Celine translated by Larkin

From Lee Siegel's characteristically contrarian review in MoreIntelligentLife -

Go the F*** to Sleep is an expletive-laced cry of adult rage disguised as a child’s book of lullabies that is now a smash bestseller. Go, as they say, figure. The book consists of page after page of more or less conventional two lines of nursery rhyme, and flat-footed ones to boot — "The tiger reclines in the simmering jungle./The sparrow has silenced her cheep." — followed by another two lines, which are crude, angry pleas for the resistant child to immediately make himself unconscious. "F*** your stuffed bear, I’m not getting you s---./Close your eyes. Cut the crap. Sleep."

The whole thing reads like Celine translated by Philip Larkin and recited by James (Tony Soprano) Gandolfini. It has the vitality of a Bronx cheer at a stuffy formal dinner. It is supposed to be a prank, a great, vulgar cri de coeur revealing a truth hitherto hidden away: parents resent their kids for depriving them of sleep. But the F-word is a powerful imprecation that carries a wish for subjugation and even annihilation. A celebrity among words, it is — like certain tough-guy actors who have made it their trademark — full of rage. The idea of applying it to children, “in fun”, in a world where they are the first victims of adult stupidity, incomprehension and rage simply doesn’t work as an extended joke. "You know where you can go? The f*** to sleep." None of the parents I know, who like my wife and me have young children, could make it past the first few pages without tossing the book down in disgust.

The very fact of the book's commercial success, however, seems to have inspired legitimising kudos. After the book — written by Adam Mansbach and illustrated by Ricardo Cortes — rose to bestseller-list heights, writers rushed to explain just what made it so important to own. In a typical effusion, one writer deployed Proust and Freud on her way to extolling the book as "odd, rageful, beautiful", praising it for exposing "a kind of existential despair that is very particularly ours". And you thought getting the kids to sleep was the least of your problems.

I, on the other hand, am a sucker for the pictures of the drowsing tigers.

Garry Wills' NY Times review of Inside Scientology: The Story of America’s Most Secretive Religion (Houghton Mifflin Harcourt 2011) by Janet Reitman and Render Unto Rome: The Secret Life of Money in the Catholic Church (Crown 2011) by Jason Berry begins -

We do not need these books to tell us that money and religion make for a poisonous combination. But it is of some interest to see that ancient truth confirmed in both a church as relatively new as Scientology and one as ancient as Roman Catholicism. Even religious leaders develop a certain swagger when they know they are backed by bundles of cash. When a French court fined Scientology nearly a million dollars, one of its officials shrugged that off as “chump change.” And when the Vatican ran a deficit of nearly 2.4 million euros in 2007, an Italian journalist familiar with the church’s finances dismissed the debt as “chopped liver.” Chump change or chopped liver, both churches have bigger sums they can get to and use, and few outsiders are given a look at how they do it. These two books trace the cash source of theological confidence.

Miracle busting

The Australian Competition and Consumer Commission has instituted proceedings against Sensaslim Australia Pty Ltd (Administrator Appointed), Peter Clarence Foster, Peter Leslie O’Brien, Mr Adam Troy Adams and Michael Anthony Boyle.

The colourful Foster is a pin-up boy for teachers of consumer protection law, with a history that includes marketing of Bai Lin tea, Chow Low tea, Ageless Aging jelly, the TRIMit diet pill and other products that supposedly have miraculous benefits. He had an interesting connection with Fijian and UK politicians, including controversial contact with Cherie Blair (a nice illustration of the notion that very clever lawyers sometimes have very poor judgment in dealing with charming scammers), and has had trouble with passport and money laundering offences.

The ACCC alleges that Sensaslim and several of its officers engaged in misleading and deceptive conduct and made false representations in relation to the identity of Sensaslim officers, the Sensaslim Spray and the business opportunities offered by Sensaslim.

The alleged conduct includes -

• failing to disclose the involvement of Peter Foster in the business of Sensaslim;
• falsely representing that the Sensaslim Spray was the subject of a large worldwide clinical trial when in fact no such trial was conducted;
• falsely representing that Dr Capehorn, an obesity specialist, gave unqualified support to the effectiveness of the Sensaslim Spray and the purported clinical trials;
• falsely representing that Michael Boyle was managing the business of Sensaslim;
• failing to disclose that Michael Boyle was intending to resign as Director immediately following the launch of Sensaslim;
• falsely representing that Sensaslim franchisees were already participating in, and profiting from, the Sensaslim franchise, that a Sensaslim franchise had a certain earning potential and that there was a “money back buy back guarantee”

The ACCC is seeking court orders including declarations, injunctions, penalties, compensation orders, orders that Sensaslim officers be disqualified from managing corporations in the future and costs.

The Federal Court last week made orders granting leave for the ACCC to proceed against Sensaslim Australia Pty Ltd (Administrator Appointed). Foster, O’Brien and Adams are restrained from taking further steps to make representations regarding the efficacy of the Sensaslim Spray where the basis for the representation is a clinical trial or scientific report, unless the clinical trial was conducted and is the subject of a scientific report which has been published in a peer reviewed scientific journal.

SensaSlim has attracted attention over the nature of its claims, a website that appears to use deceptive images (instances of identity theft) and its defamation action against La Trobe University academic Ken Harvey, whose action has exposed inadequacies in the policing of claims regarding products with 'therapeutic' qualities. We need more people like the courageous Dr Harvey and fewer rich - and shameless - criminals such as Foster. Now that the ACCC has acted the Therapeutic Goods Administration (TGA), one of the more somnolent parts of the national bureaucracy despite its major responsibilities, might engage in some self-examination regarding the quack medicine regime. At the moment we are waiting for the Australian Health Ministers to adopt a more fact-based approach to what is dubbed 'complementary medicine', the subject of my AHMAC submission earlier this year regarding regulation of practitioners of 'therapies' such as 'magic touch'

Allphones

In Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 5) [2011] FCA 807 Allphones has been ordered to pay costs and fined $45,000 for contempt of court.

Allphones is a owner and franchisor of a network of retail stores selling telecommunications products. Disagreement between Allphones and a franchisee - involving the Trade Practices (Industry Code – Franchising) Regulations 1998 and the Trade Practices Act 1974 (Cth) - was reflected in Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) [2011] FCA 338. In October 2008 Allphones gave undertakings to the Federal Court not to withhold consent to assignment of its franchises on a certain basis. regrettably, the undertakings were not effected.

Allphones has been held to have breached the undertakings in June 2009 by withholding consent to one of its franchisees assigning the franchise agreement on the basis that -

• the franchisee had not released Allphones from liabilities regarding a Notice of Dispute and
• the assignee must enter into a form of franchise agreement with Allphones that is different to the initial franchise agreement

Allphones also did not give seven days notice in writing of its intention to withhold consent to assigning the franchise agreement.

Neither the Australian Competition & Consumer Commission nor the Court were impressed.

Allphones acknowledged that its conduct was both wrongful and culpable, and apologised to the Court and franchisees. Potential franchisees might take note.

Federation

The report of the Senate Select Committee on the Reform of the Australian Federation, a marvellously 'states rights' document, is now available.

The Committee was established last year to -

a) inquire into and report by the last sitting day of May 2011 on key issues and priorities for the reform of relations between the three levels of government within the Australian federation; and

b) explore a possible agenda for national reform and to consider ways it can best be implemented in relation to, but not exclusively, the following matters:

i) the distribution of constitutional powers and responsibilities between the Commonwealth and the states (including territories),
ii) financial relations between federal, state and local governments,
iii) possible constitutional amendment, including the recognition of local government,
iv) processes, including the Council of Australian Governments, and the referral of powers and procedures for enhancing cooperation between the various levels of Australian government, and
v) strategies for strengthening Australia's regions and the delivery of services through regional development committees and regional grant programs.

