Defamation

'Rebel Wilson's Pitch Perfect Defamation Victory' by David Rolph and Michael Douglas in (2018) 29(2) Entertainment Law Review 37  comments

Few successful defamation plaintiffs are awarded six figure defamation damages in Australia. This is principally because damages for non-economic loss in defamation claims — the principal, indeed usually the only, head of damages sought — are now capped under statute. Few high-profile celebrities sue for defamation to final judgment in Australian courts. So when the comedian and actress, Rebel Wilson, was recently awarded almost AUD 4.57 million damages by a judge of the Supreme Court of Victoria, the case is newsworthy and noteworthy. Wilson sued a number of related women’s magazine titles essentially over allegations that she serially lied about many aspects of her life. The award of damages to Wilson is the largest ever made by an Australian court for a defamation claim. Besides the record-breaking quantum, Wilson’s claim against Bauer Media is important because it is the first time the statutory cap on damages for non-economic loss — an important feature of the national, uniform defamation laws introduced a little over a decade ago —has been exceeded. It is also significant because not only is it one of the rare cases in Australia where damages for economic loss have been sought and granted, it is the first case in Australia where damages for economic loss have been calculated on the basis of loss of opportunity. Wilson v Bauer Media also raises some difficult doctrinal questions of the interaction between defamation law and conflict of laws, where an international celebrity sues locally for damage to reputation which, due to the "grapevine effect", occurs outside the jurisdiction.

The UTS Centre for Media Transition Trends in Digital Defamation report comments

 In our review of defamation cases and decisions over the five-year period, 2017 resembles 2013, but there were more cases in 2014, 2015 and 2016 ... 

New South Wales was found to be the preferred forum for defamation actions, as found by previous studies. More matters reached a substantive decision in New South Wales than in all other jurisdictions combined (95 cases for NSW, compared to 94 cases in all other jurisdictions). ...  

As well as the 189 cases we located through our searches, there were 609 related decisions (for example, separate rulings on evidence), requiring a significant commitment of resources on the part of defendants. And there were 322 other matters also in the system, including appeals from earlier decisions and preliminary decisions on new matters. Combining these two categories, we found at least 511 defamation ‘matters’ making their way through the Australian courts in the period 2013 to 2017. A complete picture of legal action on defamation   would include other matters that were the subject of summary dismissals, and the many matters that are settled before a claim is filed in court. 

Of the 189 defamation cases over the period 2013-17, 97 (51.3%) were digital cases. Perhaps surprisingly, there is still a solid number of cases (92, or 48.7%) that were not digital cases. 

Compared to a decade ago, the overall number of cases was similar. The number of defamation cases – that is, matters for which there was a substantive decision in that year – was almost the same in 2017 as in 2007 (30 compared to 29 cases). Not surprisingly, the proportion of digital defamation cases was much greater in 2017 (16 cases, 53.3%) than in 2007 (5 cases, 17.2%).

Our findings contradict common assumptions about public figures being the main users of defamation laws. It is becoming more common for private individuals to be the plaintiffs in defamation actions. Private individuals are also more likely to be the defendants (sometimes with their employers):

• In the period 2013 to 2017, only 21% of the plaintiffs in judgments we examined could be considered public figures; 

• Only 25.9% of the defendant ‘publishers’ were media companies. The form of digital publication varied: 

• There were three cases (all relating to search results) in which Google was the defendant; 

• There were 16 cases involving Facebook posts, 20 involving emails, four involving tweets and two involving text messages; 

• There were 37 cases involving websites not affiliated with media organisations, Facebook or Twitter.

Outcomes varied too, with the plaintiff successful in between 27.3% and 43.3% of cases in the years reviewed. Overall, about a third of plaintiffs were successful. Specifically, plaintiffs succeeded in 34.9% of cases, or 66 of the total 189 cases. 

This is an interesting result, suggesting that – even without taking into account the costs involved in defamation actions – litigation is in the majority of cases an unsatisfactory experience for someone who considers their reputation has been harmed. 

Of the 87 awards of damages made in the five years 2013 to 2017, 38 were of $100,000 or more.

The authors state

This report provides data on aspects of ‘digital defamation’ cases over the five-year period 2013 to 2017. It is intended as a short, sharp outline of one area of concern for journalism in an era of digital publishing, news aggregation and social media. 

In that respect, it is part of the exploration of change, challenge and adaptation facing the journalism that marks out the work of the Centre for Media Transition. It also demonstrates why we think work in this area often needs to be interdisciplinary – in this case, bringing together knowledge and experience from the disciplines of journalism and law. 

The report considers three key questions:

1. Who commences and proceeds with a defamation action, at least to the stage of an initial judgment of a court? 

2. Who are the ‘publishers’ these actions are brought against? 

3. What are the platforms on which defamatory matter is said to be published?

In examining ‘digital defamation’ we do not mean to dismiss publication in print or through broadcast media. In Australia, television, and some radio, is itself ‘digital’ and print media has published online for more than two decades. At shown by the decision in the action brought by former Treasurer Joe Hockey, the decisions made by publishers on where and how to publish can be critical in their exposure to claims of defamation. By ‘digital defamation’, then, we mean matters where publication in digital form is a core part, though not necessarily the exclusive form, of publication. 

