Norway

'The Norwegian Data Inspectorate: Between Governance and Resistance' by Kjersti Lohne in 10(2) Surveillance & Society (2012) 182-197 argues that

 The growing impact of information and communication technologies has resulted in the establishment of data protection authorities across Europe. Despite the role of these bodies as enforcers of privacy and data protection legislation, Surveillance Studies has so far offered little attention to their role in resistance. Based on a critical socio-legal examination of the Norwegian Data Inspectorate, the focus of this article is on the role of data protection authorities in resisting surveillance and threats to privacy and data protection. More specifically, the article asks what power the Norwegian Data Inspectorate has to achieve genuine resistance, and how its institutional structure affects this capability. Through a three-pronged analysis consisting of (i) institutional mapping, (ii) a typology of resistance strategies, and (iii) a review of its role in the Norwegian public debate on the EU Data Retention Directive, the article addresses the fundamental tension inherent in the Norwegian Data Inspectorate as a privacy-advocating ombudsman and an administrative body. As such, the research shows how, and to what extent, its institutional structure both strengthens and limits its possibilities for resistance. 

Lohne comments that

Taking a predominantly normative stance, scholars in Surveillance Studies direct their attention towards the legitimate need to resist surveillance, while less academic scrutiny focuses on describing how contemporary resistance is enacted. Important exceptions include Bennett (2008), Martin et al. (2009), Marx (2009), and Introna and Gibbons (2009). While their work makes a substantial contribution to a conceptualization of resistance within Surveillance Studies, in particular by drawing attention to the significance of privacy advocates, the way administrative bodies such as data protection authorities resist surveillance has remained strangely exempt from analysis, with the exception of David H. Flaherty’s seminal study from 1989. It may be, as suggested by Introna and Gibbons (2009, 238), that such bodies are ‘often seen as too close to government to be an effective mechanism of resistance’, or, that their presence causes ‘a false sense of security’ and in consequence legitimates the development of surveillance societies (Flaherty 1989, 11). Another explanation may be found in a particular methodological bias: in the case of scholars inclined to think ‘critically’ about state power, especially with regard to surveillance issues, a generally positive attitude towards the work of data protection authorities may lead to a preference for objects of study more readily––and justifiably––subject to criticism. However, while these suggestions help explain the lack of attention towards the role of data protection authorities, they also express the inherent duality of these bodies: although independent, data protection authorities are state actors yet at the same time, critics of state practices (Flaherty 1989).

Since its establishment in 1980, the NDI has played a significant role in the Norwegian discourses on privacy, data protection and surveillance. Alongside its supervisory responsibilities as a state administrative body, the NDI’s mandate is to act as an ombudsman for the interests of privacy and data protection. Although there has been some dissatisfaction with such a broad mandate, this particular institutional arrangement also provides the NDI with considerable access to the public discourse. Besides numerous consultative statements requested by state authorities on issues of privacy and data protection, its expertise and opinion is called for and disseminated through various public appearances by its representatives in the media, seminars and debates. Throughout the past decades, there has been a steady increase of administrative supervision in Norway as elsewhere. Whether the growth represents an increase in de facto supervisory activities, or results from general developments in government administration such as the expansion of administrative law in tandem with the prevailing juridification of society, remains questionable (Stub 2010).4 Through a mapping of the NDI’s development from 2000 – 2010, this article sheds light on some additional aspects of this discussion by inquiring into the nature of the NDI’s growth. How data protection authorities interpret and perform their tasks and responsibilities necessitates critical reflection. Does the NDI’s institutional development mirror its role as a privacy-advocating ombudsman, or that of an administrative supervisory body? The research strategy has involved a review of core regulatory and official reports, consultative statements and annual reports from the NDI in the years 2000 – 2010. As official sources, these documents possess methodological credibility and validity; but they are also normative and performative remnants, requiring a critical distance in their analysis (Kjeldstadli 1999). To this end, the research has included an analysis of  a semi-structured interview with the NDI’s former director Georg Apenes, as well as of seminars, debates and media reports on privacy issues, particularly concerning the EU Data Retention Directive.

The article proceeds in three parts. The first section presents the NDI as an institution and a state administrative body, addressing the parameters of its mandate, size and responsibilities. Providing the empirical background for the succeeding analysis, the mapping is also a reflection of how the trajectory of security thinking and ICT has altered the landscape of privacy and data protection since the beginning of the 21st century. Part two probes into the NDI’s practices of governance and resistance. It builds on a fourfold typology developed by Keck and Sikkink (1998) to describe the tactics employed by transnational advocacy networks: information politics, leverage politics, accountability politics and symbolic politics, which Bennett (2008) has adapted and applied to the study of privacy advocates. This juxtaposition will shed light on whether, and to what extent, the NDI’s practices resemble those of privacy advocates, and hence, how the NDI manages its twofold role in resisting surveillance and threats to privacy and data protection. The latter is also the subject of the third and final part, where a delineation of the NDI’s role in the high-profile debate on the EU Data Retention Directive illustrates the inherent tension stemming from the NDI’s institutional twofold role.

Indigenous Legal Needs, Death and Traditional Law

Reading the sobering 188 page Indigenous Legal Needs Project: Northern Territory Report (2012) by Fiona Allison, Chris Cunneen, Melanie Schwartz and Larissa Behrendt. The report [PDF] presents key findings and recommendations based on research conducted in 2011 by the Indigenous Legal Needs Project (ILNP) in the Northern Territory (NT).

The ILNP involves identification and analysis the legal needs of Indigenous communities in non-criminal areas of law (including discrimination, housing and tenancy, child protection, employment, credit and debt, wills and estates, and consumer-related matters) and an understanding of how legal service delivery might work more effectively to address identified civil and family law needs of Indigenous communities.

The report is based on focus groups (149 Indigenous community members in Darwin, Wadeye, Katherine, Bulman, Tennant Creek, Alice Springs, Papunya and Alpurrurulam) and 60 interviews with legal and related stakeholders.

The authors comment that

identified issues generally followed those used in other large scale legal needs projects ... with additional questions relating to specific Indigenous concerns (for example, stolen generations, stolen wages, Basics Card). Some matters such as police complaints, native title or intellectual property were omitted from the questionnaire for practical reasons, in particular due to the size of the document and the time it takes to complete. Consistent with other civil law needs analyses, family and domestic violence was treated as a criminal matter rather than civil law. Some civil law issues not identified in the questionnaire arose in focus group discussions and in stakeholder interviews.

