Hamburg Datenschutz v Google

Bloomberg reports that the Hamburgischen Beauftragten für Datenschutz und Informationsfreiheit (HmbBfDI or Datenschutz) is planning to order Google to change its data-handling practices in the near future on the basis that the US-based search engine service is violating German data protection rules by compiling customer data without asking for consent.

Datenschutz executive Dr Johannes Caspar is reported as commenting that

By compiling data from its different services under a single user ID, Google has access to an in-depth personal profile of its users. 

Google has to respect its users’ right of self-determination

Last year the Datenschutz imposed a €145,000 euros for collecting wireless-network data over 2008 to 2010 as part of Street View.

The latest expressions of disquiet follow CNIL's imposition of a €150,000 penalty in January, an earlier €900,000 penalty in Spain by the Agencia Española de Protección de Datos (AEPD) noted here and a €1m penalty in Italy over Street View.

Bloomberg notes that.

The EU is seeking to empower national agencies to go beyond current penalties, to make sanctioning global companies more effective. Lawmakers are weighing proposals to fines of as much as 100 million euros or 5 percent of yearly global sales for privacy violations.

The report coincides with the 'right to be forgotten' judgment discussed here.

Comparative Migration Regimes

'Comprehensive Immigration Reform(s): Immigration Regulation Beyond Our Borders' by Stella Burch Elias in (2013) 39(1) Yale Journal of International Law comments

American lawmakers, jurists, and scholars are vigorously debating the future direction of immigration regulation in the United States. Following the passage on July 27, 2013 of Senate Bill 744, some kind of comprehensive reform seems increasingly likely. Immigration law is inherently inter-jurisdictional and transnational, but thus far the conversation about immigration reform has failed to look beyond our own national borders for alternative models or practices. 

This Article seeks to broaden the immigration regulation debate by contrasting recent developments in immigration regulation in the United States with those in other countries with federal systems. In three federal nations that traditionally had widely divergent approaches to immigration regulation — Germany, Australia, and Canada — strikingly similar multi-tiered, multi-governmental systems of immigration regulation have emerged in recent years. 

This Article proposes that the future direction of immigration regulation in the United States should consider the German, Australian, and Canadian models of immigration law and policy to shed light on a range of potentially desirable legislative, regulatory, and policy options. The German, Australian, and Canadian experiences strongly suggest that any reform of our own immigration laws should permit states and localities to play a greater role in immigrant selection, a continued role in immigrant inclusion, and more limited role in the enforcement of immigration laws that exclude immigrants from the country.

Analogies and Information Privacy

'Intellectual Property's Lessons for Information Privacy Law' by Mark Bartholomew in (2014) 92 Nebraska Law Review 746-798 comments 

 There is an inherent tension between an individual’s desire to safeguard her personal information and the expressive rights of businesses seeking to communicate that information to others. This tension has multiplied as consumers generate and businesses collect more and more personal data online, forcing efforts to strike an appropriate balance between privacy and commercial speech. No consensus on this balance has been reached. Some privacy scholars bemoan what they see as a slanted playing field in favor of those wishing to profit from the private details of other people’s lives. Others contend that the right in free expression must always trump the diffuse, emotional concerns at the heart of privacy interests. What is missing from the debate is a detailed examination of the ways in which other legal regimes resolve their own tensions with the First Amendment. Intellectual property law offers a particularly valuable example. Rather than adopting a one-size fits all approach, intellectual property law has advanced a variety of approaches to reconciling property rights in intellectual creations with free speech rights. This Article describes those various approaches and maps them on to the different, yet similar terrain of information privacy regulation. This comparison reveals that courts and legislators have a number of potential tools to resolve the privacy/free speech divide.

OAIC deconstructed

Tonight's Budget papers indicate

The Government will achieve savings of $10.2 million over four years by establishing new arrangements to deliver privacy and Freedom of Information (FOI) functions.

Privacy functions will be undertaken by the Privacy Commissioner as an independent statutory position within the Australian Human Rights Commission.

External merits review of FOI decisions will be undertaken by the Administrative Affairs Tribunal, while responsibility for handling FOI complaints will be combined with the Commonwealth Ombudsman function. The Attorney General's Department will take responsibility for the issuance of FOI guidelines, collection of statistics and provision of explanatory material on the operation of the Freedom of Information Act 1982.