The Committee's 162 page Australian Federation: An Agenda for Reform report [PDF] makes 21 recommendations -

R1 - that the tendency towards greater centralisation within the Australian federation resulting from High Court decisions be among the matters referred for inquiry to the Joint Standing Committee proposed in R17 of this report. In the event that the proposed committee is not established, more extensive academic research should be undertaken with a view to formulating policy proposals that might be referred to a constitutional convention for possible constitutional change.

R2 - that proposed intergovernmental agreements between the Commonwealth, state and territory governments be referred for consideration and review to the Joint Standing Committee proposed in R17 of this report.

R3 - that exposure drafts of legislation intended as the foundation for a referral of power to the Commonwealth be made available for examination by parliamentary committees, including, as appropriate, the Joint Standing Committee proposed in R17 and the Senate Standing Committee for the Scrutiny of Bills, prior to their adoption.

R4 - that the Joint Standing Committee proposed in R17 inquire into the consequences and uncertainties created as a result of the decisions in Re Wakim and R v Hughes.

R5 - that the Council of Australian Governments (COAG) be strengthened through institutionalisation to ensure the Council's effective continuing operation and ability to promote improved mechanisms for managing federal state relations. Principles of transparency and joint ownership should be central to this institutionalisation.

R6 - that agendas for COAG meetings be developed jointly by Commonwealth, State and Territory governments, that they be made publicly available before meetings, and that the timing, chairing and hosting of COAG meetings similarly be shared.

R7 - that outcomes of COAG meetings be published in a more transparent manner than is currently the case with the communiqués.

R8 - that the states and territories establish a stronger foundation for the Council for Australia’s Federation by providing additional funding, formalising Council processes and ensuring that it meets more regularly than is currently the case.

R9 - that the Joint Standing Committee proposed in R17 of this report inquire into the need for adjustments to the IGA on Federal Financial Relations and to the level and structure of taxation in Australia to provide the states certainty regarding revenue raising and their capacity to meet their responsibilities. In considering this issue, the committee should inquire into any related matters that it determines are appropriate, including the roles of the state and federal governments, and seek advice from the Productivity Commission, the COAG Reform Council and the Commonwealth Grants Commission as required.

R10 - that the recently announced review into the distribution of revenue from the Goods & Services Tax give particular attention to the issue of incentives and disincentives to states and territories to maximise their revenue.

R11 - that the Joint Standing Committee proposed in R17 be asked to inquire into the extent of and need for reform of the arrangements for horizontal equalisation that currently exists between local government shires and municipalities across Australia.

R12 - that the issues of funding and constitutional recognition of local government be among the matters proposed for inquiry by the Joint Standing Committee proposed in R17.

R13 - pending the outcome of this inquiry, that mechanisms other than constitutional amendment, perhaps by way of agreement through COAG, be explored to place Commonwealth funding of local government on a more reliable long term foundation.

R14 - that each state give consideration to strengthening existing regional governance frameworks to improve the delivery of essential services and take into account the needs of local government. In particular,state governments are encouraged to review the boundaries of regions created for the administration and delivery of state services such as health and education to ensure their closer alignment with each other.

R15 - that the Commonwealth Government review the Regional Development Australia program after three years operation, to ensure the program effectively contributes to the long-term sustainability of Australia’s regions.

R16 - that propositions for change to the Constitution be referred for consideration to a constitutional convention and that responsibility for the agenda and organisation of the convention be the responsibility of a newly institutionalised COAG.

R17 - the establishment of a Joint Standing Committee of the federal parliament to be administered by the senate and with a senator as its chair. The committee should have a mandate to conduct its own inquiries and be assigned a range of oversight responsibilities that would enable it to assume a significant and integral role in helping to manage Australia’s modern federation, including responsibility to provide regular oversight of COAG.

R18 - that the Senate Foreign Affairs, Defence & Trade References Committee undertake an inquiry into the merits of Professor Uhr’s proposal that Australia sponsors an ongoing regional dialogue among elected representatives and parliamentary bodies in the Asia Pacific on the political management of decentralised and devolved national governance.

R19 - that funding be made available by the federal, state and territory governments for the establishment within an Australian university of a centre for the study and dissemination of ideas relating to federalism and Australia’s federal system of government.

R20 - while the committee acknowledges the important work done by organisations such as the Museum of Australian Democracy and the Parliamentary Education Office in improving Australians' knowledge and understanding of Australian federalism, there is a need to promote a deeper understanding of federalism in the wider post-school community. Enhanced funding should be made available by the federal, state and territory governments to appropriate institutions to promote this deeper understanding.

R21 - that the Australian Research Council identify Australian federalism as a priority area for research funding.

Rights and rationales

Fresh on yesterday's announcement that Australia is moving towards a broad 'right of privacy', SSRN has released 'The Concept of a Right to Privacy' by Eoin Carolan (University College Dublin)-

This is a chapter taken from the first edition of The Right to Privacy: A Doctrinal and Comparative Analysis. The book was co-written with Dr. Hilary Delany and published by Round Hall in 2008.

The chapter provides a conceptual analysis of the notion of a right to privacy and serves as an introduction to the general themes that are explored in the remainder of the book in chapters.

The chapter reviews the literature on the difficulties of defining a right to privacy and provides a summary of the work of authors such as Judith Jarvis Thomson, Russell Brown, Warren and Brandeis, Ruth Gavison, Beate Rossler, Nicole Moreham and Daniel Solove.

The chapter argues in favour of an approach in accordance with which the right to privacy is justified as a necessary element of a system which adequately values and protects human autonomy. Privacy is argued, in this regard, to go beyond the simple protection of the secret or confidential so as to include the social dimension of human existence. Protecting privacy encourages the individual to fully engage in this social sphere by facilitating experimentation, intimacy and the development of a sense of individual and social identity.

The chapter then proceeds to consider the differences between privacy as an autonomy value and privacy as a legally enforceable right. It would not be workable for the law to define privacy as anything which engages individual or social identity.

The chapter therefore proposes a tripartite distinction between different types of privacy claim:

• Decisional privacy: This is the entitlement of an individual to make their own decisions. It is argued that this is incoherent as an independent legal right.

• Spatial privacy: This a claim of privacy over a physical space, whether that be territorial privacy or the privacy of the individual’s own body.

• Informational privacy: This is claim of privacy over particular information.

The chapter then considers the extent to which a right to privacy may be regarded as a claim of control over these dimensions. It concludes that control should not be understood in this context as an all-or-nothing entitlement to prevent all access to the area in question. Privacy is a more complex and context-sensitive concept. Thus a right to privacy operates as an entitlement to exercise control over who may access a particular dimension and/or of the use that may legitimately be made of such access. Just what the right involves will depend upon the particular circumstances of the claim.

The chapter concludes by considering the relationship between privacy and freedom of expression. It argues that privacy and freedom of expression are, in many instances, complementary. Protecting privacy may facilitate the individual’s freedom of expression. A conflict will more frequently arise between privacy and the media’s freedom of expression. However, the expression rights of individuals and of the media are different in character and in degree. There is a necessity therefore for a more nuanced and sophisticated understanding of the relationship between privacy and the expression rights of individuals and of the media.

Carolan comments that -

Privacy is a "distinctly contemporary" concept. The notion that individuals enjoy an enforceable entitlement to respect for their private lives is an idea of relatively recent vintage. That the concept of a right to privacy has acquired such contemporary currency is, in large part, attributable to the changed nature of modern society. In contrast to the localised "face-to-face society" of earlier times, we are today living in what Foucault has described as a panoptic society. Technological advances allow access to the previously inaccessible. Modern communications can make images or information about us available to a potential worldwide audience. Information about our beliefs, our habits, our associations and our actions is systematically accumulated by a range of public and non-public bodies. We exist in "a state of conscious and permanent visibility".

Government, media, business organisations and the internet have penetrated our social existence to such an extent that they have colonised and commercialised areas which were previously the preserve of the individual. Our society is becoming a globalised goldfish bowl in which individual space is increasingly scarce. For many commentators, the modern movement towards the protection of privacy rights is a direct reaction to this escalating intrusiveness. It reflects an awareness that "[t]he opportunities for the invasion of privacy are greater [today] than they have ever been".

