ACAT decision upheld

In April this blog noted the decision by the ACT Civil & Administrative Tribunal in Kennedy v Commissioner for ACT Revenue [2010] ACAT 17, a dispute that involved what the Tribunal found were unpersuasive arguments about the inability of the ACT government to impose charges on residential property lease.

Mr Kennedy, holder of a Masters law degree, was employed by the Commissioner for ACT Revenue at the time of the contentious transactions.

The decision by the Tribunal has now been upheld, in Kurt Alim Kennedy & Commissioner For ACT Revenue (Administrative Review) [2010] ACAT 55.

A diminished reputation?

Justice Peter McClellan of the NSW Supreme Court has awarded former terror suspect Mamdouh Habib $5,000 after Habib won an appeal - Habib v Nationwide News Pty Ltd [2010] NSWCA 34 - in a defamation case against the publisher of the Sydney Daily Telegraph.

The initial case, in 2008, concerned claims made by the former Guantanamo Bay inmate about torture when he was detained.

The award may give Habib little comfort, as costs have yet to be determined and the mass media have featured comments such as -

although [Habib] established he was defamed, [the Court] is not persuaded that Mamdouh Habib's reputation is significantly damaged.

The Judge said "with respect to the damage to his reputation, in my judgement it is relevant that he falsely denied supporting Sheikh Omar Abdul Rahman.

"That amounts to a finding that the plaintiff was prepared to tell an untruth to the Australian public in relation to his support for a terrorist and very significantly diminishes his reputation.

"For that reason, although the plaintiff succeeded in establishing that the published article defamed him, when it said that he made multiple false claims I am not persuaded that his reputation was thereby significantly damaged."

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Kermode and Judt

A nice tribute to Frank Kermode by Verlyn Klinkenborg as an Op Ed in today's NY Times -

I wanted to write about Kermode because I admired him. In my years in academia, I had watched the study of literature go down any number of rabbit holes — chasing after theory and ideology and system. The very point of reading and talking about what we read seemed to have been lost in a kind of strangulating self-seriousness and alienation. That's where Kermode came in.

He was drawn to the entanglements of the text and its rational mysteries rather than some scaffold of theory. In his many books and essays, he protected the reader's freedom to be interested in whatever was interesting. That meant writing a prose that was never wholly academic and over the years became more and more open to the intersection of literature and the lives we're actually living. ....

In a review published in 2001, Kermode — a lifelong Shakespearean — sums up one of the reasons he loved Shakespeare: "To be able to devote one's life to art without forgetting that art is frivolous is a tremendous achievement of personal character". That was Kermode's achievement, too.

And from Timothy Garton Ash, in the NYRB blog, on Tony Judt -

The poet Paul Celan said of his native Czernowitz that it was a place where people and books used to live. Tony Judt was a man for whom books lived, as well as people. His mind, like his apartment on Washington Square, was full of books — and they walked with him, arguing, to the very end.

Critical though he was of French intellectuals, he shared with them a conviction that ideas matter. Being English, he thought facts matter too. As a historian, one of his most distinctive achievements was to integrate the intellectual and political history of twentieth-century Europe—revealing the multiple, sometimes unintended interactions over time of ideas and realities, thoughts and deeds, books and people.

Number crunching

After getting rid of my lecture slides on the Trade Practices Act 1974 (Cth) and new competition & consumer protection regime I'm reading Sex, Drugs, and Body Counts: The Politics of Numbers in Global Crime and Conflict (Cornell University Press, 2010) edited by Peter Andreas & Kelly Greenhill, The Just City (Cornell University Press, 2010) and The Fall and Rise of the Islamic State (Princeton University Press, 2010) by Noah Feldman. Nothing if not eclectic, as Robert Hughes might say, although there is a common thread of concern for human rights and a commitment to intellectual rigour that I find appealing.

Andreas & Greenhill, foreshadowed recently in this blog, is a collection of scholarly essays on problematical data collection/interpretation in relation to law enforcement and policymaking. It is particularly impressive for its discussion of challenges - and abuses by politicians, officials, journalists and scholars - regarding human trafficking data and death tolls in crimes against humanity in Bosnia and Darfur. The book also contains an insightful essay by Sue Eckert & Thomas Biersteker on the measurement, or mismeasurement, of 'success' in countering terrorism. The book might usefully be a prescribed text in human rights, criminology and terrorism courses.

Fainstein, which I'm reading at the request of an urban policy friend - can't have too many friends, four-legged or otherwise, who are unfamiliar with LexisNexis and know not to ask how my Cases & Materials chapters are coming along - draws on Rawls and Nussbaum in articulating an approach to justice and urban development in postmodern cities, suggesting that we can base credible policy on three concepts of diversity, democracy and equity.

