter or dissuade a person from making a good faith report under s XXX.

Penalty: a fine of $6000

Amendments to the Public Interest Disclosure Act

 4. That section 5 be amended to make the Public Sector Commissioner the “one stop shop” for the initial receipt of public interest disclosures.

The insertion into section 5 of provisions along the following lines is suggested:

Paragraph 5(3)(j)

(j) where the information relates to any of the matters referred to in any of the preceding paragraphs of this subsection, except for paragraph (g) 43 – it is made to the Commissioner.

Subsection 5(3A)

Where a disclosure is made to the Commissioner under s5(3)(j), the Commissioner shall refer the disclosure to the relevant “proper authority” and is not subject to the obligations set out in Part 2, Division 2 with respect to that disclosure.

Administrative Recommendation

5. That the Public Sector Commissioner be asked to consider the preparation of guidelines under s 21 to facilitate the identification of the person within a public authority who has been designated to receive public interest information disclosures

I have been rereading 'Republication of Defamation under the Doctrine of Reportage - The Evolution of Common Law Qualified Privilege in England and Wales' (UNSW Law Research Paper No. 2010-20) by Jason John Bosland, which examines -

the ‘doctrine of reportage’ - a particular application of the ‘Reynolds’ qualified privilege defence to defamation recognised by the House of Lords in Reynolds v Times Newspapers Ltd. The doctrine of reportage provides protection for the neutral reporting (republication) of defamatory allegations made by others in the context of a dispute or controversy of public interest. It is argued in this paper, however, that this emerging defence is doctrinally distinct from the privilege recognised in Reynolds and that its jurisprudential basis needs to be reconsidered. Moreover, the development of the defence under the guise of Reynolds privilege has led to confusion, both by courts and by commentators, as to its potential breadth. It is suggested that the public interest justifications underpinning the reportage defence need to be explicitly re-examined by the courts in order to define its proper scope. Following an examination of these public interest justifications, it is argued that a broad interpretation of the defence should be rejected.

Wine GIs and Broccoli

'Geographical Indications and the International Trade in Australian Wines' by Michael Blakeney in (2012) 18(1) International Trade Law & Regulation 70-78 comments that

Australia has been regarded as a 'New World' opponent of attempts under the TRIPS Agreement to extend the European system of GIs protection to the wider world. It also joined with the USA in instituting a successful TRIPS dispute against the EU’s GIs procedures. However, the extensive Australian trade in wines to the EU has obliged Australia to embrace a European-style GIs system for its own wines. This article describes the evolution of the Australian – EU Wine Agreements of 1994 and 2009 and the consequential development of the Australian wine GIs system. It calls into question as over-simplified the Old World/New World dichotomy in relation to GIs.

Another perspective is provided in his 30 page 'Geographical Indications and TRIPS', which considers "the international negotiations concerning the extension of the special protection for the geographical indications for wines and spirits provided in the WTO TRIPS Agreement to agricultural and handicraft products".

Blakeney's 'Patenting of Plant Varieties and Plant Breeding Methods' in (2012) 63(3) Journal of Experimental Botany 1069-1074 considers

the relationship between patenting and plant variety rights protection, through a detailed analysis of the recent determination by the Extended Board of Appeal of the European Patent Office that methods for breeding broccoli and tomatoes were not patentable. It concludes that the right to patent agricultural innovations is increasingly located within a political context. 

Blakeney's lucid commentary states that

The determination of the EBA was that a process for the production of plants which is based on the sexual crossing of whole genomes and on the subsequent selection of plants, in which human intervention, including the provision of a technical means, serves to enable or assist the performance of the process steps, is excluded from patentability as being essentially biological within the meaning of Article 53(b) EPC. Thus the EBA confirmed that classical plant breeding is excluded from patentability. On the other hand, if a process of sexual crossing and selection includes within it an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then that process leaves the realm of the plant breeding and, consequently, is not excluded from patentability. This principle applies only where the additional step is performed within the steps of sexually crossing and selection, independently from the number of repetitions, otherwise the exclusion of sexual crossing and selection processes from patentability could be circumvented simply by adding steps which do not properly pertain to the crossing and selection process, being either upstream steps dealing with the preparation of the plant(s) to be crossed or downstream steps dealing with the further treatment of the plant resulting from the crossing and selection process. The EBA noted that, for the previous or subsequent steps, per se patent protection was available. This will be the case for genetic engineering techniques applied to plants which differ from conventional breeding techniques as they work primarily through the deliberate insertion and/or modification of one or more genes in a plant.

