Lapidation

The Office of the UN High Commissioner for Human Rights (OHCHR) has expressed "deep concern" about Brunei Darussalam's revised penal code, which introduces stoning to death (aka lapidation) as the specific method of execution for crimes of a sexual nature.

The revised code stipulates the death penalty for offences such as robbery, murder, blasphemy, adultery, sodomy, insult or defamation of the Prophet Mohammed, insulting any verses of the Quran and Hadith, and declaring oneself a prophet. The shift to sharia law is reflected in provision for caning and for removal of limbs for property offences.

It is unclear whether the code emulates Saudi Arabia, which has capital punishment for witchcraft, or the death penalty from apostasy from Islam (the latter being a criminal but not capital offence in parts of Malaysia).

A OHCHR spokesperson comments that

Application of the death penalty for such a broad range of offences contravenes international law.

We urge the Government to delay the entry into force of the revised penal code and to conduct a comprehensive review ensuring its compliance with international human rights standards

Under international law, stoning people to death constitutes torture or other cruel, inhuman or degrading treatment or punishment and is thus clearly prohibited.

 One local legal scholar was reported last year as commenting

Let us not just look at the hand-cutting or the stoning or the caning per se, but let us also look at the conditions governing them. It is not indiscriminate cutting or stoning or caning. There are conditions and there are methods that are just and fair.

The OHCHR notes that

women are more likely to be sentenced to death by stoning, due to deeply entrenched discrimination and stereotyping against them, including among law enforcement and judicial officers. The criminalization and application of the death penalty for consensual relations between adults in private also violates a whole host of rights, including the rights to privacy, to equality before the law, the right to health and freedom from arbitrary arrest and detention.

UK CCTV

In the UK the Surveillance Camera Commissioner (SCC) is reported by the UK Independent as warning that the public face "a very real risk" to their privacy from ANPR and CCTV.

The Commissioner has urged that

clear guidance be provided to ensure “innocent” people do not fall victim to roadside automatic number plate recognition (ANPR) cameras which have been the centre of concerns over the rise of surveillance in Britain. 

Through the Commissioner's interview with the newspaper UK  police have supposedly been "put on notice over their use of personal data". Regrettably there is no statement on the SCC site.

The Independent states that

Local authorities control more than 50,000 cameras while thousands of roadside cameras collect owner information on more than 18 million car journeys every day, in a swift and unregulated expansion over the past 30 years.

Police have declined to say how many cameras are used for the ANPR system, but it has the capacity to check information on up to 50 million cars every day, and cross-check it with other police databases to trace wanted offenders.

The information, which according to police has led to important intelligence gathering and tens of thousands of arrests every year, is retained for up to two years, even when there is no evidence of any wrongdoing.

But reports into three cases that highlighted failings in the system prompted the police watchdog to warn that the scale of the system meant it was “impossible” to achieve its full potential. In April 2012, the database held almost 11.2 billion vehicle sightings.

“I think there has to be very clear guidance to officers about the way in which ANPR is used and once it has been used, ensuring that data is removed or at least is updated to that effect. I think that’s crucial,” said Mr Porter, a former senior police anti-terror officer.

“There is a very real risk that if systems aren’t adhered to innocent members of the public could be put at risk of having their privacy impacted upon. I can see the value of understanding how many ANPR cameras there are. There are other concerns that have been expressed … the large data-grab of information and the period of retention of that information.”to encourage compliance with the surveillance camera code of practice.

The office of the Commissioner was created under the Protection of Freedoms Act 2012 (UK) to regulate CCTV. It is independent of the Information Commissioner (counterpart of the OAIC in Australia).

The 2012 statute required a Code of Practice regarding surveillance camera systems. That Code of Practice sets out guidelines for CCTV and ANPR. It is not applicable to domestic use in private households.

The Code states -

Surveillance camera systems are deployed extensively within England and Wales, and these systems form part of a complex landscape of ownership and operation. Where used appropriately, these systems are valuable tools which contribute to public safety and security and in protecting both people and property.

The government is fully supportive of the use of overt surveillance cameras in a public place whenever that use is: in pursuit of a legitimate aim; necessary to meet a pressing need2; proportionate; effective, and; compliant with any relevant legal obligations.

The purpose of the code will be to ensure that individuals and wider communities have confidence that surveillance cameras are deployed to protect and support them, rather than spy on them. The government considers that wherever overt surveillance in public places is in pursuit of a legitimate aim and meets a pressing need, any such surveillance should be characterised as surveillance by consent, and such consent on the part of the community must be informed consent and not assumed by a system operator.

Surveillance by consent should be regarded as analogous to policing by consent. In the British model of policing, police officers are citizens in uniform. They exercise their powers to police their fellow citizens with the implicit consent of their fellow citizens. Policing by consent is the phrase used to describe this. It denotes that the legitimacy of policing in the eyes of the public is based upon a general consensus of support that follows from transparency about their powers, demonstrating integrity in exercising those powers and their accountability for doing so.

In order to achieve this, the code sets out guiding principles that should apply to all surveillance camera systems in public places. These guiding principles are designed to provide a framework for operators and users of surveillance camera systems so that there is proportionality and transparency in their use of surveillance, and systems are capable of providing good quality images and other information which are fit for purpose.

The 12 principles are -

1. Use of a surveillance camera system must always be for a specified purpose which is in pursuit of a legitimate aim and necessary to meet an identified pressing need.

2. The use of a surveillance camera system must take into account its effect on individuals and their privacy, with regular reviews to ensure its use remains justified.

3. There must be as much transparency in the use of a surveillance camera system as possible, including a published contact point for access to information and complaints.

4. There must be clear responsibility and accountability for all surveillance camera system activities including images and information collected, held and used.

5. Clear rules, policies and procedures must be in place before a surveillance camera system is used, and these must be communicated to all who need to comply with them.

6. No more images and information should be stored than that which is strictly required for the stated purpose of a surveillance camera system, and such images and information should be deleted once their purposes have been discharged.

7. Access to retained images and information should be restricted and there must be clearly defined rules on who can gain access and for what purpose such access is granted; the disclosure of images and information should only take place when it is necessary for such a purpose or for law enforcement purposes.

8. Surveillance camera system operators should consider any approved operational, technical and competency standards relevant to a system and its purpose and work to meet and maintain those standards.

9. Surveillance camera system images and information should be subject to appropriate security measures to safeguard against unauthorised access and use.

10. There should be effective review and audit mechanisms to ensure legal requirements, policies and standards are complied with in practice, and regular reports should be published.

11. When the use of a surveillance camera system is in pursuit of a legitimate aim, and there is a pressing need for its use, it should then be used in the most effective way to support public safety and law enforcement with the aim of processing images and information of evidential value.

12. Any information used to support a surveillance camera system which compares against a reference database for matching purposes should be accurate and kept up to date.

The SCC role is to -

• encourage compliance with the surveillance camera code of practice
•  review how the code is working 
• provide advice to ministers on whether or not the code needs amending.

Importantly (and fostering suspicions that the SCC is a potemkin regulator) the commissioner has no enforcement or inspection powers but "works with relevant authorities to make them aware of their duty to have regard to the code". The Commissioner must consider how best to encourage voluntary adoption of the code by other operators of surveillance camera systems.

The Commissioner is responsible for -

• providing advice on the effective, appropriate, proportionate and transparent use of surveillance camera systems 
• reviewing how the code is working and if necessary add others to the list of authorities who must have due regard to the code 
• providing advice on operational and technical standards 
• encouraging voluntary compliance with the code.

The National Association of Schoolmasters Union of Women Teachers (NASUWT) has meanwhile reported that nearly one in 10 members now have CCTV cameras in their classrooms, expressing concern that although CCTV was supposedly introduced to enhance pupil and teacher safety (and act as a deterrent to bad behaviour) it is now being used by executives to assess teaching standards.

89% of NASUWT members reporting on CCTV in the classroom indicated that they could not switch off the cameras, with 88% indicating that there was constant recording of lessons, 55% said headteachers were viewing the video and 41% believing it was used to form negative views of staff.

The union's General Secretary, with a grab for the soundbite, stated that “Lab rats have more professional privacy" -

This is yet another example of how teachers are being undermined and stripped of their professionalism.  Teachers are already wrestling with excessive monitoring, masquerading as classroom observation, carried out by senior management and a host of other people regularly visiting their classrooms.  Now, in some schools, they are being subjected to permanent surveillance through CCTV cameras. In some cases, teachers have reported having their private conversations filmed when the school was not in session.

UK bulk tax data for sale?

Under the heading 'Taxpayers’ data could be sold to private companies by HM Revenue & Customs' the UK Independent reports that the UK Government is considering a proposal to sell deidentified taxpayer data.

So much for the acknowledgment of concerns regarding the care.data fiasco and cautions provided by the earlier Caldicott Report or research on reidentification of supposedly deidentified (anonymised) sensitive personal information.

