Groucho's cousins

From the Economist's spirited 2002 smackdown of Karl Marx, which I'm rereading in conjunction with the more nuanced The Road From Mont Pelerin: The Making Of The Neoliberal Thought Collective (Harvard Uni Press 2009) edited by Philip Mirowski & Diete Plehwe and Radicalism in French Culture: A Sociology of French Theory in the 1960s (Ashgate 2010) by Niilo Kauppi -

When he wanted to be, Marx was a compelling writer, punching out first-rate epigrams at a reckless pace. The closing sentences of The Communist Manifesto (1848) are rightly celebrated: "The workers have nothing to lose but their chains. They have a world to gain. Workers of the world, unite." He also had an enviable flair for hysterical invective. At one point in Capital (1867-94), he famously defines the subject of his enquiry as "dead labour, that, vampire-like, only lives by sucking living labour, and lives the more, the more labour it sucks." That is not only unforgettable but actually very apt, if you believe Marx's theory of value. He could express himself brilliantly when he chose to.

Yet he was also capable of stupefying dullness and impenetrable complexity. Try the opening pages of Capital (it picks up later). In his scientific work, as he called it, he minted jargon at a befuddling rate, underlining terms to emphasise their opacity, then changing their meaning at will. Adding to the fog, what Marx believed in 1844 was probably not what he believed in 1874: the only constant was his conviction that what he said at any time was both the absolute truth and fully consistent with what he had said before. And most of the published Marx, including the “Manifesto” and volumes two and three of Capital, was edited, co-written or ghost written by Friedrich Engels. For many years, therefore, separating Marx from Engels in what the world understands as “Marx” was an academic industry in itself. ...

Marx was a scholar, but he was also a fanatic and a revolutionary. His incapacity for compromise (with comrades, let alone opponents) was pathological. And in the preface to the 1882 Russian edition of the Manifesto, his last published writing, Marx hoped that a revolution in Russia might become “the signal for a proletarian revolution in the West, so that both complement each other”; if so, Russia, despite its pre-capitalist characteristics, “may serve as the starting-point for a communist development.” Lenin was surely right to believe that he, not those soft-headed bourgeois accommodationists, was true to the master's thought.

... the fact remains that on everything that mattered most to Marx himself, he was wrong. The real power he claimed for his system was predictive, and his main predictions are hopeless failures. Concerning the outlook for capitalism, one can always argue that he was wrong only in his timing: in the end, when capitalism has run its course, he will be proved right. Put in such a form, this argument, like many other apologies for Marx, has the advantage of being impossible to falsify. But that does not make it plausible. The trouble is, it leaves out class. This is a wise omission, because class is an idea which has become blurred to the point of meaninglessness. Class antagonism, though, is indispensable to the Marxist world-view. Without it, even if capitalism succumbs to stagnation or decline, the mechanism for its overthrow is missing.

Class war is the sine qua non of Marx. But the class war, if it ever existed, is over. In western democracies today, who chooses who rules, and for how long? Who tells governments how companies will be regulated? Who in the end owns the companies? Workers for hire—the proletariat. And this is because of, not despite, the things Marx most deplored: private property, liberal political rights and the market. Where it mattered most, Marx could not have been more wrong. ...

The core idea that economic structure determines everything has been especially pernicious. According to this view, the right to private property, for instance, exists only because it serves bourgeois relations of production. The same can be said for every other right or civil liberty one finds in society. The idea that such rights have a deeper moral underpinning is an illusion. Morality itself is an illusion, just another weapon of the ruling class. (As Gyorgy Lukacs put it, 'Communist ethics makes it the highest duty to act wickedly ... This is the greatest sacrifice revolution asks from us.') Human agency is null: we are mere dupes of “the system”, until we repudiate it outright.

What goes for ethics also goes for history, literature, the rest of the humanities and the social sciences. The “late Marxist” sees them all, as traditionally understood, not as subjects for disinterested intellectual inquiry but as forms of social control. Never ask what a painter, playwright, architect or philosopher thought he was doing. You know before you even glance at his work what he was really doing: shoring up the ruling class. This mindset has made deep inroads — most notoriously in literary studies, but not just there — in university departments and on campuses across Western Europe and especially in the United States. The result is a withering away not of the state but of opportunities for intelligent conversation and of confidence that young people might receive a decent liberal education. ...

