Relationships and Appropriation

'A Relational Turn for Data Protection?' by Neil M Richards and Woodrow Hartzog in (2020) 4 European Data Protection Law Review 1 comments 

While most approaches to privacy and data protection focus on the data, we explore an alternative approach: focusing on relationships. it looks at how the people who expose themselves and the people that are inviting that disclosure relate to each other. It is concerned with what powerful parties owe to vulnerable parties not just with their personal information, but with the things they see, the things they can click, the decisions that are made about them. It’s less about the nature of data and more about the nature of power. And it can make data protection work better. We call this the relational turn in privacy law. 

The relational approach has deep roots in American and English law, and a growing group of scholars in North America are starting to appreciate the virtues of such an approach, whether framed in terms of privacy as trust or information fiduciaries. The clear advantage of a relational approach is that it is acutely sensitive to the power disparities within information relationships, such as those between humans and platforms. Relational models of this sort protect against self-dealing and duties of care protect against dangerous behavior. Data protection regimes like the American ‘notice and choice’ model or the more robust GDPR, by contrast, target, imbalances of power within relationships more indirectly by looking to the nature of the data. 

We think a relational turn for data protection would be superior to the current model. A relational turn would provide a path towards more substantive rules that would limit how peoples’ data could be used against them. It would focus on the real problem that privacy and data protection law should tackle – the power consequences of information relationships, making legitimacy of processing a question of fundamental fairness rather than data hygiene. Substantive data rules would demand more than that data serve a ‘legitimate interest’ of the data processor. They would focus on the power consequences of processing on the data subject, whether we apply some version of the classic fiduciary duties of care, confidentiality, and loyalty, or the trust-promoting duties of honesty, protection, discretion, and loyalty that we have called for in other work. Perhaps equally important, relational duties allow for a decoupling of choice and consent. People would be protected no matter what they choose. It’s time for data protection’s relational turn.

'Misappropriation of Personality: A Case for Common Law Identity Protection' by Nikki Chamberlain in (2021) 26(3) Torts Law Journal comments 

There is a gap in the law in Australia and New Zealand. Australia, while ahead in many jurisprudential fields, is lagging behind in privacy law protection. New Zealand, although adopting two common law privacy torts, recently refused to develop a third privacy tort based on the American privacy tort of misappropriation of personality. In light of global technological advances, and in the age of social media, there is a need to develop the tort of misappropriation of personality to protect an individual’s right to identity privacy. This article addresses the merits of adopting the privacy tort of misappropriation of personality in the context of other common law actions and their shortfalls – and, in particular, why the tort of passing off is inadequate at protecting an individual’s right to identity privacy.

LGBTQI Youth

Writing Themselves In 4: The health and wellbeing of LGBTQA+ young people in Australia (Australian Research Centre in Sex, Health and Society national report, monograph series number 124) by Adam O Hill, Anthony Lyons, Jami Jones, Ivy McGowan, Marina Carman, Matthew Parsons, Jennifer Power and Adam Bourne comments 

In 1998, the Australian Research Centre in Sex, Health and Society (ARCSHS) at La Trobe University conducted Writing Themselves In, the first ever national survey of same-sex attracted1 young people in Australia. The research highlighted the marginalisation of same-sex attracted young people and identified very high levels of stigma and discrimination. Some of the first specific services and supports for sexually diverse young people in Australia were launched in response to this first iteration of Writing Themselves In. The survey was repeated in 2004 and 2010, and the series was expanded to include a survey targeting trans and gender diverse young people, From Blues to Rainbows, in 2014. Each new iteration of the study provided additional insights into the identities and lives of these young people, as well as further evidence of the importance of services that meet the needs of young people. We hope that this 4th iteration of the survey makes a similarly positive impact on the lives of young people by improving understanding of the diversity of their lived experiences; advancing advocacy; informing government policy for programs and services, and assisting health and community organisations to work effectively; empowering LGBTIQA+ young people; and improving their health and wellbeing. 

 For that reason, Writing Themselves In 4 should be considered a survey of LGBTQA+ young people only. About the young people who participated

• In total, Writing Themselves In 4 received 6,418 valid responses. This makes the survey the largest ever of LGBTQA+ young people in Australia. 

