Cybercrime

'Crime in the Age of the Smart Machine: A Zuboffian Approach to Computers and Crime' by Kevin F. Steinmetz in (2022) 11(1) International Journal for Crime, Justice and Social Democracy 225-238 comments 

This analysis ruminates on the quintessential qualities that underpin the relationship between computers and crimeby drawing from the foundational work of Shoshana Zuboff, a scholar whose work has to date been largely ignored in the study of crime. From this perspective, computers are best described as “informating” machines that require “intellective skills” in both licit and illicit forms of work. The first part of this analysis describes the role of such skills in the commission of computer-related crimes and considers factors that affect the degree to which such skills are necessary for perpetration. The second part considers how a Zuboffian approach can inform examinations of other subjects that have historically been considered important for criminological inquiries, including learning and subculture, the emotional experience of crime, and perceptions held by offenders and victims.

 Steinmetz argues

Over the past half a century, computers have become a fixture of everyday life. An increasing share of the workforce regularly uses computers for their jobs, many people in developed countries carry smartphones everywhere, and internet use has become a necessity for social and civil life (Pew Research Center 2019). Likewise, crimes mediated through or targetingcomputers have similarly proliferated (Furnell 2017). Scholars have made significant strides during this period to understand the new topography of crime introduced by computers and networking technologies (e.g., Holt and Bossler 2014; Powell, Stratton, and Cameron 2018; Wall 2007; Yar and Steinmetz 2019). Among other changes, research has found that computer technologies have significantly affected the scope and scale of crimes, reshaped the social relationships involved in crime commissions, rearranged the political economy of crimes and control, and introduced new challenges for law enforcement and security regarding criminal detection, prevention, and investigation. 

Criminologists have utilized a diverse assortment of approaches to dissect the complexities that computers have introduced to criminal enterprises. For instance, some criminologists have chosen to adapt standard criminological theories (e.g., routine activities theory, social learning theory, and self-control theory) for computer-related crimes (Yar and Steinmetz 2019). Others have forged novel approaches tailored for digital contexts like extension theory (Brey 2017), actor–network theory (Brown 2006; Latour 2005; van der Wagen 2018; van der Wagen and Pieters 2015), digital drift (Goldsmith and Brewer 2015), and digital criminology (Powell, Stratton, and Cameron 2018). The breadth and depth of theorizing and scholarship to date in the area have been laudable. Amidst such advances, however, it is worth pausing to ruminate on the quintessentialqualities that underpin the relationship between computers and crime—qualities from which all other considerations of such crimes proceed. Such an endeavor can provide a unifying and parsimonious base to ground computer crime scholarship and theorizing. 

This analysis applies Shoshana Zuboff’s (1988) treatise on computer technologies and work, In the Age of the Smart Machine: The Future of Work and Power (Smart Machine), to accomplish this task.While widely influential in the fields of science and technology studies, Smart Machine has been largely ignored by criminologists. In this work, Zuboff (1988) examined multiple worksites during a historical period of significant industrial changes as computers, then new and novel devices, were increasingly integrated into the workplace. She considered the effects of computers on the experience of labor, the skills required to accomplish occupational tasks, the structure of the workforce within an organization, and the role of authority in the workplace. While her study was detailed and thorough, two foundational concepts comprised the fulcrum of her analysis. The first concerned the characteristic that, according to her, distinguishes computers from other machines—they “informate.” In addition to automating tasks, computers process data and provide textual feedback to the user. Thus, computers mediate work, adding a layer of abstraction to the labor process. Second, “intellective skills” or abstract reasoning and processing skills are necessary to conduct informated work. As her analysis revealed, these deceptively simple concepts bear significant implications for the nature of work in a computerized era. 

This analysis argues that the same concepts that Zuboff (1988) applied to the transformation of legitimate work are equally applicable to illegitimate forms of labor. Just as Zuboff (1988: 13) discarded the “natural attitude” that takes for granted the role of computers in work and everyday life, this analysis requires taking on an “attitude of strangeness” to examine the subtle yet profound ways that computers affect the relationship between criminals and their crimes—to reconsider the very notion of what computers do to crime (Neuman 2007: 284). Additionally, the application of Smart Machine to the study of crimes necessitates a willingness to view crime itself as a kind of work. Letkemann (1973: 6) noted decades ago that the “various dimensions of work appear to be as applicable ... to the illegitimate as the legitimate worker.” In other words, crime is a form of labor, criminals are laborers, and both can be understood in terms like those applied to legitimate enterprises (Fagan and Freeman 1999; Letkemann 1973; Steinmetz 2016; Sutherland 1937). Just as information technologies fundamentally reconfigured legitimate work, similar changes are evident as crime is computerized (Wall 2007: 42-44). 

The current analysis builds from Zuboff’s (1988) conceptual work to reframe the issues of computer crime and criminality in two parts. Part 1 elaborates on the concepts of informating and intellective skills. It also describes their immediate application for understanding the relationship between computers and crime. Regarding informating, this analysis contends that criminologists should consider examining computer crimes not as a distinct type of crime but simply variants of preexisting forms of crime shaped by thedegreeto which they are informated or reliant on computers. For intellective skills, this essay traces the transition of these skills from “action-centered” skills and the criminological implications of such changes. Further, it argues that though intellective skills are important for computerized work, not all tasks are equally dependent on computers, nor are all criminals equally willing to utilize such technologies. As such, the factors that affect the extent to which intellective skills are required in crime commissions are considered, including centrality, availability, and engagement. 

Part 2 of this analysis considers how a Zuboffian approach can inform examinations of other subjects that have historically been considered important for criminological inquiry. It begins by considering the role of information technology and intellective skills for knowledge transmission, addressing criminological concerns like social learning and subcultures. Further, Zuboff’s (1988) insights are applied to the emotional experience of crime, a domain of longstanding fascination for criminologists. Finally, the implications of the distance between what Zuboff (1988: 84) described as a “symbol and reality” for perceptions held by both criminals and their victims are explored. These dynamics are considered in turn.

