Lawyering

The 72 page Changing the rules: The experiences of female lawyers in Victoria report [PDF] by the Victorian Equal Opportunity and Human Rights Commission examines the experiences of women in the legal profession in that state, focusing on discrimination, sexual harassment and the accommodation of parental and carer responsibilities.

 The report indicates that the Commission "sought to understand how prevalent these problems were, why they were occurring, and how they impacted on the lives of women who had experienced them".

It comments that -

The reasons why women are attracted to the profession are varied. Some see it as an instrument for social change; others as an opening to a high-paying career with associated power and independence while some may value the intellectual rigour that the law provides. For a few, a law degree could be the launching pad to a political career. Presently the two most powerful posts in Australian politics are held by women – Prime Minister Julia Gillard and Governor- General Quentin Bryce – both with law degrees. Here in Victoria, Marilyn Warren is the first female Chief Justice.

Regardless of the reason for their attraction to the law, there is no doubt that women are graduating and participating in the legal profession at a high rate, however their career trajectories remain quite different to that for men. We know for example that:

• while more than half of all law graduates are female, a recent survey revealed that only 21% of partners in Australian law firms are women

• women are more likely than men to remain in roles where only an employee-practising certificate is required, while men were more likely to move to roles where a principal practising certificate is required

• women lawyers earn less than their male counterparts

• attrition rates remain a concern for both male and female lawyers, however more women than men leave the law within five years

• discrimination and harassment issues are reported as being present.

 As the profession becomes more diverse, it could be assumed that women will eventually share the same career pathways and opportunities as men. However, even with more than 30 years of equal opportunity legislation, it appears that the ‘pipeline’ of increasing numbers of women in the law has not resulted in equality in the profession. This research has sought to understand and report on the experiences of women in the legal profession – focusing on sexual harassment, discrimination and accommodation of parent and carer responsibilities. The Commission wanted to know how common these problems were, and how they impacted on the women who experienced them. We also wanted to know what positive actions were being taken by legal practices and by the profession as a whole to improve equality for women in the law.

We collected quantitative and qualitative data through an online survey. More than 400 women lawyers participated in the survey. We supplemented this data with interviews with exemplars from the profession and conducted a focus group with women who had left the legal profession.

There is no doubt that in recent years a number of legal firms have worked hard to address some of the factors that have a disproportionate impact on women. The Commission wants to promote and build on this leading practice and this report includes examples of firms that have implemented a variety of positive measures.

Its main findings are 

Discrimination

• Forty per cent of survey respondents had personally experienced discrimination while working as either a lawyer or a legal trainee.

• Discrimination took various forms and manifested in multiple ways. Of the 168 women who reported discrimination, 84 said discrimination took the form of a hostile work environment. Sixty-seven reported workplace bullying, 65 reported unfair work allocation while 64 said the discrimination manifested as unequal remuneration.

• While 56% of survey respondents were from private firms, 70% of those reporting discrimination in their current or former workplace worked in a private firm when the discrimination occurred.

• When asked about their relationship to the discriminator, over half (55.2%) responded that it was their employer or partner, while 40.2% indicated that the discriminator was their immediate supervisor or manager.

• Six out of 10 women who had experienced discrimination did not make a complaint. One in four did not tell or seek help from anyone, including family or friends.

• Respondents reported significant impacts that the discrimination had on their mental health, their physical health and on career opportunities.

Accommodating parental and carer responsibilities

• Thirty-five per cent of survey participants had made a request for their employer to accommodate responsibilities as a parent or carer.

• Of the 149 women who made requests, the majority asked for flexible hours of work (72.5%) while 45.6 per cent requested to work from home.

• Of those who reported the outcome of their request to accommodate parental and/or carer responsibilities, less than five per cent had their request refused.

• 79% had their request approved; another 16% stated that their request was partially approved.

• Despite the actual outcome of their request, respondents reported employer attitudes that ranged from outright hostility to lack of support, and pressure to increase work hours while others felt devalued by work allocation that did not meet their capacity and experience.

Sexual harassment

• 100 survey respondents (23.9%) stated that they had experienced sexual harassment whilst working as a lawyer or legal trainee in Victoria.

• Another 48 (11.6%) were aware of instances of sexual harassment that had happened to other female lawyers in their workplace in the last 12 months.

• Sexual harassment was likely to occur in the early stages of employment with 63%  of incidents occurring within the first 12 months of being in the workplace.

• The most common conduct reported included sexually suggestive comments or jokes, intrusive questions about their private life or physical appearance, unwelcome or inappropriate physical contact, and unwelcome staring or leering.

• In 78% the harasser held more senior positions within the workplace as either the immediate supervisor, employer/partner or a more senior co-worker. In  52% of cases there was more than one harasser.

• Two-thirds of those who had experienced sexual harassment did not make a complaint. 29% did not tell anyone at all.

• The reasons for not reporting varied from fear of negative repercussions to their career, fear of not being believed or ostracised, lack of awareness about complaints processes, and ineffective responses and remedies.

• Of the respondents who reported the outcome of making a complaint, positive results included: the harassment stopped, receiving an apology, and the complaint leading to changing workplace practices. One respondent received compensation.

• The reported impacts of the sexual harassment included severe mental health and physical health issues as well as work/economic related consequences.

Challenges at a systemic level

Cultural factors in the profession are affecting the career pathways for women lawyers. Literature over the past decade has outlined the disproportionate impact that these cultural and structural factors have had on women.

While variation naturally occurs between firms and organisations, many reports have focused on the long, demanding and intractable nature of billable hours, the male-dominated culture of the profession, a lack of transparency in career progression and remuneration levels, and the importance of personal relationships and bonding to career progression. This study found:

• female law graduates can expect to earn 3.8% less than their male colleagues, while special counsel/consultant positions have a 7.8% pay differential

• issues that contribute to the gender pay gap include gender discrimination, the undervaluation of women’s work, paysetting methods, occupational and industrial segregation, lack of investment in women through training and development and career breaks (including returning to work from maternity leave)

• a lawyer’s commitment to the firm was in some cases measured by their visibility, that is how many hours they were seen to put in, creating a culture that valued ‘presenteeism’. This perception has adverse impacts for women who have primary parental and carer responsibilities, as it is not conducive to working flexible hours, or to working from home or remote locations

• billable hours was cited by some respondents as a barrier to progression within the profession and was used to justify gender discrimination. Billable hours may in some circumstances, operate as a barrier to women (and men) whose work hours and patterns may require flexibility based on their parental or carer responsibilities.

From our research, it was clear that individual legal practices and firms are working successfully to promote gender equality. Similarly, the Law Institute of Victoria, Victorian Women Lawyers and other professional bodies are working proactively on these issues. However, findings from this study and from other literature point to systemic barriers to the effective workforce participation of women. So while these problems extend beyond Victoria and appear to be issues in other jurisdictions, both in Australia and overseas, it is clear that there is more work to be done to achieve equity in the profession and that the Victorian profession has much to gain from being leaders in this regard.

The Commission is aware of the community perception that lawyers are in privileged positions, with practitioners being educated, empowered, and not necessarily a group that is considered disadvantaged. However, sex discrimination and sexual harassment cut across all demographics, so that even women who are well educated and aware of their legal rights may still be adversely impacted by systemic and cultural practices that entrench discrimination.

As with all professions, gender inequality in the law, and the power structures that continue to support it, need to be addressed proactively at a systemic and organisational level, rather than solely being left to women making individual complaints.

The report offers a range of recommendations  to stakeholders such as the Law Institute of Victoria (LIV).

1. Providing practice support to organisations in the form of information and resources

a. Publishing guidance to support individual law firms to develop a business case for change. This includes producing tools to assist law firms to measure the cost of staff attrition.

b. Developing an information exchange on best practice that could provide firms with an opportunity to share information, resources and to discuss challenges and successes.

c. Developing and promoting education programs including: i) ‘Return to Work’ planning – this may include education programs, workshops, seminars to assist employers and employees to manage prolonged absences from the workplace. ii) Sexual harassment and discrimination awareness training – as part of the continuing professional development program.

d. Developing a communications plan to promote issues of gender equality, flexible work practices and awareness of sexual harassment in the legal profession. This could include publishing articles in the Law Institute Journal, holding seminars, providing media releases and using social media.

2. Providing support to individuals in the form of information and resources

a. Developing and promoting education programs to individual practitioners including: i) ‘Return to Work’ planning – this may include education programs, workshops, seminars to assist employers and employees to manage prolonged absences from the workplace. ii) Sexual harassment and discrimination awareness training – as part of the continuing professional development program.

b. Promoting available peer mentoring programs to increase participation rates. This includes the: i) Law Institute of Victoria’s Mentoring Program. ii) Victorian Women’s Lawyers Mentoring Program.