It is important to note that the EBA disallowed the patenting of methods of plant breeding. It has been pointed out that the products of plant breeding remain patentable (Then and Tippe, 2011). An analysis of the examination reports for recent patent applications at the EPO indicate that claims in relation to the breeding of plants would have to be deleted, but that the plants themselves [sunflowers (see note 18) and coreless tomatoes (see note 19)] were patentable. Because of this, civil society representatives have ‘a clear legal prohibition on granting patents on plants and animals, on processes for breeding, relevant biological material and the food derived’ (see note 20).

This litigation emphasizes for plant breeders and botanists the political dimension of their activities, which had hitherto been treated as a matter of technical science. The environmentalist NGO, Greenpeace, is cofounder of ‘No Patents on Seeds’, and has taken the lead in building public awareness of the issue. Similarly, the NGO, ETC Group, has led a campaign over many years opposing the ‘patenting of life’. An illustration of the strength of feelings on this issue was the destruction by Greenpeace activists in July 2011 of a GM wheat crop being grown at a government experimental station in Australia (see note 21). The attack followed the refusal of a Freedom of Information request for more information about the trials. The GM trials were part of experimentation into the development of drought resistant crops. Underpinning the opposition to this science is the concern of NGOs that the independence of small independent farmers and breeders is threatened by powerful life sciences corporations.

A 2008 study by the ETC Group identified 55 patent ‘families’ (see note 22) (a total of 532 patent documents) that were applied for and/or granted to a number of biotechnology companies on so-called ‘climate-ready’ genes at patent offices around the world (ETC, 2008). Its 2010 update of this study ‘examined patents containing claims concerned with abiotic stress tolerance (ie traits related to environmental stress, such as drought, salinity, heat, cold, chilling, freezing, nutrient levels, high light intensity, ozone, and anaerobic stresses’. It noted a dramatic upsurge in the number of patents published (both applications and issued patents) related to ‘climate-ready’ genetically engineered crops from 30 June 2008 to 30 June 2010, identifying 262 patent families and 1663 patent documents. The 2010 report of the ETC contrasted the ownership of 9% patent families by public sector institutions (9% of the total) with the private sector which holds 91% of the total. The 2010 report points out that ‘just three companies — DuPont, BASF, Monsanto — account for two-thirds (173 or 66%) of the total’. This level of market concentration gives cause for concern for those who espouse the positive role of competition, but also a concern about the sort of biotechnological research which is undertaken. For example, to what extent will the dominance of private corporations in biomedical and agricultural research direct that research towards Northern concerns away from Southern food priorities. It has been estimated that only 1% of the research and development budgets of multinational corporations is spent on crops of interest that would be useful in the developing world. Almost entirely neglected by these corporations are the five most important crops of the poorest, arid countries — sorghum, millet, pigeon pea, chickpea, and groundnut.

This disputation over the patenting of the products of plant breeding, as well as plant breeding methods themselves, emphasizes the increasingly politicized environment in which experimental botany is occurring. Current research into the influence of climate change upon the development of weeds, insect pests, and crop diseases and the ways in which plants can be engineered to withstand salinity and aridity is increasingly going to be undertaken in a political context.

The Canberra Greenpeace activists (or eco-vandals) noted by Blakeney have meanwhile received nine-month suspended sentences for destroying a CSIRO genetically modified wheat crop. The activists had destroyed the crop in July last year; Greenpeace then sought publicity by contacting the ABC and releasing vision of the protest.  Greenpeace has since paid more than $280,000 in compensation to the CSIRO.

Penfold J in the ACT Supreme Court indicated that the action was motivated by deeply held beliefs and altruistic intentions but the law had been deliberately broken. She criticised Greenpeace for allowing two junior staff members to be exposed to the consequences of breaking the law.

Greenpeace reportedly responded that the two activists knew what they were getting themselves into.

