Forgetting

From the report by the Advisory Council to Google on the Right to be Forgotten -

We were invited, as independent experts, to join the Advisory Council to Google on the Right to be Forgotten following the Court of Justice of the European Union’s ruling in Google Spain and Inc. vs. Agencia Española de Protección de Datos (AEPD) and Mario Costeja Gonzalez C131/12 (“the Ruling”) in May 2014. Google asked us to advise it on performing the balancing act between an individual’s right to privacy and the public’s interest in access to information.

This report summarizes our advice to the company, which is based on several inputs:

• our expertise; 

• our own independent views and assessments; 

• evidence we heard from experts around Europe during our seven-city tour, some of whom were critical of the Ruling and others of whom argued that the Ruling came to good conclusions; 

• input provided by Internet users and subject matter experts via the website www.google.com/advisorycouncil/; 

• other materials we have reviewed, including European Court of Human Rights case law, policy guidelines of news organizations, and the Article 29 Working Party’s Guidelines on the Implementation of the Ruling adopted on 26 November 2014. ... 

We were convened to advise on criteria that Google should use in striking a balance, such as what role the data subject plays in public life, or whether the information is outdated or no longer relevant. We also considered the best process and inputs to Google’s decision making, including input from the original publishers of information at issue, as potentially important aspects of the balancing exercise.

We have found the public discussion around the Ruling to be a valuable contribution to an ongoing general debate about the role of citizen rights in the Internet. If nothing else, this Ruling and the discussion around it have raised awareness of how to protect these rights in a digital era. We hope the recommendations that follow continue to raise that awareness.

2. Overview of the Ruling

The Ruling has been widely referred to as creating a “Right to be Forgotten.” This reference is so generally understood that this Advisory Council was convened to advise on the implementation of this right. In fact, the Ruling does not establish a general Right to be Forgotten.

Implementation of the Ruling does not have the effect of “forgetting” information about a data subject. Instead, it requires Google to remove links returned in search results based on an individual’s name when those results are “inadequate, irrelevant or no longer relevant, or excessive.” Google is not required to remove those results if there is an overriding public interest in them “for particular reasons, such as the role played by the data subject in public life.”

Throughout this report, we shall refer to the process of removing links in search results based on queries for an individual’s name as “delisting”. Once delisted, the information is still available at the source site, but its accessibility to the general public is reduced because search queries against the data subject’s name will not return a link to the source publication. Those with the resources to do more extensive searches or research will still be able to find the information, since only the link to the information has been removed, not the information itself.

The legal criteria for removing content altogether from the underlying source may be different from those applied to delisting, given the publisher’s rights to free expression. If Google decides not to delist a link, the data subject can challenge this decision before the competent Data Protection Authority or Court.

3. Nature of the Rights at Issue in the Ruling

The Ruling should be interpreted in light of the rights to privacy and data protection, as well as rights to freedom of expression and access to information. By referring to these rights, we invoke the conceptual frameworks established in various instruments that outline and enshrine fundamental freedoms and rights in Europe.

The right to privacy is enshrined in Article 7 of the Charter of Fundamental Rights of the European Union (henceforth the Charter) and in Article 8 of the European Convention on Human Rights (henceforth the Convention). It affirms respect for private life and freedom from interference by the public authorities except in accordance with the law.

The right to data protection is granted by Article 8 of the Charter. It ensures that data are processed fairly, for specified purposes, and on the basis of consent or some other legitimate basis laid down by law. It also ensures that data which have been collected can be accessed and rectified. Privacy and data protection are fundamental rights.

Freedom of expression and information are enshrined in Article 10 of the Convention and Article 11 of the Charter. These rights establish that expressing ideas and holding opinions as well as receiving and imparting information and ideas, regardless of frontiers, are fundamental rights.

The Ruling invokes a data subject’s right to object to, and require cessation of, the processing of data about himself or herself. This right exists regardless of whether the processing at issue causes harm or is prejudicial in some way to the data subject.

The Court of Justice of the European Union (CJEU) noted in the Ruling that the data subject’s fundamental rights “override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.”  However, the Court acknowledged that, for particular reasons, the public will have an interest in continued ability to find the link by searching on the data subject’s name. Therefore, the operator of the search engine is directed to engage in a balancing test to determine whether the data protection rights of the data subject are outweighed by “the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.” The question of whether the data subject experiences harm from such accessibility to the information is in our view relevant to this balancing test.

Assessing harm to the data subject must be done on an ethical, legal, and practical basis, which can be understood based both on CJEU case law interpreting the Charter and on European Court of Human Rights (ECHR) case law interpreting the Convention. The scope of rights and harms outlined in Article 8 of the Convention have been well analyzed and developed in case law outside the data protection context, particularly law concerning defamation and privacy claims.  The animating values in those cases often concern personal honor, dignity, and reputation as well as the protection of sensitive or intimate personal information. Similar values animate the case law that bounds the scope of data protection rights under Article 8 of the Charter. As a result, the Ruling should be read in light of this ongoing dialog between the CJEU and the ECHR, and, where relevant, case law of national higher courts, delineating the scope of, and relationship between, privacy and expression rights. The ruling, while reinforcing European citizens’ data protection rights, should not be interpreted as a legitimation for practices of censorship of past information and limiting the right to access information.

4. Criteria for Assessing Delisting Requests

We identified four primary criteria on which we advise Google to evaluate delisting requests from individual data subjects. None of these four criteria is determinative on its own, and there is no strict hierarchy among them. Furthermore, social or technical changes may cause these criteria to evolve over time.

4.1. Data Subject’s Role in Public Life

As explicitly noted in the Ruling, the role an individual plays in public life will weigh on the balancing act Google must perform between the data subject’s data protection rights and the public’s interest in access to information via a name-based search. The first step in evaluating a delisting request should be to determine the individual’s role in public life. These categorizations are not in themselves determinative, and some evaluation along the other criteria laid out below is always necessary. However, the relative weight applied to the other criteria will be influenced by the role the individual plays in public life.

In general, individuals will fall into one of the following three categories:

• Individuals with clear roles in public life (for example, politicians, CEOs, celebrities, religious leaders, sports stars, performing artists): delisting requests from such individuals are less likely to justify delisting, since the public will generally have an overriding interest in finding information about them via a name-based search.

• Individuals with no discernable role in public life: delisting requests for such individuals are more likely to justify delisting.

• Individuals with a limited or context-specific role in public life (for example, school directors, some kinds of public employees, persons thrust into the public eye because of events beyond their control, or individuals who may play a public role within a specific community because of their profession): delisting requests from such individuals are neither less nor more likely to justify delisting, as the specific content of the information being listed is probably going to weigh more heavily on the delisting decision.

Data subjects related to individuals playing a role in public life present some interesting edge cases, as they may themselves play a role in public life which can be significant. However, in similar cases, special attention should be paid to the content of the delisting request, as the data subject’s public role may be circumscribed. For example, there may be a strong public interest in information about nepotism in family hiring. 

4.2. Nature of the Information 

4.2.1. Types of information that bias toward an individual’s strong privacy interest 

1. Information related to an individual’s intimate or sex life. 

In general, this information will hold increased weight of privacy rights in the balancing test against public interest. The exceptions will generally be for individuals who play a role in public life, where there is a public interest in accessing this information about the individual. 

2. Personal financial information. 

Specific details such as bank account information are likely to be private and warrant delisting in most cases. More general information about wealth and income may be in the public interest. For example, in some countries, the salaries and properties of public employees are treated as public information; stock holdings in public companies may be of public interest; or there may be valid journalistic concerns in wealth and income information, including investigations of corruption. 

3. Private contact or identification information. 

Information such as private phone numbers, addresses or similar contact information,11 government ID numbers, PINs, passwords, or credit card numbers will hold increased weight of privacy rights in the balancing test against public interest. 

4. Information deemed sensitive under EU Data Protection law.

Information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, health, or sex life may all have specific privacy protections in Europe. However, when such data relates to the role the data subject plays in public life, there can be a strong public interest in accessing links to this information via a name-based search. 

5. Private information about minors. 

There is a special privacy consideration for children and adolescents according to the United Nations Convention on the Rights of the Child. 

6. Information that is false, makes an inaccurate association or puts the data subject at risk of harm. 

False information or information that puts the data subject at risk of harm, such as identify theft or stalking, weighs strongly in favor of delisting. 