Essentially, we set out to check some assumptions that availability of digital platforms, and a preference for them by many news consumers, could change the nature of who sues whom. The five-year period of this review makes some inroads into this analysis, and by way of brief comparison we apply our same method for investigating our three principal criteria to a single year (2007) a decade earlier, before the widespread adoption of social media. Utilising limited resources (specific limitations are noted in relevant chapters), the report should not be regarded as a definitive investigation of the issue. Rather, it aims to be an indicative review of ‘digital defamation’. Its findings point to the need for a broader debate among lawmakers at state and federal level as well as among the media industry and the platforms that have become essential to distributing the industry’s work. 

Similarly, as the report is limited to the above three points of inquiry, it is essentially an exercise in data analysis. As such, it should not be regarded as an analysis of the developing jurisprudence on defamation. However, some context is needed for this study of plaintiffs, defendants and platforms, so a brief overview of the current position on liability for publication online and in digital forms is set out below. 

Links, likes and lists: How the law treats digital defamation 

The starting point for many commentaries on defamation online is the early, defining judgment on place of publication, Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575. The certainty offered by this decision of the High Court of Australia in 2002, which set into law the proposition that an action for defamation can be brought in the place where someone downloads the material (where, it is said, the defamation is ‘published’), is not matched in the law’s application to other key issues in online publication. 

For media organisations, search engines and social media platforms, there are some common questions around ‘who is a publisher’. Resolution of disputes requires close examination of the facts of production, distribution and access, and the application of law to the facts of any case is complicated by the co-existence of common law principles with (partial) statutory protections. 

The question of liability generally begins by asking whether the digital platform has actively published the content itself, and is therefore a ‘primary publisher’. Under the principle in Webb v Bloch, every person who contributes to the publication of the defamatory material is liable – hence in traditional media environments, journalists and editors as well as publishing companies have been sued. The need for media organisations to exercise editorial control over what they publish, including their archives, has meant that the law of defamation has reached into their online activities, with some questions remaining over liability for some material. One example is the extent to which adoption or endorsement of hyperlinked material might extend liability, as discussed in Visscher v Maritime Union of Australia (No 6). 

But for web hosts, bulletin boards, search engines and others who are not media organisations, the issue may not be whether they are a primary publisher in their own right, but whether they become a secondary publisher through having knowledge of and control over the material and through not taking action. This principle has evolved under common law including from the English case of Byrne v Deane, but its application varies depending on the circumstances. If the party is considered to be a publisher, there may still be a defence, under common law and under Australia’s uniform defamation legislation, for innocent dissemination, which also raises elements of knowledge of the material. 

Differing views have been taken on whether the ‘passive’ character of an ISP can be applied to search engines, at least where the search engine does not also host the content (see the UK cases of Bunt v Tillery and Tamiz v Google Inc), and whether this changes when a search engine is aware of potentially defamatory material and fails to take action. The liability of search engines has been considered recently in decisions of the New South Wales Supreme Court, the Full Court of the South Australian Supreme Court, and the Victorian Court of Appeal. Leave to appeal the last of these decisions to the High Court of Australia has been granted. This may help determine whether the law in Australia protects algorithmic generation of material which is defamatory, taking into account the level of awareness and control over the content, and the effect of the search engine being notified by a complainant of offending material. 

In the social media environment, a user with, say, a Facebook page, may publish content and invite friends to like or comment on their post. Murray v Wishart, a decision of the New Zealand Court of Appeal, established that the person who has the Facebook page – not Facebook itself – could be liable as a publisher if they were aware of disputed content and failed to take action. 

There are many variations on the circumstances described above, as the law has attempted to deal with forms of digital distribution ranging from email to chat rooms. Some useful commentaries are listed in the Resources section at the end of this report. Further information on some of the cases mentioned here is found in Chapter 4, Digital Defamation Snapshots.

Consumer Data Right

The Treasurer has announced appointment of the Independent chair of the Consumer Data Right’s Data Standards Body

The Turnbull Government is continuing to progress our establishment of the Consumer Data Right, beginning with the Open Banking regime, which will provide Australians with more choice and better deals in the financial sector. 

Mr Andrew Stevens has been selected as the interim Chair of the Data Standards Body for the Consumer Data Right. 

The Consumer Data Right, starting in the banking sector with Open Banking, will give consumers greater control over the data that businesses hold on them. 

The Data Standards Body, established within the CSIRO’s Data61, is facilitating the development of data sharing standards that provide consumers with safe, convenient, and timely methods of accessing and transferring their data to trusted and accredited data recipients. 

The Independent Chair will ensure the standards maximise the benefits for consumers and are developed in consultation with technology firms, and consumer and privacy groups.

CSIRO’s Data61 has been appointed

to perform the role of a Data Standards Body for the Federal Government’s Consumer Data Right, which will give Australians greater control over their own data, including who receives it and how it is used, and open up competition across industry sectors.

Ectoplasm Ahoy!

Fancy a video conference with Kubilai Khan or Charles Manson, ? A two-way call with John Rawls or Aristotle? That's the prospect if you embrace claims made by the SoulPhone Foundation, a US entity that is researching communication with what legal pragmatists such as myself refer to as dead people.

The Foundation's site asks

imagine that science and technology have advanced to the point where it is only a matter of time before accurate and reliable devices will be available for us to continue our relationships with our loved ones who have “passed on,” but definitely not “passed away.” 

The Laboratory for Advances in Consciousness and Health (LACH) at the University of Arizona is actually progressing toward a working prototype of what my colleagues and I call the “SoulPhone.” We express this emerging historic development as the evolution from the cell phone, through the smart phone, to the SoulPhone. 