"The crop that we targeted was one that we had cause to believe would be used in trials, including human trials. We were very concerned about the lack of transparency around that trial," .... "As the judge noted, we have made a number of Freedom of Information requests in the month leading up to our action, seeking further details about the trials and the CSIRO refused to provide that information to us."

Mr Pearson says despite the charges and fine, the conservation group would not rule out undertaking similar acts in the future.

"Look Greenpeace will never resile from undertaking acts of civil disobedience, we simply will not do that. We won't walk away from that now or in the future," he said.

"It's not a matter of saying would we do that particular action again, it's a matter of whether we would engage in civil disobedience again and we certainly will if we believe it's necessary."

Ben Pearson says while it is a large amount, Greenpeace members will continue to support the organisation. "Well Greenpeace paid it on behalf of the activists in recognition of the fact that they had, while undertaken the activity in their own personal capacity," he said. "Greenpeace supporters give us money exactly because we undertake these kind of activities, because we actually physically stand up to environmental harm and those causing it.

WA Bar Demographics

'A Cultural Challenge for the Western Australian Legal Profession: A Lack of Diversity at the WA Bar?' by Jill Howieson and Tomas Fitzgerald in 36(1) University of Western Australia Law Review (2012) reports that

 At the request of the Western Australian Bar Association, the authors undertook a study into issues of diversity at the Western Australian Bar. Members of the Association had noticed, but not specifically studied, various demographic imbalances in the Bar’s constitution. A review of the literature revealed that there was a paucity of statistical analysis of the makeup of Australian barrister associations generally, let alone into any specific reasons as to how and why a demographic imbalance might exist. Recognizing that a clearer picture of the breakdown of the demographics of the Western Australian legal profession and of the specific cultures that might exist at the Bar was needed, the authors undertook a study that examined whether there was an existing legal monoculture at the Bar, and if so what some of the reasons for this might be. The authors conjectured that being ignorant as to how to become a barrister and having a sense of isolation from the legal profession generally, might be reasons for the cultural imbalance (if it indeed existed) and then set about to investigate this empirically. The results revealed that there might be hidden barriers that work to inhibit a broad range of legal professionals from progressing to the Bar. In particular, a knowledge of how to become a barrister, how legal professionals and students feel that they ‘fit in’ to the local legal culture and the various myths that exist about life at the Bar might be inhibiting the progress of a diverse demographic of people from joining the Bar. This article explores the research findings and makes the call for a dedicated research agenda to confirm the study results and to investigate how Australia might best prepare to achieve a diverse and balanced Bar, Bench and legal profession.

Copyright and Consecration

'Towards a Critical IP Theory: Copyright, Consecration & Control' by John Tehranian in Brigham Young University Law Review (2012) 1237-1296 comments

Intellectual-property jurisprudence increasingly informs the way in which social order is maintained in the twenty-first century. By regulating cultural production and patrolling the dissemination of knowledge, copyright law mediates the exercise of important social, political, and economic rights, thereby playing a critical role in the construction of our information society. In theory, ostensibly neutral ground rules guide the vesting, enforcement, and adjudication of rights pertaining to creative works in a way that best advances the constitutionally mandated purpose of the copyright regime: progress in the arts. But, in reality, copyright law’s procedural and substantive doctrines do more than just advance “progress in the arts” and can serve as powerful tools for the regulation, control, and manipulation of meaning. This Article identifies and builds on an emerging literature—one that it refers to as “critical intellectual- property” scholarship—to introduce a framework for studying just how copyright transcends its small corner of the legal universe by shaping social structures and regulating individual behavior as part of a larger hegemonic project. 

As John Fiske writes, “Popular culture always is part of power relations; it always bears traces of constant struggle between domination and subordination, between power and various forms ofresistance to it or evasions of it . . . .” Thus, it is not surprising that intellectual-property laws that control access to and use of popular culture are a function of power relations. In the early 1970s, sociologist Pierre Bourdieu introduced the concept of cultural reproduction to explain the processes through which the dominant class retained its power. Drawing on the example of schooling in modern society, he argued that educational institutions function largely to preserve hegemonic interests by perpetuating the reproduction of the cultural and social values of the dominant class. 