They go on to state that

In determining the priority areas for non-criminal law matters for Indigenous people in the NT, we have considered the responses of focus group participants in both questionnaires and discussion and the views of stakeholders and organisations delivering services to the focus sites. We also note that some areas of legal need such as child protection have such serious consequences (loss of children) that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem, the associated consequences and the views of stakeholders also influence our determination of priority areas. We also note some areas of legal need are influenced by gender. It should be noted that we do not assess whether there is an effective legal remedy available for the areas of legal need which have been identified.

There were two areas of law raised in the focus group questionnaire in which more than 25% of all participants indicated that they had experienced a legal problem in the last two years. These were:

• housing (54.1%)

• neighbourhood disputes (27%).

On the basis of focus group participant responses, we identify housing as a priority area. Issues involving neighbourhood disputes were particularly seen as a priority area of concern by Indigenous women.

There were a further four areas of law that were identified by more than 18% of respondents has having caused them some problem in the same time frame. They were:

• discrimination (22.6%)

• accident and injury (22.3%)

• employment (19.6%)

• credit and debt issues (18.4%).

We note further below the importance of discrimination and credit and debt as priority areas from the above list.

In relation to social security, 73.2% of all focus group participants were in receipt of Centrelink payments and of these 29.1% identified a potential legal problem. We identify social security as a priority area because of the significant proportion of people who are dependent on Centrelink payments, the majority of whom are also subject to Income Management.

In relation to family matters between 6.8% and 12.2% of participants identified problems with child contact etc., or child protection matters. We view child protection in particular as a priority area: legal needs relating to child protection have such serious consequences that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem and consequences also influence our view that it is a priority area, particularly, also because of the identified lack of legal assistance to parents. We also note that focus group participants identified this area as a priority in discussion, even though they may not have identified family law as an issue that they personally were dealing with.

Credit and debt, and consumer issues are also considered a priority. Overall, 18.4% of focus group participants said that they had had legal action threatened against them in the last two years for failure to pay a bill or repay a loan. Difficulty in repaying loans was the most prevalent credit and debt issue identified by focus group participants. Consumer issues were identified by stakeholders in particular as an area of unmet legal need. It is difficult to distinguish consumer issues from credit and debt because of the intertwined nature of these areas in the experiences recounted. On the basis of both participant responses to issues relating to debt and loan repayments as well as the stakeholder information relating to consumer issues we identify these areas as a priority.

Discrimination emerged as a priority issue in both focus groups and stakeholder interviews conducted in the NT. Overall, nearly a quarter of all focus group participants (22.6%) identified having experienced discrimination. There is a level of acceptance in relation to discrimination, a lack of knowledge about rights, and difficulties in ‘naming’ an incident as discrimination, potentially leading to under-reporting of this issue. Because discrimination impacts on all areas of social life from health services, to housing, to employment, to education, and because there appears to be a large unmet legal need in this area, we regard it as a priority legal need.

We raise the potential for considering wills and estates as a possible priority area because of unmet legal need: very few Aboriginal people have wills and many people indicate a desire to have assistance to complete a will.

Another way of considering priority legal areas in civil and family law is by gender. In many of the legal issues discussed in this Report there were pronounced gender differences both in the identification of issues and in the likelihood of seeking legal advice or assistance. In relation to housing, neighbourhood disputes and social security, Aboriginal women were more likely to identify an issue or problem but much less likely than men to seek assistance. The issue was particularly pronounced in relation to neighbourhood disputes and social security (women were half as likely as men to seek advice in relation to neighbourhood disputes, and four times less likely than men in relation to social security).

In relation to victim’s compensation, employment, family law and child protection, and credit and debt, Aboriginal men were less likely than women to seek assistance. The issue was particularly pronounced in relation to victim’s compensation and credit and debt (men were four times less likely as women to seek victim’s compensation, and nearly five times less likely than women to seek advice in relation to credit and debt).

Last year's NZ Supreme Court judgment in Takamore v Clarke [2012] NZSC 116; [2013] 2 NZLR 733 deals with traditional law and disposal of a body. 

Tipping, McGrath and Blanchard JJ state 

[165] In the present case Ms Clarke is the executrix of the late Mr Takamore. She had power under the common law rule to determine how and where he was to be buried which she was required to exercise once she was apprised of the views of the deceased’s sister and Bay of Plenty family. She discussed with them their preferences and the tikanga underlying them. Ms Clarke did not acquiesce in the wishes of whanau who took the body to Kutarere. In believing there was such acquiescence, the whanau were mistaken. Accordingly, what the whanau did was in accordance with tikanga but the act of taking and interring the body was not authorised by Ms Clarke, who at all times had legal power to determine how and where the body was to go. 

[166] It is the Court’s responsibility now to consider all the circumstances in light of the applicable common law. They include, first, the fact that Mr Takamore made his life in Christchurch with his partner and their children, living there with them for over 20 years until his death in 2007 at the age of 55 years. Their urban life means that, following Mr Takamore’s death, his partner and now adult children have little relationship with Kutarere. Secondly, Kutarere is the place of central importance to Mr Takamore’s Māori family and their custom. Thirdly, different views were expressed in the High Court as to Mr Takamore’s own wishes. The evidence was that burial in Christchurch was in accord with what Mr Takamore told friends there but not what he gave his mother to believe his intention was. Fourthly, and importantly, burial in Christchurch is in accord with the wishes of Ms Clarke and the children of Mr Takamore, who are adult. Finally, Mr Takamore is now buried in Kutarere but that factor carries little weight in this case because Ms Clarke, as the person with power to decide at law, did not agree or acquiesce in that course that led to his burial there. 

[167] Where two families from separate localities are in dispute over the appropriate place for interment of a deceased, and the issue is brought before the Court, the common law requires the Court to examine the nature and closeness of the relationship of the deceased with each family and each location at the time of death. The sensitivities of family and others close to the deceased are relevant along with the familial feelings of cultural, religious or other circumstances that underlie them. 

[168] Consideration must also be given to the wishes expressed by the deceased as the law has moved on from its early rejection of the significance of this factor. Often, however, as here, the true wishes of a deceased may be debatable, particularly if the deceased has said different things at different times to different people. A court may of course need to consider the possibility that something was said out of a desire to please the person to whom the deceased was speaking. In this case, however, we do not find it necessary to resolve the question of Mr Takamore’s wishes as to where he was buried. 

[169] This is a case where there are deeply held views that are in conflict. But when all relevant matters are assessed, it is Mr Takamore’s life choices, in relation to living in Christchurch with his partner and now adult children, that carry greatest weight and, ultimately, are determinative. The decision taken by Ms Clarke that Mr Takamore should be buried in Christchurch reflects her own views and those of her children. For these reasons, it was an appropriate decision. We would uphold it. It goes without saying that if Ms Clarke adheres to her decision and Mr Takamore’s body is to be disinterred, this should be done in a manner which, as far as possible, respects the sensitivities of his Kutarere family and relevant Tūhoe custom. 