Cooption

'Tech money in civil society: whose interests do digital rights organisations represent?' by Jake Goldenfein and Monique Mann in (2022) Cultural Studies 

explores philanthropic interactions between ‘Big Tech’ and digital rights civil society organizations (DRCSOs) to enhance understanding of the alignment and misalignment of interests between these groups. ‘Big Tech’ wields political influence by distributing cash to research and policy organizations. Academic research supporting ‘Big Tech’ business practices is marshalled to support their political lobbying efforts, while civil society policy work shapes the narrative what dimensions of these businesses should be regulated (or not). While academic work is typically presented as a cool analysis of the relevant issues, DRCSOs purport to represent the interests of individuals and groups negatively affected by those business practices. Through empirical tracking of direct financial flows, as well as an analysis of cash distributions via class action litigation settlements, we show that certain DRCSOs have long-term financial relationships with ‘Big Tech’ that trouble our understanding of the alignments or misalignments of their interests. Through that analysis, we question where and how civil society fits into automated and algorithmic cultural production and perpetuation, and the way that Big Tech uses and guards the economic capital generated through its dominance over ‘automated culture’. 

 The authors state 

 There is a long history of ethically questionable philanthropic practices in socially harmful industries. ‘Big Tobacco’, gambling, alcohol, pharmaceuticals, and mining have all been supported by philanthropically backed research and policy work. Industry is able to influence scientific findings and policy agendas in various ways, for instance through research funding and directing research programmes (Yach and Bialous 2001, Adams 2007, Capps and van der Eijk 2014), creating of conflicts of interests (e.g. between academics and industry, in favour of industry agendas) (Brandt 2012, Hendlin et al. 2019), undermining policy-relevant research (Landman and Glantz 2009), or interfering with researcher independence (Van der Eijk et al. 2019). Philanthropic interventions have the potential to deflect research and policy towards corporate objectives, launder corporate and executive reputations, and satisfy perceptions of corporate social responsibility (on corporate reputation and philanthropy, see Brammer and Millington 2005). 

As relationships between industry and academia intensify (Crespo and Dridi 2007), related concerns associated with industry funding of academic research continue to emerge in the field of technology policy (Phan et al. 2021). Moves towards university commercialization come with complex ethical challenges (Mintz et al. 2010), especially at times where research budgets are under threat, and promoting industry collaboration is seen as a solution to fiscal crises. These issues, by no means new, are however, taking on new inflections in the context of research and policy work being funded by ‘Big Tech’ firms. 

The firms that constitute ‘Big Tech' have become so profitable, in part, through business models that automate cultural production by ‘enfolding human thought, conduct, organisation and expression into the logic of big data and large-scale computation’ (Striphas 2015). We focus our analysis of the relationship between technology firms and policy work in the context of this dimension of Big Tech platforms’ participation in automated culture – the use of automated and opaque systems that manage and monetize the concurrent flows of personal data, cultural output, and human attention. Through entirely opaque curatorial, ranking, and gatekeeping systems, dominant platforms are able to manage the flow of cultural content according to incentives and optimizations that target the maximization of advertising revenue (Viljoen et al. 2021). Maintaining the opacity and profitability of these complex systems of automated cultural distribution and monetization requires ongoing control – control over cultural production, control over markets, control over consumer behaviour, and control over regulatory outcomes. This represents an epic and expensive political exercise. In the context of ongoing regulatory efforts to address the privacy impacts of this business model, as well as tackle the obscene market power that platforms have aggregated in the digital economy, dominant platforms appear especially resolute in preventing exposure of the relationships between cultural content, data flow, and economic value that their automated systems control. 

In this article, we trace the movement of money between Big Tech firms and DRSCOs in order to highlight one way that the distributional and political status quo of automated culture reproduces itself. Although it is not possible to directly demonstrate the link between financial support from Big Tech to DRSCOs and the political objectives they pursue, we suggest that these financial relationships likely influence certain civil liberties narratives common to DRSCO outputs – ideas like greater individual control over data – which we argue operate to smooth over the often contradictory interests of platform providers and their ‘users’. 

Our argument proceeds as follows: automation at scale (i.e. via forms of intermediation, advertising and attention economies, and the domination of multi-sided markets) enables Big Tech to accumulate vast economic capital. Big Tech faces threats in relation to these (frequently unethical, at times legally questionable) automated practices, including regulation challenging those business models, as well as competition law and antitrust enforcement that challenges their domination of those profitable markets. Following Maclean et al. (2021) we contend that the strategic distribution of economic capital through philanthropy enables the transference of economic capital into social, cultural and political capital that serves to inoculate platforms from regulatory intervention. This in turn allows Big Tech to continue to accumulate through their automated management and monetization of cultural content. Our examination of automated culture thus takes a wide focus that encompasses the social and political structures that facilitate, sustain and enable it. In doing so, we make original contributions to the field of cultural studies in questioning where and how civil society fits into algorithmic cultural production and perpetuation, and the way that Big Tech uses and guards the economic capital produced through automated culture. We begin with an overview of the money and influence that ‘Big Tech’ wields in various spheres, across political, academic, and civil society work.

Disinfo

Alongside a commitment - so heartfelt - to introduce disinfo legislation in the 2nd half of this year as part of the 'Australian Code of Practice on Disinformation and Misinformation', the Communications Minister has released the June 2021 A report to government on the adequacy of digital platforms’ disinformation and news quality measures.

Unsurprisingly there is no engagement with disinformation/misinfo from members of the Government such as Craig Kelly. 