Bourdieu’s work on cultural reproduction has inspired waves of scholarship in the social sciences, but it has not generated as much interest in the field of intellectual property. Yet the notion of cultural reproduction is instrumental to understanding the consequences of intellectual-property laws on knowledge–power systems. Bourdieu’s work and the scholarship it has inspired suggest that the inviolate recitation of the cultural production of dominant social forces is a profound vehicle for the inculcation of a set of values and symbols that consolidate existing power structures. If that is the case, the act of imperfect reproduction, or of customization, of cultural production can translate into an act of subversion or reproduction of the existing social order in a particular form. These acts of differentiation and similitude, or the acts of imperfect reproduction and customization, are carefully regulated by intellectual-property laws. And the selective protection granted to cultural production under the guise of copyright reveals the role of intellectual-property law in molding identities, enforcing dominant values, and controlling expressive rights. In short, user and creator rights are determined byintellectual-property laws that can help both maintain and perpetuate existing social structures. Copyright’s procedural and substantive rules therefore serve as a key vehicle for the discursive exertion of knowledge–power systems on individuals. 

Part II of this Article examines the link between intellectual- property rights and knowledge–power systems. Specifically, it frames the theoretical underpinnings of this study of copyright law in cultural studies. A growing body of scholarship has begun to analyze the relationship between trademark, copyright, and patent doctrines and wider power struggles by assessing the myriad ways in which our intellectual-property regime reflects and even accentuates traditional race-, gender-, orientation-, and class-based divides. Although this literature has not received a collective appellation, it has made a vital contribution to understanding the broader implications of intellectual-property law from a perspective informed, at least implicitly, by critical theory. This Article therefore identifies this nascent scholarship as developing a ‘critical intellectual-property’ theory. This Article then situates this critical intellectual-property scholarship in relation to the extant literature in the more mature movements of critical legal studies and critical race theory. 

Building on this critical intellectual-property scholarship, this Article turns its attention towards constructing a theoretical model for assessing the broader impact of intellectual-property protections on hegemonic practices. It does so both to elucidate the relationships among present contributions in the field and to provide a framework for future work. Specifically, this Article recognizes three primary moments of analytical interest for critical intellectual- property queries: (1) the vesting of rights, (2) the assertion of rights, and (3) the adjudication of rights. Decision-making in these three theaters of operation reveals the intricate way in which ostensibly neutral laws have combined to create hierarchies of informational and cultural rights that patrol relations between sovereigns and their subjects, corporations and individuals, and entrenched interests and surging parvenus. 

Thus, Part III focuses on the genesis of rights and the way in which the vesting of copyright protection beatifies certain forms ofcultural production. To illustrate this point and to provide a historical analysis of intellectual-property law as a hegemonic battleground, the Article examines the origins of the derivative-rights doctrine as a response to tensions over access to cultural content. Specifically, the example of William Shakespeare and the opera— surprisingly populist works in the nineteenth century that transformed into the fodder of only the elite in the twentieth century—helps trace the development of cultural hierarchy and chart the interplay between norms and the law in the process of sacralizing creative content. Part III concludes by examining the works of The Beatles, as embodied in both the musical Love and Danger Mouse’s The Grey Album, to demonstrate how modern copyright law patrols acts of cultural reproduction and semiotic disobedience. 

Part IV turns its attention to the assertion of rights. Specifically, it examines the power dynamics at play in determining how and when rights are enforced and the resulting impact that selective enforcement has on the semiotic influence of cultural content. To illustrate this point, the Article considers the unauthorized use of sound recordings by the federal government at American detention facilities at Guantanamo Bay and the conspicuous silence about the practice by the music industry. Part IV contrasts this state of affairs to the aggressive, high-profile enforcement tactics that the music industry has used to fight the scourge of individual file sharing on the Internet. In the process, we witness how copyright, and its selective enforcement, can mediate the relationship between sovereigns and their subjects. 