Now, imagine that this technology exists, and that you can literally text, speak to, or video conference with your child who has physically died. What we call “death” will have been radically transformed from “passing away” to “moving to” a different realm (like a different city, state, or country). ​

The site helpfully provides answers to several concerns -

Q. When contacting those “on the other side,” might we be intruding upon their rest or privacy? 

Two decades of contemporary research with genuine mediums clearly indicate that cooperating spirits want to communicate with their loved ones on earth. “Departed” loved ones and luminaries want to continue to be with us just as we wish to be with them. The evidence reveals that we on earth are not intruding upon the rest or privacy of those in spirit. We are, rather, enabling them to experience and express their love for us and the planet. 

Q. Could SoulPhone devices be used in negative or harmful ways as has occurred with the Internet and other technologies in the world today? 

There will always be those who use surgical knives to kill rather than cure. Some will use smart phones to trigger bombings instead of sending loving messages. Potential abuse of the SoulPhone is no different than for any other technology. Society must be educated in respecting the gift and power of this technology for humanity. 

Q. Will using the SoulPhone and communicating with spirits possibly leave ones self open to evil interference? 

We are very mindful of this possibility and have considered it for years. Here is not the place to describe how we address this profound question. There are technical ways to minimize abuse from “negative” spirits, but for reasons of intellectual property cannot be shared here. Insights from the science of Quantum Electro-Dynamics (QED) indicate that you get what you intend. For people who believe in evil spirits, those are very real. On the other hand, for example, evidential mediums who do not believe in negative spirits can truthfully say they have never observed one. So both those who perceive evil spirits, and those who don’t, are telling their truth. 

When using out-of-body (OBE) techniques, Robert Monroe of the Monroe Institute recommended intending that you will connect only with those on your energetic level or above. Another of his techniques involved encasing one's self in a protective shield. The SoulPhone technology may incorporate using one or more of these approaches to protect being “spiritually hacked.”

Potential consumers of the service or the 'protective shield' might want to read works such as Jeffrey Sconce, Haunted Media: Electronic Presence from Telegraphy to Television (Duke University Press, 2000) or John Durham Peters, Speaking Into the Air: A History of the Idea of Communication (University of Chicago Press, 2000).

Hoary old sceptic that I am, the SoulPhone - used to contact Elvis or otherwise - strikes me as sad, just like the work noted here.

Regulation and liability

'The Fatal Failure of the Regulatory State' by W. Kip Viscusi in William and Mary Law Review (Forthcoming) comments 

 While regulatory agencies place high values on the benefits associated with the reduction in mortality risks due to regulations, these same agencies substantially undervalue lives in their enforcement efforts. The disparity between the valuation of prospective risks and fatalities that have occurred is often by several orders of magnitude, diminishing whatever safety incentives the regulations might have generated. A review of the practices by the major federal agencies with responsibility for product safety and occupational safety finds that the value placed on fatalities in agencies’ regulatory analyses can be a factor of 1,000 times greater than the magnitude of the corresponding sanctions that the agency levies for regulatory violations that led to the fatalities. The source of the mismatch between the valuation of prospective risks and fatalities that have occurred can be traced to agencies’ dated and restrictive legislative mandates. This Article proposes revisions in these statutes to create more appropriate, stronger safety incentives. Setting the pertinent price to deter excessive risks will also foster corporate risk analyses so long as companies are also provided with pertinent legal protections.

In Europe the A common EU approach to liability rules and insurance for connected and autonomous vehicles European Added Value Assessment Accompanying the European Parliament's legislative own-initiative report document comments

Two key trends are shaping the future of personal mobility: first, a shift from human (driverdriven) to machine (driverless-supercomputer driven) control of vehicles and second, a shift from individual to shared ownership of vehicles. This European added value assessment (EAVA) focuses on the first trend, the shift from driver-driven to autonomous personal mobility, and more specifically on the regulation of civil liability for autonomous vehicles (AVs) at EU level. The main objective of this EAVA is to assess whether regulatory action on civil liability for AVs is justified at EU level and, if so, what would be the expected benefits and costs of such intervention. The analysis of European added value is informed by two expert studies specifically commissioned by the EPRS: 'Socio-economic analysis of the EU common approach on liability rules and insurance related to connected and autonomous vehicles' and 'Legal analysis of the EU common approach on the liability rules and insurance related to connected and autonomous vehicles'; it also draws on the results of the European Parliament's public consultation on robotics and artificial intelligence and on publicly available statistical data and publications. Accelerating the adoption curve for driverless or autonomous vehicles (AVs) by five years has the economic potential to generate European added value worth approximately €148 billion. It is therefore in the interest of the public regulator to ensure that the regulatory framework facilitates the adoption of AVs, thus helping to generate economic value. The expert national committees of Member States, high level expert groups set up by the European Commission, and recently adopted European Parliament resolutions have all underlined that the liability issues related to the adoption and use of AVs need to be clarified. 

The appropriation of risks in relation to the use of motor vehicles is currently regulated by two main EU legislative acts governing liability rules: the Motor Insurance Directive (2009/103/EC) and the Product Liability Directive (85/374/EEC). The current EU system of appropriation of risks related to motor vehicles generally works well and, as a comparative legal analysis suggests, would in principle be able to deal with the introduction of AVs to the market. However, the application of the existing rules to AVs will likely shift the existing balance in liability distribution between consumers and producers, further accentuate existing gaps, and could potentially contribute to legal and administrative costs in connection with uncertainties. If the current EU framework is not adjusted, in addition to existing gaps in the current EU legal framework, the introduction of AVs will contribute to the emergence of new gaps and legal grey areas. This is because the current legal framework was not developed to deal with the liability issues of AVs, which are technologically complex and stand distinctly apart from the motor vehicles currently on the roads. Four main categories of risk relating to the liability issues raised by AVs are likely to emerge or become significantly more prominent with the mass roll-out and use of AVs. The new risks include: risks relating to the failure of operating software enabling an AV to function, risks relating to network failures, risks related to hacking and cybercrime, and risks/external factors relating to programming choices. These four issues are not at all or not sufficiently addressed under the current Product Liability Directive - Motor Insurance Directive framework. 

