Suicide and Australian Coroners

'Determining A Suicide Under Australian Law' by Stephanie Jowett, Belinda Carpenter and Gordon Tait in (2018) 41(2) UNSW Law Journal 355 comments

This article examines the role of coroners in making legal determinations of suicide in Australia. Research indicates that the requirement to make findings of intent and capacity in unexpected, violent deaths can be difficult for coroners and recent government inquiries have suggested that the law contributes to the problem. A review of laws and commentary that guide coroners in Australian states and territories reveals not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. This article concludes that law reform would aid coroners by clarifying definitional issues, removing inconsistency between state jurisdictions and increasing the transparency of case law. Along with requirements for a determination of intent, which is a practical matter previously raised by the Victorian Coronial Council, such changes would go some way to ensuring that Australian suicide statistics are more reliably created.

The authors argue

 Coroners’ findings contribute to national suicide statistics in Australia. Indeed, coroners are presently the only legal persons who make routine determinations of suicide so that it may be coded as such. As a result, the process by which coroners make determinations of suicide is critically linked with policymaking in public health and mental health, as well as planning and funding of suicide prevention strategies. Issues surrounding coronial determinations of suicide have been the subject of increased scrutiny and commentary in Australia since the Australian Senate’s report, The Hidden Toll: Suicide in Australia (‘The Hidden Toll’), revealed the extent of underreporting of suicides. As recently as 2014, a report by the Coronial Council of Victoria expanded on the ways in which the law relating to suicide contributes to that problem. It has been suggested that key reasons for underreporting are inconsistencies in coronial practices and a reluctance by coroners to make explicit findings of intent. 

Given that coroners are the only persons tasked with making routine legal determinations of suicide in Australia, the process by which coroners come to such a finding is an important yet relatively under-researched and under-analysed element of this process. To date, most research to investigate the process of suicide determination by coroners has focused on the output of coronial decision-making in the form of secondary analysis of coronial data. In contrast, this article examines the legislation, case law and secondary literature relating to suicide determinations in all Australian jurisdictions to determine precisely what law informs coroners in their suicide deliberations. 

As the first comprehensive review and analysis of the Australian law in this area, this article builds on recommendations made by the Coronial Council of Victoria and the Senate Community Affairs References Committee in their report, The Hidden Toll. It suggests that a major barrier to consistent and accurate suicide reporting is the lack of clarity in the law guiding coroners in their practice. Specifically, that the impediments to uniform approaches to determinations of suicide may be caused by practical barriers, including requirements to hold an inquest or make a definitive finding within the binary of suicide/not suicide, and interpretational barriers, including what constitutes a suicide and the applicable standard of proof. It concludes that a severely underdeveloped legal framework for the identification of suicide in Coroners Acts is compounded by a lack of definitional clarity, and a subsequent over-reliance on English coronial law and Australian criminal law, both of which rely on a standard of proof beyond that required within the coronial jurisdiction. It is recommended that clarification of the law as well as the publication of inquest findings would be a minimum required for Australian coronial law to develop in this area. 

To determine the law applicable in this area, the approach taken in this review is multifaceted. First, the Coroners Acts in each jurisdiction have been searched for any mention of suicide or intent as well as any sections relevant to when findings can be made and what they may contain. The websites of Coroners Courts have also been searched for any other sources of official guidance. Second, legal databases have been searched for case law relating to determinations of suicide under Australian law. Third, secondary literature has been reviewed in the form of scholarly academic literature as well as key coronial texts. Due to the difficulty of accessing inquests online, details from inquests have generally been included only where the case was raised in the literature. For this reason, emphasis is given to discussion of the law in selected inquests, such as Tyler Cassidy and Rebekah Lawrence.It is important to note that within Australia, inquests are notoriously difficult to access and search.[9] As a consequence of this, there exists no readily available pool of relevant case law, experience, and precedent related to findings of suicide for the coroners to access and apply within their own decision-making processes.

