Regulation By Design

'Regulation by design: features, practices, limitations, and governance implications' by Kostina Prifti, Jessica Morley, Claudio Novelli and Luciano Floridi comments 

Regulation by design (RBD) is a growing research field that explores, develops, and criticises the regulative function of design. In this article, we provide a qualitative thematic synthesis of the existing literature. The aim is to explore and analyse RBD's core features, practices, limitations, and related governance implications. To fulfil this aim, we examine the extant literature on RBD in the context of digital technologies. We start by identifying and structuring the core features of RBD, namely the goals, regulators, regulatees, methods, and technologies. Building on that structure, we distinguish between three types of RBD practices: compliance by design, value creation by design, and optimisation by design. We then explore the challenges and limitations of RBD practices, which stem from risks associated with compliance by design, contextual limitations, or methodological uncertainty. Finally, we examine the governance implications of RBD and outline possible future directions of the research field and its practices.

Critical Theory

'Reconstructing Critical Legal Studies' by Samuel Moyn in (2024) 134 Yale Law Journal comments 

It is an increasingly propitious moment to build another radical theory of the law, after decades of relative quiescence in the law schools since the last such opportunity. This essay offers a reinterpretation of the legacy of critical theories of the law, arguing that they afford useful starting points for any radical approach, and not merely cautionary tales of how not to proceed. The essay revisits the critical legal studies movement in particular and imagines its reconstruction. Critical legal studies extended the social theory of the law pioneered by legal realism, and framed law as a forceful instrument of domination, though one that is compatible with both functional and interpretative underdetermination. Legal order oppresses, and the way it does so is never accidental or random, while regularly accommodating alternative pathways of control and contestation. Analogously, law is often determinate, which is how it can so routinely serve oppression, even though it does so in and through processes of interpretation of elusive or vague legal meaning by courts and other institutions. The essay concludes by showing that the parameters of a radical social theory of the law—parameters we should reclaim critical legal studies for helping establish—apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent “law and political economy” movement. That movement is the most prominent leftist or at least progressive movement in law schools today, but critical legal studies challenges it better to identify its core principles. Had critical legal studies never existed, it would have to be invented today. 

Digital Assets

The UK Law Commission's Digital assets as personal property: Short consultation on draft clauses states 

Digital assets are fundamental to modern society and the contemporary economy. They are used for an expanding variety of purposes — including as valuable things in themselves, as a means of payment, or to represent or be linked to other things or rights — and in growing volumes. 

1.2 In our recent work on digital assets, we considered how principles of private law, specifically personal property law, apply to digital assets. Personal property rights are important for many reasons. They are important in cases of bankruptcy or insolvency, in cases where objects of property rights are interfered with or unlawfully taken, and for the legal rules concerning succession on death. They are also important for the proper characterisation of numerous modern and complex legal relationships, including custody relationships, collateral arrangements and structures involving trusts. Property rights are powerful because, in principle, they are recognised against the whole world, whereas other — personal — rights (such as contractual rights) are recognised only against someone who has assumed a relevant legal duty. 

1.3 We published our final report on digital assets in June 2023. We concluded that certain types of digital assets are capable of being things to which personal property rights can relate, even though they do not easily fit within the traditional categories of personal property, and are better regarded as belonging to a separate category. We recommended legislation to confirm the existence of a “third category” of personal property rights, capable of accommodating certain digital assets including crypto- tokens. ... 

1.5 The draft clauses that accompany these notes implement the recommendation about personal property set out in our June 2023 report. This short, limited consultation exercise is designed to test whether the draft clauses successfully implement the recommendation we made in our report. We also ask about potential impact, and are keen to receive views on costs and benefits, and any potential unintended consequences, in order to inform the Government’s decision on whether to proceed to implementation. We do not ask further questions on the underlying policy, which has already been the subject of consultation. ... 

AIMS OF THE DRAFT BILL 

1.8 The intended effect of the draft Bill is to confirm that crypto-tokens, and potentially other assets such as voluntary carbon credits, are capable of being recognised by the law as property. This will enable courts to determine a number of issues, including, for example, in the following situations. (1) If digital assets are the subject of a legal dispute and there is a danger of their holder dissipating them before that dispute can be resolved, a court can, if these assets are classed as property, order a proprietary freezing injunction over them to prevent this. These remedies exist for things already recognised as property; as yet, it is an open question whether they are available in relation to digital assets. (2) If someone’s digital assets are taken from them or destroyed, the remedies available to them are significantly stronger if those assets are regarded as being their property than if the law does not recognise any property interest in them. Currently, there is a considerable and growing market in such assets and most investors (commercial and private) presume that, when they buy them, they acquire property rights in the same way as they do when they buy, say, a watch or a laptop. As the law currently stands, it is not necessarily the case that they do. 

1.9 The common law has answered some questions in relation to some kinds of digital assets, but the result is, inevitably, both piecemeal and vulnerable to different judicial approaches in the future. The draft Bill would definitively lay to rest any lingering doubt about the existence of a third category of property accommodating the unique nature of digital assets, setting the future direction of the law in favour of commercial certainty and confidence. 

1.10 Members of the judiciary themselves suggested to the Law Commission that the recommended legislation would be a useful tool in developing the law in this area. ...

Legal background 

2.1 “Property” can be divided into real property (interests in land) and personal property (interests in other things). The law of England and Wales traditionally recognised two distinct categories of personal property rights: rights relating to “things in possession” (tangible things), and rights relating to “things in action” (legal rights or claims enforceable by action). A 19th century case, Colonial Bank v Whinney, is often used as authority for the proposition that these two categories of personal property are exhaustive so that anything that is an object of personal property rights must fall within one of these two. 

2.2 Court decisions over the last ten years show that the common law of England and Wales has moved toward the recognition of a “third” category of things to which personal property rights can relate but which do not fall easily within either of the two traditionally recognised categories. Initially, this development was in response to emergent forms of intangible things such as milk quotas;5 more recently, it has been in response to crypto-tokens. 

2.3 A strong majority of our consultees agreed that either a third category of things to which personal property rights can relate has already developed in England and Wales at common law, or that, to the extent it has not, one should be recognised as existing. Some consultees, including senior and specialist judges, said to us that the explicit recognition of such a category would confirm the existing law, facilitate the law’s future development and lay to rest any lingering doubt about the existence of such a category. 

2.4 In this chapter, we briefly explain the legal background to, and reasons for, our recommendation. In the next chapter, we introduce the draft Bill and explain what it does – and what it does not do. 

Property 

2.5 Colloquially, the term “property” is used interchangeably to describe both a thing, and a claim or entitlement to that thing. However, in a stricter legal sense, the term describes a relationship between a person and a thing, and not the thing itself. For example, in the phrase “that phone is my property”, the object (the thing) is the mobile phone. The property rights are the rights that a person has in relation to that mobile phone. 

2.6 Even in legal writing such as academic papers, cases and statutes, the term property is sometimes used in its broader, more colloquial sense or as a shorthand term, and we also use it in this way from time to time. However, the draft Bill refers to an “object of property rights”. 