Unsurprisingly

The controversial move raises questions over civil liberties and confidentiality and prompted immediate condemnation by Tory MP David Davis who branded it “borderline insane”.

Treasury Minister David Gauke is overseeing the plans to sell information on taxpayers, supposedly anonymously, to businesses, researchers and public bodies where it there is a “public benefit”.

Suitable precautions will, the government insisted, be put in place to ensure all data passed on to third parties is anonymous but there are doubts such a promise can be kept.

HMRC is already notorious for its loss of data on 25 million child benefit claimants.

Davis reported as commenting

The officials who drew this up clearly have no idea of the risks to data in an electronic age. Our forefathers put these checks and balances in place when the information was kept in cardboard files, and data was therefore difficult to appropriate and misuse.

It defies logic that we would remove those restraints at a time when data can be collected by the gigabyte, processed in milliseconds and transported around the world almost instantaneously.

Unresponsiveness to concerns aside, what is particularly interesting from the reporting is the indication that the Government doesn't expect to make much money from release of the data -

The proposals were originally announced last year but have only now come to public attention. The next stage is for the plans to be published in draft legislation but no date for such a move has yet been set.

A spokesman for HMRC said: ”No final decisions have been taken, but HMRC remains committed to safeguarding taxpayer confidentiality.”

“HMRC would only share data where this would generate clear public benefits, and where there are robust safeguards in place.”

“There would be a rigorous accreditation process for anyone wanting access to the data and that any access would take place in a secure environment. Those accessing data would be subject to the same confidentiality provisions as HMRC staff, including a criminal sanction for unlawful disclosure of taxpayer information.”

“HMRC will be consulting further and will ask for views on whether to charge to cover the costs of processing and providing anonymised data. This would not be charging for the data itself, purely covering the costs of providing it.

The authors of the plan might usefully take a few hours out to read The Blunders of Our Governments (Oneworld, 2013) by Anthony King and Ivor Crewe.

The Guardian reports -

The government has strict rules about what can be released outside HMRC, with a near total ban on data sharing unless it is beneficial for the organisation's internal work. But despite the restrictions, HMRC has quietly launched a pilot programme that has released data about VAT registration for research purposes to three private credit ratings agencies: Experian, Equifax and Dun & Bradstreet.

To comply with the law, the private ratings agencies, which determine credit scores for millions of people and businesses, have been contracted to act on behalf of HMRC and are "therefore treated as part of the department" – giving them access to tax data about businesses that would otherwise be confidential.

The government's plans to change the law to allow the sale of anonymised individual tax data and release of the VAT register were buried in documents as part of the autumn statement and recent budget.

Emma Carr, of Big Brother Watch, said the government should not try to sneak the plans through without a public debate. She said: "The ongoing claims about anonymous data overlook the serious risks to privacy of individual level data being vulnerable to reidentification."

During the consultation process officials acknowledged there were "concerns around the dangers of individual identities being disclosed inadvertently" but they believe the data can be appropriately protected.

Stephen Coleclough, president of the Chartered Institute of Taxation, said HMRC had failed to grasp the "worrying and dangerous" implications of what would be made into law.

"We are concerned that even the strictest safeguards and deterrents may not prevent misuse of the data, or identification of the underlying taxpayer," he said. "There are already examples of aggregate data being provided at such a granular level which would enable identification of the relevant individuals, and we are anxious that any broadening of HMRC's powers of disclosure will inevitably lead to the identification of individuals, and a consequential breakdown in trust between HMRC and taxpayers, not to mention contravention of legislation such as the Human Rights Act."

The Treasury confirmed it was proceeding with plans to legislate to make aggregated and anonymised data more widely available, as set out in an HMRC document that said: "The government has decided to proceed with the proposal to remove the legal restrictions that currently limit HMRC's ability to share anonymised individual level data for the purpose of research and analysis and deliver public benefits wider than HMRC's own functions, but they accept that this must be done only where there are sufficient safeguards in place to protect taxpayer confidentiality.

Drones

'The Diffusion of Drone Warfare: Industrial, Infrastructural and Organizational Constraints' by Andrea Gilli and Mauro Gilli Sr. comments that

Many scholars and policy-makers believe that drones will spread quickly because of their low price, of their reliance on cheap commercial components and of their relative unsophistication. According to this view, this process will redistribute military power at the global level and, possibly, promote international instability. The literature in international relations and on globalization almost unanimously supports these concerns. Drawing from the scholarship in management, we show that such consensus is unwarranted. Specifically, even if we assume that advanced components are cheaply and easily available, drone warfare casts two major challenges. First, the production of combat-effective drones require advanced competences and industrial capabilities that are generally difficult, expensive and lengthy to develop. Second, the employment of drones calls for expensive and burdensome organizational and infrastructural support that, often, only few countries can afford. We test our claims by focusing on three types of military relevant drones – loitering attack munitions (LAMs), unmanned combat aerial vehicles (UCAVs) and ground and airborne surveillance drones (ISR and AEW&C). Our analysis shows that drone warfare poses significantly more daunting challenges than the current debate acknowledges. ....

First, drone warfare requires combat-effective unmanned aerial vehicles (UAVs) able to withstand potential counter-measures and to meet specific requirements in terms of performance and capabilities. The production of such drones, in turn, requires advanced design and systems integration competences that are difficult, expensive and hence lengthy to develop. Second, in contrast to the current debate, drones are not stand-alone platform as they are virtually useless without data-link, communication relays and ground control stations – just to name a few. Thus, considering the single drone without its supporting infrastructures is tantamount to counting trains, in the late 19th century, without considering countries’ rail-networks extension. As we argue, the infrastructural and organizational support necessary for the employment of drones is extremely complex and expensive, such that in some cases it is beyond the reach of most countries.

The case of drones is not only substantively important, but also methodologically relevant. Drones are among the many transformative technologies of the post-industrial era. However, in comparison to others like direct-energy weapons, rail-guns and to certain extents even cyber capabilities, they draw more extensively from commercial components, which in turn should make them more likely to spread easily, at least according to the literature in international relations. By studying drones, we are hence able to investigate a broader issue: whether globalization, along with progress in communications and science, is undermining the US leadership in military technology.

The current debate tends to lump together all types of drones, ignoring that different drones with very different military capabilities exist. Some scholars have restricted their focus on armed drones. However, also this generalization is too broad: different types of drones with very different striking capabilities exist. For this reason, we focus on the three types of drones that can conduct different types of land-attack missions and that provide relevant military capabilities: loitering attack munitions (LAMs), unmanned combat aerial vehicle (UCAVs) and ground and airborne surveillance drones that can also conduct the (in)famous drone strikes (for intelligence, surveillance and reconnaissance, ISR and airborne aerial early warning and command, AEWC). Although we are in the early stages of the drone age, and hence data is inherently limited, our investigation suggests that drones are far from cheap and easy to develop and to employ. We conclude that drone warfare poses more challenges than generally acknowledged, and hence will spread less quickly and less widely than many believe.

The rest of the article proceeds as follows: first we summarize the existing literature on the diffusion of military technology and on the diffusion of drones. Second, we present our theoretical framework. Finally, we conduct our empirical analysis. Conclusions follow.

Corporal Punishment

The Australian Institute of Family Studies has updated its useful guide to corporal punishment of minors.

The guide notes that parents in all jurisdictions may lawfully use "reasonable" corporal punishment to discipline their children, with NSW remaining the only state to have made legislative amendments concerning corporal punishment by parents. The Crimes Amendment (Child Protection Physical Mistreatment) Act 2001 (NSW) states that physical punishment should not harm a child "more than briefly" and specifies the parts of a child's body that can be subject to force; the Act does not ban the use of corporal punishment altogether.

The guide identifies the following regimes -

• ACT - no legislation regarding the use of corporal punishment by parents. The defence of "reasonable chastisement" remains in common law. 
• NSW - the Crimes Amendment (Child Protection-Physical Mistreatment) Act 2001 (NSW) amended the Crimes Act 1900 (NSW), specifies that physical punishment by a parent should not harm a child more than briefly and specifying the parts of a child's body that can be subject to force. 
• NT - the Criminal Code Act (NT) s 27 provides for parents and teachers (unless parents expressly withhold their consent) to lawfully apply force to a child for the purposes of discipline and correction.
• Qld - the Criminal Code Act 1899 (Qld) s 280 provides that it is lawful for a parent (or person in the place of a parent) "to use, by way of correction, discipline, management or control, towards a child or pupil, under the person's care, such force that is reasonable under the circumstances". It therefore remains lawful for a parent to physically punish/correct their child. 
• SA - no enactment expressly provides for the use of corporal punishment by parents but the Criminal Law Consolidation Act 1935 (SA) s 20(2) provides for contact between persons that would generally be regarded as accepted within the community, in addition to the common law defence of "reasonable chastisement".
• Tas - physical punishment by a parent or a person in the place of a parent remains lawful under the Criminal Code Act 1924 (Tas) s 50, which provides for use, by way of correction, of any force that is reasonable in the circumstances. 
• Vic - the common law defence covers parental use of corporal punishment that is neither unreasonable nor excessive
• WA - the Criminal Code Act 1913 (WA) s 257 provides that it is lawful for parents or a person in the place of a parent to use, by way of correction such force as is reasonable under the circumstances. 

