Consumer Activism

'Consumer Activism: From the Informed Minority to the Crusading Minority' by Yonathan A. Arbel and Roy Shapira in (2019) 69 DePaul Law Review 233 comments 

Legal scholars have long recognized that market norms are respected not only because of consumer protection laws, but also because of internal market dynamics. Consumers, the argument goes, fend for themselves and hold sellers accountable. But how exactly do consumers discipline sellers? The most influential model has been the informed minority theory, according to which a critical mass of informed consumers reads and negotiates contracts in advance, thereby pressuring sellers to offer better contracts to all consumers. Recent empirical studies, however, cast doubt on the existence of such a mass, leading many to view the informed minority theory as unrealistic. What, then, may explain bottom-up governance in a world where consumers do not read contracts? In this contribution to the Clifford Symposium, we aim at exposing a different mechanism of market discipline: one that works not through ex ante readingand negotiating, but ratherthrough ex post pressuresto meet buyers' expectations. We specifically emphasize the role of a small subset of consumers that we dub "nudniks." Nudniks are those consumers who call in to complain, fill out satisfaction surveys, post online reviews, and file lawsuits. Driven by an innate sense of justice and atypical motivations, these nudniks act as crusading consumers against underperforming sellers. Through their actions, nudniks direct attention to seller failure, leading to a variety of formal and informal sanctions, thus presentinga more realisticform of consumer activism in today's overwhelming information environment. 

Market discipline comes not only from legal protections, but also from consumers themselves. Understanding the effectiveness of consumer-driven market discipline mechanisms is key, as it dictates the scope and design of legal interventions. 

The leading theory of market-based discipline has traditionally been the informed minority theory.' The theory concedes that most consumers lack sophistication or time to read their contracts and shop for better terms. Yet, it suggests that consumer-based governance of market discipline can be powerful. As long as a minority of consumers are engaged with these aspects of the transaction, one could still expect sellers to provide favorable terms. Sellers would compete over who wins the segment of informed buyers, and in the process will have to modify their standard form contracts in ways that benefit the entire consumer body, or so the theory goes. While enjoying large influence, over the years, the informed minority theory has encountered increasing opposition. Perhaps most critically, recent empirical evidence suggests that the number of consumers that actually read and understand contracts is too low to justify a change in sellers' behavior. Even the theory's progenitors now seem to question its practicality. This has left a gap in our understanding of market discipline through consumer governance: If market discipline does not come from a critical mass of informed readers, where does it come from? 

This Essay suggests looking elsewhere: Instead of focusing on buyers who read and negotiate before the purchase, focus on buyers who feel compelled to respond strongly whenever sellers disappoint. Instead of focusing on avid readers, focus on avid "enforcers" - those consumers who demand to speak with the manager, fill out satisfaction surveys, post online reviews, and file lawsuits. We dub these consumers "nudniks." Nudniks do not operate like most of us. They possess an innate sense of justice, atypical motivations, and an idiosyncratic cost structure, which lead them to fight sellers who disappoint - even in situations where most of us would not notice, or notice and stay passive. Nudniks are often perceived as petty and vindictive. Yet, through their actions, nudniks provide an important public service: directing attention to failures in the market, thus leading to a variety of formal and informal sanctions against misbehaving firms. In other words, nudniks generate underappreciated spillover effects that reverberate throughout the economy. This Essay explores the role of nudniks in the enforcement of market norms and consumer governance, evaluates their social contribution, and suggests this "crusading minority" of nudniks as a missing piece in theories of consumer market governance. 

This Essay argues that consumer activism predicated on a crusading minority of nudniks, who notice seller misbehavior and respond to it through legal-reputational channels, is a more realistic depiction of how market discipline works than the informed minority theory. Nudniks complain and fight sellers publicly regardless of whether they read the contract in advance. They often complain based on their transactional expectations from the seller. And transactional expectations are a function not only of the explicit terms in the contract, but also of sellers' oral representations, advertisements, market norms, fairness standards, and so on.8 Even if the seller is contractually protected by a disclaimer nestled in the fine print, she will anticipate the potential risk that comes from entering a public battle with nudniks and may find it best to deliver better service ex ante. 

Such a nudnik-driven mode of consumer activism creates positive spillovers, but also comes with social costs. Some nudniks pursue narrow interests that do not benefit the rest of the consumer body and impose unnecessary costs on sellers. While we do not venture to offer a conclusive quantification of the net effect of nudniks, we do offer here a synthesis of findings from the consumer complaining behavior literature, suggesting that many nudniks positively contribute to the market. At the minimum, our analysis suggests that legal scholars and policymakers should pay more attention to nudniks' effects. 

The nudniks are a response to the problems with the informed minority theory. This theory essentially rests on two assumptions, regarding the what and the how of seller behavior. First, what sellers do: The theory assumes that sellers compete over a small segment of consumers who read the contract and care about its terms. Second, how they do it: To win the segment of readers, sellers have to offer better terms to all consumers across the board. Sellers operate through standard-form contracts, and cannot tell which consumer is a reader and which is not before the fact; therefore, they are forced to offer better terms for all. In this Essay, we respond to the first premise. Many have taken the recent empirical evidence of low readership rates to as undermining the possibility of internal market discipline. This Essay suggests that market discipline does not have to be predicated on consumers reading the contract before purchasing; it can also come from consumers noticing and complaining publicly about sellers who fail to meet consumers' transactional expectations, regardless of the contract. In a separate paper, we confront the second assumption of the informed minority theory: the premise that sellers cannot distinguish between active and passive consumers. In today's world, we ar- gue there, sellers can, and to a growing extent already do, employ big data tools to tell which consumer is most likely to be nudnik, and then cater to these consumers personally. 

This Essay proceeds in three parts. Part I explores the leading theo- ries of market-based, consumer governance mechanisms and their shortcomings. Part II suggests a new direction for thinking of market- based consumer governance. Instead of counting how many consum- ers read contracts, we need to shift attention to consumer dissatisfaction behavior: How many consumers complain after the purchase? How do other potential consumers react to these complaints? What impact do such complaints have on sellers? We emphasize the rise of the internet and social media as factors that greatly empowered nudniks and increased their potential reach. As long as sellers are un able to spot nudniks in advance,10 they are incentivized to provide higher-quality service to all consumers ex ante, so as not to risk the reputation and legal risk that comes with nudniks. Part III evaluates the shortcomings of nudnik-based activism. We conclude that while not all nudnik-activity is socially beneficial, overall there is reason to believe that nudniks are the unsung heroes of market governance.

Suicide and ADHD

'The Dark Side of ADHD: Factors Associated With Suicide Attempts Among Those With ADHD in a National Representative Canadian Sample' by Esme Fuller-Thomson, Raphaël Nahar Rivière, Lauren Carrique and Senyo Agbeyaka in (2020) Archives of Suicide Research comments 

This study investigated the prevalence and odds of suicide attempts among adults with attention deficit hyperactivity disorder (ADHD) compared to those without and identified factors associated with suicide attempts among adults with ADHD. 

Methods 

Secondary analysis of the nationally representative Canadian Community Health Survey–Mental Health (CCHS-MH) (n = 21,744 adults, of whom 529 had ADHD). Respondents were asked whether they received an ADHD diagnosis from a health care professional. Lifetime suicide attempt was based on self-report. 

Results 

Adults with ADHD were much more likely to have attempted suicide than those without (14.0% vs. 2.7%). One in four women with ADHD have attempted suicide. Sixty percent of the association between ADHD and attempted suicide was attenuated when lifetime history of depression and anxiety disorders were taken into account. Female gender, lower education attainment, substance abuse, lifetime history of depression, and childhood exposure to chronic parental domestic violence were found to be independent correlates of lifetime suicide attempts among those with ADHD.

The authors state

Attention deficit hyperactivity disorder (ADHD) is a complex mental illness that impacts several domains of a person’s life. The global prevalence of childhood ADHD has been estimated to be between 2% and 7%, and it is the third most common mental health condition affecting young people (Sayal, Prasad, Daley, Ford, & Coghill, 2018). The prevalence of ADHD in adults has been estimated to be between 2.9% in Canada (Hesson & Fowler, 2018) and 4.3% in the U.S. (London & Landes, 2019). ADHD is characterized by excessive and impaired levels of impulsivity, overactivity, and inattention (Polanczyk, Salum, Sugaya, Caye, & Rohde, 2015). With symptoms persisting for 1 in every 23 adults between the ages of 18 and 44 (Kessler et al., 2006), both children and adults with ADHD are more likely than their peers without ADHD to experience a variety of behavioral and mental health problems, in addition to significant difficulties in their social and family life (Agnew-Blais, Seidman, & Buka, 2013; Kessler et al., 2006). 

