Plagiarism

The New York Times features an article on controversy about potential expulsion of Eric K. Noji from the US National Academy of Medicine.

 Here is how Dr. Noji’s work is described on one of his LinkedIn pages: “So much has been said and written about the life and work of Eric Noji, a story so mythic in its epic sweep and inspirational in its chronology of service and unrelenting self-sacrifice on behalf of those who suffer that it is difficult to summarize.” Dr. Noji also, until recently, listed impressive honors: the Ordre des Palmes Academiques, presented by President Hollande of France; nomination to the Royal College of Physicians of London; the Antarctica Medal of Honor for Scientific Exploration; and an M.B.A. from Stanford. 

But the French never bestowed that award on Dr. Noji. The Royal College didn’t nominate him. There is no such prize as the Antarctica Medal of Honor for Scientific Exploration. Stanford Business School says it has no record of his existence. And some of his papers plus a book chapter were copied from former colleagues at the Centers for Disease Control and Prevention and the Agency for International Development, according to a complaint filed with the academy by Dr. Arthur Kellermann, dean of the nation’s military medical school. 

It's an echo of inventions such as that noted here, here and here ... and the debunking of CV creativity involving IT executive Jeff Papows

So he's not an orphan, his parents are alive and well. 

He wasn't a Marine Corps captain, he was a lieutenant. 

He didn't save a buddy by throwing a live grenade out of a trench. 

He didn't burst an eardrum when ejecting from a Phantom F4, which didn't crash, not killing his co-pilot. 

He's not a tae kwon do black belt, and he doesn't have a PhD from Pepperdine University.

Domains and Squatters

The AIC research report by Tony Krone and Russell Smith on Criminal misuse of the Domain Name System comments

The DNS is a naming system for resources, such as personal computers or other devices, that connect to the internet via the World Wide Web. It coordinates internet addresses and domain names—the two kinds of unique identifiers that make internet connection possible. The study was funded by the auDA Foundation, which was established by the .au Domain Administration (auDA), the policy authority and industry self-regulatory body for the .au domain space in Australia. The aim was to support the objective of the Foundation by ‘promoting and encouraging educational and research activities that will enhance the utility of the Internet for the benefit of the Australian community’ (auDA Foundation 2015).

Methodology

Public source, non-technical literature was comprehensively reviewed to identify instances of DNS misuse, the risks that led to the commission of these instances, and the crime prevention and regulatory measures available to address the problem. The study was particularly focused on exploring existing legal and criminological frameworks that could be used to conceptualise the problem of DNS misuse and provide a framework for developing effective control strategies.

The literature review was international and examined English-language resources including academic sources, legal databases and relevant policy documents. The review primarily focused on the risks of misuse of the DNS from an Australian perspective although, due to the global nature of the internet, all legitimate users would benefit in many ways from a more secure and trusted domain name system, both as domain name owners and consumers.

Scope

The results address current identified risks, but they could also inform further and more detailed cross-disciplinary research into the nature of the problem and appropriate solutions. The research was not intended to be an overly technical examination of the problem and does not address the architectural or programming features of particular examples of misuse. Rather, it explores the issue from a policy perspective that will be beneficial in devising appropriate legal and policy responses.

The research looks at the connections that exist between various forms of misuse and DNS governance. The discussion explores the internet as a network of networks based on an addressing system known as the Internet Protocol (IPv4 and IPv6), which creates IP addresses for resources within the DNS and is focused on what might be called the ‘open web’ or the World Wide Web (the public internet) most users commonly access when using the DNS. Resources which are accessed via the public internet, but located behind a barrier such as a paywall or an account login for hosted services, are included in the research. These hosted resources are from the DNS core and so are not directly subject to DNS regulation, but rather are immediately subject to any regulation the host imposes or any conditions imposed on the hosting service. Regulation at the level of a hosting service varies, and debate about whether service providers are responsible for the online activities of those who use their services continues. The report deals briefly with resources that are essentially invisible to or hidden from the open internet, or that cannot be accessed directly from the public internet. While these parts of the internet present the majority of regulatory challenges and are of significant concern for law enforcement, they are not analysed in detail in this report as they are too far removed from the limited scope of regulation through the operation and governance of the DNS.

Research questions

These questions formed the basis of the current research.

• What is the DNS and how does it operate within the framework of internet governance?

• How has the DNS been misused for criminal purposes?

• What is known about perpetrators of DNS misuse? That is: –– What are their motivations and what benefits did they obtain? –– What are their countries of origin? –– Do they operate alone or with others? –– Why did they select the targeted domain name? –– How have instances of DNS misuse been dealt with and what were the outcomes of any investigations?

• What crime prevention strategies do domain name owners, DNS server owners and registrars currently use to prevent DNS misuse?

• What other crime reduction strategies could be implemented to prevent misuse of the DNS?

Findings

Background

This section explains the internet’s development and operation and reviews the environment in which criminal misuse of the DNS has emerged. It explains the internet’s infrastructure and discusses the operation and governance of the DNS, highlights weaknesses in the regulatory framework that increase the potential for misuse, and identifies the strengths that may help prevent misuse. The internet’s nature and its governance structures result in weak regulatory responses to misuse of the DNS.

Criminal misuse of the DNS

This section explores criminal misuse of the DNS by firstly considering illegal acts that do not amount to cybercrime offences, including property offences like the theft of hardware and domain names, and, secondly, misuse that falls within the general classification of cybercrime. It presents a tentative analytical model that relates forms of misuse to particular aspects of the DNS, namely to:

• the DNS architecture;

• domain names (or domains);

• domains as virtual spaces; and

• other layers at some remove from the DNS.

This model helps to explain misuse occurring within the architecture of the internet (software engineering) as well as misuse facilitated through human interaction (social engineering). The section then examines opportunities for misuse in terms of the DNS’ primary purpose, which is to overcome restrictions created by the internal architecture of the early internet. This misuse concerns how machines use internet addressing to make connections between resources. Misuse through software engineering is further classified according to whether the DNS is itself the target of misuse or is used to facilitate other offending; facilitating other offending may involve misusing the DNS as a mechanism to do harm, a vector to transmit harm or a platform from which to commit harm.

The outward appearance and presentation of internet for human users is then considered. A division can be drawn between misuse intended to manipulate machines through software engineering and misuse intended to manipulate people through social engineering. To distinguish between abuses of the DNS and abuses that exploit applications layered above the DNS, DNS misuse may also be categorised according to the architecture of the internet. This helps identify who could potentially prevent misuse and potential points for regulatory intervention.

Perpetrators of misuse

The many and varied forms of DNS misuse identified in this study make it difficult to describe a typical offender or criminal justice response, particularly given the absence of criminological research in this area. The limited research so far conducted has found a high incidence of organised crime activity. This often involves loose groups of people, usually young men with limited technical abilities who rely on online guidance. Perpetrator profiles also differ according to the extent of the perpetrator’s involvement in the darkweb. There is limited evidence to indicate where those misusing the DNS are located.