Third category / third thing 

2.7 In our report, and in this paper, we use the term “third category” to describe a category of thing distinct from both things in possession and things in action. In adopting this terminology, we acknowledge the argument that other distinct categories of things to which personal property rights can relate might already exist at law (including patents and statutorily created intellectual property rights). We adopt the term “third category” as shorthand: in part, as a direct reference to Lord Justice Fry’s influential judgment in Colonial Bank v Whinney and the longstanding practice among lawyers and judges of referring to the things in possession/things in action dichotomy; and in part as a convenient and readily understandable term, which almost all consultees were comfortable with. We deliberately do not, however, use the term in the draft legislation. 

THINGS IN ACTION AND THINGS IN POSSESSION 

2.8 By way of background, it may be helpful to expand briefly on the two categories of personal property traditionally recognised by the law of England and Wales: (1) Things in possession are, broadly, any object that the law considers capable of possession. This category includes assets which are tangible, moveable and visible, such as a bag of gold.  Possession of a thing gives its possessor a property right which is enforceable against the world.  Rights in things in possession can be asserted by use and enjoyment as well as by the exclusion of others from them.  Things in possession exist regardless of whether anyone lays claim to them, and regardless of whether any legal system recognises or is available to enforce such claims. (2) Things in action are, traditionally, any personal property that can only be claimed or enforced through legal action or proceedings. Common examples of things in action are debts, rights to sue for breach of contract, and shares in a company. Things in action have no independent form and exist only insofar as they are recognised by a legal system. This means that the presence of a thing in action in the world is dependent on there being both a party against whom the thing in action (the right) can be enforced and a legal system willing to recognise and enforce that right. The category of things in action is sometimes given a much broader meaning as a residual class of personal property — that is, it is sometimes regarded as encompassing any personal property that is not a thing in possession. 

2.9 Things in possession and things in action are susceptible to different types of legal treatment. 

2.10 In the 1885 case of Colonial Bank v Whinney, Lord Justice Fry said:  All personal things are either in possession or in action. The law knows no tertium quid [third thing] between the two. 

2.11 Although this statement has largely been taken as reflecting the correct position in law, it is almost certainly no longer correct (to the extent that it ever was). As Professor Fox and Professor Gullifer observed in their joint response to our call for evidence: The reasoning in [Colonial Bank v Whinney] turned on the interpretation of the bankruptcy statutes then in force. It has been taken out of context and used as authority for a proposition that it [was] not meant to support. 

Digital assets as things in possession or things in action 

2.12 Digital assets do not sit easily in either of the traditionally recognised categories of things in possession or things in action (at least in the narrow sense). They are not tangible things in the normal sense, meaning that courts are likely to feel unable to find that they are things in possession.  Nor are they claimable or enforceable only by legal action or proceedings. Crypto-tokens would continue to exist even if the law were to fail to recognise them as objects of personal property rights and even were a law to prohibit their existence.18 Their useful characteristics and the ability of people to use, enjoy and interact with them (and exclude others from them) would also continue to exist: the functionality of the crypto-token system would remain unaffected. They therefore function more like objects in themselves. 

2.13 Some digital assets, such as crypto-tokens, might represent, record, or be linked to other things (including legal rights – that is, things in action) which are external to that particular crypto-token and/or crypto-token system. In our work, however, we concluded that the better view is that a crypto-token is a thing in itself to which personal property rights can relate, regardless of whether it is also linked to another thing. Specifically in respect of crypto-tokens, almost all consultees agreed that crypto-tokens cannot be conceived of as merely rights or claims in themselves and that they can be used and enjoyed independently of whether any rights or claims in relation to them are enforceable by action. Further, the use or enjoyment of a thing in action is dependent entirely on the enforceability of the right or claim of which it is constituted. That is not true of crypto-tokens, for example. This is the crucial distinction that needs to be made for proprietary classification purposes.  

2.14 Crypto-tokens and certain other digital assets can be used and enjoyed independently of whether any rights or claims exist in relation to them. Moreover, any property rights in relation to them can be asserted by use and enjoyment of the thing and by the exclusion of others from it. This is one of the fundamental underlying innovations of crypto-tokens, because it is all achieved through software where this was not previously possible. 

2.15 It is this quality of digital assets, as things independent of the rights that relate to them, that makes them susceptible to involuntary alienation. This is relevant to a proprietary classification because it helps to distinguish between the legally relevant characteristics of different things. A debt, for example, as a thing in action, cannot be alienated from a person without a legal process (usually one which requires that person’s consent). A crypto-token, on the other hand, as a thing in possession like a car or a watch, can as a matter of fact be alienated from a person without a legal process and without their consent. 

2.16 So, despite the longstanding existence of two categories, the courts have consistently concluded that certain things (often digital assets) are capable of being objects of personal property rights, even where the thing in question does not neatly fit within either of the traditionally recognised categories of thing to which personal property rights can relate. The courts have done so, either expressly or impliedly, in respect of milk quotas,  European Union carbon emission allowances (“EUAs”),  export quotas,  waste management licences,  and a wide variety of crypto-tokens, including non-fungible tokens (NFTs). 

2.17 In the recent case of AA v Persons Unknown, the High Court of England and Wales said that “[cryptocurrencies] are neither [things] in possession nor are they [things] in action”.  Nonetheless, in that case, the court held that cryptocurrencies were a form of property.  Mr Justice Bryan said that it would be “fallacious” to proceed on the basis that the law of England and Wales recognises no form of property other than things in possession and things in action. He explicitly recognised the difficulty in the classification of crypto-tokens (which, on their face are things which are neither things in action nor things in possession). He held that a crypto-token could be an object of personal property rights even if it was not a thing in action in the narrow sense. 

2.18 The Court of Appeal has said that “a cryptoasset such as bitcoin is property” under the law of England and Wales. This is also affirmed, or necessarily implicit, in at least 23 other cases decided at first instance, although most were decided in connection with interim relief. 

2.19 Since the judgment in AA v Persons Unknown was handed down in 2019, courts in at least 14 of those 23 cases, including the Court of Appeal,31 have cited that judgment in support of the proposition that the digital asset in question is a thing which is capable of being an object of personal property rights. 

2.20 Taken together, the case law demonstrates that the courts of England and Wales now recognise crypto-tokens as distinct things which are capable of being objects of personal property rights. Further, through the consistent application of AA v Persons Unknown (as opposed to any contrary approach), courts have deliberately proceeded in a manner that carves out a third common law-based category of thing to which personal property rights can relate. 

2.21 Courts in other jurisdictions have reached the same (or a similar) conclusion. Courts across the common law world, including in Australia, Canada, Hong Kong, New Zealand, Singapore, and the United States, now consistently proceed on the basis that crypto-tokens are capable of being objects of personal property rights and are therefore susceptible to the various consequences that follow.  This includes recognition that crypto-tokens can be subject to an interlocutory proprietary injunction, are capable of being held on trust and fall within certain broad statutory definitions of “property”. 

2.22 Examples of this can also be seen in some civil law-based systems, including Japan, Liechtenstein, and Switzerland. 

2.23 Our conclusions are also consistent with international law reform developments, including those that are intended to be applicable in civil law jurisdictions. The UNIDROIT Working Group recently published a set of international principles,  which set out a proprietary framework applicable to digital assets.  The UNIDROIT Working Group Principles apply to “electronic records”, of which digital assets are a sub-set.  In effect, the Principles apply proprietary concepts to a category of things distinct from things in possession and things in action. 