Feldman looks at the history of shari'a law, founding his analysis on an engagement with religious, historical and sociological literature (with judicious comments for example regarding Weber) and suggesting that the idea of a 'just legal system, one that administers the law fairly' is an understandable goal in a region dominated by kleptocratic, incompetent and often brutal oligarchies.

On Monday, after more marking, it is faculty 'show & tell' day ... I'll be presenting a paper (albeit a decaf lite version of a paper) on 'Technological Identity Gothic', critiquing 'magical unrealism' in statements from UK and Indian politicians and officials (eg here) regarding the national identity card regimes in those nations.

Tony Abbott has come to my rescue, with the announcement that the Coalition, if it wins tomorrow's election, will introduce a virtual national identity card. Apparently we cannot have too many national signifiers, with some form of welfare card to join the ubiquitous Tax File Number and Medicare Number in 'naming and claiming' most of the population. If that is the case the Coalition might care to study the recommendations of the Victorian Law Reform Commission, highlighted yesterday, regarding a statutory tort of breach of privacy. Bring the new number - or a bit of magic plastic - on, but embed that device within a coherent, positive and properly-enforced national privacy framework.

a Victorian tort of privacy?

The Victorian Attorney-General has tabled the state Law Reform Commission's 180 page Surveillance in Public Places: Final Report [PDF].

The report responds to the growing use and sophistication of surveillance technologies. It provides recommendations to "modernise Victorian surveillance laws and promote the responsible use of surveillance devices in public places". Those recomendations include -

* clarifying, modernising and strengthening the Surveillance Devices Act 1999, including a new offence dealing with improper use of a surveillance device, such as 'happy slapping'

* prohibiting surveillance in public toilets and change rooms

* prohibiting a person recording an activity or conversation which they are part of without the consent of the other parties

* broadening the role of the Victorian Privacy Commissioner to include regulation of public place surveillance

* creating two new causes of action (the right to sue) dealing with serious invasions of privacy.

The report completes a two-stage inquiry into the widespread use of privacy-invasive technologies. The Commission's Workplace Privacy: Final Report was the first stage and proposed the creation of workplace privacy legislation to regulate potentially privacy-invasive acts and practices in the workplace. The Commission had been requested to -

In light of the widespread use of surveillance and other privacy-invasive technologies in workplaces and places of public resort, and the potential benefits and risks posed by these technologies, inquire into and report progressively upon

a. whether legislative or other reforms should be made to ensure that workers’ privacy, including that of employees, independent contractors, outworkers and volunteers, is appropriately protected in Victoria. In the course of this inquiry, the Commission should consider activities such as

• surveillance and monitoring of workers’ communications;
• surveillance of workers by current and emerging technologies, including the use of video and audio devices on the employers’ premises or in other places;
• physical and psychological testing of workers, including drug and alcohol testing, medical testing and honesty testing;
• searching of workers and their possessions;
• collecting, using or disclosing personal information in workers’ records.

b. whether legislative or other measures are necessary to ensure that there is appropriate control of surveillance, including current and emerging methods of surveillance.

As part of that examination, the Commission was to consider whether any regulatory models in relation to surveillance of workers, could be applied in other surveillance contexts such as surveillance in public places to provide for a uniform approach to the regulation of surveillance.

In its new report the Commission draws on the Victorian Charter framework to identify six public place surveillance principles that would be enshrined in legislation and provide guidance regarding "responsible use of public place surveillance".

The principles would balance competing interests, as follows.

1. People are entitled to a reasonable expectation of privacy when in public places.
2. Users of surveillance devices in public places should act responsibly and consider the reasonable expectations of privacy of individuals.
3. Users of surveillance devices in public places should take reasonable steps to inform people of the use of those devices.
4. Public place surveillance should be for a legitimate purpose related to the activities of the organisation conducting it.
5. Public place surveillance should be proportional to its legitimate purpose.
6. Reasonable steps should be taken to protect information gathered through public place surveillance from misuse or inappropriate disclosure.

The report recommends establishment of an independent regulator, primarily to promote responsible use of surveillance in public places by providing practical guidance to surveillance users, to provide the public with information about rights, and to keep the government and the people of Victoria fully informed of rapidly changing technology. That would involve a "range of functions and powers necessary for the regulator to fulfil these tasks, bearing in mind that the least restrictive regulatory methods are desirable".