Elias CJ in dissent states 

[1] There is important public interest in the disposal of human remains. That is not only for reasons of public health and decency (considerations which underlie the provisions of the Burial and Cremation Act 1964). The public interest is also engaged because in all societies and in all cultures the disposal of the dead is of great significance to the living and to the religious and cultural traditions to which the deceased and those who care about the deceased belong. Conflict about the disposal and treatment of the dead is inevitably distressing for all because it stirs deep feelings. Proper disposal of bodies engages the human rights to dignity, privacy and family. 

[2] In most cases, decisions as to interment or other disposal of human remains are taken by the immediate family of the deceased. Any disagreements between family members are either resolved or overtaken by the disposal achieved in result by those who carry the day. Those who prevail in fact may do so for a number of reasons: perhaps because they are deferred to on the basis of social or cultural ideas as to what is fitting (as is common in respect of the wishes of the spouse); perhaps because of their personal standing or the strength of their personalities; perhaps because they can invoke the deceased’s own wishes in support of their position; or perhaps because they can invoke the authority of cultural or religious tradition to which the deceased or the family belongs. Such outcome may entail the wishes of some family members being overborne. They may remain deeply unhappy and unreconciled to the result. Although in the present case cross-cultural issues have exacerbated the differences between family members of the deceased, it should be recognised that deep differences as to the disposal of the dead arise without any such cross-cultural dimension. 

[3] The appeal concerns a claim to the High Court by Denise Clarke for orders for the recovery by her of the body of her long-term partner, James Takamore. He was buried without her consent by members of his Whakatohea and Tuhoe family in a family urupa at Kutarere in the Bay of Plenty in accordance with the tikanga observed by their hapu. Ms Clarke and the two adult children of her relationship with Mr Takamore wish to have his body buried in Christchurch, where the family has lived for the last 20 years. Ms Clarke, who was appointed executor by Mr Takamore in his will, was successful in the High Court and on appeal to the Court of Appeal in her claim to be entitled as executor to determine where Mr Takamore is buried, although questions of remedy remain reserved in the High Court. Josephine Takamore, the sister of the deceased, appeals to this Court. 

[4] It is accepted by the parties that entitlement to bury someone who has died is not prescribed by any enactment and that the claims fall to be decided according to the common law of New Zealand. The appellant and two other family members who do not appeal (Mr Takamore’s mother and brother) opposed Ms Clarke’s application to the High Court on the basis that New Zealand law does not recognise an exclusive right of an executor to determine disposition of the body when the deceased is Tuhoe. In such circumstances, it is said that the common law gives effect to Tuhoe custom or tikanga. By it, the question of disposal is determined by the whanau pani (the wider bereaved family) according to cultural values and practices. Those values and practices take into account the views of the wife and children (who participate as members of the whanau pani) but have a strong preference, based on the importance of whakapapa, for the return of a deceased to the hapu to be buried with those linked to him by whakapapa. 

[5] Since Mr Takamore was buried in the urupa in accordance with the Tuhoe tikanga observed by his hapu, the appellant contends that the executor has no possessory right to his body for reburial, although she acknowledges the executor has standing to make application to the Court for reinterment of the deceased if proper grounds are made out. She says there is no proper basis in the present case to interfere with the burial of Mr Takamore. 

[6] Ms Clarke, for her part, maintains that under New Zealand law she has the right as executor to possession and disposal of Mr Takamore’s body, as was recognised in the lower Courts. She acknowledges that her discretion as executor is in the nature of a trust and subject to the supervisory jurisdiction of the High Court for abuse of power or unreasonableness, conditions which she says are not made out here. 

[7] For the reasons that follow, I am of the view that neither opposing position taken by the parties is correct in law. In circumstances where there is dispute as to burial, either party has standing to bring the dispute to the High Court for resolution. Their claims are of competing right which fall to be resolved according to law by the High Court in its inherent jurisdiction. 

[8] The executor does not have the exclusive discretion to determine how the body is to be reburied or otherwise disposed of. Rather, Ms Clarke both as executor and as Mr Takamore’s partner has standing to seek from the Court the right to disinter his body for reburial. On such application, her views as executor will be highly influential and may well be accepted by the Court in result. [9] Nor is it correct, as the appellant maintains, that because of the deceased’s whakapapa the decision as to his burial lies with the whanau pani or the hapu to which it belongs, if their claims are challenged by others with standing to seek the determination of the Court (as Ms Clarke has both as executor and as Mr Takamore’s partner). As is the case with the executor, those representing the whanau pani and seeking to maintain the burial already undertaken have standing to oppose Ms Clarke’s application for exhumation and reinterment. Claims based on whakapapa and the tikanga observed by the hapu of the deceased are entitled to great weight in New Zealand law and may well prevail in a particular case. But the claim itself, like the claim of the executor, does not give rise to a possessory right in law against competing interests without Court resolution. 

[10] Claims in relation to burial have been extremely rare in New Zealand. In other common law jurisdictions there are reported decisions concerning disputed claims to the right to bury, including some with cross-cultural dimensions comparable to those arising in the present case. Although, as is discussed in what follows, there are statements in some cases that executors (or, in the absence of an executor, those entitled on intestacy to administration) have the right in law to determine questions of burial or other disposal, I conclude that there is no hierarchy of rights to possession of the body and its disposition. The responsibility to decide as to the disposal of the body where there is dispute is inescapably that of the Court on application made to it. In discharging its responsibility, the Court may choose to defer to one of the claimants. Alternatively, it may give specific directions. 

[11] When the jurisdiction of the Court is invoked in such disputes, the cases are uncomfortable not only because they usually involve deeply held differences between close family members, all of whom may sincerely believe that they are fulfilling a duty or otherwise doing the right thing by the deceased or the wider family. As importantly, the values behind the different positions may be very difficult for the Court to balance in reaching a fair and just result if they are taken from registers which are not commensurable. That will often be the case if the differences of view arise out of distinct religious or cultural value systems. A courtimposed result in such circumstances may not convince the disappointed party or indeed be universally convincing in its own terms. Although the position of a court asked to resolve such differences is not a comfortable one, there is nothing particularly unusual in that. Courts not infrequently have to decide between positions that are not readily comparable. 