The savings from this measure will be redirected by the Government to repair the Budget and fund policy priorities.

The Attorney-General's media release (under the title 'Streamlined arrangements for external merits review') states that

The Abbott Government announced today its intention to streamline and simplify Australia’s external merits review system. The reforms will remove unnecessary layers of bureaucracy and deliver an improved and simplified merits review system for all Australians. This is in line with the Coalition’s commitment to streamline government and reduce duplication to deliver efficient, effective government. The measure is expected to save $20.2 million over four years.

From 1 July 2015, key Commonwealth external merits review agencies will be amalgamated — namely, the Administrative Appeals Tribunal (AAT), Migration Review Tribunal and Refugee Review Tribunal, Social Security Appeals Tribunal and the Classification Review Board.

Merits review of Freedom of Information (FOI) matters, currently undertaken by the Office of the Australian Information Commission (OAIC), will also be transferred to the AAT from 1 January 2015.

The merger of merits review agencies will provide an accessible “one stop shop” for external merits review and will ensure that end-users have a review option that is fair, less confusing, just, economical, informal and quick.

Most states and territories have now established a similar ‘super tribunal’ for merits review, with considerable success.

The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants. The AAT will receive a funding boost to assist with the backlog and to better meet acceptable timeframes

Under the new arrangements, the Office of the Privacy Commissioner will be established as a separate statutory office and will continue to be responsible for the exercise of statutory functions under the Privacy Act 1988 and related legislation.

The Government acknowledges the valuable contribution of Professor John McMillan AO as the Australian Information Commissioner and Dr James Popple as the Freedom of Information Commissioner and the staff of the OAIC.

The Government is committed to an external merits review system that is more efficient, less complicated and more effective.

Change to the legislation will need support in the Senate.

The OAIC has released the following statement under the heading 'Australian Government’s Budget decision to disband OAIC' -

Statement by the Australian Information Commissioner (John McMillan), Freedom of Information Commissioner (James Popple) and Privacy Commissioner (Timothy Pilgrim).

We acknowledge the Australian Government’s Budget decision on Tuesday 13 May 2014 to disband the Office of the Australian Information Commissioner (OAIC) by 1 January 2015.

We note that the Freedom of Information Act 1982 (FOI Act) and the Privacy Act 1988 (Privacy Act), which confer valuable information rights on the Australian community, will continue to operate (as amended to reflect the abolition of the OAIC). The Privacy Act will continue to be administered by the Privacy Commissioner and supporting staff from an office based in Sydney. The FOI Act will be administered jointly: by the Attorney‑General's Department (advice, guidelines, annual reporting), the Administrative Appeals Tribunal (merits review) and the Commonwealth Ombudsman (complaints). The information policy advice function currently discharged by the OAIC will cease.

We are committed to ensuring that the FOI Act and Privacy Act continue to operate effectively prior to 1 January 2015 and that a smooth transition to the new arrangements will occur.

The Commissioners take this opportunity to draw attention to the substantial achievements of the OAIC since its commencement on 1 November 2010.

Information Policy

• Published the Principles on open public sector information (2011) (Open PSI Principles) that are widely referred to across government 

• Published two reports that promote Open PSI and the development of a national information policy — Towards a national information policy (2010), and Understanding the value of public sector information in Australia (2011) 

• Conducted a survey and published two reports of the information management practices of 191 Australian Government agencies regarding their compliance with the FOI Act Information Publication Scheme and the OAIC’s Open PSI Principles — Information publication scheme: survey of Australian Government agencies (2012), and Open public sector information: from principles to practice (2013) 

• Promoted key information policy concepts that now have a defining influence in government agency information practices, including that government information is a national asset to be used for public purposes, and concepts of ‘public sector information’, ‘open data’ and ‘proactive disclosure’ 

• Hosted a National Information Policy Conference (2011) attended by over 300 people 

• Liaised with other government agencies to build a strong inter‑agency network for coordinating information policy developments

Freedom of Information

• Resolved 1191 applications for Information Commissioner review (between 1 November 2010 and 30 April 2014), publishing reasons for decision in 186 of those cases 

• Closed 394 FOI complaints 

• Dealt with 1237 applications for an extension of FOI processing time for complex and voluminous FOI requests

• Dealt with 4521 phone enquiries and 1891 written enquiries about FOI 

• Conducted an own motion investigation into administration of sensitive and high profile FOI requests to the Department of Immigration and Citizenship 