3. Collaborating with key stakeholders on advocacy and policy

a. Progressing research on different business models of billing. Stimulate debate in the legal profession about appropriateness of the billable hours framework and the profession’s culture of equating long hours with productivity and profitability.

b. In consultation with law firms, considering the development of a voluntary code for the legal sector – this may include the profile of the firm, periodic reporting on percentage of women in partnership positions, number of employees working flexibly, number of complaints made based on gender, number of discrimination/ sexual harassment complaints lodged internally and externally, outcome of complaints. This could also  include that firms opt in for complaints to be handled by a panel review that comprises external organisations.

c. Collecting data and publishing an annual report card on the state of Victoria’s legal sector in the Law Institute Journal. This is to include statistics on participation rates, attrition rates, leadership levels, gender pay gap. These reports could be supplemented by the diversity figures for individual practices, this would help to assist to identify problem areas and could also provide potential recruits and clients with access to diversity information.

d. This could later be enhanced by adding other diversity related factors such as age and ethnicity.

e. Consider developing sector-wide targets or quotas for women in leadership positions. Stakeholders to explore Australian Stock Exchange model for voluntary/compulsory quotas of the percentage of women at partnership levels.

 4. Recognising best practice

a. Consider expanding the LIV Legal Awards to include a category for promoting diversity (in particular the promotion of gender equality). There is a possibility that the award could then be broken down into suburban, regional and large firms.

 5. Additional recommendations

a. That the Commission work with Diversity Council Australia to consult on the development of a guideline aimed at promoting gender equality in the legal sector – the business case.

b. That Legal Professional Learning Training providers consider the inclusion of modules on sexual harassment and discrimination as part of their curriculum to build sector capacity around these issues.

Records

An outline of Director of Human Rights Proceedings v Hamilton [2012] NZHRRT 24 from the NZ Privacy Commissioner's Private Word -

An accountant's refusal over a four year period to give a former client access to her personal information has resulted in the Human Rights Review Tribunal awarding $20,000 in damages and $7,500 in costs against him. 

The Tribunal said accountant David Hamilton's actions amounted to "arrogant indifference" to his client's difficult situation when he ignored her requests for access to her personal information under principle 6 of the Privacy Act. 

The woman and her husband - who ran businesses together - had become concerned about delays in Mr Hamilton's work and decided to change to another accountant. The couple began asking him for their personal information in August 2008 so that they could get their annual accounts reviewed and complete tax returns for Inland Revenue. Having received nothing, the woman complained to the Privacy Commissioner. After investigating, the Commissioner referred the matter to the Director so he could take proceedings against Mr Hamilton in the Tribunal. 

Mr Hamilton gave various reasons for not providing his former clients with access to their personal information over the following four years. 

For instance, Mr Hamilton said that his appearance before the Disciplinary Tribunal of the New Zealand Institute of Chartered Accountants, a backlog of work and a decline in his business affected the attention he gave to his former client's Privacy Act requests. Additionally, Mr Hamilton told the Tribunal that he did not did not believe the accounting records he had produced but "not been paid for" were the woman's personal information. 

Mr Hamilton admitted that despite giving an undertaking to the Accountants' Disciplinary Tribunal that he would release the files to his former client, he had not done so at the date of the Tribunal hearing other than providing a few peripheral documents as a "token gesture". 

Mr Hamilton he had been asked to provide a quote for photocopying costs but said he felt that it was a "big mission" to locate the documents let alone add up the cost of copying them. 

After reviewing all the evidence, the Tribunal concluded that the evidence overwhelmingly established that Mr Hamilton had made no effort to comply with his obligations under principle 6 of the Privacy Act to supply the woman with her accounting records and that he had no grounds under the Act for this refusal. It classified his manner as "contemptuous". 

The Tribunal considered damages and noted that Mr Hamilton's failure to give his former clients their information resulted in the loss of an opportunity to provide information in returns to Inland Revenue in a timely way. The Tribunal awarded the woman $5,000 for this loss of benefit. 

For emotional harm, the Tribunal awarded the woman $15,000. The Tribunal had heard evidence that around the time the requests began the former clients' relationship had ended, one of their sons had died, and another son had been hospitalised. 

The Tribunal considered that the former clients were in a fragile state and that Mr Hamilton was aware of the woman's difficult circumstances but was indifferent to them. Mr Hamilton's failure to provide information that she needed to file overdue returns to Inland Revenue was also a significant source of stress and anxiety for her. 

As a result, the Tribunal considered that a $15,000 award of damages was appropriate. 

Finally, the Tribunal awarded the Director of Human Rights Proceedings $7,500 costs against Mr Hamilton. The Tribunal also ordered release of the requested information to the woman within 20 working days of the date of the decision.

Enhancement

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) has received royal assent.

It amends the Privacy Act 1988 (Cth) to

• replace the current privacy principles for the public and private sectors (ie the NPP and IPP) with a single set of privacy principles - the Australian Privacy Principles (APPs)
•  implement a comprehensive credit reporting systemfeaturing five kinds of personal information, codes of practice under the APPs and a credit reporting code (inc powers for the Privacy Commissioner to develop and register codes that are binding on specified agencies and organisations)
• clarify the functions and powers of the Information Commissioner 
• increase the commissioner's ability to resolve complaints, recognise and encourage the use of external dispute resolutions services, conduct investigations and promote compliance with privacy obligations. 

 This Act also makes consequential amendments to 55 Cth statutes, including the

• Acts Interpretation Act 1901
• Aged Care Act 1997
• A New Tax System (Family Assistance) (Administration) Act 1999
• Anti-Money Laundering And Counter-Terrorism Financing Act 2006
•  Auscheck Act 2007
• Australian Citizenship Act 2007
•  Australian Curriculum, Assessment And Reporting Authority Act 2008
• Australian Passports Act 2005
• Australian Prudential Regulation Authority Act 1998
• Commonwealth Electoral Act 1918
• Crimes Act 1914
•  Dairy Produce Act 1986
• Defence Act 1903
• Defence Force (Home Loans Assistance) Act 1990
• Defence Home Ownership Assistance Scheme Act 2008
•  Defence Service Homes Act 1918
• Education Services For Overseas Students Act 2000
•  Extradition Act 1988
• Fair Work (Building Industry) Act 2012
•  Freedom Of Information Act 1982
•  Healthcare Identifiers Act 2010
•  Higher Education Support Act 2003
• Horse Disease Response Levy Collection Act 2011
• Inspector Of Transport Security Act 2006
• Migration Act 1958
• Military Rehabilitation And Compensation Act 2004
• Mutual Assistance In Criminal Matters Act 1987
•  National Health Act 1953
•  National Health Reform Act 2011
• National Health Security Act 2007
•  National Vocational Education And Training Regulator Act 2011
•  Olympic Insignia Protection Act 1987
•  Ombudsman Act 1976
• Paid Parental Leave Act 2010
•  Personally Controlled Electronic Health Records Act 2012
•  Private Health Insurance Act 2007
•  Product Stewardship Act 2011
•  Quarantine Act 1908
•  Retirement Savings Accounts Act 1997
• Social Security (Administration) Act 1999
• Stronger Futures In The Northern Territory Act 2012
• Superannuation Industry (Supervision) Act 1993
• Supported Accommodation Assistance Act 1994
• Telecommunications Act 1997
•  Telecommunications (Consumer Protection And Service Standards) Act 1999
• Therapeutic Goods Act 1989
• Trade Marks Act 1995
• Veterans' Entitlements Act 1986
• Australian Crime Commission Act 2002
•  Law Enforcement Integrity Commissioner Act 2006
• National Consumer Credit Protection Act 2009
•  Taxation Administration Act 1953
• Australian Information Commissioner Act 2010
• Australian Human Rights Commission Act 1986
• Data-Matching Program (Assistance And Tax) Act 1990

Apps

The US Federal Trade Commission has released a short report [PDF]  on Mobile Apps for Kids: Disclosures Still Not Making the Grade that considers the privacy disclosures and practices of apps for children in the Apple App and Google Play and stores.

The report covers the FTC’s second survey of kids’ mobile apps, the first having been undertaken last year. In the 2011 survey the FTC noted "little progress toward giving parents the information they need to determine what data is being collected from their children, how it is being shared, or who will have access to it". Progress since that study has been slow. The FTC comments that

many of the apps surveyed included interactive features, such as connecting to social media, and sent information from the mobile device to ad networks, analytics companies, or other third parties, without disclosing these practices to parents. 

More directly, FTC  Chair  Jon Leibowitz commented that although

we think most companies have the best intentions when it comes to protecting kids’ privacy, we haven’t seen any progress when it comes to making sure parents have the information they need to make informed choices about apps for their kids. In fact, our study shows that kids' apps siphon an alarming amount of information from mobile devices without disclosing this fact to parents. All of the companies in the mobile app space, especially the gatekeepers of the app stores, need to do a better job. We'll do another survey in the future and we will expect to see improvement.