Legal responses to DNS misuse

Although some instances of misuse can be addressed through the criminal justice system, there are many impediments to harnessing the criminal courts as a regulatory response. Few conventional crime categories are relevant apart from, arguably, some property crime offices such as theft of domain names, or the criminal infringement of intellectual property rights. Of greater relevance are specific offences created under cybercrime legislation that governs unauthorised access to networks, data interference and acts of online dishonesty associated with domain name misuse. There are also criminal offences arising from social engineering, including identity misuse, misleading and deceptive conduct, and fraud. To date, these have not been used due to problems of evidence and proof, jurisdiction, and the limits of law enforcement resources in identifying suspects, seeking mutual legal assistance and mounting prosecutions. Over time, as the jurisprudence of DNS criminality develops, criminal proceedings may be more successful. Whether this would deter criminals from committing DNS crime remains conjectural.

In addition to criminal justice responses to DNS misuse, there are a number of avenues for redress through the use of the civil laws relating to obligations and intellectual property. ‘Webjacking’, and disputes about the registration of domain names that could lead to legal action about ‘cybersquatting’ or ‘domain name squatting’, can be resolved by taking action under the Uniform Domain-Name Dispute-Resolution Policy (UDRP) adopted by domain name registrars. In appropriate cases of infringement of contractual rights or intellectual property related to registered names, where economic loss can be quantified and proved, civil action can be taken in relation. Where business interests are at stake, injunctive relief can also be useful.

Preventing misuse of the DNS

A number of environmental crime prevention strategies could be used to reduce the harms associated with DNS misuse, including routine activities theory, crime pattern theory and rational choice theory. Crime prevention is considered by reference to various regulatory touchpoints within DNS regulation. Importantly, these regulatory touchpoints often lie outside the scope of national laws, which creates opportunities for exploiting regulatory weaknesses for criminal purposes. Some strategies to reduce the risk of DNS abuse include:

• enhancing identification checks when registering domain names;

• using Domain Name System Security Extensions;

• making DNS abuse less profitable by coordinating reporting mechanisms and controlling online profit centres;

• neutralising offender rationalisations; and

• improving user education on the risks of DNS misuse.

Conclusions

The DNS is fundamental to the functioning of the internet, and its potential for misuse is one of the most important legal and regulatory challenges facing internet governance in the years ahead. A failure of the DNS would impede machine-to-machine communication, and make it difficult for users to navigate the internet.

However, the capacity to regulate possible misuse of the DNS is limited. While the DNS requires centralised authority, no single global entity is responsible for the regulation of all its aspects. This is because regulation of the DNS, like other aspects of the internet, occurs under a multistakeholder model of governance and a distributed administration model. It is also a result of the fact that much of what happens on the internet is beyond the jurisdictional reach of the criminal law of individual nations.

Nonetheless, regulating DNS registration and addressing the security weaknesses of internet architecture would provide some limited means of controlling the environment to prevent criminal misuse of the DNS and the internet. Although there will always be a place for criminal justice responses to internet abuse, in the global regulatory environment in which the DNS operates prosecution of DNS misuse will be difficult, and is likely to be reserved for the most serious and obvious infringements. As with other online crime, enacting a uniform set of policies to prevent misuse before it arises is likely to be the most effective strategy.

The 2018 WIPO report on cybersquatting  indicates that banking and finance (12% of all cases), fashion, 'internet and IT' account  for around one-third of all cybersquatting disputes handled by WIPO’s Arbitration and Mediation Center in 2017. Trade mark owners filed  3,074 cases under the Uniform Domain Name Dispute Resolution Policy (UDRP).  Cybersquatting disputes relating to new generic Top-Level Domains (New gTLDs) accounted for more than 12% of WIPO’s 2017 caseload (some 6,370 domain names.) with registrations in the  .STORE, .SITE, and .ONLINE new gTLDs,the most-commonly disputed.

WIPO Director General Francis Gurry states

By abusing trademarks in the Domain Name System, cybersquatting undermines legitimate commerce and harms consumers. This is true especially where squatters use domain names to offer counterfeit goods or for phishing, as is seen in numerous WIPO cases. The availability of the highly effective UDRP procedure is an indispensable support for the credibility of commerce on the Internet and for protection against fraudulent practices.

The US (with 920 cases filed in 2017) remained the country where most WIPO UDRP cases originated, followed by France (462), the UK (276), Germany (222) and Switzerland (143).  Complainants asserted fraud, phishing or scam in almost one-third of banking and finance-related decided cases filed in 2017.

WIPO notes that  Philip Morris leads the list of filers with 91 cases,  followed by Michelin,  Electrolux, Andrey Ternovskiy (Chatroulette), Sanofi, Zions Bank, Carrefour, Virgin, Accor,  BASF and LEGO.

Designs and the Hague Agreement

IP Australia has released an economic analysis of the costs and benefits to Australia of joining the Hague Agreement Concerning the Registration of Industrial Designs.

The report states

The report assesses the impacts with reference to the Productivity Commission’s (PC) guiding principles of effectiveness, efficiency, adaptability and accountability. This report is intended to form part of the evidence base in relation to whether Australia should join the Hague Agreement. In addition to feedback on this report, we are seeking feedback on any unquantified impacts, not limited to those acknowledged in the report, and welcome case studies and any experience users of the Hague system, or applicants for design overseas have had. Joining the Hague Agreement would enable Australian designers easier access to international markets by allowing them to file a single design application to gain protection in 68 countries and regions. Joining would also require Australia to increase its maximum term of protection for designs from 10 to 15 years, at a minimum. Both the former Advisory Council on Intellectual Property (ACIP) and the PC considered that a cost-benefit analysis should be conducted before the Australian Government decides whether to join the Hague Agreement. In their final report, the PC urged caution - advising a “wait and be convinced” approach.

Under the proposed methodology, it appears that the economic costs to Australia of joining the Hague Agreement outweigh the benefits. The net benefits to Australian applicants are outweighed by significant net costs to Australian consumers (with IP professionals and the Australian Government being subject to smaller net costs). Some costs and benefits are not as easily assessed, and were not quantified in the current analysis, but could affect the net outcome over time. The objective of providing a fertile ground for innovators that is adequately balanced with costs to consumers is an issue requiring careful and ongoing calibration. Realistically, these costs and benefits might only be assessed and quantified at a later date should Australia join the Hague Agreement. Furthermore, we acknowledge that there may be additional evidence gathered in the future which will necessitate further analysis of the potential impacts.