In many ways, the right to privacy can be seen as the contemporary re-expression of an age-old attachment to the idea of individual freedom. The great Enlightenment authors, from whom we have inherited so many of our legal and political traditions, were primarily concerned with the relationship between the individual and the state.6 Constitutional devices like the separation of powers, the protection of civil and political freedoms, and the independent judicial review of government conduct all aimed to safeguard the citizen against coercive governmental acts. Individual liberty was the philosophical lodestar of these theories.

At that time, the state represented the primary threat to the freedom of the individual. It was unsurprising, therefore, that the political thinkers of the day concentrated on developing constrains on state power. Freedom of speech, of association and of thought functioned as immunities against government action, disabling the sovereign powers of the state. Protecting these zones of individual conduct against governmental interference ensured that they were protected per se. The liberty of the individual was secured by the absence of government action. To an Enlightenment thinker, there was, accordingly, no need for a distinct privacy right.

The traditional focus of liberal democratic theories on the conduct of state institutions is, however, inadequate for two reasons. First, the modern state operates in a more dispersed and decentralised manner than was formerly the case. The interventionist administrative state operates across a range of areas and takes a variety of forms. "Private ordering has been swallowed up government, while government has become in part a species of private ordering ... [T]he government and private spheres are thus melded." Officials exercise power through the making of tertiary rules and discretionary decisions. Libertarian devices which concentrate their efforts solely on the central organs of the state neglect a significant area of government activity.

Secondly, the individual is today susceptible to the exercise of coercive power by a far wider array of public and non-public bodies. The state is no longer the sole repository of coercive power. The actions of a range of organisations potentially impinge upon the freedom of the individual. The risk of public exposure by the media or via the internet can discourage an individual from acting in ways which might attract public reproach. The necessity for health insurance can oblige an individual to disclose private information, undergo tests and refrain from engaging in conduct of which the insurer disapproves. Even the most mundane interactions with non-public institutions may have coercive conduct-shaping effects. Major commercial bodies have the capacity to construct detailed customer profiles, which allows them to incentivise the repetition of past behaviour and thereby discourage individual experimentation. By installing cookies on customers' computers, online retailers can track an individual's browsing and purchasing habits. This allows them to categorise customers according to type and to offer purchasing suggestions based on the actions of other individuals of the 'same' type. The individual is pigeon-holed, homogenised and encouraged to engage in collectively indistinct actions. ... privacy claims retain an intuitive appeal. Most people would agree that privacy is important. Most people also, however, would disagree about what privacy precisely entails. As Post remarked:

Privacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all.

A legal model of privacy protection thus necessarily requires the articulation of a specific conceptual account of privacy. In the absence of a clearly-identified analytical starting-point, a legal privacy right would be incomplete, incoherent, and liable to cause confusion.

... Privacy is a notoriously elastic and equivocal notion. It has a "protean capacity to be all things to all lawyers". Its imprecision as a concept has given rise to extensive academic discussion and debate. A significant proportion of the voluminous literature in this area is dedicated to the preliminary task of defining what privacy is. These discussions have generated heat and light but little unanimity. In fact, "the most notable feature of th[e] literature has been an almost complete absence of agreement concerning both the definition of privacy and the values said to be promoted by the legal protection of privacy". Privacy has been defined in different ways and invoked in support of varying, sometimes even opposing outcomes.

Right of Privacy

It's been a long time coming and, like many proposals for privacy law reform, hasn't arrived quite yet.

The national Minister for Home Affairs has announced that the Government will "seek the views of the public on introducing a right to privacy in Australia".

His media release states that -

A public issues paper will be issued shortly, canvassing the prospect of introducing a statutory cause of action for serious invasions of privacy.

"Right now there is no general right to privacy in Australia, and that means there's no certainty for anyone wanting to sue for an invasion of their privacy," Mr O’Connor said.

"The News of the World scandal and other recent mass breaches of privacy, both at home and abroad, have put the spotlight on whether there should be such a right."

It's a shame that the travails of News Corp and its competitors has been required to elicit action by the Government. No reference to Medvet or other recent Australian incidents, of course.

The Minister's media release goes on -

"This Government strongly believes in the principle of freedom of expression and also the right to privacy. Any changes to our laws will have to strike a balance between the two ideals."

"We know that privacy is a growing concern for everyday Australians – whether it is in our dealings with individuals, businesses, government agencies or the media," he said.

“Privacy is emerging as a defining issue of the modern era, especially as new technology provides more opportunities for communication, but also new challenges to privacy.”

“I’m keen to hear from everyone with a stake in the privacy debate – that includes individuals, businesses and of course the media,” Mr O’Connor said.

The Australian Law Reform Commission’s 2008 report into privacy laws made 295 recommendations for changes to privacy regulation and policy, including a proposal to introduce a statutory cause of action for serious breaches of privacy.

It is important to note that there are laws in place to deal with criminal offending related to privacy breaches, for example the Telecommunications (Interception and Access) Act outlaws phone tapping and other misuse of communications services.

An issues paper will be issued soon and a period of public consultation will follow.

At the moment there is no common law tort of breach of privacy, although the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 185 ALR did not rule out the future development of such a tort.

Various law reform bodies have recommended establishment of a statutory cause of action. The Australian Law Reform Commission's 2008 For Your Information: Australian Privacy Law & Practice (ALRC Report 108) recommended a tort (r 74). The Victorian Law Reform Commission in its 2010 Surveillance in Public Places – Final Report (report 18) 150 and New South Wales Law Reform Commission 2009 Invasion of Privacy (report 120) 4.11 recommended establishment of a tort.

ABC Radio reports -

BRENDAN O'CONNOR: All we've done in this instance is bring those matters forward because we think there needs to be, now, proper debate about whether we've struck the right balance between two very important ideals: the freedom of expression and freedom of the press on one hand, and the right for a private life; the right to privacy.

NAOMI WOODLEY: But the Government already has telephone intercept laws in place, if phone hacking was going on in Australia - and there's no evidence that it has been - there are laws to deal with it. So isn't it a bit dangerous to link this to the News of the World scandal in the UK?

BRENDAN O'CONNOR: Well I think it's created a public expectation that the Government consider these matters. And we're not suggesting that the gross invasions of privacy that have occurred in the United Kingdom in this recent scandal are happening here. And yes, we do have some criminal sanctions in place in order to penalise organisations or people who invade people's privacy in that manner. But there is no general right to privacy in this country.

NAOMI WOODLEY: The Opposition's communications spokesman, Malcolm Turnbull, says the debate about a statutory right to privacy is needed, but it shouldn't be linked to events in the UK.

Turnbull is quoted as commenting, most acutely, that -

We really do need to make sure than any discussion doesn't just become a sort of antipodean rerun of the News of the World inquiries in the UK. This has got to - if we're going to look at privacy we should look right across all media and have an honest debate: how much privacy do we believe we are entitled to and to what extent should that limit the right of the media to free speech and freedom of the media?

Higher powers

One of the delights of teaching undergraduate intellectual property law is the look of incredulity on the face of students when they hear that Australian police forces and other government agencies are held to have infringed copyright rather than serving as examples of best practice.

Micro Focus (US) Inc v State of New South Wales (New South Wales Police Force) [2011] FCA 787 involves action by a software developer against the NSW Police Force, the Police Integrity Commission and NSW Ombudsman regarding alleged infringement of copyright in Micro Focus' ViewNow for Mainframe software program.

Micro Focus and associated parties claim relief against the NSW Ombudsman under s 115(2) of the Copyright Act 1968 (Cth) consisting of -

• an order restraining the NSW Ombudsman from reproducing the whole or a substantial part of ViewNow without a licence
• damages (including additional damages), and
• an account of profits.