Finally, Part V focuses on how copyright interests are vindicated in the adjudicative process. Specifically, it charts how both the procedural and substantive aspects of copyright doctrine create hierarchies of protection and impact broader social, economic, and political rights. With respect to procedure, copyright’s seemingly innocuous registration rules create a vast disparity in the effective protections from infringement enjoyed by sophisticated versus non- sophisticated creators. Thus, procedural niceties reflect and perpetuate a broader societal project establishing cultural hierarchy and the consecration of sacred texts. With respect to substantive adjudication, Part V builds on a body of literature that has highlighted the impact that aesthetic judgments have in courts’ weighing of copyright claims. Specifically, aesthetic judgments reflect subtle, value-laden determinations about the place of creative content in our cultural hierarchy. To illustrate this point, an exegesis of two recent cases involving unauthorized send-ups of classic American novels—Gone with the Wind and The Catcher in the Rye— demonstrates how courts can abandon a rhetorical commitment to aesthetic neutrality in conducting their fair-use analyses and how implicit, but powerful, judgments about a work’s worth—in a sociopolitical context—can influence the outcomes of suits. To paraphrase George Orwell, while the law may tell us that all copyrighted works are created equal, it turns out that some are more equal than others.

DTC Genetics

Three perspectives on regulation of the direct-to-consumer (DTC) genetic testing market.

'Regulating the Use of Genetic Tests: Is Dutch Law an Example for Other Countries with Regard to DTC Genetic Testing?' by R.E. Van Hellemondt, A.C. Hendriks and M.H. Breuning in (2011) 3(1) Amsterdam Law Forum 14 notes that

Several European countries are considering the regulation of Direct-To-Consumer genetic tests via internet in order to protect the public. This paper addresses the question whether the Dutch Act on Population Screening, an internationally widely praised piece of legislation, could serve as an example for other European countries. While the Act adequately protects individuals against (potential) harmful screenings programmes, it falls short when it comes to offering protection against genetic tests offered to the public through the internet by commercial firms. The Act should therefore be amended, also to secure consistency with European legal standards. 

… a broad consensus exists among professionals in genetics that the implications of DTC genetic tests are far reaching and complex. Such testing should not be left to the free forces of the market, but should be accompanied by adequate information, and informed consent. There is – also in view of these concerns expressed by professionals – not only a need to revise the Dutch Act; it is above all important to elaborate on the emerging body of European legal standards applicable to DTC genetic screening. Offering genetic tests directly to individuals via internet raises complex legal questions that can not merely be answered by individual States. National measures can, moreover, easily be bypassed by making use of cross border constructions. Adequately protecting individuals against questionable testing kits therefore calls for international vigilance and comprehensive measures by the international community, in Europe to start with the Council of Europe and the European Union.

'Test at Your Own Risk: Your Genetic Report Card and the Direct-to-Consumer Duty to Secure Informed Consent' by Deepthy Kishore in (2010) 59(6) Emory Law Journal 1553 comments that

 On June 26, 2000, President Bill Clinton and Prime Minister Tony Blair announced that new gene sequencing techniques had accelerated the progress of the Human Genome Project; for the first time ever, scientists had completed a “rough draft” of the human genome. The announcement inspired a worldwide debate about cloning and genetic engineering, prompting both public curiosity and fierce debate about the nebulous science of predicting one’s lifespan and assessing the likelihood for developing disease. A host of companies, some of which market their services over the Internet, have since made genetic testing available directly to consumers. 

The emergence of direct-to-consumer (DTC) genetic testing raises important questions about how best to protect consumers from misinterpreting the meaning of their genetic makeup and has sparked discussion about how much and what kind of information a company should disclose to adequately warn consumers of the risks of undergoing genetic testing. Moreover, recent news events suggest that the Food and Drug Administration (FDA) will soon attempt to regulate DTC genetic testing: In May 2010, CVS drugstores and sixty thousand Walgreens drugstores suspended their plans to sell genetic test kits after the FDA announced that it would investigate DTC genetic testing companies. 

Selling access to individual genetic information has transposed the physician-patient relationship into a company-consumer context, calling for a novel examination of how consumer and patient protections overlap and where federal regulation ends and tort law begins. This Comment applies principles of products liability and informed consent to argue that tort liability, rather than greater regulation of genetic tests, is the best way to protect consumers of DTC genetic testing. It demonstrates that without professional assistance, consumers risk misinterpreting the meaning of their genetic test results and may even be driven to take drastic actions based on that information. Thus, this Comment asserts that where genetic testing services are marketed directly to consumers, the required level of disclosure should be the same as that under the doctrine of informed consent: Courts should impose a duty on companies engaged in DTC genetic testing to provide complete warnings, akin to the warnings physicians must provide patients in accordance with informed consent. The ultimate goal of the duty of disclosure proposed by this Comment is to protect and promote the autonomy of the consumer-patient.