OUR RECOMMENDATION: STATUTORY CONFIRMATION OF A “THIRD THING” 

2.24 We have therefore concluded that a thing is not, and should not be, deprived of legal status as an object of personal property rights merely by reason of the fact that it is neither a thing in action nor a thing in possession. We recommended the explicit recognition, in statute, of a third category of personal property, to encourage a more nuanced consideration of new, emergent things. A distinct, third category will better allow the law to focus on attributes or characteristics of the things in question, without being fettered by analysis or principles applicable to other traditional objects of personal property rights. As discussed below, we consider that such things include, but are not necessarily limited to, crypto-tokens such as bitcoin. 

2.25 Although it may not change the common law position,  we conclude that such a statutory confirmation will provide greater legal certainty and will allow the law to develop from a strong and clear conceptual foundation. A statutory confirmation will alleviate any lingering judicial concern surrounding Colonial Bank v Whinney or any concern that recognising a third category is not an appropriate development for the common law to make.  The exact parameters which describe a third category thing, and the legal treatment afforded to such things, will be matters for common law. There are centuries of case law considering the factors that make a thing an appropriate object of personal property rights, which the courts can continue to apply in this context so that the third category does not become inappropriately broad. We consider this to be the most effective and least interventionist recommendation that we can make to facilitate the law’s development on this point. 

2.26 A statutory confirmation will explicitly recognise the reality that in the modern world there exist things that are neither purely intangible rights nor conventionally tangible objects, and that the law is capable of treating those things as objects of personal property rights. This in turn will allow the law of England and Wales to discuss crypto- token systems (and other systems that might manifest third category things) more directly in terms of powers and incentives/incentive mechanisms of participants, rather than in terms of claims/rights, corresponding duties and obligations.  It also means that the category of things in action can remain usefully distinct and descriptively accurate. 

2.27 A statutory confirmation will reduce the time spent by the courts on questions of categorisation of objects of personal property rights, and instead allow them to focus on the substantive issues before them. It gives explicit effect to: [the] powerful case for reconsidering the dichotomy between [things] in possession and [things] in action and recognising a third category of intangible property ... in a way that would take account of recent technological developments. 

2.28 A statutory confirmation is likely to help protect new and emergent forms of property from intermediation imposed by the application of ill-fitting private law principles, such as the concept that such things are things in action. A statutory confirmation is also likely to help protect emergent forms of property from regulation which might mandate intermediation or reduce a person’s ability to self-custody their own asset; that is, to hold it directly rather than through an intermediary such as a wallet provider. 

2.29 A statutory confirmation will provide a strong signal to market participants that the law of England and Wales will continue to protect personal property rights, even in new and emergent forms of property. It will also re-emphasise the fundamental difference between third category things that can be “owned”, and other existing types of software, the rights to which are generally governed by a mixture of statute (for example, intellectual property rights) and contract (for example, licences granted by Microsoft), without clear principles of “ownership”. Crypto-tokens, for example, are so fundamentally different to other types of software or digital assets that this distinction alone is worth codifying in statute. Doing so will facilitate and encourage innovation based on the underlying principle that certain digital things can now be “owned”.

Atlantis

'Three Reconstructions of ‘Effectiveness’: Some Implications for State Continuity and Sea-level Rise' by Alex Green in Oxford Journal of Legal Studies comments 

Small Island Developing States (SIDS) are uniquely threatened by rising sea levels. Not only does the retreat of their coastlines place them in danger of losing maritime territory; the concurrent possibility of their landmasses becoming either uninhabitable or completely submerged also threatens their very existence. According to one understanding of the law that governs the continuity and extinction of states, political communities that permanently lose ‘effectiveness’—typically understood as sufficient governmental control of a relatively determinate territory with a permanent population—must lose their statehood as well. In this article, I provide three reconstructions of effectiveness, each of which rests upon a different normative rationale. My contention is that, regardless of which reconstruction one adopts, the continuity of submerged SIDS is eminently supportable, notwithstanding the arguments frequently made in favour of their formal extinction. 

 

The existence of states under international law turns on a range of connected factors, including a strong presumption in favour of continuity once legal statehood is established. When it comes to state creation, relevant factors include the presence of foreign recognition, the delimiting influence of treaties making territorial concessions, the express or implied consent of any ‘parent’ states, demonstrable commitments to democratic principles and human rights norms, and the provision of suitably constituted independence referendums at the point of emergence. It is arguable that some of these factors, particularly that of foreign recognition, also govern the existence of states beyond the point of their creation. 

 

Whatever the case, one concept almost always discussed whenever statehood is in question is that of ‘effectiveness’. Traditionally conceived, effectiveness concerns whether a given physical space and human population are subject to factual control by the governance institutions that partly constitute the state in question. It is often considered necessary for the creation of states, in addition to being an independent basis upon which territorial title can be grounded. This article partly concerns the nature of effectiveness in general. However, my primary focus is upon the role that it plays within the law of state continuity, which governs the conditions under which states persist through time. The antithesis of continuity is extinction, which usually occurs due to some disruptive event, such as destruction by a foreign power or voluntary dissolution. States are continuous to the extent that their existence under international law is not disrupted by events of this kind. State continuity is sometimes linked with the neighbouring question of state identity, which concerns whether (and why) a state at time T1 is the same entity as the one identified with it at time T2. These topics can nonetheless be treated separately, which is what I propose to do here. 

 

My analysis of effectiveness is partly theoretical, turning upon three distinct accounts of that concept and what each has to say about state continuity. However, my motivation is practical, stemming from the existential threats currently faced by Small Island Developing States (SIDS) in light of human-caused sea-level rise. I aim to show that even though the three ‘reconstructions’ of effectiveness I advance have different normative foundations, each one supports the existential resilience of SIDS notwithstanding the danger of sea-level rise. That danger might be crudely described as ‘loss of effectiveness’. Under austere accounts of the effectiveness principle, no entity without inhabitable land and a permanent population living upon that land can maintain statehood, particularly not if the loss of these factual prerequisites is permanent. I elaborate upon this ‘austere view’ below, arguing that each reconstruction of effectiveness I examine requires it to be rejected. 

 

All three accounts of effectiveness I advance are derived via the ‘rational reconstruction’ of international law. This hermeneutic method, sometimes called ‘creative’ or ‘constructive’ interpretation, seeks to induce from the social facts of international legal practice the set(s) of general evaluative commitments underpinning that practice. ‘Practice’, in the relevant sense, encompasses not only the state practice and opinio juris necessary for the formation of customary international law, but also the text and context of relevant treaties, the judgments of international courts and tribunals, and other international legal instruments with probative value on de lege lata. What distinguishes rational reconstruction from purely doctrinal legal interpretation is that it also relies upon ‘critically normative’ or ‘moral’ considerations to explicate the justificatory basis of the legal positions being examined. It takes social practices like international law seriously as sources of genuine practical reasons, and elucidates those reasons to yield prescriptive implications specific to these practices. Rational reconstruction, to that extent, exemplifies the ‘Grotian tradition’ of international law, as articulated by those such as Lauterpacht, and can be understood largely in those terms. The value of examining effectiveness in this way lies not only in the radical potential of rational reconstruction to generate progressive legal arguments, but also in its capacity to draw out the most foundational commitments of the international legal order. By asking why effectiveness matters in normative terms, we get a clearer picture of how it should be understood and applied in response to unprecedented legal challenges such as those of sea-level rise and the global climate crisis. 