The results are driven by the fact that non-residents currently file almost three times more designs into Australia than resident Australians file abroad, and non-residents maintain these registrations longer on average. Based on the cost-benefit methodology adopted in this report, joining the Hague Agreement could increase this disparity. The report takes account of the fact that accession to the Hague Agreement should also make it easier for Australian residents to file abroad into multiple jurisdictions. The methodology tries to forecast the impact on Australia based on the experience of other Hague accession countries, taking the most positive and negative experiences of other accession countries and using these as the upper and lower bound of what might occur if Australia joined the Hague Agreement.

ACIP concluded that “a significant uplift in international usage would support Australia joining” the Hague Agreement. Despite the United States of America, Japan, and Republic of Korea recently joining, less than 10 per cent of global non-resident design applications were filed through the Hague Agreement in 2016. A number of countries are expected to join in the future, including the People’s Republic of China, Canada and Thailand. These accessions will impact upon any future cost-benefit analysis and may make it more beneficial for Australia to join. This report notes that under certain circumstances, Australian applicants can file design applications through the Hague Agreement already, despite Australia not being a signatory. This pathway is available to Australian applicants that have a residence or an establishment in a member country. Increased awareness of this existing avenue may hold additional benefits to Australia and designers alike.

The report argues -

Net cost to Australia of joining the Hague Agreement at present 

The net present cost to Australia is estimated to be between approximately $25 million and $124 million over ten years, with $61 million being the best estimate. Ten year impacts by stakeholder group are:

• Australian designers: a potential net benefit of approximately $0.03 million to $6 million, with a best estimate of $1.7 million. This is due to increased savings on international applications and increased profits from taking new designs overseas. 

• Australian consumers: a net cost of approximately $23 million to $114 million, with a best estimate of $58 million. This is due to income flowing overseas from Australian consumers paying higher prices to non-resident designers over a longer term of design protection. 

• Australian IP professionals: impacts estimated as between a benefit of approximately $0.3 million and a cost of $12 million, with the best estimate being a cost of $2.5 million. Australian IP professionals will receive some extra business from non-residents at the examination stage, but will likely lose more business at the filing stage as non-residents go through the Hague system. 

• Australian Government: a net cost of approximately $2.3 to $3.4 million, with a best estimate of $2.8 million. This is due to Information Technology system changes that will be required to process applications filed via the Hague Agreement. 

It concludes

We estimate there is a net cost to Australia of joining the Hague Agreement (see Tables 7.1, 7.2, and 7.3 in Appendix 4).

• The most optimistic show an annual net cost starting at just under $1m in the accession year, growing to an annual net cost of $2.5m in the tenth year. The cost over 10 years would be $25.5m in net present value terms under an average 10% annual discount rate.

• The best case show an annual net cost starting at $2.2m in the accession year, growing to an annual cost of $7.1m in the tenth year. The cost over 10 years would be $61.5m in net present value terms.

• The worst show an annual net cost starting at $3.9m in the accession year, and growing to $17.3 m in the tenth year. The cost (over 10 years) would be $123m in net present value terms.

The costs outweigh the benefits, presently

Both ACIP and the PC recommended that Australia should take a “wait and be convinced” approach to joining the Hague Agreement. Most Hague member countries considered similar to Australia) have more incoming registered designs than they do outgoing registered designs, so the benefits to using the Hague system to go overseas are small. While there are some savings to Australian applicants filing overseas, the costs to Australian consumers of the extension of term from 10 to 15 years are estimated to outweigh these benefits by a significant margin under all scenarios.

While we note that some benefits could not be quantified, we also note that there are also costs (for example, social welfare costs) that we have been unable to quantify. We particularly welcome feedback on this aspect.

Applying the PC’s suggested framework for assessing IP policy changes (effective, efficient, adaptable and accountable) we have been unable to find compelling evidence that joining the Hague Agreement would be a net benefit to Australia at the present moment.

We have been unable to find reliable evidence that a longer term of protection would be effective in stimulating additional design innovation. We have found that the efficiency benefits to Australians going overseas are outweighed by the negative income flows (and possibly also the economic inefficiency due to the unquantified social welfare costs) arising from the longer monopoly period. Locking Australia into the Hague Agreement would limit our ability to adapt our IP system in the future. And the above analysis is accountable because it seeks to provide a transparent evidentiary basis to inform a decision to join the Hague Agreement.

8.2 The Hague Agreement landscape will change

A number of countries will join the Hague Agreement in the near future, including China, Canada and Thailand.

The size of the Chinese economy and the volume of its design applications make it a candidate for a country whose accession to the Hague Agreement could represent a ‘tipping point’ that could substantially increase global usage of the Hague system. While China is by far the largest filer of designs globally, China is also Australia’s largest trading partner. Easier access for Australian designers to this significant market, facilitated by the Hague system, might tip the balance for Australia to the point where we had more outgoing applications than incoming applications, which would increase the benefits and reduce the costs to Australia of joining the Hague Agreement.

Canada’s accession is unlikely to be a tipping point in the same way as China. However, their experience could provide a valuable comparison for Australia to re-evaluate the cost and benefits in the future. Canada is similar to Australia in size and population; has a resource-dependent economy; and has a similar legal system. More importantly, Canada, like Australia, would also be moving from a 10 to 15 year design term in order to accede. Canada is set to join the Hague Agreement no earlier than 2018 based on public accounts. We are not aware of any detailed cost benefit analysis performed by Canada. Information from Canada’s experience, once they have joined, would be extremely valuable to assessing the costs and benefits to Australia.

Thailand has previously indicated its intention to join the Hague Agreement in 2015. While that timetable has been delayed, it may be expected to join at some point in the near future. Again, Thailand may provide a useful comparison for Australia when it joins: it is one of the few countries that will have to move from a 10 to 15 year term and is closely linked to many of the same regional markets as Australia.

Enforcement and a mere $999 trillion

The national Attorney-General's Department has released a consultation paper regarding recognition and enforcement of foreign judgments.

The paper states

Through the Hague Conference on Private International Law, the Australian Attorney-General’s Department (AGD) is currently engaged in negotiations on behalf of Australia for a draft Convention that is intended to establish uniform rules for the recognition and enforcement of foreign judgments in civil or commercial matters (the Hague Conference Judgments Project).

The draft Convention aims to provide parties to litigation with a simple and predictable framework that will govern how a judgment in one Contracting State (a State that signs up to the Convention) can be recognised and enforced in another Contracting State.

To inform Australia’s negotiating position, this consultation paper seeks public comment on law and policy matters raised in the draft Convention of November 2017..... The draft Convention may also be downloaded from the Hague Conference website (www.hcch.net).

AGD is seeking both general and specific comments on the proposed text of the draft Convention ahead of a fourth, and possibly final, meeting of a Hague Special Commission from 24 29 May 2018. The purpose of the Special Commission meeting is to develop an appropriate text that can be submitted to a Diplomatic Conference for final negotiations and agreement. The Special Commission, set up by the Hague Conference in 2016, has met three times over the past two years to prepare the current draft Convention.

