Belief, Defamation and the Devil

Is accusing someone of being a witch defamatory? In Nyasulu v Naikelekele [2022] NSWDC 507 the plaintiffs brought proceedings for twelve social media posts on their Church website by a former Church member saying they are devils running a satanic cult, with the court considering whether the “consensus” of modern public opinion means that the imputations pleaded were incapable of defamatory meaning and serious harm. 

The judgment states 

 The plaintiffs are the founders and leaders of Streams International (“Streams”), a prophetic ministry which operates in New South Wales, Queensland and South Australia. The defendant is a former member of Streams. 

Over a two-day period (8 - 9 September 2021) the defendant published a series of twelve posts on the Ministry Facebook page in similar terms. Each of them is pleaded to convey imputations of use of satanic or demonic power by each plaintiff for the purpose of stealing away the defendant’s daughter. The similarity in content and short time period for publication for these posts are important factors in the determination of the issues before me. ... 

(c) The defendant also submits that there is a “consensus requirement” that a statement can only be defamatory if it imputes some conduct or quality that would seriously harm the claimant’s reputation in the eyes of “right-thinking members of society generally” (Sube at [4]), citing Falkenberg v Nationwide News Pty Ltd (Supreme Court of New South Wales, Levine J, 16 December 1994) and Loukas v Young [1968] 3 NSWR 549 at 50 (“witch” not defamatory); see also Tabbaa v DailyMail.com Australia Pty Ltd (ACN 166 912 465) [2015] NSWDC 278 (“evil”)). In the twenty-first century, Ms Hart argues, how can it be defamatory to say of someone that they are a “demonic prophet of Satan” or even the devil himself? ... 

The relevant principles of law Section 3(d) of the Act, under the heading “Objects of Act”, states that the fourth of these objects is “to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter”. The emphasis on speedy and non-litigious means of resolution in s 3(d) is central to the functioning of the legislation in general and the concerns notice procedure in particular. Section 10A of the Act identifies “serious harm” as an element of the cause of action for defamation. The publication must be established to have caused, or to be likely to cause, serious harm. ... 

In the Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper (December 2019, p. 25), the dangers of a proliferation of “neighbourly disputes” and “backyard defamation” were noted. The purpose of mandatory concerns notices is to promote swift resolution of such matters, without recourse to litigation, by use of the offer of amends process where appropriate. The purpose of the ability to respond by offer of amends is to achieve a settlement of the whole of the proceedings, and to do so informally and outside the court system. Previously, the undesirable situation had been that a plaintiff could simply serve a statement of claim and treat it as a concerns notice (Mohareb v Booth [2020] NSWCA 49; Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283; s 12A(2) was specifically enacted to overcome the effect of these appellate decisions). ... 

careful analysis of the whole of the concerns notice demonstrates that not only are there such particulars, but there are nearly eight pages of them, as the following summary demonstrates: (a) The general tenor of the first two pages is that the defendants’ series of posts individually and collectively caused personal distress and humiliation to the plaintiffs through their ministry, as they have been deluged with messages by the thousands of readers who saw them. The defendant made “extremely serious” allegations damaging to the plaintiffs’ reputations in the eyes of these persons. (b) This includes four paragraphs of details (headed “Relevant Cultural and Reputational Matters”) and a description (on pages 1 - 2) of the plaintiffs’ work in the Ministry, not only in Australia but at other locations, and how that work has been affected. (c) There is then a heading: “The involvement of You and Your daughter in the ministry” setting out how the defendant left Streams while her daughter chose to remain. (d) The defendant is next told about the responses of the members of Streams to the publications (submissions, paragraphs 21 - 24). This section describes some of the responses of the readers of the matters and the impact this has had on the plaintiffs’ reputation. (e) The next heading, “The defamatory publications”, identifies each of the publications made between 8 and 9 September made by the defendant under a pseudonym. The texts of each of the publications and the publishee are both set out. (f) This is followed by the defendant’s list of the imputations of concern, on page 6 of the concerns notice. This list of 22 imputations sets out that the matters complained of “carry numerous defamatory imputations, including...”. (g) The next heading is “Damage caused and ongoing”. This sets out precise figures for the extent of publication. The assertion is made that the Facebook page (erroneously described on page 8 as “this letter”) has reached 28,731 people across the world, with 10,024 post engagements, 5,493 link clicks and 4,512 persons watching an embedded video for more than 3 seconds. This is followed by “examples” of public exchanges between the defendant and the persons to whom she addressed her posts. It concludes by noting that other content has been posted on “other social media locations.” This is clearly an ongoing issue; Mr Sibtain SC referred in his oral submissions to publications to over 80,000 people and to the need for further particularisation in the future. (h) The letter concludes by setting out the orders that will be sought, including a figure for general damages and a claim for exemplary damages (which I assume is an error, in that there should be a separately assessed figure for aggravated damages pursuant to s 35(2B) of the Act. Exemplary damages are not available: s 37 of the Act.) (i) The letter then concludes with an invitation to make amends for the hurt and damage to reputation suffered.... 

The “consensus argument” that in the 21st century, these publications are not even capable of defamatory meaning 

Ms Hart, relying on the “consensus argument” in Sube as well as on Falkenberg v Nationwide News Pty Ltd, submits that in modern society, particularly taking into account the manner in which social media posts are read in a somewhat cynical fashion, the matters could not give rise even to defamatory meaning, let alone serious harm, as comparison to the devil would not be taken seriously; it was evident from the matters complained of that nobody took the defendant literally or believed what she said. 

There are a number of judgments where courts have held that allegations of witchcraft (WIC Radio v Simpson [2008] 2 SCR 420 at [97], citing Loukas v Young [1968] 3 NSWR 549), being the devil (Falkenberg v Nationwide News Pty Ltd) and even sleeping with the devil (Peschmann v Quayle (WD, Pa., 13 August 2019) are rarely likely to be defamatory in “a modern developed society”, because such an imputation “would not be believed and therefore would not harm the plaintiff’s reputation” (WIC Radio v Simpson at [97]). Mr Sibtain submitted in response that it was “not trivial” to say that the plaintiffs were the devil incarnate and running a satanic cult. This submission may be disposed of in relatively brief terms. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, the plaintiff, a gynaecologist, brought proceedings for defamation for being called an abortionist. The action was struck out at first instance on the basis that the word did not have a particular defamatory meaning. On appeal (referring, inter alia, to imputations of being a communist), Glass JA noted the differing views in other jurisdictions:

“There is no need to document the existence in the community of a deep factional divide on the issue of abortion. The pro-abortion lobby approves the existing grounds for lawful termination of pregnancies and seeks to have them extended. The anti-abortion lobby contends that all abortion is morally wrong and that no abortion should be lawful. So the description of the plaintiff as a lawful abortionist will excite both approbation and disapprobation in different sections of the community. How does the law of defamation accommodate these discrepant social attitudes? There is a body of English authority which suggests that the standard of opinion is that of “right thinking people generally”: Tolley v J S Fry & Sons Ltd [1931] UKHL 1; [1930] 1 KB 467, at 479; Sim v Stretch [1936] 2 All ER 1237, at 1240; 52 TLR 669, at 671. The corollary to this proposition was that an imputation of conduct which disparaged the plaintiff only in the eyes of a limited class was not defamatory; Byrne v Deane [1937] 1 KB 818; Myroft v Sleight (1921) 90 LJKB 883; Clay v Roberts (1863) 8 LT 397. In the United States, on the other hand, an imputation can be defamatory if it injures a man in the eyes of “a considerable and respectable class in the community” though it be only a minority, Peck v Tribune Co [1909] USSC 135; 214 US 185, at 190 (1909), in which Holmes J said “liability is not a question of a majority vote”.