Weed

With quixotic ACT proposals to reshape drug law in mind it's interesting to see 'Life, Liberty, (and the Pursuit of Happiness): Medical Marijuana Regulation in Historical Context' by Lewis A. Grossman, a draft chapter from Choose Your Medicine: Freedom of Therapeutic Choice in American History and Law (Oxford University Press, Forthcoming).

Grossman comments 

The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use—delivery of a recreational high. After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States. The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present. This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice. With the exception of a single promising decision in 1975, courts have uniformly rejected arguments for medical marijuana access. But the 1996 passage of Proposition 215 in California triggered a tremendous wave of state measures legalizing medical cannabis, as well as a dramatic change in American attitudes about the issue. 

The chapter recounts this history in light of the special legal, political, and rhetorical challenges medical cannabis advocates have faced. First, many officials have opposed the legalization of medical marijuana, regardless of whether it offers therapeutic benefits, because of the public health harms and moral degradation they associate with the use of pot. Second, marijuana’s designation as a Schedule I substance under the Controlled Substances Act of 1970, and the DEA’s rejection of multiple citizen petitions to reclassify it, has placed extremely high obstacles in the way of researchers interested in scientifically assessing marijuana’s therapeutic efficacy. Third, federal government policies have lagged behind public preference and state law. Finally, medical marijuana supporters have had to negotiate an invaluable but fraught relationship with advocates for comprehensive marijuana legalization. The perspectives and goals of these two groups have overlapped and conflicted in fascinating and unexpected ways.

AgData

'What’s behind the ag-data logo? An examination of voluntary agricultural data codes of practice' by Jay Sanderson, Leanne Wiseman and Sam Poncini in (2018) 1 International Journal of Rural Law and Policy comments

In this article, we analyse agricultural data (ag-data) codes of practice. After the introduction, we examine the emergence of ag-data codes of practice and provides two case studies: the American Farm Bureau’s Privacy and Security Principles for Farm Data and New Zealand’s Farm Data Code of Practice. The case studies illustrate that the aims of ag-data codes of practice are inextricably linked to consent, disclosure, transparency and, ultimately, the building of trust. We go on to highlight the commonalities and challenges of ag-data codes of practice. In terms of commonalities, we consider that they are self-regulatory and voluntary; are principle-based; have a communicative function; and have attitude and behaviour change as key objectives. In terms of the challenges of ag-data codes, we argue that the key challenges are the need for an appropriate and agile ag-data normative framework; implementation and evaluation of ag-data codes; issues around trade mark-based logos; and evaluation of ag-data codes of practice. We conclude that while ag-data codes of practice may help change practices and convert complex details about agdata contracts into something tangible, understandable and useable, it is important for agricultural industries to not hastily or uncritically accept or adopt ag-data codes of practice. There needs to be clear objectives and a clear direction in which stakeholders want to take ag-data practices. Ag-data codes of practice need credible administration, accreditation and monitoring. There also needs to be a way of reviewing and evaluating the codes in a more meaningful way than simple metrics such as the number of members.

 The authors argue

Voluntary agricultural data (‘ag-data’) codes of practice have emerged since 2014. In part, their emergence is because of the increasing realisation of the potential benefit and value of ag-data, with many decisions and processes along the whole agri-food supply chain – from paddock to plate – being data enabled and data driven. Ag-data is collected and used for many purposes, including improving productivity and profitability. There is a myriad of different data collected from farms: machinery data that improves safety and efficiency of farm machinery; personal data of purchasing and finance history; and agronomic and agricultural data. In this article, our focus is on agricultural data. 

Ag-data is collected by sensors on tractors and drones and used for many purposes, including providing multi-spectral imagery, and showing crop health and moisture content. Software can aggregate and deploy ag-data to increase yields, improve farm profitability and sustainability, and ensure regulatory compliance and consumer satisfaction. Further uses of ag-data are found in supply chain logistics and in the ability to better respond to and manage issues such as crop or animal stress. Ag-data can also be linked from farm and packaging to transport and sales; assisting with food safety, healthy and ethical choices and differentiating markets and allocating resources. 