One of these problems that is of particular concern is the high incidence of suicidal behaviors among those with an ADHD diagnosis (Balazs & Kereszteny, 2017; Giupponi et al., 2018). A large cohort study found that those with a diagnosis of ADHD had 4.7 times higher rate of suicide-related behavior compared to those without an ADHD diagnosis (Fitzgerald, Dalsgaard, Nordentoft, & Erlangsen, 2019). Research also suggests gender differences in the psychopathological profile of ADHD and suicide-related behaviors. For example, females with ADHD are at significantly higher risk for suicidal ideation (Kakuszi, Bitter, & Czobor, 2018). 

As mentioned, ADHD symptoms can persist into adulthood and contribute to ongoing emotional and behavioral problems, including suicidality. A longitudinal study of youth and young adults with ADHD found that by young adulthood, the odds of suicidal ideation were approximately twice that of those without ADHD (Barkley & Fischer, 2005). A nationally representative sample of adults from England found that those with current ADHD had 50% higher odds of having attempted suicide in comparison to adults without (Agosti, Chen, & Levin, 2011). In an American population-based prospective study, the standardized mortality rate for death by suicide by an average age of 27 years was almost five times higher for those who had had ADHD diagnosed in childhood compared to peers without ADHD (Barbaresi et al., 2013). The existing literature seems to indicate that childhood ADHD is associated with an increased risk of suicidality.

Fake Health News

The Anti-Vaxx Playbook by the Center for Countering Digital Hate, notes 

The Anti-Vaxx Industry, CCDH’s July 2020 report, exposed how the global scientific consensus on vaccines is being undermined by a small but determined and sophisticated network of individuals and groups spreading misinformation online. They have improved their reach and sustainability through skilful exploitation of social media to proselytize and normalize their fringe beliefs. 

Big Tech companies such as Facebook and Instagram, Twitter, Google and YouTube have done little to stop the flow of lies. Another CCDH report, Failure to Act, released in September 2020, showed that even when users report misinformation to the platforms, fewer than 1 in 20 misinformation posts were removed. Why? In part, because the audience for anti-vaccine misinformation is worth up to $1 billion a year. 

Global health advocates need to understand the battle we are in. There is an identifiable counterforce trying to persuade people Covid isn’t dangerous, vaccines are dangerous, and that doctors and scientists cannot be trusted. Pretending the threat doesn’t exist isn’t good enough. Assuming compliance with vaccine programmes is negligent. We need to adapt or risk losing. 

Digital platforms have rapidly become the dominant means by which people transmit knowledge, maintain relationships and establish norms and values. The Covid pandemic has further consolidated this situation. Social media became a vital part of our wellbeing as physical interactions were curtailed. The digital realm of our existence, however, is governed by algorithms that don’t care about truth, our wellbeing or even morality, and are instead designed to maximize time spent on platforms. The organisation of content by algorithms in such a way, without regard to any harm it may cause, is fundamentally changing our society. We are not just less able to agree on what were once considered “facts”. It is making it more fissiparous, more brittle, more polarised and less tolerant. 

This report, The Anti-Vaxx Playbook, is based on in-depth analysis of speeches and presentations by leading digital anti-vaccine advocates at a meeting they recently held in private over three days; investigation of private anti-vaccine digital spaces; and other intelligence gathered by our researchers. It reveals how anti-vaccine networks are systematically planning to suppress uptake of the Coronavirus vaccine by exploiting digital platforms. 

These malignant actors have developed their strategic understanding over years of advocacy and practice. Their strategy is simple. Exploit social media algorithms’ predilection for controversial and engaging content to hammer home three key messages - Covid isn’t dangerous; vaccines are dangerous; and mistrust of doctors, scientists and public health authorities. Despite the variety of styles, tones and themes employed by the anti-vaccine movement, every meme they share is in service to one of these three messages. 

Our response must be equally simple: to inoculate against misinformation by ignoring the individual memes generated by the anti-vaxx industry and instead focus on communicating our core message - one that has the benefit of being true:

1. Covid is deadly; 

2. Vaccines are among the safest, most effective, most consequential human inventions in the past two centuries, saving countless lives from disease, disability and even death; and 

3. Doctors, scientists and public health professionals chose those professions because they want to help people and better understand the world.

Big Tech needs to make a decision, now that we expose the intent, the tactics and the deadly impact of the anti-vaxx industry, and the ways in which social media platforms have become integral to their success. Facebook, Instagram, Twitter and Google can stop this now. They could stop providing services to people whose business is in enabling the spread of disease and death. The tech giants keep telling us that they will remove anti-vaxx content from their websites and yet the key players exposed in The Anti-Vaxx Industry are still meeting months later, gleefully plotting how the Coronavirus vaccine presents them with an opportunity to sell their false cures and false hope on social media platforms. Anything less than the dismantling of these individuals’ profiles, pages and groups and permanent denial of service, now they know what is happening, is willing acquiescence. 

The time for spin is over. For years, we assessed that the social media companies did not understand the problem because if they did, surely, they would do something about it because it was harming people. Lots of government, political and civil society leaders and public figures personally met with tech sector representatives to discuss the threat and received assurances that they would actively remove material that violates their terms of service. And yet, a decade later, there is even more misinformation on the platforms. It is time for quantifiable, verifiable action, or governments need to step in to perform their ultimate duty - to protect the lives of the people who put them in place.

The report states 

1. Drawing on access to a private conference attended by the world’s leading anti- vaxxers, CCDH has been able to reveal their plan to use social media to spread distrust about the Covid vaccine and recruit new supporters to their cause. 

2. Leading anti-vaxxers view Covid as an historic opportunity for them to reach larger numbers of the public than ever before, and to create long-lasting distrust in the effectiveness, safety and necessity for vaccination. 

3. Online anti-vaxxers continue to grow, with 147 of the leading accounts gaining 10.1 million followers since 2019, an increase of 25%. The additional growth took place primarily on Instagram and YouTube, with anti-vaxxers adding an extra 4.3 million followers on each platform. 

4. Anti-vaxxers have developed a sophisticated playbook for spreading uncertainty about a Covid vaccine, converting vaccine-hesitant people into committed anti- vaxxers, and resisting attempts to remove their misinformation. 

5. Online anti-vaxxers have organised themselves around a “master narrative” comprised of three key messages: Covid is not dangerous, the vaccine is dangerous and vaccine advocates cannot be trusted. 

6. Alternative health entrepreneurs, conspiracy theorists and accounts aimed at parents or ethnic communities vastly expand the reach of this master narrative and tailor it to cause uncertainty in their audiences. 

7. Anti-vaxxers have created accessible online “answering spaces” such as Facebook Groups, Instagram accounts and purpose-built websites that are designed to answer legitimate questions about a Covid vaccine with anti-vaccine misinformation. 

8. The most established anti-vaccine “answering spaces” identify vaccine hesitant individuals, convert them into committed anti-vaxxers and offer training to make them more effective activists. 

9. Anti-vaxxers are attempting to mitigate the removal of their misinformation by adopting a “Lifeboat Strategy” of migrating their followers to “alt-tech” platforms such as Telegram and Parler, but with little success. 

10. The public are urged not to engage with anti-vaxx misinformation online, even to rebut it or criticise it, because doing so only spreads the misinformation to new audiences. The example is given of anti-vaxxer narratives “trending” on social media on the first day of the vaccine rollout, primarily due to pro-vaccine accounts amplifying them. Instead, users are urged to share pro-vaccine messages. 

11. Platforms are urged to remove the accounts of anti-vaxx “superspreaders”, those accounts with the largest followings and using the most cynical tactics. The report provides evidence that some are guilty of promoting false cures for Covid and training their social media followers to spread harmful misinformation. 

