Administration

‘Complete Independence’ of National Data Protection Supervisory Authorities - Second Try: Comments on the Judgment of the CJEU of 16 October 2012, C-614/10 (European Commission v. Austria), with Due Regard to its Previous Judgment of 9 March 2010, C-518/07 (European Commission v. Germany)' by Alexander Balthasar in (2013 9(3) Utrecht Law Review 26 comments

 In 2010, the Court of Justice of the European Union (CJEU) delivered a landmark judgment concerning the requirements of the ‘complete independence’ of national data protection supervisory authorities (Commission v. Germany, C-518/07). Two and a half years later, the Court has taken a far more moderate view when assessing the level of independence of the Austrian Data Protection Commission (Commission v. Austria, C-614/10). For the author, who had criticized the previous judgment, the more recent one is a major step forward – towards a fair balance to be struck between the necessary independence of these authorities and the likewise necessary coherence of general State organization, State responsibility and State budget. The more recent judgment is also more in line with a) the wording of Article 8(3) of the EU Charter of Fundamental Rights, b) the level of independence enjoyed by the European Data Protection Supervisor (EDPS), the French Commission nationale de l’informatique et des libertés (CNIL) and the National Human Rights Institutions (NHRI) under the ‘Paris Principles’, and c) the previous case law (Commission v. ECB). 

Nevertheless, even this more moderate level of independence required for data protection authorities seems to exceed the one deemed sufficient for the judiciary. This is highly problematic given the fact that the judiciary is not just a branch of State organization completely separated from data protection authorities but, on the contrary, is called upon to legally review the decisions of data protection authorities. 

So also Commission v. Austria will, most probably, not yet be the end of the story – the more so, because the arguments raised in both judgments in favour of ‘complete independence’ are not intrinsically linked to the issue of data protection, but are likewise applicable to all kinds of regulatory bodies or institutions with a specific remit to secure fundamental rights, and, thus, in principle with horizontal relevance.

Expression

In United Firefighters Union of Australia v Easy [2013] FCA 763 the Federal Court of Australia has held that wearing a union shirt in the workplace did not constitute industrial action within the meaning of Fair Work Act 2009 (Cth) s 19(1), if the act did not result in a restriction or limitation on the performance of the employee's work. As a result, the FCA also dismissed the allegations of the applicant that the company and its employees' conduct towards her constituted a prohibited adverse action.

NSW Property Crime Analysis

'The Great Property Crime Drop: A regional analysis' by Don Weatherburn and Jessie Holmes at BOCSAR [PDF] considers "regional variation between parts of NSW in the rate at which theft and robbery offences have fallen".

The authors calculated percentage changes in rates of offending in robbery and various categories of theft were calculated for the period 2000 to 2012. Changes in the extent to which rates of crime across areas have become more similar were quantified by comparing the standard deviation in crime rates across areas in 2000 to the standard deviation in crime rates in 2012. Product moment calculations were used to measure (a) the extent to which areas with high crime rates in 2000 also had high crime rates in 2012 and (b) the extent to which areas with the highest crime rates in 2000 had the largest falls in crime in 2012.

They comment that

Between 2000 and 2012, New South Wales (NSW), along with most other Australian States and Territories, experienced a remarkable fall in theft and robbery offences. Figure 1 shows the annual rate of these two types of offence for 2000 and 2012. Over this period the robbery rate fell 66.5 per cent while the theft rate fell 54.8 per cent. Rates of these two categories of recorded crime in NSW are now the lowest they have been since 1995. The fall in theft and robbery is not specific to any particular kind of theft or robbery offence. As can be seen from Table 1, there have been substantial reductions across the State in all the major categories of robbery and theft. While the overall decline in theft and robbery over the long term is welcome news, not all communities throughout NSW have benefited equally from the fall in these crimes. The variation in crime trends across the State is quite substantial. In some areas, rates of theft have actually increased.