7. Information that may heighten the data subject’s privacy interests because it appears in image or video form. 

4.2.2. Types of information that bias toward a public interest

1. Information relevant to political discourse, citizen engagement, or governance.

Political discourse is strongly in the public interest, including opinions and discussions of other people’s political beliefs, and should rarely be delisted.

2. Information relevant to religious or philosophical discourse.

Religious and philosophical discourse is strongly in the public interest, including opinions and discussions of other people’s religious and philosophical beliefs, and should rarely be delisted.

3. Information that relates to public health and consumer protection.

Information related to public health or consumer protection issues weighs strongly against removal. For example, reviews of professional services offered to the public at large may impact consumer safety; this value is widely recognized in the context of journalistic exceptions. Today, sources such as individual users on social media sites often provide this type of information, more so than traditional journalistic sources.

4. Information related to criminal activity.

Data relating to offences or criminal convictions warrants special treatment under EU Data Protection Law. Where specific laws relating to the processing of such data provide clear guidance, these should prevail. Where none applies, the outcome will differ depending on context. The separate considerations of severity of the crime, the role played by the requestor in the criminal activity, the recency and the source of the information (both discussed below), as well as the degree of public interest in the information at issue will be particularly relevant in assessing these cases. The evaluation of the public interest in the delistings requested may differ depending on whether they concern a criminal offender or victim of a criminal offense. Information regarding human rights violations and crimes against humanity should weigh against delisting.

5. Information that contributes to a debate on a matter of general interest. T

he public will have an interest in accessing individual opinions and discussion of information that contributes to a public debate on a matter of general interest (for example, industrial disputes or fraudulent practice). The determination of a contribution to public debate may be informed by the source criterion, discussed below, but once information about a particular subject or event is deemed to contribute to a public debate there will be a bias against delisting any information about that subject, regardless of source.

6. Information that is factual and true.

Factual and truthful information that puts no one at risk of harm will weigh against delisting.

7. Information integral to the historical record.

Where content relates to a historical figure or historical events, the public has a particularly strong interest in accessing it online easily via a namebased search, and it will weigh against delisting. The strongest instances include links to information regarding crimes against humanity.

8. Information integral to scientific inquiry or artistic expression.

In some cases, removing links from name-based search results will distort scientific inquiry; in those cases the information may carry public interest valence. The artistic significance of content constitutes public interest and will weigh against delisting. For example, if a data subject is portrayed in an artistic parody, it will weigh in favor of a public interest in the information.

4.3. Source

In assessing whether the public has a legitimate interest in links to information via a name-based search, it is relevant to consider the source of that information and the motivation for publishing it. For example, if the source is a journalistic entity operating under journalistic norms and best practices there will be a greater public interest in accessing the information published by that source via name-based searches. Government publications weigh in favor of a public interest in accessing the information via a name-based search.

Information published by recognized bloggers or individual authors of good reputation with substantial credibility and/or readership will weigh in favor of public interest. Information that is published by or with the consent of the data subject himself or herself will weigh against delisting. This is especially true in cases where the data subject can remove the information with relative ease directly from the original source webpage, for example by deleting his or her own post on a social network.

4.4. Time

The ruling refers to the notion that information may at one point be relevant but, as circumstances change, the relevance of that information may fade.

This criterion carries heavier weight if the data subject’s role in public life is limited or has changed, but time may be a relevant criterion even when a data subject’s role in public life has not changed. There are types of information for which the time criterion may not be relevant to a delisting decision—for example information relating to issues of profound public importance, such as crimes against humanity. This criterion will be particularly relevant for criminal issues. The severity of a crime and the time passed may together favor delisting, such as in the case of a minor crime committed many years in the past.  It could also suggest an ongoing public interest in the information—for example if a data subject has committed fraud and may potentially be in new positions of trust, or if a data subject has committed a crime of sexual violence and could possibly seek a job as a teacher or a profession of public trust that involves entering private homes.

Time may also weigh on determining the data subject’s role in public life. For example, a politician may leave public office and seek out a private life, or a CEO may step down from his or her role, but information about his or her time in that role may remain in the public interest as time goes on. This criterion may also weigh toward approving delisting requests for information about the data subject’s childhood.

Biobanks

'A comparative analysis of the requirements for the use of data in biobanks based in Finland, Germany, the Netherlands, Norway and the United Kingdom' by L. Briceño Moraia, J. Kaye, A.M. Tasse, B.M. Knoppers, C. Mitchell, S. Soini, N. Hoppe, S.E. Wallace and M. Øien in (2015) Medical Law International comments

To understand the causes of disease and improve diagnosis and treatment regimes, biomedical researchers need access to large numbers of well-characterized data and samples. Over the past decade, biobanks have been established across Europe to collect and manage access to data and samples. The challenge that we face is how to develop the tools and collaborations to enable researchers to access samples and data from a network of biobanks, rather than applying to individual biobanks. One of the perceived stumbling blocks to achieving this is represented by the different legal requirements in each country. The aim of the BioSHaRE-European Union (EU) project is to address these challenges by developing tools and methods for researchers to access and use pooled data from different cohort and biobank studies. The purpose of this article is to identify and compare the key legal requirements regarding research use of data across biobanks based in Finland, Germany, the Netherlands, Norway and the United Kingdom. Our investigation starts with the analysis of the key differences for the use of data between these countries. As a result, we identified three key areas where legal requirements differ across the five BioSHaRE-EU jurisdictions, namely, in the definition of personal data, the requirements regarding pseudonymization and processing for medical research purposes. This article provides an overview of these differences and describes them in the light of the proposed EU regulation on data protection.

The authors conclude -

This article identifies and compares the key legal requirements regarding research use of data in Finland, Germany, the Netherlands, Norway and the United Kingdom. In all the BioSHaRE-EU jurisdictions, in addition to the legislation implementing the EU Data Protection Directive, there are provisions for data protection in other regulations or sources of law. For example, in patient’s rights legislation (Finland), hospital laws (Germany), civil codes (Germany and Netherlands), specific HRAs (Norway) or case law (United Kingdom). This fragmentation of the sources of law undermines the certainty of the rules necessary to guarantee the flow of the information contained in samples between biobanks and to allow researchers to share them without undue burdens. The proposed draft of the EU Regulation on data protection will ensure a single set of rules on data protection across Europe, explicitly incorporating genetic information, but the latest amendments contain several changes that overall could have a negative impact on medical research.

The main grey areas of the 1995 Directive concern the concept of personal data, anonymization and data processing. The definition of personal data adopted in the BioSHaRE-EU jurisdictions leaves space for broad interpretation to also include genetic information as sensitive health data. In Finland, the definition of personal data of an individual expressly includes ‘members of his/her family or household’. Arguably, this is in line with the views of the Article 29 Working Group and latest proposals for EU data protection reform. Anonymization and pseudonymization are not expressly regulated by the current Directive, which recognizes the possibility of member states adopting Codes of Practices on the issue. Even though the latest draft of the proposed EU Data Protection Regulation contains a definition of pseudonymization, it still leaves space for different interpretations of its scope.

With regard to data processing, the BioSHaRE-EU jurisdictions have implemented the Directive rules without major differences. The general principle is that the processing of sensitive data is prohibited unless express consent is provided or when it is for the purposes of historical, scientific or statistical research. A unique feature of the German law compared to the other BioSHaRE-EU countries, and which exceeds the requirements of Data Protection Directive, is that consent for processing data shall be given in writing.

As far as access to data is concerned, the general principle and the main relevant exceptions are the same in all BioSHaRE-EU jurisdictions; again, consent of the data subject is essential, but this requirement can be waived if access is requested for research purposes and if specific conditions are satisfied. However, these conditions vary from one country to another. The proposed EU Data Protection Regulation would require consent for processing health data for research purposes, leaving it to member states to introduce exceptions. If member states decide to introduce a research exemption, it could again lead to different legal requirements across the EU. This would affect international research consortia that need to share data and, to an extent, diminish the benefits of a single EU Regulation on data protection for biomedical research.

Our analysis has shown that although data protection rules across BioSHaRE-EU jurisdictions are substantially uniform and share the same European origin, there are still some grey areas relating to research that have not been clarified or specified at the national level. This leaves room for different interpretations by national courts. The situation is further complicated by the variety of regulations and sources of law through which EU data protection rules have been implemented in each member state, raising further problems linked to the hierarchy of the law. Importantly, even if a single EU Data Protection Regulation were enacted and directly applicable in all member states, as the current proposals stand, it would not provide enough clarification to remove the existing grey areas for data-based research. Unfortunately, the EU data protection law reform process seems to have taken insufficient account of the importance of data sharing for biomedical research and, ultimately, population health.