The latest survey found that:

• Parents are not being provided with information about what data an app collects, who will have access to that data, and how it will be used. 
• Only 20% of the apps staff reviewed disclosed any information about the app’s privacy practices. 
•  Many apps (nearly 60% of the apps surveyed) are transmitting information from a user's device back to the app developer or, more commonly, to an advertising network, analytics company, or other third party. 
•  A relatively small number of third parties received information from a large number of apps. This means the third parties that receive information from multiple apps could potentially develop detailed profiles of the children based on their behavior in different apps. 
• Many apps contain interactive features – such as advertising, links to social media, or the ability to purchase goods within an app – without disclosing those features to parents prior to download. 
• 58% of the apps reviewed contained advertising within the app, while only 15% disclosed the presence of advertising prior to download. 
• 22% of the apps contained links to social networking services, while only nine percent disclosed that fact. 
• 17% of the apps reviewed allow kids to make purchases for virtual goods within the app, with prices ranging from 99 cents to $29.99. Although both stores provided certain indicators when an app contained in-app purchasing capabilities, these indicators were not always prominent and, even if noticed, could be difficult for many parents to understand.

The report reflects examination by FTC staff  of  hundreds of apps for children, including disclosures and links on each app’s promo  page in the app store, on the app developer’s website, and within the app. It indicates that

most apps failed to provide any information about the data collected through the app, let alone the type of data collected, the purpose of the collection, and who would obtain access to the data. Even more troubling, the results showed that many of the apps shared certain information with third parties – such as device ID, geolocation, or phone number – without disclosing that fact to parents. Further, a number of apps contained interactive features – such as advertising, the ability to make in-app purchases, and links to social media – without disclosing these features to parents prior to download. 

The FTC has urged all entities in the mobile app industry (inc app stores, developers and third parties providing services within the apps) to accelerate efforts to ensure that parents have the key information they need to make decisions about the apps they download for their children. It also urges implementation of recommendations in the FTC's recent Privacy Report such as:

• incorporating privacy protections into the design of mobile products and services; 
• offering parents easy-to-understand choices about the data collection and sharing through kids’ apps; and 
• providing greater transparency about how data is collected, used, and shared through kids’ apps. 

In a nice example of proactive policing, which could be emulated by the OAIC in Australia, the FTC indicates that it is "launching non-public investigations to determine whether certain entities in the mobile app marketplace are violating the Children’s Online Privacy Protection Act or engaging in unfair or deceptive practices in violation of the Federal Trade Commission Act".

Discrimination and Offence

From the short Australian Human Rights Day oration by former NSW Chief Justice Spigelman -

I wish to discuss the boundary between hate speech, a significant factor in social inclusion, and free speech, perhaps the most fundamental human right underpinning participation in public life.

Human rights discourse, which has always been comfortable with privileging a right over an interest, has never successfully dealt with situations in which rights conflict. This is a context bedevilled by a conflict of metaphors: from “rights as trumps" to “balancing". As Benjamin Cardozo warned us: “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it".

“Balancing" is often a fraught process, particularly in the usual context where the conflicting values are simply incommensurable. As one United States Supreme Court Justice put it, the process is often like asking “whether a particular line is longer than a particular rock is heavy". In the present context, the issue requires determination of how much weight is to be given to the right to freedom of speech. For many, albeit not all, that right is usually entitled to determinative weight when it conflicts with other rights, relevantly, those protected by anti-discrimination statutes.

This issue has been controversial in Australia in recent years, in the context of the racial vilification provision in section 18 C of the Racial Discrimination Act 1975, which is proposed to be re-enacted as section 51 of the new omnibus legislation, the Human Rights and Anti- Discrimination Bill 2012. The Bill was recently released for comment, an invitation I will take up in this address.

There may now have elapsed sufficient time for us to debate the issue dispassionately, and not on the basis of whether or not you like Andrew Bolt. The focus of that debate was not on the existence of a racial vilification provision, but on the breadth of the conduct to which section 18 C extends, namely, conduct “reasonably likely … to offend, insult, humiliate or intimidate another person".

The key criticism was directed to the fact that the section made speech which merely “offends" unlawful. A similar, but less powerful objection, can be made to the reference to “insult". The critique did not, generally, extend to the words “humiliate or intimidate". ...

Spigelman goes on to comment that

I agree with Professor Waldron. His detailed analysis supports the proposition that declaring conduct, relevantly speech, to be unlawful, because it causes offence, goes too far. The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.

I am not aware of any international human rights instrument, or national anti-discrimination statute in another liberal democracy, that extends to conduct which is merely offensive. I have not conducted a detailed review of the international position in this respect. However, so far as I have been able to determine, we would be pretty much on our own in declaring conduct which does no more than offend, to be unlawful. In a context where human rights protection draws on a global jurisprudence, this should give us pause when we re-enact s 18C and before we extend such protection to other contexts.

Section 19(2)(b) of the proposed Human Rights and Anti- Discrimination Bill 2012, introduces “offending” into the definition of discrimination for all purposes, not just for racial vilification. None of the other pre-existing Commonwealth Acts – covering sex, disability and age discrimination –extends the concept of discrimination to conduct which only offends.

The new s19 defines, for the first time, discrimination by unfavourable treatment to include “conduct that offends, insults or intimidates" another person. As has always been the case with s 18C, the relevant conduct must occur “because the other person has a particular protected attribute”. Significantly, unlike existing s 18C (or its replacement by the new s 51), there is no element of objectivity, as presently found in the words “reasonably likely to offend”. It appears to me the new Bill contains a subjective test of being offended.

There are 18 separate “protected attributes” set out in section 17 of the draft Bill, seven of which apply only in the employment context. These are wide ranging and, in a number of respects, novel. One such attribute is “race”. This is not just redundant. It extends the protection of proposed s 51 because of the absence of an objective element.

The inclusion of “religion” as a “protected attribute” in the workplace, appears to me, in effect, to make blasphemy unlawful at work, but not elsewhere. The controversial Danish cartoons could be published, but not taken to work. Similar anomalies could arise with other workplace protected attributes, eg. “political opinion”, “social origin”, “nationality”.

Further, each of the four existing Commonwealth anti- discrimination Acts proscribe publication of an advertisement or notice which indicates an intention to engage in discriminatory conduct. Section 53 of the new omnibus Bill goes further into freedom of speech territory, by extending this proscription beyond advertisements to any publication.

The new Bill proposes a significant redrawing of the line between permissible and unlawful speech. This is so, notwithstanding the ability to establish that relevant conduct falls within a statutory exception. A freedom that is contingent on proving, after the event, that it was exercised reasonably or on some other exculpatory basis, is a much reduced freedom. Further, as is well known, the chilling effect of the mere possibility of legal processes will prevent speech that could have satisfied an exception.

When rights conflict, drawing the line too far in favour of one, degrades the other right. Words such as “offend” and “insult”, impinge on freedom of speech in a way that words such as “humiliate”, “denigrate,” “intimidate”, “incite hostility” or “hatred” or “contempt”, do not. To go beyond language of the latter character, in my opinion, goes too far.

None of Australia’s international treaty obligations require us to protect any person or group from being offended. We are, however, obliged to protect freedom of speech. We should take care not to put ourselves in a position where others could reasonably assert that we are in breach of our international treaty obligations to protect freedom of speech.

Talking About Privacy

Three noteworthy speeches ...

Lord Neuberger on privacy [PDF] -

Privacy is a subject which seems to be forever topical. It excites (in both senses of the word) public discussion, while demanding considered reflection. And it raises many difficult and, often, controversial questions. Is privacy a value which society should protect? If so, to what extent? Is protection of privacy a fetter on freedom of expression? If so, can and should a balance be struck between them? And if so, what type of balance? Should, for instance, freedom of expression always trump privacy, as it is sometimes suggested is the position in the United States? A suggestion, I may add, which ignores a variety of US statutes and constitutional provisions which protect certain aspects of privacy to varying degrees, subject to the First Amendment protection of freedom of speech and expression.

And is privacy a value which is, on deeper analysis, not inimical to or a fetter on freedom of expression: is it actually a necessary and vital aspect of freedom of expression? Or should we maintain the straightforward and generally held view that the two are wholly distinct, indeed often in conflict?

These are all difficult questions. They go to the heart of issues concerning the very nature of society. It was, of course, to a large degree concerns about invasions of privacy which underpinned the decision to set up Lord Justice Leveson’s Inquiry, which issues its report tomorrow, and will wholly drown the reverberations of anything I say this evening which is stupid or controversial.

Questions concerning privacy have become all the more pertinent over the last twenty years for three reasons, which are no doubt not entirely discrete from each other. The first is legal; the second is social; the third is technological.

