Comparative Privacy Law

'New Global Developments in Data Protection and Privacy Regulations: Comparative Analysis of European Union, United States, and Russian Legislation' by Anne Wright Fiero and Elena Beier in (2022) 58(2) Stanford Journal of International Law 152 comments 

Privacy is a fundamental human right recognized in constitutions, international treaties, and national legislation around the globe. The era of globalization and rapid technology development highlights multiple risks to privacy rights. Such developments make it more important than ever to enact legal frameworks for data protection on a national and global scale. Fully applicable across the European Union (EU) as of May 2018, the General Data Protection Regulation (GDPR) is the most comprehensive and progressive piece of data protection legislation in the world.'The intent of this Article is to provide an overview of EU, US, and Russian data privacy regulations, as influenced by the GDPR and the countries' respective cultural and business traditions of privacy. 

 

More specifically, we explore how the historical, cultural, legal, business, and political traditions in each country have shaped the laws and regulations in their respective jurisdictions. As described in Part III, the US approach tends to be ad hoc and focused on concepts like personal freedom and non-interference by the state. Explored in Parts II and IV, the more uniform European approach tends to focus on the dignity of individuals and their protectionnot only against the state but also against private companies and other individuals. In the last few years, US society has focused more closely on data privacy concepts, with recent scrutiny on credit history checks, social media networks, and sharing other attributes of everyday American life, concepts that have long been considered invasive for many Europeans. The European privacy mentality has also been largely influenced by its historical and political systems, such as European monarchies, the Nazi regime in Germany, and the totalitarian regime in the Soviet Union, under all of which disclosure of personal information could lead to severe consequences and prosecutions. Thus, protection of private information is ingrained in European society.

Language

'Taken as Read: Linguistic (in)equality in Hong Kong’s Jurisprudence' by Stuart Hargreaves in (2023) Michigan State University International Law Review (Forthcoming) comments 

 Colonial Hong Kong was characterized by diglossia: the use of Cantonese for the ‘low’ functions of daily life and the use of English for the ‘high’ functions of law and government. This paper shows that significant linguistic inequality persists at the top end of the legal hierarchy a full quarter-century after the transition to Chinese sovereignty. By reviewing the output of Court of Final Appeal since 1997, this paper demonstrates that not only has the Court failed to develop a fully bilingual jurisprudence, the availability of Chinese-language translations of its decisions is in fact declining over time. This means that roughly two-thirds to three-quarters of the population is unable to read for themselves the decisions of the Region’s apex court despite being fluent in an official language. The paper argues that beyond instrumental arguments (such as fairness to monolingual self-represented litigants), linguistic equality in the Court’s output is justified in normative terms. It is an assertion of the dignity of monolingual Chinese speakers within the community; a statement that they deserve equal access to the output of the Court given the significant role it plays. The paper concludes by arguing for an amendment to the relevant law in order to guarantee linguistic equality in the Court’s output and provision of the necessary resources to accomplish it. The problem is solvable with political will and a relatively small amount of money.

Nature

'From barriers to boundary objects: Rights of nature in Australia' by Claudia Pilon-Summons, Susanne Pratt, Paul J. Brown and Alexander Baumber in (2022) 134(29) Environmental Science & Policy 13-22 comments 

Human pervasiveness on the Earth System, characterised by unprecedented social and environmental crises, demands a reimagining of human-Nature relations. Emerging from Earth Jurisprudence, a Rights of Nature (RoN) approach has been proposed as a legal and conceptual mechanism to interrogate exploitative human-Nature relations and facilitate an Earth-centric transition within Western systems of law and governance. While this concept has gained recent traction in Australia, RoN creation and recognition still faces significant practical and conceptual barriers. This article presents the results of an exploratory qualitative analysis articulating the perspectives of state members of parliament, local councillors, lawyers, academics, advocates, and community volunteers to provide insight and understanding into perceived obstacles to RoN creation and recognition in Australia. Twenty-five key barriers were identified and categorised into a novel taxonomy called the Barriers and Enablers to Rights of Nature (BERN) Framework, with the most salient including: (1) Dominant Paradigms, namely anthropocentrism, economic ideologies, political ideologies and partisanship, and social and political conservatism; (2) Regulatory Obstacles, including the existing regulatory system and rights structures; (3) Vested Interests; and (4) Power, including limited opportunity to participate in decision-making, access to decision-makers, and government levels. In articulating these factors, stakeholder dissonance regarding the employment, definition, and framing of RoN was observed, indicating RoN functions as a boundary object in the Australian context. We consider how identifying RoN as a boundary object may impact advocacy, as well as the implications it may have for overcoming barriers to RoN creation and recognition.