If the above issues are not specifically addressed by the legislator, the current regulatory framework will result in many uncertainties, in particular relation to the new groups of risk identified above. In this context, it is likely that the cost of scientifically unknown risks will be borne by the injured parties and consumers will find it increasingly difficult to claim damages. This could ultimately lead to reduced consumer confidence in AVs and, consequently, to slower uptake of AVs in the market. 

An analysis of the gaps and limitations of the existing EU regulatory framework suggests that EU policy needs to respond by regulating liability issues relating to the roll-out and introduction of AVs. EU action should address three main sets of issues: first, the limitations and gaps relating to the current framework, specifically the shift in liability between parties; second, the need to adjust the current framework or introduce new rules to cover new risks; and third, the need to adjust or introduce new procedural rules allowing liability to be established for damages involving or caused by AVs. 

Four policy options to address the current shortcoming of the EU liability framework are compared and analysed: the status quo (Option 1); reform of the Product Liability Directive (Option 2); or Motor Insurance Directive (Option 3); and the introduction of new EU legislation and setting up of a no-fault insurance framework for damages resulting from AVs (Option 4). A comparative assessment is made of these policy options applying seven qualitative criteria: legal certainty, potential litigation burden, impact on innovation, impact on level of consumer protection, political acceptance, degree of regulatory intervention needed, and degree of dependence on soft law. On this basis it is argued that Option 4 (new EU legislation and insurance framework) is preferable as it has the greatest potential of the four policy options to address three sets of outstanding issues and gaps identified through comparative legal analysis. Revision of the existing regulation and/or the introduction of additional regulation on the allocation of risks related to AVs has the economic potential to generate European added value that could be lost if the no-action option is chosen. The European added value generated from the roll-out of AVs would be generated mainly by legislative measures facilitating their earlier adoption. Further added value from EU action could be generated at the mass AV adoption stage by measures aimed at reducing transaction and litigation costs arising from regulatory divergences between differing jurisdictions and measures to boost consumer trust in the new technologies. 

Coordinated action at EU level has the potential to contribute further to European added value by reducing the transaction costs resulting from the fragmentation of national legal systems and minimising litigation costs. Insufficient coordination among several jurisdictions on the adoption of regulatory rules enabling the testing, licensing and operation of autonomous technologies and vehicles could ultimately lead to unnecessary barriers to the development and deployment of new technological solutions. Clear rules at EU level would meanwhile contribute to legal certainty and would help to avoid transaction costs arising from divergent national legal rules.

Blood and Placentophagy

'CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity' by Paul Spruhan in (2018) 6(2) American Indian Law Journal comments

Native Americans are the only group in the United States that possess a document stating the amount of their “blood” to receive government benefits. The official name is a “Certificate of Degree of Indian or Alaska Native Blood,” or (CDIB) for short. As suggested in its name, the CDIB states the amount of “Indian” or “Alaska Native” blood possessed by the person named on the document.  It may be broken down by different tribal blood or may only state the amount of blood of a specific tribe.  It is certified by a Bureau of Indian Affairs (BIA) or tribal official authorized to issue it.  It may be printed on a standard eight and a half by eleven inch piece of paper or on a smaller card, which may or may not be laminated. 

Why does such a document exist in the United States in 2018? Simple in form, yet possessing immense bureaucratic power, the CDIB is a key that unlocks educational loans, medical services, employment preference, or other federal benefits unique to Native Americans,  and, in some circumstances, even enrollment as a member of a tribal nation. 

Simultaneously derided and coveted,  pervasive yet mysterious, the CDIB is one of the most important documents for Native Americans, but is issued with no direct statutory authority and governed by no formally published regulations. A CDIB may be issued directly by the BIA or by a tribal enrollment office operating under a “638” contract, but with no clear rules to govern how those offices grant or deny a CDIB or calculate the blood quantum listed on the document. 

This article is about the CDIB and its role in defining Native American legal identity. The purpose of the article is to describe the CDIB, its function, its statutory authority (or lack thereof), and the BIA’s recent attempts at issuing regulations, which no other article or book has done. First, I discuss its primary purpose as proof of blood quantum for specific federal statutes and regulations, and how its use has expanded to other purposes, including by tribes to define eligibility for membership. Second, I discuss its origins as an internal BIA document lacking any direct congressional authorization or published regulations and suggest several possibilities for its first appearance. I then discuss a 1986 Interior Board of Indian Appeals (IBIA) decision, Underwood v. Deputy Ass’t Secretary- Indian Affairs (Operations). In that decision, the IBIA blocked an attempt by the BIA to unilaterally alter a person’s blood quantum on a CDIB, because there were no properly issued regulations. I then discuss the BIA’s attempts at issuing regulations since 2000 and the possible reasons for why they have never been finalized. I then discuss potential remedies the BIA might consider in order to solve problems arising out of the CDIB program, including the potential misuse of CDIBs in current disenrollment conflicts within some tribes. In the conclusion, I discuss the CDIB’s role in enshrining “blood” as the dominant definition of Native American legal identity. I also argue that, for as long as the CDIB continues, the BIA has an affirmative obligation to issue clear policies that prevent its misuse in internal tribal conflicts.