They conclude that

the fall in property crime and robbery across NSW between 2000 and 2012 has been very uneven; being much larger in Sydney and other urban areas than in rural areas. The fall in theft offence rates ranges from 62 per cent in the Sydney Statistical Division (SD) to 5.9 per cent in the Northern SD. Similarly, the fall in robbery rates ranges from 70.8 per cent in the Sydney SD to 21.9 per cent in the Northern SD. In some areas some offences actually increased. The Murray, Northern, Murrumbidgee, North Western, Hunter and Central West SDs, for example, all experienced an increase in steal from a retail store. ... State Plan performance measures for improvements in public safety should take into account regional changes in rates of offending as well as changes in the overall volume of offending. ... The fall in theft and robbery in NSW (and other Australian States and Territories) over the last 13 years has been remarkable. The NSW theft rate in 2012 was less than half what it was in 2000. The robbery rate in 2012 was less than a third of what it was in 2000. Sydney and other urban areas, however, have benefited much more from this fall in crime than rural NSW. In some rural areas, rates of theft have actually increased. These findings raise two questions: 1) What caused the fall in property crime and robbery? and 2) why has the fall been more pronounced in urban NSW areas than in regional ones?

In the two decades prior to the heroin shortage, theft and robbery rates in Australia were rising rapidly (Mukherjee & Dagger 1990; Australian Bureau of Statistics 2001). The dramatic fall in theft and robbery offences from 2000 onwards was both unprecedented and unexpected. It is true that the United States and Britain experienced falls in crime around this time but the crime drop in these countries began some years earlier than in Australia and affected a much wider range of offences (US Department of Justice 2013; UK Office for National Statistics 2013). If the fall in theft and robbery offences in Australia was caused by factors within Australia, it is important to know what they were. If they can be manipulated or controlled in any way, they may provide valuable insights into the effectiveness of existing or future policies in controlling crime.

As it happens, very little research has been conducted into why theft and robbery rates have fallen in Australia. Only two studies have been conducted to date. The first, by Moffatt et al. (2005), focussed on the influence of the Australian heroin shortage on burglary and robbery in NSW. The second, by Wan et al. (2012), focussed on the effect of the NSW criminal justice system on property and violent crime, but included a measure of the influence of the heroin shortage. Some background information is necessary in order to understand the significance of the heroin shortage.

Past research has shown that dependent drug users, especially dependent heroin users, frequently commit theft and robbery offences in order to fund their drug purchases (Dobinson & Ward 1985; Hogg 1987; Stevenson & Forsythe 1998; Chilvers & Weatherburn 2003). The rise in theft and robbery rates in Australia during the 1980s and 90s coincided with falling heroin prices, increasing heroin purity and a rapid growth in heroin use (Degenhardt & Day 2004). Around Christmas 2000, the price of heroin rose by 75 per cent and the purity fell from around 70 per cent to around 30 per cent. From this point on, both heroin use and crimes known to be commonly committed by heroin users (viz. burglary and robbery) began to fall (Degenhardt & Day 2004).

Moffatt et al. (2005) recognised that heroin shortage could have affected levels of burglary and robbery but pointed out that other factors correlated with the shortage, such as increased use of imprisonment, reduced levels of unemployment or growing consumer confidence, might also have played a role. They noted that these factors continued to change in a favourable direction (along with crime) long after the primary indicator of heroin use (e.g. heroin overdoses) had stabilised (at a lower level). To test the hypothesis that the heroin shortage contributed to the fall in burglary and robbery they examined the influence of heroin use on burglary and robbery between January 1998 to December 2003, while controlling for changes in long-term unemployment, consumer confidence (a proxy for average weekly earnings) and the aggregate prison time being served by offenders.

