05 December 2019

Surveillance Gap

'The Surveillance Gap: The Harms of Extreme Privacy and Data Marginalization' by Michele Gilman and Rebecca Green in (2018) 42 New York University Review of Law and Social Change 253 comments
We live in an age of unprecedented surveillance, enhanced by modern technology, prompting some to suggest that privacy is dead. Previous scholarship suggests that no subset of the population feels this phenomenon more than marginalized communities. Those who rely on public benefits, for example, must turn over personal information and submit to government surveillance far more routinely than wealthier citizens who enjoy greater opportunity to protect their privacy and the ready funds to secure it. This article illuminates the other end of the spectrum, arguing that many individuals who may value government and nonprofit services and legal protections fail to enjoy these benefits because they reside in a “surveillance gap.” These people include undocumented immigrants, day laborers, homeless persons, and people with felony conviction histories suffering collateral consequences of their convictions. Members of these groups often remain outside of the mainstream data flows and institutional attachments necessary to flourish in American society. The harms that surveillance gap residents experience can be severe, such as physical and mental health injuries and lack of economic stability, as well as data marginalization and resulting invisibility to policymakers. In short, having too much privacy can be as injurious as having too little.
The sources of the surveillance gap range from attempts to contain and control marginalized groups to data silos to economic exploitation. This article explores the boundaries of the surveillance gap, evaluates how this emerging concept fits within existing privacy paradigms and theoretical frameworks, and suggests possible solutions to enhance the autonomy and dignity of marginalized people within the surveillance gap.
The authors state
Although we live in a highly surveilled society, some people among us are functionally invisible. For example, low-wage workers — many of whom are undocumented immigrants — toil out of sight in an underground economy. A lack of a conventional paper trail or pay stub system linking workers to employers exposes these workers to potential wage theft and dangerous working conditions. While these workers are perilously out of reach of government and nonprofit organizations that could otherwise provide assistance, they are also subject to heightened forms of surveillance, typically under the increasingly watchful eye of agencies like Immigration and Customs Enforcement. Likewise, homeless persons’ lives are defined by extremes: although they tend to live their lives in public, they are simultaneously governed by laws that criminalize their behavior, steadily pushing them out of view. Tellingly, when former Governor of Virginia Terry McAuliffe sought to restore the ability to vote to constituents who had committed felony crimes, his office was unable to find thousands of people — people who at one point spent time in the prison and parole systems where their
whereabouts were always known to authorities. These examples illustrate that marginalized people experience privacy differently than most Americans. Specifically, they experience privacy extremes—being seen or tracked too much or too little. 
Existing privacy scholarship has largely focused on the harms derived from too little privacy, and, in this vein, several scholars have highlighted the particularly intense surveillance of low-income people. This article examines the other end of the spectrum—the surveillance gap. Life in the surveillance gap can be isolating, stigmatizing, dangerous, and harmful to a person’s physical and mental health. For one, legal protections available to other members of society remain out of reach to those in the surveillance gap. People also lose out on potential sources of economic and social support, because those who seek to provide services to disadvantaged members of our society often find it nearly impossible to reach them. Moreover, those who fall within the surveillance gap are not included within big data streams that ultimately shape public policy, thus leaving out their experiences and needs from the calculus that goes into creating policy. Frustratingly, the challenges facing these groups remain invisible, further. entrenching these groups’ marginalization. 
The surveillance gap has multiple causes, ranging from data silos to poor data sharing, and from benign neglect to administrative systems that purposefully exclude certain people. This article seeks to identify and understand the causes, contours, and consequences of the surveillance gap and to outline legal and policy tools for addressing it. Part II provides case studies of populations living in the surveillance gap, including undocumented immigrants, day laborers, homeless persons, and people with felony conviction histories. Part III situates the surveillance gap within several scholarly streams. First, it assesses the surveillance gap through the lens of scholarship that differentiates between privacy harms experienced by varying groups. Second, it builds on insights from feminist legal theory involving the public/private binary and the harms associated with having too much privacy, wrestling with the tensions identified by feminists between liberalism’s ideals and individuals’ lived realities. Third, it examines notions of “choice” and “consent” in consumer and criminal privacy law, testing whether such frameworks are meaningful with regard to marginalized groups. Fourth, it adds a new dimension to emerging concepts of privacy as contextual. Fifth, it reviews fundamental rights theory’s impact on the surveillance gap, positing that the gap cannot be found in legal regimes that view privacy as a fundamental human right, such as in the European Union. Part IV suggests ways to address harms that arise in the surveillance gap while also respecting desirable forms of privacy and the dignity and autonomy of marginalized persons.

03 December 2019

Victorian workers compensation scheme

The Victorian Ombudsman's report WorkSafe 2: Follow-up investigation into the management of complex workers compensation claims offers a disquieting critique.