In 2014 I noted the UK Food Standards Agency statement on placentophagy as a supposed novel food. A somewhat anaemic caution was offered locally by the TGA in January this year.

 'Human placentophagy: a review' by A Farr, F A Chervenak, L B McCullough, R N Baergen and A Grünebaum in (2018) 218(4) American Journal of Obstetrics and Gynecology comments

 Placentophagy or placentophagia, the postpartum ingestion of the placenta, is widespread among mammals; however, no contemporary human culture incorporates eating placenta postpartum as part of its traditions. At present, there is an increasing interest in placentophagy among postpartum women, especially in the United States. The placenta can be eaten raw, cooked, roasted, dehydrated, or encapsulated or through smoothies and tinctures. The most frequently used preparation appears to be placenta encapsulation after steaming and dehydration. Numerous companies offer to prepare the placenta for consumption, although the evidence for positive effects of human placentophagy is anecdotal and limited to self-reported surveys. Without any scientific evidence, individuals promoting placentophagy, especially in the form of placenta encapsulation, claim that it is associated with certain physical and psychosocial benefits. We found that there is no scientific evidence of any clinical benefit of placentophagy among humans, and no placental nutrients and hormones are retained in sufficient amounts after placenta encapsulation to be potentially helpful to the mother postpartum. In contrast to the belief of clinical benefits associated with human placentophagy, the Centers for Disease Control and Prevention recently issued a warning due to a case in which a newborn infant developed recurrent neonatal group B Streptococcus sepsis after the mother ingested contaminated placenta capsules containing Streptococcus agalactiae. The Centers for Disease Control and Prevention recommended that the intake of placenta capsules should be avoided owing to inadequate eradication of infectious pathogens during the encapsulation process. Therefore, in response to a woman who expresses an interest in placentophagy, physicians should inform her about the reported risks and the absence of clinical benefits associated with the ingestion. In addition, clinicians should inquire regarding a history of placenta ingestion in cases of postpartum maternal or neonatal infections such as group B Streptococcus sepsis. In conclusion, there is no professional responsibility on clinicians to offer placentophagy to pregnant women. Moreover, because placentophagy is potentially harmful with no documented benefit, counseling women should be directive: physicians should discourage this practice. Health care organizations should develop clear clinical guidelines to implement a scientific and professional approach to human placentophagy.

Legal Pragmatism

'Three Forms of Legal Pragmatism' by Charles L. Barzun in (2018) 95(5) Washington University Law Review comments 

The term “Legal Pragmatism” has been used so often for so long that it may now seem to lack any clear meaning at all. But that conclusion is too quick. Although there are diverse strands of legal pragmatism, there is also unity among them. This essay distinguishes among three such forms of legal pragmatism. It dubs them instrumentalist, quietist, and holist strands, and it offers, as representatives of each, the views of Richard Posner, Ronald Dworkin, and David Souter, respectively. Each of these forms of pragmatism has developed as a response to the same underlying philosophical problem, namely that of justifying moral and legal values within a naturalistic, nontheological worldview. That problem is an old one and a fundamental one. And it is one felt acutely by those judges and legal theorists over the last century or more who have sought to make sense of the judge’s task when deciding hard cases. The essay does not defend any one or more of these three understandings of law and adjudication against its critics. But it does suggest that the feature they share, in virtue of which they are all plausibly classed as “pragmatist,” may also be an important and distinctive feature of law as a discipline – that is, as a form of reasoning about matters practical and theoretical.

'Trust Me, I'm a Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism' by Joshua Galperin in (2017) 42(2) Columbia Journal of Environmental Law comments

Pragmatism is a robust philosophy, vernacular hand waiving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism. While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism — that which, in the spirit of the 21st Century’s 140-character limit, I will call “pragtivism.” This Article is intended as an introduction to pragtivism, a critique of the practice, and a constructive framework for addressing some of my critiques. 

To highlight the contours of pragtivism, this Article tells the story of the Dunes Sagebrush Lizard. In 2010 the United States Fish and Wildlife Service proposed to list the imperiled Lizard under the Endangered Species Act. In record time, the State of Texas, the Texas Oil and Gas Association, and other stakeholders developed a conservation plan for the lizard. FWS approved the plan and as a consequence agreed to withdraw its proposed listing. In March 2016 the Court of Appeals for the D.C. Circuit upheld the non-listing. 

The Texas Plan and the D.C. Circuit decision are results of “innovative” environmentalism, which relies on “flexible,” “collaborative,” “cooperative,” “voluntary,” “pragmatic” “partnerships” to achieve “win-win solutions.” But does this pragtivist boasting undermine more critical dialogue and more effective environmental protection? Does it trample on an intentional and well-reasoned structure of traditional environmental law? Is it actually pragmatic in the philosophical sense? This Article is a first attempt to answer some of these questions and to generate more analysis of the influence of pragmatism on environmental activism. It begins with a taxonomy of pragmatism in law and policy, details the Lizard’s story as a case study, offers a critique of pragtivism as a method of environmental protection, and concludes by offering a framework that might improve the use of pragtivism if the practitioners are truly willing to be pragmatic.

Digital Driver Licences and the Identity Hub

The Road Transport and Other Legislation Amendment (Digital Driver Licences and Photo Cards) Bill 2018 (NSW) seeks to amend the Road Transport Act 2013 (NSW), the Photo Card Act 2005 (NSW), Gaming and Liquor Administration Act 2007 (NSW), Liquor Act 2007 (NSW) and other legislation to 'provide for the issue and use of digital driver licences and digital Photo Cards and for other purposes'.