The fourth meeting of the Special Commission will focus on a limited number of outstanding issues. This includes contentious issues such as the extent to which intellectual property and privacy should fall within the scope of the draft Convention. Some members of the Special Commission propose that matters relating to intellectual property should be excluded from the draft Convention completely, while others seek its general inclusion, or inclusion on a restricted basis (see Part 5 for further discussion on intellectual property).

Any text in the draft articles in square brackets is not yet settled. That text includes intellectual property and privacy matters. Square brackets represent proposals, alternatives and options that are the subject of ongoing consideration by members of the Hague Conference.

It is intended that a draft Convention will be put to a Diplomatic Conference of the Hague Conference for consideration and conclusion no earlier than 12 months after the final meeting of the Special Commission (on current timing that is mid-2019 at the earliest). Until it has been concluded at a Diplomatic Conference, the text in the draft Convention is not finalised.

If the draft Convention is concluded at a Diplomatic Conference of the Hague Conference, and Australia determines that it is appropriate to sign the Convention, its implementation in Australia will be subject to the usual government processes and Joint Standing Committee on Treaties processes and review. Implementation is likely to require subsequent amendments to Australian domestic legislation.

The paper features several questions -

Q1 Have you experienced any problems with seeking to recognise or enforce a foreign judgment? If so, what have the main problems been? What are the benefits for Australian parties in the recognition and enforcement of foreign judgments abroad, and what are the risks for Australian parties if foreign judgments are recognised and enforced in Australia or overseas?

Q2 Have you encountered issues and/or inconsistencies with the current regimes for recognition and enforcement of either Australian judgments in foreign countries or foreign judgments in Australia? If so, please provide details. Issues may encompass increased costs and timeframes associated with obtaining recognition and enforcement of judgments, including through duplicative proceedings in more than one jurisdiction, or an inability to obtain meaningful relief. Information on types of judgments and jurisdictions relevant to your experience is appreciated.

Q3 What are your views on the scope of the draft Convention? Are there any civil or commercial matters that are currently in scope that raise concerns? In particular, do you have any views on those matters in bracketed text, ie privacy/unauthorised public disclosure of information relating to private life; and/or intellectual property [and analogous matters]?

Q4 What are your views on the jurisdictional bases for recognition and enforcement? Do any of the currently proposed bases cause concern?

Q5 What are your views on the grounds for refusing recognition or enforcement? Do any of the currently proposed grounds cause concern?

Q6 What are your views on damages, costs and/or other provisions in the draft Convention?

Q7 Should intellectual property matters be included or excluded in the draft Convention (see Article 5(3) and Article 2, respectively)? To what extent should the circulation of intellectual property judgments be treated differently to that of other judgments under the draft Convention?

Q8 If included in the draft Convention, what are your views on the scope of intellectual property rights as currently defined/categorised?

Q9 Are the suggested discretionary safeguards in the draft convention adequate for intellectual property matters?

Q10 What are your views on the recognition and enforcement of monetary vs non-monetary judgments for infringement in intellectual property matters? Are there any other issues relating to intellectual property that should be addressed by the draft Convention?

There is a perspective on enforcement of domestic judgments in Green v Green [2018] FCWA 42, a family law dispute involving yet another 'Magna Carta' 'soverign citizen' claim that the court and state lack authority.

The judgment states

The husband contends (among other things) that this Court is not properly constituted and accordingly has no jurisdiction to hear and determine the case. Similarly, he contends that the Supreme Court of Western Australia is not properly constituted and that, accordingly, the sale orders are of no effect, being based on judgments themselves made without power. He asserts that the State of Western Australia “has never been lawfully constituted”, that “no judges and magistrates have been lawfully appointed” and that, accordingly, “no decisions of these judges and magistrates have any binding force”. 

The husband further contends that the State courts of Western Australia have no power to make orders relating to any company, as companies are subject to the exclusive legislative authority of the Federal Parliament. He argues that the City, by virtue of having an Australian Business Number, is such a company as is the State Government of Western Australia. 

He goes on to assert that he has “lawfully seized [his] property under clause 61 of Magna Carta” and that he has also “lawfully seized the [City A] offices”. He says that he served a statutory demand for $2.9 million on the City, that the City has “defaulted” and that, accordingly, the City owes him that sum. 

He states further that he has “lawfully seized on behalf of the people of Western Australia the executive government of WA and the judicature under the provisions of clause 61 of Magna Carta and hold them under the Crown”. Similarly, he states that he has “lawfully seized” the Legislative Assembly and the Legislative Council, and that he has recently served on the Premier and the State Government a “commercial lien in tort” for $999 trillion for the “stealing of the people of Western Australia’s assets and usurping authority over the people who are sovereign ”. 

On that basis, he argues that even were the Family Court of Western Australia to be properly constituted, I could not proceed to hear his case as my employment status would give rise to a conflict of interest on my part, by virtue of his claim against the State Government and his seizure of both the government and the judicature. 

For her part, the wife made various uncomplicated submissions as to the financial contributions of the parties, which the husband dismissed as a “nonsensical rant”. ...  

The husband is, to state the position as neutrally as possible, an experienced self-represented litigant. He has conducted his own proceedings before the Magistrates Court, District Court, Supreme Court of Western Australia, the Court of Appeal and the High Court. [T]he Supreme Court declared him a vexatious litigant pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002 (WA), on the basis of his persistence in instituting proceedings that had no hope of success.

Political Economy

'Law and Political Economy' (LSE Legal Studies Working Paper No 7/2018) by Michael Wilkinson and Hjalte Lokdam comments

'Law and Political Economy’ surveys recent approaches to the study of phenomena at the intersection of law, politics and the economy. These take an interdisciplinary perspective, viewing markets as fields of social power that are not spontaneous but created and reproduced in the meeting of legal norms, political action and economic activity. Through regulating economic relationships, the politico-legal order constitutes and reconstitutes the power relations that make up society. This, in turn, is driven by the formation of class, sectoral and geopolitical interests, as well as ideological convictions, which harness political and legal authority. We present these inter-related processes through exploring contemporary debates on inequality, inter-personal market relations, the relation between the state and market, and the effects of economic integration and globalisation on democracy and political self-determination.

Geospatial Information

The excellent ‘Rights in Geospatial Information: A Shifting Legal Terrain’ by Isabella Alexander and Marlena Jankowska in (2018) 41(3) Melbourne University Law Review comments

The growing significance of ‘big data’ raises new issues for copyright law, not least when the data is presented visually or graphically to generate new and useful information and insights. One such example is the case of digital maps. Maps and written descriptions of geographic information have long presented challenges for the law of copyright, most particularly because they are perceived as factual compilations. The appearance of maps, and the information they contain, has changed considerably over time. However, the last few years has seen an extraordinary transformation in the methods and practices of collecting, storing, representing and disseminating geospatial data and information. This article considers how copyright law applied in the analogue era to regulate the production and dissemination of geographic information, the effects of new technologies and digitisation on how law applies to geospatial data and associated products and systems, and whether either a database right or some other form of protection is required.