• Writing Themselves In 4 heard from a diverse sample of LGBTQA+ people, including 4.0% of participants who identified as Aboriginal and/or Torres Strait Islander, 11.0% who were born overseas, and 39.0% who identified as having disability or a long-term health condition. 

• Half (50.6%) of participants were cisgender women, 22.3% cisgender men, 19.5% non-binary, 6.5% trans men, and 1.2% trans women. 

• Almost half (45.0%) of participants identified as multi-gender attracted. In total, 33.8% participants identified as bisexual, 16.6% as gay, 12.0% as lesbian, 11.2% as pansexual, 8.4% as queer, 4.6% as asexual, and 13.4% as something else. ...

Disclosure and support from others

• More than nine-tenths (95.5%) of participants had disclosed their sexuality or gender identity to friends, followed by seven-tenths to family (71.9%) or some classmates (70.5%). Less than half of participants had come out to co-workers (43.2%) or teachers (36.0%), and less than a third to sports teammates (28.8%). 

• Friends were most likely to be supportive when told about the person’s sexuality or gender identity (88.3%), followed by teachers (65.2%), teammates (63.6%) and co-workers (60.8%); while family (57.3%) and classmates (42.1%) were reported as the least supportive. (However, the number of participants who are out to teachers, teammates and co-workers is very low.) 

• Three-fifths (60.6%) of participants attending university who had disclosed their sexuality or gender identity reported feeling supported by their classmates, compared to one-third (35.3%) at secondary school and 43.2% at TAFE.

 Educational settings: Supportive structures and practices 

• A greater proportion of participants attending university (77.7%) reported being aware of an LGBTIQA+ gender– sexuality alliance, gay–straight alliance, Stand Out group, or similar supportive club for LGBTIQA+ students at their educational institution, compared to participants attending secondary school (24.8%) or TAFE (11.1%). 

• In total, 13.7% of secondary school participants in Australia reported that LGBTIQA+ people received a lot of attention or discussion in a supportive or inclusive way as part of their schooling, while one-quarter (27.3%) reported that LGBTIQA+ people were never mentioned in a supportive or inclusive way.

 Educational settings: Discriminatory and affirming experiences

• More than three-fifths (60.2%) of participants said that they had felt unsafe or uncomfortable in the past 12 months at secondary school due to their sexuality or gender identity. This compares to approximately three-tenths (29.2%) of participants at university and one-third (33.8%) of participants at TAFE. 

• More than three-quarters of trans men (74.3%) and trans women (67.7%) said that they felt unsafe or uncomfortable at their educational institution, followed by two-thirds (65.8%) of non-binary participants, and more than two-fifths of cisgender men (44.2%) and cisgender women (42.2%). 

• Almost two-thirds (63.7%) of participants at secondary school reported frequently hearing negative remarks regarding sexuality at their school, compared to one-fifth (20.2%) at TAFE and 15.0% at university in the past 12 months. 

• Over one-third of secondary school (38.4%) and TAFE (34.4%) students and one-sixth of university students (17.2%) reported missing day/s at their educational setting in the past 12 months because they felt unsafe or uncomfortable.

 Experiences of affirmation or discrimination in the workplace

• Overall, participants were less likely to report feeling unsafe or uncomfortable due to their sexuality and/or gender identity in the workplace than in educational settings. 

• Two-fifths (40.3%) of participants said that they felt unsafe or uncomfortable at full-time work in the past 12 months due to their sexuality or gender identity. This was also true for around one-third of participants who worked part-time (35.6%) and casually (31.0%). 

• One-tenth (10.0%) of participants who engaged in full-time work, 8.4% of those who worked part-time, and 6.5% in casual employment reported missing day/s at their work setting in the past 12 months because they felt unsafe or uncomfortable.

 Experiences of harassment or assault

• Two-fifths (40.8%) of participants reported in the past 12 months experiencing verbal harassment based on their sexuality or gender identity. 

• Almost one-quarter (22.8%) of participants reported in the past 12 months experiencing sexual harassment or assault based on their sexuality or gender identity. 