The peculiarities of biomedical research call for a specific regulation at European level, which could apply both for samples and data. In fact, there is a straight linkage between samples and data, that is, researchers require access to a sample in order to get the information contained in it, and the usefulness of biological samples for research is greatly reduced when associated data are not shared with the samples. Nevertheless, they are considered as two different legal entities as different sources of law regulate access to data and samples. Following the Norwegian example, having a unique regulation, applying both to samples and data, and specific, focusing on biomedical research, would clear the path towards simplification of the sources of law, guaranteeing a better harmonization across member states and the desired sharing of data across different jurisdictions.

The BioSHaRE-EU project tries to overcome the legal restraints by encouraging the development of cutting-edge technologies that enhance collaborations among investigators and enable the development of tools for data harmonization, database integration and federated data analysis. In particular, it has proposed a new approach, named DataSHIELD, a federated infrastructure allowing researchers to jointly analyse harmonized data whilst retaining individual-level data within their respective host institutions. Such a system enables to share data for research purposes without the need to physically pool them together, therefore avoiding to incur in the traditional legal constraints.

The BioSHaRE-EU Healthy Obese Project aims to gain insights into the consequences of (healthy) obesity using data on risk factors and phenotypes across several large-scale cohort studies. This project has combined 10 different cohorts in seven countries, using data transformed into a harmonized format, that is, it has used a computing infrastructure to enable the effective pooling of data and research into critical sub-components of the phenotypes associated with common complex diseases.

BioSHaRE-EU has also supported the development of the so-called ‘omics connect toolbox’, which includes a set of software to be locally used by researchers for omics data validation, management, viewing and sharing.

It has been created also a unified system to integrate and compare observation data across experimental projects, disease databases and clinical biobanks; the system comprises models, formats documentation and software that are all available for free and open source at http://www.observ-om.org.

At the same time, BioSHaRE-EU cohorts do not have a common access policy, that is, researchers still need to contact each cohort individually to get access authorization. To overcome some of the issues raised by not having such ‘common data access policy’, an internal process has been developed, allowing tracking which cohorts under the BioSHaRE-EU project have provided access authorization for research. The BioSHaRE-EU project shows that cutting-edge technologies could enable effective sharing of data overcoming legal constraints and at the same time raises the question on whether different kind of governance systems are needed to support the current lack of a uniform regulatory framework.

Hohfeld and Personhood

'Why Things Can Hold Rights: Reconceptualizing the Legal Person' by Visa A.J. Kurki comments

This essay takes as its starting point a recent judgment by the New York State Supreme Court Court, Appellate Division, which denied habeas corpus from the chimpanzee Tommy. The conclusion of the judgment is not challenged, but rather its underlying premise: that legal personhood could be straightforwardly equated with right-holding and/or duty-bearing. The Tommy case was not about granting the first legal right to the chimpanzee, because it already holds numerous rights. Neither can it be claimed that legal personhood concerns the capacity to be a party in legal relations, as nonpersons participate in Hohfeldian legal relations, too. The essay argues that legal personhood should rather be understood as being encompassed in the specific legal institutions that distinguish legal persons from nonpersons.

Speed

Lance Armstrong and Tailwind Sports Corporation (Armstrong's former team management company) has been ordered by an arbitration panel to pay US$10m in a dispute with Dallas-based SCA Promotions in what the promotions company characterised as an “unparalleled pageant of international perjury, fraud and conspiracy”.

SCA has asked Texas’ 116th Civil District Court to confirm the arbitration ruling; an Armstrong lawyer reportedly predicts that the order will be overturned by a judge.

SCA paid Armstrong and Tailwind around US $12m in bonuses during a career in which Armstrong won seven Tour de France titles. As highlighted elsewhere (eg here and here), the titles were removed after Armstrong and his US Postal Service teams were found to have used banned performance-enhancing drugs.

 SCA disputed the bonuses in arbitration in 2005, with Armstrong continuing to deny doping (including testimony on oath). As part of a settlement in 2006 SCA paid Armstrong US$7m. Fast-forward to the  report from the US Anti-Doping Agency and inevitable confession interview with Oprah. SCA sued Armstrong to retrieve its payments, with the dispute going back to the original arbitration panel.

That panel has now announced that

Perjury must never be profitable. Tailwind Sports Corp and Lance Armstrong have justly earned wide public condemnation. That is an inadequate deterrent. Deception demands real, meaningful sanctions.

The arbitration majority said the $10m was a penalty for Armstrong’s lying and efforts to intimidate or coerce witnesses in the previous case.

Media reports that Armstrong  is being sued by the federal government and former teammate Floyd Landis in a whistleblower action over the team’s sponsorship contract with the Postal Service.

FDA and research quality

'Research Misconduct Identified by the US Food and Drug Administration: Out of Sight, Out of Mind, Out of the Peer-Reviewed Literature' by Charles Seife in (2015) JAMA Intern Medicine comments

Every year, the US Food and Drug Administration (FDA) inspects several hundred clinical sites performing biomedical research on human participants and occasionally finds evidence of substantial departures from good clinical practice and research misconduct. However, the FDA has no systematic method of communicating these findings to the scientific community, leaving open the possibility that research misconduct detected by a government agency goes unremarked in the peer-reviewed literature.

Seife's objectives were

To identify published clinical trials in which an FDA inspection found significant evidence of objectionable conditions or practices, to describe violations, and to determine whether the violations are mentioned in the peer-reviewed literature.

He undertook a

Cross-sectional analysis of publicly available documents, dated from January 1, 1998, to September 30, 2013, describing FDA inspections of clinical trial sites in which significant evidence of objectionable conditions or practices was found. 

For each inspection document that could be linked to a specific published clinical trial, the main measure was a yes/no determination of whether there was mention in the peer-reviewed literature of problems the FDA had identified. 

The main outcomes were -

Fifty-seven published clinical trials were identified for which an FDA inspection of a trial site had found significant evidence of 1 or more of the following problems:

• falsification or submission of false information, 22 trials (39%); 

• problems with adverse events reporting, 14 trials (25%); 

• protocol violations, 42 trials (74%); 

• inadequate or inaccurate recordkeeping, 35 trials (61%); 

• failure to protect the safety of patients and/or issues with oversight or informed consent, 30 trials (53%); and 

• violations not otherwise categorized, 20 trials (35%).

Only 3 of the 78 publications (4%) that resulted from trials in which the FDA found significant violations mentioned the objectionable conditions or practices found during the inspection. 

No corrections, retractions, expressions of concern, or other comments acknowledging the key issues identified by the inspection were subsequently published.

Examples of unreported inspection violations were -

Case 1 

A publication describing a stem cell trial in 26 patients with ischemic limbs stated that “all patients recognized and were aware of major clinical improvements in the treated (more ischemic) leg, despite no significant clinical changes in the control (less ischemic) leg.” However, an FDA document revealed that 1 patient had a foot amputated 2 weeks after administration of the stem cells. 

We found no correction or retraction. 

Case 2 

Eight of 16 FDA inspections of sites involved in a clinical trial of rivaroxaban, a novel anticoagulant, had been rated OAI. These inspections had uncovered evidence of various transgressions, such as “systemic discarding of medical records,” unauthorized unblinding, falsification, and “concerns regarding improprieties in randomisation.” Consequently, the entire study, RECORD 4 (Regulation of Coagulation in Orthopedic Surgery to Prevent Deep-Venous Thrombosis and Pulmonary Embolism 4), was deemed unreliable by the FDA. These problems are not mentioned in the article describing the study’s resultsor in other publications associated with the trial.

Case 3 

A researcher was caught falsifying documents in a number of trials, in part because those falsifications led to the death of a patient undergoing treatment in a clinical trial comparing 2 chemotherapy regimens. The researcher had falsified laboratory test results to hide the patient’s impaired kidney and liver function, and the first dose of the treatment proved to be fatal. The researcher pleaded guilty to fraud and criminally negligent homicide and was sentenced to 71 months in prison. 

Although this episode is described in detail in FDA documents  as well as court documents, none of the publications in the peer-reviewed literature associated with the chemotherapy study in which the patient died have any mention of the falsification, fraud, or homicide. The publications associated with 2 of the 3 other studies for which the researcher falsified documents also do not report on the violations. 