Jagot J notes that it must be assumed that -

the NSW Ombudsman, since at least July 2010, has reproduced in material form the whole or a substantial part of one or more versions of ViewNow without any licence from the copyright owner to do so and, thereby, has infringed copyright in those works.

... the NSW Ombudsman and officers of the NSW Ombudsman use ViewNow on their computers to access the computerised records of the New South Wales Police Force relating to all police operational activity – a system known as COPS. The NSW Ombudsman and officers of the NSW Ombudsman use ViewNow for the purpose of exercising functions under Pt 8A of the Police Act 1990 (NSW), which empowers the NSW Ombudsman to investigate complaints against the NSW Police Force and to monitor investigations of the NSW Police Force conducted by the Commissioner of Police (NSW), as well as to keep under scrutiny the systems established within the NSW Police Force for dealing with complaints and to provide special reports to the NSW Parliament on any matter arising in connection with these functions.

The Ombudsman contends that s 35A of the Ombudsman Act 1974 (NSW) provides protection from liability for the alleged infringement, with the consequence that the proceeding cannot be maintained or has no reasonable prospect of success.

That section provides that -

(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.

(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.

Jagot J states that -

It may be accepted, as the NSW Ombudsman submitted, that the office of the Ombudsman is unique, with the Ombudsman exercising extensive powers in the public interest for the purpose of improving public administration and accountability (Ainsworth v The Ombudsman (1988) 17 NSWLR 276 at 283 and Botany Council v The Ombudsman (1995) 37 NSWLR 357 at 367-368).

It may also be accepted that the NSW Ombudsman and officers thereof only use ViewNow for the purpose of exercising functions conferred on the NSW Ombudsman by the Police Act (noting that s 6(8) of the Ombudsman Act provides that the Ombudsman may exercise functions conferred or imposed by the Ombudsman Act or any other Act).

It may further be accepted that use of the ViewNow system provides an effective and efficient means for the NSW Ombudsman and officers thereof to discharge their statutory functions under Pt 8A of the Police Act.

All these matters may be accepted without leading to the conclusion that s 35A of the Ombudsman Act is engaged so as to protect the NSW Ombudsman from liability for infringements of copyright as alleged in this case.

The Court went on to state that -

... the NSW Ombudsman required no statutory authority to install software on the computers used by the Ombudsman or the Ombudsman’s officers. This could be done without any specific legislative authority. In terms of the approach of Callinan J it was no part of the NSW Ombudsman’s functions to copy software onto a computer in breach of copyright.

Although The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 concerned the relationship between two State Acts, the same approach is evident. Spigelman CJ said that s 35A of the Ombudsman Act must be construed purposively. The purpose of the section is to “protect from challenge the substantive conduct of the Ombudsman”, with the consequence that the words "'executing (an) Act' do not necessarily extend to the performance of any statutory function or the exercise of any statutory power" (at [25]). Handley JA construed the words "in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act" as “words of limitation which confine the protection afforded by the section to acts or omissions done or omitted in exercising or refusing to exercise the statutory powers of obtaining information and investigating complaints conferred by the Act" (at [29]).

On either approach the copying of software onto a computer to enable access to the COPS database is outside the scope of s 35A. The act of copying is not "substantive conduct" of the NSW Ombudsman but conduct preliminary or incidental thereto. The act of copying is also not done in the exercise of or refusal to exercise the NSW Ombudsman’s powers of obtaining information or investigating complaints. It is done merely in order to provide the NSW Ombudsman with a method or means of facilitating the exercise of the Ombudsman’s powers of obtaining information or investigating complaints. In this sense, acquiring software is no different from acquiring any tool to assist in the exercise of those powers such as a laptop, a photocopying machine or the like. ...

For these reasons I do not accept the contention of the NSW Ombudsman that s 35A(1) of the Ombudsman Act is engaged in this case. It follows that the requirement for leave under s 35A(2) is also inapplicable. This conclusion also renders moot the applicants’ other answer to the NSW Ombudsman’s notice of motion, that by s 79 of the Judiciary Act s 35A does not apply to this proceeding.

Moreover -

in the present case, it is inappropriate to attempt to resolve the operation of s 79 of the Judiciary Act on an assumed construction of s 35A(1) of the Ombudsman Act which I do not accept and in circumstances which appear to be to be far removed from those which s 35A(1) is intended to cover.

Jagot accordingly held that -

Section 35A(1) of the Ombudsman Act does not protect the NSW Ombudsman from liability in respect of the applicants’ claims in this case. Accordingly, the notice of motion must be dismissed. Costs should follow the event.

It would appear to have been simpler for the Ombudsman to simply pay the licence for the software and implicitly set an example for other NSW agencies.

McLuhan

From Alan Jacobs' New Atlantis item on Marshall McLuhan -

McLuhan was simply dismissive of such puzzlement [about Hot and Cool media]. In his preface to a later edition of the book, he wrote that "the section on 'media hot and cool' confused many reviewers of Understanding Media who were unable to recognize the very large structural changes in human outlook that are occurring today". His critics, then, are just out of touch with contemporary experience. In a later interview he would add, shifting the ground of his defense, "Clear prose indicates the absence of thought". Any confusion we experience is the inevitable result of McLuhan’s profundity — a claim quite similar to the ones made by Judith Butler when responding to the news that she had “won” the 1998 edition of the Bad Writing Contest sponsored by the journal Philosophy and Literature.

I have been reading McLuhan off and on since, at age sixteen, I bought a copy of The Gutenberg Galaxy. His centenary — McLuhan was born in Edmonton, Alberta on July 21, 1911 — provides an occasion for me to clarify my own oscillating responses to his work and his reputation. I have come to certain conclusions. First, that McLuhan never made arguments, only assertions. Second, that those assertions are usually wrong, and when they are not wrong they are highly debatable. Third, that McLuhan had an uncanny instinct for reading and quoting scholarly books that would become field-defining classics. Fourth, that McLuhan’s determination to bring the vast resources of humanistic scholarship to bear upon the analysis of new media is an astonishingly fruitful one, and an example to be followed. And finally, that once one has absorbed that example there is no need to read anything that McLuhan ever wrote.

Jacobs goes on to comment that -

To today’s reader, McLuhan’s responses to these works resemble nothing so much as a series of blog posts. (As my friend Tim Carmody has pointed out, this is even more true of McLuhan’s first book, The Mechanical Bride [1951], which is basically an anthology of advertisements with brief commentaries, a kind of proto-tumblelog.) He quotes a passage, riffs on it for a few sentences or paragraphs, then moves on to another book: quote, riff, quote, riff. And sometimes just quote: one section consists largely of a lengthy three-paragraph selection from Iona and Peter Opie’s Lore and Language of Schoolchildren (1959), while another gives seven brief paragraphs from Erik Barnouw’s Mass Communication (1956), in both cases with very brief introduction but no comment. As I have noted, the “mosaic” method here is an intentional homage to or imitation of the non-linear structures of the great Modernists. It may even be significant that what Yeats wanted to do, had he been granted the privilege of traveling through time to Justinian’s Byzantium, was to work in mosaic tile, to be absorbed thereby into a great collective endeavor in devotion to which he could forget his own identity. McLuhan’s refusal to produce a consecutive argument might well be an indication of his own mental quirks and limitations, but surely it was an attempt to allow “the Gutenberg Galaxy” — the vast constellation of idea, inventions, and practices that constitute “the making of typographic man” — to speak for itself.

Lords a'leaping

Given my dissertation I have been enjoying the brouhaha over climate change sceptic Lord Monckton, who's been smacked - quite publicly - for inexactitude regarding his identity.

The UK Parliament has published a 'Letter to Viscount Monckton of Brenchley from David Beamish, the Clerk of the Parliaments' [PDF]

The letter states -

My predecessor, Sir Michael Pownall, wrote to you on 21 July 2010, and again on 30 July 2010, asking that you cease claiming to be a Member of the House of Lords, either directly or by implication. It has been drawn to my attention that you continue to make such claims.