• Published clear and comprehensive FOI guidelines (250 pages), 16 Fact Sheets for the public, and over 30 detailed agency guides on processing times, calculating charges, administrative access, third party objections, anonymous requests, statements of reasons, redaction, FOI training, website publication, disclosure logs, sample letters and frequently asked questions 

• Conducted a public consultation on FOI charges and prepared a lengthy report to Government (2012)

• Made two substantial submissions to the review of the FOI Act by Dr Allan Hawke AC in 2013 (many of the OAIC’s reform proposals were endorsed by the Review) 

• Promoted the ideals of transparency, accountability, participation and better decision–making that underlie the FOI Act

Privacy 

• Closed 5303 privacy complaints 

• Dealt with 34,739 phone enquiries and 5845 written enquiries about privacy

• Conducted 91 own motion investigations and 10 audits 

• Received 193 data breach notifications 

• Implemented substantial changes to the Privacy Act that commenced in 12 March 2014, by undertaking or commencing preparation of nearly fifty legislative instruments, codes (including a comprehensive Credit Code), guideline statements and information sheets, and conducting an extensive public consultation process (receiving more than 90 public submissions on draft guidelines) 

• Published guidance on emerging privacy issues, including Data Breach Notification Guidelines (2012), a Guide to Information Security (2013) and Mobile privacy: a better practice guide for mobile app developers (2013) 

• Conducted and published a Community Attitudes to Privacy survey (2013) 

• Annually hosted Privacy Awareness Week, and arranged participation by government agencies and private sector bodies (over 200 in 2014) 

• Administered the Asia Pacific Privacy Authorities Forum, that includes members from the United States, Mexico, Hong Kong, South Korea, Canada and New Zealand

• Participated in global forums that aim to build a coordinated approach to regulating cross‑border data flows and challenges, including the Global Privacy Enforcement Network under the auspices of the OECD, and the APEC Cross Border Privacy Enforcement Arrangement

Corporate, public relations and community engagement

• Established an integrated office and scheme for managing freedom of information, privacy and information policy advice 

• Hosted regular meetings of the Information Officers Contact Network for agency FOI and privacy officers, attended by approximately 130 agency staff 

• Convened the Information Advisory Committee and the Privacy Advisory Committee, that comprise senior government officers and external representatives with experience in archives, libraries, journalism, banking, medicine, trade unions, copyright law, information technology, disability access and community services 

• Managed a dynamic website that receives up to 1.5 million visits annually 

• Provided policy advice to agencies or organisations on 715 occasions, made 113 submissions to inquiries and undertook 100 consultations

OAIC resources and performance

• The OAIC appropriation for 2013–14 is $10.6 million. 

• At the end of March 2014 the OAIC had 63.3 Full‑Time Equivalent (FTE) staff in budget‑funded positions. An additional 15.82 FTE staff are funded under Memorandum of Understanding arrangements with other agencies to undertake specific privacy work such as work relating to the eHealth initiative 

• The OAIC’s workload has steadily increased in most areas over the last two years by between 10‑20%. Privacy complaints are set to increase by over 100% in 2013–14, written enquiries by 20% and website visits by 27%. 

• The OAIC completion rate has continued to improve — for example, by 31 March 2014 the completion rate for IC reviews had climbed to 4.7 cases per day (from 0.37 cases per day in the first 18 months), the FOI complaint closure rate to 1.1 per day (from 0.21 per day in the first 18 months) and the privacy complaint closure rate to 20.1 per day.

Unsurprisingly, the OAIC has continued to conflate activity with outcome.

Vulnerability

'Vulnerability, Resilience, and LGBT Youth' by Martha Albertson Fineman in Temple Political & Civil Rights Law Review (forthcoming) comments 

The vulnerability analysis presents a comprehensive vision of the human being, a vision that allows the construction of a universal political or legal subject and also defines state responsibility toward that subject. In this article I discuss the vulnerability analysis in regard to some of the issues facing LGBT youth and the role of institutions like the family and school in building the necessary resilience necessary for individuals to survive and thrive in society. Vulnerability and resilience can be placed in institutional contexts. The places and spaces where resilience is produced — such as family, community, and school, form the geography of childhood and youth. Those institutions are failing LGBT youth, but a vulnerability analysis allows us to see that this failure is the result of structural flaws and inadequacies inherent in an ideology valorizing family privacy, parental rights, individual liberty, and choice.