The results revealed a strong association between crime trends and heroin use (as measured by the number of heroin overdoses) even after adjusting for the effects of long-term unemployment, consumer confidence and the aggregate prison time being served by offenders. These other factors, however, also had a significant effect on crime trends (although aggregate prison time affected burglary, not robbery). That study also found that rates of entry into drug treatment were significantly correlated with falling crime rates, even after adjusting for all the factors mentioned above. The research by Moffatt et al (2005), then, suggested that the drop in property crime was attributable to falling drug use, an improving economy, a tougher criminal justice system and greater access to drug treatment.

In 2012, Wan et al. (2012) published a more comprehensive study of trends in property and violent crime across 153 NSW LGAs between 1996 and 2008. Their study, like that conducted by Moffatt et al. (2005), included measures of the economy (average weekly income) and heroin use (heroin overdoses). It also included measures of the likelihood of arrest, the likelihood of imprisonment given arrest and the average prison term if sentenced to prison. As with Moffatt et al. (2005), their measure of heroin use remained strongly associated with the fall in crime even after adjusting for the effects of changes in income, the risk of arrest, the risk of imprisonment and the length of the average prison term. All these other factors except the last, however, were also significantly associated with the fall in property crime. The research by Moffatt et al. (2005) and Wan et al. (2012) has yielded some important insights into the fall in theft and robbery in NSW but much work remains to be done before our understanding of the fall in NSW or, indeed, across Australia, is complete. No-one has yet examined the contribution of changes in the number of people in the peak offender-prone age bracket (16-24 years), changes in vehicle and household security, changes in the market for stolen goods (Fitzgerald & Poynton 2011) or changes in police tactics and resources, although any or all of these factors might have influenced crime. Nor has anyone tested the possible effect of changes in abortion laws or falling lead levels, both of which have been cited as possible causes of the long-term fall in crime in the United States and both of which have been the focus (in that country) of considerable research (Levitt 2004; Nevin 2007).

This makes it difficult to answer the question of why the fall in theft and robbery in NSW was much more pronounced in urban than in rural areas. The correlations reported earlier show that the size of the fall in crime in a given area was (for most offences) not strongly related to the rate of that crime in that area in 2000. This rules out any explanation based on regression to the mean. It would be interesting to know whether the regional pattern in the size of the crime drop observed in NSW is mirrored in other States and Territories. Unfortunately, the Australian Bureau of Statistics does not publish any regional breakdown of national crime data. It is therefore impossible to determine whether the regional pattern observed in NSW is due to a State-specific set of factors, factors impacting the country as a whole or some combination of the two.

Some of the factors identified as contributing to the general drop in theft and robbery may have had effects that were more pronounced in urban areas than in regional areas. The growth in average weekly earnings is an example. In terms of State-specific factors, it is worth noting that the major markets for heroin in NSW at the time of the heroin shortage were Kings Cross, Cabramatta and Redfern (Degenhardt & Day 2004). If the reduction in theft and robbery is partly attributable to the fall in heroin use and if heroin users commit crime in areas close to where they purchase heroin, we would expect the reduction in theft and robbery to be larger in the Sydney SD than elsewhere. This prediction is broadly supported by the data in Figures 6 to 17.

Nagoya Protocol and National Indigenous Cultural Authority

The National Congress of Australia's First Peoples - an Indigenous advocacy group - has released The Call for a National Indigenous Cultural Authority [PDF], calling for recognition of the Nagoya Protocol and establishment of a National Indigenous Cultural Authority (NICA).

The Nagoya Protocol is promoted as

 a new international standard for using Genetic Resources and associated Traditional Knowledge. It will be important for Australian and international users of Australian Genetic Resources to demonstrate compliance with Australian law, and therefore, compliance with the Nagoya Protocol. A National Indigenous Cultural Authority should be part of the implementation framework, to facilitate and assist collaborations with Aboriginal and Torres Strait Islander Peoples. 