The legal reason derives from the introduction of the Human Rights Act 1998 (“the HRA”), which incorporated the European Convention, and in particular Articles 8 and 10, into British law. For the first time, privacy, as a generalised free-standing (albeit not absolute) right, was enshrined in a British statute, and, it should be added, for the first time, freedom of expression, as a generalised free-standing (albeit not absolute) right, was enshrined in a British statute. The social reason can be traced to changes which started in the 1960s, and became embedded by the 1990s. It was in the 1960s when the largely self-imposed restraints on the press and the rest of the media started to loosen, when the previously strong cohesion of the establishment started to break up, and when what Tony Blair called “respect” started to disappear. The Profumo Affair, and Lord Denning’s subsequent report on it, is generally agreed to have been the watershed, although there is room for argument whether it was a cause of change or an early symptom of this change. One MP at the time recalled that, during the investigation, Lord Denning “could not move an inch without being followed by the television cameras”, and that his report was published “in an atmosphere of salesmanship and ballyhoo such as never previously pervaded the environs of Her Majesty's Stationery Office.” The Profumo Affair may have helped to instil in the media the confidence to challenge the establishment.

It was also in the 1960s that the seeds of the cult of celebrity (people who were famous simply for being famous – or even for not being famous) were sown, when what was previously unsayable and undoable in public started to be said and done on television and in the press, and when activities which were thought to be shameful, immoral or illegal started to be accepted. Legislation from the time highlights the increased acceptance of previously criminal activities: the Suicide Act 1961, the Abortion Act 1967, and the Sexual Offences Act 1967. At the same time, evolving social norms, as portrayed on television and in the press, were partly responsible for other legislation, such as the Race Relations Act 1965, the Equal Pay Act 1970, and the Sex Discrimination Act 1975. These rapid social changes may also have increased the confidence of the media, because they demonstrated how readily people react to what they heard and saw.

The technological reason stems, of course, from the exponential growth of electronic communication. In particular, there is the internet, which has spawned effortless, inexpensive and instant mass communication in forms such as emailing, social networking, blogging, and tweeting. Not so long ago, publication was effected via books, journals, magazines, newspapers, radio and TV. Now anyone, at no more than a mouse click, can blog their thoughts, post their photos and upload videos of themselves, or of anyone else it seems, onto the internet and thereby broadcast them to the world. Cyberspace has created a global village, of which we are all inhabitants, whether we want it or not. And another vital part of that global cyber-village is mobile phones, which mean that it is very easy to contact us, to trace us, to photograph us, and to record us, and, it appears, to intercept our messages.

The development of this global cyber-village brings questions of privacy and freedom of speech into sharp focus. We have, I think, only just started to appreciate the fundamental effect of this technological development on our perception of the right to privacy and to freedom of expression. The pace of development of IT seems to be ever accelerating, and this adds to the problem, as it means that the way in which individuals view their rights to privacy, and to freedom of expression, is in turn changing. We are, as they say in America, always playing catch-up.

Lord Leveson on the net and media [PDF] -

So we have been here before. The birth of a new technology has seemingly brought an end to privacy not once, but now twice. The mass media did not however kill it off. No doubt it probably felt for a time that it would, and in fact, had done so. But the shadow of the laws of defamation and, later, and breach of confidence, whether these last were introduced by statute or were developed by the courts, undoubtedly acted as a break on the light of the press. I recognise, of course, that, as yet, Australia has no tort of privacy either at common law or by statute whereas breach of privacy as a tort has developed in the UK most significantly following the incorporation into UK law of the European Convention on Human Rights, and, in particular, Article 8 dealing with private life.

Perhaps more importantly, public opinion shaped the development of ethical standards on the part of the press and not necessarily to desirable outcomes. It may also be reasonable to draw the conclusion that financial interest proved a limit on the extent to which the media was interested in pushing the boundary between free speech and individual privacy. Interest in a story about the US President’s honeymoon may sell a front page and, today, there are many in the public eye who would have a similar effect; consider, for example, the honeymoon of film stars, singers, and footballers. It is doubtful that the same coverage and attention in the honeymoon of two ordinary members of the public who have never been in the public eye would sell as many copies.

Given the historical failure to develop limitations on incursions into privacy by the media, it might reasonably be said that it is difficult to assume that any such limitations might evolve in so far as the internet is concerned. It is much more plausible to assume that any such limitations will require some type of intervention. Further, it could be said that in recent years the ethical limitations on the conduct at least of certain sections of the press, have weakened. Further, perhaps, due to commercial pressures including the advent of the internet, they have started to push against ethical boundaries and in some instances have pushed too far. At the very least, without treading into dangerous territory, so much is clear from the background to my Inquiry.

But that is not to say that such standards backed up by law enforcement and effective regulation cannot develop and hold. How likely is it that such standards could develop in respect of the internet? This is perhaps where the historical analogy might begin to break down. I am conscious that the Convergence Review here in Australia has recommended that media outlets should be regulated regardless of platform. ....

Given the nature of the internet, the ease and speed with which information can be placed on it and can circulate widely, and the seeming view that it can be placed there with impunity, how likely is it that norms of behaviour will develop as they developed for the media? And how can we hope to police those norms? Or is it the case that, as Eric Schmidt, the former CEO of Google, has it, that only foolish governments would attempt to protect privacy on the internet; foolish because they are unlikely to succeed. Is the protection of privacy in an internet age a possibility or an improbability? Is it even desirable?

Let me take the second of those questions first. If protecting privacy in the internet age is not desirable, there is little reason to attempt to do so. The question then is this: is it desirable to seek to protect privacy?

The first point which I think needs to be remembered in this regard arises from a consideration of freedom of expression. Privacy and freedom of speech and expression are often conceived of as in opposition to each other. My privacy is an infringement of your freedom of expression, and vice versa. What is often not fully appreciated is that privacy is in itself both an aspect of freedom of expression and necessary for freedom of expression to be fully realised. It is an aspect of freedom of expression in that an individual can properly choose not publicly to disclose certain aspects of conduct, views or personality. To that extent, therefore, the right to be silent is itself not only exercising a right to privacy but it is also a form of freedom of expression.

Private expression is still a form of expression. Privacy is also necessary for freedom of public expression as it is often only in private that we can discuss, debate and form our views, beliefs and ideas. In the absence of a private sphere how could we fully develop those ideas? It seems more than arguable therefore that some protection of privacy is desirable if we are to properly protect freedom of public expression. It is a difficult policy question how to do that though, and different countries approach it differently.

It is also arguably desirable for another reason. In many cases, gossip over the internet will be no more and no less harmful than gossip over the garden fence or in a bar. It will be of no great interest to the vast majority of people and, albeit it will be recorded permanently, it will cause no great concern. In other cases this is clearly not the case, as the super-injunction and Newsnight examples show. ....

Assuming then, without deciding the issue, that some degree of privacy protection is desirable how might we do so?

The first point is that we already can do much through an application of the law as it presently stands. Individuals who tweet or use social media platforms are not beyond the reach of the criminal law. Following the riots which took place in England in autumn 2011, two men were prosecuted and convicted of inciting riot via their Facebook pages.

In respect of the Newsnight case, defamation proceedings are, it seems, to be instituted against a number of tweeters. In principle, there is no reason why individuals who tweet in breach of court orders, including privacy injunctions, cannot be traced via their ISPs and rendered subject to legal proceedings. We can, of course, serve injunctions via Twitter and claims by Facebook. The shadow of the law falls on the internet as it does all other aspects of society. Continued consideration will have to be taken to ensure that search engines heed the risk and that techniques are developed to deal with it.

Given that the internet is not entirely out of the law’s reach it is likely in time that, as with the media in the 19th century, it will start to have an effect on individual’s behaviour. It will start to modulate behaviour, and curb its wilder excesses. Time and the proper application of the law will play the same role for the internet as it has done in all other areas of our lives; it will shape our behaviour and help to reinforce social norms. Just as it took time for the wilder excesses of the early penny press to be civilised, it will take time to civilise the internet.

This is not to say that social norms may not change over time. Our view of what is, for instance, private information may change. Our view of privacy may change. I imagine though that individuals will always seek to preserve some degree of privacy and will seek the law’s protection to protect it. The question for us in this century will not simply be how to protect it, but what is it that we seek to protect.

Perhaps most significantly though, while established legal norms are in many respects capable of application to the internet, it is likely that new ones and new laws will need to be developed. The rise of the media produced Warren and Brandeis’s famous dissertation on privacy law. The internet may well – and no doubt will – require us to think as creatively as they did.

Only if we do so will we properly understand the role and values which underpin privacy and freedom of expression, the balance to be struck between them and the means to ensure that they are both safeguarded in an internet age. The answers we reach might differ from those we have reached in the past. It is an important discussion. I look forward to today’s contribution to it.

Turnbull MP on the net and media -

If regulations make us safer, healthier, better educated or better informed, there is a tangible benefit. But all too often we can not clearly identify such an outcome from various restrictions.

So with every regulation we need to ask these questions, what is the policy objective the regulation seeks to achieve? Is it worthwhile or relevant? If not, the regulation should go. And that’s why it’s so important to review what I call ‘legacy regulations’, and where these no longer serve a useful purpose, remove them.