AI and Integrity

'How Generative Ai Turns Copyright Law on its Head' by Mark A Lemley comments 

While courts are litigating many copyright issues involving generative AI, from who owns AI-generated works to the fair use of training to infringement by AI outputs, the most fundamental changes generative AI will bring to copyright law don't fit in any of those categories. The new model of creativity generative AI brings puts considerable strain on copyright’s two most fundamental legal doctrines: the idea-expression dichotomy and the substantial similarity test for infringement. Increasingly creativity will be lodged in asking the right questions, not in creating the answers. Asking questions may sometimes be creative, but the AI does the bulk of the work that copyright traditionally exists to reward, and that work will not be protected. That inverts what copyright law now prizes. And because asking the questions will be the basis for copyrightability, similarity of expression in the answers will no longer be of much use in proving the fact of copying of the questions. That means we may need to throw out our test for infringement, or at least apply it in fundamentally different ways. 

'AI Providers as Criminal Essay Mills? Large Language Models meet Contract Cheating Law' (UCL Faculty of Laws, 2023) by Noëlle Gaumann & Michael Veale comments

Academic integrity has been a constant issue for higher education, already heightened by the easy availability of essay mill and contract cheating services over the Internet. Jurisdictions across the world have passed a range of laws making it an offence to offer or advertise such services. Because of the nature of these services, which may make students agree to not submit work they create or support, some of these offences have been drafted extremely broadly, without intent or knowledge requirements. The consequence of this is that there sit on statute books a range of very wide offences covering the support of, partial or complete authoring of assignments or work. 

At the same time, AI systems have become part of public consciousness, particularly since the launch of chatGPT from OpenAI. These large language models have quickly become part of workflows in many areas, and are widely used by students. These have concerned higher education institutions as they highly resemble essay mills in their functioning and result. 

This paper attempts to unravel the intersection between essay mills, general purpose AI services, and emerging academic cheating law. We:

• Analyse, in context, academic cheating legislation from jurisdictions including England and Wales, Ireland, Australia, New Zealand, US States, and Austria in light of how it applies to both essay mills, AI-enhanced essay mills, and general purpose AI providers. (Chapter 2) 

• Examine and document currently available services by new AI-enhanced essay mills, characterising them and examining the way they present themselves both on their own websites and apps, and in advertising on major social media platforms including Instagram and TikTok. These include systems which both write entire essays as well as those designed to reference AI-created work, provide outlines, and to deliberately ‘humanise’ text as to avoid nascent AI detectors. (Chapter 3) 

• Outline the tensions between academic cheating legal regimes and both AI-enhanced essay mills and general purpose AI systems, which can allow students to cheat in much the same way. (Chapter 4) 

• Provide recommendations to legislators and regulators about how to design regimes which both effectively limit AI powered contract cheating without, as in some current jurisdictions, accidentally bringing bona fide general purpose AI systems into scope unnecessarily. (Chapter 5)

We make some important findings. xx Firstly, there is already a significant market of AI-enhanced essay mills, many of which are developing features directly designed to frustrate education providers’ current attempts to detect and mitigate the academic integrity implications of AI generated work. 

Secondly, some jurisdictions have scoped their laws so widely, that it is hard to see how ‘general purpose’ large language models such as Open AI’s GPT-4 or Google’s Bard would not fall into their provisions, and thus be committing a criminal offence. This is particularly the case in England and Wales and in Australia. 

Thirdly, the boundaries between assistance and cheating are being directly blurred by essay mills utilizing AI tools. Most enforcement, given the nature of the academic cheating regimes, we suspect will result from private enforcement, rather than prosecutions. These regimes interact in important and until now unexplored ways with other legal regimes, such as the EU’s Digital Services Act, the UK’s proposed Online Safety Bill, and contractual governance mechanisms such as the terms of service of AI API providers, and the licensing terms of open source models. 

We conclude with recommendations for policymakers and HE providers. These include that:

• Jurisdictions should explore creating obligations for AI-as-a-service providers to enforce their own terms and conditions, similar to obligations placed on intermediaries under the Digital Services Act and the Online Safety Bill. This would create an avenue to cut off professionalised essay mills using these services when notified or investigated. 

• Jurisdictions should name a regulator and provide them with investigation and enforcement powers. If they are unwilling to do this, giving formal ability to higher education institutions to refer matters to prosecuting authorities would be a start. 

• Regulators should issue guidelines on the boundaries of essay mills in the context of AI, considering general purpose systems and systems that allow co-writing, outlining or research. 

• Regulators, when established, should have a formal, international forum to create shared guidance, which they should have regard to when enforcing. Legislation should be amended to give formal powers of joint investigation and cooperation through this forum. 

• Legislation should be amended to give general-purpose AI systems a safe harbour from criminal consideration as an essay mill, insofar as they meet a series of criteria designed to lower their risk in this regard. We propose watermarking, regulatory co-operation, and time- limited data retention and querying capacity based on queries provided by educational institutions, as mechanisms to consider. 

• Higher education institutions share funding to organise individuals to monitor advertising archives and other services for essay mills, and report these to prosecutors in relevant jurisdictions as well as take down adverts for these services rapidly. Reporting should be wide, including to payment service providers, who may be able to stop profit from these regimes, and to AI service providers.

FRT

'Facial recognition technology, democracy and human rights' by Francesca Palmiotto and Natalia Menéndez González in (2023) 50 Computer Law & Security Review comments 

On 4 July 2023, the Third Section of the European Court of Human Rights (ECtHR) delivered the first judgment on the compatibility of facial recognition technology with human rights in Glukhin v. Russia. The case concerned the use of facial recognition technology (FRT) against Mr Glukhin following his solo demonstration in the Moscow underground. The Court unanimously found a violation of Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR). Regarding FRT, the Court concluded that the use of highly intrusive technology is incompatible with the ideals and values of a democratic society governed by the rule of law. This case note analyses the judgment and shows its relevance in the current regulatory debate on Artificial Intelligence (AI) systems in Europe. Notwithstanding the importance of this decision, we argue that the Court has left crucial questions unanswered. 

 ... On 23 August, Mr Glukhin travelled on the Moscow underground with a life-size cardboard of Mr Kotov, a political activist who was arrested and charged some days earlier, holding a banner saying: “You must be f**king kidding me. I'm Konstantin Kotov. I'm facing up to five years [in prison] for peaceful protests”. The applicant's solo demonstration was not interrupted by the police. Only seven days later, on 30 August 2019, Mr Gluckhin was arrested at an underground station and charged with an administrative offence for violating established procedures for the conduct of public events. The police were able to identify and locate him thanks to facial recognition technology. 

More specifically, the Russian police anti-extremist unit used FRT in two ways. Firstly, they took screenshots from a public Telegram channel showing videos of the applicant holding the cardboard figure of Mr Kotov. They then obtained video recordings from CCTV cameras installed at two underground stations. Using “post-remote” FRT, the police identified the applicant and established his home address. Secondly, after the police went to the applicant's home and discovered that he was not there, they used “live” FRT to identify the real-time location of the applicant in Moscow. The applicant was arrested on the same day at an underground station. Although the Russian Government never explicitly admitted their use of FRT, the Court accepted, in light of the particular circumstances of the case, that FRT was used. 