The report states
1. This investigation looked at the compensation and support provided to people injured at work in Victoria, particularly those with complex injuries. This follows an earlier investigation by the Ombudsman in 2016 which found the scheme had failed some particularly vulnerable people. 
2. Victoria’s workers compensation scheme, also known as ‘WorkCover’, provides a range of entitlements to people who are injured at work under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Entitlements include ‘weekly payments’ for loss of income if they are unable to work and payment of the reasonable costs of medical treatment and other rehabilitative services directly related to their injury.  
3. The scheme is funded by compulsory employer insurance and administered by WorkSafe. WorkSafe is responsible for ensuring appropriate compensation is paid to injured workers, while also maintaining a financially sustainable scheme. 
4. WorkSafe does not manage WorkCover claims itself, instead outsourcing this to five claims agents. The agents are commercial organisations and as a result have a vested interest in the outcome of individual claims. Notwithstanding this, agents are required to stand in the shoes of WorkSafe and make independent decisions on claims in line with the Act. The Ombudsman’s 2016 investigation 
5. In 2016, the Ombudsman investigated WorkSafe and its agents, focussing on agents’ management of ‘complex claims’. These claims involve workers who were unable to work long term and/ or required long term medical treatment. While these claims do not represent the majority, research has shown that these workers are likely to have complex health conditions and represent a substantial and disproportionately high cost to the scheme and broader society. 
6. The investigation found cases of unreasonable decision making on complex claims across all five agents, the evidence of which the Ombudsman said was ‘too strong to be explained away as a few “bad apples’’’. This included numerous examples of agents ‘cherry-picking’ evidence to support a decision, while disregarding overwhelming evidence to the contrary. In many cases, agents were found to defend unreasonable decisions when injured workers disputed them, despite knowing they would likely be overturned. 
7. The investigation acknowledged that as commercial organisations, it was reasonable for the agents to expect to profit from managing WorkCover claims. However, the evidence suggested that in the case of complex claims, financial reward and penalty measures in agents’ contracts with WorkSafe were driving a focus on terminating and rejecting claims to maximise profit, at the expense of sound decision making. 
8. The investigation also identified deficiencies in WorkSafe’s oversight of the scheme, particularly in relation to agent decision making on complex claims.  
9. The Ombudsman made 15 recommendations to WorkSafe which included: • improving WorkSafe’s oversight of complex claims and its use of information from complaints, stakeholder feedback and dispute outcomes to identify potential systemic issues • reviewing the financial reward and penalty measures to increase agents’ focus on quality decisions and sustainable return to work outcomes for injured workers • providing training and additional guidance to agent staff. 
10. The Ombudsman also made two recommendations to the Victorian Government, which WorkSafe said it did not support. These related to the process for injured workers to dispute claim decisions, which involves conciliation and then court. 
Follow-up investigation 
11. While WorkSafe and the agents have implemented many changes since the 2016 investigation, the Ombudsman continues to receive many complaints about WorkSafe and its agents, with nearly 700 complaints received in 2017-18 and about 800 in 2018-19. 
12. In May 2018, the Ombudsman decided to conduct a ‘follow-up’ investigation to examine whether the implementation of the recommendations from the 2016 investigation had improved agent practices and decision making and the effectiveness of WorkSafe’s oversight. 
13. This follow-up investigation concentrated on agent decision making on complex claims in 2017-18, which were primarily long term claims where an injured worker had not worked and had been receiving weekly payments for 130 weeks or more (two and a half years). As at 30 June 2018, these claims represented about a quarter of the 18,519 active weekly payments in the scheme, or about seven per cent of the total 63,085 active claims in the scheme (including those involving medical treatment only). 
14. The investigation involved: • reviewing 102 complex claim files in depth, some of which were randomly selected • reviewing WorkSafe’s handling of complaints received in 2017-18 about agent decisions and Independent Medical Examiners (IMEs), about half of which were randomly selected • meeting with WorkSafe during the investigation and interviewing 16 witnesses, including seven Conciliation Officers and the then Convenor of Medical Panels • reviewing othe rinformation, including a sample of agent staff email records, policies and procedures, research reports, data, written submissions from stakeholders and complaints to the Ombudsman. 
15. The investigation also asked WorkSafe to review a number of decisions on the complex claim files reviewed, which appeared unreasonable but had not been overturned through the dispute process. As a result, WorkSafe and the agents withdrew 30 decisions across 19 claims and back-paid about $70,000 collectively to two injured workers. 
Unreasonable decision making by agents 
16. Although witnesses reported to this investigation a temporary ‘marked change’ in agent behaviour after the Ombudsman’s 2016 report was released, the Ombudsman identified continuing issues with unreasonable agent decision making on complex claims.  
17. The evidence obtained suggests that the Ombudsman’s 2016 recommendations were not enough to change agent behaviour and stop unreasonable decision making on complex claims. After two investigations by the Ombudsman and a number of reviews commissioned by WorkSafe, the evidence points to this being a systemic problem. 
Unreasonable use of evidence 
18. Agents may consider a range of evidence when making claim decisions, including medical reports from IMEs or a worker’s treating doctors; information from an occupational rehabilitation provider; ‘circumstance’ investigation reports and surveillance footage of an injured worker. 
19. Agents are required to adhere to ‘principles of good administrative decision making’, which include that agents must consider all matters relevant to a decision; make decisions supported by the best available evidence; and give ‘proper, genuine and realistic consideration’ to the merits of a decision. 
20. This investigation found that since 2016, agents have continued to unreasonably use evidence to terminate or reject complex claims in some cases by: • conducting surveillance of workers without adequate evidence they were misrepresenting their injury • selectively using IMEs and ‘doctor shopping’, despite new measures introduced to prevent such behaviour • providing incomplete or inaccurate information to IMEs • posingleadingquestionstoIMEsand workers’ treating doctors • relying on an opinion from an IME from the incorrect specialty. 
Unfair return to work practices 
21. A key objective of the workers compensation scheme is to provide ‘effective occupational rehabilitation’ and ‘increase the provision of suitable employment to workers who are injured to enable their early return to work’. 
22. Injured workers have ‘return to work’ obligations, which include that they must make reasonable efforts to return to work and actively use an occupational rehabilitation service. If a worker does not reasonably comply with their obligations, an agent may issue a non-compliance notice, which can impact the worker’s entitlements. 
23. In the sample of complex claims reviewed, this investigation identified several non- compliance notices which had been unreasonably or incorrectly issued. This included cases where: • workers were required to participate in occupational rehabilitation at inappropriate stages of their recovery, such as a case where a worker was experiencing severe psychotic hallucinations  • selectivelyusingevidence,while ignoring other available information – even where the medical opinion relied on was unclear, contradictory or inconclusive • agents failed to genuinely consider workers’ individual circumstances and the reasonableness of their non- participation, including a case where a worker had just been released from hospital after attempting self-harm and had become homeless • agents incorrectly issued notices under the legislation. 