Misfeasance

'Misfeasdance in Public Office: A Very Peculiar Tort' by Mark Aronson in (2011) 35 Melbourne University Law Review comments

Misfeasance in public office is the common law’s only public law tort, because only public officials can commit it, and they must have acted unlawfully in the sense that they exceeded or misused a public power or position. This article examines who might be treated as a public official for these purposes, and whether the tort might extend to government contractors performing public functions. The article also discusses the tort’s expansion beyond the familiar administrative law context of abuse of public power, to abuse or misuse of public position. Misfeasance tortfeasors must at the very least have been recklessly indifferent as to whether they were exceeding or abusing their public power or position and thereby risking harm. That parallels the mens rea ingredient of the common law’s criminal offence of misconduct in public office, and reflects a further reason for restricting the tort’s coverage to public officials, who must always put their self-interest aside and act in the public interest. Upon proof of the tort’s fault elements, there beckons a damages vista apparently unconstrained by negligence law’s familiar limitations upon claims for purely economic loss. This article questions the capacity of the ‘recklessness’ requirement to constrain claims for indeterminate sums from an indeterminate number of claimants, some of whom may have been only secondary (or even more remote) victims of the public official’s misconduct. Finally, it questions (and finds wanting) the assumption common in Australia that government will not usually be vicariously liable for this tort. It argues that the personal wealth (or otherwise) of a public official should not set the boundary for a truly public tort. The article undertakes a comparative analysis of the law in Australia, New Zealand, England and Canada.

Aronson argues 

Misfeasance in public office is a very peculiar tort. It is generally regarded as the common law’s only truly public tort, because the only people who can commit it are those holding public office, and the only occasions on which it can be committed are those in which public office-holders misuse their public power. Because government’s tort liability is usually judged by private law principles, there is no generalised common law right of action for damages for loss caused by invalid administrative action. That is an absence that some have lamented, although most have recognised that government liability for invalidity per se would be financially crippling (particularly in light of the rapid expansion of the grounds of invalidity for judicial review), as well as being counterproductive to good administration. 

Law reformers have long sought to articulate factors additional to invalidity which might form a coherent and justifiable basis for a new right of action. However, their calls for legislative reform along those lines have failed; indeed the political mood seems to be heading in the opposite direction. Human rights legislation has created a new species of government liability for damages, but these are discretionary, and are assessed according to principles that are usually less generous than tort’s aim of replacing the entirety of a loss with a monetary award. Common law developments have been mixed. At least in Australia and England, government liability for negligence seems to be in retreat, although the pace of retreat differs between the two countries, and their courts now have different approaches to the resolution of novel negligence claims. 

The misfeasance tort, however, has risen to some prominence in the last 20 or so years. A sequence of four leading cases has sketched its most basic outline. Speaking very generally, misfeasance now offers damages on a tort scale for loss inflicted by public officials guilty of ‘conscious maladministration’, a concept which catches abuses of power by public officers who either knew they were breaking the law or recklessly decided not to care that this might be so. The judges in each of the four cases nodded to the tort’s lengthy antecedents, but they did not proceed as legal historians disinterring an ancient and well-settled doctrine. Nor did they see themselves as law reformers, imposing new duties of care or new standards of administration on government officers. Their implicit premise was the need for a tort that catches some of the things that individuals outside of public office simply cannot do — government officials regulate, license and coerce in ways that often have no private sector analogue nor any court-based remedy aside from judicial review. Explicitly, however, the cases insisted that they were not about to create a whole new compensation right for government incompetence or inertia (which are popularly regarded as the bureaucracy’s chief pathologies). They have instead sharpened their focus on those hopefully exceptional cases where officials deliberately take the law into their own hands. 