After the arrest, Mr Glukhin was charged and convicted in the administrative offence proceedings for failure to notify the authorities of his solo demonstration. Under Russian law, a notification for solo demonstrations is required where the demonstrator intends to use a “quickly (de)assembled object”, i.e., the life-size cardboard of Mr Kotov. In the administrative proceedings, the judicial authorities relied on evidence provided by FRT, which identified the applicant from the screenshots of the Telegram channel and the video recordings from the surveillance cameras installed in the Moscow underground trains and stations. 

The applicant appealed, complaining that the activities performed to identify him had been unlawful and the evidence obtained was, therefore, inadmissible. He also submitted that his conviction for a peaceful demonstration breached his right to freedom of expression, as it had not caused any risk to public order or the life or health of others. The Moscow City Court upheld the conviction. After exhausting all internal remedies, Mr Glukhin lodged an application with the ECtHR in January 2020. The applicant complained that his administrative conviction and the use of FRT had breached his rights under Articles 8, 10 and 11 of the ECHR. He also complained that the proceeding against him was unfair, relying on Article 6 of the ECHR.

National Science & Research Priorities

The Australia’s draft National Science and Research Priorities consultation document features the following Consultation questions 

1. The draft priorities intend to identify specific challenges facing the country that will require multidisciplinary and multisector efforts to address. Do they achieve this objective? How can we improve them? 

2. Feedback stressed the need to work in partnership with First Nations people to embed First Nations knowledge and knowledge systems in the way we address national challenges. How might governments and the science and research sector best work with First Nations people to achieve this objective? 

3. The draft priorities provide a range of critical research paths. How could we refine these research paths, for example, to address immediate challenges? 

4. How would you implement the priorities in your organisation or setting? What mechanisms would support implementation? 

5. The National Science Statement will explain the role our science systems will play in delivering the priorities and maximising the benefits from science for Australia. How can the following best support the priorities: a. Science agencies b. Science infrastructure c. Australian government science programs d. Domestic and international science relationships. 

The Draft Priorities are 

  Priority 1: Ensuring a net zero future and protecting Australia’s biodiversity 

What we heard 

Throughout the national conversation, Australians raised climate change as the most significant challenge facing the planet and the country. We are already feeling acute effects in Australia and our region. In this enormous challenge, Australians identified that science and research are critical to understanding and preventing future climate change. They will also equip us to deal with changes already underway. Australians strongly recognised the importance of First Nations knowledge and knowledge systems in solving this challenge. This included unlocking their potential to make significant improvements to our environmental stewardship through genuine and appropriate partnership. Feedback also identified a need to ensure emissions reduction efforts maximise associated economic and environmental opportunities and manage competing uses of land, air, sky, and sea. 

Objectives 

Australia’s science and research will develop and deploy the next generation of technologies and practices to mitigate the effects of climate change. These will put us on track to meet and exceed our net zero emissions targets. We will work alongside Aboriginal and Torres Strait Islander peoples to protect and restore terrestrial and marine ecosystems for environmental and human wellbeing benefits. 

Our objectives: 

 Support our pathway to net zero  Understand and sustain our environment  Protect and restore biodiversity. Aims  Australia will reduce emissions at scale by developing emissions reduction and removal technologies that support restoring our environments (Support our pathway to net zero).  Australia will understand likely future conditions and risks for our climate and environment and draw on complementary knowledge systems to address and mitigate climate change impacts (Understand and sustain our environment).  Australia will protect habitats and biodiversity by applying, maintaining, and sustaining Indigenous knowledge and knowledge systems to improve environmental stewardship (Protect and restore biodiversity).  Australia will protect and restore marine, freshwater, and terrestrial habitats, and their biodiversity by managing them sustainably as holistic systems (Protect and restore biodiversity). 

Critical research 

These critical areas of research will help achieve our aims:   Carbon sources and sinks by soils, vegetation, coasts, and oceans in Australia and neighbouring regions and practical opportunities for managing natural carbon drawdown.  Future climate conditions in Australia, our neighbouring regions and Antarctica, including tipping points, shifting weather patterns, extreme events and sea level rise.  Indigenous approaches to environmental stewardship across Australia’s diverse habitats.  Improved forms of data collection, monitoring and analysis to support environmental and climate-related decision making.  Sustainable use of freshwater and ocean resources for food, industry, and environmental and community health.  Marine environment response to a changing climate and other human influences, and its impacts on future climate change, biodiversity and communities in Australia and neighbouring regions.  Prediction of habitat and biodiversity change and ways to reverse declining biodiversity.  Technological solutions for removing carbon dioxide from the atmosphere at the scale required to achieve and exceed net zero goals. 

Priority 2: Supporting healthy and thriving communities 

What we heard 

Australians saw science and research playing a central role not just treating sickness but also increasing wellbeing. Feedback noted our health is closely linked to climate and environmental health, and climate change is negatively impacting it (Ensuring a net zero future and protecting Australia’s biodiversity). We heard that Australians recognise that Indigenous concepts of holistic health and wellbeing – the connections between healthy Country and healthy communities – can deliver benefits to all Australians. Feedback also highlighted challenges like:  equitable access to healthcare, wherever someone is based  caring for an ageing population and people’s desire to live in their own home for longer  intersecting effects of disability and poor health on overall wellbeing  preventing disease  reducing rates of chronic conditions  improving mental health  collecting and curating data to support better wellbeing outcomes. Australia’s expertise in healthcare tools and emerging technologies can also further our economic and wellbeing goals (Enabling a productive and innovative economy). 

Objectives 

Australia’s science and research will support healthy, thriving communities by improving physical, mental, and social wellbeing indicators in all corners of the country and at all stages of life. We will be leaders in preventive health, empowering people to make choices in their care. Each Australian will be able to access the services and support they need. We will be leaders in fit-for- purpose data collection and access and trust to improve health and wellbeing. 

Our objectives:  Lead on preventive health  Support healthy communities  Ensure equitable access to care. Aims  Australia’s science and research will improve the physical, mental, and social wellbeing of all Australians by developing and adopting integrative, holistic approaches for health and disability (Lead on preventive health).  Australia’s science and research will understand the diverse and unique social and environment drivers of health and wellbeing in Australian communities (Support healthy communities).  Australians will have healthy brains and improved mental health throughout life (Support healthy communities).  Australia’s science and research will develop and adopt tools and approaches to improve access to health and wellbeing services for all Australians. These will be appropriate for peoples’ backgrounds and circumstances (Ensure equitable access to care). 

Critical research 

These critical areas of research will help achieve our aims:  Technologies and techniques that will enable an affordable, inclusive, culturally appropriate, and integrated preventive health system for Australia – one that drives positive behaviour changes and leverages fit-for-purpose data and connections to Country, community, and built and natural environments.  Mechanisms of brain function and repair and how to address deterioration of brain function.  Social and environmental drivers of ill health and poor mental health and the techniques and practices we can apply to enhance the wellbeing of all Australians at scale. 

Priority 3: Enabling a productive and innovative economy 

What we heard I 

n the national conversation, Australians identified the transition to net zero and low emissions technologies as a huge opportunity and challenge for Australia and the globe. These and other shifts, like our growing care and support economy and geopolitical uncertainty, will shape our future productivity. Australian businesses told us they could see how advances in technology, the digital world and materials science could transform areas like waste management, defence and healthcare. They could help us achieve our environmental and resilience goals. But it was also clear there are barriers holding back Australian invention, development, and adoption, like research translation challenges and accessing a skilled workforce. Aboriginal and Torres Strait Islander peoples recognise the potential in these opportunities. But they are calling for:  stronger partnerships with knowledge holders  protections for cultural and intellectual property  stronger data access and governance to support decision making. As a mid-sized economy, Australia does not have the scale or population to do everything. International partnerships will be important. The pace of change is accelerating, and Australians expect us to be ready to seize the opportunities on the horizon. 