In essence, the new regime will provide for people to hold a digital version of their licence or government-issued photo identity card on their mobile phones. The biometric image will be used by NSW Police in relation to road management and, presumably, for other law enforcement.

The expectation is that it will also have extensive use across the private sector (for example in over 14,200 venues under NSW liquor law), consistent with the driver licence being the default identity document for most adult Australians.

NSW will presumably be emulated by the other state/territory jurisdictions

The IGA and the Hub

The Second Reading Speech understandably does not refer to sharing of images and other data with the Commonwealth Department of Home Affairs under the identity-matching services interoperability hub to be operated by that Department.

That hub is at the heart of the current Identity-matching Services Bill 2018 (Cth) - noted here - to 'facilitate the secure, automated and accountable exchange of identity information between the Commonwealth and state and territory governments' under the October 2017 Intergovernmental Agreement on Identity Matching Services (IGA).

Under the IGA, the Commonwealth, states and territories agreed to preserve or introduce legislation to support the collection, use and disclosure of facial images and related identity information between the parties, via a set of identity-matching services, for

•  Preventing identity crime 
•  General law enforcement 
•  National security 
•  Protective security 
•  Community safety 
•  Road safety, and 
•  Identity verification. 

 The interoperability hub

facilitates data-sharing between agencies on a query and response basis, without storing any personal information. Passport, visa and citizenship images will continue to be held by the Commonwealth agencies that issue these documents, and that already have facial recognition systems.  

 Driver licence images will be made available by the establishment of a National Driver Licence Facial Recognition Solution (NDLFRS), hosted by the Commonwealth on behalf of the states and territories in accordance with the IGA. The NDLFRS will consist of a federated database of identification information contained in government identification documents (initially driver licences) issued by state and territory authorities, and a facial recognition system for biometric comparison of facial images against facial images in the database..

The NSW Bill

The 2nd Reading Speech states

As at the end of 2017 there were over six million New South Wales driver licences and over 568,000 photo cards in use. 

The bill delivers on the Government's 2015 election commitment to transition to digital driver licences by 2019. It also supports the Government's digital strategy, the Premier's priority to improve government services and the State priority of 70 per cent of government transactions to be conducted by digital channels by 2019. In 2015 the New South Wales Government announced its commitment to offering the people of New South Wales a range of digital licences, including a transition to digital driver licences by 2019. Since then this Government has successfully digitised the responsible service of alcohol and responsible conduct of gambling competency cards, the recreational fishing fee, boat driver licences and recreational vessel registrations. This bill will take the next step by delivering the digital driver licence and the digital photo card. 

Digitising the driver licence and photo card is an opportunity to provide benefits for the community of New South Wales in three key areas. Firstly, for the citizens of New South Wales the digital driver licence and digital photo card will provide greater convenience, choice and security. Digital licences are also an opportunity for citizens to have more control and transparency over how the personal information on their licence is shown and shared with others. 

The reality is that a digital driver licence or digital photo card brings a multitude of additional benefits and protections for users. One example of this is when a licence is lost. If you lose a physical driver licence or you have your wallet stolen, you have no ability to stop it being used by another person for nefarious purposes. Sure, you can report it to police and to Service NSW but once a licence is lost there is no way to cancel it in the way you would a credit card because so much checking of the licence is simply sighting it rather than it being scanned. There is a risk that it can still be used. 

Then to replace a lost physical card you must attend a Service NSW centre in person and apply for a new card, which would be sent to you sometime after applying for it. This process takes time out of your busy day and is a major inconvenience. However, for a digital driver licence it is a much more secure proposition. Say you lose your phone that has your digital driver licence on it. You eventually have to go out and buy new device but you are concerned that your digital driver licence is on there. As soon as you know your phone has been lost or stolen you can log into Service NSW and cancel your digital driver licence on that device. 

You will know if it is used by someone who is not you as you will have access to an activity log, just like you have with your Opal card. By being able to cancel their card at the click of a button the citizen is empowered to take control of their identity security and privacy and ensure that their licence cannot be used or scanned by an unauthorised person, just like they can with their credit card. To replace your digital driver licence you simply take your new device, re-download the app, accept the digital driver licence on the new phone and away you go. 

For businesses in New South Wales, digital licences present an opportunity to streamline manual processes for checking or recording licence details. This means that businesses may deliver a better experience for their customers and benefit from time and cost savings. Digital licences can also provide a greater level of assurance, reducing risks of fraud and loss. For government, this development will mean simpler and faster ways to communicate and interact with citizens—for example, digital notifications and licence renewals for those who prefer to deal with us in that way. 

The NSW photo card is an increasingly important identity product; in 2017 alone there was a 28.38 per cent increase in its adoption. This makes it a priority for digitisation. A digital photo card is also not constrained by the national driver licensing framework and therefore may be delivered in a more flexible form to enhance citizen privacy—for example, providing citizens with more control over the personal information they share, depending on the situation, such as to security staff at licensed venues. It will also give citizens a digital identity product that is independent of their authority to drive.

Private Sector use

The Speech quotes industry support

The Australian Hotels Association: The continued expansion of smartphone technology for cardless transactions will see the use of wallets as an option rather than a necessity, based on these feedback from our Dubbo members. The AHA NSW is supportive of the expansion of the digital driver licence statewide. 