 The authors argue

Australia lies on the fastest-moving tectonic plate on Earth, floating northeast at a rate of about seven centimetres a year. This means that geodesists are faced with the continuing challenge of keeping the coordinates of maps up to date. The appearance of maps, and the information contained therein, has changed over time, influenced by the particular purposes they are designed to serve, developments in adjacent technological and scientific fields, as well as cultural, economic and ideological factors. Until recently, these changes have occurred at rather the same pace as continental drift: slowly and perhaps, to the majority of people, imperceptibly. However, the last few decades have seen extraordinary transformations in the methods and practices of collecting, storing, using, representing and disseminating what was once called geographic information but is now more broadly termed ‘spatial data’. Updating Australia’s datum so that it reflects a position on the face of the globe that matches satellite positioning systems is an essential step towards modernising Australia’s spatial data management. What makes it essential is the centrality of locative technologies in almost every aspect of contemporary society — from government, to industry, to everyday activities such as finding a restaurant or driving a car. Indeed, it has been claimed that Earth Observation currently provides $500 million in direct benefits to Australia, a figure estimated to increase to $1.7 billion by 2025, while precise positioning added $2.3 billion to the Australian GDP in 2012, and is estimated to add more than $8 billion by 2020.

Despite the growing importance of spatial data, surprisingly little close attention has been paid to the legal situation of the new, spatially embedded, digital citizenry. In particular, little attention has been directed towards the legal status of the spatial data involved. A recent article in The Economist observed that ‘[d]igital information is unlike any previous resource; it is extracted, refined, valued, bought and sold in different ways. It changes the rules for markets and it demands new approaches from regulators. Many a battle will be fought over who should own, and benefit from, data.’ Companies and government bodies that deal with data treat them as property that is capable of being owned, bought, sold and licensed. Yet, as the Productivity Commission has recently noted, in Australia, ‘no one “owns” data; in limited circumstances, copyright law can protect the form in which information is expressed, and it may be possible to claim ownership over a processed dataset’.

This article will consider the extent to which existing intellectual property laws in Australia encompass spatial data and associated products or systems, such as digital maps, cybercartography, geographic information systems (‘GIS’) and other emerging spatial media. It will begin by examining the changing terrain of geographic information and associated digital products and clarifying terminology for a legal audience. It will then turn to consider how the legal landscape has changed. It will look first at how copyright law was used in the past to regulate the ownership, production and dissemination of analogue maps and spatial data, and the challenges that arose in that context. It will go on to examine how changes in the digital era have affected the way that the law will apply to digital maps and digital spatial data, questioning whether copyright remains an appropriate legal mechanism for assigning ownership and access rights. Next it will consider whether a database right modelled on that in Europe would provide for better processes and outcomes, concluding that it will not. It will finally turn to consider some of the matters that need to be considered when deciding whether a new category of right is required to address this gap.

Before continuing, some explanation of terminology may be of assistance. This article will use the phrases ‘spatial data’ and ‘geospatial data’ as meaning essentially the same thing. In other words, the terms will be used in a broad sense to mean data which refers to a specific location or geographical area. Spatial data can thus cover not just datasets that describe physical geography, but also datasets describing topographical features, cadastral or land title information, transport and infrastructure, location of resources, such as groundwater, or utilities.

The words ‘data’ and ‘information’ are frequently used interchangeably by commentators, with little significant impact. Here, we will endeavour to treat them as having a subtly different meaning, by reference to the commonly used ‘knowledge pyramid’. In the knowledge pyramid, ‘data precedes information, which precedes knowledge, which precedes understanding and wisdom’. Without wishing to get bogged down in technical definitions, which have themselves been the subject of scholarly debate, we will seek to use ‘data’ in the sense of ‘raw elements’ that have been extracted through observation, computation, experiment or recordkeeping, while the word ‘information’ will be used here in a broader or less technical sense, to mean an accumulation of data or ‘data plus meaning’. Geospatial, or spatial, data can be understood broadly as ‘any data (quantitative and qualitative) which have a location (eg spatially referenced with coordinates) or topology’.

 They conclude

Maps have long presented challenges to the law of copyright. In the mid-18th century it may have seemed appropriate to apply the model of literary copyright to maps because, like books, they were capable of being reproduced and sold by those who had not invested in their production. However, almost immediately a model founded upon authorship threw up problems for a work which, in the Age of Enlightenment, was increasingly presenting itself as scientific, rational and objective — and, therefore, un-authored. The model pursued from the 19th century of fitting products into categories of work is also a poor fit for paper maps, which can be characterised in different ways depending on whether one focusses on their mode of production (engraving, drawing, photography etc) or their perceived purpose or value (aesthetic, informational or functional). Even if the map is conceded to fit within the scope of copyright law such as to be capable of ownership, the question of who owns a map produced from a mix of public domain, proprietary and publicly funded materials is not an easy one to answer.

All of these problems persist in the digital age, and are compounded by uncertainty over new methods of data capture and the growing importance of the geospatial data as a separate source of commercial value. It is now the case that copyright law, as it currently stands in Australia, does not offer appropriate protection to digital maps and geospatial data. It is further argued that the situation would not be improved by introducing a database right along the lines of that adopted in the European Union. However, this is an area which needs to be addressed. It is far from satisfactory to continue to treat digital maps and geospatial data as being protected by copyright if this is not in fact the case. While the use of CC licences might have alleviated many of the concerns surrounding access to geospatial data, in particular that gathered by the state at the taxpayer’s expense, this is not a sufficient reason to continue the charade. Indeed, continuing to treat geospatial data as copyright runs the risk of over-protecting this material through offering it the broad and long-lasting protection of copyright, while failing to demand that it meet the threshold requirements for such protection to subsist. It is, for example, deeply unpersuasive to contend that Google Maps, updated daily, or a live stream of digital spatial data, should be protected for the life of any actual or assumed author and an additional 70 years.

Instead, one of two approaches should be adopted: either digital form maps (not created by humans) and geospatial data should be expressed clearly to fall in the public domain; or, a new sui generis right should be created which is tailored to the particular conditions in which they are created, used and disseminated. It is worth noting here that the European Commission has recently observed that ‘[t]o build the data economy, the EU needs a policy framework that enables data to be used throughout the value chain for scientific, societal and industrial purposes’. One of the options that is being considered in this context is the creation of a data producer’s right.