Objectives 

Australia’s science and research will help build a more complex and productive economy. It will do this by adding greater value to our natural mineral endowments and translating the knowledge our research generates at sufficient scale to achieve our environmental, wellbeing, and resilience ambitions. We will ensure our small to medium-sized enterprises can take advantage of research breakthroughs. Aboriginal and Torres Strait Islander peoples will be able to capitalise on their knowledge and expertise and take advantage of emerging technologies in ways that best suit their communities. 

Our objectives: 

 Lead the transition to net zero  Harness emerging technologies at scale  Strengthen existing industries by embracing and driving innovation  Create future industries. Aims  As part of the transition to a net zero economy, Australia’s science and research will develop novel low and zero emissions technologies. This includes new ways to increase value-add in critical minerals and exports, embrace low environmental footprints and develop circular economy approaches (Leading the transition to net zero).  Australia will build new industries and accelerate productivity by having sovereign knowledge and access to develop and harness impactful emerging technologies, particularly AI, quantum, robotics, and biotechnology (Harness emerging technologies at scale. Create future industries).  Australian businesses will engage in more research and development increasing our global competitiveness (Strengthen existing industries by embracing and driving innovation. Create future industries). 

Critical research 

These critical areas of research will help achieve our aims:  Materials and technologies to develop a secure, affordable, and diverse low emission energy industry for Australia and the Indo-Pacific.  New and more efficient renewable energy generation and storage.  Materials and technologies to advance our economy in a sustainable manner and at scale.  Decarbonisation technologies for hard to abate processes and activities.  Australia’s transition to a circular economy amid geopolitical, climate and supply chain uncertainty, noting the scale needed and short timeframe.  Causes of Australia’s slow productivity growth and strategies to address them.  Understanding the impacts of climate change on Australia’s future productivity and our key markets. 

Priority 4: Building a stronger, more resilient nation 

What we heard 

Throughout the national conversation, people told us they value Australia’s civil and safe society. However, there are complex threats to our democratic values and safety that affect us as individuals, communities, and a nation. People were concerned about the impacts of misinformation and disinformation. They wanted to understand how to manage the technologies that facilitate its spread. They also told us they want to be able to adapt to changes around them by learning and applying critical thinking and new knowledge and skills throughout their lives. Australians were also concerned about the compounding effects of climate change and geopolitical instability on crises that impact key parts of our economy, safety, and way of life (Ensuring a net zero future and protecting Australia’s biodiversity. Supporting healthy and thriving communities. Enabling a productive and innovative economy). 

Objectives 

Australian communities will be resilient to disruption from natural and human-induced shocks. Our science and research system will provide tools and knowledge that underpin a resilient and informed society. 

Our objectives:  Support resilient communities  Secure food supplies  Build climate resilience in our built environment. Aims  Australian science and research will support communities to develop the skills, tools and systems that can strengthen Australia’s democratic resilience and enhance trust (Support resilient communities).  Australian science and research will increase the climate-resilience, value, trustworthiness, sustainability, and health benefits of our food products by developing new approaches and technologies for their production (Secure food supplies).  Australian science and research will develop and apply new technologies and techniques for cities and towns to prepare for and adapt to the impacts of climate change (Support resilient communities, Build climate resilience in our built environment). 

Critical research 

These critical areas of research will help us achieve our aims:  Cognitive and social causes of engagement with misinformation and disinformation.  Technologies, teaching tools and systems to support community engagement with information and learning at different stages of our lives.  Food safety and security for future Australian conditions and markets.  Housing and built environments that support climate resilience in Australia and our region by creating new designs, technologies, materials, and construction techniques.

The Guiding principles are

The draft priorities align with seven principles the government set to guide the development of the National Science and Research Priorities and the National Science Statement. 

Be community-informed – The first phase of the national conversation received 313 written submissions from individuals and organisations. Australia’s Chief Scientist held more than 30 roundtables across the country and online, engaging with community, research, and industry sectors. 23 further workshops helped us to refine the draft priorities. 

Be ambitious and purpose-driven – The priorities identify the key challenges and opportunities Australia will face now and into the coming decades. They signal to industry and the research sector the direction we will need to take over the coming decade to deliver meaningful impact on these community-informed priorities. 

Be evidence-based – Community input through the national conversation, expert advice, and existing government priorities informed the draft priorities. 

Be enduring and responsive – We intend the priorities to be enduring. The objectives and aims have a time horizon of ten years and the critical research has a time horizon of 5–10 years. 

Be relevant – A review of the priorities is proposed every five years to monitor progress and adjust where needed to maintain their relevance or harness new opportunities. 

Be focused – The four priorities reflect major societal domains that present the most significant challenges and opportunities. 

The objectives and aims identify more defined areas within the priorities. The final level identifies the key knowledge gaps that need to be addressed for maximum impact and societal benefit. 

Inform investments – The priorities will be used to help guide government policy direction and investment in science and research but will not be the only means of doing this. 

Measuring progress and adjusting the priorities 

We will measure progress on the aims and impact of the priorities through:  a set of metrics informed by the government’s Measuring What Matters Framework  other existing metrics, where possible. The government will review the priorities at five-year intervals to assess progress and ensure they remain relevant to Australia’s needs.

Straw

Yet another pseudolaw 'straw man' suite of arguments in Stefan v McLachlan [2023] VSC 501 

[3] the appellant identified himself as Alex Stefan and represented himself. His ’identity’ was an issue on the appeal. 

[4] The appellant did not contest, subject to the qualification that I am about to make, the findings of the magistrate that: (a) the informant and his partner observed a Range Rover Discovery that was travelling at a speed in excess of the speed limit as charged; (b) the rear number plate was unreadable as charged; (c) the appellant was the only person in the Range Rover Discovery; (d) the informant and his partner observed that the appellant was the driver of the Range Rover Discovery; and (e) the appellant, when asked, stated his name to be Alex Stefan and gave an address and produced a current Victorian driver’s licence. 

[5] The qualification that I alluded to was that although the appellant did not contest these matters of fact that are the basis of the two charges, he contested that he was amenable to the jurisdiction of the Magistrates’ Court to hear and determine such charges and that, properly construed, the relevant statutory provisions did not apply to him. ... 

[6] His amended notice of appeal raised 71 questions, described as questions of law. The appellant categorised those questions in the following way: (a) Questions regarding the nature of the court; (b) Questions regarding the allegiance, separation of powers, jurisdiction and compliance of the court with Chapter 3 of the Constitution; (c) Validity of orders made by the Magistrates’ Court; (d) Questions regarding the lawful status of the Victorian Department of Public Prosecutions and the prosecutor acting on behalf of the informant; (e) Questions regarding the appellant’s status as a living man and personal representative of his legal person and limited liability for the debts of his legal person; (f) Validity of the Road Safety Act 1986 (Vic); (g) Lack of evidence of the informant’s claim that the Road Safety Act is a valid Act and that it applied to the appellant; (h) The power of private companies to dictate to a living man enforcement without agreement or contract; (i) Appellant’s honest claim of right, private administrative process and informant’s default; (j) No injured party/corpus delecti; (k) Misapplication of legal terms; and (l) Application of legal terms. 

[7] The number of questions was a product of the appellant’s want of legal training. In substance, he did not contest the facts, he contested that court’s jurisdiction and its interpretation of the statute. ...   