12. Pro-vaccine practitioners are advised to focus on inoculating the public by ignoring individual memes and focusing on the master narrative, with a series of suggestions for how “inoculation” can make individuals more resilient to anti-vaxxer messaging.

Class Actions

The 'Litigation funding and the regulation of the class action industry' report by the Parliamentary Joint Committee on Corporations and Financial Services states 

Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access. 

The purpose of a civil justice system is to ensure a fair and reasonable society, and that when a damage is inflicted upon a person that is unlawful, that they are restored to their previous state. 

Courts and civil remedies were not established as novel investment vehicles to deliver handsome profits to innovative financiers or creative lawyers. Most Australians would be comfortable with the idea that profits may be made incidentally while delivering the core objective of access to justice. But they would be rightly horrified to learn that for some participants in our justice system, return on investment and profit from risk-taking has become their primary motivation. 

Australia’s highly unique and favourably regulated litigation funding market has become a global hotspot for international investors, including many based in tax havens and with dubious corporate histories, to generate investment returns unheard of in any other jurisdiction – in some cases of more than 500 per cent. 

This is directly the result of a regulatory regime described by the Australian Securities and Investments Commission (ASIC) as ‘light touch’ and under which no successful action by a regulator has ever been taken against a funder. Participants in class actions are the biggest losers in this deal. When they finally get their day in court, it is the genuinely wronged class action members who are getting the raw deal of significantly diminished compensation for their loss, as bigger and bigger cuts are awarded to generously paid lawyers and funders. 

Given the significant costs involved in bringing civil proceedings in Australia, the inquiry heard consistent support for class actions as a legitimate tool to overcome this barrier for many members of the community who wish to enforce their rights and obtain redress through the courts. As a way to improve access to justice, class actions provide a vehicle for the pursuit of collective claims, which are often individually of a smaller dollar value and may be otherwise uneconomical to litigate. 

The Parliamentary Joint Committee on Corporations and Financial Services (committee) concurs with the findings of numerous previous reviews: namely, that class actions, when working as originally intended, should facilitate access to justice, discourage wrongdoing, and promote the efficient and effective use of court resources. 

Litigation funding too, provides a way for representative plaintiffs and class members to meet the costs of litigation. These costs include their own legal costs and, in the event of an unsuccessful outcome, the defendant's legal costs. When litigation funders pay lawyer's fees and indemnify representative plaintiffs for adverse costs, it significantly changes the viability of class actions under Australia's 'loser pays' approach to civil litigation. Litigation funders also potentially close the considerable gap in financial resources between the two sides of a class action, reducing the defendant's ability to defeat the case through superior economic power. Therefore, the committee recognises that, in many instances, a class action in Australia may not proceed without a litigation funder. 

However, while no witness in the inquiry proposed Australia abolish class actions or litigation funding, there was virtually unanimous agreement the current regulatory arrangements are too light touch and greater oversight of the industry is required. The only debate was about the extent and nature of that regulation. Those who most fiercely resisted comprehensive regulation of the industry were the vested interests who benefited from the status quo. While they enthusiastically professed to be only concerned with the interests of class action members, their opposition to measures designed to protect class members undermines that claim. 

This inquiry was referred because of significant concerns about the current operation of the litigation funding and class action industries, including:

• the significant growth in shareholder class actions, and related issues; 

• the increase in multiple and competing class actions and the delays added in resolving those matters; 

• the excessive profits obtained by litigation funders compared to the risks the funders are taking; 

• the scant regulatory framework covering litigation funders, including: − issues of the funder's duties to class action members; and − the determination and oversight of funding fees; 

• whether the interests of class members are being served by the current regulatory environment; and 

• inconsistencies between federal, state and territory class action regimes. 

The federal class action regime has been in place for almost three decades. While the procedural mechanism has developed significantly through the common law, the statutory provisions have remained relatively unchanged. 

Uncertainties about power and procedure need to be clarified and procedural efficiency prioritised. A review of these matters is therefore, timely. 

Further, litigation funding has been allowed to develop with limited regulation, except for some degree of court oversight, and evidence to the committee, and recent case law including Bolitho v Banksia Securities Limited, suggested this has been inadequate. The growth in the scale of litigation funding, the participation of international litigation funders in the Australian market, and the frequency of windfall profits, highlights the need to reassess whether representative plaintiffs, class members and defendants are achieving reasonable, proportionate and fair outcomes. The Australian Government recently extended the application of some aspects of financial services regulation to litigation funding in class actions. The committee has considered those amendments in the context of a broader regulatory approach incorporating both financial services regulation and enhanced oversight by the Federal Court of Australia (Federal Court). 

A particular issue identified through the inquiry is the asymmetry of information between market participants, which stems from regulatory failure. Mum and dad investors signing up to a litigation funding agreement as part of a class action can never hope to have the sophisticated understanding of corporate law or financial products that their lawyers and funders possess. If this asymmetry is not addressed to protect the interests of class members, increasing competition from more funders entering the market will not deliver lower prices for consumers. This is borne out by experience: the entrance of more players from the international litigation funding industry has done little to dent the spectacular returns earned by funders. 

A broader issue of transparency was another common theme. The operations of many funders are highly opaque, including their ultimate owners, the amount of tax they pay in Australia, and even their returns. Time and time again the committee was told these matters were commercially confidential, and when challenged with examples of publicly reported returns, they were dismissed as unrepresentative or simplistic. Given these enormous profits are being generated from our legal system, the litigation funding industry is not just another competitive market. It requires much higher degrees of transparency to assure Australians the legal system their taxes fund is not being hijacked for profit. In short, the committee was tasked with inquiring into whether the current level of regulation, practices and procedure applying to Australia's growing class action and litigation funding industry is appropriate, and whether it is delivering fair and equitable outcomes for class members. 

Having considered the evidence put to it, the committee considers the concerns about the class action and litigation funding industries to be wellfounded. In the committee's view, the class action system needs to be reformed to reflect the underlying tenets of its original intent: that is, to deliver reasonable, proportionate and fair access to justice in the best interests of class members. 

Accordingly, the committee identifies those areas where it sees significant value in reforming the current regime. Nevertheless, the committee is aware of the adverse consequences that could arise from ill-judged regulation. Therefore, the reforms proposed by the committee, while comprehensive, are measured and targeted. 

The committee's approach to reform has been guided by the principle of reasonable, proportionate and fair access to justice in the best interests of class members. ... 

Reasonable, proportionate and fair class action procedure 

Commencing a class action 

If the criteria and process to commence a class action sets the bar too low to commence a class action, the class action system can be susceptible to exploitation for financial gain. The class action regime should be cost-effective and accessible with appropriate safeguards to curb any abuse of process. The committee recommends measures to ensure that procedural proportionality is considered at the outset of a class action. 

Resolution of competing and multiple class actions 

Separate and concurrent class actions which litigate the same legal claims, for the same or overlapping class members, against the same defendant, undermine the objectives of the class action regime, which is for a single decision to resolve many claims that are the same or similar. For this reason, the court must undertake a process for determining how to manage the competing and multiple actions, with parties often incurring substantial additional costs and delay. The powers and processes to manage and resolve competing and multiple class actions need amending to be clear, yet flexible, in order to respond to the circumstances of the case in a reasonable, proportionate and fair manner. The committee makes a number of recommendations to facilitate greater oversight of competing and multiple class actions and with respect to how the Federal Court should manage and resolve competing and multiple class actions, including when they are filed in different jurisdictions. 

Class closure orders 

The federal regime intends for class actions to be 'open'. That is, the class action is on behalf of all class members irrespective of whether they had been identified, or consented to joining the action. A particular challenge with open class actions is reaching a settlement when the number of class members and the quantum of the claim are unknown. 

The committee's recommendation regarding the power of the Federal Court to 'close' the class seeks to strike a balance between protecting the rights of class members whose legal claims are determined by the outcome of a class action, and facilitating reasonable, proportionate and fair resolutions to class actions through settlement. 

Common fund orders 

Another challenge with open class actions is that the costs incurred in the class action can be borne by the representative plaintiff, rather than among all those who share in the proceeds of a successful outcome. One tool used by the Federal Court to address this issue of 'free riding' has been the 'common fund order', requiring all class members to equally contribute to the costs from their share of the proceeds from a settlement or judgment. 