It is striking that today's militant critics of globalisation, whether declared Marxists or otherwise, ... present no worked-out alternative to the present economic order. Instead, they invoke a Utopia free of environmental stress, social injustice and branded sportswear, harking back to a pre-industrial golden age that did not actually exist. Never is this alternative future given clear shape or offered up for examination.

Anti-globalists have inherited more from Marx besides this. Note the self-righteous anger, the violent rhetoric, the willing resort to actual violence (in response to the “violence” of the other side), the demonisation of big business, the division of the world into exploiters and victims, the contempt for piecemeal reform, the zeal for activism, the impatience with democracy, the disdain for liberal “rights” and “freedoms”, the suspicion of compromise, the presumption of hypocrisy (or childish naivety) in arguments that defend the market order.

Anti-globalism has been aptly described as a secular religion. So is Marxism: a creed complete with prophet, sacred texts and the promise of a heaven shrouded in mystery. Marx was not a scientist, as he claimed. He founded a faith. The economic and political systems he inspired are dead or dying. But his religion is a broad church, and lives on.

APS

The national Public Service Commissioner, ie the official concerned with most Commonwealth government agencies (some 166,000 people), has released a 361 page report on the State of the Service [PDF].

The report includes data on identity fraud offences by officials and on action regarding privacy breaches and leaks.

It indicates that in relation to "Fraud other than theft (e.g. identity fraud)" some 54 employees were investigated in 2009-2010 and some 64 in 2010-2011. 61% of the investigations in 2009-2010 resulted in a finding that fraud had occurred, compared to and 83% in 2010-2011. There were 19 investigations into "Unauthorised disclosure of information (e.g. leaks)" in 2009-2010, with 24 in 2010-2011. The investigations substantiated the claims of a breach in 42% of investigations in 2009-2010 and 71% in 2010-2011. Percentages look so much more impressive, presumably. There is no clear indication of the penalties.

In relation to "Improper access to personal information (e.g. browsing)" the report indicates that there were 166 investigations in 2009-2010, compared with 145 in 2010-2011. 82% resulted in an adverse finding in 2009-2010; 83% in 2010-2011.

The report indicates that -

Reprimands and deductions from salary continued to be the two sanctions most commonly applied, representing 61% of all sanctions imposed. While most sanctions declined in absolute numbers from the previous year, consistent with the smaller number of cases finalised, the results indicate that agencies appear to have been more willing to demote employees as a sanction for misconduct. The ATO, Department of Defence and Department of Human Services together accounted for 62% of all terminations and 79% of resignations of employees under investigation

It goes on to state that -

The proportion of investigations undertaken as a result of a whistleblowing report remained low this year, comprising 1% of all investigations.

Regulation 2.4 of the Public Service Regulations requires agencies to develop procedures for dealing with whistleblowing reports, that is, reports of breaches of the Code of Conduct made by an APS employee to an authorised person. All agencies had agency-wide whistleblowing procedures in place this year. Reports made under the scheme are considered and a decision made about whether an investigation should be conducted under the agency’s section 15(3) procedures to formally determine whether there was a breach of the Code.

This year, agencies were asked to provide details on whistleblowing reports lodged and finalised during 2010–11. Seventy-six reports were lodged with agency heads or authorised representatives and 52 inquiries into whistleblowing reports were finalised in 2010–11. Of those finalised, only 10% concluded that an investigation into the alleged misconduct should begin. ... The most common allegations concerned harassment and/or bullying (23%), improper use of position or status (16%) and fraud other than theft (14%).

Overall "less than four in every 1,000 employees [were] found to have breached the APS Code of Conduct", albeit "18% of APS employees reported having been subjected to harassment or bullying in the workplace in the previous 12 months".

P2P Filter Schmilter

The 'Scarlet Case' in Europe has attracted most attention for the rejection by the Court of Justice of the European Union of a comprehensive P2P filtering regime sought by some copyright interests. The decision is of interest, however, because of the Court's comments on privacy.

The judgment is C‑70/10, Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM); Belgian Entertainment Association Video ASBL (BEA Video), Belgian Entertainment Association Music ASBL (BEA Music) and Internet Service Provider Association ASBL (ISPA) intervening.