[12] For the reasons given below, I have come to the conclusion that the claim for reinterment put forward by Ms Clarke and her children is to be preferred in all the circumstances. This is not because, as executor, Ms Clarke has the right to decide and her views must prevail as a matter of law except where shown to be unreasonable or improper, as was argued on her behalf. It is not because the tikanga by which Mr Takamore has been buried cannot be recognised in law because inconsistent with fundamental values of the common law (as Fogarty J in the High Court[ and the majority in the Court of Appeal[ thought to be the case, although on different grounds). Cultural identification is an aspect of human dignity and always an important consideration where it is raised, as are the preferences and practices which come with such identification, as s 20 of the New Zealand Bill of Rights Act 1990 affirms. In the case of indigenous people, the preference for repatriation of the dead is recognised by the Declaration of the Rights of Indigenous Peoples as a matter of great moment. Nor is the result I reach because the wishes of the deceased are clear and to be preferred over interment in accordance with his Tuhoe heritage (as Fogarty J in the High Court and Chambers J in the Court of Appeal thought to be the case but, as I think in agreement with the majority in the Court of Appeal, wrongly). Rather, weighing up the different and valid claims of the parties as best I can, I have concluded that Ms Clarke and her children should in the circumstances of the case be left to decide where Mr Takamore is to be buried. 

IP and TV Show Formats

'The Fashion of TV Show Formats' by Stefan Bechtold argues that

 Over the last years, a vibrant global market for TV show formats has developed. New game show, casting, soap, telenovela, documentary and other formats are sold to broadcasting stations in dozens of countries, leading to a worldwide multi-billion dollar industry. As an analysis of U.S. and European intellectual property law demonstrates, TV show formats are difficult to protect by intellectual property rights. Standard theory would predict that in the absence of intellectual property protection, the TV show format industry has insufficient incentives to invest in creative innovation. This article presents a novel theory to explain why the TV show format market is thriving despite a low level of format protection. On the supply side of the industry, demand for TV formats is hard to predict, return on them is highly skewed, and market participants are both developing original formats and imitating others’ formats. On the demand side, TV formats are experience goods, and TV viewers sometimes prefer familiar products. As a result, the TV show format market is subject to herding effects on both sides of the market. The interaction of supply-side and demand-side herding leads to fashion cycles in TV show formats. The TV show format industry uses the limited protection against format imitation, but has adapted to the fashion cycle. This article tells the story of how an industry has developed institutions enabling it to cope with uncertain demand and unpredictable profitability, while benefiting from limited appropriability of innovation and from the fashion cycles which underlie the innovative process.

After noting that neither trade dress nor patent law protects against imitating published TV formats, Bechtold considers copyright and unfair competition law.

In the United States, copyright law grants protection to “original works of authorship fixed in any tangible medium of expression.” While the potential media of expression are very broad, it is a guiding principle of U.S. – and, in fact, international – copyright law that copyright cannot subsist in ideas, facts, procedures, or concepts. As a result, and in contrast to patent law, copyright grants exclusive rights in the expression of a protected work, while its theme, plot, and ideas may be freely borrowed. As a result of the idea/expression dichotomy, the idea of running a cooking show is not copyrightable, while the expression of that idea in a particular show may be subject to copyright protection.

The idea/expression dichotomy is at the heart of the debate on whether TV show formats are copyrightable. And it is at this stage that many copyright claims against TV format imitation fail. A copyright infringement occurs if the plaintiff can prove that he owns a valid copyright in a work and that the alleged infringer copied protected elements of that work, making the plaintiff’s and the infringer’s works “substantially similar.” This requires that the infringer has misappropriated protectable expression. If the infringer has only built upon the idea of the plaintiff’s work, the copyright in that work has not been infringed. Even if a court finds that a TV format has copied copyrightable elements from another format, it also has to find both formats to be “substantially similar.”

In addition to the idea/expression dichotomy, other copyright doctrines contribute to the difficulty of protecting TV show formats. Under the scènes à faire doctrine, courts will withhold copyright protection if an expression embodied in a work necessarily flows from a commonplace idea, so that the unprotectable idea preordains the expression. Under the related  merger doctrine, courts will not hold that a work’s original expression is copyrightable if the underlying idea can effectively be expressed in only one way.78 In such cases, the expression and its underlying idea are indistinguishable, and the merged item is not eligible for copyright protection.

Even though the scènes à faire and merger doctrines severely limit the possibility of protecting TV show formats by copyright law,  they can still be protected as a compilation under Section 103 of the Copyright Act.  In fact, the value of a TV format often stems from an interesting combination and symbiosis of various elements.  A collection of preexisting materials or data arranged in a particular way can be copyrightable.  Although facts or ideas cannot be protected by copyright, their compilation may be if the selection, coordination, and arrangement process exhibits a sufficient level of originality.  While it is not unthinkable that a TV format might contain an arrangement of elements that can be protected as a compilation, a typical format which includes the plot, theme, characters, and similar items will simply be a collection of unprotectable ideas.

In general, copyright law is not very sympathetic to granting protection to TV show formats. This becomes apparent when analyzing the case law on published TV formats. In general, courts have been unwilling to grant copyright protection to TV formats. Most claims are dismissed, or settled out of court. When Fox Family, producer of Race Around the World, filed a copyright infringement suit against CBS’s production of The Amazing Race in 2000, the injunction was denied without discussing the copyright claim, and the case was voluntarily dismissed. When, shortly thereafter, CBS sued Fox over an alleged similarity between Survivor (CBS) and Boot Camp (Fox), the case was also dismissed and settled in a confidential settlement agreement.

But even when litigation continues, courts are leaning away from copyright protection of TV formats. In 2003, CBS sought a preliminary injunction against the broadcasting of I’m a Celebrity … Get Me Out of Here! by rival station ABC because of alleged similarities to Survivor, which had been a big success for CBS. Judge Loretta Preska of the U.S. District Court for the Southern District of New York declined to grant the injunction. In an opinion delivered from the bench, Judge Preska found no substantial similarity between copyrightable elements of both formats. She noted that both shows “combined standard, unprotectable elements of reality shows, game shows and other television genres, and used them separately to create the programs.”

She also declined to grant protection to the Survivor format as a compilation, holding that the format consisted of a combination of unprotectable generic ideas. Recognizing that it is very hard to protect TV formats by copyright law, format developers and producers in the U.S. have turned their attention to unfair competition law. Setting aside confusion-based doctrines, which seldom prove helpful, common-law misappropriation torts are of only limited assistance, as they are severely limited by the preemption doctrine and by federal copyright law. Things look more favorable for plaintiffs if the case involves alleged breach of confidence. The litigation over Wipeout and The Glass House included, in each case, allegations that the format imitator hired productions staff from the original format developer in order to benefit from their experience and, potentially, confidential information. Such allegations can be very effective, even if they are only used as a threat in settlement negotiations.