The four leading cases have worked mostly in unison across national boundaries, starting in Australia, and from there to New Zealand, England and Canada in that order. Their sketch of misfeasance was only ever intended as preliminary; its edges are blurred, there are several gaps, and a lot of the detail remains to be filled in. It is therefore an appropriate time to take stock, to speculate on the loose ends so far, and to point to some of the hard choices that must now be made. 

There are, of course, more than four leading cases, but this article will start (in Part II) with the quartet of cases that laid the tort’s modern foundations, before backtracking to some early history (Part III). It will then investigate the tort’s mental elements, starting first with the general place of malice in tort and public law (Part IV), followed by a discussion of the criminal offence of misfeasance (Part V), and the misfeasance tort’s recent and potential borrowing from its criminal namesake (Part VI). In a sense, the discussion to that point will have reflected the principal preoccupations of the four modern leading cases, but the article will then turn to other issues. The cases have been at pains to tell us what the tort is not — it is neither an action for breach of duty (Part VII), nor a subset of negligence (Part VIII). Nor is it limited to the provision of compensation for government violation of common law or statutory rights, or at least, not ‘rights’ in any narrow and legalistic sense (Part IX). It is a tort defined in large part by the state of mind of officials who either knew they were law-breakers or decided not to care about their legal constraints. In the latter case, the decision must have been ‘reckless’, which is a requirement with considerable potential that is yet to be explored (Part X). Although the cases all treat misfeasance as a purely public law tort, they have yet to define how closely, if at all, it must track the law of judicial review. The remedy is clearly a supplement of sorts to judicial review, but is it confined to powers or duties supervised by judicial review, or can it extend further to deliberate abuse of government’s private law powers such as its commercial powers (Part XI)? Must its defendants hold public office, or can they be government contractors exercising public functions (Part XII)?10 And if misfeasance is indeed a public tort, why do the Australian cases doubt the ability to hold government vicariously liable for the misfeasance of its individual officers (Part XIII)?

Impersonation

In Trevor Cottle v D.P.P [2021] NSWDC 493 the Court considered two charges of impersonating a police officer, stating 

[2] ...Section 546D of the Crimes Act 1900 is relevantly in these terms:

Impersonation of police officers 

(1) General offence A person who impersonates a police officer is guilty of an offence. 

(2) Aggravated offence A person who, with intent to deceive— (a) impersonates a police officer, and (b) purports to exercise a power or function as a police officer, is guilty of an offence. ... 

(4) In this section— “ impersonation ” does not include conduct engaged in solely for satirical purposes.

 3 The Act does not define ‘impersonate’.

4 The Macquarie Dictionary defines it as to assume the character or appearance of, especially for fraudulent purposes; pretend to be; to represent in personal or bodily form; personify; typify; to act (a part), especially on the stage. 

5 The Oxford English Dictionary defines it as to represent or imagine (an immaterial thing or abstract quality) as a person or being; to attribute a personal nature or human characteristics to; to personify; to embody the essential characteristics of (something); to typify; to be an embodiment of (an idea, quality or feeling; to be an expression of (something abstract) in a concrete form; to provide (a soul or spirit: with a bodily form; to put into a body; to pretend to be (someone or something else), usually for the purpose of entertainment or fraud; to imitate (a person’s voice, mannerisms, etc.); to act the role of a character in a play, etc.). 

6 Stroud’s Judicial Dictionary of Words and Phrases defines the cognate word ‘personate’ as to pretend to be a person (who it suggests must be real). Jowitt’s Dictionary of English Law defines ‘personation’ as the act of representing oneself to be someone else (whether living or dead, real or fictitious). The Australian Encyclopaedic Legal Dictionary and Lexis Nexis Australian Legal Dictionary both define ‘false impersonation ’ as passing oneself off as another. 

7 The provision may be considered in light of comparable ones repealed and in other jurisdictions. 

8 Some specifically concern impersonation of police officers. Section 74 of the Police Act 1998 SA makes it an offence of ‘impersonate police’ for a person to represent him or herself by word or conduct to be a police officer. Section 78 of the Police Service Act 2003 TAS makes it an offence of ‘ impersonation ’ for a person to impersonate or represent him or herself as a police officer. Section 256 of the Victoria Police Act 2013 VIC makes it an offence of ‘impersonate police’ for a person to hold him or herself out to be a police officer. Section 362 of the Criminal Code 2002 ACT makes it an offence of ‘impersonate police’ for a person to represent him or herself to be a police officer. 