In particular, I have listened to your recent interview with Mr Adam Spencer on Australian radio. In response to the direct question, whether or not you were a Member of the House of Lords, you said "Yes, but without the right to sit or vote". You later repeated, "I am a Member of the House".

I must repeat my predecessor's statement that you are not and have never been a Member of the House of Lords. Your assertion that you are a Member, but without the right to sit or vote, is a contradiction in terms. No-one denies that you are, by virtue of your letters Patent, a Peer. That is an entirely separate issue to membership of the House. This is borne out by the recent judgment in Baron Mereworth v Ministry of Justice (Crown Office) where Mr Justice Lewison stated:

In my judgment, the reference [in the House of Lords Act 1999] to 'a member of the House of Lords' is simply a reference to the right to sit and vote in that House ... In a nutshell, membership of the House of Lords means the right to sit and vote in that House. It does not mean entitlement to the dignity of a peerage.

I must therefore again ask that you desist from claiming to be a Member of the House of Lords, either directly or by implication, and also that you desist from claiming to be a Member "without the right to sit or vote".

I am publishing this letter on the parliamentary website so that anybody who wishes to check whether you are a Member of the House of Lords can view this official confirmation that you are not.

Ouch.

The Court in Mereworth v Ministry of Justice [2011] EWHC 1589 (Ch), cited by Beamish, notes that in 2002 -

the present Lord Mereworth succeeded to the title. On 16 August 2010, he wrote to Her Majesty the Queen stating that he was entitled to a Seat, Place and Voice in Parliament and requesting Her Majesty to issue him a Writ of Summons for the Parliamentary sittings in September 2010.

The response of the Crown Office of the House of Lords was that the result of section 1 of the House of Lords Act 1999 was that Lord Mereworth was not entitled to a Writ of Summons because he was a hereditary peer. Lord Mereworth persisted with his request ...

The first declaration that he claims is a declaration that in consequence of the Letters Patent creating the Barony of Mereworth, he possesses and holds a seat and place in the House of Lords and has the right to have a voice in the House of Lords, that he is entitled to demand a Writ of Summons and is entitled, as of right, to receive a Writ of Summons.

The second declaration that he claims is a declaration that the court has jurisdiction to interpret the House of Lords Act 1999 and to determine whether the Act repealed Lord Mereworth's Letters Patent.

The Crown Office says that the court has no jurisdiction to grant this relief because it is within the exclusive cognisance of Parliament; but that if that is wrong, then the claim is bound to fail because the right to a Writ of Summons was removed by section 1 of the House of Lords Act 1999. Logically, the question of jurisdiction comes first because if this court does not have jurisdiction, that is the end of the matter.

Lewison J went on to state that -

In my judgment, the reference to "a member of the House of Lords" is simply a reference to the right to sit and vote in that House. If that were not clear from the Act itself, it would have been made abundantly clear, both by the explanatory notes which accompanied the Bill and by the speech of the Lord Chancellor in support of the Bill. In a nutshell, membership of the House of Lords means the right to sit and vote in that House. It does not mean entitlement to the dignity of a peerage. ...

In my judgment, the right to sit and vote in Parliament by virtue of a hereditary peerage cannot be described as a possession no matter how generously that expression is interpreted. In addition, the decision of the European Court of Human Rights in De la Cierva Osorio de Moscoso and Others v Spain, ECHR 1999-VII, decided in terms that a nobiliary title cannot be regarded as amounting to a possession.

Quite apart from that point, on the facts, Lord Mereworth succeeded to the Barony after the House of Lords Act 1999 came into force, so nothing was taken away from him. The fact was that the Barony to which he succeeded no longer carried with it the right to sit and vote in the House of Lords.

Finally, Lord Mereworth argues that the House of Lords Act has not repealed his Letters Patent. In a narrow sense, that is correct, contrary to the rather incautious view expressed by the Treasury Solicitor in an email written long after this claim was issued. The Letters Patent have not been repealed, so Lord Mereworth is entitled to the dignity of the peerage created by those Letters Patent. He is entitled to call himself "Lord Mereworth" but I asked Ms Gore what right attaching to the peerage was being asserted in these proceedings other than the right to receive a writ and the right to sit and vote in Parliament. She said that no other right was being asserted. But what the 1999 Act did do, and did clearly, was to remove one of the former privileges that attached to a hereditary peerage, namely the right to sit and vote in the House of Lords.

In my judgment, even if I had had jurisdiction to decide the case, it was bound to fail. No useful purpose would be served by a trial. There is no need for this case to go any further and every reason why it should not. I will, therefore, strike it out.

A perspective on the Osorio case is provided by Yofi Tirosh in 'A Name of One'S Own: Gender and Symbolic Legal Personhood in the European Court of Human Rights'[PDF] 33 Harvard Journal of Law & Gender (2010) 247-307.

In Osorio the European Court of Human Rights -

discussed jointly the applications of four Spanish women. All four were the oldest daughters in their family whose parent or relative passed away and left a nobility title for which they would have been next in the order of succession had they not been women. According to the Spanish law of title succession, these women were skipped over in the succession line because their younger brothers, being male, had priority over them. ...

At the ECHR, the Applicants claimed that the ruling [by Spain's Constitutional Court] interfered with their family life in violation of Article 8 and constituted discrimination by denying them enjoyment of this right. In establishing their claim that Spain violated their right to respect for private and family life, the Applicants argued that "nobiliary titles constituted the heritage of their lineage’s honour and a blood tie with their ascendants, and that they had been deprived of those attributes solely because they were females, not males." The ECHR rejected this claim, accepting Spain’s argument that "[i]dentity with a family was expressed through the surname and not through a nobiliary title."

Nobility titles, then, do not fall within the scope of Article 8’s protection. Not finding any violation of Article 8, the Court did not examine the discrimination question, since Article 14 protects only the equal enjoyment of rights guaranteed in the Convention. The discussion in Spain’s Constitutional Court illuminates the examination of women’s access to "name longevity." The Constitutional Court described peerage as a historical relic, which may have played a role in the legal, social, and financial status of people in the past, but today had a "purely symbolic value," merely honorary nature, lacking "any substantive content within our legal order." The Applicants, on the other hand, described the titles as not merely honorary in function, but of "pecuniary value, in the form of, for example, social advantages and increased prestige. Furthermore, assets, especially immovable property, from the family estate, frequently reverted in accordance with custom to the holder of the peerage."

Tirosh comments that -

The Court’s reasoning for why prioritizing males is not discriminatory revolves around the impossibility of imposing current principles of equality on a cultural phenomenon that originated in unequal times and reflects unequal hierarchies and value systems. "[T]he social and legal values enshrined in our Constitution ... would necessarily come into play if the legal distinction [between men and women] had a substantive content, which it certainly does not here." Had those titles carried more than symbolic value, or had they any actual legal or material implications, promises the Court, they would have been deemed unconstitutional. ...

At the ECHR proceedings, the Applicants argued that the discriminatory succession rule violated their dignity. The Government [responded]

[I]t would be unacceptable for one group of people to be considered more dignified than others as a result of pure biological accident. Peerages could not be accepted within society unless they were seen purely as 'nomina honoris' belonging to a 'residual institution' of the Old Regime whose recognition by some States was due solely to the fact that they were an historic institution. It would be contrary to the principle of the universality and equality of human rights to regard enjoyment of a nobiliary title as a right to respect for private and family life.

He notes the Constitutional Court's analysis that -

If the nobiliary title is not discriminatory and, therefore, not unconstitutional, the precedence [given to the male over the female line] is not either. In other words, since it is accepted that peerages are consistent with the Constitution owing to their purely honorary nature and their purpose, which is to keep alive the historic memory of their grant, a specific element of that institution — the rules governing their transmission on death—cannot be regarded as being exempt from the conditions laid down in the royal charter of grants.

before commenting that -

Recapitulating this argument somewhat grossly, the Court held that nobility titles are insignificant, they are just titles, and thus it is legitimate to pass them on unequally. And since they don't matter, women shouldn't care about inheriting them.