Fineman argues that

On January 19, 2013, an article written by Michael Schulman in the New York Times highlighted the increasing sexual and gender diversity of students in many universities across the United States. Entitled “Generation LGBTQIA,” Schulman described how the more “traditional” lesbian, gay, bisexual and transgender (LGBT) grouping has been augmented by students seeking new terms and categories to express diverse understandings of sexuality, gender, physical bodies, and evolving identities.

The “Q” in LGBTQIA can refer to questioning—indicating an individual who does not clearly identify with existing categories or who is in the process of exploring their sexual and/or gender identity. “Q” can also indicate “queer,” a term that was re-appropriated and reclaimed by activists in the 1990s and is sometimes used as an all-inclusive umbrella term, as well as referring to an academic perspective of inclusion. “I” indicates “intersexual,” someone whose anatomy is neither male nor female. The addition of “A” can stand for “ally,” indicating a friend of gay rights, and often a person who identifies as heterosexual. “A” can also connote “asexual,” representing those who are celibate or chaste, and perhaps even those who have low libidos.

Schulman also described a student group recently created at the University of Pennsylvania that found even the expansive LGBTQIA grouping inadequate. Focusing on gender variations, the group is called Penn Non-Cis, short for “cisgender,” a term described as denoting someone whose gender identity matches his or her biology.” In the article, bi-gender was used to refer to an individual with both traditional masculine and feminine qualities—the term was seen as more fluid than the designation of transgender, yet less vague than “gender queer.” This creation of new terms and categories of sexual identity and gender expression is an exciting example of how human beings can intentionally create nurturing social spaces in which to foster community and a sense of belonging. These students are accomplishing this by rejecting existing categories and moving away from static identities. They also seem to recognize that although biology, sex, sexual difference, and gender are different inquiries, to a large extent, they must be studied together and in relation to each other.

The amalgamation of interests and creation of alliances with people across differences reflected in “Generation LGBTQIA” is also an effective political strategy. The students have varied individual sexual and gender identities, but emphasize similarities rather than differences in order to reach others who share their interest in broader social justice questions that affect everyone. But even more promising from my perspective as a vulnerability theorist is the fact that the students are challenging the adequacy and effectiveness of existing theoretical and conceptual organizations of identity categories.

Even though they do not articulate their efforts in these terms, they are constructing a universal framework to provide an explanatory power that they cannot find in existing distinct classifications. While the students’ approach remains built around sexual identities, by expanding the frame to potentially include all possible positions, preferences, and perspectives, they have created a universal (or all-inclusive) sexual subject. The differences among the students are not erased, but enfolded within a broad category that is relevant to everyone. As such, it invites a more inclusive and comprehensive approach to issues involving sexuality and gender.

Of course the construction of the sexual subject, as inclusive as it is on questions relating to sexuality, is not comprehensive enough to suggest an ethical or political approach to the range of human characteristics and activities that comprise the human condition. Consideration of the social position of the sexual subject would not necessarily bring discussions of economic or political inequality to the forefront of debates around social policy and law, for example. For a legal or political theorist interested in these broader concepts of equality, a more comprehensive universal understanding of subjectivity is necessary to engage the creeping fetish for individual liberty or autonomy so prevalent today in the United States. These concepts are fundamental components facilitating forces such as globalization, privatization, and corporate capitalism that drain resources from programs that address human need, redirecting them to corporate and business interests and wealthy individuals.

Of course, one could add other categories of identity to the sexual subject, hoping to capture the economic and political dimensions, and thus create a complex or intersectional subjectivity. However, that tactic would undermine the universality of the sexual subject, bringing us back to a fragmented approach, obscuring underlying structures of inequality that transcend specific identities, and evading current equal protection and antidiscrimination law and politics. The vulnerability analysis I have been developing over the last few years presents a comprehensive vision of the human being, a vision that allows the construction of a universal political or legal subject and also defines state responsibility toward that subject. In the pages that follow I will discuss the vulnerability analysis in regard to some of the issues facing LGBT youth and the role of institutions like the family and school in building the necessary resilience for individuals to survive and thrive in society. Vulnerability and resilience can be placed in institutional contexts. The places and spaces where resilience is produced — such as family, community, and school, form the geography of childhood and youth. Those institutions are failing LGBT youth, but a vulnerability analysis allows us to see that this failure is the result of structural flaws and inadequacies inherent in an ideology valorizing family privacy, parental rights, individual liberty, and choice.