Breach of confidence claims do not help the original format developer in a pure case of published TV format imitation. In practice, in many disputes over published TV format imitation, format imitators do not only observe the format characteristics on TV, but also lure away former staff from the original format developer. The industry has increasingly realized that, given the low protection U.S. intellectual property law affords published TV show formats, breach of confidence claims can be an important weapon against TV format imitation. Apart from employment relationships giving rise to breach of confidence theories, however, U.S. intellectual property law provides TV formats with very limited protection against imitation.

Under European intellectual property law, the situation is somewhat similar, although slightly more heterogeneous. As in the United States, whether European copyright law protects a TV format against imitation depends on whether the format is a copyrightable subject matter and whether substantial copying of copyrightable elements occurred between two formats. While the European Union has increasingly harmonized copyright laws across EU member states over the last 25 years, the European acquis communitaire does not cover all areas of copyright law. One of the areas of European copyright law which has not been harmonized by the legislator  is the required standard of originality. While some European copyright directives have created standards of originality for particular work categories, outside their reach European copyright law fluctuates between an originality standard based on the “author’s own intellectual creation” (originally stemming from Continental European copyright systems) and a weakened “sweat of the brow” approach (originally stemming from the United Kingdom).

In recent years, the Court of Justice of the European Union has initiated an increasing harmonization of the standard of originality. Starting with a decision in 2009, the court has held on several occasions that a work must express “the author’s own intellectual creation” in order to be eligible for copyright protection.

The next few years will show what the relationship between this standard and the British approach really is. As no case law on TV show formats at the EU level exists and as, according to the Court of Justice of the European Union, it is still up to the national courts to determine whether a particular work fulfills the standard of originality, the article will now turn to the TV show format case law of the EU member states.

Germany has developed the most elaborate case law in Europe in this regard. In Germany, a rich academic literature on television-show formats has been developing over the last 20 years, and at least 15 court decisions have dealt with the protection of TV show formats. German courts usually decline to grant copyright protection against TV format imitation. The leading case involved an alleged imitation of a French TV show by a German TV station and was decided by the highest German court in civil matters (the Bundesgerichtshof) in 2003. In the French weekly show L’école des fans, which was initially broadcast from 1977 to 2002, children aged between four and six sang a song by a featured celebrity singer and received a grade for their performance. The celebrity was present in the show and sometimes sang the song along with the child.

In 1993, the German TV station broadcast a German version of the show which continued until 2006. The French company sued for copyright violation, arguing that the German show had copied the sequence of the show, the camera work, the dramaturgy, and the positioning of the candidates from the French version. The German court ruled in favor of the defendant. It held that the French show format was not a copyrightable work protected under German copyright law. While the court acknowledged that putting together the elements of the show format might represent some creative achievement, it held that a mere set of instructions on arranging elements was not subject to copyright protection even if the elements themselves might be copyrightable. As a result, format developers have not been successful in using German copyright law to prevent TV format imitation.

In France, similarly, copyright infringement actions against TV format imitation have often failed either because of the idea/expression dichotomy or because only non-copyrightable features were copied between similar formats.

In the United Kingdom, copyright protection of TV formats against format imitation likewise stands on shaky grounds. Various attempts to include formal format protection in U.K. copyright law failed in the 1990’s. In a TV format case from New Zealand, the Privy Council – New Zealand’s highest court of appeal at that time – held that the subject matter of a particular TV format broadcast in the U.K. (Opportunity Knocks) lacked sufficient certainty and unity to be copyrightable. This has become a landmark case on copyright protection of TV formats in the common-law world: In 2005, the High Court of the United Kingdom restated key principles of that decision in a case concerning magazine format copying, and drew an analogy with TV formats. Also in 2005, the Federal Court of Australia dismissed copyright claims against an alleged copy of a home renovation TV show on similar grounds. As a result of this case law, TV formats are hard to protect under U.K. copyright law.

While many European copyright systems are reluctant to grant protection against TV format imitation, TV format creators have sometimes been more successful by using unfair competition doctrines. Unlike the situation in the United States, in many European countries both intellectual property and unfair competition law are federal in nature. As a result, no preemption doctrine exists to assist courts in delineating either body of law.

The relationship between misappropriation doctrines and intellectual property protection is a complex one in Europe, but misappropriation doctrines frequently play a larger role than in the United States. Despite some harmonization of unfair competition law on the European level, apart from confusion-based claims  the unfair competition laws of various European countries vary greatly in the level of protection they grant against unfair appropriation of a competitor’s product or service. At one end of the spectrum, France has an elaborate system of protection against “parasitic behavior” (concurrence parasitaire). In Germany, it is not unusual to take action against product imitation not only on copyright grounds, but also concurrently on the basis of unfair-competition-based doctrines of unfair copying or slavish imitation. At the other end of the spectrum, U.K. common law has no special provisions prohibiting imitation beyond intellectual-property- or confusion-based claims,  and U.K. judges have upheld the freedom to imitate on many occasions. This heterogeneity in approaches is also reflected in the way national unfair competition laws treat TV format imitation. Under French unfair competition law, TV format copying may be considered either as ordinary “disloyal” competition (concurrence déloyale) or as parasitic behavior (concurrence parasitaire).  Parasitic behavior requires neither confusion on part of the public nor a direct competitive relationship between both companies; but it does require extra elements that are not required for a copyright claim. It is similar to the misappropriation doctrine under U.S. common law, but much more expansive in scope and application.

Given the expansiveness of French unfair competition law, it is not surprising that French courts are comparatively open to applying such doctrines to TV format cases. One case of slavish imitation involves the U.S. format Rescue 911. A leading French public TV channel (Antenne 2) broadcast a reality show called La Nuit des Héros (Heroes’ Night) based on the U.S. format, which Antenne 2 had licensed from CBS. Two months after the show’s host had resigned from the show and from Antenne 2, a private TV channel competitor (TF1) broadcast a similar show entitled Les Marches de la Gloire (Steps of Glory), featuring the same host and using the same staff. Antenne 2 sued TF 1 for unfair competition, including commercial parasitism. In 1993, the Versailles Court of Appeal found TF1 guilty of both disloyal competition and parasitic behavior. The court cited the substantial similarities between the competing shows (same concept, construction, rhythm, cutting pattern, presentation style, illustration of moral values of daily life and sport, etc.) as well as the fact that TF1 had hired not only the same show host but the entire former team from Antenne 2, effectively disrupting Antenne 2’s activities.  In the end, the court ordered TF1 to pay damages of 55 million French Francs, at that time the largest fine ever imposed in France for unauthorized copying of audio-visual content.