9 Some concern impersonation of other officers. Section 148.1 of the Criminal Code 1995 CTH makes it an offence of ‘ impersonation of an official’ for a person to impersonate or falsely represent him or herself as a Commonwealth official. Section 87 of the Criminal Code Act 1913 WA makes it an offence of ‘impersonate public officer’ for a person to represent him or herself by word or conduct to be a public officer. 

10 Others concern impersonation generally. Section 514 of the Criminal Code 1899 QLD makes it an offence of ‘personation’ for a person to falsely represent him or herself to be another. Section 272 of the Criminal Code 1983 NT makes it an offence of ‘personation’ for a person to falsely represent him or herself to be another. The repealed s 184 of the Crimes Act 1900 NSW made it an offence of ‘fraudulent personation’ for a person to falsely personate or pretend to be another. 

11 The minister said in the second reading speech when introducing the legislation inserting the provision:

“The impersonation of a police officer has the potential to have very serious consequences. Many people when faced with a person who is wearing a police uniform, or claiming to be a police officer, would feel obliged to comply with any requests or instructions given by that person provided that they seemed reasonable. This could have serious consequences. I am deeply concerned that persons impersonating police officers for criminal purposes can do considerable harm, both as a direct consequence of their criminal activity, and as a result of the loss of trust and the decline in co-operation by members of the community with the police if they are uncertain that they are dealing with authentic police officers.” 

12 The minister also noted the proposed amendments included an aggravated offence to be charged “where a person has impersonated a police officer and purported to exercise some power, or powers, of a police officer”. 

13 The appellant contends impersonating a police officer differs from pretending to be one and that is not enough for a person merely to represent him or herself as one; the person must engage in a police activity. The Crown contends it is enough for a person merely to represent him or herself as a police officer. 

14 Dictionary definitions of impersonate and personate all comprehend the meaning of a person pretending to be or representing him or herself as someone or something. 

15 Comparable offences concerning impersonation in other jurisdictions variously proscribe a person impersonating, pretending to be, or representing or holding him or herself out as, someone or something. 

16 The reference to both ‘personates’ and ‘pretends to be’ in the repealed s 184 does not necessarily imply the legislature differentiated conduct constituting each. It may reflect a concern to capture conduct whether its object was fictitious or real: cp. Clarkson v R [2007] NSWCCA 70 at [49]. 

17 It is not apparent any distinction is recognised in legal usage between impersonation on the one hand and a person pretending to be, or representing him or herself as, someone or something on the other. 

18 The aggravated offence in s 546D(2) comprises additional elements of specific intent and exercise of a power or function of a police officer. The latter would be redundant if inherent in the basic offence. It is difficult to conceive of such activities not comprising exercise of police powers or functions. The elements of the aggravated offence militate against a construction of the basic offence requiring any police activity. 

19 The second reading speech confirms the legislature was concerned to address the potential loss of community trust in and cooperation with police that a person simply claiming to be a police officer might cause and to provide for the greater penalty in the aggravated offence where a person purports also to exercise police powers. 

20 In summary, dictionary definitions, the statutory context, and the legislature’s purpose all support a construction of the offence as constituted where a person pretends to be or represents him or herself as a police officer. No police activity need be involved and a mere representation may suffice. Whether particular words and conduct constitute impersonation will depend on their context and all the circumstances.

History

'Historiography and Constitutional Adjudication' by William Partlett in (2022) Modern Law Review comments 

Lawyers and judges often use history in constitutional adjudication to provide context for constitutional interpretation. But there is debate about the extent to which historiography – the critical study of how history is written, developed by professional historians – is relevant to constitutional adjudication. This article argues that historiography has little relevance to constitutional reasoning grounded on historic legal sources such as court cases or legislation. But when constitutional reasoning relies on non-legal, general historical sources, historiography provides important insights. Arguments based on general historical sources – particularly originalist ones – can and should be critiqued on historiographical grounds. These methods show that general historical sources are unlikely to generate precise and objective constitutional meaning but can be used to develop and constrain many constitutional arguments, including those concerning constitutional practice, purpose, or values. Historiographic methods are important for lawyers and judges seeking to critique or make constitutional arguments grounded on general history. 