 The report states 

In December 2019, as part of its response to the Australian Consumer and Competition Commission’s Digital Platforms Inquiry, the Australian Government requested that digital platforms in Australia develop a voluntary code of practice to address online disinformation and news quality. The Australian Code of Practice on Disinformation and Misinformation1 (the code) was launched by industry association Digital Industry Group Inc (DIGI) on 22 February 2021. The code has since been adopted by 8 digital platforms – Google, Facebook, Microsoft, Twitter, TikTok, Redbubble, Apple and Adobe. 

The ACMA was tasked with overseeing the development of the code and reporting to the government on the adequacy of platform measures and the broader impacts of disinformation in Australia. Our report provides new consumer research on users’ experience of disinformation and misinformation on digital platforms and our assessment of the industry’s code. It also provides a range of findings and a number of recommendations for consideration by the government. 

The online propagation of disinformation and misinformation presents an increasing threat to Australians 

Over the previous 18 months, we have seen increasing concern within the community over the ‘infodemic’ of online disinformation and misinformation, particularly in relation to the real-world impacts of COVID-19. The propagation of these falsehoods and conspiracies undermines public health efforts, causes harm to individuals, businesses and democratic institutions, and in some cases, incites individuals to carry out acts of violence. 

To understand the scale and impacts of this issue in Australia, we undertook a mixed- methods study focused on COVID-19 misinformation. Key insights include:

> Most adult Australians (82%) report having experienced misinformation about COVID-19 over the past 18 months. Of these, 22% of Australians report experiencing ‘a lot’ or ‘a great deal’ of misinformation online. 

> Belief in COVID-19 falsehoods or unproven claims appears to be related to high exposure to online misinformation and a lack of trust in news outlets or authoritative sources. Younger Australians are most at risk from misinformation, however there is also evidence of susceptibility among other vulnerable groups in Australian society. 

> Australians are most likely to see misinformation on larger digital platforms, like Facebook and Twitter. However, smaller private messaging apps and alternative social media services are also increasingly used to spread misinformation or conspiracies due to their less restrictive content moderation policies. 

> Misinformation typically spreads via highly emotive and engaging posts within small online conspiracy groups. These narratives are then amplified by international influencers, local public figures, and by coverage in the media. There is also some evidence of inorganic engagement and amplification, suggesting the presence of disinformation campaigns targeting Australians. 

> Many Australians are aware of platform measures to remove or label offending content but remain sceptical of platform motives and moderation decisions. There is widespread belief that addressing misinformation requires all parties – individuals, platforms and governments – to take greater responsibility to improve the online information environment and reduce potential harms. 

Digital platforms have introduced a range of measures in response to the growth of disinformation and misinformation on their services In response largely to global concerns, digital platforms have introduced measures typically based on company-wide policies including:

> supporting third-party fact-checking organisations 

> proactively updating their policies to specifically address unique events, such as the COVID-19 pandemic and the 2020 US presidential election 

> investing in means to signal credible, relevant and authentic information 

> providing financial assistance and grants to news outlets, government and not-for- profit organisations to bolster the spread of credible information and news 

> increased detection, monitoring and enforcement action against groups and networks who use their services to spread disinformation and misinformation. 

Despite platforms’ mostly global approach to updating policies and implementing other actions, many measures have had an impact on Australian users.

> In 2020, Facebook removed more than 110,000 pieces of COVID-related misinformation generated by Australian accounts. 

> Between July and December 2020, Twitter removed 50 pieces of content authored by Australian accounts for contravening its COVID-19 misleading information policy. 

> In 2020, Google blocked 101 million advertisements globally for contravening its misrepresentation policies. 

> TikTok’s COVID-19 Information Hub was visited by over 292,000 Australians between November 2020 and March 2021. 

The above data shows that platforms are taking proactive steps to tackle disinformation and misinformation on their products and services. The introduction of an Australian industry code builds on these actions to codify actions, improve transparency, enhance consumer protections, and implement mechanisms to monitor their effectiveness. It also provides a framework to promote stakeholder collaboration and incentivise further actions by platforms to respond to a rapidly evolving online environment. 

Digital platforms have come together to develop a single outcomes-based code of practice with several important features 

It is extremely positive to see industry, steered by DIGI, come together to develop a single code of practice. A single code should promote a consistent approach by platforms and provide confidence in industry to manage the range of harms associated with disinformation and misinformation. 

DIGI ran a meaningful public consultation process in developing its draft code, which attracted a variety of submissions that clearly influenced subsequent changes. In particular, the scope of the code was expanded to cover misinformation as well as disinformation, a key piece of stakeholder feedback during the consultation process. The ACMA considers this is an improvement on the EU Code of Practice on Disinformation. The code adopts an outcomes-based regulatory approach that allows a range of platforms with different services and business models to sign up to the single code. Signatories are required to sign up to the objective of ‘providing safeguards against harms that may arise from disinformation and misinformation’ and may opt-in to other code objectives, such as disrupting advertising incentives and supporting strategic research. The code also provides signatories flexibility to implement measures to counter disinformation and misinformation in proportion to the risk of potential harm. Signatories must also report annually on the range of measures they will implement to achieve the objectives and outcomes. Importantly, the code also stresses the need to balance interventions with the need to protect users’ freedom of expression, privacy, and other rights. 

Our assessment identifies further improvements that should be made to the code’s scope and the clarity of commitments 

The ACMA has assessed the code to consider whether it has met the expectations set out by the government and has identified a range of improvements. 

In our view, the scope of the code is limited by its definitions. In particular, a threshold of both ‘serious’ and 'imminent’ harm must be reached before action is required under the code. The effect of this is that signatories could comply with the code without having to take any action on the type of information which can, over time, contribute to a range of chronic harms, such as reductions in community cohesion and a lessening of trust in public institutions. 

The code should also be strengthened through an opt-out rather than opt-in model. Signatories should only be permitted to opt out of outcomes where that outcome is not relevant to their service and be required to provide justification for the decision. 