 

To provide context, section 2 introduces the most commonly accepted elements of effectiveness and connects them to other aspects of the law governing state continuity. After this, three discrete reconstructions of effectiveness are advanced, each corresponding to a different conception of why effectiveness matters normatively. The first emphasises the value of stability within international relations (‘effectiveness as stability’, section 3). The second focuses upon the function of governments as fiduciaries for their people, emphasising the connection between effectiveness and the protection of human rights (‘the fiduciary model’, section 4). The third stresses the importance of states as the primary communities within which intrinsically valuable political action occurs (‘statehood as political community’, section 5). Sections 3–5 are each divided into two halves: a normative reconstruction of effectiveness, followed by an application of that analysis to state continuity and sea-level rise. I conclude by reviewing the contribution of all three reconstructions. To the extent that each has featured within legal scholarship before, all three are typically presented as incompatible competing reconstructions. I engage with them here on a different basis: as distinct but compatible conceptions of effectiveness, each of which reinforces the existential resilience of SIDS under contemporary international law.

Fake News

'Tackling online false information in the United Kingdom: The Online Safety Act 2023 and its disconnection from free speech law and theory' by Peter Coe in (2024) Journal of Media Law comments  

In the UK, there has been consistent recognition from a variety of actors, including the UK government, that the dissemination of false information can be harmful to individuals and the public sphere. It has also been acknowledged that this problem is being exacerbated by the role played in our lives by the likes of Google, Facebook, Instagram, and X, and because the systems that were in place for dealing with this type of content (and other illegal and/or harmful content), prior to the introduction of the Online Safety Act 2023 (OSA), were designed for the offline world, and were (and in some cases, still are) outdated and no longer fit for purpose. 

The UK’s online harms regime has intensified this debate. The regime began life in April 2019 as the Online Harms White Paper, morphing into multiple iterations of the Online Safety Bill (OSB), published in its original form in May 2021, and finally crystallising as the OSA, which was enacted on the 26th of October 2023. On the one hand, it is acknowledged that legislation placing statutory responsibilities on internet services to prevent the publication of false information (and other illegal and harmful content) may benefit society and public discourse. This is because, in theory at least, by helping to decrease the volume of false information we are exposed to, such laws should reduce the opportunities for the public sphere to become distorted. As citizens we should be able to assess, with greater confidence, the veracity of information available to us, and in turn, use this information, and the trust we have in it, to make positive contributions to public discourse. 

But, on the other hand, the OSA has been (and before it, the OSB was) met with significant resistance from a variety of actors because of the potential threats to free speech that it presents.  Indeed, since the publication of the White Paper, and the initial draft of the OSB, the regime has been shrouded in controversy. The OSB was subject to numerous amendments, and at one stage, it looked as though it would be scrapped altogether. Yet despite this, at the time of writing, the OSA has recently been enacted, albeit the overall shape of the regime remains unclear, because much of the legal detail will be contained in secondary legislation. Therefore, debates on the efficacy of the OSA will continue, and only time will tell what its ultimate impact on free speech will be. 

Notwithstanding this uncertainty, the purpose of this article is to interrogate the regime’s compatibility with free speech law and theory. In doing so, it begins with an explanation of what is meant by false information, and how the phenomenon has been exacerbated by the internet. This is followed by analysis of the pre-OSA system for dealing with this content, and an explanation of why it did not work, as aspects of it have a bearing upon the OSA regime. Next, the contours of the free speech framework are sketched, including relevant jurisprudence of the European Court of Human Rights (ECtHR), and the theories underpinning it that are particularly relevant to online false information. In this section I explain why these theories are flawed in this context, and therefore how these flaws could justify the creation of laws to tackle online false information. Yet, as I go on to suggest in my analysis of the OSA, which follows, this creates a paradoxical disconnect between theory and law, in that although the flaws in the theories may justify the creation of such laws – which manifests as the OSA – its creation arguably conflicts with the ECtHR’s jurisprudence, and the spirit of its theoretical foundations, and could inadvertently interfere with free speech. Finally, the article concludes with some potential solutions for meeting this challenge that do not erode one of the core fundamental human rights.

Treason

In McFarlane v McFarlane [2021] VSC 197 - an unconscionable conduct judgment - Richards J 

Mr McFarlane represented himself throughout the proceeding. Although he appeared at directions hearings on 29 March 2019, 19 July 2019, and 29 November 2019, he did not file any material in support of his defence, and did not appear at the directions hearing held on 15 May 2020. 

He appeared briefly at the trial, to raise an objection to the Court’s jurisdiction. I heard his objection, and then indicated that it had no basis, and that I would give written reasons for that conclusion at a later time. I then began to outline the way in which the trial would proceed. At that point, Mr McFarlane then purported to arrest me for misprision (concealment) of treason. He said that a trial would be unconstitutional and that he did not want to be part of a treason. I persisted in outlining the trial process. After some interruptions and angry shouting, Mr McFarlane left the courtroom and did not participate further in the trial. .... 

Objection to jurisdiction 

I understood Mr McFarlane’s objection to the Court’s jurisdiction to be that a past Attorney-General had removed the Queen’s commission from the Supreme Court of Victoria and that, since then, the operation of the Court had been unconstitutional and illegal. He supported this argument by reading from a media release issued in 2009 by the then Attorney-General for Victoria, Rob Hulls, to the effect that criminal proceedings would in future be issued in the name of the Director of Public Prosecutions, rather than ‘the Crown’ or ‘Regina’. Mr McFarlane had earlier provided my chambers with an extract from the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), which amended various Western Australian statutes by substituting ‘State’ for ‘Crown’. On that basis, he asserted that Mr Hulls had removed the Queen from her position and that the Court was operating illegally. He added that the concealment of that fact was misprision of treason. 

The objection was misconceived. Mr Hulls’ media release did not remove the Queen as the constitutional head of the State of Victoria. It does not reflect the current naming convention in criminal proceedings in this Court, in which the prosecution is usually referred to as ‘R’ for Regina, the Queen. It had no effect at all on the Supreme Court’s equitable jurisdiction, which is invoked by Mrs McFarlane in this proceeding. 

The Constitution Act 1975 (Vic) still provides that the legislative power of the State of Victoria is vested in the Parliament of Victoria, comprising Her Majesty, the Legislative Council, and the Legislative Assembly. The Crown is represented in Victoria by the Governor, who is appointed by the Queen. The Supreme Court of Victoria consists of judges who are appointed by the Governor on the advice of the Executive Council. The Court has jurisdiction in or in relation to Victoria ‘in all cases whatsoever’ and is ‘the superior Court of Victoria with unlimited jurisdiction’. Immediately before I took the affirmation of office as a judge, I affirmed my allegiance to Her Majesty Queen Elizabeth the Second and Her Majesty’s heirs and successors according to law. 

For completeness, the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) did not amend the Constitution Act 1889 (WA) and the Queen, by her Governor, remains the head of government in Western Australia. The Parliament of Western Australia has no power to amend the Constitution of the State of Victoria, and did not purport to do so by enacting the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA). ...

