HealthMarks

'Leveraging Certification Marks for Public Health' by Margaret Chon and Maria Therese Fujiye in Alberto Alemanno and Enrico Bonadio (eds) The New Intellectual Property of Health (Edward Elgar, 2016) explores

 how certification marks might impact public health via consumer choice rather than by government mandate. Labeling and marking devices such as certification marks could provide greater information to consumers about health-related individual choices, but their full public health impact will be affected by the same factors that throw into question the effectiveness of other forms of disclosure, such as mandatory disclosure of nutrition labeling. These behavioral factors include consumer understanding of the information as well as consumer purchasing responses to this information. Another significant factor affecting their ultimate impact is the capacity of institutions to create and educate consumers about these marks as well as to maintain their informational integrity in the context of powerful countervailing market forces. Reliance upon market forces to promote better public health outcomes does not obviate the role of the state, which plays a crucial role in guarding and shaping core public interest goals, not only to encourage creative solutions to challenging public health problems, but also to constrain regulatory capture by private, market-based stakeholders.

Monoculture

The Australian Competition and Consumer Commission has released a 'Statement of Issues' on moves toward a newspaper monoculture in Queensland, i.e. the proposed acquisition by News Corporation of APN's Australian Regional Media (ARM) operations.

The ACCC states

 The proposed acquisition would combine the two main newspaper publishers in Queensland, adding ARM’s community and regional publications in Queensland and northern New South Wales to News’ extensive portfolio of community, regional, state, and national publications. The ACCC is investigating the effect that this would have on competition for both readers and advertisers. 

“One area of focus is the loss of competition between ARM’s paid regional newspapers and News’ The Courier Mail. If the proposed acquisition proceeds, News will own both The Courier Mail and the local paid newspaper in nearly every city or town in Queensland. This may result in a reduction of quality and diversity of content available to readers. Reinforcing that concern is that both News and ARM have a strong presence in online news through their websites associated with the Queensland newspapers,” ACCC Chairman Rod Sims said. 

“The ACCC is seeking to understand whether the competitive tension between News and ARM is an important factor in maintaining quality and range of content, or whether the threat of readers shifting to alternatives, particularly alternative online news sites, will competitively constrain News after the acquisition.”

It notes that ARM publishes paid daily regional papers in Mackay, Rockhampton, Gladstone, Bundaberg, Hervey Bay, Gympie, Sunshine Coast, Toowoomba, Ipswich and Warwick.  ARM and News both also publish overlapping community papers (mostly free papers with a strong local focus) in Caboolture/Bribie Island, south west Brisbane, Brisbane northern bayside, Logan, and Tweed Heads/southern Gold Coast.

The ACCC is seeking to assess the effect on readers and local advertisers in those areas, and to assess whether the reduction in competition is significant. “The ACCC will be assessing the importance of diversity of local content in these competing community publications. The ACCC is also seeking to understand whether advertising opportunities on other media platforms, such as local radio, pamphlets, and online, will constrain prices for advertising in the ARM and News community newspapers,” Mr Sims said. 

The ACCC helpfully provides an itemisation of ARM’s print publications

 North Queensland (Mackay region) 

Daily Mercury, The Midweek, Whitsunday Times, and Whitsunday Coast Guardian. 

Central Queensland 

The Morning Bulletin, The Observer, Capricorn Coast Mirror, Central Telegraph, and Central Queensland News, 

Wide Bay Burnett 

NewsMail, Fraser Coast Chronicle, The Gympie Times, Guardian, Isis Town and Country, Central and North Burnett Times, Hervey Bay Observer, The Maryborough Herald, Cooloola Advertiser and Hervey Bay Independent. 

South-East Queensland 

Sunshine Coast Daily, Sunshine Coast Sunday, Noosa News, Coolum and North Shore News, Maroochy Weekly, Kawana Weekly, Caloundra Weekly, Nambour Weekly and Buderim Chronicle. 

South-East Queensland 

Caboolture News, Bribie Weekly, The Logan Reporter, The Satellite, Bayside Northern Suburbs Star, The Queensland Times and The Ipswich Advertiser. 

South-West Queensland 

Warwick Daily News, The Chronicle, Stanthorpe Border Post, Dalby Herald, Gatton, Lockyer and Brisbane Valley Star, Laidley Plainland Leader, South Burnett Times, Southern Downs Weekly, Balonne Beacon, The Western Star, Western Times, Chinchilla News and Murilla Advertiser. 

Northern NSW (Gold Coast, Tweed and northern NSW) 

Tweed Daily News, Tweed Daily News – Community Edition, The Northern Star, The Daily Examiner, The Woolgoolga Advertiser, Byron Shire News, Ballina Shire Advocate, Lismore Echo, The Richmond River Express Examiner, Coastal Views, and The Coffs Coast Advocate. 

Specialist publications 

Surat Basin News, Rural Weekly (five editions, including a Northern Territory edition), Big Rigs, CQ Industry, Style Magazine, Seniors Newspaper (eight different editions distributed in South-East Queensland and NSW), and APN Educational Media publications (business-to-business publisher of Education Review, Nursing Review, Aged Care Insite and Campus Review).

Last month the ACCC indicated that it will not oppose the proposed acquisition of The Sunday Times and perthnow.com.au from News Corporation by Seven West Media (SWM), given its view that acquisition on balance is unlikely to "substantially lessen competition for either consumers or advertisers".

It noted in its August 2016 Statement of Issues that SWM has various print publications and online sites throughout Western Australia. SWM’s national media assets include the Seven Network, Pacific Magazines, and interests in Yahoo!7 and Sky News Australia. In Western Australia, it has The West Australian, The Weekend West, thewest.com.au and other media assets, including radio and community and regional newspapers. News is the publisher of various print media and online sites throughout Australia, including The Australian newspaper and news.com.au. In Western Australia, News also publishes The Sunday Times and perthnow.com.au.

The ACCC stated

 “On the consumer side, the large decline in print newspaper readership formed a major part of our analysis. Many consumers in Western Australia are now getting their news online or from other sources,” Mr Sims said. 

“With regards to SWM's ownership of thewest.com.au and the proposed acquisition of perthnow.com.au, we gave consideration to other online news alternatives for West Australians, including Fairfax’s WAtoday.com.au and ABC News’ dedicated Western Australian website.” 