Case 4 

A clinical site in China taking part in a large trial of apixaban, a novel anticoagulant, had apparently altered patient records. If one were to exclude the data from the patients at that site, the claim of a statistically significant mortality benefit disappears. For this reason, among others, the FDA wrestled with whether it was appropriate to allow the manufacturer to claim a mortality benefit. None of this discussion appears in the literature. The claim for the mortality benefit, which has appeared in the literature since 2011, consistently relies on the full data set, including data from the site at which the research misconduct allegedly occurred. This is true even for an article that was published52 nearly 18 months after the alleged research misconduct was discovered. In addition, the mortality benefit analysis of the FDA-approved drug label as of August 31, 2014, is also based on the full data set despite a recommendation from the FDA’s Office of Scientific Investigation that data from not just the problematic site but 23 additional suspect Chinese sites be excluded. 

Despite the fraudulent data, when all the suspect Chinese sites are excluded rather than just the one at which the evidence of alleged research misconduct was found, the mortality benefit becomes statistically significant at the P = .05 level once again. One FDA analyst, commenting on the “data quality issues” in this clinical trial, complained about the agency’s lack of transparency and poor handling of evidence of problems with trial data: Some of the responsibility for the data quality issues rests with us, the FDA: We have approved drugs ignoring similar data quality issues, granting superiority claims, and not discussing in the labels the data quality issues. We must stop doing this.

His conclusions are -

When the FDA finds significant departures from good clinical practice, those findings are seldom reflected in the peer-reviewed literature, even when there is evidence of data fabrication or other forms of research misconduct.

Vaccination

'Vaccination in Halakhah and in Practice in the Orthodox Jewish Community' by Asher Bush in 2012 13 Ḥakirah, the Flatbush Journal of Jewish Law and Thought 185 comments

In 1998 a study was published in The Lancet linking the MMR vaccination with cases of autism. This study was widely circulated in both Great Britain and the United States. Despite the numerous other studies that confirmed the safety and value of these vaccinations, nevertheless, the publicity surrounding this article from The Lancet, particularly the follow-up broadcast on “Sixty Minutes,” led many parents to question the safety of childhood vaccinations. This study created a significant fear such that rates of childhood vaccinations decreased, in America to a relatively small extent and in Great Britain to a significantly greater extent. Correspondingly there was a marked increase in these diseases, particularly measles and mumps; this has included fatalities as well.

While most medical authorities doubted the accuracy and significance of this study, it was not until February 2010 that a retraction was printed in The Lancet. In May 2010 the General Medical Council of Great Britain found that the lead author of the study, Dr. Andrew Wakefield, had acted “dishonestly and irresponsibly,” and revoked his license to practice medicine in Great Britain. Prior to this, ten of the twelve coauthors associated with this paper had withdrawn their names. It is also worth noting that this now discredited study had focused on the link between Thimerosal (a mercury- based ingredient) and autism; that ingredient was removed from all vaccines other than influenza as of 2001 (the influenza vaccine is produced both with and without Thimerosal).

Nevertheless, as a result of the study and publicity that followed, many parents remain skeptical and either postpone or avoid vaccinating their children. Numerous organizations and websites still exist devoted to the “anti-vaccination cause,” casting doubts on both the efficacy and safety of the various childhood vaccines. The Orthodox Jewish community has not been immune from this trend, with strong support in some communities for parental autonomy not to vaccinate. In the early part of the nineteenth century, when vaccinations were still new and risks were higher and knowledge was less, Rav Yisrael Lifshitz1 ruled that even though slight risks do exist, the benefit of vaccination far outweighs the risk and they are permitted according to halakhah. Strikingly, in 1896 there was a case in London where an Orthodox Jew was imprisoned for his refusal to vaccinate his child, claiming his religion forbade him. The prosecutor in this case, who was also Jewish, turned to the Chief Rabbi of Great Britain, Rav Hermann Adler. The Chief Rabbi stated clearly that this man “was not justified in making the statements contained in the letter; that the most competent medical authorities were agreed as to vaccination being a prophylactic against small-pox, and added that its use was in perfect consonance with the letter and spirit of Judaism.”

This issue came to the fore in the Orthodox community again in three recent situations. The first one was in Lakewood, NJ, where in 2008-2009 a number of school medical officials had sought to exclude unvaccinated children from attending. A number of leading rabbinic authorities associated with that community issued varying statements and rulings, some of which have been clarified and even reversed since that time. The second event was the mumps outbreak in 2009-2010 that primarily affected children who had attended several Orthodox camps, and spread further following the summer when these boys returned to home and school. Even more recently, in October 2011 there was an outbreak of measles in portions of the Orthodox community in Brooklyn. As reported in the New York Times, “The latest outbreak took place within a closeknit Orthodox Jewish population in Brooklyn, officials said. There have been similar outbreaks among Orthodox Jews in the past. Some of the children had not been vaccinated, perhaps of a preference within the community to delay vaccination, health officials said.”

The purpose of this article is to address two fundamental questions: firstly, whether there is a halakhic obligation to vaccinate, and secondly, whether schools have the right and/or responsibility to prevent unvaccinated children from attending.

 In discussing community wellbeing Bush comments

It is a given that all schools have an obligation to protect the health and well-being of their students. This duty is even more pressing in a yeshiva where both the physical and spiritual well-being of the students is a daily concern. Common health and safety regulations include: sick students are sent to the nurse or home, students are generally not permitted to possess medicines (which instead are administered by the nurse), and dangerous objects such as knives may not be possessed. More recently many schools have forbidden foods that cause severe allergic reactions in others, such as peanut butter. In a yeshiva the rules often go much farther, concerned with not just the physical well-being of the students but their spiritual and moral development as well. This often includes very specific dress codes, as well as regulation of cell phones, electronic devices and, depending on the school, reading material and forms of entertainment. Following this well-accepted pattern, it would seem that rules and regulations mandating vaccinations are just another example of a rule enacted for the health and well-being of the students and faculty alike. Accordingly, even if there were no Halachic obligation to vaccinate oneself or one’s child, the school would be well within its mandate to insist on vaccinations and to make this a requirement for attendance.

It has been suggested by some that a yeshiva has no right or business establishing and enforcing (mandatory) vaccination rules; this idea is more than difficult to accept. Even if a parent is particularly worried about the (supposed) ill effects of vaccinations, a medically unfounded concern for otherwise healthy children, this does not give them the right to ignore the rules established for the communal well-being. They are not forced to attend this school (or any other school for that matter, as home schooling is an option) if they choose not to conform to this or any other rules. The idea that parental autonomy should supersede school rules effectively means that there are no rules. Dress codes, which exist formally and informally in every yeshiva, are not left to parental discretion; so too those schools that regulate and restrict which forms of entertainment and media the students enjoy (on and off school premises) have specifically stated that they are not leaving it up to personal and family practice to decide these matters. The rules are imposed with the understanding that they have been deemed to be in the best interest of the students and represent the value system and world view of the Yeshiva; there is no reason to suggest that health and safety standards should be treated any differently.

 He goes on to discuss religious exemptions in US law -

In numerous states parents wishing not to vaccinate their children are permitted to sign a document stating that their religious convictions do not allow them to; based on this signature the child will then be permitted to attend school under the law. It is reported that small numbers of parents in Jewish schools have signed such documents. For a parent of a yeshiva student to sign such a statement in the name of Judaism is not just inappropriate, it is false. Whether a posek will rule that childhood immunizations are obligatory in halakhah or are discretionary (but highly advisable), there is no position in halakhah that says there is any prohibition or compelling reason to refrain from such vaccinations.

The New York State Department of Health allows exemptions for parents professing “genuine and sincere religious beliefs” that are contrary to immunization. As stated above, there is no validity to any suggestion that vaccinations are contrary to Jewish beliefs or practices. As such, to sign an affidavit in the name of Torah observance is simply false and should have no place in a yeshiva.