It is beyond the scope of this article to explore in detail the advantages and disadvantages of either option. Arguments in favour of protecting geospatial data and digital maps include: incentivising their production because of the economic and/or social value of the data itself and of products and resources generated from using it; rewarding those who have invested time, effort and expense in its production; the need to ensure integrity, quality and authoritativeness of data and data sources; and the need to recover costs or generate profits. Such arguments apply to both state and non-state actors. Arguments against intellectual property rights in geospatial data emphasise public access, particularly in relation to government data sets. Proponents of open data policies point to success stories involving rapid response mapping, such as the use of OSM to create a map of streets following the 2010 Haitian earthquake, or disaster stories, such as the way in which Crown copyright was said to hamper Google’s efforts to display fire maps and emergency warnings in the devastating Victorian fires of 2009. They might also point to new modes of data production and collection such as VGI and crowdsourcing, and the blurring of boundaries between users and creators, which do not align well with intellectual property law’s traditional approaches to ownership and control.

In considering whether a new intellectual property right in spatial data should be introduced, it would be necessary to consider a number of factors. Chief amongst these are the extent to which it is necessary to provide incentives to collect, produce or analyse geospatial data and the extent to which governments, members of the public, other users and potential competitors need to access and use such data. It would also be important to think about the nature of the right in question (ie what exclusive rights would be granted to owners and what exceptions to such rights would be appropriate) and to define the types of spatial data to which it would apply, and the duration of any such right. A limited right, more akin to a neighbouring right such as the broadcast right, with a tailored term of protection and restricted scope, might offer a way to reconcile some of the arguments on both sides of the debate.

While some have heralded recent developments as the rise of the democratisation of information and welcomed a ‘neogeography’ that disrupts and devolves established, centralised structures of geographic knowledge control, this new world of openness and interaction has not swept away inequalities of access and control, although it has enabled greater levels of individual participation. Rather, as Kitchin, Lauriault and Wilson point out, the new spatial media ‘enrol[s] users within new markets and subjugate[s] them within new relations of control and power’. It is of central importance that we recognise that the changes in technology and associated practices mean that existing legal structures are no longer appropriate, and that we engage actively in exploring new options for legal and regulatory mechanisms that reflect the new conditions and help direct government, industry and individuals towards mutually beneficial engagement and collaboration.

Doxing and Defamation

'Doxing: a conceptual analysis' by David M. Douglas in (2018) 18(3) Ethics and Information Technology 199–210 comments

Doxing is the intentional public release onto the Internet of personal information about an individual by a third party, often with the intent to humiliate, threaten, intimidate, or punish the identified individual. In this paper I present a conceptual analysis of the practice of doxing and how it differs from other forms of privacy violation. I distinguish between three types of doxing: deanonymizing doxing, where personal information establishing the identity of a formerly anonymous individual is released; targeting doxing, that discloses personal information that reveals specific details of an individual’s circumstances that are usually private, obscure, or obfuscated; and delegitimizing doxing, which reveals intimate personal information that damages the credibility of that individual. I also describe how doxing differs from blackmail and defamation. I argue that doxing may be justified in cases where it reveals wrongdoing (such as deception), but only if the information released is necessary to reveal that such wrongdoing has occurred and if it is in the public interest to reveal such wrongdoing. Revealing additional information, such as that which allows an individual to be targeted for harassment and intimidation, is unjustified. I illustrate my discussion with the examples of the alleged identification of the creator of Bitcoin, Satoshi Nakamoto, by Newsweek magazine, the identification of the notorious Reddit user Violentacrez by the blog Gawker, and the harassment of game developer Zoe Quinn in the ‘GamerGate’ Internet campaign.

The Scottish Law Commission's December 2017 report on defamation comments

In this Report, we recommend a number of important reforms to the law of defamation and verbal injury. Our aim is to modernise and simplify Scots law in these areas so as to ensure that it strikes the correct balance between the fundamental values of freedom of expression on the one hand and protection of reputation on the other. Achieving the right balance between these two principles is a particularly sensitive issue in the age of the internet and social media. Whilst defamation litigation has not been especially common in Scotland in recent years, the law on the subject is of considerable importance in modern society, not least because of the ease and speed with which information can now be transmitted. Whilst the internet has allowed people to communicate far more effectively and much more widely than ever before, it has also meant that reputations can be quickly and, in some cases, unfairly tarnished. This has given rise to new challenges for defamation law. We believe that our recommendations would serve to improve and strengthen the law in a modern context, as well as making it more accessible and easier to understand. 

Defamation may be described as the civil wrong committed when a person makes a false and damaging imputation against the character or reputation of another person.  The essence of what makes a statement defamatory is whether it would damage the reputation of the pursuer in the eyes of the ordinary reader, viewer, or listener. Verbal injury is a civil wrong analogous to, though distinct from, defamation. One important difference between these two civil wrongs is that in an action based on verbal injury the pursuer must prove that the defender acted with malice in the sense that he or she intended to cause injury by making the statement complained of; this is not (usually) a requisite of a successful action based on defamation. 

The general background to our project lies in the reforms made to defamation law in England and Wales by the Defamation Act 2013 (“the 2013 Act”). The 2013 Act was the culmination of a long-running civil society campaign for libel3 reform: this developed over the course of a decade or more in the years following the millennium.  The campaign was motivated by concerns over the practice described as ‘libel tourism’ and what was perceived to be its resultant chilling effect on freedom of expression. Another influence behind the campaign was concern over the increase in the volume of libel actions brought against nongovernmental organisations, scientists, and academics with a view, it was said, to suppressing legitimate criticism of authority and alleged abuses of power. A third factor leading to the campaign was the enactment by a number of legislatures in the United States of legislation designed to prevent the enforcement of libel judgments issued by courts in England and Wales. 

The civil society campaign and the political support it gathered led eventually to the enactment of the 2013 Act. It introduced important reforms intended to reset the law of defamation for modern times: amongst other changes in the law discussed more fully later in the present Report, the Act introduced a threshold requiring a claimant to show serious harm before an action could competently be brought; greater protection was provided for website operators; repeated publication would no longer trigger new limitation periods; and actions could be brought only if England and Wales was shown to be clearly the most appropriate jurisdiction for hearing them. 

The Scottish Government decided not to move to extend most of the provisions of the Act to this country, with the exception of a small number of provisions relating to privilege in academic and scientific activities. 

Background to this project 

Consultation on our Ninth Programme of Law Reform in 2014 elicited a substantial number of submissions proposing that we should examine the law of defamation in Scotland. Amongst those supporting a project in this area were the Law Society of Scotland, the Faculty of Advocates, BBC Scotland, and the Libel Reform Campaign. They and other respondents drew particular attention to the major reforms of the law of England and Wales introduced by the 2013 Act. 