In discussing vulnerability Fineman comments Often narrowly understood as merely “capable of being physically or emotionally wounded,” vulnerability should be recognized as the primary human condition. As embodied beings we are, by that definition, constantly vulnerable; we are always susceptible to harm, whether caused by disease and physical decline or natural or manufactured disasters. But human vulnerability is manifested socially as well as physically. Our innate dependency on the provision of care by others when we are infants and often when we are ill, aged, or disabled constitutes the social and relational aspect of vulnerability. In this regard human vulnerability is understood as providing the impetus for the creation of relationships and institutions and necessitating the formation of families, communities, associations, and even political entities and nation-states.

If vulnerability is understood to be an inherent and inevitable aspect of what it means to be human, and also as the source of social institutions and relationships, it must necessarily be the foundation for any social or political theory. The universal political and legal subject we construct should reflect the reality that we all live and die within a fragile materiality that renders us constantly susceptible to both internal and external forces beyond our control. The social contract that binds society together should be fashioned around the concept of the vulnerable subject, a construct that would displace the autonomous and independent liberal subject that currently serves to define the core responsibilities of policy and law.

Since it encompasses all facets of human existence, using vulnerability as a heuristic tool can facilitate the construction of an effective counter-discourse with which to confront neo-liberalism’s fixation on personal responsibility and insistence that only a severely restrained state can be a responsible one. Attention to universal vulnerability underscores the argument that significant structural changes are necessary to realize greater equality in society. A legal or political argument based on universal vulnerability would not be like a typical individualized rights-based argument organized by the concept of impermissible discrimination based on identity categories such as sex, race, or ethnicity. It would demand a more responsive state and closer monitoring of societal institutions. It would also call critical attention to the deficiencies of institutions and the failure of state regulation rather than the deficiencies and failures of individuals.

ACTA

After today's excellent RegNet seminar by Duncan Matthews on 'The TPPA: Implications for Access to Medicines in Comparative Perspective' at the ANU I'm rereading his 'The Rise and Fall of the Anti-Counterfeiting Trade Agreement (ACTA): Lessons for the European Union' (Queen Mary School of Law Legal Studies Research Paper No. 127/2012), which

revisits the arguments, debates and controversies that led up to the European Parliament’s rejection of the Anti-Counterfeiting Trade Agreement (ACTA), reflects on what might happen once the Court of Justice of the European Union (CJEU) has clarified the implications of the agreement for fundamental rights and freedoms in the European Union (EU), and evaluates the implications for the EU of the scrutiny of international agreements with provisions on intellectual property rights in the future. The article undertakes these tasks in four stages. First, it examines how Parliament was able for the first time to exercise its power of veto over a draft international agreement negotiated by the Commission on behalf of the EU under the consent procedure of the Treaty on the Functioning of the European Union (TFEU). Second, it reconsiders the rationale for ACTA in terms of why the agreement was perceived as being necessary in the first place, given that other international fora existed for intellectual property enforcement issues to be addressed. Third, the article reflects on the reasons why ACTA became so controversial that it became the focus of unprecedented public concern in the EU and its Member States, which particular attention paid to lack of transparency in the negotiating process, concerns that fundamental rights and freedoms in the EU would be undermined by provisions of ACTA, and concerns that the agreement would conflict with the acquis communautaire of the EU and with the WTO TRIPS Agreement. Fourth, the article concludes by considering what lessons can be learned for the future.

Matthews comments

On 4 July 2012, the European Parliament, in plenary session, rejected the Proposal for a Council Decision on the conclusion of the Anti-Counterfeiting Trade Agreement (ACTA). he vote was unprecedented. The Lisbon Treaty on the Functioning of the European Union (TFEU) had entered into force on 1 December 2009 and, under the TFEU, international trade agreements now require Parliament's consent. The ACTA vote was the first time that Parliament had exercised its new powers under the consent procedure to reject such an agreement. Given that the ACTA negotiating process had begun on 23 October 2007, almost two years before the TFEU had entered into force, this could not have been foreseen. Nor could it have been anticipated that the highly technical set of provisions on intellectual property enforcement contained in ACTA would be transformed into widespread public concern about such emotive issues as lack of transparency during the negotiating process and the implications of the agreement for fundamental rights and freedoms in the European Union (EU). Yet, it was precisely these public concerns that became to be intertwined with the more technical aspects of the agreement, in particular the issue of whether ACTA was fully compatible with the acquis communautaire of the EU and with the World Trade Organisation (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (the TRIPS Agreement) when Parliament was asked to give its consent.