24. The investigation also received evidence that agents sometimes issued non- compliance notices with a focus on liability management. This included evidence from a WorkSafe-commissioned review that occupational rehabilitation consultants perceived in some cases that referrals to their services were ‘not in the interest of the injured worker and were being used as a tool to cut benefits’. 
Agents acting unreasonably during conciliation 
25. This investigation also looked at agents’ actions with respect to claim decisions disputed at conciliation. 
26. When a worker requests conciliation, agents are required to review the disputed decision and withdraw it before conciliation if it would not have a reasonable prospect of success at court (ie not be ‘sustainable’). However, a Conciliation Officer is only able to direct an agent to overturn their decision where there is ‘no arguable case’, which is a lower threshold. 
27. While overall the number of disputes at conciliation has reduced since the Ombudsman’s 2016 investigation, the rate at which decisions are withdrawn or changed through the dispute process remains high. In 2017-18, about half of the decisions disputed at conciliation and 70 per cent of decisions that proceeded to court were varied or overturned. 
28. Although the dispute process should provide a ‘safety net’, the investigation found that unreasonable decisions are slipping through the cracks. Agents continue to defend ‘arguable’ decisions during conciliation, even if they would not be ‘sustainable’ at court, rendering Conciliation Officers hamstrung to resolve such disputes. Conciliation Officers also reported particular difficulties resolving factual disputes. The result is that injured workers are left to contemplate the costly, stressful and time-consuming path to court if they wish to dispute a decision further. Most workers simply give up. 
Decisions contrary to binding Medical Panel opinions 
29. Where a dispute involves a medical question, a Conciliation Officer or court may refer questions to a Medical Panel. A Panel’s opinion must be adopted, applied and accepted as ‘final and conclusive’ by all parties. 
30. WorkSafe told the investigation that where an agent seeks to revisit the same issue considered by a Medical Panel, it expects the agent to demonstrate there has been a ‘material change’ in the worker’s situation since the Panel’s opinion. This may include, for example, improvement in symptoms as a result of further treatment or an increase in the worker’s skills as a result of retraining. 
31. In the complex claims reviewed by this investigation, agents generally waited at least 12 months after a Medical Panel before re-assessing a worker’s capacity. While this is positive, the investigation identified several complex claims where agents terminated workers’ entitlements without sufficient evidence of a ‘material change’ in the worker’s condition since a Medical Panel opinion. 
The effect of financial rewards and penalties on agent decisions 
32. This investigation also revisited the financial rewards and penalties WorkSafe pays agents, based on their performance against key measures. 
33. Since the Ombudsman’s 2016 investigation, WorkSafe has made a number of changes to these, which included reducing the rewards and penalties for terminating claims, and increasing the rewards for quality decisions. 
34. The investigation found limited overt evidence in the complex claim files and sample of agent staff emails reviewed of the financial rewards and penalties influencing agent decisions. However, the investigation received evidence that some agent staff have made efforts to conceal certain behaviours and practices identified by the Ombudsman’s 2016 investigation, including agents’ focus on managing liabilities.  
35. Although less documentary evidence was identified, compared with the 2016 investigation, this investigation still found evidence showing: 36. This evidence, when combined with the extent of unreasonable decision making on complex claims identified by the investigation, raises questions about the suitability of commercial organisations to manage complex claims. 
WorkSafe’s oversight 
37. Although WorkSafe delegates the management of claims to the agents, WorkSafe has a role in overseeing agents to ensure injured workers receive appropriate compensation and are not ‘wrongfully disentitled’. 
38. WorkSafe has made a number of changes to its oversight mechanisms since 2016. However, the investigation found that WorkSafe is still not optimally using them to address unreasonable agent decision making on individual complex claims and to identify and respond to systemic issues. 
39. WorkSafe’s process for auditing the quality of agent decisions has improved since 2016. However, the investigation found that WorkSafe has not always held agents accountable for unsustainable decisions identified through the audits. In its 2017-18 audits, the investigation found instances where WorkSafe: • passed questionable decisions where the agent had only one piece of supporting evidence • re-assessed failed decisions as ‘passes’ when disputed by the agent, even if they would not hold up at court • did not require the agents to overturn most of the failed decisions.   • agents’ continued focus on terminating claims and maximising profit. This included agent staff emails where staff referred to claims which achieved a financial reward as ‘wins’;  • congratulated staff for terminating claims; discussed the monetary value to the agent of terminating individual claims; and referred to targets for terminating claims the influence of the rewards and penalties on agents’ offers at conciliation, which meant that offers were not always informed by the merits of a decision. • 
40. Complaints and stakeholder feedback also offer WorkSafe opportunities to check agents’ performance and identify areas for improvement; however, the investigation found that its role in complaints about agent decisions is unclear. On the one hand, WorkSafe considers agents maintain authority on the vast majority of decisions and that the dispute process is the appropriate mechanism for an injured worker to dispute an agent decision. On the other hand, WorkSafe has the power to direct an agent to change a decision and has established a procedure for when it identifies a worker has been ‘wrongfully disentitled’. 
41. The investigation found that this has led to inconsistent approaches in the way WorkSafe handles complaints, including cases where WorkSafe: • referred workers to conciliation, even though WorkSafe identified concerns with the agent’s decision and could have resolved the complaint itself • accepted agent responses without questioning whether they were correct or reasonable. 
42. WorkSafe appears reluctant to adequately deal with unreasonable agent decision making when it is brought to their attention, which raises the troubling prospect that WorkSafe feels beholden to the agents and dependent on their participation to deliver a financially viable scheme. 
43. Given WorkSafe’s statutory responsibility to ensure appropriate compensation is paid to injured workers ‘in the most socially and economically appropriate manner, as expeditiously as possible’, it must do more. 
Recommendations 
44. Nothing short of wholesale changes to the system will address the issues identified by both the 2016 investigation and the current one. 
45. The Ombudsman therefore recommended the Victorian Government: • commission an independent review of the agent model to determine how and by whom complex claims should be managed • introduce a new dispute resolution process which allows for binding determinations on the merits of claim decisions; is inexpensive; and provides timely outcomes. 
46. The Minister for Workplace Safety, the Honourable Jill Hennessy MP said the Victorian Government accepted both recommendations, stating she was ‘committed to reform’ and ‘disturbed by the findings’ of the investigation. 
47. Given the time it will take to implement these recommendations, the Ombudsman also made 13 recommendations to WorkSafe to address the immediate issues identified by the investigation. This includes a recommendation that WorkSafe establish a dedicated business unit to independently review disputed decisions when requested by workers following unsuccessful conciliation. WorkSafe accepted all 13 recommendations.