In relation to childcare and early education the guide comments that

In 2011, the Education and Care Services National Law was introduced by way of an applied law system where the host jurisdiction (Victoria) passed the law - Education and Care Service National Law Act 2010 (Vic) - and other jurisdictions adopted that law or passed corresponding legislation.

Under s 166 of the Victorian statute it is an offence for a provider, nominated supervisor, staff member, and volunteer or family day care educator of an approved education and care service to subject a child to any form of corporal punishment. Consistent with the preceding comments not all jurisdictions have specifically included corporal punishment as an offence under individual education and care services statutes, with variations as follows -

• ACT - adoption of the National Law Act through the Education and Care Services National Law Act 2011 (ACT). The Children and Young People Act 2008 (ACT) states that a person responsible for a childcare service commits an offence if they use unreasonable discipline in the form of physical punishment or any behaviour management strategy likely to cause physical harm to a child, which includes but is not limited to smacking. A childcare service includes long day care, family day care, outside school hour's care and pre-school services.
• NSW - the Children (Education and Care Services National Law Application) Act 2010 (NSW) adopting the National Law Act prohibits use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service.
• NT - adoption of the National Law under Education and Care Services (National Uniform Legislation) Act 2011 (NT) prohibits the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service.
• Qld - the Education and Care Services National Law (Queensland) Act 2013 (Qld) does not expressly prohibit or condone the use of corporal punishment in education and care services. The guide notes that the 2011 Bill commented that because of the ambiguity of the offence, it would be difficult to prosecute and that procedural manuals and other guidance notes developed at the national level for use in administering the National Law are expected to provide regulatory authorities with direction about the circumstances in which action should be taken in relation to the proposed offence.
• SA - the Education and Early Childhood Services (Registration and Standards) Act 2011 (SA) adopting the National Law Act prohibits use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service. 
• Tas - adoption of the National Law under the Education and Care Services National Law (Application) Act 2011 (Tas) specifically excludes services that provide childcare, addressed under the Child Care Act 2001 (Tas). 
• Vic - the Education and Care Services National Law Act 2010 (Vic) prohibits the use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service. 
• WA - adoption of the National Law Act under the Education and Care Services National Law (WA) Act 2012 (WA) prohibits use of corporal punishment by providers, nominated supervisors, staff members, volunteers and family day care providers of an approved education and care service.

What of primary and secondary schools? The guide comments that "There has been considerable uniformity across Australian states and territories in either explicitly banning the use of corporal punishment in schools or removing provisions in education Acts that provided a defence to the use of reasonable chastisement by people acting in the place of a parent". Queensland and South Australian statutes do not expressly state that corporal punishment is banned in schools but provisions that previously allowed for the use of corporal punishment in schools have been removed from relevant education legislation.

There remains some ambiguity in the Northern Territory, Queensland and Western Australian law, where amendments have been made to education legislation that previously allowed for the use of physical punishment, but not to criminal codes that still (in principle) give authority to a parent, or a person in place of a parent, to "use reasonable corrective force".

There is less consistency in the degree to which Australian jurisdictions have abolished the use of corporal punishment in non-government schools. New South Wales, Tasmania and Victoria are the only states where statutes clearly stipulate that corporal punishment is banned in both government and non-government schools. The Australian Capital Territory Education Act 2004 does not explicitly ban corporal punishment in non-government schools, however, the interpretation of the Act, which states that corporal punishment is banned in "all schools", is that the relevant provision applies to both. 

Statutes are as follows -

• ACT - corporal punishment is banned in "all schools" under the Education (Amendment) Act 2004 (ACT) s 7(4). 
• NSW - the Education Act 1990 (NSW) s 35 prohibits corporal punishment in government schools in NSW, extended to non-government schools under the Education Discipline Act 1995 (NSW).
• NT - the Education Amendment (Non-Government Schools) Act 2009 (NT) s 61A(m) amended the Education Act requiring that the use of corporal punishment be banned in non-government schools as part of the school registration requirements. There is currently no provision expressly banning or permitting the use of corporal punishment in government schools. The Criminal Code Act (NT) s 11 makes it lawful for teachers to use corporal punishment unless parents expressly withhold their consent to such forms of correction.
• Qld - the Education (General Provisions) Act 2006 (Qld) repealed provisions that allowed for corporal punishment in state schools.
• SA - the Education (Amendment) Act 1991 (SA) repealed provisions that allowed for corporal punishment in schools
• Tas - corporal punishment was banned in government and non-government schools under the Education Amendment Act 1999 (Tas) s 82A, specifying that school principals are responsible for ensuring that students under their care are not subjected to corporal punishment. 
• Vic - corporal punishment was banned in government schools in 1985 and banned in non-government schools in 2006 under the Education and Training Reform Act 2006 (Vic) ss 2.4.60 and 4.3.1(6)(a)
• WA - corporal punishment was banned in government schools under the School Education Act 1999 (WA). The School Education Regulations 2000 (WA) s 40(2) indicate that the ban does not extend to non-government schools.

Image Rights

In Weller & Ors v Associated Newspapers Ltd [2014] EWHC 1163 (QB) the three children of UK celebrity Paul Weller have been awarded an aggregate £10,000 damages for misuse of private information in litigation that is likely to be seen as extending image rights under UK law. Weller had sought £45,000.

Seven unpixellated photos of the children were published by Mail Online (the online presence of the London Daily Mail) in October 2012 under the headline "A family day out: Paul Weller takes wife Hannah and his twin sons out for a spot of shopping in the hot LA sun". Those images had been made by one of the Los Angeles paparazzi.

Weller sued the Mail Online publisher in the UK on behalf of his children for misuse of private information under UK law, reflecting Article 8 of the European Charter of Human Rights.

Dingemans J noted the tension between communication about matters of general concern and public interest in privacy, asking whether communication of information about public figures in this instance outweighed the right to privacy. In the absence of a compelling public need to know about the Weller family and given the ages of the children  the Mail Online’s right to publish did not prevail

the balance comes down in favour of finding that the article 8 rights override the article 10 rights engaged. These were photographs showing the expressions on faces of children, on a family afternoon out with their father. Publishing photographs of the children’s faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights, even though such a publication would have been lawful in California. There was no relevant debate of public interest to which the publication of the photographs contributed. The balance of the general interest of having a vigorous and flourishing newspaper industry does not outweigh the interests of the children in this case. 

Dingemans had stated-

It is common ground that the Claimants' claim is for misuse of private information. It is also common ground that the claim for infringement of the Data Protection Act will stand or fall with the claim for misuse of private information. It is also agreed that, in relation to the claim for misuse of private information, the first question to be asked is "whether there is a reasonable expectation of privacy", but there is a dispute about whether that needs to be "known or ought to be known" by the publisher.

If the answer to the first question is yes, and there is a relevant reasonable expectation of privacy, "the next question would be how the balance should be struck as between the individual's right to privacy on the one hand and the publisher's right to publish on the other. If the balance were struck in favour of the individual, publication would be an infringement of his or her article 8 rights, whereas if the balance were struck in favour of the publisher, there would be no such infringement by reason of a combination of articles 8(2) and 10 of the Convention", see Murray v Express Newspapers at paragraph 40.

In addition to the disagreement between the Claimants and Defendant about whether the reasonable expectation of privacy either needed to be known or should have been known to the publisher to be actionable, there is a dispute about the effect of the local law at the location in which the photographs were taken. There was also a disagreement about the proper approach to issues of damages for misuse of private information, and I will address that issue at the end of the judgment.

Given the areas of disagreement, it is necessary to set out something about the cause of action for misuse of private information before I consider the evidence. The House of Lords decided in Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406 that there is no general tort of invasion of privacy. That remains the law, see McKennitt and others v Ash and another [2006] EWCA Civ 1714; [2008] QB 73. There is no law of "image rights". Different legal jurisdictions have taken different approaches to the law in England and Wales.

After the enactment of the Human Rights Act 1998 ("HRA 1998"), claims for misuse of private information were absorbed into the established claim for breach confidence, see A v B plc [2002] EWCA Civ 337; [2003] QB 195 at paragraph 4. In paragraph 53 of Douglas and others v Hello! Ltd and others (No.3) [2005] EWCA Civ 595; [2006] QB 125 Lord Phillips said "we cannot pretend that we find it satisfactory to be required to shoehorn within the cause of action for breach of confidence claims for publication of unauthorised photographs of a private occasion".

This process of absorbing claims for misuse of private information into the cause of action for breach of confidence was undertaken to prevent the Court, as a public authority, from acting in a way which was inconsistent with rights in the European Convention on Human Rights ("ECHR") incorporated into domestic law by the HRA 1998, see A v B at paragraph 4 and McKennitt v Ash at paragraph 10.