But titles matter. Even if they matter only as 'nomina honoris' as the Spanish Court itself recognizes, then women should have equal access to whatever meaning and function this honorary name has in Spanish society. The entrance of women into this system of honor would, in the eyes of the Constitutional Court, drain titles of their viability and debilitate titles' ability to carry honor. For women are not of this system; their entrance into it, just like giving boys'’ names to girls, would erode the system by granting titles to those who cannot, are not made to, bear them stably and reliably across generations.

Smelling sweet

'Did Plant Patents Create the American Rose?' (NBER Working Paper No. 16983, 2011) [PDF] by Petra Moser & Paul Rhode comments that -

The Plant Patent Act of 1930 was the first step towards creating property rights for biological innovation: it introduced patent rights for asexually-propagated plants. This paper uses data on plant patents and registrations of new varieties to examine whether the Act encouraged innovation. Nearly half of all plant patents between 1931 and 1970 were for roses. Large commercial nurseries, which began to build mass hybridization programs in the 1940s, accounted for most of these patents, suggesting that the new intellectual property rights may have helped to encourage the development of a commercial rose breeding industry. Data on registrations of newly-created roses, however, yield no evidence of an increase in innovation: less than 20% of new roses were patented, European breeders continued to create most new roses, and there was no increase in the number of new varieties per year after 1931.

The authors conclude -

Did the Plant Patent Act of 1930 help create the modern American rose breeding industry? Using plant patents as the sole indicator of innovation suggests that the answer is yes: large-scale breeding efforts of American firms, such as Jackson & Perkins, Armstrong, Weeks, and Conard-Pyle contribute a staggering share of U.S. plant patents grants between 1930 and 1970, and large commercial breeders dominate the list of the top ten patentees.

A closer look, however, suggests that patents played at best a secondary role, and that U.S. breeders mostly used patents strategically to protect themselves from litigation. Data on registrations of new varieties reveal that only a small share of new varieties, less than 20%, was patented. Moreover, European breeders continued to contribute the large majority of new varieties, and only one U.S. breeder, J&P’s Gene Boerner, is among the top ten breeders in terms of new varieties. In fact, the share of new varieties created by U.S. breeders dropped after the creation of plant patents, from nearly 40% from 1900 to 1930 to slightly over 20% from 1900 to 1970.

Notably, some of the most successful American roses, including Walter Van Fleet’s hardy American climbers, were creations of the pre-patent period. Other prominent American roses such as Conard-Pyle’s Peace rose, or J&P’s Pinnocchio were originally bred by European firms. American breeders began to propagate these roses when World War I suspended European imports and improved them to create the American rose.

Armed Robbery statistics

I've finally caught up with Armed robbery in Australia: 2008 National Armed Robbery Monitoring Program annual report [PDF], a 58 page Australian Institute of Criminology (AIC) document by Lance Smith, Kym Dossetor & Maria Borzycki. It was released last month and provides data on armed robberies over several years to 2009.

During 2008 there were 5,686 incidents of armed robbery recorded in Australian states and territories. The AIC suggests that the number of victims of armed robbery has decreased by 28% since 2003, with a smaller decrease of approximately 10% in the number of victims compared with 2007 data (6,427 in 2008 compared with 7,133 in 2007 and 8,865 in 2003). 38% of all armed robberies involving individual victims occurred in a retail setting (inc shopping centres, jewellers, pawn shops and gambling locations such as TABs). 48% occurred in an open setting (recreational space, transport-related, open spaces and street and footpath). The number of service station armed robberies decreased from 34% in 2007 to 32% in 2008.

The average age of a victim was 30 years (66% of male victims and 55% of female victims were under the age of 30 years). Males were more than three times more likely to be victimised than females (33.5 per 100,000 for males versus 9.9 per 100,000 for females).

Knives were the most commonly used weapon (51%). Armed robberies involving firearms accounted for 13% of all weapons used in armed robbery in 2008. Firearms were used in a higher percentage of robberies in banking and financial settings (45%) and licensed premises (39%) than in other locations. Knives were the most common weapon used in the majority of locations (eg corner stores, supermarkets and takeaways 62%; post offices and newsagents 58%; open spaces 58%).

67% of armed robberies occurred between 6 pm and 6 am, with 43% between 6 pm and 12 am.

The most common theft inolved cash (56%), followedby electrical goods (inc mobile phones (16%). Contrary to belief that you can make a fine living from knocking over a bank with a sawnoff (using a keyboard is more rewarding) armed robbery offenders netted an average $1,662 per incident in 2008, up from $1,066 per incident in 2007. The median for the value of what was stolen in armed robbery incidents in 2008 was $270 and the mode (the figure occurring the most often) was $300. The highest average gains for offenders were from incidents where a firearm was used ($4,833). The AIC notes that some of the highest average value gains for a weapon/location combination (with more than one incident) were for 'other' weapon robberies at pharmacies ($28,038) and firearm robberies at licensed premises ($18,777).

What do the offenders look like? The authors drew on data for 3,425 armed robbery offenders involved in 2,157 incidents. The typical incident involved a lone offender (64% of incidents). The more offenders that were involved in an armed robbery, the more likely it was that a firearm was used (incidents involving lone offenders involved firearms 11% of the time compared with 33% for five offenders). The average age of lone offenders was 26 years compared with 19 years of age for groups involving five offenders. The average age of offenders varied with location, with older offenders tending to target banking/financial locations and pharmacies (all 30 years).

IP Valuation

The UK Intellectual Property Office (counterpart of IP Australia) has released several number-crunching studies of note.

The 60 page Trade Mark Incentives study [PDF] considers potential links between trade marks and economic performance in the UK. The document features an overview of corporate trade marking, analyses the role of trade marks in the innovation process for enterprises and discusses branding.

The authors draw on the Office for National Statistics (ONS) Annual Respondent Database (ARD2) for the years 2000-2006, which combines information from ONS business surveys covering all large enterprises and a sample of smaller businesses. That data was related to information on each enterprise’s UK and European Community trade marks and patents.

They conclude that large firms are much more likely to trade mark (12.9%) than smaller firms. 'Micro firms' at 0.4% are the least likely; 1.7% of small and 5.2% of medium sized enterprises trade mark their products and services. The manufacturing, wholesale/retail services, and business services sectors were most likely to use trade marks. As an indicator of each sector’s internationalisation the IPO calculated the ratio of UK trade marks to all trade marks. The most internationalised sector – that with the lowest ratio - is communications (0.439), followed by computer software (0.477) and manufacturing (0.505). The average for all firms was just above half (0.567), reflecting substantial use of the Community trade mark (CTM).

The IPO also classified firms into high - and medium - tech manufacturing groups, along with other and non-manufacturing groups, mainly services. Trade marking by high-tech firms was 9.8%, by medium tech was 7.2%, other manufacturing 7.0% and non-manufacturing 2.2%. The authors ask whether trade marking is associated with higher productivity? They suggest that trade marking firms are 21% more productive than those that do not trade mark. They comment that their analysis -

controls for variables such as workforce size, capital assets, export status and foreign ownership, but not for the extent or nature of innovation, which trade marking may proxy, nor for a wider range of characteristics of the firm that may underlie both its trade mark activity and its productivity performance. For example, when we control for the recent level of advertising expenditure in the firm, the productivity differential for trade marking falls to 7%.

A higher intensity of trade marking (more trade marks per employee) is associated with better productivity.

Do trade mark active firms have higher employment? The report appears to demonstrate that employment is significantly higher in firms that are trade mark active (even when controlling for the size of firms), with the authors commenting that -

The strength of the association is such that a firm that regularly trade marks has a workforce that is 20% larger than a similar firm which does not. This suggests that the activity of developing and offering new products and brands to the marketplace requires more employees.

On average the trade marking firms apparently pay slightly more (a 0.7% premium)to their employees. Findings for employment and wages together suggest that businesses that regularly trademark support more 'good jobs'.