The State of New Jersey also provides for religious exemptions from mandatory immunization. N.J.S.A. 26:1A-9.1 states,

…When a parent or guardian submits their written religious exemption to immunization, which contains some religious reference, those persons charged with implementing administrative rules at N.J.A.C. 8:57-4.4, should not question whether the parent’s professed religious statement or stated belief is reasonable, acceptable, sincere and bone fide. In practice, if the written statement contains the word ‘religion’ or ‘religious’ or some reference thereto, then the statement should be accepted and the religious exemption of mandatory immunizations(s) granted

As is clear from the words of this code, the exemption is available for any and all professing a religious belief that vaccination is inappropriate, and such beliefs may not be questioned by any secular authorities. This language is most appropriate for the state, which neither has the interest nor the right to define religious doctrine; were it to do so it would likely soon find itself embroiled in legal action. However, this is not at all relevant to a yeshiva, which by definition sets the religious standards that are to be followed under its roof in all matters, both large and small. Even though the code itself does state that this exemption is to be given without questions being asked, there is no legitimate way that an Orthodox parent of an otherwise healthy child can claim that their religion prohibits or discourages vaccinations.

On the other hand, some states allow exemptions based on “personal beliefs” (not specifically religious beliefs). While there is nothing dishonest about a yeshiva parent having such a personal belief, it is a misguided one that should be corrected.

Wrongful Convictions

"Out of Grace': Inequity in Post-exoneration Remedies for Wrongful Conviction" by Rachel Diosa-Villa in (2014) 37(1) UNSW Law Journal 349 comments

On 26 June 1990, Kelvin Condren was exonerated for the wilful murder of his live-in partner, Patricia Rose Carlton, after having served seven years in prison for a crime he did not commit. The main evidence against him was the confession he gave when under police custody for drunk and disorderly behaviour. Condren’s conviction was ultimately quashed after the Attorney-General of Queensland had the Queensland Court of Criminal Appeal consider fresh evidence in the case suggesting that the victim was seen alive while Condren was in police custody. On 6 February 1995, the Queensland government offered him A$400 000 as an ex gratia or ‘out of grace’ payment as compensation for his wrongful conviction. One year after Condren’s exoneration, on 10 August 1991 in Western Australia, Jeanie Angel was exonerated for the wilful murder of her neighbour after having served two years in prison for a crime that she did not commit. Angel allegedly made a confession to police; however, she claimed that during the interrogation she was hit over the head with a bottle before signing the written confession. Her conviction was quashed as unsafe and unsatisfactory after two other women who had been drinking with the deceased admitted that they hit her several times over the head with a stick and later hid the body in the bushes. In contrast to Kelvin Condren’s case, Jeanie Angel did not receive compensation for her wrongful conviction; instead the Attorney-General of Western Australia rejected her request for an ex gratia payment saying that ‘[a]n act of grace [ex gratia] payment is made only in the most exceptional circumstances, and this is not such a case.’

These examples raise questions about the application and adequacy of ex gratia payments as a means of compensating for the loss, harm or injury that wrongfully convicted persons endure due to their convictions and subsequent imprisonment. These payments are not awarded to all who have been pardoned or have had their convictions quashed, since there is no state or federal indemnity legislation in place that explicitly address the needs of those wrongfully convicted in Australia. In the absence of indemnity legislation for wrongful conviction, exonerees may seek recourse through specialised bills to compensate individuals, civil litigation against liable parties, or ex gratia ‘out of grace’ payments. Due to the difficulty and rarity of pursuing compensation through parliament and the courts, ex gratia is the most commonly utilised and viable option for individuals who seek redress for wrongful conviction and incarceration.

Over the past century, legal scholars have argued for the establishment of compensation statutes for wrongful conviction in common law countries around the world with some success; however, there are limited studies that argue for such laws within the Australian context or that have evaluated the adequacy of existing remedies to aid exonerees in their successful reintegration into society. This article attempts to fill this gap by examining the application of ex gratia payments as compensation for wrongful conviction and asking the questions: (1) Are ex gratia payments a suitable remedy for exonerees? (2) Does the state have an obligation to exonerees to provide redress for the injury or loss they experience from their imprisonment? (3) If ex gratia is not an adequate measure, why might this be the case? (4) What may Australia do to address the needs of the wrongfully convicted post-exoneration? Because the definition of a ‘wrongful conviction’ may encompass many situations, it is used in this article to refer to cases where individuals have been sentenced to a term of imprisonment and have had their sentences quashed on appeal; were acquitted at retrial; had their verdicts considered unsafe and their convictions vacated; or have received a pardon.

The article begins by outlining compensation remedies available to exonerees in Australia with a focus on ex gratia payments. I draw on my earlier work that examined the circumstances in which ex gratia payments were awarded and denied for wrongful conviction and provide a summary of these findings to identify key criticisms about the existing structure and application of ex gratia payments as a principal remedy for wrongful conviction in Australia. I then consider the role of the state in providing compensation for errors of justice as a moral and legal duty and question whether discretionary acts create unintended equity issues for exonerees who seek compensation. The article concludes with recommendations to improve the situation for the wrongfully convicted in Australia who wish to seek redress, namely the creation of comprehensive compensation legislation for wrongful conviction, extended post-appeal review, and the establishment of a review commission to investigate potential wrongful conviction cases.

II Compensation for Wrongful Conviction in Australia

Currently, wrongfully convicted individuals do not automatically receive compensation in Australia. In most Australian jurisdictions other than the Australian Capital Territory, these individuals do not have a common law or statutory right to compensation for their wrongful conviction or imprisonment. Australia is a signatory to the ICCPR that outlines compensation for the wrongfully convicted. However, Australia has yet to incorporate this as a right into domestic law and maintains the position that this provision gives rise to administrative procedures, rather than legal provisions. Article 14(6) of the ICCPR states:

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

This compensation scheme has had varying degrees of success in its application. One criticism is that ‘miscarriage of justice’ in this context has been narrowly interpreted to include only those who have been exonerated as factually innocent, rather than innocent individuals who have had their convictions quashed because the verdict was considered unsafe on appeal. By limiting applicants’ eligibility to the factually innocent, this understanding of a miscarriage of justice may miss its intended purpose, which is to provide a legislated entitlement to compensation for individuals who have been convicted and imprisoned for crimes they did not commit. Therefore, those innocent individuals who have received pardons or who have had their convictions quashed, reversed, vacated or dismissed, must seek alternative avenues of redress such as seeking compensation through ex gratia schemes.

In the absence of federal, state or territory compensation legislation, a state may award ‘out of grace’ payments as ex gratia compensation without explanation and without setting precedent. These payments are generally made and calculated according to the actual damage or loss incurred from the act(s) or event(s) in question. States have awarded ex gratia payments in the past to classes of victims such as wrongfully convicted individuals as well as victims of natural disasters, although each case is considered independently on its own merit. The state has no legal obligation to award payments and the decision is highly discretionary and often rests in the hands of an executive power, such as an attorney-general, who may or may not reach a decision in consultation with others.

Currently, there are no guidelines to assist governors or attorneys-general in making decisions to award or deny ex gratia payments for wrongful conviction. There are, in some jurisdictions, principles that these executives may consider when administering ex gratia payments to persons who have ‘suffered a financial loss or other detriment directly as a result of the workings of [g]overnment,’ which would encompass those who seek compensation for wrongful conviction. Two such principles are to have applicants provide evidence of a clear and verifiable loss and provide evidence of fault or error by a state actor that is directly responsible for the loss. However, these principles are not formal, nor mandatory criteria to receive payments, since each case is considered on its own merits and payments are not guaranteed even when the applicant addresses all principles.

Another option for exonerees is to raise a civil suit against state actors who were instrumental in the wrongful conviction during the investigation or at trial. In cases with evidence of gross state misconduct, such as a coerced confession elicited during a police interrogation, fraudulent forensic evidence, or prosecutorial misfeasance, an exoneree may pursue civil litigation against individual police officers, a laboratory, or the prosecutors responsible for their false imprisonment. Successful tortious claims are rare, given the difficulty in demonstrating that the public officer acted with malice against the exoneree and that this resulted in his or her wrongful conviction and subsequent suffering. This is especially the case when a person may be wrongfully convicted without malice or ill intent. Moreover, not all exonerees have the legal and financial resources required to pursue tortious action and the time required to build the case to its final outcome may be too lengthy given the already acute losses experienced while imprisoned.

Exonerees may also seek compensation by drafting an individualised bill to pass through state legislature for direct compensation for injuries or loss experienced as a result of the wrongful conviction. This is the least pursued remedy since it requires legal support to draft the bill and political support to marshal a politician to lobby the bill in parliament. Success of such private bills may depend on the political climate of parliament at the time the bill is proposed and the clout or authority of the politician presenting the bill, rather than the merits of the bill itself. Given the legal, political, and financial requirements required to carry this out, it is unlikely that this is a viable option for most exonerees. There is also no guarantee that the bill will pass and the time it would take to secure funding may extend far beyond the point at which it is needed.