Both articles 8 and 10 of the ECHR were therefore accommodated in the new cause of action. The House of Lords in Campbell made clear that "the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence". Article 8 of the ECHR provides that "everyone has the right to respect for his private and family life, his home and his correspondence". Article 10 provides that "everyone has the right to freedom of expression". Both articles 8 and 10 are rights which can be qualified pursuant to the respective provisions of article 8(2) and article 10(2).

It might be noted that alongside this development of the law of misuse of private information, which inevitably impacts negatively on freedom of expression, the law has also shown greater latitude towards freedom of speech in matters of controversy concerning public figures, see Jameel v Wall Street Journal [2006] UKHL 44; [2007] 1 AC 359 at paragraph 38.

This claim is an action for breach of confidence, which has been renamed as a cause of action for misuse of private information, see Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 at paragraph 14. It might be noted that the issue of whether the cause of action for misuse of private information is now a separate tort, as opposed to an equitable cause of action, is an issue to be addressed by the Court of Appeal on an appeal from the judgment of Tugendhat J. in Vidal-Hall v Google Inc [2014] EWHC 13 (QB). It is common ground that I do not need to say anything further on that issue, and I do not do so.

I have not been addressed on the debate between senior Judges in England and Wales, which has become more pronounced in recent extrajudicial lectures, about the extent to which decisions of the European Court of Human Right should be followed by domestic Courts. This is because the domestic law in this area is now based on both articles 8 and 10 of the ECHR, and it is therefore necessary to look at the judgments of the European Court of Human Rights to determine the content of both articles 8 and 10.

The Court noted

Paul Weller and Hannah Weller had referred to the fact that the photographs had been published for money, and that consent had not been obtained. Paul Weller said the complaint in this action was not about privacy it was about unauthorised photographs being taken and published of his children without any attempts at pixilation of their faces. He said he considered that: his children being followed; pictures being taken despite his asking for them not to be taken; photographs being published in a national newspaper without consent and without any attempt to hide or disguise their faces; was completely wrong. He said that just because a father is well known doesn't mean that the children should be. Paul Weller said that the primary objective in bringing this claim on behalf of the children was to ensure that it never happened again.

Paul Weller was asked about the security issues that he referred to in his witness statement. In answer to the suggestion that nothing had increased the security risk to his children, he said who knows. Paul Weller asked whether any father would like pictures of his children being published regardless. He said there might be threats when the children were out with nanny, granny or aunty. He said there was an intrusion in to his family life. He said that pixilation would make it better but it would be better still if it didn't happen. He said it was impossible to prevent paparazzi photographs and that responsibility should lie on the magazine.

Paul Weller confirmed that if he had been asked for permission to publish these photographs or the photographs that he'd shown the Sun journalist he would have replied "absolutely not". He had never done any lifestyle shoots showing the children, saying that he couldn't think of anything more "naff".

He said he wasn't promoting an image of himself. His work didn't work like that and he wasn't in showbiz. He wasn't interested in nice photos only, he just wanted no photos until the children were 16 or 18 and could make up their own minds.

Associated Newspapers, publisher of the Daily Mail and Mail Online, indicated that it would appeal -

The photographs showed nothing more than Paul Weller and three of his children out and about in public places.

There was no claim and no finding that we had followed, harassed or targeted Mr Weller or his children and no request had ever been made to pixellate the children’s faces.

Our publication of the images was entirely in line with the law in California where they were taken by a freelance photographer.

The suggestion that children have an expectation of privacy in relation to publication by the media of images of their faces when one child (now nearly 18) has modelled for Teen Vogue, images of the babies’ naked bottoms have been tweeted by their mother, and their father has discussed the children in promotional interviews is a worrying development in our law, as it has conferred unfettered image rights on all the children.

Registration

'Certifying Identity' by Annette Ruth Appell in (2014) 42 Capital University Law Review argues that the  birth certificate is

 not merely as a reporter and portable record of having been born, but also as a powerful creator, regulator, and arbiter of identity and belonging, including sex, gender, race, age, production, reproduction, and kinship. Initially a public health and children’s rights innovation, the birth certificate’s assignment of family and individual identity connects the certified person to norms, rights and limitations according to the state’s certification of the sex, race, age, parentage, and birthplace of the body born. The birth certificate is both historical and constitutive in that it creates and certifies individual identity, even when that identity is malleable or ambiguous.

This article rehearses the modern practice of recording births and the advent of the birth certificate — disciplines that imbue humans with intrinsic and instrumental value, but also create, regulate, and define individual identity through permutations of race, sex, gender, and kinship with and without the consent of the person certified. The birth certificate serves state interests in identifying, tracking, marshaling, and managing human resources. This certificate also ties the born person to the state or nation, not just in the sense that being born in the United States creates citizenship, but also as a rights-holder — someone to be counted. As such, the certificate serves as a gatekeeper for gender, family, race, legitimacy, and identity according to the birth certificate’s terms, categories, and data.

Appell concludes

Birth certificates began as a public health innovation, but have become a norm regulator and tool of social engineering: defining and regulating sex, gender, race, identity, and family. The birth certificate creates and limits identity through the establishment and codification of gender, race, parentage, and citizenship. The very fact of the birth certificate and its resoluteness in telling one story about the creation of children and families — as coital reproduction between a man and a woman — funnels human creation into the powerful norm of heterosexual reproduction. Even as law and society  win (and lose) struggles to complicate identity and the legal norms of reproduction, they remain bound to this Progressive Era accomplishment, which predates so many new reproductive and technological developments. The birth certificate might tell the genetic truth or the family truth; but in many instances the law erases the facts of children’s births and identities, leaving children and adults without a coherent or descriptive record of their births and identities.

For these reasons, the birth certificate has become a site for contests among biological, chosen, and reformed identities and about sex and sexuality, family composition, childhood, and adulthood. Moreover, less transparently, the birth certificate funnels identity into state-approved categories and relationships. Indeed, the work of the birth certificate is structural and pervasive. This is unsurprising in light of the conflicting uses of the certificate or, perhaps, its service to two masters: the person whose identity is certified and the state that both creates legal identity and ties identity to certain rights and disabilities arising out of that certificate. Thus, the the birth certificate’s role as proof of identity and the rights and obligations that flow therefrom creates inherent conflicts for the individual and the state. The birth certificate thus raises questions regarding who controls identity, what precise interest does each potential master have in that identity, and how can the state’s need to catalogue and track its citizens be disaggregated from the individual’s authority over one’s own life and relations.

These questions suggest that the birth certificate may be serving too many masters and thus seeking the certificate to do too much: to protect the rights and individuality of each person and to provide proof of one’s eligibility for rights and protections. In some way, the birth certificate sits at the intersection of the government’s parens patriae and police power. The state has an interest in protecting vulnerable subjects, but also has an interest in law and order, which suggests some need for establishing and tracking identity. However, the birth certificate is not just meaningful for the state; it is also meaningful to the person certified for those reasons and because personal identity is, well, personal and, in a liberal regime, private. After all, the state’s interest is in public health, and the state can meet that interest through birth registration information. The birth certificate’s primary import is the identification. Not surprisingly, law and society are moving toward more malleable certifications.

Possible revisions of this regime might disaggregate the birth registration data from the certificate so that the person can self-identify, even as the state creates and maintains the birth registration information. A less appealing and less private solution would be a birth passport that might reflect the changes in a person’s identity, but perhaps omit information regarding race and gender. The government could make the certificate easier to amend or leave portions of the birth certificate blank until the born person fills in the person’s own identity.

Ultimately, this Article creates more questions than it can answer. For example, with race and gender less salient as formal legal matters, is it necessary to worry so much about identifying the race or ethnicity of the parents or one’s gender or sex? Certainly, tracking race, ethnicity, age, and sex is useful from public health, planning, and related economic perspectives, but do these data need to reside on the birth certificate? Also, what precisely is the state interest in controlling individual identity? What if the state stopped tracking gender? Would that affect gender norms? If the state stopped tracking race, would that affect white supremacy or would race neutrality enlarge racial gaps? How would such changes affect self-determination and benefits?

The current system connects registration with identification, through the birth certificate, and connects the birth certificate to a series of rights, entitlements, and limitations. While this system of birth registration and certification provides vital tools for public health and protection of relationships and identity, this system may assume too much power to construct individual identity and to dictate the legitimacy of identity and relationships of individuals and families. These records also protect relationships and access to various rights, privileges, and protections. While this Article reports on the benefits that birth registration provides for children and families, some countries are moving toward biometrics to track identity. This approach seems to provide a level of certainty for the state and might reduce the state’s role in regulating individual identity, particularly naming and tracking gender, but it remains to be seen what gains and losses would emerge through and after such a transition and what might happen to gender if states established individual identity without regard to race, gender, age, and national origin.

Freakshow

As part of research for a book I have been looking at fin de siecle spectacle and freakshows in Australia.