SABAM is a collective rights administration body, ie a not-for-profit nongovernment entity that represents authors, composers and editors of musical works in authorising use of their copyright-protected works by third parties. Customers of Belgian ISP Scarlet used peer-to-peer - described as a "transparent method of file sharing which is independent, decentralised and features advanced search and download functions" to download works in SABAM’s catalogue from the internet, without authorisation and without paying royalties. SABAM identified that activity in early 2004, bringing interlocutory proceedings against Scarlet before the President of the Tribunal de première instance in June 2004. It argued that the ISP was best placed to take measures that would stop copyright infringement by Scarlet's customers. That argument is similar to claims advanced by record and film industry interests in Australia, notably the Iinet case currently before the High Court.

SABAM sought a declaration that copyright in its musical works had been infringed, in particular the right of reproduction and right of communication to the public. As a corollary it sought an order requiring Scarlet to end those infringements by blocking (or making it impossible for the ISPs customers to send or receive) files containing a musical work using peer-to-peer software without the permission of the rightholders. That order would involve Scarlet providing SABAM with details of the measures.

The Court found that copyright had been infringed. However, it appointed an expert to investigate the feasibility of the technical solutions proposed by SABAM, in particular whether it would be possible to exclude only unlawful file sharing and whether there were other ways of monitoring the use of peer-to-peer. The expert's report concluded that filtering and blocking unlawful sharing of electronic files might be feasible. In June 2007 the Court consequently ordered Scarlet to prevent the ISPs customers from sending/receiving files containing a SABAM musical work by means of peer-to-peer software.

Scarlet appealed, arguing that

• compliance was impossible because the effectiveness and permanence of filtering and blocking had not been proved and there were numerous practical obstacles such as network capacity and performance;
• attempts to block the files in the immediate term were doomed because there were several peer-to-peer software products that made it impossible for third parties to check their content;
• the injunction was contrary to Article 21 of the Law of 11 March 2003 on certain legal aspects of information society services, which assimilates Article 15 of the EU E-Commerce Directive (ie Directive 2000/31) into Belgian law, because it would impose a general obligation to monitor all the communications on Scarlet's network
• deployment of a filtering system would breach of European Union law regarding the protection of personal data and the secrecy of communications, given that filtering involves processing of IP addresses, claimed as personal data.

The Belgian Court accordingly stayed the proceedings and referred questions to the European Court of Justice. Those questions were -

Q1 Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights & Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right’, to order an [ISP] to install, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent?

Q2 If the answer to the [first] question ... is in the affirmative, do those directives require a national court, called upon to give a ruling on an application for an injunction against an intermediary whose services are used by a third party to infringe a copyright, to apply the principle of proportionality when deciding on the effectiveness and dissuasive effect of the measure sought?

In responding the European Court referred to Directives -

• 2000/31 (Directive on electronic commerce) on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market;
• 2001/29 on harmonisation of certain aspects of copyright and related rights in the information society;
• 2004/48 on the enforcement of intellectual property rights;
• 1995/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and
• 2002/58 (Directive on privacy and electronic communications) concerning the processing of personal data and the protection of privacy in the electronic communications sector

It concluded that in relation to those Directives the injunction was impermissible, ie the ISP should not be required to install and maintain a filtering system that -

• involves all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;
• applies indiscriminately to all customers;
• is a preventive measure;
• is exclusively at its expense;
• for an unlimited period,
• is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which infringes copyright.

The Court commented that -

The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union. There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.

As ... Case C‑275/06 Promusicae [2008] ECR I‑271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights.

More specifically ... national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.

Accordingly ... national authorities and courts must, in particular, strike a fair balance between the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by operators such as ISPs pursuant to Article 16 of the Charter.

The Court went on to higlight privacy concerns. It commented that -

In the present case, the injunction requiring the installation of the contested filtering system involves monitoring all the electronic communications made through the network of the ISP concerned in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also future works that have not yet been created at the time when the system is introduced.

Accordingly, such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

In those circumstances, it must be held that the injunction to install the contested filtering system is to be regarded as not respecting the requirement that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as ISPs.

Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

It concluded that -

in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other

Assange

From George Brock's TLS review of the Assange autobiography (noted recently) -

Presenting himself then and now as a rebel against the system, Assange is being strictly conventional. What makes him different is the lengths to which he is prepared to go. Two words dominate such arguments as he makes: “power” and “justice”. Power is bad. It is wielded by weak, secretive, guilty people who lie and conspire to restrain Assange from doing what is just. Information is the corrective to power – which is always misused – because it brings justice. There is no discussion of the relation between information and truth, no definition of justice and no concession to the idea that human social organization may be hard to achieve without creating sources of power. It is hard to avoid the conclusion that what is just is what Assange says is fair. His defence of WikiLeaks’s “editorial judgement” is incoherent and self-contradictory.

When WikiLeaks lands a huge cache of American government documents and is obliged to cooperate with the mainstream media, Assange is rapidly out of his depth. It does not seem to occur to him that media organizations might have aims which differ from his own. He gets very cross.

Assange’s querulous, paranoid personality helps to explain why WikiLeaks is part sensation and part tragedy. He and his original colleagues created a watertight platform for leakers: when material was sent there, no one knew where it had come from. This was a truly ground-breaking technical achievement. But, while their understanding of software security was profound, their grasp of politics was weaker. They tried publishing raw material on a website and were bitterly disappointed by the silence. The material was potentially explosive: Kenyan corruption, tax evasion by Swiss banks, manuals from Guantánamo. But banks did not fold; bent politicians were not arrested.

Public reaction was muted partly because the raw material was hard for any reader to digest or often to understand. But, stripped of any authentication, it was also hard to evaluate. The WikiLeakers had inadvertently demonstrated a truth about journalism. For all its faults, mainstream journalism comes with signals, context and history which help a reader or viewer to judge whether to trust what they’re reading or seeing.

The American material WikiLeaks was handed was truly significant, but its release did not trigger the political drama Assange expected. An American helicopter crew filmed itself killing civilians, but the wars go on. Assange miscalculated. He overestimated the impact in the US of the revelation that armies are secretive and commit crimes. He was recklessly indifferent to the expertise required to land an information missile on its target. His message was muffled by controversy and divisions inside his own team. The sheer scale of the material diffused the impact of what was disclosed: reactions went in dozens of different directions. For many people, the revelation was the American government’s vulnerability: a low level soldier could with ease remove and publicize millions of files.

The consequences of the State Department cables were similarly complex and gradual. ... the relation between information and governance stands where it did before.

Assange needed allies and expertise. But his inexperience and autocratic impatience drove them away. If the WikiLeaks revelations had been directed by a cohesive group of skilled operators who cooperated to minimize the distractions of an information-saturated world and to make the very strongest moral impact with the powerful data at their disposal, it is likely the world would have taken a different kind of notice. The evidence, not the man, would have been the story.

Legal Pluralism

'Witchcraft and the Constitution' by Nelson Tebbe in Traditional African Religions in South African Law (University of Cape Town Press 2011) edited by T.W. Bennett argues that -

Witchcraft beliefs and related practices are complex social phenomena that present difficult challenges for South African lawmakers who are bound by their constitution and committed to upholding its values. In this chapter of an edited volume ... I focus on certain constitutional questions raised by existing policies and current proposals. In some respects, the constitutional issues are easier than might be supposed. For example, Parliament may punish violence against suspected witches, even with laws that specifically address religiously motivated murder and assault. Also, citizens may believe that occult forces exist, and that those forces are being manipulated by jealous or malevolent neighbors. More constitutionally problematic are calls for educational campaigns that would "demystify" witchcraft beliefs, or proposals for laws that would prohibit certain rituals related to witch naming. Regardless of the resolutions, these sorts of constitutional issues deserve a place in the public debate.

Tebbe comments that -

policymaking on witchcraft beliefs and practices raises questions for the modern constitutional order, questions that so far have not figured prominently in public discussion. My aim here is to frame and foreground those questions. At the most general level, they arise out of a tension within the Constitution. On the one hand, government policy has long disapproved of witchcraft practices that cause harm and threaten individual rights. Arguably, that disapproval now has constitutional significance, at least to the extent that the victims of witchcraft-related violence tend to be members of vulnerable groups, such as women, children, the aged, or the disabled. On the other hand, officials are bound by a constitutional commitment to protect the many citizens who fear the occult. various provisions of the Constitution embody that commitment, including sections concerning religious liberty, equal citizenship, freedom of culture, customary law, and traditional leadership. In other words, officials may wish to denounce and deter witchcraft practices, and to some degree they can, should, and must. At the same time, the Constitution also prevents them from ignoring the freedom and equality of people who believe that they are the ones being harmed by enemies wielding occult forces.