Although some advertisers raised concerns about the loss of competition for advertising opportunities, most acknowledged that print advertising was of declining importance and identified other advertising options they could switch to if WAN attempted to increase rates. “ 

Advertising expenditure in print newspapers in Perth is in steep decline. Most of the advertisers we spoke to after publishing the Statement of Issues are spending less on print newspapers than a few years ago and are finding alternative ways of reaching target audiences, including via digital media,” Mr Sims said.

Online harms and law reform in Ireland

The Law Reform Commission of Ireland has released its report on Harmful Communications and Digital Safety.

 The Commission comments that its report

arises against the reality that we live in a truly interconnected digital and online world. The revolution in telecoms and digital media in the first two decades of the 21st century means that we can communicate with the world through social media on smart phones and other digital devices at virtually any time. This has brought enormous positive benefits, because it has facilitated a new form of online and digital consumer society and also allowed us to participate on a national and international level in civic society and in public discourse generally. This has greatly expanded the capacity to enjoy freedom of expression and of opinions in this jurisdiction and in comparable States.

This freedom has, however, also brought some negative aspects, including a tendency for some online and digital users to engage in communications that cause significant harm to others, including by posting online intimate images without consent and which involve gross breaches of the right to privacy. Examples include the intentional victim- shaming of individuals (overwhelmingly women) sometimes referred to as “revenge porn” (an unhelpful shorthand because it appears to suggest it is “just porn”). Other negative developments include intimidating and threatening online messages directed at private persons and public figures. New forms of technology have also facilitated a new type of voyeurism, sometimes referred to as “upskirting” and “down blousing” in which intimate images are taken and then posted online. In addition, there have also been many instances of online and digital harassment and stalking, which also mirror to some extent the pre-digital versions of these harmful behaviours.

Harmful communications and digital safety: criminal offences and civil law oversight

This project and Report has identified that the existing criminal law already addresses some of the harmful communications described. Not surprisingly, however, it has also identified some gaps that require reform, notably where new forms of communication have been used in harmful ways that could not have been anticipated previously. The Report therefore proposes that the existing criminal law, together with the proposals intended to deal with the new forms of harmful communications, could usefully be consolidated into a single piece of legislation, reflected in Part 2 of the draft Harmful Communications and Digital Safety Bill in Appendix A of this Report.

In addition, the public consultation carried out by the Commission leading to this Report (including a public seminar in 2015 hosted by the Commission, and a 2 day workshop with young people in 2016 facilitated by the Department of Children and Youth Affairs) has also underlined the need to address harmful communications in a wider context, which would include a system of statutory oversight that promotes and supports positive digital safety.

The Report recommends that this should be done under a proposed Office of the Digital Safety Commissioner of Ireland, modelled on comparable offices in Australia and New Zealand, and which could build on the existing Office of Internet Safety located in the Department of Justice and Equality. The proposed Commissioner would have a general oversight and monitoring role, including functions aimed at promoting online and digital safety generally. In this respect the Commissioner would collaborate with other relevant State bodies such as the Ombudsman for Children in the development, with the Department of Education and Skills and the Department of Children and Youth Affairs, of guidance material for young people and schools on what it means to be a safe and responsible digital citizen.

The proposed Digital Safety Commissioner would also oversee and monitor an efficient and effective “take down” system so that harmful communications can be removed as quickly as possible from, for example, social media sites. This would include the publication of a statutory code of practice on take down procedures and associated national standards, which would build on the current non-statutory take down procedures and standards already developed by the online and digital sector, including social media sites. The proposed statutory model envisages that applications for take down of harmful communications would initially be made to the relevant digital or online service provider, such as a social media site. The Digital Safety Commissioner would become involved by way of appeal if the take down procedure did not operate in accordance with the statutory standards – and the Commissioner would also have a general monitoring and supervisory role, as is the case in the Australia and New Zealand systems. These standard-setting and oversight proposals are reflected in Part 3 of the draft Harmful Communications and Digital Safety Bill in Appendix A of the Report.

The Commission is conscious of the important position that Ireland occupies in the digital sector, including the significant presence in the State of many of the leading online and digital multinational firms. In that context, the proposals made in this Report may have an impact not only in Ireland but also some extra-territorial effect outside the State because of the reach of the firms headquartered in Ireland. In this respect, the Report begins in Chapter 1 by noting the increasing regulation internationally of aspects of online and digital communications. This includes through the Council of Europe and the case law of its European Courts of Human Rights, as well as through the European Union and the case law of its Court of Justice, as well as EU legislation that affects this area.

It may be that, ultimately, some aspects of harmful communications, such as the extra- territorial scope of criminal and civil law in this area, will be addressed through regional or global agreements or conventions. For the present, this Report makes recommendations on extra-territoriality that reflect existing law, both in the criminal law and civil law oversight areas. ...

Guiding Principles in the Report

... Chapter 1 of this Report describes the Commission’s general approach to reform in this area. It discusses how the Commission was guided by key principles, including:

• the wider context within which law reform proposals should be considered, in particular the need to have in place solutions that involve education and empowerment concerning harmful digital and online communications; 

• the need to take account of relevant rights and interests, including to ensure that the law contains an appropriate balance between the right to freedom of expression on the one hand and the right to privacy on the other hand; 

• the principle of technology neutrality, which requires a focus on regulating actions and behaviour rather than simply the means used; and 

• the requirement for a proportionate legal response that recognises the respective roles of criminal law and of civil law and regulatory oversight: namely, that criminal law is used only where activity causes significant harm, and that civil law and regulatory oversight includes an efficient and effective take down procedure and a suitable statutory framework.

The wider context for this Report was fully analysed in the 2014 Report of the Internet Content Governance Advisory Group (ICGAG Report), which examined the general policy setting and governance arrangements needed to address harmful online material. In preparing this Report, the Commission has had the benefit of the discussion in the ICGAG Report of this wider context.

In relation to the need to balance the rights to freedom of expression and privacy, the Report discusses their recognition in the Constitution of Ireland as well as in the European Convention on Human Rights (ECHR) and EU law.