The code is also limited in the types of services and products it covers. Private messaging is excluded, despite increasing concern about the propagation of disinformation and misinformation through these services, particularly when used to broadcast to large groups. Including messaging services within the code, with appropriate caveats to protect user privacy (including the content of private messages), would provide important consumer protections. 

We also consider improvements to the code should be made in relation to: > its application to news aggregation services > the treatment of professional news content and paid and sponsored content > the weight given to news quality as a key aspect of the government’s request to industry. 

The ACMA is also concerned that the code does not place an obligation on individual signatories to have robust internal complaints processes. This was an area of particular concern identified in the Digital Platforms Inquiry. 

The code includes commitments to establish administrative functions within 6 months of code commencement. As code administrator, DIGI will establish a compliance sub- committee, a detailed reporting guideline and a facility to address signatory non- compliance. However, these functions remain under development at the time of finalising this report. As a result, the ACMA has not been able to assess their effectiveness. DIGI and code signatories should consider changes to the code to address the matters identified by the ACMA in its review in February 2022. 

A clear and transparent measurement framework is critical to the effectiveness of a voluntary, outcomes-based regulatory model Signatories were required to nominate their code commitments and deliver an initial report under the code, providing information and data on the measures they have adopted under the code. 

Signatories’ reports provide a large range of information on the actions they have taken to address disinformation, misinformation and news quality, and their investments in collaborative initiatives. 

However, reports are heavily focused on platform outputs and lack systematic data or key performance indicators (KPIs) that would establish a baseline and enable the tracking of platform and industry performance against code outcomes over time. Reports also show inconsistencies in the interpretations of key code terms and in reporting formats. 

Platforms should move quickly to identify KPIs specific to their services and work together to establish industry-wide KPIs to demonstrate the effectiveness of the code as an industry-wide initiative. 

The ACMA recommends a number of actions by government to bolster industry self-regulatory arrangements 

The ACMA considers that it is still too early to draw concrete conclusions on the overall impact or effectiveness of the code. The code administration framework – including a detailed reporting guideline and mechanism to handle complaints – is not due for completion until late August 2021. The design and implementation of these elements will be key to the overall effectiveness of the code. 

Given these circumstances, continued monitoring is required and the ACMA recommends it provide government with another report on the code by the end of the 2022–23 financial year. This will provide sufficient time to assess the operation of the code administration framework and assess the impact of any changes arising from the February 2022 review of the code. As part of this report, the ACMA recommends it continues to undertake focused research on these issues. 

Initial signatory reports identify challenges in obtaining relevant data on platform actions in Australia. Providing the ACMA with formal information-gathering powers (including powers to make record-keeping rules) would incentivise greater platform transparency and improve access to Australia-specific data on the effectiveness of measures to address disinformation and misinformation. Information collected could also be used to identify systemic issues across the digital platform industry and inform future ACMA research. 

More formal regulatory options could be considered, particularly for platforms that choose not to participate in the code or reject the emerging consensus on the need to address disinformation and misinformation. The ACMA recommends that government provides the ACMA with reserve regulatory powers in relation to digital platforms – such as code registration powers and the ability to set standards. This would provide the government with the option to act quickly to address potential harms if platform responses are not adequate or timely. 

There are also opportunities for improved collaboration between government agencies, platforms, researchers and non-government organisations on issues relating to disinformation and misinformation. The ACMA recommends that the government should consider establishing a Misinformation and Disinformation Action Group to provide a mechanism to support future information sharing, cooperation and collaboration. 

The ACMA makes 5 recommendations to the government in its report. 

Recommendation 1: The government should encourage DIGI to consider the findings in this report when reviewing the code in February 2022. 

Recommendation 2: The ACMA will continue to oversee the operation of the code and should report to government on its effectiveness no later than the end of the 2022- 23 financial year. The ACMA should also continue to undertake relevant research to inform government on the state of disinformation and misinformation in Australia. 

Recommendation 3: To incentivise greater transparency, the ACMA should be provided with formal information-gathering powers (including powers to make record keeping rules) to oversee digital platforms, including the ability to request Australia- specific data on the effectiveness of measures to address disinformation and misinformation. 

Recommendation 4: The government should provide the ACMA with reserve powers to register industry codes, enforce industry code compliance, and make standards relating to the activities of digital platforms’ corporations. These powers would provide a mechanism for further intervention if code administration arrangements prove inadequate, or the voluntary industry code fails. 

Recommendation 5: In addition to existing monitoring capabilities, the government should consider establishing a Misinformation and Disinformation Action Group to support collaboration and information-sharing between digital platforms, government agencies, researchers and NGOs on issues relating to disinformation and misinformation.

Referenda

'The Law and History of State and Territory Referendums' by Paul Kildea in (2022) 44(1) Sydney Law Review 31 comments 

Australia’s states and territories have together held more than 50 referendums since Federation in 1901. And yet, as the literature on federal referendums has continued to grow, scholars have largely overlooked the rich history of direct democracy at the sub-national level. This article addresses this gap by providing the first comprehensive review of the use and regulation of referendums by the states and two mainland territories. It draws attention to the immense variety of referendum votes on constitutional amendments and contentious policy issues. It also examines rules and practices on a range of matters, including initiation, the form of the question, the status of the result, voting and campaigning. Additionally, the article surveys the overall state and territory referendum record, including the frequency and approval rate of referendums, and compares it to the federal record. The analysis is informed by a referendum dataset compiled from primary sources by the author. The Appendix, which draws on this dataset, presents the first, single repository of accurate information on state and territory referendums, including dates, topics, results, informality and turnout.