Some of the constitutional issues are easy – perhaps easier than commonly acknowledged. For example, it is uncontroverted that society cannot tolerate practices, even constitutionally protected religious practices, when they result in human deaths. Government decisions to punish killings associated with witchcraft or muthi, or to impose especially severe punishments for such murders, are unlikely to raise legal difficulty. Proposals for improved police reporting or plans for education campaigns that emphasise the illegality of witch hunts are equally innocuous.

Other questions are somewhat more intriguing. Does current statutory law – which dates from the apartheid era and outlaws the identification and denunciation of supposed witches – implicate constitutional principles of religious liberty, cultural freedom, free speech or equal citizenship? What about proposals that would require chiefs and headmen to discourage gatherings where diviners may identify people as witches? Would education campaigns designed to ‘demystify the beliefs around witchcraft and sorcery’ impermissibly entangle the state in religious questions? Regardless of the answers, these constitutional issues deserve a place in the debate.

notice that the tensions I am addressing are internal to constitutional discourse. Setting up an opposition between so-called ‘traditional’ religion and ‘modern’ constitutionalism distorts more than it clarifies, given the fact that beliefs and practices concerning the occult have long thrived within the contemporary political economy. Witchcraft and related phenomena raise questions for South African constitutionalism, but it is not useful or accurate to say that the underlying conflict is between primordial customs and modern legality.

Parrot

Yet again, with feeling.

The Australian Communications & Media Authority (ACMA) has found that Sydney shockjock Alan Jones breached the commercial radio codes of practice last year by broadcasting factual inaccuracies and failing to give more than one viewpoint when talking about native vegetation laws.

During the segments Mr Jones was highly critical of the operation of native vegetation laws and their administration by the [then] NSW Department of Environment and Climate Change.

ACMA found that 2GB did not present nor take steps to present more than one significant viewpoint about the operation and administration of native vegetation laws in NSW.

The codes require licensees to make reasonable efforts or give reasonable opportunities to present significant viewpoints on controversial issues of public importance. Licensees can do this either within the same program or across similar programs but merely presenting substantially identical viewpoints is not sufficient to satisfy the code

ACMA did not uphold the complainant's allegation that 2GB breached the code rule against broadcasting material likely to encourage violence for its own sake.

ACMA is "in discussion" with 2GB about its response to the breaches. Don't expect substantive contrition from Jones or the broadcaster.

Problematical behaviour by Jones in the 'Cash For Comments Affair' was reflected in changes to commercial broadcaster codes of practice - recently amended - under the co-regulatory regime governing the industry.

TRIPS

Reading two recent articles on TRIPS ...

'TRIPS and Its Achilles' Heel' by Peter Yu in 18 Journal of Intellectual Property Law (2011) 479-531 -

examines why the TRIPS Agreement fails to provide effective global enforcement of intellectual property rights. It attributes such failure to five sets of challenges: historical, economic, tactical, disciplinary, and technological.

The article then outlines the various actions taken by both developed and less developed countries to steer the TRIPS Agreement and the larger international intellectual property system toward their preferred positions. While developed countries push for the development of stronger enforcement norms, less developed countries resist those demands and complain about the use of bilateral, plurilateral, and regional trade agreements to establish TRIPS-plus standards.

The article concludes with four lessons that can be drawn from the continuous battle between developed and less developed countries over international intellectual property enforcement norms. Given the significance of effective enforcement to both developed and less developed countries, it is the hope of this article that a better understanding of these four lessons will lead to a more balanced, robust, and sustainable global intellectual property enforcement regime.

'TRIPS Enforcement and Developing Countries' by Yu in 26 American University International Law Review (2011) 727-782 notes -

In January 2009, the WTO Dispute Settlement Body released a panel report on China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights. The dispute concerned the inadequacy of protection and enforcement of intellectual property rights in China under the TRIPS Agreement. While both China and the United States were quick to declare victory in this dispute, less developed countries might have become the dispute’s unintended and unannounced winner.