[12] First, the appellant contended that he is ‘a living man in private jurisdiction’ as opposed to a ‘legal person in the public jurisdiction’. He submitted that, based on his ‘research’, private and public jurisdictions do not mix; private being the jurisdiction of living men and women and public jurisdiction being the jurisdiction of legal persons, whether they be a natural person, a company, a trust or any form of State-created entity. Living men and women are not subject to statutes: they are subject to the common law and to the rules of equity but, not having been created by the State, are not subject to statute law. Accordingly, the Magistrate, exercising a jurisdiction conferred by statute, had no authority to hear and determine the charges brought against a living man who is not a legal person. 

[13] Secondly, the Commonwealth Constitution does not permit the State to license travel and permits freedom of movement. While it may license commerce, the appellant was not engaged in commerce and was simply travelling in a private capacity. It was accordingly beyond the power of the police, on behalf of the State, to require the appellant to have or produce a licence. I pause to note that the appellant produced a licence when asked to do so and that licensing power is not an issue on this appeal. I need not say any more about why this submission is misconceived. 

[14] The appellant’s third point is that the Magistrate misinterpreted a number of key terms defined in the Road Safety Act. He contended that the magistrate erred in law in concluding that: (a) A Range Rover Discovery is a vehicle; (b) A car is a vehicle; (c) The appellant was the driver of the car. ... 

[16] The police alleged that the appellant was the ‘driver’ when the Act defines ‘driver’ in these terms: Driver of a vehicle includes – (a) a two-up driver of the vehicle who is present in or near the vehicle; and (b) a person who is driving the vehicle as a driver under instruction or under an appropriate learner permit. The appellant contended that as neither of the sub-paragraphs applied to him, he was not defined as a ‘driver’ by the Act, there being no other definition of ‘driver’ within the Act that might capture his circumstances. 

[17] The appellant’s next point was, not being engaged in commerce but travelling for a private purpose, he had the right to travel down a road by whichever means he found fit so long as he did not cause any damage to other persons or property. There was, he submitted, no corpus delecti. Not having caused damage to any persons or property, no basis to issue a fine ever arose. ... 

[21] Turning first to the grounds relating to jurisdiction, the appellant’s attempt to distinguish himself from the ‘legal person’ who was charged with the offences was misconceived. There are 2461 instances of the use of the word ‘person’ in the Act, while the expression ‘legal person’ is not used. The natural and ordinary meaning of ‘person’ is a reference to an individual human being. The law carries the same meaning when using the expression ‘natural person’. There is a distinction, evident in the use of the expressions ‘natural’ and ‘legal’ persons, between artificial constructs of legal personality, where rights and duties are ascribed to an entity such as an incorporated company, that are referred to as ‘legal persons’ and natural persons, meaning individuals. All forms of person, natural and artificial, are recognised by the law as legal persons. In simple terms, all are subject to the rule of law. 

[22] The appellant contended that he was a private man travelling in a private car for a private purpose on a common way without disturbing the peace nor causing any damage to people or property. As such he was not a person of direct concern to society and ‘therefore remains private’, meaning not amenable to the powers of the police or the jurisdiction of the magistrate. Apparently, in this context, the legal person who is so amenable is the person identified by the driver’s licence and not the living private man that the informant conceded he dealt with. That living private man, so the argument goes, is a conceptually distinct persona from the legal person. 

[23] The law does not recognise an alternate, or paper, identity of the kind described by the appellant as represented by the name and persona identifiable from his driver’s licence as different from the identity of an individual human being. The identifying characteristics of a human being, such as name, are an integral part of the individual human being. The law recognises a living person as having status in law and any person is, in this sense, a legal person. Conceptually, there may be differences between the legal status of a person and that of an entity that is granted a like legal status, but what ever they might be they have no application on this appeal. In asserting that he is a ‘living man’, the appellant does no more than identify that he is a person, an individual. Every person, every individual, and every entity accorded status as a legal person is subject to the rule of law. There are no exceptions in Australian society. 

[24] It is plainly wrong to assert that a natural person is not subject to statute law, only to common law and the principles of equity. All persons are subject to all law whether its source be the Constitution, statute, or judge made law. No distinction can be made by using an analogue, such as ‘living man’ for ‘person’. There was no legal significance in the informant’s agreement with the appellant’s proposition in cross-examination that he was a ‘living man’. That conclusion was, and remained, blindingly obvious. 

[25] A like argument was also based on the notion that the living man is created by God and not by the State and the Australian Constitution does not grant legislative power to the Parliament of Australia to affect the rights of the living man. No support can be found for such notions by reference to style guides, as the appellant sought to do, to draw inferences from obscure facts. In this case, the appellant noted that his name was printed on his driver’s licence wholly in capital letters. Such irrelevant matters cannot impugn the jurisdiction of a magistrate under the Road Safety Act. 

[26] The appellant also advanced a like proposition that seems to have developed some momentum as a ‘sovereign citizen defence’, based in some way on notions of freedom to contract with others, as developed in a commercial context. The defendant contends that a living man is only answerable to those articles of law and legal proceedings to which he or she has consented. The contractual notion that the appellant alluded to has no role in public law in the manner suggested. Regulatory schemes legislated by Parliament do not require the consent of every individual for the law to apply to that individual. There is no contract and nor does the authority of the Parliament to pass such laws come from a sovereign, notwithstanding that the legislative power of the State is vested in the King and the Parliament of Victoria. The ‘consent’ of Victorians to statute law, in the sense in which the appellant used the expression, follows from the election of parliamentarians to make laws for the peace, order and good governance of the State and their subsequent exercise of that legislative power. 

[27] The appellant also expressed this notion of his personal exemption from the application of the Road Safety Act as he drove his car on public streets by asserting that he is a subject of the King of the United Kingdom and not a citizen of the King of Australia. 

[28] Like arguments, which perhaps find some development in obscure corners of the internet, were put to, and rejected by, Solomon J in Yap v Matic. I agree with his Honour’s statement that:

Insofar as it asserts a distinction between the fictional 'PERSON' named as the defendant in these proceedings and Mr Matic himself, it is a distinction that is neither recognised by the law nor suggested by rational observation. Mr Matic is quite entitled to his belief in that distinction, but it is not one that can impact upon the court's jurisdiction . Mr Matic, as a person or as a 'living breathing man', capitalised or in lower case, is subject to the court's jurisdiction and required to comply with its orders. 

[29] In this court, like arguments were rejected by Ginnane J in Monteith v Fitzgerald. In that case, as here, there was no challenge to the sufficiency of evidence to prove the charges, the challenge was to the jurisdiction of the magistrate. It was, in substance, put, as in this case, that the magistrate erred in determining that they had jurisdiction to hear and determine the charges. Busy judicial officers in the lower courts should not be troubled by such nonsense as is developed around these fatuous notions of ‘living man’ and ‘sovereign citizen’. .... 

[39] There were many other arguments raised that I need not deal with. For example, demonstrating a comprehensive misunderstanding of tax law, the appellant submitted that because Victoria Police had an ABN, it was a private corporation that would require a written contract with him to enforce any remedies. The appellant also argued that unidentified principles of common law and equity apply to the regulatory scheme constituted by the Act. The appellant told the learned magistrate that he had filed a notice of conditional appearance, but developed no submission about that.

Unlocking Public Data

The final report of the Independent Expert Group for the Scottish Government on Unlocking the Value of Data to the Scottish Government states 

 This report is the final output of the Independent Expert Group (IEG) on Unlocking the Value of Data (UVOD), to the Scottish Government. This report is a ministerial commission, and was originally commissioned by Mr Ivan McKee, former Minister for Business, Trade, Tourism and Enterprise. Chaired by Professor Angela Daly from the University of Dundee, the IEG was set up to provide 'strategic guidance and oversight' to the UVOD programme on private sector use of public sector personal data in Scotland. 