While the potential benefit and value of ag-data is immense, a major hurdle to realising the benefits is the tension between those who provide the data (ie, farmers and producers) and those who collect the data (ie, agribusiness and third parties). This tension limits the potential benefits of ag-data because, in large part, it results in problems of access and use of ag-data; fundamentally, farmers and producers do not trust agribusinesses with their data. A study identified that this lack of trust in the way agribusinesses deals with ag-data was identified as a major concern of Australian producers, with 56 per cent of respondents having no or little trust in agribusiness maintaining the privacy of their data.  Further evidence of a lack of trust between producers and agribusiness was found by the American Farm Bureau Federation, who, in 2016, conducted a survey of over 400 farmers and found, for example, that 77 per cent of those polled were concerned about which entities can access their ag-data. 

If digital agriculture and data are to transform agri-food networks, then trust around ag-data access and use needs to be fostered.  To this end, a range of initiatives are currently being investigated and implemented, including education and awareness programs, data co-operatives and other collaborative models.  Most notably, since 2014, voluntary ag-data codes of practice have emerged to not only help develop ‘good’ agdata practices but also to build trust in the way ag-data is managed.  Broadly stated, ag-data codes of practice act beyond legal mandates (ie, government legislation) and attempt to both harness the benefits of ag-data and protect producers’ privacy and security. More specifically, data codes tend to focus on the   key areas that give rise to mistrust: consent, disclosure and transparency around ag-data practices. For example, under the New Zealand Farm Data Code of Practice (‘NZ Farm Data Code’), organisations agree to disclose their practices and policies around data rights, data processing and sharing, and data storage and security. In the US, the American Farm Bureau Federation’s Privacy and Security Principles for Farm Data (‘Principles for Farm Data’) sets out data principles for agricultural technology providers including that ‘access and use of farm data should be granted only with the affirmative and explicit consent of the farmer’.  And the EU Code on Agricultural Data Sharing by Contractual Agreement (‘EU Code’) attempts to define key concepts and sets out general principles for sharing agricultural data including that ‘[t]he collection, storage and usage of the collected agricultural data can only occur once the data originator has granted their explicit, express and informed permission via contractual arrangement’.  Other countries (eg, Australia) are also contemplating the introduction of an ag-data code of practice. 

But are ag-data codes of practice a good idea? 

The aim of this article is to analyse the effect and usefulness of ag-data codes of practice. The next section examines the emergence of ag-data codes of practice and then discusses two case studies: the American Farm Bureau’s Principles for Farm Data and New Zealand’s NZ Farm Data Code. The case studies illustrate that ag-data codes of practice are inextricably linked to consent, disclosure, transparency and, ultimately, the building of trust. The section that follows highlights the commonalities and challenges of ag-data codes of practice. The article concludes with several observations, most notably that while ag-data codes of practice may help change practices and convert complex details about ag-data contracts into something tangible, understandable and useable, it is important not to uncritically accept or hastily adopt ag-data codes of practice. There needs to be clear objectives and a clear direction in which stakeholders want to take ag-data practices. In other words, stakeholders need to be sure about what they are trying – and able – to achieve with their ag-data codes of practice. There also needs to be a way of reviewing and evaluating the codes in a more meaningful way than simple metrics such as the number of members: for example, it is necessary to know something about whether the codes raise awareness and education around data practices, and whether they have encouraged changes in attitudes and behaviour. Ag-data codes need credible administration, accreditation and monitoring. Only with such added safeguards, will ag-data codes of practice have a chance of success.