Loyalty Schemes

The Australian Competition and Consumer Commission (ACCC) final report on Customer Loyalty Schemes notes that the ACCC
has examined consumer and competition issues that are associated with consumer-facing customer loyalty schemes (loyalty schemes) in Australia, including the way in which loyalty schemes collect, use and disclose consumer data. Consumer and competition issues arising from customer loyalty schemes are a current priority for the ACCC. The operators of loyalty schemes must ensure they comply with the Australian Consumer Law (ACL) and make sure their terms and conditions do not include any unfair contract terms. It is also paramount that the operators of loyalty schemes ensure consumers have a genuine opportunity to review and understand the policy and operation of loyalty schemes to avoid misleading and deceptive conduct. 
A significant number of Australian consumers have reported experiencing a variety of issues participating in loyalty schemes.
The ACCC’s report on the major loyalty schemes in Australia focused on the following key issues:
• Consumer issues: whether consumers are properly informed and receive the benefits advertised by loyalty schemes. 
• Data practices: the collection, use and disclosure of consumer data by loyalty schemes and their partners. 
• Competition issues: the potential impact of loyalty schemes on competing firms, in particular on new entrants.
The  report highlight the consumer and competition issues associated with loyalty schemes 'to both educate consumers and inform the industry of the ACCC’s concerns with certain practices'.
Based on the information gathered during this review, the ACCC is concerned about a range of business practices in the loyalty scheme industry which have the potential to cause widespread consumer detriment. 
They include loyalty schemes:
• that do not present their terms, conditions and privacy policies in a way that consumers can readily understand 
• that make unilateral changes to their terms and conditions in a way that may be unfair to consumers 
• collecting, using and disclosing consumer data in ways that do not align with consumers’ preferences.
This includes loyalty schemes not providing sufficient transparency and meaningful consumer control over the collection, use and disclosure of consumer data, and engaging in the following practices:
o seeking broad consents from consumers and making vague disclosures to them about the collection, use and disclosure of their data 
o providing consumers with limited insight and control over the sharing of their data with unknown third parties 
o providing a limited ability for consumers to opt out of targeted advertising delivered by third parties on behalf of loyalty schemes.
The report states
The ACCC has outlined in this report its concerns and views on certain practices, and calls on operators of loyalty schemes to review and consider these practices in the context of the ACL. In particular, loyalty schemes should consider whether consumers are being misled or subject to unfair contract terms. Further, loyalty schemes should review their approach to presenting terms and conditions to ensure consumers have a genuine opportunity to review and understand their policy and operation.
The ACCC notes that following the release of the Customer Loyalty Schemes draft report (draft report), some loyalty scheme operators have implemented or announced changes to their schemes, most with the aim of improving consumer understanding. While acknowledging these changes, the ACCC remains concerned about a range of practices which persist within particular schemes and therefore continues to recommend changes to particular industry practices and consumer and privacy laws. The ACCC considers that these recommendations will both protect consumers and ensure consumer trust in the digital economy and data based innovation.
Having placed the industry on notice, the ACCC encourages consumers to contact us and report concerns where these practices are continuing with their loyalty schemes. The ACCC will consider these reports taking into account the principles and priorities in its compliance and enforcement policy before deciding whether enforcement action will be required to effect broader change.
The objectives of customer loyalty schemes
Loyalty schemes are ubiquitous in many sectors of the Australian economy and are particularly prevalent in the airline, supermarket, credit card, hotel and car rental industries. Consumer participation in loyalty schemes is high and the average Australian carries four to six loyalty cards.
Fundamentally, loyalty schemes are a marketing device with the primary objective of attracting and retaining customers. Many firms invest in loyalty schemes with the aim of gaining a competitive advantage over rivals by influencing customer behaviour to encourage repeat purchases and introduce customer resistance to competing offers or products. In this sense, loyalty schemes have a dual strategy—an offensive strategy of acquiring new customers as well as a defensive strategy of retaining existing customers.
Increasingly, some larger loyalty schemes also earn significant revenue from their schemes, including by allowing affiliated retailers and other companies to purchase points for their customers. In addition, some loyalty schemes collect and use their customers’ data in order to develop consumer insights, which may be shared with or sold to other businesses, and to target customers with tailored advertising. Some loyalty schemes may also use this data to deliver targeted and personalised advertising to their own customers on behalf of other businesses. 
Consumer issues 
Consumers may benefit from their participation in loyalty schemes by receiving rewards such as discounts on products and services, and access to exclusive offers and service levels. They may receive these benefits on purchases they would have otherwise made.
Loyalty schemes can provide consumers with a range of options to earn rewards and, increasingly, customers of loyalty schemes are able to earn and spend points directly with a number of different merchants that participate within a loyalty scheme’s partner network.
The ACCC has received complaints from customers of loyalty schemes that alleged they had not earned, maintained or redeemed their points in the manner they anticipated, with many consumers reporting that they did not obtain any benefits from participation at all. Complaints included that some operators of loyalty schemes: • failed to adequately advise them about critical components of their loyalty schemes, including the need to remain ‘active’ by earning or redeeming points within a specified period to avoid the expiry of points, or about the restricted availability of redemption opportunities, and • made unilateral changes that unfairly restricted the benefits available under a loyalty scheme, for example, by unilaterally reducing the rate at which they could earn points, or the value of their points previously accumulated. 
In response to the draft report, several loyalty scheme operators submitted that they are in the process of investigating certain measures, or in some cases had already implemented them, to help facilitate well-informed consumer engagement. For example, the ACCC notes that submissions to the draft report from Virgin Australia, Flybuys, Woolworths and Qantas have highlighted changes these loyalty schemes have made, or are seeking to make, some directly in response to matters raised in the draft report. Despite these changes, the ACCC is concerned about a range of business practices in the industry and calls on operators of customer loyalty schemes to review and consider their practices in the context of the ACL. 
Recommendation 1: Improve how loyalty schemes communicate with customers
Loyalty scheme operators need to review their approach to presenting terms and conditions of loyalty schemes and ensure changes are fair and adequately notified.
Loyalty scheme operators should review their approach to presenting the terms and conditions of loyalty schemes to ensure consumers have a genuine opportunity to review and understand their policy and operation. 
More specifically, loyalty scheme operators should provide consumers with relevant information at the right time and in the right way to make informed decisions, for example: • Loyalty scheme operators should ensure that any notification about the approaching expiry of consumers’ point balances (or detrimental changes to the rate consumers earn points or the value of those points) is sufficiently prominent and appropriately targeted. For instance, the subject line of any email notification about the approaching expiry of point balances might include a statement similar to ‘Your points are about to expire’. • Frequent flyer schemes should consider disclosing any particular routes, or corresponding seasons, or classes of travel on a route, where ‘free’ seats are not available. If loyalty scheme operators contemplate a unilateral reduction in either the earn rate or redemptive value of points, then prior to making such a change, loyalty scheme operators should: • provide existing members with prominent and timely advance notice and a genuine opportunity to redeem their existing point balance, and • consider providing existing members with some form of compensation (potentially in the form of an increased point balance).
Loyalty scheme operators must ensure they comply with the ACL, including by avoiding statements that are incorrect or likely to create a false impression, and avoiding unfair contract terms.
The ACCC also notes that the findings in this report reinforce those of the ACCC’s Digital Platforms Inquiry. In particular, the ACCC considers that certain conduct by customer loyalty schemes has the potential to cause substantial consumer detriment, which should be considered as part of proposed reforms to the ACL. 
Recommendation 2: Prohibition against unfair contract terms and certain unfair trading practices 
The ACCC’s findings in this report reinforce the Digital Platforms Inquiry Final Report’s recommendations for the need for a prohibition against unfair contract terms and certain unfair trading practices.  Consistent with the Digital Platforms Inquiry Final Report’s recommendations, the ACCC recommends that the Australian Consumer Law be amended: • so that unfair contract terms are prohibited (and not just voidable) • to include a prohibition against certain unfair trading practices.
The scope of a prohibition on certain unfair trading practices should be carefully developed such that it is sufficiently defined and targeted, with appropriate legal safeguards and guidance. The ACCC notes, and is actively participating in, the current work on this issue being undertaken as part of the Consumer Affairs Australia and New Zealand (CAANZ) process, and will progress its support for the recommendation through that forum. The ACCC’s current view is that the prohibition should be directed at unfair conduct that has caused, or has the potential to cause, substantial detriment to consumers. The ACCC will continue to work through CAANZ in relation to this issue. 
Data practices 
Membership of a loyalty scheme is voluntary and generally provided at zero monetary cost to the consumer. In exchange for the benefits provided by loyalty schemes, many loyalty schemes derive value from consumers by collecting data, including personal information, about them. Increasingly, some loyalty schemes generate revenue from the data they collect about the habits, interests and preferences of their customers, which can be used to profile consumers to produce insights about their purchasing behaviour.
Loyalty schemes may collect consumer data both actively, for example, information voluntarily provided by the consumer when joining the loyalty scheme, as well as passively, for example, the background collection of data through a consumer’s use of a platform, apps on a device or use of third party websites.
The data collected by some loyalty schemes about a consumer can be further enriched by linking it with external data sources, including from data brokers or through data-sharing platforms. These external data sources collect masses of information on consumers, which can be combined with relevant data a loyalty scheme holds about its customers. The combining of data allows greater value to be extracted from many loyalty schemes’ databases for the purposes of generating insights about consumers to enable targeted advertising and personalised marketing. This data can also be used not only to improve the offerings of the loyalty scheme operator, but also to share insights with other partners or sell those insights to third parties.