Evidence to the committee was divided on the value of common fund orders in class actions. Given the High Court’s judgement in BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45 (Brewster), the power of the Federal Court to make a common fund order has been, and could continue to be, contested in the courts. The committee recommends the Australian Government legislate to address uncertainty in relation to common fund orders, in accordance with the High Court’s decision in Brewster. 

Protecting class members from adverse costs 

The risk that a litigation funder could be liable to pay for the defendant's costs if the class action is unsuccessful should act as a deterrent to financing unmeritorious class actions. Often, the litigation funder is ordered to pay security for those costs at the outset of a class action. Insurance products for adverse costs and security for costs are available and are often purchased by litigation funders, thereby reducing their risk and often increasing costs for class members. 

The committee's recommendations codify the common industry practice of litigation funders indemnifying the representative plaintiff for adverse costs, and introduce a presumption that a litigation funder will provide security for costs in class actions. The objective is to ensure appropriate levels of indemnity are provided for the representative plaintiff and proportionate risk undertaken by the litigation funder. 

Court regulation of litigation funding fees 

The Federal Court has limited powers to regulate litigation funders and intervene in their contractual relationships with representative plaintiffs, even in instances where the fees appear unreasonable, disproportionate or unfair. Greater oversight by, and interventionist powers for, the Federal Court are required to constrain the large portions of settlement sums that are obtained by litigation funders by way of reimbursement of fees and commissions. 

To complement the financial services regulation of litigation funding in class actions, the committee recommends expanded and strengthened powers for the Federal Court to regulate litigation funding fees. Critical to this reform is assistance from financial experts to assist the Federal Court in ensuring that fees are reasonable, proportionate and fair. Increased transparency through appropriately measured public disclosure of transaction costs and division of a settlement would also aid in achieving this objective. 

In addition, the committee notes the proposal by some class action law firms and litigation funders to guarantee a minimum return of at least 70 per cent of the gross proceeds to class action members, and recommends the Australian Government investigate the best way to implement this floor. The committee also recommends the Australian Government investigate whether a graduated minimum return above this floor is appropriate for shorter, less risky and less complex cases. 

Contradictors and the interests of class members 

Significant challenges exist for class members to represent their interests at the stage when the Federal Court's approval is sought for a class action settlement. Moreover, the objections that class members may have to a settlement are unlikely to be shared by the parties who negotiated the settlement and agreed to the proposed terms. 

A contradictor is an advocate, usually a senior barrister, appointed by the Federal Court to represent the interests of class members. The committee encourages the wider use of contradictors. In many instances when a contradictor has been appointed, the fees and commission sought by the class action lawyers and litigation funder have been reduced, improving the financial outcomes for class members. The committee makes a number of recommendations to introduce a new approach to the use of contradictors in the Federal Court. In essence, there should be a presumption for a contradictor to be appointed in certain circumstances. 

Legal costs 

During the inquiry, Victoria became the first and only jurisdiction in Australia to permit lawyers for the representative plaintiff in a class action to charge for legal costs on a 'contingency fee' basis. That is, where the legal fees to be paid in a successful outcome are calculated as a percentage of the money recovered in the class action. 

The committee considers the public interest outcomes potentially achieved with the availability of contingency fee billing in class actions are not outweighed by the potential for their exploitation for the benefit of lawyers' profits, even with the existence of safeguards. A measured and steady approach to the use of contingency fees in class actions is essential. 

A law firm billing on a contingency fee basis is offering both a legal service and a funding service. With the aim of a consistent regulatory approach to the activity of financing class actions, the committee recommends the application of the financial services regulation, to which third-party litigation funders are subjected, to lawyers operating on a contingency fee basis. The committee recommends a review to consider the feasibility of this proposal. The committee also suggests further consideration of the application of an 'uplift' fee of up to 25 per cent on billed costs in litigation funded class actions because the risk may not justify the returns. 

Other regulatory measures 

Conflicts of interest in litigation funded class actions 

The interests of a litigation funder, lawyer and representative plaintiff differ and, at times, conflict. The level of power and influence litigation funders have in class actions gives rise to situations where their financial interests trump those of the representative plaintiff and class members. The committee makes a number of recommendations to raise the obligations placed on litigation funders and lawyers to avoid conflicts of interest, and to disclose (to the representative plaintiff, class members and the Federal Court) and manage those conflicts when they do arise. 

The detriment to the representative plaintiff and class members when their lawyer also has an interest in the litigation funder financing the class action can be so significant that arrangements of this nature should be prohibited. In addition to conflict of interest obligations, litigation funders should be required to meet the same standards of conduct obligations that are already imposed on parties to a class action and their lawyers. The committee recommends augmenting the standards to which parties, lawyers and funders are held, and broadening the range of penalties available to the Federal Court for non-compliance. 

Financial services regulation of litigation funding 

From August 2020, litigation funders in class actions must comply with the requirements of the Australian Financial Service Licence (AFSL) and Managed Investment Scheme (MIS) regimes. The committee has applied 'fit-for-purpose' principles in its consideration of the application of the AFSL and MIS regime to litigation funders in class actions. ASIC has taken a flexible and facilitative approach to modify the requirements to better tailor them to the litigation funding context. This approach should continue, with a fit-for-purpose regime for litigation funders legislated by the Australian Parliament. 

The committee also recognises the potentially disproportionate burden this regime could place on small not-for-profit litigation funders already operating as charities who only occasionally finance class actions for the benefit of their members, and recommends the Australian Government investigate the best way to provide them an exemption. 

Continuous disclosure 

Claims for a breach of continuous disclosure laws underpin many shareholder class actions. Shareholder class actions are generally economically inefficient and not in the public interest. Even successful actions amount to shareholders effectively suing themselves and in net terms being no better off. Evidence to the committee focused on the ease with which shareholder class actions may be triggered by an alleged breach of Australia's continuous disclosure provisions. Reform is required to continuous disclosure laws given the increasing prevalence of this type of shareholder class action. 

Temporary amendments were made to continuous disclosure laws in 2020 to raise the bar for establishing a breach, both for private and regulator action. The committee recommends these temporary arrangements be made permanent. 

Competing class actions are frequently shareholder class actions. The adverse consequences of increased costs and delays are exacerbated by the economically inefficient nature of shareholder class actions. The committee recommends limiting class actions with claims in corporations law to the Federal Court so as to avoid additional challenges when competing shareholder class actions are filed in different jurisdictions. This reform would also eliminate the possibility of law firms running shareholder class actions on a contingency fee basis. 

National consistency 

There is an intention for the multiple class action regimes operating at the federal and state level to be consistent. Throughout the report, various issues are discussed which eventuate, wholly or in part, due to inconsistencies in power or approach across class action regimes. The committee makes recommendations which seek to address these inconsistencies, to increase certainty and to reduce complexity. 

Moreover, the committee's recommendations on class action procedure relate to the federal class action system. If some or all of these recommendations are implemented, there is potential for the class action and litigation funding markets to file more class actions in jurisdictions with more favourable regulations and court rules. The committee recommends the Australian Government work with state and territory governments to achieve consistent class action regimes across jurisdictions.

The Committee's recommendations are 

R 1  the Australian Government investigate legislative change which promotes procedural proportionality in class actions, with the objective of facilitating the pursuit of class actions where the potential costs and drawbacks are balanced against the potential benefits for the parties to litigation, the class members, as well as the impacts on court resources, regulatory outcomes and the public interest. 

R 2  Part IVA of the Federal Court of Australia Act 1976  (Cth) be amended to introduce an express power for the Federal Court to resolve competing and multiple class actions. The power should maintain the Federal Court's discretion to allow more than one class action with respect to the same dispute to continue. 

R 3   the Federal Court's Class Actions Practice Note be amended to include:

• a requirement that the Federal Court holds a selection hearing to determine which of the competing or multiple class actions should proceed, the Federal Court should select a class action which advances the claims and interests of class members in an efficient and cost-effective manner, with regard to the stated preferences of the class members; and 

• a requirement that on the filing of a class action, the Federal Court orders a standstill in that proceeding for 90 days, so that any other competing or multiple class actions can be appropriately considered and filed, and that any book building that occurs during the standstill period should be given no weight by the Federal Court. 