Surveillance

'The Metal Eye: Ethical Regulation of the State’s Use of Surveillance Technology and Artificial Intelligence to Observe Humans in Confinement' by Jennifer A. Brobst in Californian Western Law Review (Forthcoming) comments

This article addresses the dual interests of privacy and the need for social interaction as a right of personal autonomy in choosing the balance between them. This is a right in need of protection in the face of new technology, including artificial intelligence, which has enabled constant state surveillance of individuals. Those most at risk of a deprivation of this right -- persons in state institutional confinement, including those in prisons, nursing homes, or involuntarily committed in mental institutions -- provide an important context for examining this potential infringement, because there is a particularly strong concurrent state interest to surveil to maintain order and security. The historical development of common law and federal constitutional protections of the rights of persons in confinement is examined next to the emergence of state constitutional amendments guaranteeing a right of privacy. In addition, mental health research has added to the policy development in this area, as seen in research regarding the impact of solitary confinement.

Brobst argues

Law, humanity, and human nature reflect a mastery of negotiation between the individual’s need for both a private and a social life. Since its founding, state and federal government and their legal structures in the United States have been designed by and for humans to thrive as individuals in society, which, in turn, benefits government and society.  For example, the State Constitution of Louisiana provides that the purpose of government is to protect the individual, which will protect “the good of the whole” of society:

All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people.

Similarly, Patrick Henry spoke eloquently at the Convention of Virginia in 1788 of the need for a bill of rights and checks on federal government, asserting that “the power of a people in a free government is supposed to be paramount to the existing power.”  

As inventors continue to design technology to supplant human interaction or constantly monitor human behavior, the role of the state in protecting individual rights to autonomy in navigating privacy and social interaction requires a close examination.  Fortunately, in the United States, a hard-fought legal respect for the rights of the individual in a free society remains a steady, rational force, capable of moderating intrusive surveillance through the common law, as well as state and federal constitutional jurisprudence. 

In a mature society, the process of drawing the lines of privacy against state intrusion should look first to those who have the least power and social capital – persons confined by the state, such as prison inmates and those who are involuntarily committed. As the Supreme Court has repeatedly affirmed: “[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, society may not simply lock away offenders and let the state of nature take its course.”  Protected by common law and constitutionally-based duties of care to ensure a secure and safe environment, this population without much political power or voice is owed much by the State. Nevertheless, in a technological age of surveillance, the State has much greater opportunity to infringe on the rights of confined persons than it has on persons at liberty in the public sphere, thereby testing the bounds of basic individual rights. If those in state institutions—the most vulnerable or dangerous of us all, and arguably most in need of monitoring and observation—have a right to autonomy with respect to privacy and social interaction, then so do we all. 

If it were technologically possible, would the United States lawfully permit a residential facility – a prison, immigration detention center, mental hospital, or nursing home – to be run solely by remote technology, using artificial intelligence (AI) to subject confined persons to constant surveillance or completely replace human interaction with machine-based interaction? Can technology enhance the quality of human experience in confined settings or is reliance on such technology merely an expedient, harmful substitute for human supervision and social interaction? 

These questions are not dystopian or utopian speculation. In South Korea, the world’s first autonomous robotic prison guards, with AI capabilities that include use of surveillance technology and facial recognition software designed to assess a prisoner’s mental state, are being tested in facilities.  In Australia, the Technological Incarceration Project has tested a relatively inexpensive home detention system with constant AI presence that monitors verbal and facial cues and delivers a shock if the monitored person appears to be about to commit a violation. The European Union INDECT research project “for the security of citizens” is conducting a feasibility design for a constant surveillance system for automatic threat detection in public spaces, compliant with current national and international privacy laws:

The value that will be added by deployment of INDECT research outcomes is that existing systems would operate with less human intervention, which will lower the level of subjective assessment and the number of human mistakes. This means less staff will be required for supervision of surveillance activities (e.g.[,] monitoring of CCTV camera networks). This will result . . . in less opportunities for illegitimate use of such information, or for human error to result in violations of the rights of the individual. There will also be economic benefits, in terms of the reduced staffing requirements. Police officers could be freed up to carry out frontline policing tasks.