• Almost one-tenth (9.7%) of participants reported in the past 12 months experiencing physical harassment or assault based on their sexuality or gender identity. 

• The proportions of participants reporting ever experiencing verbal harassment (57.6%) or physical harassment or assault (15.4%) based on their sexuality or gender identity were only slightly lower than those reported in Writing Themselves In 3 (61% and 18%, respectively). 

• Over one-quarter (28.1%) of participants at secondary school experienced verbal harassment relating to their sexuality or gender identity in this setting in the past 12 months. This was approximately three times the 9.5% of participants at TAFE and four times the 7.2% who had this experience at university.

 Mental health and wellbeing

Rates of mental ill-health were very high within this sample of LGBTQA+ young people. The best available comparison we can make to the general population is drawn from the second Australian Child and Adolescent Survey of Mental Health and Wellbeing . While the report of that survey does not break down responses in the 14- to 21-year-old range, it does do so for those aged 16 to 17, hence the comparison we make here. 

• High or very high levels of psychological distress among 16- to 17-year-old participants of Writing Themselves In 4 (83.3%) were more than three times that of the 27.3% reported among the general population aged 16 to 17 years. 

• Almost three-fifths (59.1%) of participants aged 16 to 17 years had experienced suicidal ideation in the past 12 months, more than five times the proportion observed in the general population aged 16 to 17 (11.2%). 

• More than one-tenth (11.0%) of participants aged 16 to 17 years had attempted suicide in the past 12 months, almost three times the 3.8% observed in the general population aged 16 to 17.  

• Over one-quarter (25.6%) of participants aged 16 to 17 years had attempted suicide in their lifetime, almost five times the 5.3% reported among the general population aged 16 to 17. 

• One-fifth (20.0%) of trans women had attempted suicide in the past 12 months, followed by 16.7% of trans men, 13.2% of non-binary participants, 9.1% of cisgender women, and 6.7% of cisgender men. 

• Among participants who had experienced suicidal ideation, planning or attempts, or self-harm in the past 12 months, less than two-fifths (38.1%) had accessed a professional counselling or support service in regard to suicide or self-harm in the past 12 months.

 Experiences of homelessness

• Almost one-quarter (23.6%) of participants had experienced one or more forms of homelessness in their lifetime, and over one-tenth (11.5%) had this experience in the past 12 months. 

• Trans men and trans women were the most likely to have reported experiencing homelessness. Almost one in five trans men (19.5%) and trans women (17.6%) reported experiencing one or more forms of homelessness in the past 12 months, followed by 15.3% of non-binary participants, 9.9% of cisgender men, and 8.4% of cisgender women. 

• More than a quarter (26.0%) of participants who had experienced homelessness felt that this experience was related to being LGBTIQA+. This was most common among trans men (45.2%) and trans women (37.9%). ...

 Engagement with professional support services

• Nearly two-thirds (62.9%) of participants had accessed an in- person professional counselling or support service, over one-fifth (21.2%) a professional text or webchat support service, and over one-tenth (13.2%) a professional telephone support service in their lifetime. 

• Overall, almost two-thirds (63.2%) of participants who accessed an LGBTIQA+-specific service the most recent time they accessed a professional support service reported that it had made the situation ‘better/ much better’, compared to half (50.2%) of those accessing an in-person professional counselling or support service, two fifths (39.6%) of those accessing a professional telephone support service, and one third (34.9%) of those accessing a professional text or webchat support service. 

• Two-thirds (67.9%) of participants said they would prefer to access a professional support service in person if they were to need one in future, followed by 19.1% who preferred text or webchat, and 2.1% telephone. It should be noted these data were collected prior to COVID-19, which might influence preferences now.

Clearview

A joint investigation by the Office of the Privacy Commissioner of Canada, the Commission d'accès à l'information du Québec, the Office of the Information and Privacy Commissioner for British Columbia and the Office of the Information and Privacy Commissioner of Alberta has concluded that Clearview AI violated Canada's national and provincial privacy law. 

The agencies conclude that Clearview’s scraping of billions of images of people from across the internet represented mass surveillance and was a clear violation of the privacy rights of Canadians. They are not, however going to do much about it. 