Scams

The Australian Competition & Consumer Commission (ACCC) has instituted Federal Court proceedings against Meta Platforms, Inc. and Meta Platforms Ireland Limited, alleging that the Facebook subsidiaries engaged in false, misleading or deceptive conduct by publishing scam advertisements featuring prominent Australian public figures in breach of the Australian Consumer Law (ACL) or the Australian Securities and Investments Commission Act (ASIC Act). Meta is also alleged to have aided and abetted or was knowingly concerned in false or misleading conduct and representations by the advertisers. 

The ACCC is seeking declarations, injunctions, penalties, costs and other orders.

The ACCC alleges that the ads, which promoted investment in cryptocurrency or money-making schemes, were likely to mislead Facebook users into believing the advertised schemes were associated with well-known people featured in the ads, such as businessman Dick Smith, TV presenter David Koch and former NSW Premier Mike Baird. 

 The ACCC states that the schemes were scams, with the people featured in the ads neither approved or endorsing them. The ads contained links which took Facebook users to a fake media article that included quotes attributed to the public figure featured in the ad endorsing a cryptocurrency or money-making scheme. Users were then invited to sign up and were subsequently contacted by scammers who used high pressure tactics, such as repeated phone calls, to convince users to deposit funds into the fake schemes. 

The ACCC does not appear to have commented on the presence of the same ads in other digital platforms and indeed in online 'mainstream media'. 

 ACCC Chair Rod Sims comments 

The essence of our case is that Meta is responsible for these ads that it publishes on its platform. It is a key part of Meta’s business to enable advertisers to target users who are most likely to click on the link in an ad to visit the ad’s landing page, using Facebook algorithms. Those visits to landing pages from ads generate substantial revenue for Facebook. 

We allege that the technology of Meta enabled these ads to be targeted to users most likely to engage with the ads, that Meta assured its users it would detect and prevent spam and promote safety on Facebook, but it failed to prevent the publication of other similar celebrity endorsement cryptocurrency scam ads on its pages or warn users. 

Meta should have been doing more to detect and then remove false or misleading ads on Facebook, to prevent consumers from falling victim to ruthless scammers..

The ACCC alleges that Meta was aware that the celebrity endorsement cryptocurrency scam ads were being displayed on Facebook but did not take sufficient steps to address the issue. The celebrity endorsement cryptocurrency scam ads were still being displayed on Facebook even after public figures around the world had complained that their names and images had been used in similar ads without their consent. 

The ACCC notes

Apart from resulting in untold losses to consumers, these ads also damage the reputation of the public figures falsely associated with the ads. Meta failed to take sufficient steps to stop fake ads featuring public figures, even after those public figures reported to Meta that their name and image were being featured in celebrity endorsement cryptocurrency scam ads. 

UK SLAPP consultation

The UK Ministry of Justice has released an urgent Call for Evidence on Strategic Lawsuits Against Public Participation, ie SLAPPs, characterised as 

an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means. These actions are typically initiated by reputation management firms and framed as defamation or privacy cases brought by individuals or corporations to evade scrutiny in the public interest. 

They are claims brought by extremely wealthy individuals and corporations. The invasion of Ukraine has heightened concerns about SLAPPs, as we have clearly seen that aggression is closely associated with clamping down on free speech and reporting of events. We need to isolate these cases in devising counter-measures, so that while we prevent our justice system being abused we do not curb access to justice in legitimate cases. In responding to SLAPPs, we need to fully understand the breadth of litigation and range of misconduct involved. A Call for Evidence will enable us to establish a number of things. 

Firstly, we want to hear at first hand from parties who have been involved in SLAPPs – their experiences and the impact on them personally and professionally. Secondly, we are conscious that high profile cases are likely to represent the tip of this iceberg, in two important respects. One is the number of pre-action letters that are issued in cases that never reach court as they result in a settlement or other form of agreement. The other is the chilling effect of SLAPPs – the perfectly appropriate news investigations that may be curtailed or not even started because of the fear or the risk of their incurring the crippling expense of High Court litigation. 

 The Call states 

The term SLAPPs is commonly used to describe activity that aims to discourage public criticism through an improper use of the legal system. 

SLAPPs have two key features: 

• They target acts of public participation. Public participation can include academic research, journalism and whistle-blowing activity concerned with matters of societal importance, such as illicit finance or corruption. 

• They aim to prevent information in the public interest from being published. This can be by threatening or bringing proceedings which often feature excessive claims. 

Individuals or organisations wishing to prevent information reaching the public eye engage reputation management firms or legal professionals to help them do so. This will often result in communications to the targeted individuals or organisations which threaten litigation, though the desired outcome is to prevent further investigations from taking place. Occasionally SLAPPs serve to divert attention from legitimate enquiries, by commencing action on spurious points such that the target’s resources are consumed and taken away from their initial focus. SLAPPs are often framed as legal cases, but they represent an abuse of law and procedure as their principal objective is stifling public debate, rather than the pursuit of a legal remedy. SLAPPs are frequently threatened or brought in defamation law, though increasingly data protection and privacy law is being misused against free speech within the law. 

Why are we looking at this issue? 

The Government is concerned that SLAPPs threaten free speech within the law and the rule of law, which are fundamental parts of our democratic tradition. Public watchdogs, including the press and public officials, are vital in ensuring accountability and transparency in our legal system. We are aware that SLAPPs interfere with parliamentary affairs: reports suggest parliamentary clerks have been subject to SLAPPs such that their constitutional duties are impeded. 

SLAPPs are often brought by powerful entities whose resources vastly exceed those whom they seek to silence, resulting in public interest reporting being withdrawn pre- emptively to avoid expensive confrontation. This means a single successful SLAPP can have far-reaching consequences, in effect censoring others who fear similar tactics. 