As to technology neutrality, this requires that the form of regulation neither imposes, nor discriminates in favour of, the use of a particular type of technology. However, technology neutrality does not necessarily require the same rules online and offline, but rather that the rules in both contexts achieve the same effect. This may require technology specific laws in certain cases. 

With regard to proportionality, this Report applies the harm principle, which requires that responses based on policy, education and the civil law should be prioritised and that the criminal law should only be employed to deal with serious harm. The Report therefore recommends a three level hierarchy of responses to target harmful digital communications: 

• Education: to create user empowerment and foster safe and positive digital citizenship;   

• Civil law and regulatory oversight: where education and related responses are ineffective and the law needs to be employed, civil law should be favoured as it is less onerous than the criminal law; 

• Criminal law: only the most serious harm should be subject to the criminal law.

This hierarchical approach is particularly important in the context of harmful digital communications because the ease with which individuals can post content online means that much internet communication is spontaneous and impulsive, and thus a vast amount of content is posted every day. A hierarchical approach is also necessary because this type of harmful communication often involves children and young people for whom the criminal justice process should be seen as a last resort and only after other responses, such as education or suitable diversion programmes, have been applied.

Reform of Criminal Law Concerning Harmful Communications

Harassment should include online or digital means of communication, and indirect forms

Chapter 2 of the Report begins with a discussion of whether the harassment offence in section 10 of the Non-Fatal Offences Against the Person Act 1997 should be extended to incorporate a specific reference to harassment by online or digital means of communication.

Section 10 of the 1997 Act already applies to direct harassment of a person “by any means”. However, as the Report describes, while this probably applies to direct online or digital harassment, it does not clearly address other forms of online harassment about a person, such as posting fake social media profiles. The Commission therefore recommends that the harassment offence should be amended to include a specific reference to harassment of or about a person by online or digital means: this would offer important clarification as to the scope of the offence.

The Commission also recommends that section 10 of the Non-Fatal Offences Against the Person Act 1997 should be repealed and replaced with an harassment offence that expressly applies to harassment by all forms of communication including through digital and online communications such as through a social media site or other internet medium. As already noted, the Commission considers that this reformed harassment offence should be included in a single piece of legislation that also includes the other offences discussed in this Report ....

Specific offence of stalking

Stalking is an aggravated form of harassment characterised by repeated, unwanted contact that occurs as a result of fixation or obsession and causes alarm, distress or harm to the victim. This element of intense obsession or fixation, which creates an unwanted intimacy between the stalker and the victim, differentiates stalking from harassment.

The Report discusses developments in Scotland and England and Wales where specific stalking offences were introduced in 2010 and 2012 respectively. The experiences of these jurisdictions strongly suggest that the introduction of specific stalking offences led to an increase in reporting and prosecution of stalking. Specifically naming stalking as an offence also carries great significance for victims of stalking, because of the “hidden” nature of the crime as well as its aggravated nature compared to harassment. The Commission therefore recommends that a specific stalking offence should be enacted.

Need to address once-off harmful communications

The Report also considers whether offences are required to target once-off harmful communications. Section 10 of the Non-Fatal Offences Against the Person Act 1997 is limited to persistent behaviour and thus does not apply to a single act that seriously interferes with a person’s peace and privacy or causes him or her alarm, distress or harm. This gap has become particularly apparent with the advance of digital and online communication, because the internet enables instant communication to large audiences, often anonymously (actual or, in some cases, perceived). These features of the online and digital environment mean that even a single communication has the capacity to interfere seriously with a person’s peace and privacy or cause alarm, distress or harm, particularly as internet communications are also difficult to erase completely.

A number of offences other than the harassment offence can be applied to some forms of harmful once-off behaviour, such as sending threatening messages in section 13 of the Post Office (Amendment) Act 1951, misuse of personal data under the Data Protection Acts 1988 and 2003 or “hacking” under the Criminal Damage Act 1991. However, none of these offences deals comprehensively with, for example, non- consensual distribution of intimate images of adults where this is done on a once-off basis, as opposed to persistently.

The Report examines how other jurisdictions, such as Canada, England and Wales, Scotland and the Australian state of Victoria, have legislated for this type of criminal behaviour. This includes offences designed to target non-consensual distribution of intimate images with intent to cause harm (the victim-shaming offence often called “revenge porn”) and other offences designed to target once-off harmful communications (to address what is often referred to as “upskirting” and “down-blousing”).

One of the most significant challenges when legislating for harmful online behaviour is to ensure that any offences are drafted with sufficient precision so that they are not vulnerable to being found unconstitutional on grounds of vagueness. The Report explores how the vagueness doctrine has been applied in the Irish courts as well as discussing pertinent examples of legislation dealing with harmful internet communications that have been found to be unconstitutionally vague in Ireland and other jurisdictions.

Offence of sending or threatening or indecent messages should apply to online communications

The Commission reiterates the recommendation in the 2014 Report of the Internet Content Governance Advisory Group (ICGAG Report) that the offence of sending threatening or indecent messages, in section 13 of the Post Office (Amendment) Act 1951 (which is currently limited to communication by letter, phone and SMS text), should be extended to apply to online communications. The Report recommends that the section 13 offence should be repealed and replaced with an offence of distributing a threatening, false, indecent or obscene message by any means of communication and with the intent to cause alarm, distress of harm or being reckless as to this.

New offence to address once-off intentional online victim-shaming (“revenge porn”)

The Report recommends that there should be a new offence to target the non- consensual distribution of intimate images, including where this involves a once-off incident. This would deal with the victim-shaming behaviour where a person posts or otherwise distributes intimate images such as photos or videos with the intention of causing another person harm or distress (the so-called “revenge porn” cases). The Commission therefore recommends the enactment of an offence involving the distribution of intimate images without the consent of the person depicted in the image and where there is intent to cause alarm, distress of harm or being reckless as to this.

New offence to address other once-off posting of intimate images without consent (“upskirting”)

In some instances, including in the case of young people, intimate images obtained are shared spontaneously or without considering the impact on the person concerned, or are re-distributed by third parties without consent. These cases may not be capable of being prosecuted under the victim-shaming offence recommended above because the intent to cause alarm, distress or harm element may not be present. The Commission therefore recommends that a separate offence should be introduced to target the non-consensual taking and distribution of intimate images without intent to cause alarm, distress or harm. This would address the so-called “upskirting” and “down-blousing” behaviour, which is a form of voyeurism.