The national Commissioner comments 

 Clearview AI’s technology allowed law enforcement and commercial organizations to match photographs of unknown people against the company’s databank of more than 3 billion images, including of Canadians and children, for investigation purposes. Commissioners found that this creates the risk of significant harm to individuals, the vast majority of whom have never been and will never be implicated in a crime. 

The investigation found that Clearview had collected highly sensitive biometric information without the knowledge or consent of individuals. Furthermore, Clearview collected, used and disclosed Canadians’ personal information for inappropriate purposes, which cannot be rendered appropriate via consent. 

Further Commissioners rejected these arguments. They were particularly concerned that the organization did not recognize that the mass collection of biometric information from billions of people, without express consent, violated the reasonable expectation of privacy of individuals and that the company was of the view that its business interests outweighed privacy rights. 

On the applicability of Canadian laws, they noted that Clearview collected the images of Canadians and actively marketed its services to law enforcement agencies in Canada. The RCMP became a paying customer and a total of 48 accounts were created for law enforcement and other organizations across the country. 

The investigation also noted the potential risks to individuals whose images were captured and included in Clearview’s biometric database. These potential harms include the risk of misidentification and exposure to potential data breaches.

Clearview disagreed, arguing that: 

•  Canadian privacy laws do not apply to its activities because the company does not have a “real and substantial connection” to Canada; 
• Consent was not required because the information was publicly available; 
• Individuals who placed or permitted their images to be placed on websites that were scraped did not have substantial privacy concerns justifying an infringement of the company’s freedom of expression; 
• Given the significant potential benefit of Clearview's services to law enforcement and national security and the fact that significant harm is unlikely to occur for individuals, the balancing of privacy rights and Clearview’s business needs favoured the company’s entirely appropriate purposes; and 
• Clearview cannot be held responsible for offering services to law enforcement or any other entity that subsequently makes an error in its assessment of the person being investigated. 

What's the outcome? 

The Commissioners state 

 The privacy authorities recommended that Clearview stop offering its facial recognition services to Canadian clients; stop collecting images of individuals in Canada; and delete all previously collected images and biometric facial arrays of individuals in Canada. 

Shortly after the investigation began, Clearview agreed to stop providing its services in the Canadian market. It stopped offering trial accounts to Canadian organizations and discontinued services to its only remaining Canadian subscriber, the RCMP in July 2020. 

However, Clearview disagreed with the findings of the investigation and did not demonstrate a willingness to follow the other recommendations. Should Clearview maintain its refusal, the four authorities will pursue other actions available under their respective Acts to bring Clearview into compliance with Canadian laws. 

A related investigation by the Office of the Privacy Commissioner of Canada into the RCMP’s use of Clearview AI’s facial recognition technology remains ongoing. The federal Commissioner's office, along with provincial counterparts, are currently developing guidance for law enforcement agencies on the use of facial recognition technologies. 

Inclusive Juries

The Victorian Law Reform Commission consultation paper Inclusive Juries: Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (submissions due end February) highlights key issues for community discussion. 

  Barriers in current law and practice 

The role of a jury in criminal and civil trials is to determine questions of fact and to apply the law, as stated by the judge, to those facts to reach a verdict. 

People in the subject groups may be called for jury service alongside others in the community but existing law and practice prevent many from serving as jurors. Concern has been expressed that this occurs without sufficient reasons. 

The Juries Act 2000 (Vic) does not specifically exclude people who are deaf, hard of hearing, blind or who have low vision from serving as jurors in Victoria. The Act specifies that a person is ineligible to serve if they are ‘unable to communicate in or understand the English language adequately’ or have ‘a physical disability that renders the person incapable of performing the duties of jury service’. 

Many limitations resulting from a person’s disability can be overcome with supports (also described as adjustments or accommodations) for example an Auslan interpreter or screen reading programs, but the Act does not state when courts should consider or provide supports. 

A further legal barrier is the old common law rule that there must not be more than 12 jurors present in jury deliberations (the jury room). This is known as the ‘13th person rule’ and it was re-affirmed by the High Court in 2016 [noted here]. The High Court held that a deaf juror could not be assisted by a non-juror in jury deliberations, because a jury needs to be ‘kept separate’ to maintain confidentiality, prevent influence or disruption, and to encourage frank discussion. 