While Australian consumers have different preferences, attitudes and levels of awareness when it comes to the data they share with loyalty schemes, a number of surveys have suggested that many are concerned about sharing their data with companies, including loyalty schemes. The surveys reviewed in this report suggested that many consumers are concerned about the sharing of their data with unknown third parties, targeted advertising, and whether their data is being used responsibly. Many consumers are also seeking more transparency and control over the data they provide to loyalty schemes as well as improved data practices, legislative protection and greater individual rights over their personal information. The terms and conditions of loyalty schemes’ privacy policies often prevent consumers from making informed choices that align with their privacy and data collection preferences. 
An imbalance of bargaining power and significant information asymmetries exist between consumers and the major loyalty schemes examined in this report. These are primarily seen in the broad consents that these loyalty schemes seek from consumers about the collection and use of their data, and the vague disclosures they make to consumers about how their data could be used and with which entities it could be shared. In one example, the ACCC is aware that Flybuys and Woolworths Rewards disclose in their privacy policies that they may continue to track the purchasing behaviour and transaction activities of their loyalty scheme members when they shop at Coles or Woolworths Group stores, respectively, even if they do not scan their loyalty card by automatically linking any payment card used by the member to their profile.
The ACCC’s view is that such practices affect the ability of consumers to make an informed choice that aligns with their privacy and data collection preferences by removing consumers’ ability to control how and when their data is collected. When consumers no longer want to participate in a loyalty scheme they are unlikely to actively cancel their memberships due to the effort and time required to do so—rather, they will simply stop scanning their loyalty card when they shop. The ACCC considers that irrespective of disclosure in terms and conditions or privacy policies of this practice, consumers are unlikely to know that their data is collected and used by supermarkets in cases where they have chosen not to scan their loyalty card.
The ACCC is of the view that Coles, Flybuys and Woolworths Group should end the practice of automatically linking members’ payment cards to their profile. Problematic data practices, in addition to impacting market efficiency, can cause consumer harm. These harms include decreased consumer welfare from decreased privacy, and risks to consumers from increased profiling and from discrimination and exclusion. More broadly, they may also lead to decreased consumer trust necessary to enable the continued economic and social benefits of personal data flows. 
Recommendation 3: End the practice of automatically linking members’ payment cards to their loyalty scheme profile 
Coles, Flybuys and Woolworths Group should end the practice of automatically linking customers’ payment cards to their loyalty scheme profile to track their purchasing behaviour and transaction activities when they do not scan their loyalty card. 
Recommendation 4: Improve the data practices of loyalty schemes
Loyalty schemes need to review their approach to presenting consumers with information about how they handle consumer data and provide consumers with meaningful control over their data.
Privacy policies of the loyalty schemes examined in this report are opaque and consumers are often unable to make informed choices about, and have limited control over, the collection, use and disclosure of their data. Loyalty schemes should continue to take steps to address a number of the ACCC’s concerns, including by:
• reviewing their clickwrap agreements for unfair contract terms, including by assessing the potential consumer detriment of unilateral variation terms 
• improving the clarity, accessibility, navigability and readability of privacy policies, including by standardising definitions to be consistent with those in the Privacy Act 1988 (Cth) (Privacy Act) 
• minimising information overload for consumers by prominently presenting relevant aspects of their terms, conditions and privacy policies to consumers during key interactions 
• outlining clearly with which entities consumer data is being shared and for what purposes, and drawing to consumers’ attention how their data is being handled (including, for example, by providing a prominent notice during relevant interactions with customers) 
• disclosing to consumers the sources of third party advertising, the sources of the consumer data used to inform that advertising, and the channels through which they may receive targeted advertising and how their consumer data may be used to generate leads (including, for example, via a regularly updated online notice) 
• providing consumers of loyalty schemes with more meaningful controls over the collection, use and disclosure of their data which respond to consumer demands to align the data practices of loyalty schemes with the data preferences of consumers (including, for example, pre-selected and meaningful opt-outs for targeted advertising) 
• where there are limitations to the controls (e.g. in relation to collection, use or disclosure settings such as opt-outs) that currently exist, these should be made clear to consumers.
Further, the ACCC’s concerns identified in this report have direct parallels with those identified in the ACCC’s Digital Platforms Inquiry Final Report. These include: • insufficient transparency and meaningful consumer control over the collection, use and disclosure of consumer data • a lack of informed and genuine choice for consumers engaging in the digital economy • a lack of consumer protection and effective deterrence under existing laws governing data collection. The ACCC is of the view that the findings from this review of loyalty schemes reinforces the ACCC’s findings from its Digital Platforms Inquiry, and further supports our recommendations for economy-wide changes in relation to privacy law. 
Recommendation 5: Strengthen protections in the Privacy Act and broader reform of Australian privacy law
The ACCC’s findings in this report reinforce the Digital Platforms Inquiry Final Report’s recommendations for privacy law reform.
Consistent with the Digital Platforms Inquiry Final Report’s recommendations, the ACCC recommends strengthening the Privacy Act by:
• updating the definition of ‘personal information’ in line with current and likely future technological developments to capture any technical data relating to an identifiable individual 
• strengthening notification requirements to ensure that the collection of consumers’ personal information directly or by a third party is accompanied by a notice of the collection that is concise, intelligible and easily accessible, written in clear and plain language, provided free of charge, and accompanied by appropriate measures to reduce the information burden on consumers 
• strengthening consent requirements to require that consents are freely given, specific, unambiguous and informed, and that any settings for additional data collection must be preselected to ‘off’ 
• ensuring that consents are required whenever personal information is collected, used or disclosed by an entity subject to the Privacy Act, unless the personal information is necessary to perform a contract to which a consumer is a party, required under law, or otherwise necessary in the public interest 
• requiring entities subject to the Privacy Act to erase the personal information of a consumer without undue delay on receiving a request for erasure from the consumer, except in certain circumstances 
• introducing direct rights for individuals to bring actions or class actions before the courts to seek compensation for an interference with their privacy under the Privacy Act.
As well as these recommendations for targeted amendments to the Privacy Act, the ACCC is also recommending broader reform of the Australian privacy regime to maintain effective protection of consumers’ personal information in the longer term. This includes consideration of the current objectives and scope of the Privacy Act, and the introduction of a statutory tort for serious invasions of privacy as recommended by the Australian Law Reform Commission. The relevant recommendations as proposed in the ACCC’s Digital Platforms Inquiry are reproduced in full in appendix F.
The ACCC notes it has undertaken enforcement action in relation to alleged misleading and deceptive conduct or misleading representations made by entities engaged in the digital economy. In particular, in relation to HealthEngine’s alleged sharing of consumer data without adequate disclosure to consumers and Google’s alleged representations around the data it collects, keeps and uses. These proceedings are being defended and are currently before the Court. The ACCC will continue to consider whether any other conduct of entities engaged in the digital economy raises concerns under the Competition and Consumer Act 2010 (Cth) and whether it is appropriate for the ACCC to take enforcement action. 
Competition issues 
Loyalty schemes have the potential to raise competition concerns. This can occur depending on the extent to which loyalty schemes ‘lock up’ customers and introduce switching costs that increase barriers to entry and expansion for rival firms. If barriers are enduring and induce exit or deter entry, consumers are likely to be worse off.
While not all consumers are active members of the loyalty schemes they belong to, for a significant number of consumers, loyalty schemes can strongly influence their buying behaviour. This can have implications for the ability of smaller companies or new entrants without a well-established loyalty scheme to compete.
These risks to competition could be particularly concerning given the prevalence of loyalty schemes in many concentrated markets in Australia.
Competition issues may arise not only in the primary market in which the loyalty scheme predominantly operates (for example, domestic air travel), but may also be extended to related markets through exclusive partnerships with firms supplying complementary products (for example, domestic airlines and car rental services). The barriers to competition arising from large national coalition loyalty schemes may be particularly high for smaller, regional businesses. Frequent flyer schemes have the potential to result in significant customer lock-in effects, as has occurred overseas. It appears that Qantas Frequent Flyer might have a significant impact on barriers to entry and expansion for the domestic business traveller segment. However, Virgin Australia has been successful to date in growing its Velocity loyalty scheme and market position and it is not clear that such customer lock-in effects and switching costs associated with frequent flyer schemes have resulted in major barriers to entry in this case.
In the case of supermarket loyalty schemes, while customer loyalty in this sector is currently limited, there is the potential for stronger exclusivity effects to occur in future as the major supermarkets seek to leverage their growing digital and analytical capabilities using extensive customer data.
Coalition loyalty schemes bring together a variety of partners under their programs, which allow members to earn and redeem points with a number of different merchants across the economy. The major coalition loyalty schemes in Australia are likely to assist in maintaining current market structures, while also producing consumer benefits.
The ACCC will consider any competitive effects of loyalty schemes on a case-by-case basis, including with respect to analysing any substantial market power a firm holds, and the height of barriers to entry in a market in competition law matters.