One spectacle towards the turn of last century was 'Jo-Jo the Dog-faced Boy' (aka Fyodor Yevtishchev, 1868-1904), promoted as a hairy-faced creature supposedly "captured in the wilds of Russia, his father being like himself, as far as faces goes, a true counterpart of a Skye terrier". PT Barnum (1810-1891) - "every crowd has a silver lining" - kindly informed consumers that the boy's father was the result of an affair between a bear and a Russian peasant woman.

The Queenscliff Sentinel, Drysdale, Portarlington & Sorrento Advertiser on 15 June 1889 noted that "This marvelous curiosity is now being exhibited around the Australian colonies". Other reports indicated that Jo-Jo was doing the circuit alongside flea circuses (and the usual bearded ladies, tattooed strongmen etc) and had previously been exhibited by Barnum.

The Queensland Times, Ipswich Herald & General Advertiser 28 September 1889 page 5 stated that -

"Jo-Jo" the dog-faced boy, and the Circassian youth were on exhibition at the School of Arts Thursday last. Many people entertained the idea that the lithographs of "Jo-Jo," displayed in various parts of the town were greatly exaggerated but this is not the case. In connection with this  phenomenon, it might be interesting to state that "Jo-Jo''s father was captured in a forest, in Central Russia, at the mouth of a large cave, in which he lived and sustained himself upon berries and birds which  came within his reach. When the hunter came upon him, he made great resistance to prevent his son being taken from him and himself captured. At this time the father was supposed to be about fifty years of age, and Jo-Jo between two and three years. All means were resorted to of training the father and teaching him a language, but without effect, and he died, a savage idiot, six years after his capture. It is owing to this circumstance that no information is to hand with regard to who was Jo-Jo's mother. "Jo-Jo" however, was docile and very susceptible and was educated in the  Russian language. He was then taken on a tour and has been travelling twelve  years, having visited all parts of the world except Africa. The hair on his face is very soft and silken, bearing a great resemblance to that of a Skye terrier; while that on his head is like human  hair. His teeth are pointed, like those of the canine tribe. "Jo-Jo" can converse in four languages - Russian, French, German, and English. He is nineteen years of age. 6ft. 2in. in height and professes the Grecian Roman Catholic religion. The Circassian youth, who was likewise on exhibition, has a splendid head of rich white hair, which is 6ft. in circumference. His eyes are of a pink colour and the pupils oscillate continuously. He is twenty-two years of age, 5ft. 10in. high, and is still unmarried. He was dressed in the costume of his native land, is well educated in the English language, and plays the piano and violin well. He showed how he did up his hair when he  went out walking, and the manner in which he put it into high hat caused some amusement.  There was only a very moderate attendance during the day but in the evening there was a much larger number of visitors.

The Sydney Evening News 5 August 1889 page 8 reported that

Mr. Frank M. Clark has struck a big bonanza in the shape of Jo-Jo, the Russian dog-faced boy, now on exhibition at the Australian Waxworks, opposite the Cathedral, in George Street. Throughout the week this extraordinary freak of nature has attracted an incessant stream of visitors, one and all of whom view Jo-Jo with wonder and astonishment. There is no deception about the natural, or perhaps it should be said, unnatural growth of hair, the peculiar look in the eyes, and the canine-like incisors. Jo-Jo is inspected by the visitors, and takes it all in very good part, albeit, some of them are enough to tire the patience of Job. Added to this novel attraction is another in the performing fleas, which are evidences of what can be done with the coleopterous 'crank.' At intervals an illusion is shown in the front window in the person of a handsome young lady, apparently devoid of her lower extremities, who attracts large numbers of enchanted beholders. Last night Jo-Jo held a reception, and was visited by a crowd of spectators.

The Bendigo Advertiser 1 July 1889 page 4 reported

The passenger who attracted the most attention on the arrival of the 10.55 am train from Melbourne on Saturday was "Jo-Jo," the dog faced boy. "Jo-Jo," whose Russian name is Theodor Jedtichejew, gave his opening reception in the Masonic Hall at two o'clock, when a very excellent attendance was present. The lad has just concluded a four weeks' successful season at the Melbourne waxworks, where he received hundreds of visitors daily. "Jo-Jo's" face is covered with a long wavy mass of silken hair, which in color is between dark brown and silver grey. It hangs upon his brow down to the eyes, parting in the centre, and waving off to either side like that of a fancy terrier. It droops from his cheeks in long wavy locks, grows from his nostrils, and hangs from both ears. The length of this luxuriant growth of hair varies from two to eight inches, and it is so thick that the skin beneath is visible only in scattered spots. The eyes of this dog faced boy resemble very closely those of a terrier. They are slightly blueish in color, almost perfectly round, and the whites are visible entirely around the pupils. His mouth is furnished with only the two canine teeth above, and too incisors below, and all four are thin and sharp, resembling miniature tusks, rather than human teeth. The entire body is covered with a growth of thin light hair, but the thick heavy locks are found only on the face. "Jo-Jo" was very amiable on Saturday, allowing visitors to assure themselves that his hair was not fastened on by artificial means. He speaks Russian, French, German and English, and took great pride in showing that he could write his name, by signing it to the back of  pictures in large flowing characters. "Jo-Jo's" father was of the same peculiar race, but described as a wild man, and the two were exhibited together until the elder "Jo-Jo" died some three years ago. "Jo-Jo" the dog-faced boy is a most marvelous freak of nature. Professor Ubini's performing fleas quite took everyone by surprise, and the way these little mites go through the ordinary course of manual labor was altogether marvelous, and must be seen to be believed. Professor Tregaski, "Mythia," and "Ihdas" the Gipsy Queen, and the Circassian youth, made up a very clever and extraordinary exhibition. Mr. Clark's novelty company and "Jo Jo" will appear at the Masonic Hall every day till Friday night from 11 to 1, 2 to 5, and 7 till 10.30 pm, and will no doubt be visited by very large numbers, as the exhibition is well worth witnessing.

Sixty years later The Picton Post 12 February 1941 page 4 reported on another celebrity -

'JO-JO' GOES A PICNICING - TURMOIL IN BERRY HOME

Captain Davis, the well-known sideshow proprietor, who was 'doing' the Berry Show with his dog and monkey show, was called upon to part with 10/ that he had not budgeted for, says 'The Register.' It was all brought about because of, the meandering of the ourang-outang, Jo-Jo, before any members of the show were awake. Jumping the showground fence, Jo Jo selected Mr. A. T. Watson's residence, just across the street, as the most likely place to fill up, and so into the kitchen he went and invited himself to a tin of sugar. Having polished off the contents of the tin, Jo-Jo hopped into the laundry, where he partook of a supply of vegetables, But it was while in the laundry that he brought about the disapproval of the head of the house, because he pumped the contents of a tin of kerosene all over the floor. What a picture Jo-Jo must have presented as he ate onions and tomatoes as he pumped away at the kerosene. Having eaten everything he could find there, his next call was paid to the fowl house, where he scaled a high fence, and here he had a great party. Climbing a pole, he came across a tin of eggs, which he polished off in no time.

END OF THE PARTY

Jo-Jo's presence caused a sensation among the poultry, and so, after eating all the eggs, he next found a tree of luscious peaches — and was sampling these when he was discovered. By this time the whole Watson household was awakened, and Mrs. McKenzie went in search of the owner of the ape, while the two little girls — Mr. Watson's grandchildren — thought it was a great joke, and made friends with Jo-Jo by patting him on the head.

QUIET AS A LAMB

Captain Davis assured all concerned that the ape was as quiet as a lamb, and took him back to the tent without any trouble. Mr. Watson said he did not ask for any payment for the eggs, fruit and vegetables that Jo-Jo consumed, but thought it only a reasonable request for 10/ for the tin of kerosene, which was handed over by the captain without a murmur of disapproval. When we called on Captain Davis we were told that Jo-Jo often takes a stroll, and on one occasion he walked into a fruit shop, where the lady of the shop was pasting some paper on the wall, but when she saw the ape she dropped the brush and ran for her life. Jo-Jo immediately picked up the discarded brush and began splashing the paste on the wall. When the woman's nerves returned to her she re-entered the shop and yelled at Jo-Jo to 'put down the brush and go outside.' He complied, but as he did so he took an apple in each hand before walking oat of the door. Jo-Jo is 18 years old, and was bred by Captain Davis, who says he is worth his weight in gold, because he is a most intelligent animal, able to do anything but talk.

Jurisprudence

'Why Jurisprudence Is Not Legal Philosophy' by Roger Cotterrell in (2014) 5(1) Jurisprudence seeks to

describe and defend jurisprudence as an enterprise of theorising about law that is distinct from what is now understood as legal philosophy in the Anglophone world. Jurisprudence must draw on legal philosophy but also from many other resources. It should be an open quest for juristically (rather than philosophically) significant insights about law. Its purpose is to inform and guide the juristic task of making organised social regulation a valuable practice, rooted and effective in the specific contexts and historical conditions in which it exists but also aimed at serving demands for justice and security through regulation, as these perennial values are understood in their time and place, and as they might be further clarified and reconciled as legal ideals.