Postscript 

My associate emailed the parties on 20 April 2021, advising that judgment would be handed down at 9.30 am on 23 April 2021. On 21 April 2021, Mr McFarlane sent the following email to my chambers:[45] Dear Justice Richards, You have stated that you will be making judgement on Friday morning (23rd April 2021). It is for this reason I have sent you a copy of my Estate “Fee Simple” Title to show you my Land rights under Constitutional Law. Australia is a Common Law country, and property-owners have rights at law, particularly through the High Court ruling by Mr Justice Kirby in September 1998. Property owners whose land is held under Deeds in Fee Simple have the right to refuse to agree to the takeover of their land for this or any other purpose. Fee Simple rights, particularly the High Court ruling given by Mr Justice Kirby, in September, 1998, when he made his decision by using an earlier High Court case (1923) when Mr Justice Isaacs settled a dispute by confirming to the property owner in the case the rights conferred on all property-owners under their Freehold Deeds in Fee Simple. Under the current laws in Australia, both State and Federal, it is absolutely illegal for the Government “to take what it wants”, or indeed to dictate in any way what property-owners must do or not do in regard to their lands held under Deeds in Fee Simple so long as we retain our Common Law status under our legally unchangeable Christian Monarchical Constitutions, which apply both State and Federally. Property rights are essential to freedom, justice, peace and prosperity. They are basic rights of ownership. I do note your inability to understand that Oral Evidence is Hearsay, and do hope that you did not act out of the Law with regard this fact. I also note your inability to understand that The SUPREME COURT of Victoria, is only acting as a Government owned Corporation, and has, in no way, any grant of power under our Australian Commonwealth Constitution, with the Queen removed. I do not consent to undertaking commerce with your organisation. Yours in Good Faith, Mark McFarlane. Mr McFarlane attached a copy of the certificate of title for the Glenrowan property, which records him as the registered proprietor. 

Crises

'The ideology of crisis in higher education' by Bruce Macfarlane in (2024) Higher Education Quarterly comments 

Higher education seems to be in a perpetual state of ‘crisis’. The many hundreds of books and papers containing this specific, or other relevantly similar expressions, convey a sense of fear and angst. Yet, what are these various crises about, and which values and beliefs are seen as threatened or ‘under attack’? This paper will provide an analysis of the ‘crisis’ literature and identify four major crisis themes – massification, marketisation, restitution and geopolitics, linked to their ideological basis and influences—including meritocracy, liberalism, restorative justice, and justice globalism. The second part of the paper analyses the massification crisis in Britain between the 1940s and the 1970s as a case example identifying how the principles of a meritocratic society played an influential role in the debate. It will be argued that the notion of ‘universities in crisis’ needs to be understood critically in terms of ideology and historically via the shifting and reshaping of such beliefs over time. ... 

 

Even the most cursory glance at the higher education literature indicates that there are many hundreds of books and papers that refer to the way in which universities are, variously, ‘in crisis’ (e.g. Docking & Curton, 2015; Frank et al., 2019; Lucas, 1998; McNay, 1988; Moberly, 1949; Reeves, 1988; Scott, 1984; Wallerstein & Starr, 1971a, 1971b), ‘under fire’ (Barrett et al., 2019; Bérubé & Nelson, 1995; Cole, 2005; Giroux, 1995; Jones, 2022, etc.), under ‘assault’ (Bailey & Freedman, 2011), under ‘attack’ (Kogan & Kogan, 1983; Giroux, 2009, etc.) and in ‘decline’ (Halsey, 1992). The university is variously described as ‘toxic’ (Smyth, 2017), ‘hopeless’ (Hall, 2020), ‘without a soul’ (Lewis, 2006) and approaching its imminent ‘demise’ (Sykes, 1988) or ‘death’ (Wright & Shore, 2017). Fleming (2021) even refers to the psychological ‘hell’ experienced by students and academics in the contemporary university. Regardless of the extent to which such language is used for rhetorical effect the sense of violent threat being conveyed here indicates that certain normative values are perceived as being at risk. There are many interpretations of the word ‘crisis’ in higher education and a long history in this strand of the literature. The word has been used almost habitually by higher education scholars since at least the 1940s (e.g. Docking & Curton, 2015; Frank et al., 2019; Lucas, 1998; McNay, 1988; Moberly, 1949; Reeves, 1988; Scott, 1984; Wallerstein & Starr, 1971a & 1971b). 

 

Dysoptian prognoses are nothing new and the higher education crisis literature, as Tight (1994) labels it, stretches a long way back. The Crisis in the University by Walter Moberly was published in 1949 while Jefferson Frank and his colleagues published English Universities in Crisis 60 years later in 2019. A sense of impending doom has been a constant in the higher education literature since at least the end of the Second World War and the subject of critical comment and analysis by Bartell (1975) and Tight (1994). Bartell (1975) sagely remarks that few of the issues identified in the literature really threaten the survival of the university, suggesting that such writing is indicative of the changing values of higher education itself. 

 

Academics who write about ‘crisis’ in higher education use an emotive set of expressions featuring words such as assault, ‘attack’, ‘crisis’, ‘demise’, ‘death’ and so on to convey a dramatic sense of urgency and grab attention. Yet, beyond deploying crisis and associated terms as a rhetorical device such language points to a much deeper sense about values that are perceived to be lost, or in need of urgent protection, due to changes taking place in higher education. The use of the word ‘crisis’ sends out a warning that what is precious is being undermined or threatened in some way. Hence, the crisis literature is not merely rhetorical but also fundamentally ideological. There is a considerable literature in political science concerned with ideology but essentially no settled or agreed definition (Duncan, 1987). It is commonly argued though that ideology needs to be understood as a ‘cluster concept’ (Sartori, 1969:398) and is based both on truth claims as well as emotive appeal (eg Kendall, 1981; Giddens, 1983; Duncan, 1987). I will explore both these cognitive and normative elements of ideology as Duncan (1987) describes them in seeking to understand the socio-political values or beliefs that underpin a sense of ‘crisis’ in higher education. This means that it is important to understand the place of higher education's various ‘crises’ in an ideological and historical context and the fact that their basis is far from static. Their nature and foundations are constantly evolving, reflecting changing values about the underlying purposes of higher education linked to ideology. Hence, this paper will explore how to link the use of the word ‘crisis’—and associated vocabulary—with shifting understandings of common values and ideology. 

 

The first part of this paper will develop a typology of crises of higher education with four major strands labelled as massification, marketisation, restitution and geopolitics. Based on an extensive review, these four strands account for the overwhelming majority of the crisis literature internationally, although the principal focal point of analysis is British higher education. This categorisation reveals a sense of crisis based on underlying ideological beliefs and values about what is perceived to be important or under threat. The second part of the paper will examine the history of the massification crisis in a British context, the first of the four types of crisis identified. This crisis centred on arguments about the effects of expanding university places thereby altering the previously highly selective and elite nature of UK higher education. The ideological roots of the massification crisis are closely connected with the principles of a meritocratic society, notably equality of opportunity.