The combination of the 13th person rule and the lack of guidance about the provision of supports means that jury service is often not possible for people in the subject groups. In practice, it is likely that when people in the subject groups are selected for jury duty they are left with no option other than to seek to be excused or they are deemed ineligible to serve. 

Reasons to make juries more inclusive 

Participation as a juror is an ‘important aspect of civic life’ or a ‘manifestation of active citizenship’.6 People who are deaf, hard of hearing, blind or who have low vision should be represented on juries because they are part of our community. They should be able to participate in civic life on equal terms with others. 

Reform will respond to recent decisions by the United Nations Committee on the Rights of Persons with Disabilities (the UN Committee) calling for change to jury laws in Australia. 

Reform will also be consistent with the Victorian Charter of Human Rights and Responsibilities, which integrates international human rights standards into Victorian law. It includes the right to equality before the law and protection from discrimination, including on the basis of disability. 

Overseas jurisdictions in the United States, Canada and New Zealand have allowed and facilitated jury service for people in the subject groups with supports for at least ten years and in the United States for much longer. Supports are also provided in England outside of the jury room (where the 13th person rule still applies). We discuss the experiences of people in the subject groups who have served on juries overseas in Chapter 4 of the consultation paper. 

In 2018 the Australian Capital Territory (ACT) became the first jurisdiction in Australia to amend its laws to require consideration of the provision of reasonable supports, and to limit the application of the 13th person rule. 

Changing the law would align it with modern community standards and expectations. Communication tools for people in the subject groups are now increasingly visible in our community. Many may be surprised that the law does not impose any positive obligation on the courts to consider supports for jury service. 

In developing recommendations for reform, the Commission will be examining options for enabling more representative juries and equality of civic obligations that also enable delivery of a fair trial. Any reforms must ensure that a jury functions effectively, that jurors perform their duties adequately and confidence in the jury system is maintained. 

We intend to design practical reforms that will work in the context of a busy and demanding court environment with limited resources in both metropolitan and regional areas. 

Key reform ideas 

A system to make juries more inclusive 

Recent changes to the Juries Act in the ACT provide guidance about the provision and assessment of reasonable supports to enable people in the subject groups to serve as jurors. 

In the ACT if the judge thinks that someone needs supports to properly discharge their duties as a juror, and these supports can be reasonably provided, then they must be. Examples of supports in the notes to the ACT legislation are an Auslan interpreter, an assistance animal, disability aid or support person. 

The list of factors to be considered in determining whether supports can be reasonably given includes court resources, time frames and facilities, whether a non-juror would inhibit or restrict discussion in the jury room, and any other issue the judge thinks is relevant. 

The judge makes the final decision about whether reasonable supports can be provided. This judicial assessment process is similar to the approach in some overseas jurisdictions where people also serve with supports. 

The Commission is keen to hear community views about whether the judge should be given a specific power to exclude a juror when they cannot perform their role, even with supports. Some consider that this power is important to ensure the principle of a fair trial is not undermined. For example, in trials where the jury is called upon to assess pivotal voice or visual identification evidence, it may not be appropriate for a juror who is deaf or blind to serve. 

The ACT Act addresses concerns about participation of a 13th person in the jury room in a straightforward way. If a judge makes a direction allowing an interpreter or support person to assist in the jury room, then the old common law rule does not apply. The supporter must provide an oath or affirmation to the court not to participate in jury deliberations, to maintain confidentiality and to only assist the juror. 

The Commission is keen to hear from the community about whether the approach adopted in the ACT would work in Victoria. The ACT laws appear practical and straightforward and are supported by the practices and procedures of the ACT Sheriff’s Office. However, they have not yet been used to assist a person in the subject groups to serve on a jury in the ACT. 

Possible supports to enable inclusive juries 

Chapter 8 provides examples of supports that might assist people in the subject groups to serve as jurors. We are keen to hear from people who are deaf, hard of hearing, blind or who have low vision about what supports will help them to serve and how they could talk to the court or Juries Victoria about what they might need.