'Law as Language' by Marianne Constable in (2014) 1(1) Critical Analysis of Law proposes

understanding law as language. Doing so offers an alternative both to jurisprudential accounts of law as a system of rules and to sociological accounts of law as effective (or ineffective) social power. Part II shows how approaching law as language takes doctrine and legal texts seriously, as speech acts of claiming that do things, rather than as nounlike rules or their application. Such an approach recognizes that legal actions or events of claiming are “imperfect” in a grammatical sense: practical knowledge of law is incomplete, continual and interruptible, while legal acts occur more and less well under particular conditions. Understanding law this way, part III shows, also enables one to critique narrow approaches to law as “policy” or as exclusively a problem-solving tool or instrument. The paper not only argues that law may be thought of as language then. It ultimately suggests another law: that we are creatures of language. 

Constable argues

Jurisprudence, legal history, and other humanistic disciplines have over the centuries of- fered a range of insights into the perennial questions of what to do or how best to live, how we know, and who we are. In so doing, philosophy (Plato), rhetoric (Vico), and social theory (Montesquieu), as well as history and literature, have often questioned the justice of law. That they have done so suggests that law has been taken — or has offered itself — as a site of justice or at least as a site in which issues of justice can be addressed. 

Today, as professional law schools turn increasingly to economics and the empiri- cal social sciences to deal with social problems that they would solve through what they call “policy,” the relation of law as policy-making to traditional humanistic accounts of justice and how it is addressed becomes an issue, even as the relevance of the humanities and of humanistic studies to professional legal study is brought into question. The rise of law and economics, combined with the marginalization of critical studies and even social theory in professional law schools in the U.S., means that law seeks to become ever more “rational,” while sociolegal research becomes increasingly bound to the methodological requirements and outcomes of statistical empirical research. Policy-makers today address questions about what to do through problem-solving approaches that rely on economic and statistical methods and frameworks and tacitly foreclose particular sorts of answers — and even questions. 

Some legal scholars still turn explicitly to humanities over social sciences to improve law in a particular way. They sometimes suggest that law “needs” the humanities, that the humanities are the conscience of law, that the humanities can make law — or that humanists can teach law to be — more honest and good. The humanities are not a religion, though. Humanists are not moralists, priests, nor even judges to be turned to for guidance, absolution, or pronouncements of justice. So what do the humanities offer law? 

This paper proposes that if we continue insisting on “the humanities” (itself a question), then the humanities can be said to be characterized by a sensitivity to language, broadly understood, in readings (or interpretations or analyses) of texts and images and other cultural and historical artifacts. The attention paid to language in basic legal education itself suggests that law already belongs in the domain of the humanities. Thinking about law as language need not be identified with a particular field nor even with a set of approaches dubbed “law and humanities,” however. Furthermore, that humanists interpret does not mean that they do not make arguments. Indeed, the argument pursued here is that modern law is fundamentally a matter of language and that there are some things one cannot understand about law if one does not understand language — and the limits of speech. 

This argument challenges the claims of legal philosophers and social scientists that law is fundamentally a matter of coercion or of social power. The point that law is a matter of language is not a return to the privileging of doctrine, however. It also goes beyond simply claiming that to engage in the practice of U.S. or Canadian law at this time, one must have some facility in reading, writing, and speaking the English language. It emphasizes in part what legal practitioners certainly know: that words do a lot of different things that are generally described philosophically as “speech acts.” Practitioners develop, to varying degrees, the skills required to carry out legal acts which, to be successful, must fulfill particular conditions. Legal practitioners also know, as well as humanists, that language, however beloved or despised, is always susceptible to going wrong. As practitioners of language, practitioners of law must become adept at using words and at judging what words say. The imperfections of law correspond at least in part to the imperfections of language. Words promise truth. They ostensibly show us the world as it is. Words can be misspoken, misheard, and misunderstood, though. Words can be inappropriate or misappropriated, deceptive, inaccurate, or wrong, even downright dangerous. So too can law and legal claims. 

The first section (part II) shows how law corresponds with various aspects of language. One distinguishes particular utterances or speech acts from practical knowledge of language. Such knowledge is, in a grammatical sense, “imperfect.” The imperfect names the incomplete, continuous, ongoing, routine, habitual, interruptible aspect of action, as in, “She is running every day, except when it rains” or “We were speaking English when we made the agreement.” The “perfect” refers to a completed act: “She ran” or “It rained” or “We spoke” or “We agreed.” As in language, so too in law, one can distinguish perfected or completed legal acts or events from an “imperfect” or ongoing tradition of background practical knowledge. The second section (part III) shows how the language of modern law reveals in- sights into who we—as problem-solvers—are and what we know, as well as into what we do. Attending to law as language, the paper concludes, may provide entry into fresh ques- tions about the nature of modern law and justice, an issue that far too many contempo- rary philosophers and scholars of law take for granted.

Murderabilia

'Overkill: An Exaggerated Response to the Sale of Murderabilia' by Ellen Hurley' in (2009) 42(2) Indiana Law Review 411 comments

 On May 24, 2007, U.S. Senator John Comyn of Texas introduced a bill that would make it illegal for any prisoner who is incarcerated in a federal or state prison to deposit any object for delivery or for mailing with the intent that the object be placed in interstate or foreign commerce. Violation of the proposed "Stop the Sale of Murderabilia to Protect the Dignity of Crime Victims Act of 2007" carries a sentence of at least three years and a maximum often years to run consecutively to a prisoner's current sentence. Andy Kahan, the director of the Houston Mayor's Crime Victims Office, lobbied the Senator to introduce the bill. 

Kahan, a nationally known advocate for crime victims, learned about the practice of buying and selling memorabilia associated with serial killers as early as 1999. He "launched a crusade to wipe it out, state by state, as an affront to crime victims.'" Kahan's passion stems from his concern for people like Harriett Semander, whose daughter was murdered by Coral Eugene Watts, a confessed killer of thirteen women. Semander learned that items associated with Watts, "like letters and envelopes with his handwriting" were being sold on "Internet sites that specialize in merchandise from convicted felons." 

Senator Comyn seeks to prevent the sale of items associated with criminals by blocking them at their source — the prison gates. This is a new approach to the old problem of criminals profiting from their crimes. Many anti-profiting laws aimed at criminals, particularly the so-called "Son of Sam laws" which target proceeds derived by criminals from the sale of the depiction of their crimes, are constitutionally defective. 

This Note discusses whether the proposed "Stop the Sale of Murderabilia to Protect the Dignity of Crime Victims Act of 2007" resolves the constitutional problems of past anti-profiting legislation without creating new problems of its own. Part I explains what "murderabilia" is and what policy reasons justify banning its sale. Part II gives an overview of Son of Sam laws and other anti-profiting legislation, and discusses the constitutional problems they have faced. Part III analyzes Senator Comyn's bill, and compares it to past legislation that courts have found unconstitutional, to determine whether the bill, if passed, would withstand constitutional challenge. Part IV discusses some possible negative ramifications of the bill. Finally, Part V evaluates the approaches that some states have taken, as well as approaches that others have suggested, to accomplish the dual goals of compensating victims and preventing criminals from profiting from their crimes without violating prisoners' constitutional rights. Part V asserts that some combination of these other approaches is far superior to Senator Comyn's proposed bill.

'Crime Shouldn’t Pay: A Proposal to Create an Effective and Constitutional Federal Anti-Profiting Statute' by Paul G. Cassell in (2006) 19(2) Federal Sentencing Reporter 119-124 comments -

 It is conventional wisdom that crime should not pay. Current federal law reflects that wisdom by allowing courts to forfeit any profits a criminal receives from a crime. For example, if a defendant gets a book deal for describing his federal crime, a court is statutorily authorized (at the request of a prosecutor) to forfeit all the money the defendant would make under the deal. Unfortunately, this existing law is unconstitutional. The law targets only certain forms of profiting that raise First Amendment concerns — such as writing books or making movies — rather than responding to profiting in a facially neutral way. 

It would be an embarrassment to the federal justice system if criminals were able to profit from their crimes merely because no one had taken the time to draft an effective prohibition. On September 19, 2006, the Judicial Conference of the United States urged Congress to fix the problem in the current statute. Congress could easily block profiting in two ways. First, Congress could require courts to include a prohibition of profiting as a standard, mandatory condition of supervised release at all federal sentencings. The term of supervised released should extend for a lengthy period of time, to the life of the criminal if needed. And, second, Congress could redraft the federal anti-profiting statute so that it forbids all profiting from federal crimes — not just profiting through expressive activities. Such a statute would satisfy First Amendment concerns while ensuring that crime will not pay for criminals in the federal system.