Meds

'Promoting the personal importation of therapeutic goods: recent legislative amendments to advertising regulations may impact consumer access and understanding' by Christopher Rudge and Narcyz Ghinea in (2023) 47(2) Australian Health Review 182-191 comments Objective The personal importation scheme is a legislative mechanism that allows health consumers to import unapproved medicines under certain conditions. This article analyses the legal and policy basis for the scheme and considers how reforms to advertising laws for therapeutic goods may restrict communications about it. The article represents the first published analysis of the personal importation scheme's interaction with the communications of health professionals and buyer's clubs. It considers how these communications may be affected by legal amendments, particularly where unapproved medicines may be accessed through the scheme. Methods An examination of Australian therapeutic goods law concerning the personal importation scheme was conducted, including both the historical law and recent regulatory reforms. Illustrative tables were prepared to identify scheme-related advertising that may contravene therapeutic goods law. Risk estimates were allocated to several new legal rules to indicate whether health professionals or buyer's clubs would contravene these laws when promoting the scheme to health consumers for unapproved medicines. Results Representations made directly to the public by health practitioners or on buyer's clubs websites about accessing unapproved therapeutic goods through the personal importation scheme are likely to contravene one or more advertising laws. Conclusions The Therapeutic Goods Administration has very strong powers to initiate compliance or enforcement action for advertising breaches in Australia for many promotional practices. Arguably, in the age of the internet and in the context of emerging expensive medicines, these powers should not be used to restrict health practitioners or buyer's clubs from sharing information about the lawful personal importation scheme to health consumers in need. Nevertheless, the study finds that health practitioners who promote or refer to the availability of unapproved medicines through the personal importation scheme outside of a consultation are likely to contravene the law and may be subject to disciplinary or enforcement acti

Kelsen

'Kelsen’s Contribution to Contemporary Philosophy of International Law' by David Dyzenhaus comments 

This paper revisits the Hart-Kelsen debate in philosophy of law through the lens of their views on the legal status of international law. Hart’s unsatisfactory account of that status dominates recent philosophical debate about international law largely because scholars accept Hart’s claim to have refuted Kelsen. But, as I argue, Hart distorted Kelsen in order to ‘refute’ him. With those distortions corrected, we can see that Hart’s own legal theory is not only parochial but incoherent on its own terms. More important, we can appreciate the merits of Kelsen’s theory in two major respects. First, Kelsen, unlike Hart, does not start by constructing a theory of the law of a national legal order, and, only then, ask whether international law is law in its light. Rather, he shows that an understanding the legality of international law illuminates how philosophy of law might productively address some of its central problems. Second, we can see that the fundamental divide in philosophy of law is neither between legal positivism and natural law theory, nor between theories of law and theories of adjudication. Rather, the divide is between Kelsenian dynamic and Hartian static models of law, where these labels signify whether the model includes the dynamic process of legal change within the scope of legal theory or consigns it to some extra-legal space.

Rivers

In several publications I have suggested that a fundamental question in awarding 'personhood' - or a variety of personhood - to rivers, forests and other domains is what you do with that personhood. 'Beyond legal personhood for the Whanganui River: collaboration and pluralism in implementing the Te Awa Tupua Act' by Miriama Cribb, Elizabeth Macpherson and Axel Borchgrevink in (2024) International Journal of Human Rights comments 

There is now a large body of scholarly literature on the legal and governance arrangements for the Whanganui River in Aotearoa New Zealand, given the rights of a legal person under Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Most of this literature focuses on the innovation of legal personhood and rights of nature rather than situating the Act in its local context or examining its implementation in practice. This article analyzes two cases of implementation – Te Pūwaha (the revitalisation of the Port of Whanganui); and Te Kōpuka nā Te Awa Tupua, the collaborative group charged with developing a strategy for the river. We shift attention away from legal personality to three other elements: The centrality of Māori kawa (value-based, Indigenous law); the establishment of a comprehensive set of new institutions and practices; and the devolution of authority to hapū (subtribes) and communities. These elements represent a paradigm shift towards a relational and reciprocal form of governance. While Te Awa Tupua Act does have some alignment with rights of nature, it should primarily be understood as recognising Indigenous rights and the authority of Indigenous law. 

The case of the Whanganui River, recognised by legislation as a ‘legal person’ under the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (the Act) as part of a reparative Tiriti o Waitangi (Treaty of Waitangi) settlement between local Māori iwi (tribes) and the Crown, has become emblematic of legal innovations on the rights of rivers. Most of the scholarly engagement with the Whanganui model comes from outside Whanganui and, indeed, outside Aotearoa New Zealand, and has been overwhelmingly focused on the innovation of legal personhood for the river.Footnote1 Very little research has been conducted from within the place where this innovative legal model emerged, and almost nothing has been written about how the Act is being implemented in practice. This article seeks to fill these gaps. It investigates two cases of emerging forms of river governance at the local level, which are being developed as ways of implementing the Act. The article is written by an interdisciplinary team of researchers, who include a ‘born and bred’ Whanganui iwi descendant (uri) and PhD researcher, a Pākēha (non-Māori New Zealander) legal scholar and former Indigenous rights lawyer, and a senior European anthropologist with long experience of empirical work with Indigenous and local peoples. The results of this collaboration enabled new insights about the potential for legal frameworks to centre river relationality and reciprocity in collaborative river governance. 

Our focus on how local governance is being transformed as a consequence of the Act allows a new perspective on what is innovative in this legislation. The legal personhood for the Whanganui River is ground-breaking, and for this reason has caught international attention. Yet, in examining implementation, other elements of the Act are seen to be crucial and equally innovative, even though they have tended to fall below the radar in international publications. Our fieldwork within the Whanganui catchment (and in the case of the first author, her entire life there) has enabled us to draw three, interrelated implementation lessons from the Whanganui River model. The first, is the need for scholarly framing to shift from the Western legal fiction of the ‘person’ towards the broader enabling jurisdiction for kawa (value-based, Indigenous law) in the Whanganui model. The second, is the potential of a new way of decision-making than has historically been the case under the Resource Management Act, shifting away from traditional Western notions of sustainability towards kawa-based notions of relationality and abundance. The third, is the significance of the legal governance architecture that supports place-based authority, devolves decision-making to hapū (subtribes), and brings the whole community in conversation with the river as part of deliberative local democracy. 

We find that the Act can be best understood as a recognition of relational legal pluralism in response to Treaty of Waitangi claims raised by Māori. Indigenous law – the kawa – explicitly forms the core of the Act, and what it crucially does, is to devolve power and authority to hapū and local communities. Even though the Act does recognise the river as a person and establishes rights for the river, this is a by-product of legislation designed to (partially) repair the Crown’s past wrongdoings against Māori. In spite of Te Awa Tupua having gained international attention as a way of legislating rights of nature, it is better understood as a recognition of the state’s obligations in terms of Indigenous rights and authority, especially jurisdiction for Indigenous Law.

Influencers

The European Commission and national consumer protection authorities of 22 Member States, Norway and Iceland earlier this month released the results of a sweep of social media posts from influencers. 

The sweep found that 97% of these influencers posted commercial content. Only one in five systematically indicated that their content was advertising. 

The objective of the sweep was to verify whether influencers disclose their advertising activities as required under EU consumer law. Posts of 576 influencers published on major social media platforms were checked. 