'Genetic testing legislation in Western Europe - a fluctuating regulatory target' by Sirpa Soini in (2012) 3(2) Journal of Community Genetics 143–153  notes that

 Rapid developments of biomedical science have initiated different fora to take stand on the protection of human rights and human dignity. In front of the new genomic era with the completion of the Human Genome Project in 2003, a plethora of instruments addressing human genetic testing emerged, some looking suspiciously like legal acts. The notion of genetic exceptionalism was characteristic to the normative reactions in the legal acts, but it can be questioned how justified this is. Despite the critique on genetic exceptionalism, it is argued that in certain situations detection of a serious genetic anomaly may cause extra anxiety in a person tested, if the knowledge has a great significance also to family members. Regulative needs should depend on the context and purpose of the test. This review examines the legal framework governing the use of genetic tests in the clinical setting in Western Europe. Five countries have enacted genetic specific laws, and three have comprehensive provisions pertaining genetic testing in their biomedical legislation. Central provisions cover informed consent, autonomy and integrity of the person tested, further uses of tests results, quality requirements of the personnel and facilities involved. Moreover, contemporary challenges related to whole genome sequencing, direct-to-consumer genetic tests and insurance are briefly discussed. 

Soini concludes that

The expression ‘geneticisation’ has been used to describe a kind of a genetic hype, over-emphasis of genetic component in human life and identity based on the perception that genomic knowledge is exceptional, and determines the course of one’s life, diseases, energy levels, happiness and career. For instance, as Rothstein (2005) points out, a mutation or other impairment in DNA may rather be a symptom of a disease, instead of being a cause for it. Thus, environment along with social conditions have also a huge impact on how our genes express themselves. 

Many have argued against raising genetic data into stricter category of health data (Gostin and Hodge 1999; Laurie 2002; Rothstein 2005; Krajewska 2009). In an in-depth analysis, Gostin and Hodge (1999) argue that the hypothesis underlying genetic exceptionalism is flawed and it is not ethically and legally justified to distinct genetic data from other health data. Discrimination on other grounds may at least as devastating to a person. Clinical observations, lifestyle, family history and biometrics provide means to detect and predict a person’s current and future health. The basic rule about non-disclosure of sensitive personal data should apply here as well. Anna Krajewska has suggested that the term genetic information be replaced by the term biological information (Krajewska 2009 p. 25). Moreover, many acts stipulate the right-to-know and not-to-know about the results of genetic tests. The classic medical ethics and patient rights regimes govern the same issue, and I wonder why should there be a need for special provisions. If a person does not want to be informed of her medical condition, be it cancer diagnosis, HIV testing, or a genetic diagnosis, same approach and rules respecting the patient’s self-determination should apply. 

Despite the critique regarding genetic exceptionalism, I argue that in certain situations genetic data has elements superseding other health conditions, and may thus generate more anxiety in a person tested. This is the case particularly in serious clear conditions that have great significance for the close relatives. Indeed, the need to pay attention to the interests of the kin is acknowledged in many of the examined legislations, while some stick to strict confidentiality and deny all access of third parties to information without a consent of the person tested. 

Given the difficulty of defining the notion of ‘genetic testing’ and rapidly accumulating and sometimes also radically changing scientific knowledge, the regulatory task is not easy. Fear of eugenics is of course understandable cause for regulatory demands due to the rather recent eugenic policies in the beginning of twentieth century, and this history is clearly reflected in the regulation. However, claims of eugenics in the context of contemporary genetics seem to lack profound reasoning about the concept and its meaning (Harper 2008, p. 405-427). The purpose of today’s medical genetics is to alleviate individual suffering which is rather distinct from a coercive state policies targeted against certain groups and populations (WHO 2003, p. 10). 