'Rethinking Murderabilia: How States Can Restrict Some Depictions of Crime as They Restrict Child Pornography' by Joseph C. Mauro in (2011) 22 Fordham Intellectual Property, Media & Entertainment Law Journal 323 argues -

Murderabilia refers to items whose commercial value stems from their relation to a notorious crime or criminal. To protect victims of crime from psychological harm, most states have passed laws restricting the sale of murderabilia. Many of these laws have been challenged on First Amendment grounds, and observers consider them to be of questionable constitutionality. 

I propose that the constitutional framework allowing states to restrict child pornography can solve this problem. In New York v. Ferber, the Supreme Court held that states may restrict child pornography as speech, without regard to its First Amendment value, because it is “intrinsically related” to crime in two ways - it creates an economic incentive to commit child abuse (to produce child pornography) and its circulation harms child victims by forcing them to recall their experiences. The same rationale applies to murderabilia, because it creates an economic incentive to commit crime and its circulation harms crime victims. 

Nevertheless, considering the range of speech that can be considered murderabilia - from bags of dirt to abstract paintings - laws that restrict murderabilia are more likely to run afoul of the First Amendment than child pornography laws. Therefore, murderabilia laws must be strictly limited to the most harmful crimes, the most vulnerable victims, and the least expressive types of murderabilia. With properly limited laws, states should be free to restrict murderabilia as they restrict child pornography under Ferber.

'Taking the Assets of Criminals to Compensate Victims of Violence: A Legal and Philosophical Approach' by Roy Whitehead and Walter E. Block in (2003) 5 Journal of Law and Society comments

Over 30 years ago, New York was terrorized by a serial killer, David Berkowitz, who was immortalized by the media as the "Son of Sam."' By the time Berkowitz was apprehended, publicity about the case had created enormous monetary value in the publication rights to his criminal story. New York's appalled legislature sought to prevent Berkowitz and other criminals from exploiting for profit the tales of their sensational crimes while their victims remained uncompensated. The statute resulting from the legislature's praiseworthy efforts to strip the criminal of his crime related profits and compensate the victim was called the "Son of Sam Law." Its efforts are praiseworthy because criminals should not profit from their violence against victims and surely victims deserve to be compensated for injuries caused by criminal violence. Today, over 40 states, including California, have some form of the "Son of Sam" law. The New York law provided that if any person "accused or convicted of a crime in this state" was "due money under contract with respect to a re-enactment of the crime by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, or live entertainment of any lund," or for expressions of a person's thoughts or feelings about the crime, the contract must be reported to the New York State Crime Victims Board, and the money due must be paid over to the board and placed in an escrow account, primarily for the benefit of victims who, within five years thereafter, won money judgments against the criminal.' Convicted persons included those who had "voluntarily and intelligently admitted" crimes for which they were not prosecuted. 

We contend that all people who abhor violence should favor stripping the criminal of his profits and compensating the hapless victim. To that end we explore the recent California case, which we call "Son of Sinatra," to discover a constitutionally pleasing way to accomplish this result. We discuss the constitutional problems that arise when states set out to seize assets of the criminal that have a connection with his storytelling about the crime. Often, the attempt fails because of the application of the First Amendment of the U.S. Constitution as applied to the states by the Fourteenth Amendment. The state of California is one of those jurisdictions that seek to relieve the criminal of his ill gained profits and to attach the assets of the criminal to compensate the victim. The "Son of Sinatra" case arose from a 1962 conspiracy. Keenan, Amsler and Irvin

kidnapped Sinatra, Jr., from his Nevada hotel room and drove him to Los Angeles, where he was held until his father paid a ransom. During his captivity, Sinatra, Jr., suffered economic loss, physical suffering, and emotional distress. Keenan, Amsler, and Irwin were later apprehended, tried, convicted of felony offenses, and incarcerated under California law. Following their arrests, the kidnappers made media statements, since admitted to be false, that Sinatra, Jr., had conspired in his own kidnapping to extract money from his father. These defamatory statements caused further damage to Sinatra, Jr.'s business and reputation.

Years later, the kidnappers contacted a New Times Los Angeles reporter named Gilstrap to set up an interview concerning the kidnapping.

The purpose was to produce a story for sale to print, broadcast, and film media. Monies derived from exploiting the kidnapping story would be split among Gilstrap, New Times, and the kidnappers. An article entitled 'Snatching Sinatra', authored by Gilstrap, appeared in a January 1998 issue of New Times Los Angeles. In late January 1998 and thereafter, other magazines reported that Columbia Pictures had bought the motion picture rights to 'Snatching Sinatra' for up to $1.5 million. In February 1998, citing section 2225, Sinatra, Jr., made demand on Columbia Pictures to withhold from the kidnappers, and from Gilstrap and New Times as the kidnappers' "representatives," any monies otherwise due such persons or entities for the motion picture rights. Columbia Pictures refused to do so without a court order. 

The complaint asserted that under section 2225, all monies due to the kidnappers, or to their "representatives" Gilstrap and New Times, for preparation for sale of the story of Sinatra, Jr.'s, kidnapping, the sale of the rights to the story, or the sale of materials that included or were based on the story, were "proceeds" as defined by subdivision (a)(9) and "profits" as defined by subdivision (a)(10), and were thus subject to an involuntary trust in favor of Sinatra, Jr., a statutory "beneficiary" (id., subd. (a)(4)(A)). The complaint sought an order that the defendants, particularly Columbia Pictures and New Times, hold such present and future proceeds and profits in trust for Sinatra, Jr. It also sought an injunction to (1) prevent Columbia Pictures and New Times from paying such proceeds and profits to any other that all such payments be made instead to Sinatra, Jr., to the extent of his damages or, in the alternative, to the superior court for distribution for the benefit of the victims of the kidnapping."

Having praised such attempts by the states to deny any profits from their crimes to such criminals, we nevertheless are compelled to explore the possible constitutional infirmities of the California equivalent of the New York "Son of Sam Law." The first prong of the California statute "imposes an involuntary trust, in favor of damaged and uncompensated crime victims as "beneficiaries" on a convicted felon's 'proceeds' from expressive 'materials' (books, films, magazine, and newspaper articles, video and sound recordings, radio and television appearances, and live presentations) that "include or are based on the 'story' of a felony for which the felon was convicted, except where the materials mention the felony only in passing as in a footnote or bibliography." 

The second prong of the California statute deals with "things sold for their felony-related notoriety value." This part of the law concerns profits from "rights" or "things" that have enhanced value due to "notoriety gained from the commission of a felony for which a convicted felon was convicted . This provision applies to criminals, their agents and, in some cases, "profiteers of the felony" or people who make money by selling things or rights related to a crime. 

The "Son of Sinatra" case raised the primary issue of whether California's law "facially violate[d] constitutional protections of speech by appropriating, as compensation for crime victims, all monies due to a convicted felon from expressive materials that include the story of the defendant, and (2) require crime." In order to decide the question, the California court turned to the controlling U.S. Supreme Court decision in Simon & Schuster, Inc. v. Members of NY State Crime Victims Board . T'here, the New York statute "confiscated, for the benefit of crime victims, all monies a criminal was due under contract with respect to a 'reenactment' of the crime, or from the expression of his or her personal thoughts or feelings about the crime, in a film, broadcast, print, recording, or live performance format." The high court determined that the NewYork law was invalid on its face 

Finding the New York law facially invalid, the Simon & Schuster majority reasoned that the statute, as a direct regulation of speech based on content, must fall unless it satisfied a strict level of constitutional scrutiny. The New York law failed this test, said the majority, because although the state had a compelling interest in compensating crime victims from the fruits of crime, the statute at issue was not narrowly tailored to that purpose. The flaw most clearly identified by the Simon & Schuster majority was that the New York statute was overinclusive. The majority noted two respects in which the New York law regulated speech too broadly for its compelling purpose. First, the law applied to expressive works in which one merely admitted crimes for which he or she had not been convicted. Second, it confiscated all profits from expressive works in which one made even incidental or rangential mention of his or her past crimes for non exploitative purpose.

The Keenan court likewise held that California's Son of Sam law imposed a content-based restriction on free speech:

Like its New York counterpart, [it] fails to satisfy strict scrutiny because it, too, is overinclusive. Section 2225(b)(l) contains the  fundamental defect identified in Simon & Schuster; it reaches beyond a criminal's profits from the crime or its exploitation to reach all income from the criminal's speech or expression on any theme or subject, if the story of the crime is included.

In Simon & Schuster, six justices, in an opinion by Justice O'Connor, noted that a statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." The majority was clearly concerned that "the government's ability to impose content-based burdens on speech raises the specter that the government may effectively drive protected ideas or viewpoints from the market place."" The majority reasoned that the "First Amendment presumptively places this sort of discrimination beyond the power of the government."   

New York's Son of Sam Law was presumptively an invalid content-based burden on speech. "[The law] singles out income derived from expressive activity for a burden the state places on no other income and it is directed only at works with a specified content. . . .  [Therefore, it] plainly imposes a financial disincentive only on speech with a particular content." Because the "Son of Sam" statute penalizes speech on the basis of content, the high court concluded that it could survive constitutional scrutiny only if the state shows that "its regulation is necessary to conserve a compelling state interest and is narrowly drawn to achieve that end." 