The Congress recommends the Australian Government take the following steps to establish a NICA, implement the Nagoya Protocol and recognise Indigenous Cultural Intellectual Property rights:

The establishment of a National Indigenous Cultural Authority 

1. Prioritise the establishment of a National Indigenous Cultural Authority to cover the holistic definition of Indigenous Cultural Intellectual Property, in Australia’s National Cultural Policy and a Nagoya Protocol Implementation Plan; 

2. Appoint an Aboriginal and Torres Strait Islander Steering Committee to oversee the National Indigenous Cultural Authority project, working in partnership with a Government Inter‐Departmental Committee for Indigenous Cultural Intellectual Property and the Indigenous Advisory Committee under the Environmental Protection and Biodiversity Conservation Act and the Aboriginal and Torres Strait Islander Arts Board’s National Indigenous Reference Group; and

3. Fund development of a National Indigenous Cultural Authority through research, a business case, a public awareness campaign and national consultations. 

The implementation of the Nagoya Protocol 

4. Develop a timeframe for ratification of the Nagoya Protocol and an Implementation Plan to ensure all Australian laws, policies and practices are consistent with the Nagoya Protocol; 

5. Amend the Nationally consistent approach for access to and the utilisation of Australia’s native genetic and biochemical resources Principles 7 and 11 to be consistent with the Nagoya Protocol and the principle of free, prior and informed consent; 

6. Create a new offence under the Environmental Protection and Biodiversity Conservation Act to give effect to Article 15 and 16 of the Nagoya Protocol; and 

7. Propose that the following responsibilities under the Nagoya Protocol are included in the mandate of a National Indigenous Cultural Authority:

a. Act as National Focal Point under Article 13 of the Nagoya Protocol for Article 8(j) of the Convention on Biological Diversity to ensure Aboriginal and Torres Strait Islander interests in Indigenous Cultural Intellectual Property are represented to Access Parties, Competent National Authorities, National Checkpoints and the Convention on Biological Diversity secretariat; 

b. Act as National Checkpoint under Article 17 of the Nagoya Protocol to track and register Indigenous Cultural Intellectual Property interests and promote best practice protocols, working in collaboration with other National Checkpoints that have industry‐specific expertise and/or authority to penalise non‐compliance; 

c. Contribute to the Clearing House Mechanism under Article 14 of the Nagoya Protocol by promulgating Australian practices and processes for working with Indigenous Cultural Intellectual Property to prospective international users and facilitating relationships between international users and ICIP holders; 

d. Set national standards relating to the use of Genetic Resources and associated Traditional Knowledge for rights‐holders and stakeholders; 

e. Assist with enforcement, access to legal advice and dispute resolution processes under any offence provisions created in the Environmental Protection and Biodiversity Conservation Act; 

f. Develop a labelling system for authorised uses of Indigenous Cultural Intellectual Property and issue certificates of compliance; and 

g. Promote the observance of Aboriginal and Torres Strait Islander customary laws and community protocols regarding the use of Indigenous Cultural Intellectual Property under Article 12.1. 

The Recognition and Protection of Indigenous Cultural Intellectual Property 

8. Work with a National Indigenous Cultural Authority (NICA) and Congress to develop a National Plan for the Legislative Recognition of Indigenous Cultural Intellectual Property (ICIP) rights that includes extensive national consultations on the form and content of ICIP rights and the role of a NICA in the promotion and protection of ICIP rights.

Copyright and Computer Generated Works

'Curing the Authorless Void: Protecting Computer-Generated Works Following IceTV and Phone Directories' by Jani McCutcheon in (2013) 37 Melbourne University Law Review 46 [PDF]

builds on the author’s recent article ‘The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law’. That article explained how recent Australian case law has seriously undermined copyright protection for works which are substantially shaped by software such that they lack a human author. The article argued that such works, if otherwise original, should not be denied copyright protection solely because they are computer-generated. 

This article thoroughly examines and evaluates three possible reform options: (1) deeming authorship of computer-generated works; (2) classifying computer-generated materials as subject matter other than works; and (3) sui generis protection. This article will also explore the sometimes difficult issues these options generate.