According to the UVOD IEG terms of reference (ToR): The purpose of this programme is to aid decision-making by data controllers regarding the release of, or provision of access to, public sector personal data by the private sector, for public benefit. 

The IEG has produced three main outputs over its 15 month lifetime: a recommended Policy Statement, a set of seven Guiding Principles and 19 Recommendations. Altogether, these aim to guide the Scottish Government and Scottish public sector in adopting an appropriate, ethical and engaged approach to Unlocking the Value of Scotland's public sector personal data for private sector use in ways which promote public benefit. 

The recommended Policy Statement is:

We consider that when public sector personal data is used by the private sector, this should be done in a way which delivers public benefit and is in the public interest. This requires consideration of matters including: the potential benefits and consequences of data use for the public; people's rights (in particular the right to privacy); and any value (and also any costs and harm) that is expected to be generated by the data use (viewing value in the broadest economic, social and/or environmental terms), including how these benefits and value will be shared with the public. 

The Guiding Principles are:

Public engagement and involvement 

Public interest and public benefit 

Do no harm 

Transparency 

Law, ethics and best practice 

Enabling conditions 

Regular review 

The 19 Recommendations, addressed to the Scottish Government, are grouped under three key themes: Engage, Enable and Ensure. 

Their headings are:

Engage 

 1. Engage in ongoing meaningful public and practitioner involvement and review throughout the data lifecycle 

2. Engage with expert stakeholder groups 

3. Engage the general public

 Enable

4. Enable early adoption of Guiding Principles in targeted policy areas 

5. Enable awareness of the data held 

6. Enable a streamlined approach to data access 

7. Enable shared standards and protocols and enable high standards and best practices 

8. Enable existing intermediaries and join up 

9. Enable collaborative research in this area including the collation of further evidence on blockages and proof of concept research 

10. Enable user-centred approaches 

11. Enable further investigation into technological opportunities

Ensure 

12. Ensure action plans, resources and conditions are in place 

13. Ensure reasonable public benefit rationale provided by those seeking data access, informed by publics and reviewed and verified over time 

14. Ensure Data Protection (DPIAs) and Equality Impact Assessments (EQIAs) 

15. Ensure red lines on access for certain purposes 

16. Ensure transparency from public sector in data access provisions and from private sector about their access to this data 

17. Ensure oversight is appropriately resourced 

18. Ensure collaboration and further input around benefit-sharing 

19. Ensure public can trust the companies accessing the data 

This report commences with an Introduction containing background and contextual information about the IEG and UVOD and our approach towards compiling this report. The following section contains the IEG's Policy Statement, Guiding Principles and Recommendations, with associated description and context. This is followed by a Context section comprising: a discussion of data categories and types; relevant laws, policies, organisations and initiatives in Scotland; summaries of the Scottish Government-commissioned literature reviews and public engagement activities; a discussion of public benefit, public interest and value; and an overview of data critique.

Data Capital and Regulation

'When data is capital: Datafication, accumulation, and extraction' by Jathan Sadowski in (2019) Big Data and Society comments 

 The collection and circulation of data is now a central element of increasingly more sectors of contemporary capitalism. This article analyses data as a form of capital that is distinct from, but has its roots in, economic capital. Data collection is driven by the perpetual cycle of capital accumulation, which in turn drives capital to construct and rely upon a universe in which everything is made of data. The imperative to capture all data, from all sources, by any means possible influences many key decisions about business models, political governance, and technological development. This article argues that many common practices of data accumulation should actually be understood in terms of data extraction, wherein data is taken with little regard for consent and compensation. By understanding data as a form capital, we can better analyse the meaning, practices, and implications of datafication as a political economic regime. ...

Data has become central and essential for increasingly more sectors of contemporary capitalism. Industries focused on technology, infrastructure, finance, manufacturing, insurance, and energy are now treating data as a form of capital. No longer is data just a concern of scientists or a by-product of other processes. Until recently, companies simply deleted data or chose not to collect it because paying for storage did not seem like a good investment (Oracle and MIT Technology Review Custom, 2016). Now, though, companies are clamouring to collect data – as much as they can, wherever they can. For the increasing number of companies participating in the ‘data economy’ or ‘digital economy,’ deleting data because of storage costs would be like burning piles of money or dumping barrels of oil down the drain because renting a warehouse was too much trouble. While data is not the same as profit, they share a similar logic. Just as we expect corporations to be profit-driven, we should now expect organisations to be data-driven; that is, the drive to accumulate data now propels new ways of doing business and governance. It is a key factor in major corporate decisions, such as Amazon’s acquisition of Whole Foods for $13.7 billion (Stevens and Haddon, 2017), and of government policies such as investment in urban sensor networks (Heinzmann, 2014). Indeed, as The Economist (2017b) has noted, ‘Industrial giants such as GE and Siemens now sell themselves as data firms.’ In short, data – and the accumulation of data – is a core component of political economy in the 21st century. 

As a paradigm and logic, the idea of data-as-capital affects and transforms many spaces and sectors. Thanks to technologies like the Internet of Things, online platforms, and data analytics the list of things that now count as ‘digital products and services’ – and hence what counts as part of the digital economy – is growing at a rapid pace (Srnicek, 2016). This, in turn, means that data is a foundational form of capital for everything from the ‘smart home’ to the ‘smart city,’ finance to governance, production to distribution, consumer devices to enterprise systems, and much more (Kitchin, 2014). Without data, many of these technologies and organisations would not be able to operate, let alone be able to generate value. 

This article contributes to the study of data within contemporary capitalism by analysing data as a form of capital. The existing literature on the social, political and economic dimensions of data treats data as a commodity. Whether implicitly or explicitly, analyses in both academic and media outlets typically take this analytical frame as a given. Yet, as this article makes clear, the distinction between capital and commodity is important and we cannot assume data is always a commodity. By understanding data as a form of capital, we can better analyse the nature and dynamics of digital capitalism. Rather than data collection being seen as simply a way of producing and obtaining commodities that are somehow converted into monetary value, datafication takes shape as a political economic regime driven by the logic of perpetual (data) capital accumulation and circulation. Framing data as a form of capital casts new light on the imperatives motivating contemporary organisations, the ways value can be derived from data, and the normative importance of data extraction.

'Regulating Big Tech expansionism? Sphere transgressions and the limits of Europe’s digital regulatory strategy' by Tamar Sharon and Raphaël Gellert in (2023) Information, Communication & Society comments 

The increasing power of Big Tech is a growing concern for regulators globally. The European Union has positioned itself as a leader in the stride to contain this expansionism; first with the GDPR and recently with a series of proposals including the DMA, the DSA, the AI Act, and others. In this paper we analyse if these instruments sufficiently address the risks raised by Big Tech expansionism. We argue that when this phenomenon is understood in terms of ‘sphere transgressions’ – i.e., conversions of advantages based on digital expertise into advantages in other spheres of society – Europe’s digital regulatory strategy falls short. In particular, seen through the lens of sphere transgressions, Big Tech expansionism raises three risks in addition to well-known privacy and data protection risks, which this regulatory strategy does not properly address. These are: non-equitable returns to the public sector; the reshaping of sectors in line with the interests of technology firms; and new dependencies on technology firms for the provision of basic goods. Our analysis shows that this mismatch may be inherent to Europe’s digital strategy, insofar as it focusses on data protection – while data is not always at stake in sphere transgressions; on political and civil rights – while socio-economic rights may be more at risk; and on fair markets – while the sectors being transgressed into by Big Tech, such as health and education, are not markets that require fairer competition, but societal spheres which need protection from market (and digital) logics. 