The high court continued by indicating that the state had no com- pelling interest in shielding readers and victims from negative emotional responses to a criminal's public retelling of his deeds. This is so because the protection of offensive and disagreeable ideas is at the core of the First Amendment. Constitutionally, states do have a compelling interest in "insuring that victims of crime are compensated by those who harm them", and "preventing wrongdoers from dissipating their assets before the victims can recover." Additionally, the state has a legitimate interest in "ensuring that criminals do not profit from their crimes," and in transferring the fruits of the crime from the criminals to their victims. 

New York asserted a compelling interest in preventing criminals from retaining the profits of storytelling about their crimes before their victims were compensated. However, as the high court said, the state did not show why it had a "greater interest in compensating victims from the proceeds of such 'storytelling' than from [reaching] any of the criminal's other asset." The state was also unable to justify "a distinction between this expressive activity and any other activity in connection with its interest in transfemng the fruits of crime from criminals to their victims." The majority reached two conclusions. First, that "the State has a compelling interest in compensating victims from fruits of the crime." Second, that the State has "but little if any interest in limiting such compensation to the proceeds of the wrongdoer's speech about the crime."   

Second, the high court then determined that the statute was significantly overinclusive. It cited two factors that illustrated the statute's overbreadth: 

(1) "[The statute applies to works on any subject, provided that they express the author's thoughts or recollections about his crime, however tangentially or incidentally;" and (2) "[The statute's broad definition of 'person convicted of a crime' enables the Board to escrow the income of any author who admits in his work to having committed a crime, whether or not the author was ever actually accused or convicted."

To illustrate the overbreadth of the two provisions, the court discussed several works of literature that would potentially fall within the provisions of the New York law. The court reasoned that:

Had the Son of Sam law been in effect at the time and place of publication, it would have escrowed payment for such works as The Autobiography of Malcolm X, which describes crimes committed by the civil rights leader before he became a public figure; Civil Disobedience, in which Thoreau acknowledges his refusal to pay taxes and recalls his experience in jail; and even the Confessions of Saint Augustine, in which the author laments "my past foulness and the carnal corruptions of my soul," one instance of which involved the theft of pears from a neighboring vineyard. … works by American prisoners and ex-prisoners, many of which contain descriptions of the crimes for which the authors were incarcerated, including works by such authors as Emma Goldman and Martin Luther King, Jr. A list of prominent figures whose autobiographies would be subject to the statute if written is not difficult to construct: The list could include Sir Walter Raleigh, who was convicted of treason after a dubiously conducted 1603 trial; Jesse Jackson, who was arrested in 1963 for trespass and resisting arrest after attempting to be served at a lunch counter in North Carolina; and Bertrand Russell, who was jailed for seven days at the age of 89 for participating in a sit-down protest against nuclear weapon.  

The majority was clearly troubled by the possibility that the "Son of Sam" law threatens a wide range of protected literature. Some of that threatened literature might not enable a criminal to profit from his crime.

Anxieties

'Spaces of Male Fear: The Sexual Politics of Being Watched' by Sarah E. H. Moore and Simon Breeze in (2012) 52(6) British Journal of Criminology 1172-1191 is described as

a contribution to the sparse literature on the ethnography of fear. Using observation and focus groups, we compare men and women’s perceptions of danger in relation to a specific civic space — public toilets. Here, it is men, rather than women, who express a marked concern about the threat of physical assault. We attempt to understand the nature and social origin of this fear, and its relationship to the arrangement of space. In so doing, we help sketch out what Tuan (1979) called ‘landscapes of fear’. Places that take us outside of, or lie at the margins of, regular social space can be particularly fear-inducing. Civil inattention is a core means of dealing with this problem and we analyse its functions in allaying fear. We also suggest that spaces in which private behaviour can be surreptitiously surveyed or where there is an indeterminate relationship between private and public space can prompt a pernicious sense of worry. Indeed, being watched and being mistakenly perceived to be watching emerge from our data as really important correlates of fear of violence. We employ Sartre, Berger and Mulveys’s ideas about the gaze to analyse the psychosocial effects of this. Finally, we stress the importance of seeing the experience of fear — including its relationship to spatial arrangement — as socially contingent. The discussion section of this paper suggests that we understand men’s fear of violence in public toilets as a reaction to what Turner calls an ‘inter-structural’ social situation, namely the temporary suspension of the usual gender hierarchy. … 

This article attempts to account for men and women’s different perceptions of danger in public toilets, focusing in particular on men’s fear of violence. We detail and discuss men’s fears about being watched and made the object of sexual desire. In theorizing the role of gender in this, we have found certain theories of artistic representation particularly useful, specifically John Berger’s (1972) work on the female nude and Laura Mulvey’s (1975) writing on the ‘male gaze’ in Hollywood cinema. For both, the structure of watching and being watched is key to the operation of patriarchal society. In relation to our findings, we consider the conditions under which men fear being watched and what this tells us more generally about the relationship between gender, fear of violence and public space. 

A key aim of the article is to contextualize fear and attend to the experience of unease associated with threats of violence. We look at displays of ‘civil inattention’ to cope with such threats, feelings of shame associated with being made an object of sexual interest and the importance of boundary control in alleviating fear. Fear of crime literature, vast as it is, very rarely attempts to document and dissect fear in this way. Nor does it pay particular attention to the public spaces that excite fear. Fear of crime is treated instead as a trait, an invention of social surveyors or, in the case of more recent scholarly work, as an expression of gender identity. Ours is an exercise in taking fear seriously.

Personality Rights

Post-mortem personality rights?

Today's Melbourne Age features an item about inclusion of a national serviceman's name on the Australian War Memorial's Roll of Honour, contrary to the wishes of his family.

Private Dallas Abbott died on active service in 1968. His family was reportedly opposed to Australian involvement in the Vietnam conflict, with his father reportedly characterising the death as "legalised murder".

The family was contacted by the AWM in the early 1970s to check Abbott's full name for official memorialisation on the Roll. The Age comments that

While the War Memorial's contact with the Abbotts was never to ask permission to use Dal's name (there is no legal requirement to do so), the Abbotts took the opportunity to suggest that they would rather his name not be included on what is arguably the nation's most powerful military symbol.

The War Memorial Council acquiesced and a space was left where Private Abbott's name would have been.

That this arrangement was always considered to be temporary is made clear in freedom-of-information documents requested by the Abbott family, copies of which have been obtained by Fairfax Media. Minutes from the meeting of the War Memorial's board of trustees on September 4, 1973, on the original decision not to include Abbott's listing, note ''a blank space should be left on the panel where Abbott's name would otherwise have been … the object of the board being that later, at an appropriate stage, the names can be added to the roll …'' The board's ultimate position to leave Dal Abbott's name unmemorialised until ''an appropriate stage'' even if family members still wished otherwise, was based on the view that it was likely all those who had died ''would wish their names to be commemorated … alongside those of their mates''.

Last year the family was informed that  Abbott's name was to be added to the roll, apparently reflecting lobbying by ex-service associations.

One representative is reported as commenting, when asked about his views on the family's position : ''I don't give a shit about them. It's nothing to do with them. It's about his sacrifice.'' Another representative is quoted thus

 ''Responsibility [for official commemoration] lies with government, not with a family or group of people.''

Family views, he says, should be no barrier. ''If the family objects, then so be it.'' 

The Age notes that the Council of the AWM, an entity established under the Australian War Memorial Act 1980 (Cth), is the sole arbiter in relation to the listing on the Roll. The Act  is silent on the Roll, with no direct reference to the use of the names and details of people for the purposes of commemoration.

Last year's letter to the Abbott family stated that

The current council felt that after 45 years, it was time for his sacrifice and life to be remembered and honoured by the nation.

The Age comments

 The act does not refer to the roll, so there is no mention of such a time period, either. Could the War Memorial council's feeling that ''it was time'' be connected to the death of Abbott's last living parent in 2012? Was Abbott destined to be honoured whatever his family thought? His story, and that of his family, while obviously rare, points to a possible grey area in the rights of families of ex-servicemen and women killed in action. [Abbott's sister Lynne] Peterson agrees that this case suggests the federal government and such bodies as the War Memorial have assumed the right to take possession of aspects of personal history and family memory in the interests of national military commemoration and recognition. ''That's what they do all the time,'' says Peter Stanley. ''In this particular case they have repudiated the family's wishes and I believe they were wrong.'' ...

Peterson says it is time the legislation surrounding commemoration of Australia's war dead - for example the Australian War Memorial Act - is amended to stipulate just what rights government bodies and family members have in relation to next-of-kin killed on active duty and how they may be included in the War Memorial's and others' commemorations. It would, she says, ''make it more dignified and rational than what we've been through. It would give people in our situation clarity.