29 November 2019

Towards a uniform Defamation regime

On 3 October 2019, officers of the Australian Attorney Generals' Defamation Working Party provided instructions for drafting by the Australasian Parliamentary Counsel’s Committee to prepare public consultation legislation for the Council of Australian Governments.

The prposed Instructions to create a uniform defamation regime are
1 Name of provisions 
These provisions are the Model Defamation Amendment Provisions 2020. 
2 Purpose of provisions 
(1) The purpose of these provisions is to set out model amendments to the Model Defamation Provisions— 
(a) to require a plaintiff to prove serious harm for a cause of action for defamation, and  
(b) to provide for certain individuals to be counted as employees of a corporation in determining whether the corporation is an excluded corporation, and  
(c) to require a concerns notice to be given to the publisher of defamatory matter before defamation proceedings may be commenced against the publisher, and  
(d) to make various amendments with respect to the content and timing for concerns notices and offers to make amends, and  
(e) to clarify that a defendant may plead back imputations relied on by the plaintiff as well as those relied on by the defendant to establish the defence of contextual truth, and  
(f) to provide for a defence in respect of peer reviewed matters published in academic or scientific journals, and  
(g) to provide for a defence for the responsible communication of matters of public interest, and  
(h) to clarify when material is sufficiently identified in a publication of defamatory matter for it to be treated as proper material on which to base the defence of honest opinion, and  
(i) to clarify that a court may award damages for non-economic loss up to a maximum amount, but without limiting the court’s power to award aggravated damages separately, and  
(j) to require the leave of the court to commence defamation proceedings against certain associates of a defendant previously sued for defamation in respect of the publication of the same matter, and  
(k) to confirm that an election to have defamation proceedings tried by jury is irrevocable, and  
(l) to allow a court to determine costs in respect of defamation proceedings that end because of the death of a party if it is in the interests of justice to do so, and 
(m) to introduce a single publication rule requiring the limitation period for defamatory proceedings in respect of further publications of the same defamatory matter by the same publisher or an associate to be calculated by reference to the first publication date, and 
(n) to provide for the limitation period for commencing defamation proceedings to be extended to enable pre-trial processes to be concluded and to provide courts with greater flexibility to extend the limitation period. 
(2) In these provisions, the Model Defamation Provisions are the Model Defamation Provisions prepared by the Parliamentary Counsel’s Committee and approved by the Standing Committee of Attorneys-General on 21 March 2005.
 Schedule 1 sets out the model amendments to the Model Defamation Provisions.
Schedule 1 Model amendments to Model Defamation Provisions 
Section 4 Definitions 
Insert in alphabetical order— concerns notice means a concerns notice for the purposes of section 14. 
Section 7A Insert before section 8— 
7A Serious harm required for cause of action for defamation 
(1) An individual has no cause of action for defamation in relation to the publication of defamatory matter about the individual unless the individual proves that the publication has caused, or is likely to cause, serious harm to the reputation of the individual. 
(2) An excluded corporation referred to in section 9 has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless the corporation proves that the publication has caused, or is likely to cause— (a) serious harm to the reputation of the corporation, and (b) serious financial loss. 
Section 9 Certain corporations do not have cause of action for defamation 
Omit “employs fewer than 10 persons” from section 9(2)(b). 
Insert instead “has fewer than 10 employees”. 
Section 9(6) 
Insert in alphabetical order— 
associate of an original publisher means— (a) an employee of the publisher, or (b) a person publishing matter as a contractor of the publisher, or (c) an associated entity (within the meaning of the Corporations Act 2001 of the Commonwealth) of the publisher. 
employee, in relation to a corporation, includes any individual (whether or not an independent contractor) who is— (a) engaged in the day to day operations of the corporation other than as a volunteer, and (b) subject to the control and direction of the corporation. 
Section 10 No cause of action for defamation of, or against, deceased persons 
Insert at the end of the section (after renumbering the current provision as subsection (1))— 
(2) Subsection (1) does not prevent a court, if it considers it in the interests of justice to do so, from determining the question of costs for proceedings discontinued because of the subsection. 
Part 3, Division 1, heading 
Omit “Offers”. Insert instead “Concerns notices and offers”. 
Section 12A 
Insert after section 12— 
12A Defamation proceedings cannot be commenced without concerns notice 
(1) An aggrieved person cannot commence defamation proceedings unless—  
(a) the person has given each proposed defendant a concerns notice in respect of the matter concerned, and (b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice, and (c) a period of at least 14 days has elapsed since the concerns notice was given in relation to each proposed defendant. 
(2) Subsection (1)(b) does not prevent reliance on— (a) some, but not all, of the imputations particularised in a concerns notice, or (b) imputations that are substantially the same as those particularised in a concerns notice. 
(3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court— (a) the commencement of proceedings after the end of the 14-day period contravenes the limitation law, or (b) there are other exceptional circumstances justifying the granting of leave. 
(4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if— (a) the court would be required to extend the limitation period to enable the proceedings to be commenced after the end of the 14-day period, or (b) the proceedings could not be commenced after the end of the 14-day period because the court will have ceased to have power to extend the limitation period. 
(5) In this section— limitation law mean [insert reference to provisions of statute of limitations]*. 
Jurisdictional note. Each jurisdiction is to insert a reference to the provisions of its limitation statute corresponding to Schedule 4.1 to these Provisions. 
Section 14 When offer to make amends may be made 
Insert after section 14(2)(a)— 
(a1) specifies the location where the matter in question can be accessed (for example, a website address), and 
Section 14(3) 
Omit the subsection. Insert instead— 
(3) If an aggrieved person gives the publisher a concerns notice, but fails to particularise adequately the imputations of concern or the location of the matter in question, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars as specified in the further particulars notice about the imputations of concern or location. 
Section 15 Content of offer to make amends 
Insert after section 15(1)(b)— 
(b1) must provide for the offer to be open for acceptance for a period of at least 28 days commencing on the day the offer is made, and 
Section 15(1)(d) 
Insert “, or a clarification of or additional information about,” after “reasonable correction of”. [ 
Section 15(1)(f) 
Omit “offer, and”. Insert instead “offer.” 
Section 15(1)(g) 
Omit the paragraph. 
Section 15(1A) 
Insert after section 15(1)— 
(1A) In addition to the matters referred to in subsection (1), an offer to make amends may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to)— (a) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or (b) an offer to pay compensation for any economic or non-economic loss of the aggrieved person, or (c) the particulars of any correction or apology made, or action taken, before the date of the offer. 
Section 15(2) 
Omit “subsection (1)(g)(ii)”. 
Insert instead “subsection (1A)(b)”. 
Section 18 Effect of failure to accept reasonable offer to make amends 
Omit section 18(1)(a). 
Insert instead— (a) the publisher made the offer as soon as reasonably practicable after being given a concerns notice in respect of the matter (and, in any event, within 28 days after the notice is given), and 
Section 18(1)(b) 
Omit “at any time before the trial”. [ 
Section 18(3) 
Insert after section 18(2)— 
(3) Despite section 22(2), the judicial officer (and not the jury) in defamation proceedings tried by jury is to determine whether a defence under this section is established. Jurisdictional note. Each jurisdiction that provides for jury trials for defamation proceedings is to enact the above subsection. 
Section 21 Election for defamation proceedings to be tried by jury 
Insert after section 21(2)— (2A) An election is irrevocable. 
Section 23 
Omit the section. Insert instead— 
23 Leave required for further proceedings in relation to publication of same defamatory matter 
(1) This section applies to a person who has previously brought defamation proceedings for damages, whether in this jurisdiction or elsewhere, against a person (a previous defendant) in relation to the publication of a matter. 
(2) The person may not bring further defamation proceedings for damages against a previous defendant or an associate of a previous defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought. 
(3) A person is an associate of a previous defendant if, at the time of the publication to which the previous defamation proceedings related, the person was— (a) an employee of the defendant, or (b) a person publishing matter as a contractor of the defendant, or (c) an associated entity (within the meaning of the Corporations Act 2001 of the Commonwealth) of the defendant. 
Section 26 Omit the section. Insert instead— 
26 Defence of contextual truth 
(1) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter carried one or more imputations that are substantially true (contextual imputations), and (b) any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 