R 4  the Australian Government seek to ensure that state and territory Supreme Courts with class action procedures adopt a protocol with the Federal Court similar to the Protocol for Communication and Cooperation Between Supreme Court of New South Wales and Federal Court of Australia in Class Action Proceedings and the Protocol for Communication and Cooperation Between Supreme Court of Victoria and Federal Court of Australia in Class Action Proceedings. 

R 5  Part IVA of the Federal Court Act be amended to introduce an express power to order class closure orders, modelled on, or similar to, section 33ZG of the Supreme Court Act 1986 (Vic). 

R 6  the criteria for the Federal Court to apply in determining whether to close the class or re-open the class should be set out in the Federal Court's Class Actions Practice Note. The committee also recommends that if an order to close the class is made, it should be final unless the Federal Court finds that it is in the interests of justice to re-open the class. 

R 7  the Australian Government legislate to address uncertainty in relation to common fund orders, in accordance with the High Court's decision in BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45. 

R 8  Part IVA of the Federal Court Act be amended so that litigation funding agreements with respect to class actions must expressly provide a complete indemnity in favour of the representative plaintiff against an adverse costs order.  

R 9   the Federal Court not approve a litigation funding agreement unless the agreement provides a complete indemnity for adverse costs. 

R 10  Part IVA of the Federal Court Act be amended to include a statutory presumption that a litigation funder in a class action provide security for costs. 

R 11 Part IVA of the Federal Court Act be amended to introduce:

• a requirement for a litigation funding agreement to obtain approval of the Federal Court to be enforceable; and 

• a power for the Federal Court  to reject, vary or amend the terms of any litigation funding agreement when the interests of justice require. 

R 12 Part IVA of the Federal Court Act be amended to require that any litigation funding agreement in a class action in the Federal Court is governed by Australian law and the Federal Court approves a litigation funding agreement only if the agreement provides that the litigation funder submit irrevocably to the jurisdiction of the Federal Court. 

R 13 the Australian Government amend the Federal Court's Class Actions Practice Note to the effect that, pursuant to section 54A of the Federal Court Act at any point in a proceeding, the Federal Court  may appoint a referee to act as a litigation funding fees assessor. 

R 14  a litigation funding fees assessor appointed by the Federal Court be a professional with market capital or finance expertise. 

R 15 section 43 of the Federal Court Act be amended to expressly state that the Federal Court can make a costs order against a litigation funder. 

R 16  the Federal Court's Class Actions Practice Note state the may order the costs of the work undertaken by a referee appointed by the Federal Court as a litigation funding fees assessor be paid by a litigation funder, in circumstances where the conduct of a litigation funder justifies such an order being made. 

R 17  the Federal Court should require the following information to accompany an application for approval of a class action settlement. The information below should be published following the judgment approving a settlement: the date the proceeding commenced; the estimated number of class members before opt out; the number of people who have opted out;  the number of registered class members;  the number of funded and unfunded class members; the identity and location of the litigation funder;  the amount of security for costs paid; the estimated value of the claims at the outset and at the time of settlement; the settlement sum and any non-monetary relief; the funding commissions payable under litigation funding agreements; the total amount of the funding commission (and per cent of the gross settlement sum) that the litigation funder would be paid, as the case may be: − pursuant to its contractual entitlements under the litigation funding agreements; − following a funding equalisation order (if one is sought); − following a common fund order (if one is sought); and − following any other order to share costs across class members. the total costs broken down into legal fees, counsel's fees, expert fees and their disbursements; any costs orders paid in the proceedings;  payments to representative plaintiffs (their claims and recognition payments); other reimbursements and payments, including pursuant to cy-près orders; the average payment to all class members, funded class members and unfunded class members (and the per cent of the gross settlement sum); the number of class members who reached compromises, executed releases or covenanted not to sue during the class action, the estimated value of their claims and the value of such releases (aggregated and anonymised); and the amount of corporate tax paid in Australia by the litigation funder in the three previous financial years. 

R 18   the Federal Court's Class Actions Practice Note be amended to:

• introduce a presumption that the Federal Court is to appoint a contradictor in instances where there is the potential for significant conflicts of interest to arise, or complex issues are likely to arise at the settlement approval application; 

• include guidance on scenarios in which a conflict of interest is likely to arise, including: − where there is a material conflict between the interests of the representative plaintiff and those of some sub-groups of class members, including between those with different sorts of interests or claims, and between those who have signed up with the litigation funder and/or the representative plaintiff's solicitor and those who have not; − where the proposed return to the class members does not appear to be in accordance with the possible prospects of success; − where an issue arises as to whether some class members should be included or excluded from claiming settlement proceeds where they did not register in time pursuant to some registration process ordered by the Federal Court to identify the number, identity and claims of class members; − where there is an application, or an order has been made, for a common fund order or a funding equalisation order, or an equivalent order; and − where it is proposed that the solicitors for the representative plaintiff are to be appointed as the administrator of the settlement and where there may be other means available to administer the scheme more cheaply, efficiently or quickly; 

• ensure the Federal Court retains discretion to appoint a contradictor and provide non-exhaustive guidance for the Federal Court as to the factors to which it should have regard when considering whether to exercise its discretion to appoint a contradictor; and 

• ensure the Federal Court may order the costs arising from the work undertaken by a contradictor be paid by the plaintiff law firm, or the litigation funder, in circumstances where the conduct on the part of the lawyer or the litigation funder justifies such an order being made. 

R 19   the Australian Government implement a procedure to facilitate communication of class members' concerns and objections to the settlement to a contradictor, when appointed. Class members should be informed of the contradictor's appointment in the class action and the questions to be determined by the contradictor. One option which should be considered is the introduction of such a power in the notice provisions in Division 3 of Part IVA of the Federal Court Act and supplemented by processes described in the Federal Court's Class Actions Practice Note. 

R 20   the Australian Government consult on:  the best way to guarantee a statutory minimum return of the gross proceeds of a class action (including settlements);  whether a minimum gross return of 70 per cent to class members, as endorsed by some class action law firms and litigation funders, is the most appropriate floor; and  whether a graduated approach taking into consideration the risk, complexity, length and likely proceeds of the case is appropriate to ensure even higher returns are guaranteed for class members in more straightforward cases. 

R 21   the Australian Government review the feasibility of applying the Australian Financial Services Licence and the Managed Investment Scheme regimes to lawyers operating on a contingency fee arrangement in class actions. 

R 22  the Australian Government consider options to establish rules that govern the ability of lawyers to charge an uplift fee on the total amount of legal costs in class action proceedings, with particular reference to: uplift fees which are conditional on a successful outcome; and the potential appropriateness of capped uplift fees of less than 25 per cent on the total costs. 

R 23   the Federal Court's Class Actions Practice Note be amended to require that the first notices provided to potential class members by legal representatives clearly describe:  the obligation of legal representatives to avoid and manage conflicts of interest; and  the detail of any conflicts in that particular case. 

R 24  the Federal Court's Class Actions Practice Note be amended to require that, in a litigation funded class action, the first notices provided to potential class members by legal representatives clearly describe:

• the obligation on litigation funders to avoid conflicts of interest; 

• the obligation as a holder of an Australian Financial Services Licence to have arrangements to manage conflicts of interest; 

• if the litigation funder is the responsible entity of a registered Managed Investment Scheme, to place the interest of members above their own in the instance of a conflict; and 

• the detail of any conflicts in that particular case. 

R 25 the representative plaintiff's lawyers and litigation funders be required to disclose the following to the Federal Court:

• any potential conflicts of interest; 

• any new conflicts or potential conflicts which arise after the first case management conference; and 

• the conflict management policy when applying to the Federal Court for approval of a litigation funding agreement. 

R 26    the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 and the Legal Profession Uniform Conduct (Barristers) Rules 2015 be amended to prohibit solicitors, law firms and barristers from having a financial or other interest in a third-party litigation funder that is funding the same matters in which the solicitor, law firm or barrister is acting. 'Other interest' should encompass other arrangements that do not necessarily amount to a pecuniary interest in the litigation funder, but which nonetheless may give rise to the likelihood that the interests of the litigation funder may be prioritised over the interests of the representative plaintiff or class members, including common directorships, family ties and ongoing and/or reciprocal commercial arrangements. 