Surveillance in these contexts is linked to public security concerns, which must be moderated by civil liberties. In the realm of national security, the AI international arms race continues to place pressure on democratic nations to undermine their values and recognition of civil rights. Autonomous, untetheredAI technology that would be implemented to kill without human decision or control is already possible, although the Department of Defense under both Presidents Obama and Trump has restricted their military applications. The United Nations also continues to debate the need to restrict such weapons.  In the public-private sphere, technology companies, such as Google, have faced pressure to opt out of continuing to contribute their AI research to military purposes. Google’s contract with the U.S. Department of Defense reportedly “worked extensively to develop machine learning algorithms for the Pentagon, with the goal of creating a sophisticated system that could surveil entire cities.” 

In the United States, state and federal departments of correction and mental health facilities increasingly incorporate and rely on security technology to maintain order and ensure the safety of confined prisoners and patients. Prison guards use aerial drones to supervise and record the activities of prisoners. Psychiatrists conduct telehealth assessment and diagnosis of prisoners in multiple facilities from a single office computer. AI video alert systems monitor the hallways at night outside bedrooms in mental health facilities to identify potential physical assaults or self-harm. Several states statutorily authorize constant video surveillance of nursing home residents’ rooms, with their consent or that of their guardians.  Many of these measures cut costs by reducing the need for human staffing. 

For the public at large, privacy interests are embodied in common law and statutory law, with additional protections found in the shifting penumbra of constitutional rights. Those subject to state confinement also have constitutional and statutory privacy rights, as well as common law parens patriae protections, all requiring consideration of legitimate governmental interests. Rapidly changing technologies offer greater facility and breadth of surveillance, while the biology of the human species, with its essential mental and physical needs, remains relatively static, evolving gradually. The pressures of technological change place a toll on humanity’s well-being, particularly when the balance of personal and governmental interests does not sufficiently respect the realities of what level of autonomy our species inherently needs to thrive. 

Autonomy in navigating both privacy and social interaction are essential to human well-being and the fulfillment of human potential. As Justice Douglas observed, “[p]rivacy involves the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses.” Privacy and social interaction mutually reinforce each other, allowing a person to safely choose and resist social interactions. As psychological research demonstrates, humans despair from too much of either: from loneliness and isolation, and from lack of privacy and difficulty in creating a self-identity. 

Surveillance technology, including AI applications, presents new opportunities to undermine humanity’s basic need for autonomy, human social interaction, and privacy. It is not a disruptive technology, a technology which inadvertently happens to cause social disruption, but rather it is a technology designed to disrupt. From a cynical perspective, commercial and governmental interests seek to convince the public that loss of privacy is inevitable because technology too easily invades our privacy or because this invasion is needed to protect society from unseen attacks. They do so to financially profit from the sale and development of security technology or to better monitor and control individual behavior for political purposes. 

This is nothing new. When restricting state use of eavesdropping devices on the public to detect crime in Berger v. State of New York in 1967, the Supreme Court implied that profit motives foster technological innovation in spying: “Since 1940 eavesdropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control.” More recently, sociologist Barry Glassner noted just prior to the 9/11 terrorist attacks: “The short answer to why Americans harbor so many misbegotten fears is that immense power and money await those who tap into our moral insecurities and supply us with symbolic substitutes.” According to Glassner, symbolic substitutes are the bogeymen of commercial and media alarm, manipulating anecdotal incidents and statistically unsupported risks to further powerful interests at the expense of societal interests. Surveillance technology manufacturers admit as much: “Every unfortunate event we hear about, whether it’s cyber-related or just flat out terrorism, these are drivers for our business. It’s unfortunate that they are and that they happen, but they do drive this industry and this market.” 

If the technology industry can create invasive and intrusive technology, it can certainly craft technology with better privacy protections if properly motivated. In the 1800s, when privacy of written communications was not practically assured, public approval for the innovations of envelopes and locks on mail bags compelled Congress to enact statutory protections for the privacy of the postal service. Such efforts resulted in paper mail receiving greater legal privacy protections today than digital information. Technological innovation and legal privacy protections can be and have been compatible. For this to occur, however, the American legal system must fulfill its obligation to enforce existing protections of the autonomy rights of individuals in the face of commercial and governmental interests intent on overreaching. 