Partlett notes 

The use of history in constitutional adjudication has generated a vast literature and polarised debate. On one side are those who uncomfortable with the use of history in constitutional adjudication because it can be abused or pull courts into the dangerous area of contested history. On the other side are those who assume that history provides external authority for an objective answer to constitutional questions. In constitutional law, this approach has been dominated by originalism, which uses founding-era history to find the fixed meaning of constitutional text. Former United States Supreme Court Justice Antonin Scalia writes that the historical meaning of a particular constitutional provision at the time of adoption is ‘easy to discern and simple to apply’. 

 

A key question in this debate is the role of historiographical insights from the discipline of professional history. Many originalists (and some others) take the ‘separationist’ position that historiographical criticism is irrelevant to historical constitutional reasoning. Professional historians, it is argued, are trained to ‘relish and respect ambiguity, the inevitability of multiple interpretations, [and] the complexity and multivocality of the past.’ Lawyers, by contrast, are trained to work with legal authority in finding answers to legal questions. Thus, law and history are and should remain separate disciplines. Historiography, the methodology of professional historians, should not inform constitutional reasoning at all. 

 

This article will argue that this ‘separationist’ claim mistakenly assumes that all sources from the past carry legal authority. This assumption misses a critical distinction between legal and general historical sources. Legal sources – such as cases and legislation – are special types of sources from the past that carry (or carried) legal authority. These authoritative sources of state law are therefore catalogued, hierarchical, and written in ways that make them easily applicable to present-day constitutional disputes. Lawyers and judges are specially trained to read and apply these kinds of legal authorities; they are therefore arguing from an internal position within the law. In this internal position, they are making arguments based on ‘a competence learned and exercised through participating in a common practice.’ In this context, the separationists are correct and historiography has little relevance to arguments grounded on legal sources. 

 

But many constitutional arguments are not grounded on legal sources. They are instead based on ‘general’ historical sources. These general sources are not sources of legal authority but are instead incomplete or non-hierarchical sources produced for a number of different audiences. These sources include a large amount of historical information, from primary sources (such as convention debates) to secondary sources (books written by historians). When making arguments grounded on these sources, lawyers are no longer operating in an internal position; they are instead occupying an external position. When lawyers rely on these general historical sources, historiography provides lawyers and judges with two key critical insights. 

 

First, historiography shows how general history constitutional reasoning (GHCR) should be evaluated on the selectivity of its particular historical account. This inquiry turns attention to the way that a historical account is framed and whether particular general historical sources are used selectively to advance an argument. Lawyers and judges generally do not have the time and skills to carry out this critical work through primary-source, archival research. But they can evaluate these aspects of a historical account in the context of the secondary source literature written by historians on the question in issue. This external context will often show whether the historical account is framed and written in a way that is widely accepted by professional historians. 

 

Second, historiography demonstrates how GHCR should be critiqued on whether it is over-claiming about its application to current constitutional meaning. Unlike legal sources, general sources are not sources of legal authority intended to be used to in future legal disputes. They are instead highly complex and unlikely to provide ‘didactic precepts’ that lead to textual constitutional meaning. The complex interaction of historical and current meaning means that general historical sources will frequently not alone provide objective answers to constitutional questions. Instead, they are far more likely to yield partial arguments that shape or constrain other arguments that form a persuasive constitutional decision. 

 

These insights yield two main conclusions. First, the separationist position goes too far. It is correct that historiography has little relevance to internal legal reasoning grounded on legal sources. But when legal actors rely on general historical sources, they shift to an external position. In this position, historiography is an important tool for critiquing any constitutional argument based on general history (including originalist ones). Second, historiography shows that although widely accepted general historical accounts are unlikely alone to generate fixed constitutional meaning, they can be an important technique in ‘guiding’ other forms of constitutional reasoning.For instance, they can develop and constrain arguments about constitutional practice, purpose, values and therefore help to ensure that lawyers and judges make more persuasive arguments. Used responsibly, therefore, GHCR is an important technique that can and should be used widely to contribute to constitutional decisions. 