Protecting the privacy of victims

The distribution of intimate images has the potential to cause the persons depicted in such images significant harm in the form of distress, humiliation and shame. The victims of such activity may thus be discouraged to report to the Gardaí and pursue a prosecution for fear of generating more publicity for the images in question. The Commission therefore recommends that in any prosecution for a harmful communications offence provided for in the Report, the privacy of the person in respect of whom the offence is alleged to have been committed should be protected.

Consent of DPP for cases involving persons under 17

The Commission recommends that no prosecution for the offences discussed in the Report may be brought against children under the age of 17 except by or with the consent of the Director of Public Prosecutions. The procedural protection reflects the Commission’s strong view that it would be highly undesirable to criminalise children under the age of 17 years for behaviour undertaken as a result of their inherent immaturity and where there is no intention to cause serious distress. It also reflects one of the Commission’s guiding principles in this Report, that in the case of children and young people, the criminal justice process should be seen as a last resort and only after other responses, such as education or suitable diversion programmes, have been applied.

2 year time limit for summary prosecutions

The Commission recommends that the general 6 month time limit for bringing a summary prosecution (in the District Court), in section 10(4) of the Petty Sessions (Ireland) Act 1851, should not apply. Instead a 2 year time limit should apply for summary prosecution of harmful communications offences. Frequently, these cases require the collection of evidence from websites with servers located outside the jurisdiction. Such content can only be obtained through the use of the Mutual Legal Assistance Treaty procedure, which can take up to 18 months to be completed. This is a significant problem in summary proceedings because the 6 month time limit will have expired before the relevant content has been received and so extending this time limit for harmful communications offences to 2 years would ensure that summary prosecutions for such offences will not be prevented by a restrictive time limit. No specific time limit applies to prosecutions on indictment. 

Jurisdiction and extra-territoriality in criminal law 

In general, criminal jurisdiction is territorial, meaning that it is usually limited to offences committed within the territory of the State. Article 29.8 of the Constitution provides that the State may legislate with extra-territorial effect, which must be done expressly. There are a number of examples where the Oireachtas has expressly provided that offences have extra-territorial effect, including under the Criminal Damage Act 1991 and the Sexual Offences (Jurisdiction) Act 1996. The Report recommends extra-territorial effect should apply to the harmful communications offences discussed in the Report, and that the approach taken in the Criminal Justice (Offences Relating to Information Systems) Bill 2016, which concerns a comparable area, should be adopted. 

This would allow for extra-territorial jurisdiction for harmful communications offences where: (a) a harmful communications offence is committed by a person in the State in relation to a means of communication that is located outside the State, (b) a harmful communications offence is committed by a person outside the State in relation to a means of communication in the State or (c) a harmful communications offence is committed by a person outside the State if the person is an Irish citizen, a person ordinarily resident in the State, an undertaking established under the law of the State, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of the Companies Act 2014 and the offence is an offence under the law of the place where the act was committed.

Penalties on conviction

The Report outlines the current penalties that apply on conviction for offences relating to harmful digital communications and makes recommendations for the penalties that should accompany the offences provided for in the Report.

The Commission considers that the maximum penalties for the harassment offence under section 10 of the Non-Fatal Offences Against the Person Act 1997 are sufficient and provide a suitable upper level for penalties that should apply to the reformed harassment offence and to the other 3 intent-based offences proposed in the Report. The Commission therefore recommends that the intent-based offences in the Report should carry, on summary conviction, maximum penalties of a Class A fine (currently, a fine not exceeding €5,000) and/or up to 12 months imprisonment, and on conviction on indictment, an unlimited fine and/or up to 7 years imprisonment.

The Commission recommends that the fifth offence dealt with in the Report, of taking or distributing an intimate image without consent (to deal with so-called “upskirting” and “down-blousing”), should be a summary offence only, and that the maximum penalties on conviction under this offence should be a Class A fine and/or up to 6 months imprisonment.

Intersection with hate crime

The Report has also explored the extent to which the current law on hate crime intersects or overlaps with harmful online and digital communications.

The main legislation designed to deal with hate crime is the Prohibition of Incitement to Hatred Act 1989. The 1989 Act prohibits incitement to hatred against a group of persons on account of their “race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.” Incitement includes publication, broadcast and preparation of materials. The 1989 Act is not limited to offline behaviour as it extends to words used, behaviour or material displayed in “any place other than inside a private residence.” However, the 1989 Act has been subject to significant criticism for its perceived inefficacy, illustrated by the limited number of prosecutions that have been taken under it.

Ireland intends to ratify the Council of Europe Convention on Cybercrime, and has been encouraged to ratify the Additional Protocol to the Convention concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems. Ireland is also obliged to implement the 2008 EU Framework Decision on combating racism and xenophobia.

In this respect it is clear that comprehensive reform of hate crime legislation is due to be enacted in the future, and the Commission considers that it would not therefore be appropriate to address separately, in this Report, online hate speech only. Because wide-ranging reform of hate speech is outside of the scope of this project, the Commission recommends that online hate speech should be addressed as part of the general reform of hate crime law.

Digital Safety Oversight, Take Down Procedure and Civil Law

Absence of effective oversight system or civil remedies

Chapter 3 of the Report addresses the need for an oversight system to promote digital safety, including an efficient take down procedure for harmful digital communications.

The chapter begins by describing the existing, non-statutory, content and conduct policies of social media companies and their reporting and takedown processes. The Report then discusses the existing civil remedies that apply in relation to harmful digital communications including the remedies available under the Defamation Act 2009 and remedies for breach of the constitutional right to privacy. The remedies under the Data Protection Acts 1988 and 2003 are also considered as well as the developments that have taken place in EU law on data protection and privacy, including case law of the EU Court of Justice and the 2016 General Data Protection Regulation.

The Report acknowledges that available processes and remedies may not be effective, and that the potential cost, complexity and length of civil proceedings may prevent victims of harmful digital communications from obtaining redress in court. A victim of harmful communications should be able to have a readily accessible and effective take down procedure available to him or her.