Provisional data from the Coalition Against SLAPPs in Europe (CASE) estimates there were 14 SLAPPs cases in the UK in 2021, an increase on the two cases in both 2020 and 2019 and one case in 2018. Whilst this may appear to be a small number of cases, we are issuing this Call for Evidence to uncover information about cases which might have gone unrecorded. We believe there will be many, as well as cases which never reached court because the respondent was intimidated into settling, which are likely to far exceed the number of cases which reach court. The think tank Foreign Policy Centre found in its 2020 survey of 63 investigative journalists working globally on corruption that civil legal cases, including cease and desist letters, surveillance, interrogation by authorities and smear campaigns, were experienced by more than 50% of respondents. 73% of those receiving threats had been threatened with legal action. 61% of respondents also reported that their investigations had uncovered a link (directly or indirectly) with UK financial and legal jurisdictions.  

The Government is supportive of media freedom here and abroad. We have taken action to protect the press through the National Action Plan on the Safety of Journalists led by the Department for Digital, Culture, Media and Sport and the Home Office, which provides measures to counter threats to journalists’ physical safety. 

The Foreign, Commonwealth and Development Office lead on the Government’s participation in and support of the Media Freedom Coalition, a partnership of countries working together committed to media freedom and safety of journalists and to hold to account those who would harm journalists for doing their job. Members of the Coalition have signed the Global Pledge on Media Freedom, a written commitment to improving media freedom domestically and working together internationally. 

Whilst SLAPPs are typically designed to intimidate opponents psychologically, there is evidence suggesting that these threats can escalate into physical harm. Tragic cases overseas, such as the murder of Daphne Caruana Galizia who reportedly faced over forty SLAPPs cases at the time of her death, illustrate how public interest investigative reporting can attract intimidation by lawsuit and, separately, risk to physical safety. In the first instance this Call for Evidence focuses on establishing evidence about the use of SLAPPs in England and Wales, before focusing on reforms within defamation law, which to date has been the primary vehicle for SLAPPs cases. We welcome broader suggestions on how to address SLAPPs to inform Government action to curb this abuse of law.

The Call centres on a SLAPPs Questionnaire -

Impact on SLAPPs recipients 

Question 1: Have you been affected personally or in the conduct of your work by SLAPPs? If so, please provide details on your occupation and the impact SLAPPs had, if any, on your day to day activity including your work and wellbeing. 

Question 2: If you have been affected by SLAPPs, please provide details on who issued the SLAPP (for example, a legal or public relations professional), the form (for example, an email or letter) and the content. Was legal action mentioned? If yes, please provide details on the type of action. 

Question 3: If you have been subject to a SLAPP action how did it proceed? For example, a pre-action letter or a formal court claim resulting in a hearing. Did you settle the claim and what was the outcome of the matter? 

Question 4: If you are a member of the press affected by SLAPPs, has this affected your editorial or reporting focus? Please explain if it did or did not do so, including your reasons. 

Question 5: If you have been affected by SLAPPs, did you report this to anyone? Please explain if you did or did not do so, including your reasons. What was the outcome? 

Question 6: If you have been affected by SLAPPs, please provide details on the work you were undertaking at the time, including the subject matter referred to by SLAPPs. 

Legislative reforms Statutory definition for SLAPPs 

Question 7: Do you agree that there needs to be a statutory definition of SLAPPs? 

Question 8: What approach do you think should be taken to defining SLAPPs? For example, should it be to establish a new right of public participation? What form should that take? 

Question 9: If a new right of public participation were introduced, should it form an amendment to the Defamation Act 2013, or should it be a free-standing measure, recognising that SLAPP cases are sometimes brought outside of defamation law? 

Question 10: Do you think the approach should be a definition based on various criteria associated with SLAPPs and the methods employed? 

Question 11: Are there any international models of SLAPP legislation which you consider we should draw on, or any you consider have failed to deal effectively with SLAPPs? Please give details. 

Question 12: Would you draw any distinction in the treatment of individuals and corporations as claimants in drawing up definitions for SLAPP type litigation? 

Reforms stemming from there being a defined cohort of SLAPPs cases 

Question 13: Which other reform options for tackling SLAPPs would you place on a statutory footing? Please give reasons. 

Question 14: Are there additional reforms you would pursue through legislation? Please give reasons. 

Defamation (libel) laws 

The Serious Harm Defence 

Question 15: Does the serious harm test in defamation cases have any effect on SLAPPs claims? 

Question 16: Are there any reforms to the serious harm test that could be considered in SLAPPs cases? 

The defence of Truth 

Question 17: Does the truth defence in defamation cases have any effect on SLAPPs claims? 

Question 18: Are there any reforms to the defence of truth that could be considered in SLAPPs cases? For example, should we reverse the burden of proof in SLAPPs cases, so that claimants have to demonstrate why a statement is not true? 

The defence of Honest Opinion 

Question 19: Does the honest opinion defence in defamation cases have any effect on SLAPPs claims? 

Question 20: Are there any reforms to the honest opinion defence that could be considered in SLAPPs cases? 

The defence of Public Interest 

Question 21: How far does the public interest defence in defamation cases provide a robust enough defence in SLAPPs claims? 

Question 22: Are there any reforms to the public interest defence that could be considered in SLAPPs cases? 

Reports protected by Privilege 

Question 23: Does the privilege defence in defamation cases have any effect on SLAPPs claims? 

Question 24: Are there any reforms to the privilege defence that could be considered in SLAPPs cases? 

Question 25: Do you have any views on whether qualified privilege should be extended in relation to reporting of Parliamentary debate of SLAPPs. 

Libel Tourism 

Question 26: To what extent does the appropriate jurisdiction test assist as a defence to defamation in SLAPPs claims? 

Question 27: Are there any reforms to the appropriate jurisdiction test that could be considered in SLAPPs cases? 

Other Possible Defamation reforms on SLAPPs 

Question 28: Do you consider that the Government should consider reforming the law on actual malice to raise the threshold for defamatory statements made against SLAPP claimants? Please give reasons. 

Question 29: If you agree the Government should pursue actual malice reforms, what form should these take? 