The authors are cautious in drawing conclusions about overall economic growth. They comment that -

analysis shows that firms that were trade marking from 2000 to 2003 saw their employment and turnover both growing at a rate of 6% per annum faster than other firms during 2003-2006. For both the growth of employment and turnover, the regression analysis controls for firm age, industry levels of trade mark and patent intensity, exporter status and foreign ownership. When we add the stocks of advertising and trade marking to this regression in place of the simple trade mark dummy, the differences in growth and turnover are also significant. However, when we add a measure of interaction between the stock of each firm’s trade marks and its advertising stock to both growth models the coefficient is negative, although not significantly so. What interpretation should we place on this finding? It is contrary to our expectations: we expected that joint trade marking and advertising activity might indicate brand building and, if so, these stocks would be complementary and further strengthen a firm’s growth. Having only four years of data for the calculation of stocks may be too short for such synergies to be uncovered. Furthermore, money spent on trade marks cannot be spent on advertising; hence there is an inherent substitution between these activities. However, there is some good news, as it suggests that trade marks are less likely to support anti-competitive brand building by incumbent firms.

Claimed benefits for households reflect suggestions that regular trade marking often signals innovation, sometimes involving -

the introduction of radically new products, adapting new process technology to deliver genuinely new goods and services. Such innovation leads to lower prices, higher quality and a greater variety of products in the marketplace. Consumers will benefit from all three – lower prices increase their real purchasing power; higher product quality at similar prices to earlier inferior varieties gives the customer more value for money; and the increased variety of goods and services is more likely to satisfy customer needs.

The IPO has also released Film, Television & Radio, Books, Music and Art: UK Investment in Artistic Originals [PDF], claiming an upward revision of £3.5bn to the UK stock of artistic originals as recorded in the UK National Accounts in 2008. In essence the document reports on measurement of the economic value of the UK 'creative sector' through "creation of long-lived artistic original assets protected by copyright" (inc new books, art, broadcast programmes, music and films) from 1990-2008. The total value of new artistic asset creation in the UK is likely to be worth £3bn more in Gross Value Added (GVA) than national statistics currently suggest.

The associated report on The Role of Intellectual Property Rights in the UK Market Sector [PDF] -

estimates (a) the level of UK market sector investment in knowledge assets protected by Intellectual Property Rights (IPRs) and (b) the impact of investment in those assets via their contribution to labour productivity growth in the UK market sector. Estimates for investment and the stock of IPR capital are based on previous work and includes new estimates for investment in artistic originals.

The main findings are:

1) On average, between 2000 and 2008, 48% of knowledge investment in the UK market sector was protected by IPRs
2) The majority of IPR investment is on assets protected by copyright and design rights
3) In 2008 approximately 62% of the stock of knowledge assets in the UK market sector was protected by IPRs
4) On average, between 1990 and 2008, 10.6% of growth in labour productivity was due to growth in capital deepening of IPR-protected assets. Comparable figures for ICT equipment and knowledge capital not protected by IPRs are 11.1% and 10.3% respectively.

Let's share

What is it about South Australia, land of problematical restrictions on free speech and association? (I'm assured by several South Australians that the water - undrinkable though it is - is not to blame)

Today's news involves furore over the failure of Medvet ("Vetting your staff and workplace to reduce your risk"), the state government enterprise that is dominant in the workplace drug and alcohol testing industry, to quickly respond to a major data breach.

On Friday Medvet pledged that it was doing everything possible to deal with access via Google to information regarding the paternity, drug and alcohol tests. Conduct a fairly cursory search and you could discern the identities of Medvet test subjects (names, home addresses, phone numbers), the nature of the test and the price.

It is reported that Google deleted the cached information after "a concerned industry figure, unrelated to Medvet" alerted Google that confidential data was online. Google provides scope for removing confidential data (including cached pages). It notes for example that its "URL removal tool is intended for pages that urgently need to be removed - for example, if they contain confidential data that was accidentally exposed". Use of the tool prevents public access to Google's cached pages and takes those pages out of Google's search results (although does not, of course, delete screenshots or other copies that Google's competitors and users have made of the pages). In principle, by acting responsible, Medvet could have deleted all the offending material on Friday.

Medvet's indifference is of concern and raises questions about its overall handling of data.

The South Australian government has announced it will "push for an independent review" into the data exposure and reportedly denies any prior knowledge of Medvet's security problems.

SA Health Department chief executive David Swan reportedly spoke to Medvet chair Terry Evans "several times over the weekend" and confirmed that Medvet will allow external auditors to examine its systems in identifying how the privacy breaches happened, "who saw the data" and when company staff learnt of the problem.

Commonwealth Privacy Commissioner Timothy Pilgrim, acting more quickly than in the past, has reportedly announced that he will investigate both Medvet's original security breach and its subsequent failure to immediately contact Google - and presumably other search engines - about remove information that should not have gone public. (There is, as yet, no announcement on the OAIC or former Privacy Commission site.)

Medvet will reportedly be asked to explain what actions it took when it first became aware in April [!] of a security lapse. It will also be asked to explain what steps were taken last Friday after The Weekend Australian alerted Medvet's managing director that information was online.

Interesting, Medvet apparently still has not contacted people whose information went feral.

Its statement of 2:30pm this afternoon indicates that -

Medvet Laboratories deeply regrets that its web store security has been compromised, as a result of which some clients' delivery addresses and product order details have become available on the internet. No client bank account details or results of any tests have been disclosed.

On becoming aware of this Medvet Laboratories immediately closed the web store and we have initiated the necessary steps to have the information removed from the internet.

All client information has now been removed and is no longer available on the internet.

The Medvet Laboratories board has instructed that an independent investigation is undertaken immediately into how this has occurred, who is affected and what can be done to address it.

Once we have all the facts we will contact the clients whose details have been published to the internet.

We sincerely apologise for this occurring and for any embarrassment this may have caused to our clients.

A more positive stance would involve contacting everyone now, so that they don't have to discover the bad news by reading the newspapers.

Medvet's online Privacy Policy states that -

Medvet Science Pty Ltd (Medvet) ABN 15 008 089 745 is committed to observing the National Privacy Principles as set out in the Privacy Amendment (Private Sector) Act 2000.

Medvet has adopted all principles set forth in the National Privacy Principles that govern the collection, use, disclosure, quality, security, access and correction of information that personally identifies an individual ("personal information"). This Policy Statement applies to all personal information that Medvet may collect, use and disclose, whether that information is manually or digitally processed.

The meaningfulness of Medvet's adoption of the NPP is thrown into question by exposure of the data.

The statement continues -

2. Personal Information

Medvet collects personal information when we provide our services to you. Generally Medvet will tell you why we are collecting information, when we collect it and how we plan to use it or this will be obvious at the time of collection.

Medvet usually collects personal information directly from you although sometimes we may use agents or service providers to do this for us. Medvet may also acquire lists from other sources, both from other companies and from public documents.

3. Use of Information

Medvet usually collects personal information such as your name, address and telephone number. In some instances it may include your date of birth and medical records. When you are online, Medvet collect information regarding the pages within our network which you visit and what you click on. As a general rule Medvet does not collect sensitive information. However, if we do, it will usually be for the purposes of providing our goods or services and if the law requires us to, Medvet will seek your consent to collect it.

Medvet use your information to provide our services to you, to fulfil administrative functions associated with these services, for example billing, to enter into contracts with you or third parties and for marketing and client relationship purposes.

4. Other Disclosure of Personal Information

Medvet does not disclose personal information that it holds about Clients or Recipients to third parties without their consent, unless permitted under the National Privacy Principles or unless otherwise required by law. Medvet respects the privacy of users visiting our website and does not share any personally identifiable information with any third parties. ...