And if the objective remains valid, the question for legislators and policy makers, should always be whether the same outcome should be achieved either without formal regulation or with a less burdensome or intrusive law or rule. And that’s really at the crux of the Australian debate over media regulation. We would all like to see the media pay greater attention to getting information right.

We’d all like to find a better way for those who are aggrieved over their treatment in the press to be heard and where appropriate receive redress. And we all understand the need for our laws to reflect the reality of the digital age, not the world as it once was.

But the question is, what is the least costly, most efficient, least intrusive way of doing this? We also have to face a few hard facts about the nature of this discussion. There’s been a decline in confidence around the world in media organisations. The correlation with struggling business models cannot be over looked.

The fact is that the foundations of the news media, the foundations of journalism are under threat in a way that would have seen unbelievable, inconceivable, only a decade ago. ....

I can set out some general principles of where we stand. This is the Coalition’s stance. And the first principle is that we’d prefer self-regulation to government regulation, we recognise that there’s a long history of ACMA, ably chaired by Chris, directly regulating – well enforcing in effect, industry codes over broadcast media, and that’s of long standing.

I question its effectiveness, but I’ve made the point elsewhere that all of ACMA’s efforts to introduce a l higher degree of accuracy and civility with Sydney broadcast radio, doesn’t seem to be very effective. But a Twitter campaign did seem to have a very significant impact on Mr Jones and 2GB. And what that tells me is that the answer to some of the ailments of the press that we complain about is more likely to be more freedom, rather than more regulation.

It was the freedom that the internet, Twitter in particular and Facebook, social media, it was the freedom that that gave to thousands of people who no longer had to go to a mainstream media gatekeeper to get their views amplified or broadcast.

It was that freedom which was able to hold Mr Jones to account, and in a pretty high impact way. We also don’t believe, and this is where we agree with David Cameron. I’m not expressing a view about what should be done in the United Kingdom. I’m not saying what I would say if I was a member of the House of Commons as opposed to the House of Representatives. But in terms of Australia we do not believe self-regulation, that’s to say a Press Council, a revamped Press Council should have a basis in statute.

Homonationalism

The problematical  'Dating the State: The Moral Hazards of Winning Gay Rights' by Katherine Franke in 49(1) Columbia Human Rights Law Review (2012) 1-46 offers

a critical analysis of the complexities of having the state recognize and then take up gay rights as a cause of its own. I examine three principal contexts – the role of gay rights in the state of Israel’s re-branding campaign, the response to Iranian President Mahmoud Ahmadinejad’s 2007 speech at Columbia University in which he claimed that there were no homosexuals in Iran, and the role of gay rights in Romania’s effort to join the European Community – as examples of the moral hazards that a minority faces when the state takes up their interests and uses their rights for purposes that well-exceed the obvious interests of the new rights-bearing community. I conclude that critical awareness of the state’s role as fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised. 

Franke concludes

I will end with Israel, just as I began this essay, to highlight a community that has resisted some of the moral atrophy that often accompanies conscription in the state’s larger projects. Some queer activists in Israel have parted company with the mainstream of the LGBT community, rejecting the terms of the deal made with the Israeli government whereby their rights are recognized in exchange for being used as a public relations tool. The 2010 Tel Aviv gay pride parade was held only a few days after the Gaza flotilla raid, and the more radical/queer wing of the community chose to hold an alternative parade in which they would disidentify queer people with the sort of nationalism that the state had been actively cultivating, thus reinforcing a kind of anti-nationalist identification. Their banners read: “There is no Pride in the Occupation.” These queer/left politics were met with an even greater homonationalization of the mainstream Gay Pride Parade, resisting what they termed the “occupation” of gay pride by queers who identified with the Palestinians not with Israel. Their signs and stickers, donned for the main parade, offered a retort to the signs of the anti-nationalists: “[N]o to the occupation of the parade,” and “I am a proud Zionist.” In the end, the resistance of some Israeli queers to their cooptation into a nationalist project provoked an invigorated re-nationalization of the Gay Pride Parade in response, resulting in the proliferation of Israeli flags held by parade-goers. Nevertheless, this intervention introduced and cemented a link between the dangers of Israeli nationalism, religious fundamentalism, and homophobia in a way that shifted the frame for gay politics in Israel.

Queer activists in Israel offer an example of a new kind of politics that at once appreciates the value of rights and launches new strategies to resist the perils of partnership with the state. Having said that, it is important to note how narrow the room for this work is and how perilous it can be. In February of 2011, I received an e-mail from the Office of Cultural Affairs of the Israeli Consulate letting me know that the Embassy was sponsoring a U.S. tour of a new documentary on the early days of the Israeli gay rights movement. “We would love to try and organize a screening and talk with Yair [Qedar, the filmmaker] at Columbia University,” the official wrote me. Worried that I was being invited to participate in a pinkwashing event, I e-mailed my colleague, Aeyal Gross, a law professor at Tel Aviv University, and asked whether he knew anything about the filmmaker or the film, Gay Days, and whether this was “the usual sort of propaganda.” He wrote me back immediately,

Yair—the director—is a friend and the film is certainly not propaganda. I’m sure some will consider any depiction of gay rights in [I]srael as such but you know that’s not a view I share—we should be able to talk of gay rights in [I]srael even if [it] is also coopted..... I think that it almost impossible to distinguish Israeli government promoting culture from the political uses of that, but as I say the film is not a propaganda effort—not coming from there at all (even if government promotes it for its own purposes). The director was involved in [grassroots] activism and founded Israeli gay monthly which under his leadership was a voice for queer thought (I used to write there regularly) and its dissemination.

In Aeyal’s response lies the challenge of activism in the era of homonationalist politics. Once the state takes up your cause—for the dual purpose of embracing greater rights and of advancing the state’s own larger political aims—politics becomes much more complicated in tragic ways. Jasbir Puar has termed the tethering of gay rights to nationalist projects a kind of “golden handcuffs.”

Working on the role of LGBT rights in relation to Israel/Palestine is particularly challenging in this regard, given that any critique of Israeli state policy (and it is important to reiterate that I am talking about state policy, not individual Israelis or Jews) is immediately tagged as anti-semitic. What is more, recently enacted Israeli law makes careful political engagement with these hard issues even more difficult. The “Boycott Bill” passed by the Knesset in July of 2011 allows Israeli citizens to bring civil suits against persons and organizations that call for economic, cultural, or academic boycotts against Israel, Israeli institutions, or regions under Israeli control. It also prevents the government from doing business with companies that initiate or comply with such boycotts.

I must confess that I have experienced aggressive, sometimes violent, reactions to the recent work I have done that expresses sympathy for the rights of Palestinians and offers criticisms of Israeli state policy. As someone who has often taken unpopular positions in the LGBT and feminist communities, I thought I was prepared for the backlash that engagement with pinkwashing might generate. I wasn’t. Both our “golden handcuffs,” to borrow Puar’s term, and the chilling effect of the blowback certain political critique now receives, has made very crabbed room for politics and intellectual work that questions the role sexual civil rights now play in larger nationalist projects.

Queer activists in Israel/Palestine have something to teach us about what it means to do politics that resists state occupation. In their own ways, on either side of the so-called security “fence” (hafrada) or “wall” (jadir), some queers in the region are carving a path that neither privileges a global “gay citizen” nor succumbs to raw nationalism or racism/anti-semitism. The Palestinian queers I have met have a complex analysis of the relationship of occupation to homophobia, and refuse to privilege their experience of one over the other. They are acutely aware of and their politics respond to the ways in which negative social and cultural attitudes toward homosexuality in Palestinian culture are shaped in important ways by the occupation itself. They resist a politics that elevates a particular kind of sexual identity, such as gay or lesbian, over and apart from their identity as Palestinian. In this sense, their task has been so much more complicated than merely making demands for a gay pride parade in al-Manara Square in the center of Ramallah. Rather they situate queer politics within a complex web of Israeli occupation, nationalist resistance to the occupation, the weakness of the Palestinian Authority, the rise of Islamist politics, and a Palestinian biopolitical project that figures reproduction and the hetero-normative family as vital to national survival. All of these dynamics “have had serious consequences for Palestinian queers, not because Islam is an inherently (or particularly) ‘homophobic’ religion, but because Islamism has ascribed a (negative) ideological value to ‘homosexuality’ that did not exist before.”

So too, radical queer voices in Israel have refused the appeal of the new queer nationalism that they have been offered. They insist on drawing connections between the radicalism of the settlers’ homophobia/sexism and their imperial project in Palestine. The creation of social space for out LGBT people in Israel has occurred alongside the evacuation of Palestinians from that same territory. The one doesn’t necessarily cause the other, but the former has been used in the service of the latter. As one Israeli human rights lawyer from Tel Aviv told a group of us on the first LGBTI delegation to Israel/Palestine in January 2012, “Tel Aviv may be the most gay city in the world, but it’s also the least Arab you’ll find in the Middle East.”