• Australian Sign Language (Auslan) interpreters Auslan interpreters generally work in pairs in approximately 20-minute shifts. This would mean that multiple interpreters might need to assist in trials and jury deliberations, making it 14 (not 13) people in the jury room. In lengthy trials a third interpreter might be needed to reduce the burden on the interpreters. - Auslan interpreters are certified and accredited through the National Accreditation Authority for Translators and Interpreters (NAATI). - When working in court rooms, Auslan interpreters are required to abide by the Australian Sign Language Interpreters Association Code of Ethics (ASLIA) which includes obligations about confidentiality and being impartial. - A limited number of interpreters in Victoria work in legal settings. It can be difficult to arrange an interpreter at short notice. 

• Hearing loops are used by Australian courts including the County Court and Supreme Court in Victoria. 

• Communication Access Real Time Translation (CART) is used by the Family Court of Australia and the Federal Court of Australia.  CART transcribes and translates spoken words and sounds into text, in real time, on a big screen, or phone, laptop or mobile device. CART operators utilise software to translate speech to text. CART can be combined with an audio component (such as hearing loops).  It involves CART writers, stenographers and court reporters. 

It may be necessary to provide supplementary written materials or transcripts to jurors who are deaf or hard of hearing. 

Automated speech recognition software/apps transcribe speech from multiple individuals onto a screen in close to real time by connecting to several devices with the app downloaded and microphones turned on. 

• Materials in audio form Screen-reading programs translate the written text displayed on a screen for a voice synthesizer which reproduces the text as speech.  Popular screen readers include the Jaws Screen Reader which speaks electronic or scanned material and can create Braille output.  Another example, Zoom Text ‘enlarges and enhances everything on [a] computer screen, echoes your typing and essential program activity, and automatically reads documents, web pages, email.’ 

• Changing the format of documents to larger font size, plain typeface with spacing between the words, or printing on tinted paper. Providing documents in Word so that they can be read by technology. 

• Magnifiers to enlarge print or pictures. Magnifiers can be non-electronic or electronic. CCTV magnifiers have a camera on a frame, displaying a magnified image on a monitor. Sometimes CCTV magnifiers also include speech output so that a person can hear the text being read as it is displayed on the monitor.   

• Braille material 

• Assistance animals or mobility canes may assist a prospective juror to navigate and feel comfortable in a court room, jury room and the court building. 

• Support person—for example, a person providing assistance during a trial or in jury deliberations to a juror who is blind or with low vision. 

Court processes and practices 

The following adjustments to court processes and practices may be helpful:

• adjustments to the layout of the court room and the jury room. 

• additional breaks to accommodate jurors with disability, along with the needs of Auslan interpreters, support people or assistance animals. 

• judicial directions to inform the Court about the running of the trial with supports. 

The logistics of arranging supports 

The jury selection process is unpredictable. It commences with random selection from the jury roll, the panel is selected by random ballot and the prospective juror may be challenged off late in the process. It is therefore impossible to say with certainty that a juror needing supports will be selected for jury duty. 

A prospective juror will need support through the empanelment process and may also need to call on supports during a trial and in jury deliberation. 

Community feedback 

We are keen to hear community views about:

• How to change legislation and practice to ensure that the court considers and assesses reasonable supports for people in the subject groups to allow them to serve. 

• What safeguards might be needed to ensure that participation of people in the subject groups does not prejudice the fairness of trials. Should the judge have a discretion to exclude a prospective juror where they would not be able to perform their role, even with supports, because of the type of evidence in a particular trial— for example, voice or photographic identification evidence? 

• How to overcome the prohibition on having 13 people in a jury room, and whether supporters and interpreters should provide an oath to court affirming that they will maintain confidentiality and not be involved in deliberations. 

• The types of supports that will assist people in the subject groups to serve, and processes to ensure that people can talk to the court about their needs. 

• Whether people in the subject groups should still have the option of being excused from service because of their disability. 

• How to overcome common misconceptions and prejudices about the abilities of people in the subject groups to serve as jurors.

The Commission will consider recent changes to the law in the ACT, recommendations of other law reform agencies and overseas practice, to develop recommendations for reform that will outline how change can be delivered.