In Germany, several courts have had to decide whether TV format imitation violates unfair competition laws, but have usually denied such violation on a variety of grounds. While it may be theoretically possible for TV format copying to violate German unfair competition law in exceptional circumstances, no German court thus far has come to that conclusion. Finally, owing to the limited scope of unfair competition torts in the United Kingdom, in particular the lack of a broad misappropriation tort, the possibility of protecting TV formats by using unfair competition law is rather limited in the U.K.

As this analysis has shown, it is hard to protect TV formats against imitation under U.S. copyright law. In Europe, despite the harmonization of intellectual property laws over the last few decades, TV format imitation disputes are still subject to national laws. As far as pure cases of published TV format imitation are concerned, in Germany and the United Kingdom, TV formats are hard to protect by either copyright or unfair competition laws. While the situation looks similar in France with regard to copyright law, French unfair competition law is slightly more open to format protection, due to its broad “parasitic behavior” misappropriation doctrine, which is not necessarily preempted by French copyright law. When the format imitation also involves hiring staff from the original format developer, breach-of-confidence claims based on unfair competition doctrines may prove effective. This may explain why original format developers in Europe, as in the United States, are increasingly raising unfair competition or breach of confidence allegations, rather than copyright-based claims, against format imitators. In general, however, in all the countries analyzed, protecting TV formats against imitation is a complicated, uncertain, and cumbersome process.

States, Identities and Sovereignty

'Beyond Identities: The Limits of an Antidiscrimination Approach to Equality' by Martha Fineman in (2012) 92(6) Boston University Law Review 1713-1770 compares

the legal culture of equality in the United States with the legal cultures of other constitutional democracies. It looks at two manifestations of equality: equality in its narrow sense – as a nondiscrimination mandate – and equality in its broader, substantive sense – as establishing a positive right to access the social goods or resources necessary to sustain equally valued individuals. The article ultimately argues that the foundational difference between the manner in which equality is understood in the United States and how it is understood in much of the rest of the world arises from the recognition and acceptance in other countries that human need and vulnerability are not only an individual responsibility but also a state responsibility.

The U.S. Constitution is ancient by international standards, and it embodies and idealizes an antiquated political-legal subject and a restricted sense of state responsibility that is unrealistic for defining the appropriate legal relationships that exist between the modern state, the lives of individuals, and the operation of complex societal institutions. Clinging to the idea of a “liberal” constitutional or political legal subject that was prevalent when the U.S. Constitution was drafted has impeded the evolution of a concept of equality that would complement our developing understanding of what is necessary in terms of state responsibility to ensure that all people are treated as “created equal.” This article concludes by offering the concept of the “vulnerable subject” as a more viable and appropriate figure around which to build contemporary policy and law and suggesting some measures legislatures and courts could take to build a more responsive and responsible state that would function to ensure meaningful equality of access and opportunity. 

In discussing the responsive (and responsible) state Fineman comments that

Powerful, resource-giving institutions like the family, corporations, schools, and financial institutions are both constructs of the state – brought into existence and maintained under the legitimating authority of law and the regulatory machinery of the state – and also the way in which the state constitutes itself. It is the legitimating authority of law and the regulatory machinery of the state that give content and consequences to these institutions and in doing so, illustrate the state’s established monopoly over legitimate means of coercion.

Any contemporary call for a more responsive state must begin with the observation that the choice is not one between an active state on one hand and an inactive state on the other. The state is always at least a residual actor. The choice is one between the state exercising responsibility through the structuring and regulation of its various institutions or adopting of a policy of benign neglect and abandonment of responsibility in which its inattentiveness facilitates and enables patronage, spoilage, and corruption by powerful individuals and organizations. Insistence that the state be restrained and government be small, as is prominent in American politics today, ignores the many ways in which the state, through law, shapes and governs institutions from their inception to their dissolution.

The state must also be understood as a political construct as well as a functioning entity, and as such it expresses certain preferences and values that should be explored for their accuracy and desirability. Our current conception of the state as being in need of restraint is built around the privileging of autonomy in which individuals, institutions, and the state itself are viewed as isolated entities, appropriately separated from one another. This perspective reifies all three, particularly the individual and the institutional, which are viewed as natural and ungovernable rather than socially constituted. The paramount value under this conception is liberty, whether it is expressed as mandating autonomy for the individual or a free market for the institutional, and the state is the enemy. In consequence, this perspective limits the development of understandings of the potential for the state to effectively regulate institutions, modifying or structuring them in more responsive ways. A restrained state is a state that can easily avoid assuming responsibility for inequalities and unwarranted privilege because its position as the ultimate societal authority, while recognized, is ideologically contained. It is important to concede both that the state can be and has been abusive, overreaching, and authoritative, and that avoiding this overreaching requires vigilance. Nonetheless, advocating vigilance is not the same thing as urging abandonment or retreat on the part of the state.

In contrast to the restrained state, the responsive state accepts responsibility for its operation and also that of the societal institutions which it has helped bring into existence. The responsive state views individuals and institutions as intertwined, symbiotic, and interdependent with each other and also with the state and its apparatus. Institutions are shaped through law and their operation profoundly affects individual options, opportunities, and well-being and the ability of the state to effectively govern. State responsiveness recognizes that the intertwining of the individual with the institutional can be either generative or destructive, warranting supervision and correction by the only entity capable of doing so: the modern state. This state, in turn, should be understood as a cluster of relationships, institutions, and agencies reflecting and shaping public norms and values through law and policy. Those relationships include the relationship between citizen and state, as well as between state and institutions. In a responsive state individuals realize that they too comprise the state and instead of standing outside of it they have a responsibility to see it is working effectively. Perhaps we could call this relationship “democracy.”

The roadblocks to realizing a truly democratic and responsive state in the United States are many. Responsiveness is under suspicion, particularly if it costs money. Recently, the economic recession has served as an excuse and provided political cover for arguments to further dismantle what was an already weak commitment to social welfare programs. However, the real hurdles to the realization of the idea of a responsive state are ideological, epitomized in the particularly distorted vision of what constitutes autonomy, independence, and individual responsibility that has overtaken political rhetoric and action in the United States.

To overcome the obsession with autonomy and individualism that has impoverished American political discourse and resulted in the cynicism and disaffection of so many citizens, it will be important to emphasize that the basic foundational premise of the responsive state is inclusive, collective, and radically democratic and egalitarian. The state, in this view, is constituted for the “common benefit” and, thus, any privilege or favoritism resulting from state action or concession must be justified in those terms. The focus should be on the state’s responsibility for and relationship to those who are privileged, as well as those who are disadvantaged. Structures that have served to unequally allocate society’s resources to the benefit of the few must be monitored and reformed. To do this, it will be necessary to ensure more transparency in law and policymaking and to provide far greater opportunities for public assessment of legislative and executive actions so that the idea of a democratic correction for political impropriety is more than just an empty promise in political science textbooks.