This is what queering our politics demands: a refusal to take up the frames, and the identities those frames call up, which “winning” our rights produces. As it also turns out, rights are something the state is particularly well-suited to provide, and, as it turns out, those very rights end up being quite easily requisitioned by the state to advance its own larger interests. It falls on us, those in whose name those rights materialize, to resist the seduction of the state that, at long last, offers us its embrace, and in return seeks collaboration in its own imperial projects.

The ICN Act and privacy in S Korea

The short 'Korea Rolls Back ‘Real Name’ and ID Number Surveillance' by Whon-il Park and Graham Greenleaf in (2012) 119 Privacy Laws & Business International Report 20-1 comments that

South Korea’s online ‘real name’ statute - Article 44-5 of the Act on Promotion of Information and Communications Network Utilization and Data Protection, etc. (the 'ICN Act') was enacted in 2007 in response to such things as posted Internet comments describing fictitious sex scandals and plastic surgery operations concerning celebrities, and a number of suicides of celebrities. It required large-scale portal sites with more than 100,000 visitors on average a day to record the real name identities of visitors posting comments, usually via the poster's resident registration number (RRN). One result was that many South Koreans Internet commentators started to use overseas websites which allowed anonymous posting, such as Google and Twitter, and some therefore argued the law discriminated against domestic Internet services. A series of security breaches resulting in leaks of of personal data concerning millions of South Koreans from those websites that were required to adopt real-name policy also occurred over the last couple of years.

In August 2012 South Korea’s Constitutional Court unanimously held that the ‘real name’ statute is unconstitutional because the public gains achieved had not been substantial enough to justify restrictions on individuals' rights to free speech. The two cases decided by the Court were brought by individuals who were required to provide their real names in order to make postings, and also by an online Internet publisher required by the law to verify the names of those posting. This article analyses the Court’s reasoning, in the context of other decisions concerning freedom of speech, and the overall relaxation of South Korea’s previously very restrictive Internet environment.

Legislative reform has occurred in parallel. The RRN was previously compulsory in almost all dealings with government and many organizations in the private sector. Abuse of the RRN accounted for over 20% of all complaints about misuse of personal information. Under Korea’s new Personal Information Protection Act of 2011, unique identifiers the including RRN may not be processed without consent and explicit legislative approval. Alternative means of identification other than the RRN must now be provided by processors where individuals are subscribing to web-based services.

The article concludes with parallels between developments in Korean and European data protection.

The authors' 'Korean DPA Faults Google's TOS Changes: Global Privacy Implications?' comments that

The first decision of Korea’s Personal Information Protection Commission (PIPC) has borne out the perception that Korea’s new Personal Information Protection Act (PIP Act) is ‘Asia’s toughest data privacy law’. The PIPC has decided that Google’s changes to the Terms of Service (TOS) of over 60 of its services, unifying them in a single TOS, may be in breach of various provisions of the Act.

Google’s TOS changes are considered by the Commission to likely to breach these laws in three ways: (i) they do not specify the purpose of collection clearly enough, and cannot comply with the requirement that personal information may only be collected and used to the minimum extent necessary for the purpose for which it is collected; (ii) they do not comply with the requirement that where personal information is to be used for purposes other than the purpose for which it was collected, it is necessary to obtain additional consents for such uses; and (iii) they do not specify that that personal information will be erased immediately upon the expiration of its retention period or on request from a data subject.

This article analyses this decision, considering the PIPC’s reasoning, and the terms of the Korean legislation, in order to determine whether the PIPC’s findings (and the potential remedial action) are a result of features which are unique to the Korean law, or are they features which are common to at least some other countries’ data privacy laws.

The same issue of PLBIR features 'Obama's Privacy Framework: An Offer to be Left on the Table?' by Graham Greenleaf and Nigel Waters.

They comment that

The Obama Administration is offering the rest of the world a deal: ‘global interoperability’, comprising ‘mutual recognition and enforcement cooperation’. Perhaps we should read the small print. The ‘Framework’ initiative (Consumer data privacy in a networked world: A framework for protecting privacy and promoting innovation in the global digital economy, The White House, Washington, February 2012), launched in early 2012, represents a new level of serious consideration of privacy protection by a US Administration. While it is difficult to assess how much of it it is likely to be achieved in the face of both political gridlock and constitutional uncertainties, it is clearly in the interest of Americans that their government is attempting to take these steps to improve domestic privacy protections. But does this initiative offer sufficient of value to the rest of the world, for the price of ‘interoperability’?

This article looks at the proposed Framework from the following explicitly ‘non-US’ perspectives: Does the Framework’s ‘Consumer Bill of Rights’ meet international standards? Is the proposed method of achieving it realistic or futile? Is the US demand for ‘interoperability and mutual recognition’ reasonable? Is the USA ever likely to protect privacy to international standards? The article concludes that the rest of the world has to accept that there are some aspects of US domestic law on data privacy which are unlikely to change, but that does not constitute a reason for reducing international privacy standards in fundamental ways in order to accommodate the weaknesses of American privacy protection. The US approach does not deserves an undue amount of respect simply because of its economic and political power, and the Framework proposals do not at this stage change that. A better approach is to support those seeking reform in the USA by deferring ‘interoperability’ until US standards are in practice somewhere closer to those being adopted by most other countries. At some point it could become a rational decision that to have the USA implement and enforce significantly better CPBR would be a deal worth making, for the benefits of ‘interoperability’ on the basis of a minimum global standard. But at the moment that is not the right, best or only choice.

Komesar

'Finding the Best of the Imperfect Alternatives for Privacy, Health IT, and Cybersecurity' (Ohio State Public Law Working Paper No. 178) by Peter Swire forms part of a Wisconsin Law Review symposium honouring the work of Neil Komesar.

Swire comments that he used Komesar's Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy as

the main text in 2003 for one of the first law school courses on “The Law of Cybersecurity,” even though the book doesn’t even mention cybersecurity. The reason was that it was the best single vehicle I had found to prepare students to think critically about comparative institutional analysis, such as how to create institutions that better foster cybersecurity.

Part I praises Komesar for recognizing the importance both of market failures and government failures. President Reagan famously summarized the government failure argument: “The nine most terrifying words in the English language are, ‘I’m from the government and I’m here to help.’” More recently, President Obama pointedly joked about the knee-jerk answers of the anti-regulatory crowd: “Feel a cold coming on? Take two tax cuts, roll back some regs, and call us in the morning.” This article argues that Komesar does an admirable job of appreciating the interactions of these two sorts of failures, and provides an intellectual underpinning for the approach to cost/benefit analysis now institutionalized in the U.S. Office of Management and Budget.

Part II assesses the imperfect institutional alternatives that apply for the HIPAA medical privacy rule. Although the rule as drafted certainly had flaws, a regulation of this sort seems to have worked better than market-based or other alternatives for protecting medical privacy. Part III analyzes the institutional reasons that U.S. health providers have been slow to adopt electronic health records for patients’ clinical records. The Bush administration tried to spur adoption by emphasizing the role of private-sector standards efforts. Adoption appears to be growing much more quickly, however, due to funding for meaningful use of EHRs in the 2009 stimulus bill. The combination of funding and standards incorporated into regulations appear to be working better than alternatives for overcoming coordination problems for EHRs.

Part IV examines the institutional alternatives for U.S. governance of Internet privacy. Self-regulatory efforts have been important in changing industry practices. Legislation, however, may well improve practices in the area compared with sole reliance on such self-regulatory initiatives.

Part V examines imperfect alternatives for cybersecurity. As Komesar teaches, the features that make an issue difficult for one institution (such as a market approach to cybersecurity) often make the issue similarly difficult for another institution (such as government rules for cybersecurity). The analysis here suggests caution about proposed cybersecurity legislation, while acknowledging significant and continuing market failures.

Part VI examines the relatively limited role for the courts in governing these information policy issues, notably because systemic change of information practices is often a bad fit for the case-by-case approach of adjudication. In conclusion, Komesar’s work usefully informs the major information policy issues facing policy makers today.

Bullets

In R v Gordon [2012] QCA 334 the Supreme Court of Queensland has found that an 81 year-old man in poor health was required to serve a custodial term imposed upon him for multiple serious offences.

Gordon had sent letters containing bullets inserted into detonators to various public officials (eg the Prime Minister) and one private citizen.The prosecution submissions noted that the detonators in and of themselves were sensitive and could be fired by accidental impact and there was, thus, potential for actual harm to befall the recipients of those letters. One letter contained a threat to send a bomb, others made threats to kill and one letter stated that the water supply of a motel where refugees were staying had been poisoned. The letters were of anti-Catholic and anti-asylum seeker sentiment. They were sent over a period of three years. His defence counsel said “he knows that what he has done is very silly” but “also knows that what he has done is very serious”. Gordon contended that the detonators would not detonate unless they were hit with a hammer. His conduct was submitted to be

“a rant” venting his anger in respect of certain matters with which he disagreed.