The sweep is summarised as 

•  97% published posts with commercial content, but only 20% systematically disclosed this as advertising; 
• 78% of the verified influencers were exercising a commercial activity; however only 36% were registered as traders at national level; 
• 30% did not provide any company details on their posts, such as e-mail address, company name, postal address or registration number; 
• 38% of them did not use the platform labels that serve to disclose commercial content, such as the “paid partnership” toggle on Instagram, on the contrary, these influencers opted for different wording, such as “collaboration” (16%), “partnership” (15%) or generic thanks to the partner brand (11%,); 
• 40% of the checked influencers made the disclosure visible during the entire commercial communication. 
• 34% of influencers' profiles made the disclosure immediately visible without needing additional steps, such as by clicking on “read more” or by scrolling down; 
• 40% of influencers endorsed their own products, services, or brands. 
• 60% of those did not consistently, or at all, disclose advertising; 
• 44% influencers had their own websites, from which a majority was able to sell directly.
• Several influencers were active on different social media platforms: 572 had posts on Instagram, 334 on TikTok, 224 on YouTube, 202 on Facebook, 82 on X (formerly Twitter), 52 on Snapchat, and 28 on Twitch. 
•  The main sectors of activity concerned are, in decreasing order, fashion, lifestyle, beauty, food, travel and fitness/sport. 
• 119 influencers were considered to be promoting unhealthy or hazardous activities, such as junk food, alcoholic beverages, medical or aesthetic treatments, gambling, or financial services such as crypto trading.

NotBot

In Moffatt v. Air Canada, 2024 BCCRT 149 Air Canada has unsuccessfully sought to duck liability with, among other things, a claim that its chatbot is a discrete legal person. 

The Tribunal states 

 1. This dispute is about a refund for a bereavement fare. 

2. In November 2022, following the death of their grandmother, Jake Moffatt booked a flight with Air Canada. While researching flights, Mr. Moffat used a chatbot on Air Canada’s website. The chatbot suggested Mr. Moffatt could apply for bereavement fares retroactively. Mr. Moffatt later learned from Air Canada employees that Air Canada did not permit retroactive applications. 

3. Mr. Moffatt says Air Canada must provide them with a partial refund of the ticket price, as they relied upon the chatbot’s advice. They claim $880 for what they say is the difference in price between the regular and alleged bereavement fares. 

4. Air Canada says Mr. Moffatt did not follow the proper procedure to request bereavement fares and cannot claim them retroactively. Air Canada says it cannot be held liable for the information provided by the chatbot. Finally, it relies on certain contractual terms from its Domestic Tariff. Air Canada asks me to dismiss Mr. Moffatt’s claim. 

5. Mr. Moffat is self-represented. Air Canada is represented by an employee. 

6. For the reasons that follow, I mostly allow Mr. Moffatt’s claim.... 

7. These are the Civil Resolution Tribunal’s (CRT) formal written reasons. The CRT has jurisdiction over small claims brought under Civil Resolution Tribunal Act (CRTA) section 118. CRTA section 2 states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness. 

8. CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice. 

9. CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary, and appropriate, whether or not the information would be admissible in a court of law. 

10. Where permitted by CRTA section 118, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate. 

ISSUE 

11. Did Air Canada negligently misrepresent the procedure for claiming bereavement fares, and if so, what is the remedy? 

EVIDENCE AND ANALYSIS 

12. In a civil proceeding like this one, Mr. Moffatt, as applicant, must prove their claims on a balance of probabilities. This means “more likely than not”. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision. 

13. On November 11, 2022, Mr. Moffat’s grandmother passed away in Ontario. That same day, Mr. Moffat visited Air Canada’s website to find and book a flight from Vancouver to Toronto using Air Canada’s bereavement rates. It is undisputed that Air Canada provides certain accommodations, such as reduced fares, for passengers traveling due to the death of an immediate family member. 

14. Mr. Moffat says while using Air Canada’s website, they interacted with a support chatbot. While Air Canada did not provide any information about the nature of its chatbot, generally speaking, a chatbot is an automated system that provides information to a person using a website in response to that person’s prompts and input. The parties implicitly agree that Mr. Moffatt was not chatting with an Air Canada employee. 

15. Mr. Moffat says they asked the Air Canada chatbot about bereavement fares. They include a screenshot of the chatbot’s response, which says, in part, as follows: Air Canada offers reduced bereavement fares if you need to travel because of an imminent death or a death in your immediate family. … If you need to travel immediately or have already travelled and would like to submit your ticket for a reduced bereavement rate, kindly do so within 90 days of the date your ticket was issued by completing our Ticket Refund Application form. (emphasis in original) 

16. It is undisputed the words “bereavement fares” were a highlighted and underlined hyperlink to a separate Air Canada webpage titled “Bereavement travel” with additional information about Air Canada’s bereavement policy. Air Canada provided a screenshot of part of what I infer is the hyperlinked Air Canada webpage. 17. The webpage says, in part, the bereavement policy does not apply to requests for bereavement consideration after travel has been completed. I address the inconsistency between Air Canada’s chatbot and webpage later in this decision. 

18. Relying on the information provided by the chatbot, on November 11, Mr. Moffatt booked a one-way flight from Vancouver to Toronto, departing on November 12, for $794.98. On November 16, relying on the same information, they booked a one-way flight from Toronto to Vancouver, departing on November 18, for $845.38. 

19. Mr. Moffat says on November 11, they spoke to an Air Canada representative by telephone about bereavement rates to determine what the discount may be. Mr. Moffatt says they were told the fare for each flight would be approximately $380. There is no evidence the Air Canada representative told Mr. Moffatt about whether or not they could retroactively apply for bereavement rates. 

20. Mr. Moffatt submitted their first application for the bereavement fare on November 17, 2022, well within the 90 days requested by the chatbot. Emails in evidence show Mr. Moffatt corresponded with Air Canada throughout December 2022 and February 2023 in an attempt to receive a partial refund of their fares. 

21. On February 5, 2023, Mr. Moffatt emailed Air Canada. They included the screenshot from the chatbot that set out the 90-day window to request a reduced rate and confirmed they had filled out the refund form and provided a death certificate. 

22. On February 8, an Air Canada representative responded and admitted the chatbot had provided “misleading words.” The representative pointed out the chatbot’s link to the bereavement travel webpage and said Air Canada had noted the issue so it could update the chatbot. 

23. The parties exchanged further emails after that but were unable to resolve matters. Negligent Misrepresentation 

24. While Mr. Moffatt does not use the words specifically, by saying they relied on Air Canada’s chatbot, I find they are alleging negligent misrepresentation. Negligent misrepresentation can arise when a seller does not exercise reasonable care to ensure its representations are accurate and not misleading. 

25. To prove the tort of negligent misrepresentation, Mr. Moffatt must show that Air Canada owed them a duty of care, its representation was untrue, inaccurate, or misleading, Air Canada made the representation negligently, Mr. Moffatt reasonably relied on it, and Mr. Moffatt’s reliance resulted in damages. 

26. Here, given their commercial relationship as a service provider and consumer, I find Air Canada owed Mr. Moffatt a duty of care. Generally, the applicable standard of care requires a company to take reasonable care to ensure their representations are accurate and not misleading. 

27. Air Canada argues it cannot be held liable for information provided by one of its agents, servants, or representatives – including a chatbot. It does not explain why it believes that is the case. In effect, Air Canada suggests the chatbot is a separate legal entity that is responsible for its own actions. This is a remarkable submission. While a chatbot has an interactive component, it is still just a part of Air Canada’s website. It should be obvious to Air Canada that it is responsible for all the information on its website. It makes no difference whether the information comes from a static page or a chatbot. 