We formed an advisory group to assist us in understanding how the current law works in practice and in developing our ideas for reform of the law. We are grateful to the members of the advisory group for their assistance throughout the project. We published our Discussion Paper in March 2016. We thank all those who took the time to respond. In April 2016, in association with Edinburgh University Law School Centre for Private Law, we held a seminar on reform of defamation law and verbal injury; this was attended by a wide range of stakeholders, including delegates from England and Wales and Northern Ireland. A further seminar on defamation law reform was hosted on our behalf by Pinsent Masons LLP in June 2016. In October 2016 we held a roundtable discussion on defamation and the new media. In August 2017, we launched a consultation on the draft Defamation and Malicious Publications (Scotland) Bill (“the draft Bill”), and asked for comments on it. A revised version of the draft Bill is attached to the present Report. In formulating the recommendations set out in this Report we have attempted to take account of views expressed to us by stakeholders during the project. In what follows we refer, where appropriate, to the consultation responses on the Discussion Paper and the draft Bill. They are published in full on our website. 

Our approach 

We did not confine our approach to examining whether and to what extent the reforms reflected in the 2013 Act might be suitable for adoption in Scots law, subject to any appropriate modifications or improvements. We also considered other aspects of Scots defamation law that we thought might be in need of reform. These included: whether publication to a third party should become a requisite of an action for defamation; reform of remedies; and defamation of deceased persons. As mentioned above, we also examined the law relating to verbal injury. 

Structure of the Report 

The Report is divided into ten further chapters and three appendices. In chapter 2 we consider whether Scots law should continue to allow defamation actions to be based on private communications without a need for publication of the statement complained of to a third party. We recommend that publication to a third party should become a necessity for a competent action. We also address the need for a threshold test of serious harm and propose that one should be introduced. We consider too whether and to what extent there should be a bar on the bringing of defamation proceedings by public authorities. We make a number of recommendations in this connection. In chapter 3 we look at whether the main common law defences of truth, publication on a matter of public interest, and fair comment should be put on a statutory basis. We recommend that they should be; and that the existing defences should be abolished. Chapter 4 is concerned with the bringing of proceedings against internet intermediaries, such as search engines and blogging sites. We recommend new rules providing stronger protections for such secondary publishers. In chapter 5 we examine the law on absolute and qualified privilege; we recommend that the rules should be set out in a new Act. Chapter 6 deals with the remedies available in defamation proceedings, including the system for offering to make amends. We recommend a number of increased powers for the courts, including power to order publication of a summary of the court’s judgment and to require removal of statements by website operators. The law on limitation of actions is considered in chapter 7. Here we recommend, amongst other changes, that there should be a restriction on the opportunity to bring proceedings in relation to republication of material, as well as a reduction in the limitation period within which defamation actions can be brought from three years to one. In chapter 8 we consider the rules on jurisdiction and examine whether there should continue to be an automatic right to trial by jury; we recommend that this should be modified. In chapter 9 we look at the law on verbal injury and recommend a number of reforms. Chapter 10 discusses whether the law should allow cases to be brought where a deceased person has been defamed; we recommend that this should not be permitted. Finally, we list our recommendations in chapter 11. Appendix A sets out the draft Defamation and Malicious Publication (Scotland) Bill. In Appendix B we provide a list of those who responded to the Discussion Paper. Appendix C contains a list of respondents to the consultation on the draft Bill.

The Commission's recommendations are -

1. It should be competent to bring defamation proceedings in respect of a statement only where the statement has been communicated to a person other than its subject, with that person having seen or heard it and understood its gist. (Paragraph 2.8; Draft Bill, section 1(2)(a) and (4)) 

2. It should be competent to bring defamation proceedings in respect of a statement only where the publication of the statement has caused, or is likely to cause, serious harm to the reputation of the person who is the subject of the statement. (Paragraph 2.14; Draft Bill, section 1(2)(b) and (4)) 

3. Bodies which exist for the primary purpose of making a profit should, in principle, continue to be permitted to bring proceedings in defamation. (Paragraph 2.20) 

4. A non-natural person whose primary purpose is to trade for profit should be permitted to bring defamation proceedings only where it can demonstrate that the statement complained of has caused or is likely to cause it serious financial loss. (Paragraph 2.25; Draft Bill, section 1(3)) 

5. Persons which are classed as public authorities for the purposes of the Bill should not be permitted to bring proceedings for defamation. (Paragraph 2.29; Draft Bill, section 2(1)) 6. A person should be classed as a public authority if the person’s functions include functions of a public nature. (Paragraph 2.29; Draft Bill, section 2(2)) 

7. A person should not fall into the category of a public authority if it is a non-natural person which has as its primary purpose trading for profit or is a charity or has a charitable purpose and is not owned or controlled by a public authority and only carries out functions of a public nature from time to time. (Paragraph 2.29; Draft Bill, section 2(3)-(4)) 

8. There should be a power for Scottish Ministers to make regulations specifying persons or descriptions of persons who are not to be treated as a public authority, where this result is not achieved already by section 2. Such regulations should require public consultation before they are made and be subject to the affirmative resolution procedure. (Paragraph 2.29; Draft Bill, section 2(6)-(8)) 

9. A statutory defence of truth should be introduced. The defences of veritas at common law and justification under the Defamation Act 1952 should be abolished. (Paragraph 3.13; Draft Bill, sections 5, 8(1)(b) and 33(1)) 

10. A statutory defence of honest opinion should be introduced. The defences of fair comment at common law and under the Defamation Act 1952 should be abolished. (Paragraph 3.22; Draft Bill, sections 7, 8(1)(d) and 33(1)) 

11. It should not be a requirement of the defence of honest opinion that the opinion expressed relates to a matter of public interest. (Paragraph 3.28) 

12. The statutory defence of honest opinion should be available in relation to a statement of opinion including a statement drawing an inference of fact which: (a) indicates either in general or specific terms the evidence on which it is based; and (b) is such that an honest person could have held the opinion conveyed by the statement on the basis of any part of that evidence. (Paragraph 3.62; Draft Bill, section 7(2), (3) and (4)) 

13. The statutory defence of honest opinion should fail if it is shown that the person who made the statement did not genuinely hold the opinion conveyed by the statement. (Paragraph 3.62; Draft Bill, section 7(5)) 

14. Where the statement complained of was published by one person but made by another, the previous recommendation should be inapplicable and the statutory defence of honest opinion should fail if it is shown that the person who published the statement knew or ought to have known that the author of the statement did not genuinely hold the opinion conveyed by the statement. (Paragraph 3.62; Draft Bill, section 7(6)) 

15. A statutory defence of publication in the public interest should be introduced. The Reynolds defence should be abolished. (Paragraph 3.75; Draft Bill, sections 6 and 8(1)(c)) 

16. The statutory defence of publication in the public interest should extend to statements of fact and to statements of opinion. (Paragraph 3.79; Draft Bill, section 6(5)) 

17. The statutory defence of publication in the public interest should make specific provision for reportage. In particular, it should be provided that in determining whether it was reasonable for a defender to believe that publication was in the public interest, (a) allowance must be made for editorial judgment, where appropriate; and (b) no account should be taken of any failure by a defender to take steps to verify the truth of the imputation conveyed by a statement if the statement was or formed part of an accurate and impartial account of a dispute to which the pursuer was a party. (Paragraph 3.85; Draft Bill, section 6(3) and (4)) 