Initially, the common-benefit premise would have to be applied both as a basis against which to assess the appropriateness of existing privilege in society and as a means by which to analyze the generation of new forms of privilege. This Article began by documenting the vast and growing inequality in American society. The construction and valorization of the restrained state has helped to facilitate that inequality, and its resultant privileging should be assessed critically to determine whether policies that perpetuate the status quo are justified. Politicians will tell us that this is an impossible task when what they really mean is that it will place them in an uncomfortable position, particularly with those who are most privileged. The answer to their concerns is to reiterate that the responsive state begins and ends with the concept of political responsibility. This responsibility is placed on politicians and state functionaries to ensure access to and opportunities within the institutions that have been entrusted with generating and allocating wealth, power, and position in a market society. Political responsibility precedes and is an essential complement to the idea of personal responsibility, which focuses only on individual autonomy and free-market ideals.

In understanding how we might conceive of a responsive state, it is important to realize that just like the individual and the institutional, the state is vulnerable. This is true whether the state is perceived as restrained or as responsive. Powerful entrenched interests can hijack even the most egalitarian impulse for their own purposes. Governmental structures and practices can facilitate such distortions. As recent arguments in favor of corporate subsidies and advantages for the wealthy have illustrated, assertions that privileging is done for the common good are susceptible to manipulation. This is particularly true in a political system that is contentious, obfuscating, and renders legislators and executives ineffective by tolerating processes that are prone to manipulation and distortion of facts and arguments rather than conducive to problem solving and cooperative bipartisanship. The challenge is how to structure state responsiveness in light of its vulnerabilities, namely the possibility of capture and corruption, and the current tendency of the political system to actually provide incentives for overreaching, repressive tactics, and democracy-frustrating “hyper-partisanship.”

In Till v. Wheeler [2008] QDC 74 McGill DCJ considered a pseudolaw argument in which Till claimed to enjoy 'sovereign immunity' as a sovereign citizen. 

The judgment states 

[4] On 14 November 2007 a document by way of outline of argument on behalf of the appellant was filed in each matter. The two documents are identical, and purport to be a declaration by the appellant. The contents are essentially unintelligible, and do not constitute anything in the way of a coherent argument addressing any of the grounds in either notice of appeal, or advancing anything relevant to the question of whether either appeal should be allowed. He stated, for example: “I am a sovereign being living in a sovereign estate in the greater universe continuum. ... Sovereignty is not subject to law, it is the law, and its greatest claim to power is that IT and nothing else is the law. ...” The closest this comes to anything in the way of an intelligible legal argument is an assertion that the appellant is entitled to sovereign immunity. 

Sovereign immunity 

[5] At common law the position of a sovereign was clear. “It is clear law that the courts of this country will not implead a foreign sovereign,[1] that is, they will not by their process make him against his will a party to legal proceedings, whether the proceedings involve process against his person or seek to recover from him specific property or damages.” – Van Heyningen v Netherlands-Indies Government [1949] St R Qd 54 at 60. This comes from the notion that the authority of the courts derived from the sovereign who is not superior to a foreign sovereign, so that disputes between two sovereigns cannot be decided in the court of one of them. “For this purpose all sovereigns are equal. The independent sovereign of the smallest state stands on the same footing as the monarch of the greatest.” This extended to prosecutions of criminal offences in the ordinary courts 

[6] The doctrine of sovereign immunity was codified in England by the State Immunity Act 1978. By that time, there had been a certain amount of development in the doctrine so far as it related to the capacity to bring civil actions against foreign governments or foreign states in the domestic courts, and the legislation was principally directed to those issues.  Following this, in 1982 the Commonwealth Attorney-General referred to the Commonwealth Law Reform Commission the issue of sovereign or state immunity, and in 1984 the Law Reform Commission issued a report on “foreign state immunity” which included a draft of suitable legislation. The report was principally directed to the question of the extent to which activities of foreign states, particularly activities which were essentially of a commercial nature, should expose the states or bodies associated with the states to the ordinary jurisdiction of the courts. 

[7] By the 1980s there was relatively little consideration given to the issue of personal immunity for individual sovereigns, but the question of heads of state was considered, and it was recommended at paragraph 163 that their position be best dealt with by equating their status for the purposes of domestic courts with heads of diplomatic missions. The position of diplomats had become well established by a series of international conventions, culminating in the Vienna convention on diplomatic relations, which was adopted in Australia by the Diplomatic Privileges and Immunities Act 1967, s 7(1). Article 31 of the convention provides for diplomatic agents, which includes heads of mission, immunity from domestic courts in relation to inter alia criminal matters. 

[8] The Foreign States Immunities Act 1985, which was enacted following the report of the Commission, essentially adopted it, and provided in s 36 that a foreign head of state, which would include a foreign sovereign, would have the same immunity as a head of mission. Accordingly now, by statute, a foreign sovereign has immunity from the criminal courts in Australia. 

[9] The difficulty facing the appellant in relation to this assertion, however, is the question of proof. In some circumstances the identity of a sovereign may be sufficiently notorious that proof will be unnecessary and the court will take judicial notice of the relevant fact. In other circumstances, at common law the court acted on a certificate from the relevant minister or department as to the recognition of the relevant sovereign by Australia. In Mighell (supra) the court acted on a certificate as to the status of the Sultan of Johore sent on behalf of the Secretary of State for the Colonies by an official of the Colonial Office. In Van Heyningen (supra) the court acted on a letter from the Acting Minister for External Affairs as to the status of the Dutch East Indies. This has been said to be the only procedure by which the question of whether a sovereign is a sovereign may be proved for the purposes of a proceeding in court. 

[10] The 1985 Act also provides the appropriate mechanism for proof that a particular individual is a head of a foreign state for the purposes of the Act: by s 40, the Minister for Foreign Affairs may certify in writing who is or was the head of a foreign state for the purposes of the Act, and may delegate the power to so certify. By subsection (5), such a certificate is admissible and conclusive evidence on the point. Accordingly, the appropriate method of proof is to produce a certificate from the Minister or the Minister’s delegate. The appellant has provided no evidence from the Minister for Foreign Affairs or his department that he is a sovereign recognised by Australia. Although the Act makes the certificate conclusive, it does not expressly provide that this is the only method of proof, but it does not expressly authorise any other method of proof, and it seems to me that the common law position laid down by Lord Atkin would apply, at least in any case where the position was not so plain as to justify the taking of judicial notice. 