As part of the symposium on the Anti-counterfeiting Trade Agreement (ACTA) and international intellectual property enforcement, this Article focuses on the implications of this panel report for less developed countries. It begins by recapitulating the key arguments made by China and the United States as well as the major findings in the report. The article then evaluates the panel report from the standpoint of less developed countries. It explores both the areas where the report has enabled less developed countries to score some important points in the interpretation of the TRIPS Agreement and where it has provided some disappointments.

Freedoms

'Freedom of Expression Turned on its Head? Academic Social Research and Journalism in the European Union's Privacy Framework' (Oxford Legal Studies Research Paper No. 53/2011) by David Erdos criticises "mainstream interpreters" of the EU Privacy Framework.

The 36 page paper argues that

mainstream interpreters have been wrong to hold that academic investigations into social (including historical and political) affairs may benefit only from restrictive “research” provisions of the European Union Privacy Framework, namely Data Protection Directive 95/46/EC and transposing national laws, and not from the far more liberal provisions provided for journalism, literature and art. Academic social investigation is clearly orientated towards the production of books, articles and other publications. It fits entirely within “literary” and possibly even “journalistic” processing. Even if such work also falls within “research” as per the Directive, the exemptions in the instrument cannot sensibly be read as imposing a rigid exclusivity requirement on processing. By imposing severe restraints on “high value” academic speech whilst granting “low-value” “infotainment” a much freer rein, the mainstream interpretation does nothing less than turn the logic of the European Convention on Human Rights (ECHR)’s freedom of expression jurisprudence on its head.

The paper is clever but to my mind unpersuasive.

Erdos states that -

As Philip Strong noted almost thirty years ago, journalists and academic social researchers are both “professional students of the social world”. In pursuing this activity, each group finds it essential to gather and analyze a wide range of information, much of which is personal to identified or identifiable individuals. Despite this shared need, it is generally held that laws protecting such personal data both do, and should, regulate these actors in a radically divergent manner. Whilst the EU Data Protection (DP) Directive 95/46/EC suggests that Member States grant broad derogations from DP laws for journalism, it includes only much narrower provisions to help shield ‘research’. Meanwhile, at a regulatory level, in 2003 the European Commission’s RESPECT project drew up DP guidance for social researchers which only made use of these narrow ‘research’ exemptions. Moreover, this peculiarly stringent regime has been rolled out even in jurisdictions such as the UK which have generally been thought to take a rather lax approach to compliance with pan-EU DP requirements. Thus, whilst the UK’s Data Protection Act (DPA) 1998 provides journalism with a qualified exclusion from almost all its provisions, only “limited exemptions” are set out for research. Meanwhile, the UK Information Commissioner’s Office model registration for British universities under the DPA 1998 suggests that they notify for the purposes of “research” but not for what they term the “journalism and media” purpose which allows for broader derogations from DP norms. Finally, the implementation of such a targeted regime for academic speech has come to constitute a serious problem for social researchers leading amongst other things to restrictions on covert and/or deceptive methodologies, the use of “sensitive” personal data and the non-anonymous reporting of research results.

This article argues that this bifurcated understanding of European DP law’s requirements is both legally and normatively wrong. Firstly, the special derogations within the EU Data Protection regime cover not just cover “journalism” but also “literature” and “art”. There is no reason why the work of academics within humanities and social studies should not fit within one or other of these categories. Secondly, whilst the stipulation that to gain such protection the processing must be “only or “solely” for one or other of these purposes is unhelpfully opaque, a purposive reading of this reveals that this should only impose a relatively unproblematic “entirety” as opposed to a strict “exclusivity” requirement as regards the processing in question. Third and most importantly, the alternative and currently mainstream interpretation of the DP framework is radically inconsistent with freedom of expression protections as set out for example in the European Convention on Human Rights (ECHR). Academic and non-academic social investigators are essentially both involved in the common activity of collecting, analyzing and disseminating material for the public’s benefit. Moreover, membership of the academic community implies a particular concern for the qualities of “rigour, system, culmination and precision”. As a result, ceteris paribus, academically validated output may be considered at least, if not more, socially valuable than its non-academic counterpart. However, DP law as traditionally interpreted imposes unique and draconian restraints in the production of just this type of material. It therefore effectively turns freedom of expression protection ‘on its head’.