Genetic testing should, as any other healthcare measures, be of appropriate quality and utility. Clinical validity and utility of the research findings shall be held important before consideration of their clinical application (PGH Foundation 2010). This would also need improvement of legislation in this field, as currently research is strictly regulated in Europe, but introduction of genetic tests into clinical practice lack sufficient control. However, some balancing will be needed as a strict scrutiny would raise costs and delay introduction of tests in practice (Cassiman 2011). Appropriate mechanisms for approval of tests for clinical purposes and quality assurance for laboratories and personnel should take place along with oversight mechanisms. Still, regulation should not be too detailed to be flexible in the course of scientific progress. The approach adopted in the Austrian, German and Swiss legislation to leave assessment of the state-of-the-art to an independent multidisciplinary committee established by law seems to provide an evolutionary and responsive mechanism in front of rapidly developing science. 

The role of the regulation can be seen as to facilitate practises and secure community interests by setting appropriate conditions and providing a structured framework for the activities in the field of genetics (Morgan and Yeung 2007, p. 4-7). Thus, it serves to provide public confidence. 

Asymmetry on information regarding genetic information both among lay people and general practitioners should be given a due regard. This goal is mentioned, for instance in the OECD Guidelines (2007). Use of a parliamentary normative process is likely to ensure the democratic decision making that reflects national attitudes and values. It could be enhanced by deliberative democracy by involving citizens to open discourse at the early stage of the normative process. If norms are developed outside the democratic process, for instance, in the expert instances, the process is not necessarily transparent, the values may not meet those of the citizens, and consequently, they may not be welcomed. Awareness raising and accurate information are crucial for maintaining public trust in science in general and genetics in particular. Approval of genetic applications is hence also a matter of reception.

Monsters and others

From Steve Dow's critique of Prime Minister Gillard's stance on the marriage of 'other' people, ie the maintenance of a civil disability on same-sex couples

Gillard reiterated her opposition to same-sex couples tying the knot, saying "we should find other ways of recognising the value of other relationships".

The Prime Minister's use of ''other'' is telling. A trained lawyer who idolises teachers now as she did when young, she must surely be aware of the implication of her language. 

Otherness has been applied to gender, race, religion, class, political ideology, place of birth: psychoanalysts to feminists to postmodernists have theorised ''the other'' as a label by which those in power relegate another group, sometimes but not always a minority, as not belonging, as inferior.

Gay men and lesbians, in particular, continue to be subjected to a load of othering. When her leader labelled ''other'' the likes of Wong's long-term relationship with her partner Sophie Allouache - who gave birth to the couple's daughter, Alexandra, last December - what must have run through the Finance Minister's head?

Might she have been tempted to respond, as she did to applause on the Q&A program in May, "I know what my family is worth"?

… It takes my breath away that Gillard can be proud her speech attacking the Opposition Leader for misogyny has had an international impact, but be unable to explain her internationally isolated moral blind spot, in the developed world at least, on a policy that causes violence to the psyche of her same-sex attracted constituents. A policy that says: you are inferior, you don't belong. 

If Gillard takes pride in Australia's international standing, consider this: by developed-nation standards we're starting to look stupid, a bigoted backwater. Same-sex marriage is legal in an increasing number of countries, among them Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden. Sure, there are ''other'' forms of recognition of ''other'' relationships: there are same-sex civil unions or registered partnership schemes in, among other countries, France, Germany, New Zealand (from where my partner hails) and Switzerland. 

But on a national level, we don't even have an equivalent to those civil schemes yet. And separate is not equal, hence several of these countries are upgrading their gays and lesbians: England and Wales, for instance, will likely have same-sex civil marriage by 2015. Our Kiwi neighbours across the ditch will get there before we do.

A different perspective on norms, boundaries and otherness is provided in 'Making Monsters: The Polygraph, the Plethysmograph, and Other Practices for the Performance of Abnormal Sexuality' by Andrew Balmer Ralph Sandland in 39(4) Journal of Law and Society (2012) 593-615

 This article addresses the use of the polygraph, penile plethysmograph, and other practices for the management of sexual offenders as part of the ‘Containment Approach’, a strategy increasingly common in the United States which is, in part, being trialled in the United Kingdom. The polygraph has a tangled history with abnormal sexuality, as we describe in the context of homosexuality in the 1960s. We examine how these strategies target sex offenders as malleable in regard to sexual performances but also, through notions of risk management, paradoxically constitute offenders as fundamentally incurable and thus permanently risky. Using Foucault's notion of the ‘abnormal’, we investigate the implications of this risk management/ performance paradox. We conclude that it reveals a certain anxiety about the relationship between abnormal and normal sexual behaviour in contemporary sex‐offender management discourse, which can help explain the emergence of these practices.