... The increasing power of Big Tech is a growing source of concern for governments and regulators globally. In the past decade, large technology corporations including Apple, Alphabet, Meta, Amazon, Microsoft, Palantir and others, have not only consolidated their dominance in their original spheres of activity, but have begun to expand into new areas (Lopez et al., 2022; Sharon, 2016; van Dijck et al., 2019), including health and medicine, education, public administration, humanitarian aid and welfare, science, agriculture, banking, transportation, and even space exploration (for an overview see Stevens et al., 2022 and other articles in this special issue). During this time, the European Union (EU) has sought to position itself as a global leader in the stride to regulate digital innovation and its potential harms (European Commission, 2020, p. 6); beginning with the General Data Protection Regulation (GDPR) and most recently with a series of ambitious new legislative proposals, including the AI Act, the Digital Services Act (DSA), the Digital Markets Act (DMA), the Data Governance Act (DGA), the Data Act (DA), and the European Health Data Space (EHDS). In this paper we ask if this ambitious digital regulatory strategy sufficiently addresses the risks raised by Big Tech expansionism. We argue that when Big Tech expansionism is understood in terms of ‘sphere trangressions’ (Sharon, 2021a, 2021b; Walzer, 1983) – i.e., conversions of advantages based on digital expertise into advantages and dominance in other spheres of society – this digital strategy falls short. 

The paper is structured as follows: In Section 2 we briefly describe the ‘sphere transgressions’ framework as a means of understanding Big Tech expansionism into new areas of society, before discussing the novel risks that this analytic lens makes visible. In addition to the privacy and data protection risks that are typically associated with the practices of tech corporations, we identify three additional risks. These include non-equitable returns (i.e., exploitation of public data without fair compensation); a gradual reshaping of critical sectors in line with the interests and practices of tech actors; and the creation of new dependencies on tech corporations for the provision of basic goods. Most of our examples come from the health and medical sector in light of the focus of a research project carried out by one of us on Big Tech expansionism into health (Sharon 2016, 2018). But we also draw on examples from other sectors, including education and agriculture. In Section 3 we first offer a brief description of the existing and proposed regulatory instruments that make up the EU’s digital regulatory strategy before discussing how each of these instruments can or cannot address the identified risks of Big Tech expansionism as sphere transgressions. 

Our analysis shows that while these legal instruments are helpful for addressing numerous risks ensuing from digital developments, none of them properly address the risks we identify in Section 2. We argue that this can be explained in terms of the two-pronged approach underlying Europe’s digital regulatory strategy: on the one hand, a focus on fundamental rights and data protection as a means of protecting fundamental rights, and on the other, the development of fair (digital) markets. Concerning the first, data protection can only be a guarantor of fundamental rights when the collection and exchange of personal data is actually at stake. But, as we show, this is not necessarily the case in examples of sphere transgressions, which can be data-protection compliant and still raise other risks. Moreover, the catalogue of fundamental rights safeguarded through data protection (but to some extent also through the AI Act and the DSA) may be too narrow to encompass the broader socio-economic rights, such as health, education and welfare, which are at stake when tech corporations move into new sectors. Concerning the second focus, on fair markets, we argue that this promotes a view of sectors such as healthcare and education – which distribute basic social goods – as markets, the good governance of which requires no more than fair competition. We contend that this does little to protect the ‘publicness’ (Lopez et al., 2022) of public sectors susceptible to Big Tech expansionism, and may actually increase opportunities for transgressions rather than thwart them. 

In light of this, we suggest several new directions for regulation which may be required to address the risks of Big Tech expansionism. These include: increased regulation for socio-economic rights; a decoupling of digitalisation and marketisation, thereby ensuring that the transformation of traditional social goods into computational goods nonetheless precludes them from being reconfigured as market goods; and developing regulation that seeks not just to protect the fundamental rights of individual (data) subjects and fair markets, but that also seeks to protect societal spheres.

IP Infringements

'The localization of IP infringements in the online environment: From Web 2.0 to Web 3.0 and the Metaverse' (WIPO Study, 2023) by Eleonora Rosati comments 

Over time, technological advancements have resulted in novel ways both to exploit content and to infringe rights – including intellectual property rights (IPRs) – vesting in them. Legislative instruments have consistently clarified that pre-existing rights continue to apply to new media, i.e., means to disseminate intangible assets, including in digital and online contexts. In terms of rights enforcement, however, the progressive dematerialization of content and dissemination modalities has given rise to challenges, including when it comes to determining where an alleged IPR infringement has been committed. 

The importance of such an exercise cannot be overstated: it is inter alia key to determining (i) whether the right at issue (e.g., a registered IPR) is enforceable at the outset, (ii) which law applies to the dispute at hand, as well as – in accordance with certain jurisdictional criteria – (iii) which courts are competent to adjudicate it. For example, determining that the relevant infringement has been committed in country A serves in turn to determine: (i) if the right at issue is enforceable at all, given that IPRs are territorial in nature. So, if the IPR in question is a national trademark, the infringement needs to be localized in the territory of the country where the right is registered; (ii) whether, e.g., country A’s law is applicable to the dispute at hand; and (iii) if, e.g., the courts in country A have jurisdiction to adjudicate the resulting dispute. 

This said, questions of applicable law and jurisdiction should not be conflated. Answering the former serves to ensure that a court does not have to apply more than one law, but rather only focus on the initial act of infringement to identify the law applicable to the proceedings. Vice versa, such a need to ensure that only one law is applicable does not exist in the context of jurisdiction rules, which frequently provide for more than one forum. 

The localization exercise described above has proved to be particularly challenging when the infringing activity is committed in a digital or online context. For infringements occurring in Web 2.0 situations, courts around the world have nevertheless progressively developed various approaches to localize the infringing activity, by considering the place where (a) the defendant initiated the infringing conduct (causal event criterion), (b) the infringing content may be accessed (accessibility criterion), and (c) the infringing conduct is targeted (targeting criterion). While none of these criteria is devoid of shortcomings, targeting has progressively gained traction in several jurisdictions around the world. Proof of targeting depends on a variety of factors, including language, currency, possibility of ordering products or services, relevant top-level domain, customer service, availability of an app in a national app store, etc. Overall, what is required to establish targeting is a substantial connection with a given territory. 

Another development is currently underway: it is the transition from the already interactive dimension of Web 2.0 to the even better integrated and more immersive reality of Web 3.0 (if not already Web 4.0!). It is expected that such a transition will be made possible by the rise of augmented reality, blockchain, cryptocurrencies, artificial intelligence, and non-fungible tokens for digital assets. In this sense, the progressive evolution of the metaverse will be pivotal. Even though the concept of metaverse has existed for over thirty years, it has recently been revamped. Thanks to the advent of the new technologies just mentioned, it is hoped that the “new” metaverse will be characterized by four main features: interoperability across networked platforms; immersive, three-dimensional user experience; real-time network access; and the spanning of the physical and virtual worlds. In all this, different metaverses have been developed already, which fall into two main categories: centralized and decentralized. The distinction is drawn based on whether the metaverse at issue is owned and ruled by a single entity, e.g., a company, or whether it is instead characterized by a dispersed network and decentralized ownership structure, e.g., a decentralized autonomous organization. 