The Liquor Stores Association: [The LSA] remains supportive of a full statewide rollout of the digital driver licence as it will give packaged liquor retailers, licensees and their staff at the point of purchase a safe and efficient digital service control age verification measure. 

The Restaurant and Catering Association: I am firmly of the view that this project will be of significant benefit to the approximately 14,200 café and restaurant businesses in New South Wales. The addition of the digital driver licence as a valid form of identification will provide patrons with a more seamless method of ordering alcohol in licensed cafes and restaurants. It is for this reason I have no hesitation in supporting a state-wide rollout of the digital driver licence. 

ClubsNSW: Proper implementation of digital drivers' licences will be a positive development in better equipping clubs for the digital future and the industry is excited for what these changes mean. I look forward to continuing to work closely with industry as we progress to implementation of the digital driver licence and the digital photo card and thank them for their support to date. I now go through the statewide rollout of the digital driver licence and digital photo card.

Privacy is 'sacrosanct'

The Minister comments

Once launched, the people of New South Wales will be able to opt-in to receive a digital driver licence and digital photo card. These will essentially constitute a digital representation of a person's physical driver licence or photo card. 

The digital versions will be in addition to the physical licence or card, and accessible via the MyServiceNSW app, which can be downloaded to their device, such as a smartphone. The digital driver licence and digital photo card will provide a secure and user-friendly experience and be able to be authenticated visually, by viewing the visual security features, or electronically. Citizens who opt in for the digital driver licence will have the option of carrying or producing either their digital driver licence or their physical licence card when driving in New South Wales. Citizens will also be able to show their digital driver licence or digital photo card as evidence of their age and of their identity in the liquor and gaming industry to enter pubs and registered clubs, and in a variety of ways that the driver licence and photo card is currently used.

The rhetoric ramps up, complete with reference to privacy being sacrosanct ...

As many in this House know, a mobile phone is so much more than just a digital driver licence. A phone is a person's personal property and may also be used to store and access personal and private information. To ensure appropriate privacy and a citizen's right to maintain control of their personal electronic device, a driver will only need to display their digital driver licence on their device to the police or authorised officer in order for their digital driver licence to be checked. I am pleased that the Privacy Commissioner has supported this approach, stating, "This will ensure the privacy rights of an individual who holds personal information on their phone beyond the digital driver licence is preserved." ...

The member for Cessnock also will recall how important it was that, when we debated that legislation, both sides of politics agreed that privacy was sacrosanct. I do not think there is any debate in this Chamber when it comes to putting the privacy of the citizen front and centre. Indeed, when we drafted the Data Analytics Centre legislation—the Data Sharing (Government Sector) Act 2015, as it was appropriately titled—we made sure that the Privacy Commissioner was involved from the ground up in the steering committee so that we achieved the right outcome. In preparing this legislation, we engaged the Privacy Commissioner because privacy is beyond politics. It is an absolutely enshrined right of the citizen.

Further

One final question, which in my view is the most important of all, is: How does the digital driver licence and digital photo card ensure security of personal information and protect against fraud? To obtain a digital driver licence and digital photo card, a person is required to register for a MyServiceNSW account and establish their identity to link their account with Roads and Maritime Services. Once verified, the person's driver licensing or photo card information and photograph is securely released to the Department of Finance, Services and Innovation and Service NSW digital platforms to be processed to create the digital driver licence and digital photo card in the Service NSW app. None of the information or photographs is stored by the Department of Finance, Services and Innovation or Service NSW platforms. The digital driver licence and digital photo card are securely stored on a person's device. On top of any device PIN code or touch identification—fingerprint—the Service NSW app is also PIN code protected to ensure that the person's personal information remains safe and secure.  

Identity Crime

In relation to identity crime the Speech states that

Visually, the digital driver licence contains several features that can be sighted to ensure that it is not a screenshot or a fake. The digital driver licence can then be further verified by police using a "MobiPol" device, which scans a digital driver licence to initiate a search against backend police systems without the police officer having to manually type in the licence number.

Approximately 95 per cent of road traffic infringements issued by police are issued through MobiPol devices and the digital driver licence leverages this technology. In network blackspots where MobiPol is unable to connect to backend police systems, police may still verify the digital driver licence in the same way as a physical licence: by radioing back to station or using the terminals in their vehicles.

The digital driver licence and digital photo card include several visual security features that can be sighted to ensure that it is not a fake or a screenshot. For example, the design includes animations and a hologram. The digital driver licence and digital photo card also include a quick response code that may be scanned to verify its authenticity. Unauthorised use of a digital driver licence and digital photo card may also be detected through a device management framework and activity log, which will notify the person of logins from unrecognised devices or other unusual activity. 

This would mean that if someone living in Sydney has opted in to have a digital driver licence, whenever that digital driver licence is scanned they could be notified by email instantly of when and where that was done—just like a credit card. For example, if your card was scanned in Byron Bay by someone seeking to defraud you, you could instantly deactivate the digital driver licence and inform Service NSW and/or the police of the breach. This tangible security and fraud benefit comes with the digital driver licence and simply is not available with the physical card. I am pleased that the Privacy Commissioner supports this added level of protection, stating: "The recommendation that holders of a digital driver licence are notified of transactions including third party checks is supported".