 

It might at first seem unrealistic for these historiographical methods to be applied in constitutional adjudication. But lawyers have strong incentives to use these historiographical lessons when opposing counsel make arguments grounded on general history. In fact, these insights – which can be obtained by consulting a historian as an expert – provide important new ways ‘to rebut, cast doubt on, or complicate’ the other side's use of history. Judges also have good reasons to rely on these insights to ensure they use general history in a way that remains true to the judicial role and does not draw them into contested history. If the litigants do not provide this information, courts can also make use of expert evidence such as amicus briefs or a process requiring competing experts to provide a joint report to the court on where they differ and why. 

 

This article will make this argument in six parts. The first part will demonstrate how the influence of originalism has contributed to a common view that history supports a formalist and conservative form of reasoning to which historiography is irrelevant. The second part will introduce the central distinction in this paper between constitutional arguments based on legal and general historical sources. The third part will show why historiography has little relevance to constitutional reasoning based on legal sources. The fourth will describe the insights of historiography for the argumentative use of general historical sources. The fifth will show how historiography exposes serious problems in the reasoning of two landmark originalism cases grounded on general historical sources. The sixth part will provide examples of how general history can be productively combined with other forms of constitutional argument, grounded on constitutional practice, purpose, or values. The final part will conclude.

DIGI code

'Australia’s DIGI Code: what can we learn from the EU experience?' by Edward Hurcombe and James Meese in (2022) 57(3) Australian Journal of Political Science 297-307 comments

Disinformation and misinformation on social media platforms are growing regulatory concerns for governments. In this paper, we examine Australia’s DIGI Code of Practice (CoP). The CoP is a voluntary set of commitments to address false content on platforms that is overseen by Australia’s digital media industry. It was established in response to a federal government directive. We evaluate the DIGI CoP by comparing it to the code it was partially based on: the EU’s Code of Practice on Disinformation (EU CPD). The EU CPD also attempted voluntary regulation, and yet the EU is now moving towards a strengthened CPD. While the DIGI CoP improves upon the original EU CPD, the original version had limited accountability measures and notable content exclusions. We conclude by discussing a recent review of the CoP, suggesting that Australia will also strengthen regulation in this area. Lastly, we address ongoing tensions around media freedom and accountability. 

 The authors argue 

In the last five years, disinformation and misinformation on social media platforms have become serious regulatory concerns. This is due to several recent high-profile developments, such as attempts by external state actors to influence domestic elections (Parlapiano and Lee 2018). The COVID-19 pandemic has also highlighted the public health risks of platform-based misinformation (Bruns, Harrington, and Hurcombe 2020a; Meese and Hurcombe 2020b), so much so that World Health Organisation declared the latter an ‘infodemic’ that rivalled the virus itself (United Nations 2020). In response, governments are increasingly playing a role in reducing false information and malicious behaviour on platforms (Meese and Hurcombe 2020b; Alemanno 2018). 

Australia’s recent ‘Code of Practice on Disinformation and Misinformation’ (DIGI 2021), developed by the domestic digital industry body DIGI in response to a government directive, is one outcome of this broader policy trend. The Code of Practice (DIGI CoP) is a voluntary set of commitments made by tech companies to reduce the propagation of dis- and misinformation, empower consumers to identify dis- and misinformation, increase the transparency of political advertising on platforms, and publicise measures combating dis- and misinformation. The DIGI CoP emerged out of the Australian government’s Digital Platforms Inquiry, which recommended that a disinformation code be introduced (ACCC 2019). The Australian government accepted this recommendation and directed major tech companies to develop a voluntary code of conduct. Following subsequent stakeholder engagement as well as input from the Australian Communications and Media Authority (ACMA), the code was expanded to also address concerns around misinformation and news quality (ACMA 2020; DIGI 2021). However, the effectiveness of the code remains unclear. In this article, we evaluate the DIGI CoP by comparing it to the code it was based on: the EU’s Code of Practice on Disinformation (EU CPD). The EU CPD, which major tech companies such as Facebook, Google, and Twitter signed onto in October 2018 (EC n.d.), also attempted voluntary regulation as a means of reducing misinformation and improving advertising transparency on platforms. And yet, the European Commission is now moving towards a ‘strengthened’ EU CPD, following concerns about weaknesses in the original code. Below, we examine the original EU CPD, discuss how the DIGI CoP improves upon the EU CPD, as well identify ongoing weaknesses in the DIGI Code. We then reflect on what recent developments in the EU means for the future of the DIGI CoP.