(Digital Safety Commissioner would promote internet safety and oversee take down procedures

The Report describes the enactment of New Zealand’s Harmful Digital Communications Act 2015 and Australia’s Enhancing Online Safety for Children Act 2015, which have established statutory bodies to promote online and digital safety and to provide oversight of take down procedures operated by online service providers such as social media sites. 

The Report recommends that an Office of the Digital Safety Commissioner of Ireland should be established on a statutory basis, broadly modelled on the Australian approach. The Digital Safety Commissioner would have functions related to promoting online safety as well as overseeing and monitoring an efficient and effective procedure for takedown of harmful digital communications. 

The Commission considers that the Office of Internet Safety, which was established in the Department of Justice and Equality to take a lead role for internet safety in Ireland, may be a suitable body to take on the role of the Digital Safety Commissioner. The Report notes that this would require decisions by the Government and Oireachtas on the necessary funding and staffing of the Office of the Commissioner, and that these are matters outside the scope of this Commission’s role.

The Commissioner’s educational and promotional roles

The Report recommends that the Digital Safety Commissioner’s functions should include an educational and promotional role concerning digital safety in collaboration with relevant Government Departments and State bodies. In the specific context of internet safety for children and young people, the Report envisages that the Commissioner would liaise with the Ombudsman for Children in the development, with the Department of Education and Skills and the Department of Children and Youth Affairs, of guidance material for young people and schools on what it means to be a safe and responsible digital citizen. It would also include guidance on the use of mediation and restorative processes.

The Commissioner’s oversight and supervision functions

The oversight and supervision functions of the Commissioner would operate in a similar way to the Australian e-Safety Commissioner, requiring digital service undertakings to comply with a statutory code of practice, developed after suitable consultation by the Digital Safety Commissioner. The statutory framework would also include National Digital Safety Standards, which would require the digital service undertaking to have in place a provision prohibiting the posting of harmful digital communications, a complaints scheme whereby users can request free of charge the removal of harmful digital communications, a timeline for responding to complaints and a contact person to engage with the Commissioner.

If the Commissioner were to be satisfied that a digital service undertaking complied with the code of practice and the National Digital Safety Standards, the Commissioner would be empowered to issue a certificate of compliance, which would have the presumptive effect that the digital service undertaking was in compliance with the code and the standards. The Report proposes that the Digital Safety Commissioner should have responsibility for harmful content involving all individuals, adults and children.

Proposed take down procedure

The proposed take down procedure would require a user initially to make his or her complaint directly to the relevant digital service undertaking, such as a social media site. If the content was not taken down in accordance with the time specified in the code of practice, the user could make a complaint to the Commissioner. The Commissioner would then investigate the complaint and if the complaint were to be upheld, the Commissioner would direct the digital service undertaking to remove the specified communication and would revoke the certificate of compliance issued to the provider. If the digital service undertaking were to refuse to comply with the direction of the Commissioner to remove the communication, the Commissioner could apply to the Circuit Court for an order requiring compliance by the undertaking.

Civil restraining orders for harmful communications

Section 10 of the Non-Fatal Offences Against the Person Act 1997, unlike the English and Welsh Protection from Harassment Act 1997, does not allow separate civil proceedings to be brought based on its provisions. However, section 10(3) of the 1997 Act empowers a court to make a restraining order restricting a person from communicating and/or approaching the victim where the person has been convicted of harassment. Section 10(5) of the 1997 Act also allows restraining orders to be made where a person has been acquitted of harassment.

The Report recommends that, in cases involving the harmful communications discussed in this Report, restraining orders should be available without the need to initiate criminal proceedings. This would provide victims with a valuable remedy in cases where criminal proceedings may be unsuitable or undesirable from the perspective of the victim.

Court powers in intended civil proceedings: Norwich Pharmacal orders 

Norwich Pharmacal orders allow for the disclosure of the name and IP address of parties unknown to the plaintiff against whom the plaintiff intends to issue civil proceedings for alleged wrongful conduct.

At present, Norwich Pharmacal orders are not provided for in legislation, and only the High Court can issue them as part of its inherent jurisdiction. This means that the cost of obtaining such orders is high and the remedy is not available to many individuals. The 2014 Report of the Internet Content Governance Advisory Group recommended that the power to make such orders should be placed on a statutory basis and extended to the Circuit Court. The Commission agrees with this recommendation.

Currently, Norwich Pharmacal orders usually involve a two-step mechanism whereby an individual has to first seek an order against the relevant website to disclose user and IP details. Once furnished, these details may lead to data held by a telecoms company, many of whom require a second Norwich Pharmacal order before agreeing to disclosure. The Commission therefore recommends that a one-step procedure be adopted for such orders whereby only one application would be required which would apply to both the relevant website and the telecoms company.

The Commission also recommends that the person alleged to have posted the harmful communication should be given the opportunity of appearing and making representations before the court makes a Norwich Pharmacal order, because at present such orders are granted on an ex parte basis (without notice to the affected party), which may infringe the right to fair procedures and to anonymous speech.

Jurisdiction and extra-territoriality in civil law

The Report also makes recommendations in relation to the extra-territorial role of the proposed Digital Safety Commissioner and in connection with the civil remedies discussed above.

The Report recommends that the territorial scope of these civil aspects of harmful communications should, in general, apply to harmful communications where: (a) such harmful communications affect an Irish citizen or a person ordinarily resident in the State, and (b) the means of communication used in connection with such harmful communications are within the control of an undertaking or company established under the law of the State.

The Commission also recommends that they should have some extra-territorial effect in connection with an Irish citizen or a person ordinarily resident in the State. This should reflect the approach taken in connection with the extra-territorial enforcement of civil proceedings generally, including under the “service out” procedures in the Rules of the Superior Courts 1986. 

The Report therefore recommends that this extra-territorial effect would be where the means of communication used in connection with harmful communications are within the control of an undertaking established under the law of another State but where an Irish court would have jurisdiction to give notice of service outside the State in respect of civil proceedings to which such harmful communications refer.

Juries and Disability

In Lyons v State of Queensland [2016] HCA 38 the High Court has dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland regarding discrimination and jury service.

The High Court held that the Court of Appeal did not err in holding that the appellant - who is profoundly deaf - was not discriminated against when she was excluded from jury service.