R 27  the Australian Government consider options for the Federal Court to have the power to hold parties, their lawyers, and litigation funders to the same standards of conduct in class actions, including:  sections 37N and 43 of the Federal Court Act be amended so as to impose on litigation funders the obligation to act consistently with the overarching purpose in section 37M of the Federal Court Act and to permit the Federal Court to order costs against litigation funders for failure to act consistently with the overarching purpose; and  the Federal Court Act be amended to reflect the statutory standards of conduct in sections 16 to 26 of the Civil Procedure Act 2010 (Vic), including requirements such as: − the statutory standards apply to conduct in court, to interlocutory or appeal stages, and in respect of dispute resolution processes; and − the Federal Court have the express power to order costs against litigation funders for non-compliance with the overarching purpose of section 37N, as well as the power to order other disciplinary sanctions such as remedying the contravention or preventing a specific step or action being taken. 

R 28   the regulations issued by the Treasurer which clarify that litigation funders require an Australian Financial Service License and that they be regulated as Managed Investment Schemes. Noting that ASIC has provided relief from a number of MIS requirements, the committee recommends the Australian Government legislate a fit-for-purpose MIS regime tailored for litigation funders. However, the committee recommends that the Australian Government consult on the best way to exempt not-for- profit litigation funders who held charitable status at the time the regulations were issued, have run no more than three class actions in the last five years, and exist solely to support and protect the members of the associated charitable entity. 

R 29   the Australian Government permanently legislate changes to continuous disclosure laws in the Corporations (Coronavirus Economic Response) Determination (No. 2) 2020. 

R 30 the Australian Government amend Part 9.6A of the Corporations Act 2001 and section 12GJ of the Australian Securities and Investments Commission Act 2001 so that exclusive jurisdiction is conferred on the Federal Court with respect to civil matters, commenced as class actions, arising under that legislation. 

R 31 irrespective of whether none, some, or all of the committee's recommendations regarding the Federal Court's class action regime are adopted and implemented, the federal, state and territory governments work towards achieving consistency in class action regimes across jurisdictions.

Twitter

'#IStandWithDan versus #DictatorDan: the polarised dynamics of Twitter discussions about Victoria’s COVID-19 restrictions' by Timothy Graham, Axel Bruns, Daniel Angus, Edward Hurcombe and Sam Hames  in (2020) Media International Australia comments 

In this article, we examine two interrelated hashtag campaigns that formed in response to the Victorian State Government’s handling of Australia’s most significant COVID-19 second wave of mid-to-late 2020. Through a mixed-methods approach that includes descriptive statistical analysis, qualitative content analysis, network analysis, computational sentiment analysis and social bot detection, we reveal how a small number of hyper-partisan pro- and anti-government campaigners were able to mobilise ad hoc communities on Twitter, and – in the case of the anti-government hashtag campaign – co-opt journalists and politicians through a multi-step flow process to amplify their message. Our comprehensive analysis of Twitter data from these campaigns offers insights into the evolution of political hashtag campaigns, how actors involved in these specific campaigns were able to exploit specific dynamics of Twitter and the broader media and political establishment to progress their hyper-partisan agendas, and the utility of mixed-method approaches in helping render the dynamics of such campaigns visible. 

The authors argue

 As the coronavirus pandemic continues, discussions about appropriate public policy aimed at its management and mitigation have intensified. Even in regions that have seen a comparatively high political and societal consensus about the need for severe lockdowns and other interventions aimed at arresting the spread of the virus, such unity is gradually coming unstuck. Coordinated by the ‘national cabinet’ that included the Prime Minister as well as state and territory premiers and chief ministers, for example, Australian governments were comparatively unanimous in their initial responses to the pandemic, and party-political squabbles between leaders of different ideological hues seemed temporarily suspended at least on these measures; over time, however, as infection dynamics developed differently across the various states and territories, unity disintegrated, and by late-2020, there were open recriminations between state leaders, and between states and the Prime Minister, over the interstate border closures and local lockdown measures introduced in different Australian regions. 

Such acrimony has been most heated in the context of the lockdowns and border closures instituted in Victoria, Australia’s second most populous state, which saw the greatest number of COVID-19 infections and deaths and, in particular, experienced a substantial second wave of infections from mid-June 2020 onwards (Victorian State Government, 2020) that was managed by increasingly severe lockdowns. This second major outbreak generated substantial and controversial debate in the media and within the general population, centring both on the concrete reasons for the new outbreak, and on the appropriate level of lockdown restrictions and the roadmap towards reducing them again as the new outbreak subsided. 

Much of the criticism of these measures focussed on the Victorian Premier, Daniel Andrews of the Australian Labor Party, who had become the public face of the state’s response to the coronavirus pandemic not least through an uninterrupted series of (at the time of writing) more than 100 daily press conferences on his government’s actions. Although enjoying high public approval ratings in Victoria through most of 2020, Andrews was attacked increasingly harshly by his political opponents in state and federal politics; scrutinised critically by state and federal news media; and in mid-October 2020 his electorate office was vandalised by unknown assailants (Sakkal and Towell, 2020). 

Claims of growing public frustration with the Victorian government’s measures, as reported in state and national media, were also exploited by the state opposition, led by parliamentary Opposition Leader Michael O’Brien from the Liberal Party. Its attacks focussed especially on two perceived faults with government policy: on one hand, they highlighted the impact of lockdown restrictions on the Victorian economy, and advocated for a more accelerated re-opening of local businesses in spite of a low level of continuing community transmission of the COVID-19 virus (ABC News, 2020); on the other hand, they pointed to failures in the management of the mandatory hotel quarantine for travellers returning to Victoria, where the use of poorly trained private security guards resulted in quarantine breaches, and the inadequate response to outbreaks in aged-care homes, where the majority of COVID-related deaths occurred. Overall, the opposition blamed the government, in general, and Premier Andrews, in particular, for the infections and deaths that ensued especially in the second wave (Fowler and Ilanbey, 2020). 

The most aggressive opposition spokesperson pursuing this line of attack was the Liberal MP for the electorate of Kew, Tim Smith. In a series of media appearances, particularly on breakfast news programmes, as well as in his social media posts (see, for example, Figure 1), he sought to establish a number of negative epithets for Andrews, including ‘Chairman Dan’ (implying that the Labor Premier was running the state in the style of an oppressive communist regime) and even ‘Dictator Dan’ (Willingham, 2020). Such attacks on Andrews, presented as simple and memorable slogans, were clearly calculated also as attempts to generate broader take-up in public discussions of the government’s measures against the pandemic, not least on social media; indeed, Smith’s own social media posts also sought to promote Twitter hashtags such as #ChairmanDan and #DictatorDan. Subsequent criticism of the Victorian pandemic response, by Smith and others, also gave rise to the Twitter hashtag #DanLiedPeopleDied, as well as resulting in the #IStandWithDan hashtag expressing opposition to such attacks and support for the Premier. ... 

In this article, we examine this take-up of attacks on Andrews within social media debate, as well as the emergence of responses that counter such attacks. We focus here especially on Twitter – a platform that has been shown to be a particularly important space for political discussion in Australia (Bruns and Burgess, 2015; Sauter and Bruns, 2015). 

Such take-up could be regarded prima facie as evidence of a two-step flow (Katz, 1957), from political opinion leaders to the general public, demonstrating the continued relevance of communication theories from the pre-digital era even in a thoroughly mediatised present where social media logics exert increasing influence over public and political debate (Van Dijck and Poell, 2013). Closer investigation, however, reveals a considerably more complex flow of ideas across multiple steps (cf. Ognyanova and Monge, 2013): not only is it possible that MP Smith and others are not themselves the originators of these attacks against Premier Andrews, but merely amplify lines of attack that were developed by party strategists or other groups seeking to undermine Andrews (i.e. that there is a preceding step in the information flow from these groups to Smith and colleagues); but we also find evidence that the broader adoption and dissemination of language targeting Andrews is driven at least in part by coordinated and apparently inauthentic activity that amplifies the visibility of such language before it is adopted by genuine Twitter users. 

This would represent a further step in the information flow, from Smith and other Andrews opponents via such coordinated, artificial amplification to the general Twitter public – from where, in a further step in the flow of information, it is then also picked up by journalists and opinion writers, and transported into additional media reporting. Our study, then, presents the evidence for this multi-step, deliberately manipulated flow of information, and compares it with our observations of the response to these attacks.