Legal Common Knowledge, c1360

'Common knowledge of the common law in later medieval England' by C.J. Neville in (1994) 29(3) Canadian Journal of History 461 comments

Despite their complexity, the rules and regulations governing the substance and procedure of common law in later medieval England were surprisingly well understood by the medieval men and women who appeared in court as defendants. This paper examines records of sessions of gaol delivery, before which accusations of felony were put to trial, for the northern circuit in the years 1354-1460. It explores the ways in which a significant number of defendants were able to avoid altogether onus of trial by claiming exceptions to the law and more particularly, by arguing that the formal indictments under which they had been charged were "insufficient in law." The varied nature of these claims is reviewed, and emphasis is placed on tracing the source of what was in most instances highly technical information. The public venue of medieval trials undoubtedly contributed to the dissemination of a rough and ready familiarity with the law among persons of all ranks and the presence of trained lawyers at the sessions must also have made available to plaintiffs, defendants, and bystanders alike a well informed source of legal knowledge. But it is further argued that jurors of presentment, the men responsible in the first instance for bringing forward bills of indictment, may have played a crucial role in determining which defendants would be subjected to the rigours of a full trial and the possibility of death by hanging consequent on it, and which would not. The deliberate omission of factual details in the formulation of the written charges may in this sense have reflected more than merely a casual attitude on the part of the jurors towards statutory requirements enacted to regulate indicting documents. They may also be interpreted as one of a variety of means by which medieval jurors winnowed out of the legal process individuals whom they did not believe merited the full sanction of trial at gaol delivery.

Neville states that the article explores

a number of instances in which defendants were able to avoid the full rigours of trial at gaol delivery, not thanks to the acumen of royal justices, but on the basis of exceptions they put forward themselves in the course of their appearance in court. The source materials upon which this study is based are the records of trials for felony heard before justices of assize on the northern judicial circuit between 1354 and 1460. At least once a year, these justices travelled to the county towns of York (Yorkshire), Newcastle-upon-Tyne (Northumberland), Carlisle (Cumberland), Appleby (Westmorland), and Lancaster (Lancashire); they also presided over sessions held in the ecclesiastical liberties under the jurisdiction of the Archbishop of York and the Bishop of Durham. The commissions under which they operated gave them authority to put to trial suspects accused of, and detained in gaol for, a wide variety of felonious offences.

The northern records of gaol delivery, like those from the other judicial circuits, suffer from large gaps resulting from the ravages of time and the vagaries of poor storage, but as a body they reflect a substantial portion of the work performed by the justices responsible for trying felonious offences in the century or so under consideration. Altogether, the cases recorded there number 10,246 charges laid against 11,380 persons; they represent the business conducted at 416 separate sessions. The study begins with the middle years of the fourteenth century, when legislation of Edward III had begun to exert a powerful and lasting influence on the shape and form of written charges. From the mid-1350s their structure remained standard. The year 1460 has been chosen as a terminus post quem for the simple reason that the rolls of gaol delivery for the northern circuit end abruptly then.

It should be clear from the outset that sessions of gaol delivery dealt almost exclusively with suspects who belonged to the lower ranks of English society. Gentlemen and gentlewomen were only rarely indicted, and even more seldom brought to trial, in this venue. The aspect of the trial process with which this paper is concerned is the stage at which suspects were asked to plead in respect of a charge, as required by common law procedure in trial on indictment. On occasion, they did not do so. Instead of declaring themselves guilty or not guilty, they challenged the validity of the charge made against them, a process that would later become formalized as pleading in bar. The number of such exceptions is not insignificant. In the years between 1354 and 1460, some 725 were made, representing 7 per cent of the total number of charges known to have been laid. In every instance, the judges dismissed the defendants from custody, and the court never proceeded to a determination of their guilt or innocence.

The impressive knowledge of common law procedure demonstrated by those defendants is of some interest. Changes to the law were often enacted in parliament, and were almost always the result of scrutiny and discussion by highly skilled royal justices in the rarefied atmosphere of the chambers in which trials before Kings Bench and Common Bench were conducted and, by the fifteenth century, of the nascent Inns of Chancery and Court. Legal historians have been able to trace the effect of these substantive and procedural alterations to the workings of the law in the voluminous series of judicial records that survive from the later medieval period. But knowledge of these changes seems also to have been surprisingly current among contemporary folk, who had little or no access to masses of trial record, who had no opportunity to sit in parliament when new rules and procedures were promulgated, and who can hardly have counted among their familiars justices of assize based in Westminster.

The extent of common knowledge of the common law among a largely illiterate populace and, in the case of the north, one situated far distant from the central courts, poses some challenging questions about the dissemination of highly technical information in that society. This paper cannot claim to provide definitive answers to these questions. It is intended, rather, to stimulate discussion of the link it posits between the transmission of learned culture to the masses and current research on the role and the function of the jury in the criminal trials of medieval England. The findings of that research are reviewed below. The first section examines the wide variety of exceptions that defendants in the medieval north were able to call to the attention of the justices and which, when successfully claimed, virtually assured them avoidance of the onus of trial for felony. In the second section, the significance of these exceptions is explored. Traditional theories about the dissemination of technical information go some way towards explaining the source of the northerners' knowledge of common law procedure. But the further argument is made in the third section that juries of presentment may have played a crucial part in determining why some accusations reached the stage in the criminal process of formal indictment and subjection to trial that was its normal consequence, and why others failed to conform to the standards required of written charges, and so were adjudged insufficient in law. It is the contention of this last section that to the current debate on the voice of the jury in the records of the English medieval courts should be added the evidence of spoiled indictments.

Related to issues of jury behaviour and jury attitudes, moreover, are larger questions concerning the tenor of communal life in English medieval communities. Historians have long been aware of the profound tensions that informed rural life in the late Middle Ages, when demographic and economic changes affected relationships between local elites and their less powerful neighbours. An examination of the phenomenon of spoiled indictments reveals that the criminal trial process itself provided an opportunity -- one among many -- for the men who acted in the capacity of jurors of indictment in northern England to give meaningful expression to communal sentiment.

Neville goes on to note

The kind of knowledge of common law procedure required to challenge successfully a formal charge of felony was, in the instances cited above, widespread by the Mater medieval period; it had become by then part of custom, of what might, indeed, be termed "folk custom." But common knowledge of the common law extended far beyond a rudimentary familiarity with the well worn procedures surrounding benefit of clergy and pardon, and the rules governing sanctuary and its eventual outcome, abjuration. Unlettered men and women were surprisingly competent in positing more complex errors of procedural and substantive law as well. The late medieval period boasted no clear definition proper of felony, misdemeanour, and trespass; the distinction between felony and the two latter categories lay, rather, in the means by which they were prosecuted and the penalties attached to them. The tribunals in which each would be tried was a decision most often left to the determination of men learned in the law. Nevertheless, by the fourteenth and fifteenth centuries, royal justices had devised a rough and ready category of offences that they treated as felonies; these included homicide, rape, arson, larceny, burglary, robbery, and prison breaking.

The views held by common folk regarding the definition of felony generally echoed those of the lawyers, but defendants did not hesitate to remind justices of a shared climate of opinion on the subject when they thought it appropriate. More particularly, suspects sometimes queried the justices of gaol delivery about the nature of an offence alleged against them. In the Newcastle sessions convened in 1363 a defendant successfully argued before the presiding justices that his indictment, which accused him in vague terms of receiving a known thief, did not constitute a genuine charge of felony, and that he should be released from prison. A similar argument was made in a York court in 1410 -- again, convincingly -- when three men were released after demonstrating that the indictment laid against the principals in the alleged offences "made no mention of what felony in particular the principals committed." By the fifteenth century, the crown's continued inability to define clearly the status of some unlawful activities was permitting an increasing number of accused misdoers to avoid answering formal indictments altogether. This was especially true with respect to the charge of lying in ambush with intent to assault or commit homicide, which in the medieval period was most often, but not universally, left to the jurisdiction of justices working in county sessions or to commissions of oyer and terminer. At the Newcastle gaol delivery of 1428 one shrewd yeoman, accused of lying in wait "on the king's road at Herle with bows, arrows, swords and cudgels in order to slay Thomas Docheson, so that he was in danger of death," calmly pointed out to the justices that the indictment should be adjudged null and void, "because the manner and form in which it was taken makes it an indictment of trespass, and it makes no mention of what felony in particular the accused is said to have perpetrated."[30] He was released from custody a free man. On another occasion, the clerk who drafted an indictment before a coroner bungled a charge of larceny when he noted, more in the manner of an indictment of trespass than of felony, that an accused had "with force and arms" taken and carded off wheat worth 2s. The defendant challenged the wording of the document by arguing that it constituted a charge of trespass rather than felony, and was released from custody . . .