'US, EU & UK Employment Vetting as Strategy for Preventing Convicted Sex Offenders from Gaining Access to Children' by James Jacobs & Dimitra Blitsa in European Journal on Crime, Criminal Law & Criminal Justice (Forthcoming) notes that

 Fear and anxiety about sexual predators who target children has stimulated legal initiatives in the US, EU and UK to encourage/require background screening for public and private sector job applicants and volunteers for positions that afford access to children. This Article examines the political, legal and logistical challenges that such initiatives have and are facing in three important legal regimes. 

The authors comment that

Horrific sex crimes against children in the US, continental Europe and the UK have led to extensive legislative and administrative efforts to prevent convicted sex offenders from committing future crimes against children. One of the most important preventative strategies has been to disqualify previously convicted sex offenders from holding jobs and volunteer positions affording close contact with children. Political reality makes it very difficult to reject this strategy, at least in principle. 

The US policy is much simpler than the EU’s or the UK’s. Federal and state online sex offender registers allow any member of the public to identify convicted sex offenders who live anywhere in the US. All employers (not just those providing children’s services) can search court and other public records for current and prospective employees’ past convictions. Certain child services employers are required by federal or state law to conduct criminal background checks. Except for some state laws that prohibit convicted sex offenders from occupying certain occupations and positions, employers and volunteer organisations can decide for themselves which (not only sexual) convictions render a job applicant or employee unsuitable for certain positions. Employers prefer this regime because it gives them control over hiring and allows them to take steps they think necessary to avoid potential civil liability caused by employees who injure a client, customer or fellow employee. The disadvantage from the continental European perspective is that it violates the convicted person’s privacy and hinders rehabilitation. 

The EU, although committed to the confidentiality of criminal records, is encouraging Member States to commit to pre-employment sex offender vetting, while pursuing its long-term goal of better criminal record information sharing. The EU has sought to ensure: 1) that convicted sex offenders may be identified and barred from working with children, and 2) that child sex offence convictions in any EU Member State should be accessible to employers working with children in every Member State. Progress towards these goals has been slow, but steady. Many legal, practical and political obstacles remain. The UK is the EU Member State that has gone furthest in trying to implement such a regime. A public body is responsible for determining which positions should be closed to sex offenders. Employers and volunteer organisations have a duty to check the criminal background of those applying for positions affording close contact with children. Employers and volunteer organisations are prohibited from hiring individuals barred from working with children. 

There is good reason to believe that current employment vetting regimes are going to continue evolving. Every employment vetting scheme faces tough policy choices. Which convictions should be disqualifying and for how long? How much access to children should render a job or volunteer position subject to vetting? Should only sex offence convictions be disqualifying? What about pending charges? What about police intelligence? Should only convictions for prior sex crimes against children be disqualifying? Should a prior sex crime conviction against an adult victim disqualify the perpetrator from later working with children? What about non-sex crimes against children? And what about drug trafficking? 

Is it likely that a fully established employment vetting scheme will remain limited to protecting children? Should it be? The US and the UK have already expanded their employment vetting schemes to cover positions affording close contact with other vulnerable groups, e.g. the elderly and the handicapped. There is inexorable pressure to extend employment vetting to more professions, occupations and positions. Should persons who have been convicted of fraud be screened from working as financial advisers? Should persons who have been convicted of drunk driving be disqualified from driving school buses or piloting aeroplanes? 

Finally, the logic of employment vetting scheme should lead to vetting job seekers’ convictions in foreign countries. A day care job applicant previously convicted of sexually abusing a child in an Asian country should be of as much concern to a US, UK, or EU employer as a job applicant with a similar conviction in the home jurisdiction. In the future, because information technology will make foreign convictions much more accessible, we should expect steady pressure to expand employment vetting to foreign convictions. However, this will require solutions to very difficult legal and logistical problems.