(2) The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains. 
Section 29A Insert after section 29— 
29A Defence of responsible communication in the public interest 
(1) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter is of public interest, and (b) the publication of the matter is responsible. 
(2) In determining for the purposes of subsection (1) whether the publication of the matter about a person is responsible, a court must take into account the following factors to the extent the court considers them relevant in the circumstances— (a) the seriousness of any defamatory imputation carried by the matter published,  (b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (c) the extent to which the matter published relates to the performance of the public functions or activities of the person, (d) whether it was in the public interest in the circumstances for the matter to be published expeditiously, (e) the extent of compliance with any applicable professional codes or standards, (f) the sources of the information in the matter published, including the integrity of the sources, (g) if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard), (h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, (i) any other steps taken to verify the information in the matter published. 
(3) Subsection (2) does not limit the matters the court may take into account. 
(4) Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established. Jurisdictional note. Each jurisdiction that provides for jury trials for defamation proceedings is to enact the above subsection. 
Section 30 Defence of qualified privilege for provision of certain information 
Omit section 30(3). Insert instead— 
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account any of the following factors— (a) the seriousness of any defamatory imputation carried by the matter published, (b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (c) whether it was in the public interest in the circumstances for the matter to be published expeditiously, (d) the nature of the business environment in which the defendant operates, (e) the sources of the information in the matter published, including the integrity of the sources, (f) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, (g) any other steps taken to verify the information in the matter published. 
(3A) Subsection (3) does not— (a) require each matter referred to in the subsection to be taken into account, or (b) limit the matters that the court may take into account. 
(3B) It is not necessary to prove that the matter published was of public interest to establish the defence of qualified privilege under subsection (1). 
Section 30(6) 
Insert after section 30(5)— 
(6) Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established. Jurisdictional note. Each jurisdiction that provides for jury trials for defamation proceedings is to enact the above subsection. 
Section 30A 
Insert after section 30— 
30A Defence of scientific or academic peer review 
(1) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was published in a scientific or academic journal (whether published in electronic form or otherwise), and (b) the matter relates to a scientific or academic issue, and (c) an independent review of the matter’s scientific or academic merit was carried out before the matter was published in the journal by— (i) the editor of the journal, and (ii) one or more persons with expertise in the scientific or academic issue concerned. 
(2) If there is a defence to the publication of defamatory matter in a scientific or academic journal because of subsection (1), there is also a defence to the publication of any assessment of the matter in the same journal if the defendant proves that— (a) the assessment was written by one or more of the persons who carried out the independent review of the matter, and (b) the assessment was written in the course of that review. 
(3) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in a fair summary of, or fair extract from, a matter or assessment for which there is a defence because of subsection (1) or (2). 
(4) If a journal has more than one editor, a reference in this section to the editor of the journal is to be read as a reference to the editor or editors who were responsible for deciding to publish the matter concerned. (5) A defence established under this section is defeated if, and only if, the plaintiff proves that the defamatory matter or assessment was not published honestly for the information of the public or the advancement of education. 
Section 31 Defences of honest opinion Omit section 31(5). Insert instead— (5) For the purposes of this section, an opinion is based on proper material if— (a) the material on which it is based is— (i) set out in specific or general terms in the published matter, or (ii) notorious, or (iii) accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage), or (iv) otherwise apparent from the context in which the matter is published, and (b) the material— (i) is substantially true, or (ii) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (iii) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. 
Section 33 Defence of triviality 
Omit the section. 
Section 35 Damages for non-economic loss limited 
Omit “Unless the court orders otherwise under subsection (2), the” in section 35(1). Insert instead “The”. 
Section 35(2)–(2B) 
Omit section 35(2). Insert instead— 
(2) The maximum damages amount is to be awarded only in a most serious case. 
(2A) Subsection (1) does not limit the court’s power to award aggravated damages if an award of aggravated damages is warranted in the circumstances. 
(2B) An award of aggravated damages is to be made separately to any award of damages for non-economic loss to which subsection (1) applies. 
Section 50 
Insert after section 49— 
50 Application of 2020 amendments 
An amendment made to this Act by the Model Defamation Amendment Provisions 2020 applies only in relation to the publication of defamatory matter after the commencement of the amendment. Jurisdictional note. This provision is to be inserted in the appropriate location by each jurisdiction with reference to the name of the amending Act enacted to give effect to the Model Defamation Amendment Provisions 2020. 
Schedule 4 Amendment of other Acts 
Omit section 1(2) in Schedule 4.1. Insert instead—  
(2) The 1-year limitation period referred to in subsection (1) is taken to have been extended as provided by subsection (3) if a concerns notice is given to the proposed defendant on a day (the notice day) within the period of 56 days before the limitation period expires. 
(3) The limitation period is extended for an additional period of 56 days minus any days remaining after the notice day until the 1-year limitation period expires. Example. Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days. 
(4) In this section— concerns notice has the same meaning as in the Defamation Act 2005. Jurisdictional note. Each jurisdiction is to insert the name of its defamation legislation in the definition. 
Schedule 4.1 Insert after section 1— 1A Single publication rule 
(1) This section applies if— (a) a person (the original publisher) publishes matter to the public that is alleged to be defamatory (the first publication), and (b) the original publisher or an associate of the original publisher subsequently publishes (whether or not to the public) matter that is substantially the same. 
(2) Any cause of action for defamation against the original publisher or an associate of the original publisher in respect of the subsequent publication is to be treated as having accrued on the day of the first publication for the purposes of determining when— (a) the limitation period applicable under section 1 begins, or (b) the 3-year period referred to in section 1B(2) begins. 
(3) Subsection (2) does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication. 
(4) In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the court may have regard include (but are not limited to)— (a) the level of prominence that a matter is given, and (b) the extent of the subsequent publication. 
(5) This section does not limit the power of a court under section 1B to extend the limitation period applicable under section 1. 
(6) In this section—  day of first publication, in relation to publication of matter on a website or in any other electronic form, means the day on which the matter was first posted or uploaded on the website or sent electronically. public includes a section of the public. 
1B Extension of limitation period 
(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period applicable under section 1 for the cause of action. 
(2) The court may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed. 
(3) In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to— (a) the length of, and the reasons for, the plaintiff’s delay, and (b) if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired— (i) the day on which the facts became known to the plaintiff, and (ii) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action, and (c) the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period. 
Schedule 4.1 
Insert after section 2— 
3 Application of 2020 amendments 
(1) The amendment made to section 1 by the Model Defamation Amendment Provisions 2020 applies in relation to the publication of defamatory matter after the commencement of the amendment. Jurisdictional note. This provision is to be inserted in the appropriate location by each jurisdiction with reference to the name of the amending Act enacted to give effect to the Model Defamation Amendment Provisions 2020. 
(2) Section 1A (as inserted by the Model Defamation Amendment Provisions 2020) applies in relation to the publication of defamatory matter after the commencement of the section, subject to subsection (3). 
(3) Section 1A extends to a first publication before the commencement of the section, but only in respect of subsequent publications after the commencement. 
(4) Section 1B (as inserted by the Model Defamation Amendment Provisions 2020) applies in relation to the publication of defamatory matter after the commencement of the section