The success with which suspects were able to proffer challenges based on ambiguous points of law is sometimes astonishing, both in its perspicacity and audacity. At the delivery of Newcastle gaol in the Summer of 1441, the vicar of the church of Emildon avoided the obligation to place himself on the verdict of the country thanks to a claim that must have struck even the seasoned justices of assize with its ingenuity. When asked to plead, Master Thomas Eland stated that the indictment "does not charge him with 'raping' Elizabeth [wife of Adam Coke], because [the word] 'raped' in that document is not Latin." What he meant by this claim is that the verb had been misused by a scribe whose command of the Latin language was faulty, and who had thereby reduced the allegation to one of mere trespass. At the same delivery the justices were further confounded when two men indicted as receivers pointed out that the principal's indictment included a misspelling of the verb "to rob," and so lacked "the notion of felonious intent."

Posner on curiosity

'An Economic Theory of Privacy' by Richard A. Posner in (1978) 26 Regulation: AEI Journal on Government and Society 19 comments -

Much ink has been spilled in trying to clarify the elusive and ill-defined concept of "privacy." I will sidestep the definitional problem by simply noting that one aspect of privacy is the withholding or concealment of information. This aspect is of particular interest to the economist now that the study of information has become an important field of economics. It is also of interest to the regulator, and those affected by him, because both the right to privacy and the "right to know" are becoming more and more the subject of regulation.

Heretofore the economics of information has been limited to topics relating to the dissemination and, to a lesser extent, the concealment of information in explicit (mainly labor and consumer-good) markets - that is, to such topics as advertising, fraud, price dispersion, and job search. But it is possible to use economic analysis to explore the dissemination and withholding of information in personal as well as business contexts, and thus to deal with such matters as prying, eavesdropping, "self-advertising," and gossip. Moreover, the same analysis may illuminate questions of privacy within organizations, both commercial and noncommercial.

I shall first attempt to develop a simple economic theory of privacy. I shall then argue from this theory that, while personal privacy seems today to be valued more highly than organizational privacy (if one may judge by current legislative trends), a reverse ordering would be more consistent with the economics of the problem.

Theory

People invariably possess information, including the contents of communications and facts about themselves, that they will incur costs to conceal. Sometimes such information is of value to other people - that is, other people will incur costs to discover it. Thus we have two economic goods, privacy and prying. We could regard them as pure consumption goods, the way turnips or beer are normally regarded in economic analysis, and we would then speak of a "taste" for privacy or for prying. But this would bring the economic analysis to a grinding halt because tastes are unanalyzable from an economic standpoint. An alternative is to regard privacy and prying as intermediate rather than final goods - instrumental rather than final values. Under this approach, people are assumed not to desire or value privacy or prying in themselves but to use these goods as inputs into the production of income or some other broad measure of utility or welfare. This is the approach that I take here; the reader will have to decide whether it captures enough of the relevant reality to be enlightening.

Not So Idle Curiosity

Now the demand for private information (viewed, as it is here, as an intermediate good) is readily understandable where the existence of an actual or potential relationship, business or personal, creates opportunities for gain by the demander. These opportunities obviously exist in the case of information sought by the tax collector, fiance, partner, creditor, competitor, and so on. Less obviously, much of the casual prying (a term not used here with any pejorative connotation) into the private lives of friends and colleagues that is so common a feature of social life is, I believe, motivated - to a greater extent than we usually think - by rational considerations of self-interest. Prying enables one to form a more accurate picture of a friend or colleague, and the knowledge gained is useful in one's social or professional dealings with that friend or colleague. For example, one wants to know in choosing a friend whether he will be discreet or indiscreet, selfish or generous. These qualities are not necessarily apparent on initial acquaintance. Even a pure altruist needs to know the (approximate) wealth of any prospective beneficiary of his altruism in order to be able to gauge the value of a gift or transfer to him.

The other side of the coin is that social dealings, like business dealings, present opportunities for exploitation through misrepresentation. Psychologists and sociologists have pointed out that even in everyday life people try to manipulate other people's opinion of them, using misrepresentation. The strongest defenders of privacy usually define the individual's right to privacy as the right to control the flow of information about him. A seldom-remarked corollary to a right to misrepresent one's character is that others have a legitimate interest in unmasking the misrepresentation. A seldom-remarked corollary to a right to misrepresent one's character is that others have a legitimate interest in unmasking the misrepresentation. Yet some of the demand for private information about other people seems mysteriously disinterested - for example, that of the readers of newspaper gossip columns, whose "idle curiosity" has been deplored, groundlessly in my opinion. Gossip columns recount the personal lives of wealthy and successful people whose tastes and habits offer models - that is, yield information - to the ordinary person in making consumption, career, and other decisions. The models are not always positive. The story of Howard Hughes, for example, is usually told as a morality play, warning of the pitfalls of success. That does not make it any less educational. The fascination with the notorious and the criminal - with John Profumo and with Nathan Leopold - has a similar basis. Gossip columns open people's eyes to opportunities and dangers; they are genuinely informative.

Moreover, the expression "idle curiosity" is misleading. People are not given to random undifferentiated curiosity. Why is there less curiosity about the lives of the poor (as measured, for example, by the infrequency with which poor people figure as central characters in popular novels) than about those of the rich? One reason is that the lives of the poor do not provide as much useful information for the patterning of our own lives. What interest there is in the poor is focused on people who were like us but who became poor, rather than on those who were always poor; again, the cautionary function of such information should be evident.

Samuel Warren and Louis Brandeis once attributed the rise of curiosity about people's lives to the excesses of the press (in an article in the Harvard Law Review, 1890) . The economist does not believe, however, that supply creates demand. A more persuasive explanation for the rise of the gossip column is the increase in personal income over time. There is apparently very little privacy in poor societies, where, consequently, people can readily observe at first hand the intimate lives of others. Personal surveillance is costlier in wealthier societies, both because people live in conditions that give them greater privacy and because the value (and hence opportunity cost) of time is greater-too great, in fact, to make the expenditure of a lot of it in watching the neighbors a worthwhile pursuit. An alternative method of informing oneself about how others live was sought by the people and provided by the press. A legitimate and important function of the press is to provide specialization in prying in societies where the costs of obtaining information have become too great for the Nosy Parker.

Who Owns Secrets?

The fact that disclosure of personal information is resisted by (is costly to) the person to whom the information pertains, yet is valuable to others, may seem to argue for giving people property rights in information about themselves and letting them sell those rights freely. The process of voluntary exchange would then ensure that the information was put to its most valuable use. The attractiveness of this solution depends, however, on (1) the nature and source of the information and (2) transaction costs.

The strongest case for property rights in secrets is presented where such rights are necessary in order to encourage investment in the production of socially valuable information. This is the rationale for giving legal protection to the variety of commercial ideas, plans, and information encompassed by the term "trade secret." It also explains why the "shrewd bargainer" is not required to tell the other party to the bargain his true opinion of the values involved. A shrewd bargainer is, in part, one who invests resources in obtaining information about the true values of things. Were he forced to share this information with potential sellers, he would get no return on his investment and the process-basic to a market economy--by which goods are transferred through voluntary exchange into successively more valuable uses would be impaired. This is true even though the lack of candor in the bargaining process deprives it of some of its "voluntary" character.

At some point nondisclosure becomes fraud. One consideration relevant to deciding whether the line has been crossed is whether the information sought to be concealed by one of the transacting parties is a product of significant investment. If not, the social costs of nondisclosure are reduced. This may be decisive, for example, on the question whether the owner of a house should be required to disclose latent (nonobvious) defects to a purchaser. The ownership and maintenance of a house are costly and productive activities. But since knowledge of the house's defects is acquired by the owner costlessly (or nearly so), forcing him to disclose these defects will not reduce his incentive to invest in discovering them.