McCutcheon concludes -

Part 1 addressed the arguments for protecting CGM which, but for the lack of human authorship, would have been protected as a copyright work under the Act. Being ‘otherwise original works’, these creations meet all copyright subsistence criteria other than authorship. Originality does not necessarily eliminate the potentially adverse effects of copyright protection, however, it tends to minimise them. To the extent that copyright protection for otherwise original CGM may have adverse effects, this applies to all works. Protection of such ‘nearly copyright’ works is best achieved under Option 1, since it cures the central defect — it supplies an author where one is missing. While there may be issues of interpretation of the reform provisions, there are no major obstacles to this reform option. Further, other jurisdictions have effectuated this reform model with no apparent adverse outcomes. The growing jurisprudence on the interpretation of substantially identical provisions in neighbouring common law jurisdictions can be usefully monitored. There is also useful judicial interpretation of similar statutory wording in the context of film and sound recording authorship. 

Part 1 did not engage comprehensively with the policy and other issues that surround protection for unoriginal CGM. Options 2 and 3 extend protection beyond the ‘otherwise original material’ examined in Part 1, to unoriginal material which may, or may not, merit protection. As such, they raise a plethora of issues which require further, and more careful, deliberation. However, that should not prevent early protection of the otherwise original authorless works examined in Part 1. Indeed, there are compelling arguments for separately protecting merely authorless works in Part III of the Act, and authorless and unoriginal works through some other mechanism — just as original and unoriginal material is currently divided between Parts III and IV of the Act.

FTC and US Privacy Regulation

The US Federal Trade Commission (FTC) provides a benchmark for action by Australia's privacy commissioners and the Australian Competition & Consumer Commission (ACCC). It also provides a lens for understanding the US privacy regime.

'The FTC and the New Common Law of Privacy' by Daniel J. Solove and Woodrow Hartzog is an innovative and important article that  comments -

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite more than fifteen years of FTC enforcement, there is no meaningful body of judicial decisions to show for it. The cases have nearly all resulted in settlement agreements. Nevertheless, companies look to these agreements to guide their privacy practices. Thus, in practice, FTC privacy jurisprudence has become the broadest and most influential regulating force on information privacy in the United States – more so than nearly any privacy statute and any common law tort.

In this article, we contend that the FTC’s privacy jurisprudence is the functional equivalent to a body of common law, and we examine it as such. We explore how and why the FTC, and not contract law, came to dominate the enforcement of privacy policies. A common view of the FTC’s privacy jurisprudence is that it is thin, merely focusing on enforcing privacy promises. In contrast, a deeper look at the principles that emerge from FTC privacy “common law” demonstrates that the FTC’s privacy jurisprudence is quite thick. The FTC has codified certain norms and best practices and has developed some baseline privacy protections. Standards have become so specific they resemble rules. We contend that the foundations exist to develop this “common law” into a robust privacy regulatory regime, one that focuses on consumer expectations of privacy, that extends far beyond privacy policies, and that involves a full suite of substantive rules that exist independently from a company’s privacy representations. ...

The landscape of United States privacy law has been gap-riddled and often confounding. Self-regulation has reigned supreme over many industries. And yet, the FTC has risen to act as a kind of data protection authority in the United States. Despite having limited jurisdiction and limited resources, the FTC has created a body of common law doctrines through complaints, consent decrees, and various reports and other materials. The FTC’s jurisprudence has developed in some classic common law patterns, evolving from general to more specific standards, gradually incorporating more qualitative judgments, imposing certain default standards, and broadening liability by recognizing contributory liability.

In the future, the FTC can be even bolder. The FTC has built a foundation from which it can push more toward focusing on consumer expectations than on broken promises, move beyond the four corners of privacy policies into design elements and other facets of a company’s relationship with consumers, and develop and establish even more substantive standards.