This combination of close scrutiny of highly technical intellectual property enforcement issues framed in terms of concerns about lack of transparency in the ACTA negotiation process and the need to ensure of fundamental rights and freedoms in the EU are upheld, together with Parliament’s willingness to exercise its new power of veto under the consent procedure of the TFEU, that transformed ACTA into such a controversial topic of public debate and ultimately led in Parliament’s rejection of the agreement on 4 July 2012. In the light of this vote, important lessons can be learnt about the future prospects for international trade agreements with provisions on the enforcement of intellectual property rights.

Furthermore, in terms of the wider implications of ACTA for the EU legislative process, it is also significant that procedurally Parliament’s vote took place before the Court of Justice of the EU (CJEU) had responded to the European Commission’s request, on 22 February 2012, to clarify whether ACTA is incompatible, in any way, with the EU’s fundamental rights and freedoms, including freedom of expression and information and data protection, and the right to property in the case of intellectual property.

It should also be noted that Parliament had earlier asked the Commission to make ACTA documents public and enhance the role of Members of the European Parliament (MEPs) in negotiating the agreement. This opportunity for Parliament to play a more significant role in determining the content of ACTA did not arise and, once the final version of ACTA was agreed, Parliament could not alter it, and instead only approve or block it. In the event, Parliament declined to give its consent to ACTA, with the result that the entire EU remains outside of the agreement.

Matthews concludes -

The experience with ACTA highlights a number of lessons about the complexities of Parliamentary scrutiny of international trade agreements in the EU. First, there is little doubt that ACTA could have been negotiated with greater transparency and this would have alleviated public concerns about its implications. Secrecy in the early stages in the negotiating process led to rumours about the agreement’s implications even though the most controversial provisions had in fact been watered down subsequently or, in the case of the ‘three strikes’ or ‘graduated response’ provisions, deleted from the final text altogether.

The second lesson to learn from ACTA is that, by framing concerns about detailed intellectual property enforcement measures in terms of the potential risks to fundamental rights and freedoms, public opinion in the EU can be mobilised to an extent not hitherto seen. It should also be acknowledged, however, that the intensity of protests against ACTA was unevenly spread across EU Member States. In some Central European countries, such as the Czech Republic or Poland, there were markedly higher levels of protest and public displays of disaffection with ACTA than in other EU Member states, such as the UK. In part this was due to concerns in former Communist states about censorship, and about abuses of fundamental rights and freedoms. These concerns were exacerbated by relatively low levels of intellectual property enforcement in Central European countries which gave the impression that ACTA would introduce new standards of intellectual property enforcement when, in fact, national law in these jurisdictions generally already required equivalent standards to those set out in the agreement.

The third lesson from ACTA in the EU is that even after the final text of the agreement had been published, lack of clarity in the wording of its legal provisions caused uncertainty and anxiety in Parliament and in EU Member States about the agreement’s possible implications. The fact that ‘commercial scale’, for instance, was not defined clearly in Article 23.1 of ACTA contributed significantly to uncertainty and public anxiety, and led to further public mobilisation against ACTA since it was not made clear whether or not private acts by individuals would be excluded from its scope. This absence of a clear definition for the term ‘commercial scale’ could, in fact, have been addressed in a straightforward way by a footnote to indicate that its meaning should be understood with reference to the jurisprudence of the ACTA Contracting States.

The fourth lesson from ACTA is that, in terms of negotiating an international trade agreement in the EU, Parliament will not be slow to use its power of veto under the consent procedure of the TFEU. The vote on 4 July 2012 was therefore very much an opportunity to demonstrate the strength of concerns in Parliament about the agreement’s lack of transparency, implications for fundamental rights and freedoms in the EU, compatibility with the acquis communautaire of the EU, and compatibility with the TRIPS Agreement. It will be instructive to see whether the Commission adopts a different strategy when it engages with Parliament on the adoption of international trade agreements under the consent procedure in the future, given the experience with ACTA.