As examples of cases where transaction cost considerations argue against assigning a property right to the possessor of a secret, consider (1) whether the Bureau of the Census should be required to buy information from the firms or households that it interviews and (2) whether a magazine should be allowed to sell its subscriber list to another magazine without obtaining the subscribers' consent. Requiring the Bureau of the Census to pay (that is, assigning the property right in the information sought to the interviewee) would yield a skewed sample: the poor would be overrepresented, unless the bureau used a differentiated price schedule based on the different costs of disclosure (and hence prices for cooperating) to the people sampled. In the magazine case, the costs of obtaining subscriber approval would be high relative to the value of the list. If, therefore, we are confident that these lists are generally worth more to the purchasers than being shielded from possible unwanted solicitations is worth to the subscribers, we should assign the property right to the magazine, and this is what the law does.

The decision to assign the property right away from the individual is further supported, in both the census and subscription-list cases, by the fact that the costs of disclosure to the individual are low. They are low in the census case because the government takes precautions against disclosure of the information collected to creditors, tax collectors, or others who might have transactions with the individual in which they could use the information to gain an advantage over him. They are low in the subscription- list case because the information about the subscribers that is disclosed to the list purchaser is trivial and cannot be used to impose substantial costs on them.

Even though the type of private information discussed thus far is not in general discreditable to the individual to whom it pertains, we have seen that there may still be strong reasons for assigning the property right away from that individual. Much of the demand for privacy, however, concerns discreditable information - often information concerning past or present criminal activity or moral conduct at variance with a person's professed moral standards - and often the motive for concealment is, as suggested earlier, to mislead others. People also wish to conceal private information that, while not strictly discreditable, would if revealed correct misapprehensions that the individual is trying to exploit - as when a worker conceals a serious health problem from his employer or a prospective husband conceals his sterility from his fiancee. It is not clear why society in these cases should assign the property right in information to the individual to whom it pertains; and under the common law, generally it does not. A separate question, taken up a little later, is whether the decision to assign the property right away from the possessor of guilty secrets implies that any and all methods of uncovering those secrets should be permitted.

An analogy to the world of commerce may clarify why people should not - on economic grounds in any event-have a right to conceal material facts about themselves. We think it wrong (and inefficient) that a seller in hawking his wares should be permitted to make false or incomplete representations as to their quality. But people "sell" themselves as well as their goods. A person professes high standards of behavior in order to induce others to engage in social or business dealings with him from which he derives an advantage, but at the same time conceals some of the facts that the people with whom he deals need in order to form an accurate picture of his character. There are practical reasons for not imposing a general legal duty of full and frank disclosure of one's material personal shortcomings-a duty not to be a hypocrite. But each of us should be allowed to protect ourselves from disadvantageous transactions by ferreting out concealed facts about other individuals that are material to their implicit or explicit selfrepresentations. It is no answer that, in Brandeis's phrase, people have "the right to be let alone." Few people want to be let alone. They want to manipulate the world around them by selective disclosure of facts about themselves. Why should others be asked to take their selfserving claims at face value and prevented from obtaining the information necessary to verify or disprove these claims?

Some private information that people desire to conceal is not discreditable. In our culture, for example, most people do not like to be seen naked, quite apart from any discreditable fact that such observation might reveal. Since this reticence, unlike concealment of discreditable information, is not a source of social costs and since transaction costs are low, there is an economic case for assigning the property right in this area of private information to the individual; and this is what the common law does. I do not think, however, that many people have a general reticence that makes them wish to conceal nondiscrediting personal information. Anyone who has sat next to a stranger on an airplane or a ski lift knows the delight that some people take in talking about themselves to complete strangers. Reticence appears when one is speaking to people - friends, family, acquaintances, business associates - who might use information about him to gain an advantage in business or social transactions with him. Reticence is generally a means rather than an end.

The reluctance of many people to reveal their income is sometimes offered as an example of a desire for privacy that cannot be explained in purely instrumental terms. But I suggest that people conceal an unexpectedly low income because being thought to have a high income has value in credit markets and elsewhere, and they conceal an unexpectedly high income in order to (1) avoid the attention of tax collectors, kidnappers, and thieves, (2) fend off solicitations from charities and family members, and (3) preserve a reputation for generosity that would be shattered if the precise fraction of their income that was being given away were known. Points (1) and (2) may explain anonymous gifts to charity.

Prying, Eavesdropping, and Formality

To the extent that personal information is concealed in order to mislead, the case for giving it legal protection is, I have argued, weak. Protection would simply increase transaction costs, much as if we permitted fraud in the sale of goods.

However, it is also necessary to consider the means by which personal information is obtained. Prying by means of casual interrogation of acquaintances of the object of the prying must be distinguished from eavesdropping ( electronically or otherwise) on a person's conversations. A in conversation with B disparages C. If C has a right to hear this conversation, A, in choosing the words he uses to B, will have to consider the possible reactions of C. Conversation will be more costly because of the external effects and this will result in less -and less effective-communication. After people adjust to this new world of public conversation, even the Cs of the world will cease to derive much benefit in the way of greater information from conversational publicity: people will be more guarded in their speech. The principal effect of publicity will be to make conversation more formal and communication less effective rather than to increase the knowledge of interested third parties.

Stated differently, the costs of defamatory utterances and hence the cost-justified level of expenditures on avoiding defamation are greater the more publicity given the utterance. If every conversation were public, the time and other resources devoted to ensuring that one's speech was free from false or unintended slanders would rise. The additional costs are avoided by the simple and inexpensive expedient of permitting conversations to be private.

It is relevant to observe that language becomes less formal as society evolves. The languages of primitive peoples are more elaborate, more ceremonious, and more courteous than that of twentieth-century Americans. One reason may be that primitive people have little privacy. There are relatively few private conversations because third parties are normally present and the effects of the conversation on them must be taken into account. Even today, one observes that people speak more formally the greater the number of people present. The rise of privacy has facilitated private conversation and thereby enabled us to economize on communication-to speak with a brevity and informality apparently rare among primitive peoples. This valuable economy of communication would be undermined by allowing eavesdropping.

In some cases, to be sure, communication is not related to socially productive activity. Communication among criminal conspirators is an example. In these cases - where limited eavesdropping is indeed permitted - the effect of eavesdropping in reducing communication is not an objection to, but an advantage of, the eavesdropping.

The analysis here can readily be extended to efforts to obtain people's notes, letters, and other private papers; communication would be inhibited by such efforts. A more complex question is presented by photographic surveillance - for example, of the interior of a person's home. Privacy enables a person to dress and otherwise disport himself in his home without regard to the effect on third parties. This economizing property would be lost if the interior of the home were in the public domain. People dress not merely because of the effect on others but also because of the reticence, noted earlier, concerning nudity and other sensitive states. This is another reason for giving people a privacy right with regard to the places in which these sensitive states occur.

Ends and Means

The two main strands of my argument - relating to personal facts and to communications, respectively - can be joined by remarking the difference in this context between ends and means. With regard to ends, there is a prima facie case for assigning the property right in a secret that is a by-product of socially productive activity to the individual if its compelled disclosure would impair the incentives to engage in that activity; but there is a prima facie case for assigning the property right away from the individual if secrecy would reduce the social product by misleading others. However, the fact that under this analysis most facts about people belong in the public domain does not imply that intrusion on private communications should generally be permitted, given the effects of such intrusions on the costs of legitimate communications. ...

We have now sketched the essential elements of an economically based legal right of privacy:

(1) Trade and business secrets by which businessmen exploit their superior knowledge or skills would be protected. (The same principle would be applied to the personal level and would thus, for example, entitle the social host or hostess to conceal the recipe of a successful dinner.)

(2) Facts about people would generally not be protected. My ill health, evil temper, even my income would not be facts over which I had property rights, though I might be able to prevent their discovery by methods unduly intrusive under the third category.

(3) Eavesdropping and other forms of intrusive surveillance would be limited (so far as possible) to the discovery of illegal activities.

 Posner famously concludes

Discussions of the privacy question have contained a high degree of cant, sloganeering, emotion, and loose thinking. A fresh perspective on the question is offered by economic analysis, and by a close examination of the common law principles that have evolved under the influence (perhaps unconsciously) of economic perceptions. In the perspective offered by economics and by the common law, the recent legislative emphasis on favoring individual and denigrating corporate and organizational privacy stands revealed as still another example of perverse government regulation of social and economic life.