Other Possible Reforms 

Question 30: Are there any other areas of defamation law that you consider may be reformed to address the problems SLAPPs cases give rise to? 

Procedural reforms 

Pre-Action Protocols 

Question 31: Do you have any views or experience on how the Pre-Action Protocol for Media and Communications operates in SLAPPs cases? If so, to what extent does it help to regulate the conduct of SLAPPs claims? Please explain your response. 

Question 32: Do you have any views or suggestions on amendments to Pre-Action Protocols which would improve upon existing pre-action conduct in SLAPP cases? Please explain your response. 

Strike-Outs 

Question 33: To what extent do you consider that SLAPP type litigation represents an abuse of process, and should be considered by courts for strike-out action? 

Question 34: How would you propose to reform or strengthen the use of strike-out in addressing SLAPP type litigation? 

Civil Restraint Orders 

Question 35: Are Civil Restraint Orders currently an effective procedure against SLAPPs litigants? If not, what reforms do you propose? Question 36: Should the court consider anything beyond the current issues of number of applications and merits of a case when considering whether to issue a CRO? 

Other procedural reforms 

Question 37: Do you have any other suggestions for procedural reform to be pursued either by the Government or considered by the judiciary or Civil Procedure Rule Committee in relation to SLAPPs cases? Should a permission stage be applied to SLAPPs cases? 

Regulatory reforms 

Solicitors Regulation Authority Guidance on SLAPPs 

Question 38: If you are a solicitor, does the SRA guidance provided on SLAPPs help you understand your professional duties in conducting disputes? Please explain your answer. 

Reporting SLAPPs 

Question 39: If you have been affected by SLAPPs, did you report the issue to a professional regulator? Please explain and give reasons for your decision. If you did so, what was the outcome? 

Defamation costs reforms 

Question 40: How was your SLAPP funded (private funding, CFA, other (please specify))? 

Question 41: How were adverse costs addressed (private funding, ATE, other (please specify))? 

Question 42: Please give details of the costs of the case, broken down (i) by stage and (ii) by which party had to pay them. 

Question 43: Do you agree that a formal costs protection regime (based on the ECPR) should be introduced for (i) all defamation cases, or (ii) SLAPPs cases only – please give reasons? 

Question 44: If so, what should the default levels of costs caps be for (i) all defamation cases, or (ii) SLAPPs cases only – please give reasons? 

Question 45: Do you have any other suggestions as to how costs could be reformed in (i) all defamation cases, or (ii) SLAPPs cases only – please give reasons?

Social Media

Yesterday's report by the House of Representatives Select Committee on Social Media and Online Safety reflected the following terms of reference.

The Committee will inquire into: 

a) the range of online harms that may be faced by Australians on social media and other online platforms, including harmful content or harmful conduct; 

b) evidence of: i) the potential impacts of online harms on the mental health and wellbeing of Australians; ii) the extent to which algorithms used by social media platforms permit, increase or reduce online harms to Australians; iii) existing identity verification and age assurance policies and practices and the extent to which they are being enforced; 

c) the effectiveness, take-up and impact of industry measures, including safety features, controls, protections and settings, to keep Australians, particularly children, safe online; 

d) the effectiveness and impact of industry measures to give parents the tools they need to make meaningful decisions to keep their children safe online; 

e) the transparency and accountability required of social media platforms and online technology companies regarding online harms experienced by their Australians users; 

f) the collection and use of relevant data by industry in a safe, private and secure manner; 

g) actions being pursued by the Government to keep Australians safe online; and 

h) any other related matter. 

The resultant Recommendations were

R 1  The Committee recommends that the Australian Government propose the appointment of a House Standing Committee on Internet, Online Safety and Technological Matters, from the commencement of the next parliamentary term. 

R 2  The Committee recommends that, subject to Recommendation 1, the Australian Government propose an inquiry into the role of social media in relation to democratic health and social cohesion, to be referred to the aforementioned committee or a related parliamentary committee. 

R 3  The Committee recommends that the eSafety Commissioner undertakes research focusing on how broader cultural change can be achieved in online settings. 

R 4  Subject to the findings in Recommendation 3, the Committee recommends that the Australian Government establishes an educational and awareness campaign targeted at all Australians, focusing on digital citizenship, civics and respectful online interaction. 

R 5   The Committee recommends that the eSafety Commissioner examine the extent to which social media companies actively prevent: § recidivism of bad actors, § pile-ons or volumetric attacks, and § harms across multiple platforms.  The eSafety Commissioner should then provide the Australian Government with options for a regulatory framework, including penalties for repeated failures. 

R 6  The Committee recommends that the Office of the eSafety Commissioner be provided with adequate appropriations to establish and manage an online single point of entry service for victims of online abuse to report complaints and be directed to the most appropriate reporting venue, dependent on whether their complaints meet the requisite threshold, and in consideration of a variety of audiences such as children, parents/carers, women, people from culturally and linguistically diverse backgrounds, and other relevant vulnerable groups. 

R 7  The Committee recommends that the Australian Government refer to the proposed House Standing Committee on Internet, Online Safety and Technological Matters, or another committee with relevant focus and expertise, an inquiry into technology-facilitated abuse, with terms of reference including: § The nature and prevalence of technology-facilitated abuse; § Responses from digital platforms and online entities in addressing technology-facilitated abuse, including how platforms can increase the safety of their users; and § How technology-facilitated abuse is regulated at law, including potential models for reform. 

R 8  The Committee recommends that the Australian Government significantly increase funding to support victims of technology-facilitated abuse, through existing Australian Government-funded programs. This should include additional funding for specialised counselling and support services for victims; and be incorporated in the next National Action Plan to End Violence Against Women and Children 2022-2032. 