Lyons had been summoned in 2012 for jury service by the Deputy Registrar of the Ipswich District Court. She contacted the Ipswich Courthouse advising that she would require the services of two Australian Sign Language (Auslan) interpreters. In response the Deputy Registrar indicated that there was no provision under the Jury Act 1995 (Qld) to administer an oath to an interpreter for a juror. It was not possible for an interpreter to be present in the jury room during its deliberations.

Lyons' complaint to the Anti-Discrimination Commission of Queensland was referred to the Queensland Civil and Administrative Tribunal (QCAT). She asserted in Lyons v State of Queensland (No 2) [2013] QCAT 731 that the Deputy Registrar contravened prohibitions under the Anti-Discrimination Act 1991 (Qld) regarding direct and indirect discrimination in the performance of a function or the exercise of a power under Queensland law.

She asserted that her dignity had been affronted. She asserted that exclusion on the basis of her impairment constituted direct discrimination. She also asserted that the Deputy Registrar had imposed a condition on her participation in the jury process, constituting indirect discrimination. She souight compensation of $20,000.

In considering the assertions QCAT found that the Deputy Registrar's understanding of the Jury Act was incorrect. However it accepted that the Deputy Registrar had not unlawfully discriminated against the appellant. Lyons appealed to QCAT's Appeal Tribunal, which dismissed the appeal and held in Lyons v State of Queensland [2014] QCATA 302 that the Deputy Registrar's understanding of the Jury Act was correct. The Court of Appeal refused leave to appeal from the Appeal Tribunal's decision. By grant of special leave, the appellant then appealed to the High Court.

The High Court today held that, absent specific legislative provision, Queensland law did not permit an Auslan interpreter to be present during jury deliberations. Accordingly, Lyons was not qualified to serve as a juror. The Deputy Registrar was required to exclude her from the jury panel.

As a consequence, the Court held that exercise of the Deputy Registrar's powers in conformity with the Jury Act 1995 (Qld)  did not infringe the relevant prohibitions under the Anti-Discrimination Act against discrimination.

It may be, as the appellant submits, that the secrecy of the jury's deliberations would not be compromised by the presence of an accredited Auslan interpreter in the jury room during the jury's deliberations. Nonetheless, Douglas J was right to hold that, absent specific legislative provision for that to occur, Queensland law does not permit an Auslan interpreter to be present during the jury's deliberations.

Data Mining Advocacy

In tweeting yesterday I noted the launch of Data Governance Australia (DGA), the 'data governance industry association'.

DGA is described as

a not-for-profit association, established to promote the responsible use of data.

Our role is to help build consumer trust through industry standards, whilst maintaining a legal environment that allows Australian businesses to thrive.

We are committed to creating industry standards and bench marks around the collection, use and management of data in Australia. DGA provides you and your organisation with education, thought leadership and advocacy services. At the same time we'll help you to comply with all data regulatory requirements.

You’ll be kept up to date on global trends, industry events and knowhow across all aspects of data governance, driving customer trust and better business outcomes

Unsurprisingly, its board appears to have no consumer representatives. The Directors instead come from Quantium, Signal, NAB, Westpac, Scentre, Veda (Equifax), Woolworths, Data Republic, IAG, Qantas Loyalty, Allens and Flybuys/Coles.

DGA is described as intended to

provide advocacy, education, support and thought leadership on all aspects of data usage and will operate alongside its sister associations ADMA, AIMIA and IAPA, all of which operate as separate associations, powered by a central expert team and resource base.

Given the problematical practice of some of those organisations the new body might more effectively "build consumer trust" through a close engagement with consumer advocates and representation by such advocates.

I remain perplexed by what appears to be a London street scene as the background graphic on the DGA site.

Copyright as Distributive Justice

'Copyright and Distributive Justice' by Justin Hughes and Robert P. Merges in (2016) 92 Notre Dame Law Review comments 

 When concerns about copyright’s effect on distributive justice are raised those concerns typically focus on access to information. Most of these discussions assume that by conferring control over access to copyrighted works, copyright in general concentrates wealth with corporations and a few individuals. This article takes a different perspective, proposing that copyright has been and remains an important tool for wealth distribution to a large and diverse group of individual creators. Our focus is not on the distribution of copyrighted works – who controls them and who has access to them. Instead, we concentrate on the distribution of income that flows from sales of copyrighted works. The income streams created by copyright, we argue, constitute another of copyright's contributions to distributive justice. Using a Rawlsian framework for distributive justice, we consider – both theoretically and empirically – how copyright law allows individuals to earn income and build wealth. We provide a sketch of Rawls’ theoretical structure for distributive justice, including a detailed look at Rawls’ canonical “Difference Principle.”

With Rawls’ framework in the background, we first show that copyright contributes vitally to the incomes of average-earning creative professionals (with a focus on the music industry). Second, we argue that copyright is a uniquely effective institution in providing “equality of opportunity” in wealth accumulation. In this regard, we propose that copyright has been central to whatever limited “equality of opportunity” African-Americans have enjoyed in the United States. Indeed, for the wealthiest African-Americans, copyright has been the most important form of property for social and economic advancement. This is so, we argue, because copyright is one of the few social institutions that permit a person to turn labor directly into economic assets (in the form of copyrighted works), and hence to create real, sustainable wealth starting only with personal labor. This, we conclude, is an important dimension of copyright’s role in overall distributive justice.

The authors conclude -

The dominant discourse in copyright scholarship has treated creative individuals only as a means to an end: generation of original expression. When scholars have expressed any concern at all about distributive justice, it has been only about fair access to information and material, in other words, as a bookend to the dominant utilitarian analysis. But when we turn our attention away from considerations of fair access to works, and to- ward considerations of a fair distribution of income and wealth, we come to see a neglected side of copyright. Our main point throughout has been this: from the limited evidence available, the copyright system appears to contribute positively and significantly to economic distributive justice in the U.S. economy.

Using the framework of John Rawls’ principles of justice, we have explored how copyright increases the income of middle tier members of society who are trying to support themselves in creative professions, professions we all – everyone from politicians to law professors – laud as part of the desirable ‘information economy’ future. We have also reviewed mechanisms in existing copyright law – from minor procedural speed bumps to termination of transfer – that show copyright’s orientation to protect the prospects of creative individuals. We have also discussed other tools in the copyright toolbox to improve the distributive footprint left by copyright, including droit de suite for artists and equitable remuneration mechanisms used in other developed economies.