While, as stated, it appears reasonable to consider the treatment of Web 2.0 situations as reasonably settled, the transition from Web 2.0 to Web 3.0 has the potential to pose new challenges to the interpretation and application of the criteria discussed above. The present study is concerned precisely with the legal treatment of such a transition. Specifically, this study seeks to answer the following questions: Can the same criteria and notions developed in relation to other dissemination media find application in the context of IPR infringements carried out through and within the metaverses? Does the distinction between centralized and decentralized metaverses have substantial implications insofar as the localization of IPR infringements is concerned? 

The IPRs considered are copyright, trademarks and designs. The analysis is limited to infringements committed outside of contractual relations and adopts an international and comparative perspective, without focusing on any specific jurisdiction. While examples from different legal systems are provided and reviewed as appropriate, by choosing such an approach it is hoped that a lens is offered through which the main questions at the heart of the present study may be answered in terms that are as broad and helpful as possible to different legal systems. Also of relevance to the question of enforceability of IPRs online and on the metaverse is the consideration of the subjects against whom claims may be brought and their legal basis: in this sense, the alleged IPR infringement that requires localizing may not only trigger direct/primary liability but also the liability of subjects other than the direct infringer, including information society service providers whose services are used to infringe. 

The study is structured as follows. Sections 1 and 2 detail the background to the present analysis, as well as its relevant objectives and approach. Section 3 addresses conflicts of laws issues. It reviews the relevant framework for the localization of IPR infringements in cross-border situations, having regard to international and regional instruments, as well as selected national experiences. This section further draws a distinction between unregistered and registered IPRs. Section 4 focuses specifically on digital and online situations and reviews academic and judicial discourse on localization approaches for the purpose of determining applicable law and, where relevant, jurisdiction. A discussion of the criteria based on causal event, targeting and accessibility – including their shortcomings – is also undertaken. Section 5 subsequently considers different types of subjects against whom infringement claims may be advanced, available remedies, and the type of resulting liability. Section 6 is specifically concerned with the different kinds of metaverse and determines whether the findings of the preceding sections may find satisfactory application in relation to this new medium, at least in principle. 

Insofar as the main questions presented above are concerned, the one asking whether the same criteria and notions developed in relation to other media may find application in the context of IPR infringements carried out through and within the metaverses is answered in the affirmative. It is further submitted that the distinction between centralized and decentralized metaverses – while of substantial relevance to the determination of enforcement options – may not have significant implications insofar as the localization of IPR infringements is concerned. 

Overall, this study offers as a main conclusion (Section 7) that, as things currently stand, the existing legal framework – as interpreted by courts in several jurisdictions in relation to Web 2.0 scenarios – appears to offer sufficiently robust guidance for the localization of IPR infringements, including those committed through the metaverse(s). All this is nevertheless accompanied by the caveat that substantial challenges might arise in terms of retrieving evidence that would serve to establish a sufficiently strong connecting factor with a given territory, for the purpose of both determining applicable law and jurisdiction. Furthermore, the diversity of remedies and enforcement options currently available across different jurisdictions begs the question whether the time has come for undertaking a more extensive harmonization of both aspects at the international and/or regional levels.

Professionals

'Three Decades of Change in Australia’s University Workforce' by Gwilym Croucher - a Melbourne Centre for the Study of Higher Education Occasional Paper - comments 

The Australian higher education workforce has been reshaped in recent decades. Changes to management practices and rules around industrial relations, the creation of new universities in the 1990s and the growth of international education markets have all influenced the academic and professional workforce in Australia. This paper examines national level data on university workforce changes from 1989 to 2021. It highlights that despite the relative stability, there have been sector-wide shifts with clear implications for the future of Australian universities. 

Between 1989 and 2021 the total growth in the number of academic employees largely followed student enrolments, especially in high growth areas such as medical, health and allied health related disciplines. As the academic workforce expanded during this period it became more polarised. The professoriate increased in number to become a quarter of all academics at the same time as the middle ranks diminished in number. Part of this ‘hollowing out’ of the workforce followed the merger during the 1990s of Colleges of Advanced Education (CAE) that created new universities. The CAEs had a smaller proportion of senior academic staff, many of whom were steadily promoted to the professoriate after the creation of new universities. 

The polarisation of the academy has also been driven by the growth in the number of the junior academics, many in teaching focused roles, and largely employed on a casual basis. This trend has been associated with ongoing inequalities for women in the academic ranks. In 2021 there were many more men in the professoriate than women: women constituted 37 per cent of the professoriate despite making up half of the total academic workforce in Australian universities. While the majority of senior academic staff continued to be employed on an ongoing basis (those with a form of ‘tenure’), their proportion steadily reduced from the 1990s. Two decades later few junior staff were employed in ongoing roles and many (if not most) early career academics were employed on either short term or casual contracts. These changes are linked to universities rewarding and promoting ongoing academics, as well as deliberately seeking flexibility and cost reductions. 

From 1989 to 2021 there was an ongoing transformation of the professional staff workforce, which is classified as those university employees with a wide variety of roles, including but not limited to administrative functions. Professional and academic staff numbers have grown roughly in proportion to each other, with professional staff remaining the majority. There has been significant shift in the composition of professional staff workforce. After 1989 women came to make up nearly two-thirds of professional staff, marking a departure from academic staffing patterns. 

During the same time period professional staff cohorts became more ‘top heavy’. The most junior classifications of Higher Education Worker (or HEW, a classification used to capture cross-university data for employee level) all but disappeared between 1994 and 2020. The proportion of HEW 1 to 3 reduced from a third of workforce to one-thirtieth in this period. Across the sector an increase in the average HEW level appears to reflect the emergence of new professional staff roles, such as third space professionals (those staff whose role is part-academic and part-professional), along with the impacts of technological change reducing the need for less skilled roles and the greater use of external contractors. At the same time there was an increase in the proportion of the most senior leadership roles within universities, with the number of senior executives per staff member more than doubling. 

What is clearer is that changes to Australian higher education during the late 1980s casts a long shadow on university workforces, with most of these trends systemwide and not confined to any particular university groups or types. 

Summary of key national trends between 1989 and 2021:

 Growth in academic and professional staff numbers largely followed patterns of growth in student numbers. 

 There was a significant increase in the number of academics working in the broad Health disciplines grouping (including Allied Health), while other areas only had modest increases in staff numbers, and Education reduced its staff numbers. 

 The professoriate made up 1 in 4 academic staff in 2020, up from 1 in 7 in 1989, with the growth mainly in the number of full Professors. 

 There was a steady reduction in the proportion of academic roles employed on an ongoing basis (tenured) for all levels, with Level C, D and E reducing from around 9-in-10 academics with tenure to 7-in-10. During the period Level B went from 6-in-10 to 5-in-10 and Level A remained at 1-in-10. 

 On a full-time equivalent (FTE) basis, the proportion of academics employed on casual contracts went from 1-in-10 to 2-in-10, with the vast majority of these casual in teaching focused roles, and a majority occupied by women. On a headcount basis the number of casual staff increased significantly. 

 In 2020 women were underrepresented in senior academic roles (level D and E) despite making up half of the academic workforce (and making up roughly 60 per cent of the total higher education workforce). 

 A significant majority, nearly two-thirds, of professional staff were women in 2021 in contrast to academic staff. 

 A growing proportion of professional staff were in more senior roles in 2020 than they were in 1989, as measured by the average HEW level, with the more junior classifications disappearing. 

 While the number of deputy vice-chancellors remained consistent, there were more than twice the number of other senior executives per staff member at Australian universities in 2020 than in 1994.