Through a gradual process akin to the common law, the FTC has developed a federal body of privacy law, the closest thing the United States has to omnibus privacy regulation. Unlike the top-down approach of the European Union and many countries around the world, the FTC’s approach has been bottom-up – a series of small steps. Because of these modest movements, and the fact that the FTC’s privacy doctrines haven’t been developed in judicial decisions, they have been largely ignored by the legal academy and are also often underappreciated in the United States and abroad.

Taking stock of what the FTC has been doing, the doctrines it is developing, and the potential future directions it can take, reveals that the FTC at least deserves greater study and appreciation. The FTC is far more than a rubber stamp on self-regulation, and far more than a mere enforcer against broken promises. This article is hopefully the start of a more sustained examination of the FTC and the body of law it has developed and the future directions that law can take.

The authors note that

Because so many companies fall outside of specific sectoral privacy laws, the FTC is in many cases the primary source of regulation. FTC regulation is thus the largest and arguably the most important component of the U.S. privacy regulatory system. Despite this fact, there is surprisingly little scholarship about the FTC’s privacy regulation. The dearth of scholarship about the FTC stands in stark contrast to the enormous amount of scholarship about information privacy law. Why is the scholarship so disproportionate to the influence and importance of the FTC?

The most likely reason is that the FTC actions have nearly all ended in settlements rather than case law. This, too, is a curiosity in privacy law. Perhaps the single most important and widely-applying body of precedent that regulates privacy in the U.S. is not in the form of any traditional kind of privacy law, such as cases or statutes.

Another curiosity is privacy exceptionalism -- privacy policies began as stand-alone documents and are only just recently beginning to be incorporated into a website’s terms of use. Why is privacy separate from the rest of the terms? This curiosity becomes even more odd when coupled with an additional curiosity – the fact that contract law has barely played a role in governing civil disputes regarding privacy policy violations. Although privacy policies look like contracts, there are hardly even a handful of cases attempting to enforce privacy policies as contracts. In contrast, terms of use are clearly the province of contract law. Of course, both the FTC and contract law can regulate simultaneously, but why has privacy become so exclusively the province of the FTC? Moreover, the doctrines developed by the FTC sometimes are parallel with contract law but are not always. This body of doctrines is thus somewhat unique, a body of “law” unto itself. It is a new species that has yet to be classified in the legal taxonomy.

The result of all these oddities is that such a large domain of the U.S. privacy regulatory framework primarily consists of a relatively obscure body of doctrines that scholars have not analyzed in depth. Thus, it is often hard to characterize precisely what this large domain of regulation is, what precisely it says when viewed altogether, and where it is heading.

Packaging

'Australia's Plain Packaging of Tobacco Products: Science and Health Measures in International Economic Law' by Andrew Higgins, Andrew D. Mitchell and James Munro in Science and Technology in International Economic Law: Balancing Competing Interests (Routledge, 2013) edited by Bryan Mercurio and Kuei-Jung Ni comments that

Australia’s introduction of plain packaging of cigarettes, which is a world first, has prompted international legal challenges under both the World Trade Organization (WTO) and the bilateral investment treaty between Australia and Hong Kong. These international legal challenges raise questions as to how scientific evidence used to justify public health measures is, or should be, treated in international economic law. For instance, what is the significance of uncertainty or gaps in scientific knowledge? How should a tribunal or panel treat divergent scientific opinions? What quantity and quality of scientific evidence is required to establish a causal connection between a measure and its objectives under the applicable standard of proof? Certain features of Australia’s plain packaging laws make these questions particularly pertinent: they will be operating amongst a suite of other measures directed at the same objective; they will be implemented in a context where external social forces may seek to undermine their impact; and this is the first time they have been tried anywhere in the world. These factors make it difficult to measure their effectiveness in the real world with precision. However, despite these difficulties, we find that both, investor-State tribunals and WTO panels and the Appellate Body have demonstrated a welcome degree of flexibility in how they approach scientific evidence. That said, a number of key areas of uncertainty remain in international economic law, and the disputes over plain packaging could play an important role in bringing clarity to those areas.