6. Data Integrity

Medvet only uses personal information necessary to perform the Services requested. Occasionally, Clients provide more personal information than is necessary for that purpose (for example, providing us with a name, street address and e-mail address, when only the name and e-mail address are necessary). In such cases, Medvet identifies and utilises the required data. The rest of the data remains secure and unused until it is destroyed or returned to the Client, upon request. Medvet only stores personal information when specifically requested to do so by the Client, or as part of standard back-up/archiving process.

All archived files are stored in a secure facility.

7. Data Security

Medvet utilises reasonable and appropriate protections to ensure that personal information in its care is not misused or lost or accessed without proper authorisation. Access to personal information stored on Medvet servers is restricted to those employees or contractors who require such access to perform a legitimate business purpose relating to the Services, maintenance, internal security or other related issues. All Medvet employees and contractors, as a prerequisite for employment, are required to sign a strict and detailed confidentiality agreement in relation to the personal information that they will have access to.

It's perhaps time to reconsider industry practice regarding "reasonable and appropriate" practice in handling data and responding to instances where information has wandered out of the "secure facility" or where "reasonable and appropriate" demonstrably is not adequate.

The statement continues -

8. Correction of Personal Information

Medvet takes reasonable steps to ensure that all personal information it holds is accurate, complete and up to date. Clients and other individuals should also promptly notify Medvet if any personal information that Medvet hold about them is incorrect or out of date.

9. Access to Personal Information

Individual Recipients seeking access to their personal information that Medvet has received from its Clients should contact the Client directly. Medvet is happy to provide access to such personal information, to any interested Recipient upon request, providing appropriate identification is made available and the Client consents to the release of the information.

12. Review of Compliance

Medvet will review its compliance with the National Privacy Principles on a regular basis and may amend this Privacy Policy Statement from time to time.

Time, obviously, to do that review and to do it properly.

Murdochabilia

With UK, US and Australian expressions of outrage over News Corp in mind it is interesting to recall two 2006 reports by the UK Information Commissioner.

The Commissioner's 32 page What price privacy now? The first six months progress in halting the unlawful trade in confidential personal information report [PDF] updated its exposure in What Price Privacy? [PDF] of an extensive illegal trade in confidential personal information, with claims that there were around 3,000 instances of newspapers - including Murdoch competitors - breaking the Data Protection Act 1998 and other statutes.

Protection under s 55 of the Data Protection Act 1998 is founded on an offence (with certain exemptions) of obtaining, disclosing or procuring the disclosure of personal information knowingly or recklessly, without the consent of the organisation holding the information. Offences are punishable by a fine only (up to £5,000 in a Magistrates’ Court and unlimited in the Crown Court).

The Commissioner commented that his preceding What price privacy? report -

exposed an extensive illegal trade in confidential personal information and made recommendations to government and industry in an effort to halt a serious threat to individuals’ privacy. Some of the press coverage since the report has highlighted the intrusion into the lives of high profile public figures by the media but it should not be forgotten that this trade also affects the lives of people not in the public eye and is very often unrelated to media activity.

Respect for privacy is one of the foundation stones of the modern democratic state. It is enshrined in the European Convention on Human Rights and is directly enforceable in UK courts through the Human Rights Act 1998. Failure to respect an individual’s privacy can lead to distress and in certain circumstances can cause that individual real damage, mentally, physically and financially.

People care about their personal privacy and have a right to expect that their personal details are and should remain confidential. Who they are, where they live, who their friends and family are, how they run their lives: these are all private matters. Individuals may choose to divulge such information to others, but information about them held confidentially by others should not be available to anyone prepared to pay the right price.

He went on to note that -

Investigations by the ICO and the police have uncovered evidence of a widespread and organised undercover market in confidential personal information. Such evidence formed the core of the report, detailing how the unlawful trade in personal information operates: who the buyers are, what information they are seeking, how that information is obtained for them, and how much it costs.

Among the ultimate 'buyers' are many journalists looking for a story. In one major case investigated by the ICO, the evidence included records of information supplied to 305 named journalists working for a range of newspapers. Other cases have involved finance companies and local authorities wishing to trace debtors; estranged couples with one party seeking details of their partner’s whereabouts or finances; and criminals intent on fraud or witness or juror intimidation.

The personal information they are seeking may include someone’s current address, details of car ownership, an ex-directory telephone number or records of calls made, bank account details or intimate health records. Disclosure of even apparently innocuous personal information – such as an address – can be highly damaging in some circumstances, and in virtually all cases individuals experience distress when their privacy is breached in this way.

The report notes responses to its findings of illegality.

The National Union of Journalists for example wrote to the Commissioner -

stressing their long standing commitment to journalists only obtaining information by straightforward means unless they can demonstrate that they are acting in the public interest. The Union is currently considering an addition to their code of conduct to require journalists not to publish or obtain information directly or indirectly which would breach Section 55.

In addition the Union has supported custodial sentences provided that the higher
penalties are reserved for those who feed and encourage the illegal trade by instructing journalists to break the law when there is no overriding public interest to do so. The Union believes that the illegal trade is encouraged by cost cutting by the industry leading to publications devoting fewer resources to investigative journalism and also because of disillusionment amongst journalists about the Freedom of Information Act 2000 providing a ready source of information.

The Union has stressed that journalists should not be scapegoats for newspaper proprietors and managers who pressure them into breaking the law.

Newspaper proprietors - The Newspaper Publishers’ Association, Scottish Newspaper Publishers’ Association, Newspaper Society, Scottish Daily Newspaper Society, Periodical Publishers Association and Society of Editors - responded "as one" by -

making it clear that no newspaper publisher would condone any illegality. They have stressed that the industry takes the issues reported in What price privacy? very seriously and that they perceive their role as spreading greater awareness and understanding amongst journalists of data protection issues and the potential consequences of breaching the law. Building on the data protection guidance already issued by the Press Complaints Commission (PCC) and working with the Information Commissioner (ICO) they propose to:

1. encourage individual publishers to draw the information contained in ‘What price privacy?’ to the attention of senior management;
2. distribute through industry associations to each of their members simple guidance prepared by the ICO about the terms of the Act, and ask them to disseminate it to their journalists; and
3. assess what further steps need to be taken to publicise this guidance once the exercise has been completed.

The industry recognises that the situation needs constant review and as such has indicated that the Code of Practice Committee of Editors, as mentioned above in connection with the PCC, will keep the terms of the code under review and would be ready to receive further representations from the Information Commissioner.

Attached to the industry’s response to What price privacy? was their submission to the Government’s consultation on increasing penalties for the deliberate and wilful misuse of personal data. While the response was not directed at the Information Commissioner it is useful to note some of its key points here as the industry argues against the introduction of a possible custodial sentence as an addition to the existing sanction of fines.

The industry believes that a custodial sentence will have a serious chilling effect on investigative journalism and that given the importance to democracy of freedom of speech, and in line with the precedent of the European Court concerning the press, an overwhelming case needs to be made for the introduction of custodial sentences. The industry maintains that no such case has yet been made by either the Information Commissioner or the Government.

The industry argues that the introduction of prison sentences would require the existing public interest exemption at Section 55 to be revised. Currently to enjoy the exemption at Section 55(2)(d) journalists have to be certain that they are acting in the public interest before obtaining or procuring any personal information which does not allow for situations where they are acting in the reasonable belief that their line of investigation is in the public interest.

The industry proposes that the problem of journalists’ involvement in the illegal trade in confidential personal information could be addressed by greater fines and more prosecutions in the Crown Court coupled with greater education for journalists about the Data Protection Act 1998.

Sundry other interests put their hands on their hearts and swore that they would never condone a breach of the Act.

We might wonder what a sustained investigation of practice in Australia would reveal. We might also question the ethics of consumers who have, of course, fed on several generations of intrusive print and electronic journalism but now - like Captain Renault in Casablanca are shocked, shocked, to discover that there has been misbehaviour on the premises.

a perspective on demands for money, lots of money (esp for celebrities with the finest legal advice that lots of money can buy) is provided in a cogent item [PDF] by UK QC Nicholas Caddick.