Another requirement of Rawlsian distributive justice is that all individuals have fair equality of opportunity for all “offices and positions.” There is no question that American society as a whole has failed to provide such equality of opportunity for women and minorities, particularly for African-Americans. In that context, copyright has been a rare if not unique institution providing opportunity for African-Americans to achieve the greatest economic success: the list of the wealthiest black citizens of the U.S. is utterly dominated by people whose fortunes are rooted in the copyright industries: entertainment, music, sports, publishing, and the like. Given the massive economic barriers facing the African-American community generally, this is a striking realization. Not that copyright in itself is an effective anti-poverty program; not that it offsets structural racism in its myriad forms. Our point here is simply that copyright has been uniquely effective in permitting African-Americans something closer to fair equality of opportunity to achieve the highest levels of wealth.

In the end, our argument is simple: copyright, though a form of property, does not only or disproportionately reward large corporate interests. Copyright is, and can be, an important tool to promote a just distribution of income and wealth in society.

This has political as well as economic ramifications. The historian and biographer A.N. Wilson wrote in the 1980s that “[p]roperty never has been abolished and never will be abolished. It is simply a question of who has it. And the fairest system ever devised is one by which all, rather than none, [are] property owners.” That sentiment certainly comports with the vision of the Framers of the American Republic. These were individuals who saw property ownership as a bulwark against tyranny and a mechanism to advance the individual. The little dollop of economic power copyright confers helps creative people support themselves and a thriving creative class feeds our culture and ultimately our polity. In helping distribute income to creative individuals and supporting them as a professional class, copyright forms part of a thriving democratic republic and a just society

Terror and Intention

In R v Mohamed [2016] VSC 58 Melbourne man Amin Mohamed - a New Zealand citizen - has been sentenced under Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) s 7(1)(a) to 5 years and 6 months' imprisonment (non-parole period of 3 years and 6 months) for making preparations to travel to a foreign country to engage in hostile acts.

The judgment states

The three charges of which you were found guilty by the jury were constituted by three discrete acts: On 6 September 2013, being a New Zealand citizen, you applied for a New Zealand passport from Melbourne; On 19 September 2013, from Melbourne, you booked plane tickets for Istanbul and Turkey from where you intended to enter the foreign state of Syria; On 19 September 2013, while in Melbourne you obtained from Hamdi Alqudsi the contact details of ‘Omar’, who was to act as a guide ensuring safe passage for you and others from Turkey to Syria.

It continues

In straightforward terms, the clear purpose of the provisions under which you were charged was to ensure that Australia discharged its international obligation to make criminal the activities of someone like you who proposed to engage in hostile activities in a foreign state and/or assist foreign fighters to do so. That purpose in itself demonstrates the seriousness of your conduct. Like contemporary terrorism offences, the CFIR Act made criminal not only the specific act of engaging in hostile activities in a foreign state but, separately, acts which are performed in preparation with that intention. ...

On the prosecution’s case, the acts committed by you were criminal in nature because they each represented acts in preparation for entry into Syria with the intention of you engaging in hostile activities in that country. Objectively, this is very serious offending as the circumstances demonstrate.

At your trial, most of the evidence was not in contention. You had made arrangements, with the assistance and advice from Hamdi Alqudsi to travel from Australia to Istanbul in Turkey and then travel by air from Hatay, a town and province of Turkey, to Syria with the assistance of a man named Omar who was a contact given to you by Alqudsi. Though you were organising your own travel with the knowledge of Alqudsi, you were also organising and coordinating others who, like you, were travelling to Syria. The intention was to meet up with your fellow travellers in Istanbul prior to your proposed entry into Syria where you would be guided to particular locations.

During the making of these arrangements, you reported back to Alqudsi on how many other individuals were travelling, not necessarily with you, and the arrangements that had been made so that that information could be relayed by Alqudsi overseas.

On 20 September 2013, you left Melbourne and travelled to Sydney in readiness for a flight to Brisbane the following day, from where you were intending to board an international flight to begin the international aspect of your travel to Syria. For some time you had been the subject of surveillance by law enforcement authorities. Although unknown to you, your passport was cancelled during these events and the result was that you were prevented from traveling from Brisbane to Singapore by members of the Australian Federal Police.

The only issue raised during the course of your trial was whether the prosecution could prove, beyond reasonable doubt, that upon reaching Syria you intended to engage in hostile activities within the legal meaning of that phrase.

Lasry J explains

Lawfully monitored telephone conversations in which you were involved at the time reveal a number of conversations with Alqudsi, from whom you were receiving advice and instruction and to whom you were reporting. There were also conversations between you and other men who would be your fellow travellers. During these conversations, you were referred to by yourself and others as Abu Bilal. Also, during these conversations, certain code words were used in relation to what was being discussed for the purpose of avoiding detection. During the period you used four telephones – two of those were registered in other names and addresses and one of those phones was that of a work colleague.

On 28 August 2013, you gave notice to your employer that you would resign on 18 September 2013. The reason you gave for that, concerning your mother and a terminal illness, was false.

The intercepted telephone conversations that you were involved in began on 5 September 2013. There were four phone calls on that day, with you using more than one phone to participate. You were told by Alqudsi to use a safe phone number. In the conversations that followed you were told that, in effect, there was to be a big operation, which was obviously in Syria and would involve martyrdom, and that there was an urgency about you and others from Australia getting over there [Syria]. You said you could be ready. There were extensive discussions about the arrangements. In a further conversation, there was more discussion about money and the idea that there was no turning back.

You said in your evidence before the jury that this conversation with Alqudsi just flowed and was moving along. You said you did not pause and think. You claimed that the evidence referred only to the plan to go to Syria and was not a reference to fighting. You said that the only reason you used coded language was because you did not want to be stopped from going to Syria but it was not your intention to engage in hostile activities. Clearly the jury rejected that, and did so beyond reasonable doubt.

As to the quote ‘front line’ referred to in that conversation, you claimed you thought that meant prayer not battle.  In a later conversation, Alqudsi again referred to the battlefield and martyrdom and you said you knew what was being said to you but did not agree that the conversations were being directed at you. Also, in that first conversation there was discussion about ‘red flags’ and about money being taken and also whether you ‘had the boys ready’.