18. Any review of responsibility and defences for publication by internet intermediaries should be carried out on a UK-wide basis. (Paragraph 4.7) 

19. As part of any UK-wide review of liability and defences of internet intermediaries, consideration should be given to (a) whether there is scope to clarify the operation of existing provisions, rather than creating new provisions and (b) if so, whether this would be most appropriately achieved by means other than legislation. (Paragraph 4.25) 

20. Generally, defamation proceedings should not be capable of being brought against a person, unless the person is the author, editor or publisher of the statement in respect of which the proceedings are to be brought or is an employee or agent of such a person and is responsible for the content of the statement or the decision to publish it. (Paragraph 4.33; Draft Bill, section 3) 

21. A regulation-making power should be created to allow for exceptions to the general rule so that specified categories of person may be treated as publishers of a statement for the purpose of defamation proceedings despite not being the author, editor or publisher of the statement or an employee or agent of such a person. A draft of such regulations should be the subject of consultation before they are made. The regulations should be subject to the affirmative resolution procedure. (Paragraph 4.33; Draft Bill, section 4(1), (3) and (4)) 

22. Any such regulations may also provide for a defence that the person treated as a publisher did not know and could not reasonably be expected to have known that the material disseminated contained a defamatory statement. (Paragraph 4.33; Draft Bill, section 4(2))   

23. There should be no change to Scots law in relation to absolute privilege for statements made in the course of parliamentary proceedings. (Paragraph 5.9) 

24. Section 14 of the Defamation Act 1996 should be repealed and re-enacted in a new Defamation Act so as to reflect in Scots law the change effected by section 7(1) of the 2013 Act for England and Wales in relation to absolute privilege for contemporaneous reports of court proceedings anywhere in the world and of any international court or tribunal established by the Security Council or by an international agreement. (Paragraph 5.9; Draft Bill, section 9) 

25. The law on privileges should be extended by allowing qualified privilege to cover communications issued by a legislature or public authority outside the EU or statements made at a press conference or general meeting of a listed company anywhere in the world. (Paragraph 5.16; Draft Bill, section 11 and schedule) 

26. The privileges of the Defamation Act 1996 should be restated for Scotland in a new statute. (Paragraph 5.22; Draft Bill, sections 9 and 11 and schedule) 

27. There should be no reform of Scots law in relation to qualified privilege for publication (through broadcasting or otherwise) of Parliamentary papers or extracts thereof, for the time being. (Paragraph 5.32) 

28. Consideration of any future reform relating to this area should be carried out on a UK-wide basis. (Paragraph 5.32) 

29. The scope of section 6 of the 2013 Act should not be expanded but its current terms should be restated in a new Act for Scotland. (Paragraph 5.44; Draft Bill, section 10)  

30. There should be no change to the law governing the granting of interdict and interim interdict in defamation actions or in proceedings under Part 2 of the Bill. (Paragraph 6.6) 

31. The offer of amends procedure should be incorporated in a new Defamation Act. (Paragraph 6.11; Draft Bill, sections 13 to 17) 

32. There should be a statutory provision to the effect that an offer of amends is deemed to have been rejected if not accepted within a reasonable period. (Paragraph 6.17; Draft Bill, section 13(3)(c)) 

33. In defamation proceedings and in Part 2 proceedings the court should have power to order that the defender must publish a summary of its judgment. (Paragraph 6.44; Draft Bill, section 28) 

34. In defamation proceedings and in Part 2 proceedings the court should have statutory power to allow a settlement statement to be read out in open court. (Paragraph 6.51; Draft Bill, section 29) 

35. In defamation proceedings and in Part 2 proceedings the court should have statutory power, at any stage in the proceedings, (a) to order the operator of a website to remove a defamatory statement or (b) to order the author, editor or publisher of such a statement to stop distributing, selling or exhibiting material containing it. (Paragraph 6.61; Draft Bill, section 30) 

36. Where a person publishes a statement to the public and subsequently publishes the same or substantially the same statement, any right of action in respect of the subsequent publication should be treated as having accrued on the date of the first publication. (Paragraph 7.8; Draft Bill, section 32(3)) 

37. The previous recommendation should not apply where the manner of the subsequent publication is materially different from that of the first publication, having regard to the level of prominence that the statement is given; the extent of subsequent publication; and any other matter which a court considers relevant. (Paragraph 7.14; Draft Bill, section 32(3)) 

38. The length of the limitation period in actions for defamation should be one year. (Paragraph 7.19; Draft Bill, section 32(2)) 

39. The limitation period should commence on the date of first publication of the statement complained of. (Paragraph 7.24; Draft Bill, section 32(3) and 32(6)(b)(iv)) 

40. A court in Scotland should not have jurisdiction to hear and determine defamation proceedings against a person who is not domiciled in the UK, another Member State or a state which is a contracting party to the Lugano Convention, unless satisfied that Scotland is clearly the most appropriate place to bring the proceedings. This should not affect the availability of the defence of forum non conveniens, where appropriate. (Paragraph 8.10; Draft Bill, section 19) 

41. The presumption in favour of jury trials in defamation actions should be replaced by a discretionary power to allow the court to appoint the form of inquiry, including jury trial, best suited to the circumstances of the case. (Paragraph 8.19; Draft Bill, section 20) 

42. The principles underlying the three categories of verbal injury which relate to economic interests (ie falsehood about the pursuer causing business loss, slander of title and slander of property) should be retained. (Paragraph 9.23) 

43. The common law rules relating to these categories of verbal injury should be abolished and instead expressed in statutory form. (Paragraph 9.23; Draft Bill, sections 21, 22, 23 and 27) 

44. Verbal injury should be renamed by a term which reflects more accurately the type of conduct it seeks to address (ie malicious publication). (Paragraph 9.23; Draft Bill, Part 2) 

45. The three categories of verbal injury relating to economic interests should be renamed, to reflect more clearly the types of conduct they seek to address (ie statements causing harm to business interests, statements causing doubt as to title to property and statements criticising assets). (Paragraph 9.23; Draft Bill, sections 21, 22 and 23) 

46. The common-law rules providing for verbal injury relating to individuals should be abolished. (Paragraph 9.32; Draft Bill, section 27)  

47. There should be no requirement on the pursuer in proceedings under Part 2 of the draft Bill to show financial loss if the statement complained of is more likely than not to cause such loss. (Paragraph 9.34; Draft Bill, section 24) 

48. The “single meaning rule” should not apply in relation to proceedings brought under Part 2 of the draft Bill. (Paragraph 9.36; Draft Bill, section 25) 

49. Anxiety and distress should be capable of being taken into account by the court in determining the appropriate amount of general damages, in so far as such anxiety and distress flows from economic damage to business interests caused by the relevant statement. (Paragraph 9.38; Draft Bill, section 26)