Privacy

The 43 page 'Bringing Australia's Privacy Act Up to International Standards (Submission in Response to the Privacy Act Review - Issues Paper)' by  Graham Greenleaf, Nigel Waters, Katherine Lane, Bruce Baer Arnold and Roger Clarke  - a submission made to Attorney-General's Department (Australia) Privacy Act Review - comments 

This submission to the Australian federal Attorney-General’s Departmen is by the Australian Privacy Foundation (APF), the country's leading privacy advocacy organisation, and is written by five members of its Board. It is in response to the Attorney-General’s Review of the Privacy Act 1988 (Cth) – Issues Paper. 

The last comprehensive review of the Privacy Act was in 2008 with the publication of the Australian Law Reform Commission Report for Your Information – Australian Privacy Law and Practice (the ALRC Report). The ALRC report recognised privacy as a human right. It also found that privacy protection should take precedence over a range of countervailing interests, such as cost and convenience. However, although the government at the time professed to accept many of the ALRC’s recommendations, and said it would introduce legislation in a number of tranches, it failed to introduce many of the most important reforms, such as removal of exemptions. APF submits that, after this Review, the government should introduce one comprehensive reform Bill, and should not resort to the subterfuge of reform in stages. 

Significantly, since 2008, many countries have introduced stronger privacy protections. For example, the European Union (EU) has introduced significant privacy protections in the General Data Protection Regulation (GDPR). These laws are regarded as the gold standard in best practice data protection. The GDPR commenced operation in 2016 and was fully implemented across the EU by 2018. 

In comparison, Australia’s privacy and data protection laws are weak and do not meet the best practice standards set by the EU and other countries. This review must be used as an opportunity to modernize and strengthen Australia’s privacy laws to meet the best practice standards set Internationally. Australia should even seek to exceed those standards and lead the world. 

This submission addresses almost all of the 69 issues raised by the Attorney-General’s Department in the Issues Paper. The submission also addresses many of the submissions made to the Review by Australian Information Commissioner (OAIC)... We have noted in this submission particular aspect to which we give support, and others we oppose.

IP and Human Rights

'Challenges to the Development of a Human Rights Framework for Intellectual Property' by Peter K Yu in Paul L.C. Torremans (ed) Intellectual Property Law and Human Rights (Kluwer Law International, 4th ed, 2020) 89-115 comments 

Since the establishment of the WTO TRIPS Agreement, government officials, international intergovernmental organizations, civil society groups, judges, academic commentators and the media have focused considerable attention on the interplay of intellectual property and human rights. In the mid-2000s, scholars have begun advocating the development of a human rights framework for intellectual property law and policy. As I pointed out in earlier works, such a framework will not only be socially beneficial, but will also enable countries to develop a balanced intellectual property system that takes international human rights obligations into consideration. 

While the development of a human rights framework for intellectual property is important, skeptics have warned about the danger of an "arranged marriage" between intellectual property and human rights. Although their concerns are understandable, it may be too late to deny the protection of human rights-based interests in intellectual creations. The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and many other international and regional instruments have all explicitly recognized the right to the protection of interests resulting from intellectual productions as a human right. 

This chapter does not seek to reopen this debate, which has been widely explored and documented elsewhere. Rather, it examines three challenges that may confront the development of this framework, especially from a pro-development perspective: (1) the "human rights ratchet" of intellectual property protection; (2) the undesirable capture of the human rights forum by intellectual property rights holders; and (3) the framework's potential bias against non-Western cultures and traditional communities.

Productive Contestation and ICANN

The fascinating 'Productive Contestation, Civil Society, and Global Governance: Human Rights as a Boundary Object in ICANN' by Niels ten Oever in (2018) Policy and Internet comments 

Human rights have long been discussed in relation to global governance processes, but there has been disagreement about whether (and how) a consideration for human rights should be incorporated into the workings of the Internet Corporation for Assigned Names and Numbers (ICANN), one of the main bodies of Internet governance. Internet governance is generally regarded as a site of innovation in global governance; one in which civil society can, in theory, contribute equally with government and industry. This article uses the lens of boundary object theory to examine how civil society actors succeeded in inscribing human rights as a Core Value in ICANN's bylaws. As a “boundary object” in the negotiations, the concept of human rights provided enough interpretive flexibility to translate to the social realities of the various stakeholder groups, including government and industry. This consensus‐building process was bound by the organizing structure of the boundary object (human rights), and its ability to accommodate the interests of the different parties. The presence of civil society at the negotiating table demanded a shift in strategy from the usual “outsider” tactics of issue framing and agenda setting, to a more complex and iterative process of “productive contestation,” a consensus‐building process fueled by the differences of experience and interests of parties, bound together by the organizing structure of the boundary object. This article describes how this process ultimately resulted in the successful adoption of human rights in ICANN's bylaws. 

ten Oever argues

 The early development of the Internet was characterized by permissionless innovation, informal arrangements, and an unregulated “freedom to create”—but with the rising importance of the network, the need for organization, regulation, and governance increased. Calls of this kind (such as proposals for the regulation of encryption) were met with concern, however, by Internet users, nongovernmental organizations (NGOs), hackers and academics alike, because this meant that the unprecedented freedom of expression, access to information, and enjoyment of other human rights online (thus far taken for granted), might be at stake. 

The governance of the Internet is distributed over different bodies in a mode of participation described as a “multistakeholder model”—meaning that different stakeholders, such as governments, the private sector, technical operators, and civil society, make decisions jointly. Internet governance is thus distributed over a range of bodies in which the configuration and level of formalization of the multistakeholder model varies. The multistakeholder model represents an innovation in governance, because it allows for joint decision making by different stakeholders, and openness of participation by individuals and organizations alike. While multistakeholder governance is by no means a unique feature of the Internet governance field, there is no other area in which this model has been so widely embraced. 

Equal access to negotiation and decision‐making processes by all stakeholders (including by civil society) is formalized in the multistakeholder model, whereas in many other arenas civil society cannot engage on an equal footing. This changes the structure of the conversation and negotiations, meaning that civil society cannot simply rely on well‐proven “outsider” tactics such as framing and agenda‐setting, and is therefore challenged to adopt other approaches. To study these new approaches, this article examines a case in which civil society achieved its objectives and analyzes how this was achieved. Internet governance is not the only example of a global governance process in which civil society has a seat at the negotiating table, but it is arguably one of the most formalized and influential. 

So far, the literature has treated civil society engagement in Internet governance discussions as either monolithic (Lentz, 2011) or divided (Milan, 2014). Civil society managed to inscribe1 human rights in the foundational and regulatory documents of an Internet governance body for the first time in 2016, representing something of a historical achievement. In this article I argue that civil society succeeded in inscribing human rights in the legally binding bylaw of the Internet Corporation for Assigned Names and Numbers (ICANN) because human rights functioned as a boundary object (Star & Griesemer, 1989), that is to say an arrangement which allows people to achieve some form of coordination without necessarily requiring consensus. Because human rights functioned as a boundary object it could be the translated and adapted to the social worlds within and between different stakeholder groups in ICANN. I will show how diverging views between individuals and organizations within civil society actually contributed to a dialectical process and a positive outcome, a process that I call “productive contestation.” 

Internet Governance, Civil Society, and Boundary Object Theory 

Global governance is changing fast (Bevir, 2012; Nye, 2011). Indeed, beside the state, the private sector (Weissbrodt & Kruger, 2003) and civil society (Glasius, 2002; Keck & Sikkink, 1998; Price, 1998; Raymond & Denardis, 2015; Scholte, 2016) are making their way into governance fora and to the negotiation table. However, technological changes are out‐pacing “the ability of institutions of governance to respond, as well as our thinking about governance” (Nye, 2011). Not only is the rate of change increasing, but also the importance of digital technologies in general and the Internet in particular (Benkler, 2006; Castells, 2007). This has led to a situation in which the Internet is itself mediating political and economic conflict (Bradshaw, DeNardis, Hampson, Jardine, & Raymond, 2014; DeNardis & Musiani, 2014). 