On 6 September 2013, you rang the New Zealand Passport office and made arrangements to apply for a new New Zealand passport. You told the passport officer to whom you spoke that your passport had been lost. There were then conversations with other participants at that time about the arrangements for travel. These continued on the following day. Also on 7 September 2013 you purchased a sim card for a mobile phone in the false name of Chris Wright. Your application for the New Zealand passport constitutes charge one on the indictment.

On 9 September 2013, an application from you for a new passport was received by the New Zealand Passport office with the appropriate fee. As the evidence and Crown summary indicate, there were further phone calls with Alqudsi. You reported to him on the travel arrangements. There were discussions about altering the appearance of the travellers by shaving their beards and doing other things to avoid suspicion. You were warned not to refer to Hatay airport if questioned. The need for secrecy was emphasised. Later that day, the arrangements were altered with travel to be delayed because the passport of a man named Abu Dujanah had been confiscated by the authorities. Your original plan was to depart on 15 September 2013 but, in view of those developments and the risk of being observed, that departure was delayed.

The arrangements continued on 16 September 2013 and they began with a conversation with Alqudsi in which you told him that all was in readiness.

There were several other phone calls on 16 September 2013 between you and your fellow travellers during which respective travel arrangements were discussed.

On 19 September 2013, you booked a flight from Singapore to Istanbul via Doha. That conduct is the basis of charge two. On the following day, you booked flights from Sydney to Brisbane and from there to Singapore.

On the same day, you obtained the contact details for ‘Omar’ from Alqudsi. Omar was the person who would assist you to travel from Hatay airport into Syria. That is the basis of charge three. The details were provided by Alqudsi, who told you not to come and visit him in Sydney as to do so would endanger your trip. It was on this day, 19 September 2013, that your new passport was cancelled.

On 20 September 2013, you boarded a flight to Sydney from Melbourne Airport. On the following day, 21 September 2013, you travelled from Sydney to Brisbane and, at Brisbane Airport, members of the Australian Customs Service reacted to an alert that was attached to your record and you were stopped from checking in to the international flight. You were prevented from leaving the country because of the cancellation of your passport. Though prevented from travelling on that day, you were not arrested.

On 23 and 24 September 2013, you communicated with the New Zealand Passport office about the cancellation of your passport and gave detailed explanations, which you admitted were lies, about why you were travelling and where you were going. You had said that you were going to Denmark to meet your fiancé and that she would buy you a ticket to get from Turkey to Denmark.

From then on until your subsequent arrest you were in Melbourne and Sydney where you resumed working and seemed to have no further contact with Alqudsi.

On Tuesday 3 December 2013, you were arrested by police in Sydney. I will return to the circumstances of what followed, including your time in custody, shortly.

In discussing intention to engage in hostile activitythe judgment states

the main issue in your trial was whether or not the Crown could prove beyond reasonable doubt that your intention in going into Syria was to engage in hostile activity. In your sworn evidence at your trial, you denied that was your intention and said:

My intention was still the same when I had decided to go to Syria. That was the first make the migration for the sake of God, and with the migration also from our teachings is that the person who makes this migration if it is successful that all his sins behind him are wiped away, so for me it was migration redemption, go to Syria, be with my cousin. The only thing that had changed was the fact that now I had some few other guys come with me and the intention remained the same of going there, and at that time I never called it humanitarian work, but helping the people in the way that my cousin was at that time.

Clearly the jury rejected that evidence, and you must be sentenced on the basis that your intention in travelling to Syria was to engage in hostile activity. A question arises as to what that means for the purpose of sentencing you in this case.

In directing the jury during the course of your trial, and pursuant to a ruling  I delivered before the trial started, I said:

The law says that engaging in a hostile activity in a foreign state consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved): (a) the overthrow by a force or violence of the government of the foreign state or of a part of a foreign state; (aa) engaging in armed hostilities in the foreign states; (b) causing by force or violence the public in the foreign state to be in fear of suffering, death or personal injury; (c) causing the death of, or bodily injury to, a person who: (i) is the head of the foreign state; or (ii) holds, or performs any of the duties of, a public office of the foreign state or of a part of a foreign state; or (d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign state or of a part of a foreign state. Now in this case the particular form of hostile activity that the Crown rely on is engaging in armed hostilities in the foreign state being Syria. So, if you are satisfied that the accused intended to go to Syria to fight; to go to the ‘front line’ and/or to ‘be a martyr’ in all likelihood you would be satisfied that he intended to engage in armed hostilities. An intent to engage in armed hostilities does not require proof that the intention was to be involved in regular armed forces of a nation state. Nor does it require proof of the intention to pursue any particular political objective.

On the basis of the jury’s verdict, I propose to sentence you as a person who intended to go to Syria to fight in the conflict, which was going on in that country at that time, and to go to what you regarded as the ‘front line’ and, if necessary, to be a ‘martyr’, which may have involved your death in some form of armed conflict. The evidence does not support a conclusion which is any more specific than that. Whilst you were obviously willingly involved you did not declare any more specific intention. I do not think you would have lasted long. You do not seem to have any previous experience that would have equipped you for what you apparently wanted to do. That may be a clear indicator of how misguided your state of mind was at the time.

I accept your counsel’s point that the circumstances in Syria in 2013 were different from those that prevail at present, though there is no evidence about the detail of that before me. In my opinion, it is enough for sentencing purposes to act on the basis that Syria is a foreign state; there was and is a conflict going on in that country which you were intending to participate in. For these purposes, I make no further judgements about the nature of that conflict, either then or now. ...

Having been stopped from travelling in Brisbane on 21 September 2013 by virtue of your New Zealand passport having been cancelled, you were not charged with the offences until 3 December 2013. You apparently returned to Melbourne and stayed with your mother before returning to Sydney to obtain employment with your former employer.

On being charged you were admitted to bail without opposition from the prosecution, and that effectively lasted until 7 January 2014 when you were detained under the Migration Act 1958 and held at Villawood Detention Centre until you were transferred to Maribyrnong Detention Centre on 11 July 2014, where you remained until your trial, which began in October 2015 and where you continued to remain until today.