R 9  The Committee recommends that future reviews of the operation of the Online Safety Act 2021 take into consideration the implementation of the Safety by Design Principles on major digital platforms, including social media services and long-standing platforms which require retrospective application of the Safety by Design Principles. 

R 10  The Committee recommends that the Department of Infrastructure, Transport, Regional Development and Communications, in conjunction with the eSafety Commissioner and the Department of Home Affairs, examine the need for potential regulation of end-to-end encryption technology in the context of harm prevention. 

R 11  The Committee recommends that the eSafety Commissioner, as part of the drafting of new industry codes and implementation of the Basic Online Safety Expectations: § Examine the extent to which social media services adequately enforce their terms of service and community standards policies, including the efficacy and adequacy of actions against users who breach terms of service or community standards policies; § Examine the potential of implementing a requirement for social media services to effectively enforce their terms of service and community standards policies (including clear penalties or repercussions for breaches) as part of legislative frameworks governing social media platforms, with penalties for non-compliance; and § Examine whether volumetric attacks may be mitigated by requiring social media platforms to maintain policies that prevent this type of abuse and that require platforms to report to the eSafety Commissioner on their operation. 

R 12 The Committee recommends that the eSafety Commissioner examine the extent to which social media companies actively apply different standards to victims of abuse depending on whether the victim is a public figure or requires a social media presence in the course of their employment, and provides options for a regulatory solution that could include additions to the Basic Online Safety Expectations. 

R 13  The Committee recommends that the eSafety Commissioner, in conjunction with the Department of Infrastructure, Transport, Regional Development and Communications and the Department of Home Affairs and other technical experts as necessary, conduct a review of the use of algorithms in digital platforms, examining: § How algorithms operate on a variety of digital platforms and services; § The types of harm and scale of harm that can be caused as a result of algorithm use; § The transparency levels of platforms’ content algorithms; § The form in which regulation should take (if any); and § A roadmap for Australian Government entities to build skills, expertise and methods for the next generation of technological regulation in order to develop a blueprint for the regulation of Artificial Intelligence and algorithms in relation to user and online safety, including an assessment of current capacities and resources. 

R 14  The Committee recommends that the eSafety Commissioner require social media and other digital platforms to report on the use of algorithms, detailing evidence of harm reduction tools and techniques to address online harm caused by algorithms. This could be achieved through the mechanisms provided by the Basic Online Safety Expectations framework and Safety By Design assessment tools, with the report being provided to the Australian Government to assist with further public policy formulation. 

R 15  The Committee recommends that, subject to Recommendation 19, the proposed Digital Safety Review make recommendations to the Australian Government on potential proposals for mandating platform transparency. 

R 16  The Committee recommends the implementation of a mandatory requirement for all digital services with a social networking component to set default privacy and safety settings at their highest form for all users under 18 (eighteen) years of age. 

R 17  The Committee recommends the implementation of a mandatory requirement for all technology manufacturers and providers to ensure all digital devices sold contain optional parental control functionalities. 

R 18  The Committee recommends that the Department of Infrastructure, Transport, Regional Development and Communications conduct a Digital Safety Review on the legislative framework and regulation in relation to the digital industry. The Digital Safety Review should commence no later than 18 months after the commencement of the Online Safety Act 2021, and provide its findings to Parliament within twelve (12) months. 

R 19  The Committee recommends that, subject to Recommendation 18, the Digital Review examine the need and possible models for a single regulatory framework under the Online Safety Act, to simplify regulatory arrangements. 

R 20  The Committee recommends that the Digital Review include in its terms of reference: § The need to strengthen the Basic Online Safety Expectations to incorporate and formalise a statutory duty of care towards users; § The scope and nature of such a duty of care framework, including potential models of implementation and operation; § Potential methods of enforcement to ensure compliance, including penalties for non-compliance; and § The incorporation of the best interests of the child principle as an enforceable obligation on social media and other digital platforms, including potential reporting mechanisms. 

R 21  The Committee recommends that the eSafety Commissioner: § Increase the reach of educational programs geared at young people regarding online harms, with a particular focus on reporting mechanisms and the nature of some online harms being a criminal offence; § Formalise a consultation and engagement model with young people through the Australian Government’s Youth Advisory Council in regards to educational themes and program delivery; and § Report to the Parliament on the operation and outcomes of the program, including research identifying whether this has resulted in a reduction in online harm for young people. 

r 22  The Committee recommends that the eSafety Commissioner work in consultation with the Department of Education, Skills and Employment to design and implement a national strategy on online safety education designed for early childhood, and primary school-aged children, and secondary school-aged young people, including: § A proposed curriculum, informed by developmental stages and other relevant factors; § Potential methods of rollout, including consultation and engagement with children, young people, child development and psychology experts, digital education experts and other specialists in online harm; and § A roadmap provided to parents of these age groups detailing methods of addressing online harm. 

R 23  The Committee recommends that the eSafety Commissioner design and administer an education and awareness campaign aimed at adults, particularly in relation to vulnerable groups such as women, migrant and refugee groups, and people with disabilities, with a focus on the eSafety Commissioner’s powers to remove harmful content and the mechanisms through which people can report harmful content and online abuse. 

R 24  The Committee recommends that the Australian Government work with states and territories to ensure that relevant law enforcement agencies are appropriately trained on how to support victims of online harm. This should include trauma-informed approaches as well as a comprehensive understanding of police powers and other relevant avenues, such as the relevant powers of the eSafety Commissioner. 

R 25  The Committee recommends that the Australian Government review funding to the eSafety Commissioner within twelve (12) months to ensure that any of the Committee’s recommendations that are agreed to by the Government and implemented by the Office of the eSafety Commissioner are adequately and appropriately funded for any increased resource requirements. 

R 26  The Committee recommends that the Online Safety Youth Advisory Council, via the eSafety Commissioner, provide a response to this report and its recommendations within six (6) months of its establishment and full membership.