Mental Health Royal Commission

The Interim Report of the Royal Commission into Victoria's Mental Health System states
The Commission offers this interim report in six parts. These parts cover the topics the Commission has examined so far and culminate in a series of recommendations that seek to address immediate needs and begin paving the way for a reformed mental health system. 
• Part One explores the current state of mental health in Victoria. Here, the Commission defines key concepts such as wellbeing, recovery and the full continuum of mental illness and how people experience it differently. 
• Part Two lays out the history and nature of the current Victorian mental health system. It also highlights the structural problems the Commission has identified, examines how the mental health workforce currently operates and looks at the challenges it faces. 
• Part Three focuses on several themes the Commission has examined to date. It tells the story of a system difficult to find and get into. It outlines how consumer experiences of the system can be poor and how difficult this can be for the families, carers and others providing support to those living with mental illness or experiencing poor mental health. It describes how the experiences of rural and regional Victorians are both similar and different. And it highlights the most tragic toll of all—when a person experiencing psychological distress or poor mental health takes their own life. 
• Part Four quantifies the economic cost of mental health and puts forward a case for increased investment in mental health services in Victoria. 
• Part Five offers nine recommendations to lay the foundations for future reform:
– establishing the Victorian Collaborative Centre for Mental Health and Wellbeing 
– expanding acute services in targeted areas 
– increasing investment in suicide prevention 
– expanding Aboriginal social and emotional wellbeing services 
– designing and delivering Victoria’s first lived experienced–led service 
– supporting lived experience workforces 
– ensuring workforce readiness for future reforms 
– establishing a new approach to mental health investment 
– setting up a Mental Health Implementation Office to drive the initial effort. 
Chapter 22 looks to the future, laying out the Commission’s next steps for its final year of operation.
The Interim Report articulates 'Guiding principles for Victoria’s mental health system'
The Royal Commission acknowledges that mental health is shaped by the social, cultural, economic and physical environments in which people live and is a shared responsibility of society. 
It envisages a mental health system in which: 
1. The inherent dignity of people living with mental illness is respected, and necessary holistic support is provided to ensure their full and effective participation in society. 
2. Family members and carers of people living with mental illness have their contributions recognised and supported. 
3. Comprehensive mental health treatment, care and support services are provided on an equitable basis to those who need them and as close as possible to people’s own communities—including in rural areas. 
4. Collaboration and communication occur between services within and beyond the mental health system and at all levels of government. 
5. Responsive, high-quality, mental health services attract a skilled and diverse workforce. 
6. People living with mental illness, their family members and carers, as well as local communities, are central to the planning and delivery of mental health treatment, care and support services. 
7. Mental health services use continuing research, evaluation and innovation to respond to community needs now and into the future.

26 November 2019

Schoolies

'“It's not like they're selling your data to dangerous people”: Internet privacy, teens, and (non)controversial public issues' by Margaret S. Crocco, Avner Segall, Anne-Lise Halvorsen, Alexandra Stamm and Rebecca Jacobsen in (2019) The Journal of Social Studies Research comments
 This study examines high school students' responses to a public policy discussion on the topic of Internet privacy. Specifically, students discussed the question of whether search engines and social media sites should be permitted to monitor, track, and share users’ personal data or whether such practices violate personal privacy. We observed discussions of the topic in four high school classrooms in 2015–2016, prior to the presidential election in 2016. We first explain why the topic failed to work as a controversial public issue with high schoolers. We then explain their responses to the issue. We found (1) students displayed a surprising trust in Facebook and Google; (2) students framed the issue of Internet Privacy as a conflict in values and a set of trade-offs; and (3) students tended to put more weight on personal responsibility than implications for democracy in their assessment of the (acknowledged) erosion of privacy as a result of social media and Internet search engines. We conclude with implications for social studies education and teacher education.

23 November 2019

Personhood

'Human Rights, Legal Personhood and the Impersonality of Embodied Life' by Miguel E. Vatter and Marc De Leeuw in (2019) 1 Law, Culture and the Humanities comments
 Since Locke, the concept of person has been closely linked to the idea of a subjective natural right and, later, to the concept of human rights. In this article we attempt to trouble this connection between humanity and personhood. For personhood is also an apparatus or dispositive of power. In the first half of the article, we identify a fundamental problem in the usual way human rights are connected to legal personhood by making use of insights drawn from Roberto Esposito’s discourse on biopolitics and critical race theory. While human rights are intended to offer protection to the “precarious” reality of human embodied life, we hypothesize that the fiction of legal personality generates a dis-embodiment whereby this human life is left exposed and defenseless. In the second half, we propose reconstructing the idea of legal personhood so that it may be more adequate to the required conception of human rights with insights drawn from Helmuth Plessner’s political anthropology of embodied life and from the analysis of disembodiment recently articulated by Ta-Nehisi Coates.