To illuminate how existing legal tenets identify and enforce privacy rights, it is critical to examine the contexts where individual privacy rights are already most suppressed under American law: the arena of persons in civil and criminal state confinement. The use of technology to constantly monitor humans in confinement without their consent presupposes a legitimate purpose of public health and safety pursuant to state police power and other common law doctrines. More constant monitoring is arguably warranted based on the lesser right to autonomy and privacy of persons who are subject to court-ordered confinement for the protection of themselves or others, but is facing a reexamination in the courts. 

This article begins by introducing in Section I the legal recognition of the basic human need for autonomy in navigating privacy and social interactions, including its origins in natural law, adoption in international human rights, and emerging statutory and regulatory frameworks in the United States. Section II examines how and to what degree the courts have recognized the essential human and societal need for individual privacy and social interaction, with a focus on common law doctrines, as well as state and federal constitutional protections of the autonomy rights of persons in state confinement. Section III outlines the comparative state interests when infringing on the individual autonomy rights of confined persons in prisons and medical settings, including identification of interests common to all institutional settings. Finally, Section IV addresses the need for courts to realign the balance of these interests in light of emerging psychological research which reveals the continued importance of individual privacy with respect to technological innovation facilitating constant surveillance.

Drones

'Liability Issue of Domestic Drones' by Vivek Sehrawat in (2018) 35(1) Santa Clara Computer and High Technology Law Journal comments 

Drones are much debated as weapons of war and due to privacy issues. Drones are also now under development for package delivery. This paper examines the potential liability associated with the domestic use of drone aircrafts and offers solutions for drone liability. This paper also examines potential drone liability through the lens of existing trespass causes of action and other applicable laws such as nuisance and negligence. Furthermore, this paper analyzes the legality of shooting down a drone for self-defense and discusses the minimum insurance requirements for drones.

Australian readers will turn to Des Butler's 2014 'The Dawn of the Age of the Drones: An Australian Privacy Law Perspective' noted here and to 'Drone danger: Remedies for damage by civilian remotely piloted aircraft to persons or property on the ground in Australia' by Pam Stewart in (2016) 23 Torts Law Journal 290.

Stewart comments

 Civilian use of drones (Remotely Piloted Aircraft: RPA) in Australian skies is increasing at a dramatic rate. Whilst there is a strict regulatory framework in which RPA operate, they have the capacity to cause significant damage to persons or property on the ground. This article evaluates the availability and scope of statutory and common law remedies for such damage demonstrating a complex matrix of potential accountability. Statutory strict liability under Damage by Aircraft legislation does not apply uniformly to all RPA with the definition of RPA as ‘aircraft’ the crucial determinant. Where the statutory remedy is unavailable, common law causes of action must be relied upon with the statutory safety regulations providing assistance in establishing liability. The article demonstrates that it would be appropriate for legislators to ensure uniform application of the strict liability regime to all RPA and for compulsory identification and insurance of RPA.

The House of Representatives Standing Committee on Social Policy and Legal Affairs 'Eyes in the sky: Inquiry into drones and the regulation of air safety and privacy' report was noted here.

Truly, Deeply and Meaningfully

The Guardian reports yet another data breach, this time involving media group Nova Entertainment.

Nova's CEO offered the usual boilerplate

We take privacy, and the security of the information we collect from our listeners very seriously, and on behalf of Nova Entertainment I deeply and sincerely regret that this incident has occurred, 

We are fully committed to achieving the best possible outcome for anyone affected by this incident.

[Nova’s investigation is] substantial and ongoing.

No doubt truly, deeply and meaningfully.

The CEO is reported as stating

We have notified the Office of the Australian Information Commissioner of this incident, and we are in the process of contacting law enforcement bodies. 