Whistleblowing

'Understanding and responding to victimisation of whistleblowers' (AIC Trends and Issues in Crime and Criminal Justice 549, 2018) by Inez Dussuyer and Russell Smith comments

Speaking out in the public interest — being a whistleblower — can be risky. Media reports and public inquiries into allegations of misconduct in the public and private sectors regularly recount the negative consequences that those who make reports in the public interest have experienced—despite the presence of legislation that seeks to prevent reprisals and retaliation for disclosing misconduct. Instances in which whistleblowers have lost employment and careers, suffered harassment and intimidation, and experienced threats or acts of violence continue to occur in Australia. 

This study sought to understand the nature of victimisation experienced by whistleblowers who had reported or attempted to report wrongdoing in their workplace. Information was obtained from in-depth interviews with 36 whistleblowers and 21 people who dealt with their reports in public and private sector organisations. The results confirm the nature of the harms that almost all whistleblowers experience as a consequence of reporting misconduct. The paper concludes by identifying ways in which whistleblowers could better be protected from victimisation and how the procedures and safeguards involved in the whistleblowing process could be strengthened.

Facial Recognition Questions

The 56 page Big Brother Watch report Face Off - The lawless growth of facial recognition in UK policing comments

 Facial recognition has long been feared as a feature of a future authoritarian society, with its potential to turn CCTV cameras into identity checkpoints, creating a world where citizens are intensively watched and tracked. However, facial recognition is now a reality in the UK – despite the lack of any legal basis or parliamentary scrutiny, and despite the significant concerns raised by rights and race equality groups. This new technology poses an unprecedented threat to citizens’ privacy and civil liberties, and could fundamentally undermine the rights we enjoy in public spaces. Police forces in the UK have rolled out automatic facial recognition at a pace unlike any other democratic nation in the world. Leicestershire Police, South Wales Police and the Metropolitan Police have deployed this technology at shopping centres, festivals, sports events, concerts, community events – and even a peaceful demonstration. One police force even used the surveillance tool to keep innocent people with mental health issues away from a public event.

In this report, we explain how facial recognition technology works, how it is being used by police in the UK, and how it risks reshaping our rights. We are seeking to raise awareness of this growing issue with parliamentarians and inform the wider public about what is happening behind the cameras.

In this report, we:

• Reveal new statistics following a series of freedom of information requests, exposing the shocking inaccuracy and likely unlawful practices within a number of police forces using automated facial recognition; 

• Analyse the legal and human rights implications of the police’s use of facial recognition in the UK; 

• Review the evidence that facial recognition algorithms often disproportionately misidentify minority ethnic groups and women; 

• Present guest contributions from allies worldwide warning about the impact of facial recognition on rights, including contributions from representatives of American Civil Liberties Union, Electronic Frontier Foundation, Georgetown Privacy Centre, and the Race Equality Foundation;

 We conclude by launching our campaign against the lawless growth of facial recognition in the UK, supported by rights groups, race equality groups, technologists, lawyers and parliamentarians.

 The report's key findings :

• The overwhelming majority of the police’s ‘matches’ using automated facial recognition to date have been inaccurate. On average, a staggering 95% of ‘matches’ wrongly identified innocent people. 

• Police forces have stored photos of all people incorrectly matched by automated facial recognition systems, leading to the storage of biometric photos of thousands of innocent people. 

Metropolitan Police 

• The Metropolitan Police has the worst record, with less than 2% accuracy of its automated facial recognition ‘matches’ and over 98% of matches wrongly identifying innocent members of the public. The force has only correctly identified 2 people using the technology – neither of which was a wanted criminal. One of those people matched was incorrectly on the watch list; the other was on a mental health-related watch list. However, 102 innocent members of the public were incorrectly identified by automated facial recognition. 

• The force has made no arrests using automated facial recognition. 

South Wales Police 

• South Wales Police’s record is hardly better, with only 9% accuracy of its matches whilst 91% of matches wrongly captured innocent people. 

• 0.005% of ‘matches’ led to arrests, numbering 15 in total. 

• However, at least twice as many innocent people have been significantly affected, with police staging interventions with 31 innocent members of the public incorrectly identified by the system who were then asked to prove their identity and thus their innocence. 

• The force has stored biometric photos of all 2,451 innocent people wrongly identified by the system for 12 months in a policy that is likely to be unlawful. 

• Despite this, South Wales Police has used automated facial recognition at 18 public places in the past 11 months – including at a peaceful demonstration outside an arms fair.  

Custody images 

• Out of the 35 police forces that responded to our Freedom of Information request, not one was able to tell us how many photos they hold of innocent people in their custody image database.

Trade Secrets and US startups

'Why Do Startups Use Trade Secrets?' by David S. Levine and Ted M. Sichelman in (1018) 94 Notre Dame Law Review comments  

Empirical studies of the use of trade secrecy are scant, and those focusing on startups, non-existent. In this paper, we present the first set of data — drawn from the Berkeley Patent Survey — on the use of trade secrets by U.S. startup companies in the software, biotechnology, medical device, and hardware industries. 

Specifically, we report on the prevalence of trade secrecy usage among startups. Additionally, we assess the importance of trade secrets in relation to other forms of intellectual property protection and barriers to entry, such as patents, copyrights, first-mover advantage, and complementary assets. We segment these results by a variety of factors, including industry, company business model, overall revenue, patenting propensity, funding sources, innovation types, and licensing. From this segmentation, we implement a basic regression model and report on those factors showing a statistically significant relationship in the use of trade secrets by startups. 

Our results point to three major findings. First, trade secrecy serves other important aims aside from first-mover advantage. Second, trade secrets may act both as economic complements and substitutes to patenting. Third, trade secrets may serve as important strategic assets, functioning much in the same manner as patents in terms of licensing and setting the boundaries of the firm.