Developments in global governance, and advances in the technology, have combined with the increasing importance of the Internet in our lives and societies to drive discussions on Internet governance and regulation (Lessig, 2008; Mueller, 2010; Nye, 2014). By being distributed over different fora and organizations (DeNardis 2014; Mueller, 2010; Musiani, Cogburn, DeNardis, & Levinson, 2015) and being conducted in a multistakeholder manner involving a variety of actors on an “equal footing” (Mueller, Pagé, & Kuerbis, 2004; Raboy & Padovani 2010), Internet governance is set apart from, for example, the governance of international telecommunications, which is governed instead in a multilateral manner (Drake & Wilson 2008; Keohane, 2001) in which only governments have a final say. The processes of Internet governance are generally open for participation by different parties, such governments, the private sector, technical operators, and civil society alike, and decisions are jointly made, based on consensus (Hofmann, 2016). 

The diverse set of stakeholders and Internet governance bodies and fora gives rise to a rich institutional ecology (Abbott, Green, & Keohane 2016; Star & Griesemer, 1989), which is itself the product of relatively recent governance innovation (Van Assche, Beunen, Lata, & Duineveld, 2015). Playing quite a new role in this process is civil society—the combination of individuals, organizations, and movements that belong neither to the state nor to the private sector (UN, 2004). Civil society has played an increasing part in international negotiations in the last few decades (Glasius, 2002; Hajnal, 2002; Van Rooy, 2004), but in the field of Internet governance it was never limited to lobbying, providing expertise, awareness raising, or street action (Glasius, 2002), becoming instead an inherent part of the policy and decision‐making process (Bond, 2006; Frangonikolopoulos, 2012; Milan & Hintz, 2013; Mueller et al., 2004). 

Civil society plays a uniquely important role in the Internet governance ecology because its motivations are different from those of other stakeholders. Its involvement is based on “ethical aspirations to better mankind” (Van Rooy, 2004, p. 8), and to provide alternative channels of communication for voices that are not otherwise heard (Keck & Sikkink, 1998, p. x). In the context of Internet governance, civil society advocates for a wide range of issues. Some of the most recurring important principles and frames include human rights, privacy, security, freedom of expression, connectivity, access, capacity, security, governance, equity, and diversity (DeNardis, 2009; Franklin, 2013; Isin & Ruppert, 2015; Rogers & Eden, 2017). Even though the right to privacy, the right to freedom of expression, and the right to security are human rights, they are not always used or understood within this frame, but rather as individual (and sometimes absolute) rights and freedoms in themselves. Human rights here are understood as “the norms and institutions of international human rights, as protected under customary international law and human rights treaties” (Land, 2009, p. 7). Thus far, the literature has treated civil society engaged in Internet governance either as a rather monolithic group with similar issues, opinions, and concerns (Lentz, 2011), or as fractured and compartmentalized (Milan, 2014). Civil society can instead be considered to consist of players who engage in strategic action, as individuals or as teams, and who pursue multiple goals within different arenas, in a complex system of dynamic interactions (Jasper & Duyvendak, 2015). 

This article examines the complex articulation of alliances and negotiation, both within civil society (among individuals and organizations) as well between civil society and other actors. In order to unpick the complexity of these processes, I propose to look at how human rights functioned as a boundary object during the discussions on adding a commitment to respect human rights to ICANN's bylaws. It will show how the structure of the process, that is, the translation and adaptation of human rights to the social worlds within and between different stakeholder groups, led to this final achievement. 

I use boundary object theory (Burnett & Jaeger, 2008; Gal, Yoo, & Boland, 2005; Star, 1989, 2010; Star & Griesemer, 1989) as a lens to show how human rights were translated into the social worlds of the different stakeholders in ICANN governance without losing its effectiveness. In the scene‐setting article by Star and Griesemer (1989), boundary objects were defined as having three components: (i) interpretive flexibility—they have different meanings and interpretations for various groups; (ii) they have the ability to accommodate different informational and work arrangements—the structure of the object can be used in both individual and group settings and collaborations; and (iii) they exhibit a dynamic between ill‐structured and more tailored uses of the objects—that is, the tension between general abstract use and specific uses in different social worlds facilitates the process of standardization of the object (Star, 2010). Boundary object theory provides us with a tool to analyze negotiations between stakeholders in multistakeholder governance. This theory seems particularly relevant for Internet governance because it aims to study the process that leads up to standardization, “the back‐and‐forth between ill structured and well structured; the architecture of the infrastructures involved” (Star, 2010, p. 614). This captures the dynamics of Internet governance, in which groups with different backgrounds, discourses, and objectives aim to make the Internet “work” for them, and to embed their vision in the Internet infrastructure (Sandvig, 2013). Analyzing human rights as a boundary object in the case of ICANN helps to illuminate the way in which multistakeholder negotiations are structured. Boundary objects are objects that cross the boundaries between multiple social worlds (in this case, the social worlds of stakeholder groups), that are used within them and adapted to many of them simultaneously (Star & Griesemer, 1989, p. 408), and which “‘sit in the middle’ of a group of actors with divergent viewpoints” (Star, 1989, p. 46). They “adapt to local needs” in a social world, yet are “robust enough to maintain a common identity across sites” (Star, 1989, p. 46). Concretely, “boundary objects are a sort of arrangement that allow different groups to work together without consensus” (Star, 2010, p. 602), which is of course a crucial aspect of multistakeholder negotiations and collaboration. This process could be also explained through a Habermasian framework of communicative action (Habermas, 1984; Risse, 2000), in which actors develop a shared rationality based on a process of dialogue. However, the problem with this position from a Science and Technologies Studies perspective is that the process of communicative action needs to assume a shared rationality to be developed against the background of a shared lifeworld. I will show that this idealistic position does not fit with this specific case because of the different interests, interpretations, and embedded knowledge present in the different social worlds of the ICANN stakeholders. Boundary object theory, on the other hand, recognizes that there is room for disagreement and different localized practices, which are accommodated by the boundary object; it conversely represents a more adequate perspective to frame this and, possibly, other analogous processes. 

Civil society brings normative visions to an area that might otherwise be interpreted only through technical or commercial lenses. It brings this normative vision through the use of the power of norms and ideas (Keck & Sikkink, 1998), the ability to influence based on a normative framework. This power of norms and ideas can be leveraged in governance negotiations and discussions (Barnett & Duvall, 2005; Finnemore & Sikkink, 1998; Pavan, 2012) by providing and supporting a specific frame (Benford & Snow, 2000) as part of the process of constructing meaning for participants and opponents (Snow & Benford, 1988). Framing processes can provide powerful categories that can shift debates; a category like “weapons of mass destruction” (Litwak, 2002) can impact negotiations in a way that stabilizes meaning and thus shapes policy (Barnett & Duvall, 2005). Framing has helped civil society to set agendas and influence negotiations by “rendering events or occurrences meaningful and thereby function[ing] to organize experience and guide action” (Benford & Snow, 2000, p. 614). This action repertoire (Tarrow, 1994; Tilly, 1989)—the set of various tools and actions available to a group—has functioned to influence those in power while actors have been absent from the negotiating table. Now that civil society has become a part of the negotiation process—at least as far as Internet governance is concerned—it is faced with coming to terms with this new reality (Carr, 2015) and developing new action repertoires to go along with it. 

Recognizing human rights as a boundary object helps show how civil society leveraged its power of ideas beyond mere framing and agenda setting, managing instead to effectuate an inscription of human rights in ICANN's bylaw and thus progress on the road to make respect for human rights an inherent part of ICANN's processes. Using boundary object theory as an analytical lens increases our understanding of the tactics of civil society and the structure of negotiations in new global governance settings, without reducing the complexity of this player to the fictional ideal of a unified actor. 

The process by which human rights functioned and got shaped as a boundary object I will call productive contestation; this describes the speculative development of the boundary object in and between the social worlds of the different stakeholder groups. This process is a phase that precedes standardization. In this period the understanding and meaning of a concept and its translations both within and across social worlds are developed and new working definitions are tested and contested. Nonproductive contestation occurs when translations of the boundary object occur that are incongruent with other social worlds. 

This article seeks to contribute to the governance studies literature by using concepts from Science and Technology Studies. While it does not expand on the theory of the boundary object per se, I try to show its usefulness in understanding the specific empirical case of multistakeholder Internet governance.