We will fully and transparently engage with these entities in relation to this incident.

It appears that  data collected from Nova's listeners in Australia over a two-year period (May 2009 to October 2011) has been “publicly disclosed”. No specifics, of course, about whether we are talking an absent password, lost unencrypted USB, misplaced laptop or swag of printouts left on top of an overflowing skip.

Nova is in the process of contacting those affected.

The information disclosed may include names, gender, dates of birth, addresses, email addresses, phone numbers, and account details such as user names and passwords.

Nova is encouraging people affected to change their passwords for their email account and all other online accounts using the same email address, username or password, including email, social media and online bank accounts.

Let's hope that we see an OAIC report that has more substance than the usual elliptical  'we talked privately with the data custodian, they assured us they were sorry and promised never ever to let happen again' report in ten lines or so.

Data Sharing

'Data Collaboration, Pooling and Hoarding under Competition Law' (Faculty of Law, Stockholm University Research Paper No. 61) by Bjorn Lundqvist comments

In the Internet of Things era devices will monitor and collect data, whilst device producing firms will store, distribute, analyse and re-use data on a grand scale. Great deal of data analytics will be used to enable firms to understand and make use of the collected data. The infrastructure around the collected data is controlled and access to the data flow is thus restricted on technical, but also on legal grounds. Legally, the data are being obscured behind a thicket of property rights, including intellectual property rights. Therefore, there is no general “data commons” for everyone to enjoy. If firms would like to combine data, they need to give each other access either by sharing, trading, or pooling the data. On the one hand, industry-wide pooling of data could increase efficiency of certain services, and contribute to the innovation of other services, e.g., think about self-driven cars or personalized medicine. On the other hand, firms combining business data may use the data, not to advance their services or products, but to collude, to exclude competitors or to abuse their market position. Indeed by combining their data in a pool, they can gain market power, and, hence, the ability to violate competition law. Moreover, we also see firms hoarding data from various source creating de facto data pools. This article will discuss what implications combining data in data pools by firms might have on competition, and when competition law should be applicable. It develops the idea that data pools harbour great opportunities, whilst acknowledging that there are still risks to take into consideration, and to regulate. 

 "Portability in Datasets under Intellectual Property, Competition Law, and Blockchain' by Lundqvist argues

 In the Internet of Things, data and the transfer of data (the porting of data) will be important for competition and, generally, for Internet of Things to work and create interoperability, new services, wealth for society etc. While porting data can be excessively difficult in the current data and cloud environment, there is a discussion that also firms should be empowered by a right to transfer data or port data. Firms should have the right to transfer “its” data from platform to platform, cloud to cloud, or in-house. A mandatory right to port data could have several benefits; one being that it promotes competition between platforms, clouds and e-ecosystem providers. Several platforms collect data on the behalf of businesses making use of their platform services. Moreover, many firms use and will use “the cloud” to collect and store data in the upcoming Internet of Things paradigm, and they will make use and purchase both cloud space and data analytics. A right to port data enables firms to change platforms and cloud providers when they are not happy with the service received. A mandatory right to port datasets would create competition, and prevent markets otherwise “tip” in the favour of one monopolistic firm. A right to port data could be included in secondary legislation. The draft Free Flow Data Regulation only contains a call for self-regulation of the possibilty to port non-personal data. However, a possibility is also to update, modernise and amend the database directive to reflect the Internet of Things era. A third solution could be to create guidelines under competition law regarding collection and transfer of data under vertical or horizontal agreements. Platforms or Clouds that ‘hoard data’ under these agreements, by stipulating covenants that they (exclusively) collect and utilize the data from its business users, may risk violating competition law should they, for example, restrict the possibility to transfer or port data. Such clause should be considered in its fair light to be equivalent to a non-compete clause. Finally, after discussing these legal solutions, the article addresses whether we have a technical solution to the problem, while the blockchain technology could be a technical mean to port data without the use of legal systems.