Sending explosives to the Prime Minister, Roman Catholic Archbishop of Brisbane, the Queensland Premier, the Leader of the federal Opposition, the Reserve Bank Governor, the Westpac Bank chief executive officer and the Commonwealth Bank chief executive officer is not a good way to have "a rant".

Gordon pleaded guilty to 11 counts of unlawful use of postal service contrary to s 471 of the Criminal Code 1995 (Cth) and one count of unlawful possession of weapons contrary to s 50 of the Weapons Act 1990 (Qld).

Section 471 includes -

471.11 Using a postal or similar service to make a threat

Threat to kill

(1) A person (the first person ) is guilty of an offence if:(a) the first person uses a postal or similar service to make to another person (the second person) a threat to kill the second person or a third person; and (b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 10 years.

Threat to cause serious harm

(2) A person (the first person ) is guilty of an offence if: (a) the first person uses a postal or similar service to make to another person (the second person ) a threat to cause serious harm to the second person or a third person; and (b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 7 years.

Actual fear not necessary

(3) In a prosecution for an offence against this section, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.

Definitions

(4) In this section: "fear" includes apprehension. "threat to cause serious harm to a person includes a threat to substantially contribute to serious " harm to the person.

471.12 Using a postal or similar service to menace, harass or cause offence

A person is guilty of an offence if: (a) the person uses a postal or similar service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 2 years.

471.15 Causing an explosive, or a dangerous or harmful substance, to be carried by post

Offence

(1) A person is guilty of an offence if: (a) the person causes an article to be carried by post; and (b) the article consists of, encloses or contains: (i) an explosive; or (ii) a dangerous or harmful substance or thing that the regulations say must not, without exception, be carried by post.

Penalty: Imprisonment for 10 years.

In considering the appeal Holmes, White and Gotterson JJA found that the District Court had given due consideration to the man's health and to his advanced years.

Scalping and privacy

The Rugby Football Union (Respondent) v Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation) (Appellant) [2012] UKSC 55 is an appeal from The Rugby Football Union (Respondent) v Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation) (Appellant) [2011] EWCA Civ 1585.

The Rugby Football Union (RFU) had sought to discover the identity of people who had purchased tickets to football games via an online 'scalping' service, with the service operator claiming that the discovery process was contrary to privacy protection under EU human rights law.

The RFU as the governing body for Rugby Union in England has sole responsibility for issuing tickets for all international and other matches played at its Twickenham stadium. Its terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void. That stipulation is printed on the tickets and applicants are warned on ticket application forms. A further term stipulates that the tickets are property of the RFU at all times.

Viagogo operated a site that enabled people to sell tickets for RFU games: sellers would register their tickets with Viagogo, a price would be suggested based on current market data and the service provider would receive a percentage of any sale through that virtual meeting of buyer and seller.

The UK Supreme Court judgment notes that the RFU monitors such sites in an attempt to discover whether and by whom tickets were being sold above face value. "This effort was frustrated, however, in many instances by the anonymity offered by websites including Viagogo". The RFU discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham.

Tickets with a face value of £20 to £55 were being advertised for sale at up to £1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to protect its policy in relation to tickets. xxxxx The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress.

In Norwich Pharmacal Company & Ors v Customs And Excise [1973] UKHL 6 Norwich Pharmacal Co, as owner and exclusive licensee of a patent, brought proceedings against the UK Excise Commissioners to force disclosure of information that would identify unknown importers of its patented chemical. The House of Lords held that where an innocent third party had information relating to unlawful conduct, a court could compel that party to assist the injured person by supplying that information. The case established the Norwich Pharmacal disclosure orders against innocent third parties.

Viagogo argued that granting a Norwich Pharmacal order represented a disproportionate interference with the rights of the potential wrongdoers under article 8 (ie protection of personal data) of the EU Charter of Fundamental Rights.

The Court of Appeal upheld the decision of the High Court and decided that the RFU had no readily alternative means of pursuing the wrongdoers. Interference with the personal data rights of the individuals was proportionate in light of the RFU’s legitimate objective in obtaining redress for arguable wrongs.

The Supreme Court considered whether the grant of the order involved a breach of article 8 of the Charter. It noted that the essential purpose of an order was to do justice in the case. The need for an order for disclosure will only be found to exist if it is necessary and proportionate in all the circumstances, involved a careful weighing of all relevant factors including -

• the strength of the cause of action, 
• whether those who have committed the alleged wrong knew or would have been likely to know that what they were doing was unlawful and 
• the privacy rights of those whose identities were to be revealed 

Article 8 of the Charter was applicable as the order of the High Court involved disclosure of private data and thus was in the material scope of European Law.

The Supreme Court held that the appropriate test of proportionality under Article 8 of the Charter involved weighing the benefit of the information being sought by the RFU against the impact that disclosure was likely to have on the individual concerned. Lord Kerr comments that  it was artificial and unrealistic to suggest that the RFU’s aim of discouraging others in the future from flouting its rules should not be considered. Although the facts of each case must be considered individually there was nothing to support  the notion that the wider context for which the RFU wished to have the information should be left out of account.

The court indicated that although there should be an intense focus on the rights claimed by the individuals concerned, this was not a case where disclosure would result in oppressive or unfair treatment. The only information sought was the names and addresses of individuals who had bought and sold tickets in clear breach of the RFU’s ticket policy.

It went on to state that in some  limited cases the particular circumstances affecting a person whose data was sought may displace the interests of the applicant for disclosure even where there was no feasible alternative way of getting the information.

Midwives

ACMA, Australia's national broadcasting regulator, has concluded that Channel Nine Adelaide (NWS 9) has

breached the privacy provisions of the Commercial Television Industry Code of Practice 2010 (the code) by identifying a family involved in a home birth. It is the first television broadcast to breach the privacy provisions of the code since the new privacy guidelines were introduced in December 2011. 

The finding [PDF]  is a welcome sign that ACMA, an example of industry capture, is taking privacy protection more seriously.

ACMA states that

The news story concerned a deregistered midwife continuing to practise but it broadcast sensitive personal information about a newborn baby. The 16 February 2012 broadcast also contained identifying and intrusive footage of the complainant and his family inside their home and surrounds. 

‘The concept of being protected against someone intruding on your private space is a key tenet of the privacy guidelines,’ said ACMA Chairman, Chris Chapman. 

‘It is partly based on a person’s reasonable expectation that their activities would not be observed or overheard. In this case, footage in and around the complainant’s home was found to be an invasion of privacy,’ he said. 

The ACMA also found that the licensee failed the additional code obligation to exercise special care before using sensitive personal information about a child. 

NWS 9 has agreed to a tailored training program for relevant staff and to making a statement on its website providing a link to the ACMA’s investigation decision.

The NSW 9 site does not, as far as I can see, feature an apology … merely a link to the ACMA PDF.

What Price Privacy?

In a forthcoming article for Privacy Law Bulletin and book chapter I have commented that the 1,987 page report by the Right Honourable Lord Justice Leveson on An Inquiry into the Culture, Practices and Ethics of the Press at first glance seems a world away from Australia, a media world that features by naughty vicars and photogenic princesses, executives with a penchant for spanking, official corruption, allegations of child sex offences involving media personalities, and defamatory claims regarding other figures.

On second glance that world looks familiar, with disagreement during the past month about mining deals involving a NSW politician, the pasts of Julia Gillard and Julie Bishop, revelations about child abuse and payoffs involving religious institutions, another round of litigation by Australia’s richest woman involving public access to information about family trust arrangements, and claims by the pharmaceutical industry to the ACCC that transparency in undisclosed payments to medical practitioners would both be premature and breach practitioner privacy.

From an Australian perspective the Leveson Report is important for three reasons.

The first reason is that it looks backwards, documenting activity involving journalists and their agents that has seen some people go to prison, others facing criminal charges and questions about corporate governance in some of the UK’s most powerful organisations, including the Metropolitan Police and the British arm of Australia’s dominant media group – News Corporation. Some of those actors egregiously and recurrently breached a range of UK privacy law. Others appear to have condoned the breaches or failed to provide a corporate culture in which serious misbehaviour was identified and dealt with.

The second is that the report looks forward, recommending changes that address those privacy abuses and failed governance. Irrespective of Prime Minister Cameron's dismissal of Leveson’s recommendations, they will provide a benchmark for debate within Australia about media self-regulation at a time where analysts forecast the demise of one of the commercial television groups, the dominant commercial television group has been restructured, Ms Rinehart apparently hasn’t completely lost interest in Fairfax and Ten, and the Gillard Government has lost interest in both the Finkelstein Report and the proposed Privacy Tort.

The third reason is that the Leveson Report poses questions about public interest justifications for disregard of privacy. In essence, it suggests that we need to differentiate between public curiosity and public interest. Curiosity does not justify invasions of privacy. Leveson is emphatic that privacy should be enjoyed by public figures and by ordinary people alike, expressing concern that the victims of privacy abuses in the UK have often been the powerless rather than individuals whom Rupert Murdoch characterized as scumbag celebrities. There is a public interest in politics, public administration, corporate misgovernance, dangers to health, environmental dangers and other matters. That interest justifies responsible journalism; something that is different to entertainment.