28. I find Air Canada did not take reasonable care to ensure its chatbot was accurate. While Air Canada argues Mr. Moffatt could find the correct information on another part of its website, it does not explain why the webpage titled “Bereavement travel” was inherently more trustworthy than its chatbot. It also does not explain why customers should have to double-check information found in one part of its website on another part of its website. 

29. Mr. Moffatt says, and I accept, that they relied upon the chatbot to provide accurate information. I find that was reasonable in the circumstances. There is no reason why Mr. Moffatt should know that one section of Air Canada’s webpage is accurate, and another is not. 

30. Mr. Moffatt says, and I accept, that they would not have flown last-minute if they knew they would have to pay the full fare. I find this is consistent with Mr. Moffatt’s actions, which included investigating the options for bereavement fares and diligently following up for a partial refund in line with the chatbot’s information. 

31. To the extent Air Canada argues it is not liable due to certain terms or conditions of its tariff, I note it did not provide a copy of the relevant portion of the tariff. It only included submissions about what the tariff allegedly says. Air Canada is a sophisticated litigant that should know it is not enough in a legal process to assert that a contract says something without actually providing the contract. The CRT also tells all parties are told to provide all relevant evidence. I find that if Air Canada wanted to a raise a contractual defense, it needed to provide the relevant portions of the contract. It did not, so it has not proven a contractual defence. 

32. So, I find Mr. Moffatt has made out their claim of negligent misrepresentation and is entitled to damages.

Plates

In DPP v James (Ruling) [2023] VCC 2452 - another pseudolaw judgment -  James charged with assaulting an emergency worker on duty and resisting emergency workers on duty.

James unsuccessfully argues that the Road Safety Act 1986 (Vic) is invalid, asserting that 

• the Road Safety Act was assented to on 23 December 1986 by a fictional character, being the ‘Queen of Australia’; 
•  the Road Safety Act has no application to a ‘free man or woman’; 
•  the ‘statute of monopolies’ precludes VicRoads from acting as a monopoly over matters such as registration and licencing; 
•  without a contract indicating consent, there can be no burden placed on free men and women; and that the Road Safety Act applies to ‘persons’ and 
•  the accused is not a ‘person’ but rather, is created in the image of God, and is entitled to the freedoms given by God. 

The judgment states

In short, the accused argues that he is only subject to ‘common law’ and that State legislation, such as the Road Safety Act and the regulations made under that Act, have no application to him and are invalid. This contention has no foundation in law and must be rejected. 

Arguments such as those advanced by the accused have been comprehensively rejected by the Supreme Court of Victoria. Relevantly, Justice J Dixon rejected similar arguments regarding the validity of the Road Safety Act 1986 in the case of Stefan v McLachlan [2023] VSC 501. 

As to the argument that the accused was able to distinguish himself from a ‘legal person’ who was charged with the offences, Dixon J characterised the argument as ‘misconceived’, stating that the ‘natural and ordinary meaning of ‘person’ where it appears in the Act is ‘a reference to an individual human being’, further stating:

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.

As to the argument that the accused is a free man, created by God and not by the State, and that the Commonwealth Constitution does not grant legislative power to Parliament to affect the rights of a free man, a similar argument was also considered and rejected by Dixon J in Stefan v McLachlan, stating ‘such irrelevant matters cannot impugn’ the validity of the Road Safety Act or the jurisdiction of a Court to deal with matters under that Act. 

The Supreme Court also rejected the contention that there is any requirement for a contract or consent to bind a free person, with Dixon J stating: ‘Regulatory schemes legislated by Parliament do not require the consent of every individual for the law to apply to that individual...the ‘consent of Victorian’s to statute law...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’. 

Prior to advancing these arguments, I provided the accused with a copy of the decision in Stefan v McLachlan and the other authorities to which I refer. 

Finally, as to the question of whether the Road Safety Act is invalid by reason of it being assented to in the name of the sovereign, this argument has also been considered and rejected by the Supreme Court in Smart v City of Greater Geelong and in Sill v City of Wodonga, both of which were also provided to the accused. These cases stand for the proposition that the Constitution Act 1975 was properly assented to, and hence, s 16 of that Act gives the Parliament of Victoria ‘the power to make laws in and for Victoria in all cases whatsoever’. The Road Safety Act is such a law. The Road Safety Act was assented to on 23 December 1986 under the hand of the then Governor of Victoria, J. Davis McCaughey as recorded in Government Gazette 108. It is clear that that the Act was properly assented to. There is no foundation to the accused’s argument. 

As stated by Byrne J in Smart v City of Wodonga, s 143(1) of the Evidence Act 2008 was enacted to prevent arguments like these being made. It is difficult to understand the basis of the accused’s argument that the ‘statute of monopolies’ invalidates the legislation. There is no basis to argue the provisions of the Road Safety Act, are invalid in law or are otherwise contrary to overriding “competition laws”.

In Stefan v McLachlan [2023] VSC 501 Dixon J states 'On the hearing of the appeal, the appellant identified himself as Alex Stefan and represented himself. His ’identity’ was an issue on the appeal'.

Stefan 

 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. I will shortly explain more fully the arguments that he developed that warrant consideration on this appeal. 

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.

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. ... 

In oral submissions, the appellant distilled his arguments to some primary points, while inviting the court to rely on the full expression of his contentions in his written material, which I have done. 

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. 

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. 

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. 

He submitted that the Magistrate misunderstood the definition of the term ‘vehicle’. The appellant submitted that there is a distinction between the colloquial use of the term ‘vehicle’ and the legal definition in the Act. The Magistrate erred in concluding that the Range Rover that he was driving was a vehicle as defined by the Act because the Act makes quite clear what is, and is not, a vehicle. A private car being used for a private purpose does not meet the definition of a vehicle as provided for in the Act. I note that the definitions are in these terms: vehicle means a conveyance that is designed to be propelled or drawn by any means, whether or not capable of being so propelled or drawn, and includes ...but does not include ...; motor vehicle means a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle but does not include [exclusions not relevant for present purposes] 

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. 

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. 

The appellant developed this argument from the informant’s admission in evidence that he was travelling in a car. In other words, he submitted that the informant did not suggest that the appellant was travelling in a vehicle or a motor vehicle. This, he submitted, was critical as the definitions in the Act are exhaustive and the term ‘vehicle’ is not defined to include a car. The appellant submitted that this consequence followed by application of the maxim expressio unius est exclusion alterius. 

The appellant’s last oral point referred to grounds claiming that he was denied procedural fairness. Largely, the appellant complained that he was not permitted to question the police witnesses as he saw fit and was ‘cut off’ numerous times and that he was not permitted to fully develop his submissions. On analysis, it is plain that the magistrate did not cut the appellant off from developing his arguments, but did cut him off when he asked questions that could not generate a response that would be relevant to an issue and hence constitute admissible evidence. The magistrate did so quite correctly, and in particular disallowed questions in cross-examination of the informant about whether the appellant is a creature of statute, and about how legislation can apply to a living man. In the exchange, the magistrate told the appellant he could raise such matters in submissions, but they were not proper questions for the witness.... 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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.[

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’. ... 

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.