The Commission acknowledges that "guidance alone cannot protect people from some practices that seriously affect their privacy", therefore suggesting changes to clarify, modernise and strengthen the Surveillance Devices Act that prohibits the use of covert surveillance devices in private places, while also allowing law enforcement use of surveillance with a warrant. The proposed amendment of definitions reflects contemporary practice, for example expressly prohibiting surveillance in toilets and change rooms. The Commission also recommends introduction of a prohibition on participant monitoring (where a person records an activity or conversation to which they are a party without the consent of other parties), something that is currently allowed under the Act.

The Commission recommends introduction of a new offence to "prohibit highly offensive uses of surveillance devices, regardless of where the surveillance occurs", designed to "send a clear message to the community that various forms of behaviour are unacceptable, including, for example, filming violence for entertainment (happy slapping). Using surveillance to intimidate or prevent people from doing something they are otherwise lawfully entitled to do, like attending an abortion clinic or drug treatment centre, would also be covered by the offence. A civil penalty regime would also apply to existing criminal offences in the SDA, providing for greater flexibility in enforcement by allowing a surveillance regulator to act on the less serious matters that come to attention without referring the matter to Victoria Police for criminal prosecution.

A significant recommendation is the call for a statutory tort of privacy. The report indicates that

The commission believes that individual Victorians should be able to take civil action in response to serious invasions of privacy by the use of surveillance in a public place.

At present, no Australian jurisdiction has enacted a statutory cause of action for invasion of privacy, and no appellate court has acknowledged the existence of a common law tort of invasion of privacy. It is open to both the High Court and the Victorian Court of Appeal to recognise a common law tort of invasion of privacy in the absence of any legislative action. However, developments in other common law countries, most notably the UK and New Zealand, suggest it will take a long time before a reasonably clear body of law emerges. Legislation would provide greater clarity and certainty within a more acceptable timeframe. The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) is a useful catalyst for legislative action because 'privacy' is one of the human rights that parliament specifically seeks to protect and promote under the Charter.

The Commission recommends the introduction of two statutory causes of action for serious invasions of privacy: the first dealing with misuse of private information, the second with intrusion upon seclusion.

Although our focus is an appropriate legal response to the misuse of surveillance in public places, these new causes of action would not necessarily be limited to conduct that occurred in a public place or that involved the use of a surveillance device.

Football Haiku

Football! Football! "Who'da thunk it", as the Grand Old Man of Chateau Stewart is wont to say.

I'm making an exception to the 'football-free blog' policy after being pointed to Football Haiku (alas, not from Geelong) by legal scholar and future SC Derridian.

A Taxonomy of SNS

Security analyst Bruce Schneier offers a taxonomy of social networking data, commenting that

As we continue our conversations about what sorts of fundamental rights people have with respect to their data, and more countries contemplate regulation on social networking sites and user data, it will be important to keep this taxonomy in mind. The sorts of things that would be suitable for one type of data might be completely unworkable and inappropriate for another.

His taxonomy is as follows -

1. Service data is the data you give to a social networking site in order to use it. Such data might include your legal name, your age, and your credit-card number.

2. Disclosed data is what you post on your own pages: blog entries, photographs, messages, comments, and so on.

3. Entrusted data is what you post on other people's pages. It's basically the same stuff as disclosed data, but the difference is that you don't have control over the data once you post it -- another user does.

4. Incidental data is what other people post about you: a paragraph about you that someone else writes, a picture of you that someone else takes and posts. Again, it's basically the same stuff as disclosed data, but the difference is that you don't have control over it, and you didn't create it in the first place.

5. Behavioral data is data the site collects about your habits by recording what you do and who you do it with. It might include games you play, topics you write about, news articles you access (and what that says about your political leanings), and so on.

6. Derived data is data about you that is derived from all the other data. For example, if 80 percent of your friends self-identify as gay, you're likely gay yourself.

Schneier goes on to comment that -

There are other ways to look at user data. Some of it you give to the social networking site in confidence, expecting the site to safeguard the data. Some of it you publish openly and others use it to find you. And some of it you share only within an enumerated circle of other users. At the receiving end, social networking sites can monetize all of it: generally by selling targeted advertising.

Different social networking sites give users different rights for each data type. Some are always private, some can be made private, and some are always public. Some can be edited or deleted -- I know one site that allows entrusted data to be edited or deleted within a 24-hour period -- and some cannot. Some can be viewed and some cannot.

It's also clear that users should have different rights with respect to each data type. We should be allowed to export, change, and delete disclosed data, even if the social networking sites don't want us to. It's less clear what rights we have for entrusted data -- and far less clear for incidental data. If you post pictures from a party with me in them, can I demand you remove those pictures -- or at least blur out my face? (Go look up the conviction of three Google executives in Italian court over a YouTube video.) And what about behavioral data? It's frequently a critical part of a social networking site's business model. We often don't mind if a site uses it to target advertisements, but are less sanguine when it sells data to third parties.