Contrary to hyperbole over the past two weeks, Leveson does not call for a draconian restriction on journalism or media proprietors. By extension he would not crimp the implied freedom of political communication found by the High Court in Australia.

He does not call for a government agency to control media groups and journalists. His report does, however, distinguish between what is socially valuable and what is merely salacious or saleable. That differentiation should be borne in mind as courts, private sector bodies and the national Privacy Commissioner give effect to the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) passed on 29 November and in effect from 14 March next year.

Investigation since initial public disquiet about hacking of a murdered teenager’s mobile phone has resulted in 17 arrests over interception of mobile phone messages, 52 arrests over payments to officials (primarily to police) and 17 arrests regarding other offences such as computer hacking and unauthorised access to personal records. It has resulted in the demise of the tabloid News of the World and the current breakup of the global News conglomerate into discrete print and broadcast groups, along with serious damage to News Corporation senior executives such as James Murdoch. As Leveson asked, in quoting two 2006 papers by the Information Commissioner, What Price Privacy?

The report deals with the culture, ethics and practices of the UK press, including questions about governance in the major print groups – misbehaviour within the Murdoch publications was particularly egregious but problems are evident in other publications such as the Mirror – and analysis of whether industry self-regulation has been effective. The  inquiry encompassed competition policy and, importantly, the UK regulatory framework for data protection.

Overall, the report emphasises the virtues of a free press and the importance of responsibility. It is a notably lucid, carefully written and in parts quite cautious document. Leveson’s condemnations thus have particular force. He questions governance within the News group and the credibility of some senior News figures. He characterizes the Press Complaints Commission (PCC) – counterpart of Australia’s Press Council (APC) – as lacking independence, having “numerous structural deficiencies” and “not actually a regulator at all”.

The APC is a voluntary body - like the PCC - with no statutory power. Its credibility was placed in question with the announcement in April this year that Seven West Media (one of the dominant players in the media sector, encompassing Pacific Magazines, Yahoo!7 and the Seven television network) was putting in place an 'alternative independent complaints-resolution body' that would "guarantee accountability of all the group’s publications". We are of course still waiting on details: the announcement indicated that Seven West would release full details of its plan in future, with no further comment until then.

Leveson notes “serious and systematic illegality and poor practice in the acquisition and use of personal information”, going on to conclude that existing criminal law is insufficient and that the Data Protection Act 1998 hobbled the Information Commissioner through “unnecessary and inappropriate barriers in the way of regulatory law enforcement and the protection of victims rights”. Public benefit rationales mean that privacy is not absolute but journalists, along with other actors such as the police, must act responsibly.

His report accordingly seeks to ensure a balance, by both providing a statutory underpinning for an independent press regulator and enshrining an explicit duty of the Government to uphold and protect freedom of the media. In particular, amendment of the Data Protection Act should provide for the Information Commissioner, in considering exercise of any powers regarding the media, to have special regard for the obligation in law to balance the public interest in freedom of expression alongside the public interest in upholding the data protection regime. Leveson indicates that more rigorous application of existing UK criminal law does not and will not provide the solution to governance problems.

 The report features a recommendation that the Civil Justice Council (the independent public body advising the Lord Chancellor) should consider increases in the level of damages regarding privacy, breach of confidence, and data protection. Leveson suggests that the Law Commission’s 1997 report on Aggravated, Exemplary and Restitutionary Damages should be adopted, with retention of exemplary damages (retitled as punitive damages). Those damages should be available in actions for breach of privacy, breach of confidence and defamation. Aggravated damages should only be awarded to compensate for mental distress, with no punitive element. Compensation under s 13 of the Act should encompass pure distress rather than being restricted to pecuniary loss.

 Leveson’s most controversial recommendations concern a new model of self-regulation. He suggests a voluntary “independent regulatory body”, established and organized by the industry (ie not a government entity) but subject to periodic review by an independent “recognition body”. The recognition body would not regulate individual journalists, publications or publishers but would certify whether the regulator had fulfilled certain “legitimate requirements” enshrined in a new statute. Leveson suggests that Ofcom (counterpart of Australia’s ACMA) should act as the recognition body, although a “less attractive alternative” would be to appoint an independent ‘Recognition Commissioner’ supported by Ofcom staff.

Commitment by the publishers would be encouraged through the potential for direct statutory regulation by a “backstop regulator” such as Ofcom – similar to the potential for ACMA to supersede auDA if there is a fundamental failure in Australian domain name regulation - and the likelihood of adverse costs awards in civil litigation.

Leveson comments that

I have made very clear that, by a very long way, my preferred solution, and hence my recommendation, is that the industry should come together to construct a system of independent regulation that could be recognised. If it does so, there will be no need for a backstop regulator.

However, if some or all of the industry were not prepared to adopt that position, I do not accept that they should expect the public to settle for less, much less escape standards regulation altogether. More significantly, if the possibility exists that a significant provider of press like services could avoid independent regulation without consequence, then there would simply be no incentive for an unwilling industry collectively to deliver it. My personal view, therefore, is that there may be a need for the realistic prospect of a backstop regulator being established.

The new regulator would not have the power to prevent publication. Instead it would promulgate and promote a Code of standards (including privacy), hear complaints and offer redress regarding alleged breaches (with power to investigate “serious or systemic breaches” and impose appropriate sanctions), and provide a quick and inexpensive arbitration service to deal with civil law claims.

The regulator would provide guidance on the interpretation of the public interest. Leveson suggests consideration of “a purely voluntary pre-publication advice service to editors who want support on how the public interest might be interpreted in a specific case before a decision is reached on publication”, without “notice to the subject of the story” and thus contrary to recent requests by Max Mosley for a ‘prepublication notice’.

Sanctions by the regulator – independent of the Data Protection Act 1998 – would be “appropriate and proportionate”, including financial sanctions up to 1% of turnover (with a maximum of £1m) on a member found to be responsible for serious or systemic breaches of the Code or governance requirements.

Given Leveson’s criticisms of inaction by media executives and difficulties facing the Information Commissioner he recommends that the regulator have power to conduct own-motion investigations and be strengthened though establishment of a whistleblowing helpline for journalists.

Participation in the regulator’s arbitration service would be a condition of membership. That service would be staffed by retired judges or senior practitioners with specialist knowledge of media law. Arbitration would rely on an inquisitorial model, with the process being be free for complainants. (Vexatious or trivial complaints would be struck out at an initial stage.) Importantly, under amendment of the Civil Procedure Rules a choice by a publisher not to participate in the new regulatory body would permit the courts to deprive that publisher of its costs in any privacy, breach of confidence or defamation litigation where the publisher was successful.

 Leveson also suggests that consideration should also be given to amending the Data Protection Act 1998 to formally reconstitute the Information Commissioner’s Office as an Information Commission. That is of interest locally, given concerns about the resourcing of the Privacy Commissioner function within the Office of the Australian Information Commissioner and perceptions that the OAIC is disengaged, evident in criticisms of belated and permissive responses to incidents such as the Telstra, Sony and Vodaphone data breaches. The Australian Commissioner now has enhanced powers but there is uncertainty about whether those powers will be used and used effectively.

 Australian responses to Leveson so far have been unenthusiastic or simply indifferent, with for example comments that media practive and governance in the UK are so very different as to have no relevance downunder. That is unsurprising given the vehemence with which the 2012 Finkelstein Inquiry report was received and condemnation by the commercial media (particularly News group outlets, where Andrew Bolt worried about “a sinister law, planned by a government with sinister motives”) and bodies such as the Rule Of Law Institute of the Government’s vague proposals for a privacy tort.

The notion of a privacy tort is not remarkable and does not seriously threaten freedom of speech, freedom of political communication or freedom of publishers (three categories sometimes conflated by advocates for the commercial media groups). Statutory provision of a tort regarding invasion or serious invasion of privacy has for example been recommended by the Australian Law Reform Commission, NSW Law Reform Commission and Victorian Law Reform Commission.

A reader of the Leveson report might reasonably conclude that individual journalists and media groups are not necessarily best equipped to self-regulate and that commercial pressures may well induce a race to the bottom. In a symposium last month I questioned some of the more alarmist expressions of concern that enhanced privacy protection in Australia would lead to a wave of frivolous litigation or fundamentally crimp investigative journalism in the public interest.

The history of confidentiality law, and more broadly Australian jurisprudence in cases involving the media over the past thirty years, suggests that Australian courts have coped effectively with litigation and founded their decision-making on public interest. Examples of that jurisprudence are Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 and Attorney General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30, where the courts have looked to the bases of civil society – in the same way that they have identified foundations for the implied freedom of political communication – and have not confused public curiosity with public interest.