The fifth lesson from ACTA is that Parliament will not necessarily wait until the CJEU has clarified the status of international trade agreements when the Court is asked to do so by the Commission, nor is Parliament obliged to do so. Yet, while there was nothing in the TFEU to prevent Parliament from going ahead and rejecting ACTA under the consent procedure without waiting for the CJEU, it could be argued that procedurally it would have been preferable if Parliament had waited until after the CJEU had completed its detailed examination of whether ACTA is in line with fundamental rights and freedoms in the EU before vetoing the agreement. In terms of what could happen next following Parliament’s rejection of ACTA, it should also be borne in mind that Article 42.1 of the agreement allows a Party to propose amendments to the ACTA Committee. If ACTA ever came into force in other Contracting States, the ACTA Committee would then decide whether to present a proposed amendment to the Parties for ratification, acceptance or approval. A revised version of ACTA, could therefore, procedurally at least, re-surface in the EU in the future.

Ultimately, however, it may be that ACTA-style provisions will simply re-emerge by virtue of being incorporated into bilateral and regional trade agreements between the EU and third countries. This would sidestep public concerns about the impact of ACTA domestically within the EU Member States and switch the focus instead exclusively onto raising standards of intellectual property enforcement in the EU’s trading partners. In this regard, the long-term significance of ACTA may well not have ended with Parliament’s vote on 4 July 2012. Instead, the vote could well provide a stimulus for reconsideration of the scope and applicability of intellectual property enforcement provisions in bilateral or regional trade agreements of the EU.  If this is the case, Parliament may well have cause to revisit the intellectual property enforcement provisions of international trade agreements in the future.

Prejudgment

'Extrajudicial Speech and the Prejudgment Rule: A reply to Bartie and Gava' by Chris Finn in (2014) 34 Adelaide Law Review 267 [PDF] responds to 'Some Problems with Extrajudicial Writing' by Susan Bartie and John Gava in (2012) 34 Sydney Law Review 637.

Finn states that

The precise limits of the rule against prejudgment remain to be determined. It has recently been argued that the rule should be extended to prohibit extrajudicial statements on matters of law, as well as those of fact or evidence at issue in a particular matter. It is argued that this suggestion should be resisted, as neither the existing case law nor underlying principle support such an extension. Moreover, there are strong policy reasons for not doing so. 

He comments that

Susan Bartie and John Gava1 challenge conventional understandings of the apprehended bias rule, and of the prejudgment doctrine in particular. They do so by arguing that this doctrine should be applied more broadly and that, for a variety of policy reasons, its scope should extend to a wide range of extrajudicial speech. Significantly, their argument forces a clearer conceptualisation of the bias rule and the legal values it protects.

Though far from new, extrajudicial commentary is a growing phenomenon. Judges of the superior courts are in increasing demand as conference speakers, often presenting keynote addresses, and a growing number of them have taken to the academic journals as well. Court websites often list lengthy catalogues of papers delivered by serving judges on a wide range of legal subjects to professional and academic audiences. Those papers range in nature from expressions of broad commentary about the legal system and the role of the courts to tightly argued expositions of a clear view as to the correct resolution of some question of specific legal doctrine.

Moreover, judges are increasingly willing to comment on, and express opinions about, ‘hot’ legal issues which are likely to be further argued in the nation’s courts, perhaps even before their judicial selves. Given this context, Bartie and Gava warn against the possibility of a perception of prejudgment. They argue that ‘ordinary human experience’ indicates that a position so clearly and publicly expressed will be difficult for a judicial officer to put to one side when the very same legal issue subsequently falls to be determined in their courtroom.

Bartie and Gava suggest that much, if not all, extrajudicial speech is therefore ‘suspect’ in terms of displaying prejudgment. They counsel a somewhat formalist remedy, a stony faced Sphinx like judicial silence in all fora other than duly delivered judgments. Judges, they seem to be saying, are best seen and not heard outside their courtrooms.

This article takes a different view. A close examination of the case law demonstrates that the prejudgment rule has never extended to extrajudicial statements made about matters of law, as distinct from suggestions that particular questions of fact at issue in litigation in prospect have been predetermined. Moreover, while Bartie and Gava’s suggestion that strong expressions of extrajudicial views on matters of law or matters of fact are equally concerning has some initial appeal, this article argues that there are strong policy reasons for resisting their suggested extension of the bias rule.