[11] Even if this is not correct, and it would be possible to prove, by historical materials or other documents or evidence properly put before the court, that the appellant was a sovereign, there was no evidence in the present case to that effect put before the magistrate, nor any proper attempt to put any such evidence before me. A mere assertion by an individual or on behalf of an individual that he is sovereign is not conclusive, or indeed of any weight. The claim of sovereign immunity must be rejected.

US Privacy

The 236 page Open Book: The Failed Promise of Information Privacy in America by James Nehf argues that

With financial and other personal information about us in countless databases, and with companies such as Facebook and Google collecting data about their users to drive profits and satisfy expectations of shareholders, there is a pervasive concern that we have little control over access to potentially harmful uses of that information. Moreover, many consumers believe that little can be done to address the problem except to give out as little information as possible and try our best to monitor our credit reports and financial accounts in an effort to detect unexpected activity if it occurs.

By not enacting strong information privacy laws in the non-governmental sector, the U.S. Congress and the fifty states have effectively defaulted to a market-based model of privacy protection that relies heavily on individual self-policing and market incentives as the primary means of information control. A self-policing privacy protection model could be effective if a market for information privacy were possible — if well informed individuals could shop their privacy preferences effectively.

This book-length paper examines the reasons why this is highly unlikely and why privacy laws in the United States (or the lack thereof) will not protect legitimate consumer interests in the years to come. Part 1 shows why information privacy is a social or societal value and not just an individual concern. Part 2 examines in more detail why individualist, market approaches to privacy protection are destined to fail. Part 3 continues this theme and examines research in behavioral sciences about how consumers make decisions in market transactions. Part 4 concludes by critiquing the “new” privacy framework released by the Federal Trade Commission. While the framework contains hopeful rhetoric calling for greater emphasis on societal solutions to privacy concerns, most of the framework continues to rely heavily on individual notice and choice in transactions that involve exchanges of personal information.

Credit Reporting Code

The national Privacy Commissioner has written to the Australian Retail Credit Association (ARCA) with a formal request for ARCA to develop a code of practice about credit reporting - a CR code - by 19 April 2013 and to apply to have that CR code registered under the amended Privacy Act 1988 (Cth).

The Commissioner's request is authorised under s 26P in Schedule 3 of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth).

ARCA can seek an extension of the development period. It must ensure that it meets the requirements of s 26Q of the Act, including making a draft of the CR code publicly available, inviting the public to make submissions to ARCA on the draft within a specified period (of at least 28 days) and giving consideration to any submissions made within the specified period.

Under s 26N(1) of the Act a CR code is a written code of practice about credit reporting.  Section 26N(2) provides that the CR code must:

• set out how one or more of the provisions of Part IIIA of the Privacy Act are to be applied or complied with

• make provision for, or in relation to matters required or permitted by Part IIIA to be provided for by the registered CR code

• bind all credit reporting bodies

• specify the credit providers that are bound by the CR code, or a way of determining which credit providers are bound

• specify any other entities subject to Part IIIA that are bound by the CR code, or a way of determining which of those entities are bound. 

Under s 26N(3)  the CR code may also:

• impose additional requirements to those imposed by Part IIIA, so long as the additional requirements are not contrary to, or inconsistent with, that Part

• deal with the internal handling of complaints

• provide for the reporting to the Commissioner about complaints

• deal with any other relevant matters. 

Under s 26N(4) of the Privacy Act, a CR code may be expressed to apply differently in relation to:

• classes of entities that are subject to Part IIIA

• specified classes of credit information, credit reporting information or credit eligibility information

• specified classes of activities of entities that are subject to Part IIIA. 

Under s 26L of the Act, an entity bound by the registered CR code must not do an act, or engage in a practice, that breaches the code.

A breach of the registered code by an entity bound by that code will be an interference with privacy under s 13(2)(b) of the Act, which may be the subject of a complaint by an individual under s 36 of the Act or an ' own initiative' investigation by the Commissioner under s 40(2) of the Act.

Privacy Damages

A determination by the national Privacy Commissioner on damages regarding privacy.

In 'S' and Veda Advantage Information Services and Solutions Limited [2012] AICmr 33 the Commissioner has determined that Veda Advantage Information Services and Solutions Limited (Veda) - the credit referencing giant that boasts over 15 million records with credit data on 16.5 million credit active individuals and 4.4 million businesses -

interfered with the complainant's privacy by failing to take reasonable steps to ensure that the personal information contained in the complainant's credit information file was accurate, up to date, complete and not misleading, in breach of s 18G(a) of the Privacy Act 1988 (Cth). Veda also provided the complainant's credit report, which contained misleading information, to other entities in breach of s 18R(1) of the Privacy Act.

Veda has been ordered to

• apologise in writing to the complainant within four weeks
• amend the complainant's credit information files in compliance with s 18G(a) of the Privacy Act by removing duplicated enquiry listings on cross-referenced files that are similar (but not identical to the initial listing) where both resulted from the same credit application
• cease to provide the complainant's credit report to any entity, prior to the removal of the similar enquiry listings
• pay the complainant $2,000 for non-economic loss caused by the interferences with the complainant's privacy.

The Commissioner also recommends that Veda -

• develop revised training packages and user information guides for subscribers, which clearly address the issue of similar enquiry listings and how to interpret them
• engage an independent auditor to assess Veda's cross-referencing processes, both the multiple identity report (MIR) option and the non-MIR alternative, in compliance with s 18G(a) of the Privacy Act.
• develop revised training packages and user information guides for subscribers, which clearly address the issue of similar enquiry listings and how to interpret them.

In 2009 the complainant argued that Veda's practice of duplicating credit enquiries on the complainant's credit information files suggested to subscriber credit providers that she had submitted more credit applications to credit providers than she had.

The complainant considered that the credit enquiries were "unnecessarily repeated and incorrect" and that provision to Veda's subscribers of misleading information concerning her credit worthiness resulted in her being refused credit or losing the opportunity to obtain credit on more favourable terms. She claimed that Veda did not respond appropriately once it became aware that data may have been inaccurate and/or misleading. She sought a declaration by the Commissioner that she is entitled to compensation of $100,000-$150,000 for economic and non-economic losses. She also requested that her personal information be listed correctly and not in a misleading manner.

Compensation under the determination is consistent with that in ‘D' and Wentworthville Leagues Club [2011] AICmr 9, where the club was ordered to pay the complainant $7,500 for non-economic loss caused by the interference with the complainant's privacy (ie providing information to an ex-partner). That determination was released in December 2011; the complaint was made in November 2008.