Personhood

'Leviathan Inc.: Hobbes on the nature and person of the state' by Johan Olsthoorn in (2020) History of European Ideas comments

This article aspires to make two original contributions to the vast literature on Hobbes’s account of the nature and person of the commonwealth: (1) I provide the first systematic analysis of his changing conception of ‘person’; and (2) use it to show that those who claim that the Hobbesian commonwealth is created by personation by fiction misconstrue his theory of the state. Whereas Elements/De Cive advance a metaphysics-based distinction between individuals (‘natural persons’) and corporations (‘civil persons’), from Leviathan onwards Hobbes contrasts individuals acting in their own name (‘natural persons’) with representatives (‘artificial persons’). These changes notwithstanding, Hobbes retains the same corporate conception of the state throughout. On the prevailing ‘fictionalist’ interpretation, the sovereign brings the commonwealth into existence by representing it. I argue, rather, that as an incorporation of natural persons, the commonwealth becomes one person through the authorized (i.e. non-fictitious) representation of each constituent member singly by one common representative (‘the sovereign’). 

 Olsthoorn states

The question of what kind of person the Hobbesian state is has long troubled commentators. The majority position now seems to be that the commonwealth is a ‘person by fiction’ or a ‘purely fictional Person’. According to Hobbes, some subject S is personated by fiction by a representative R whenever S has not authorized R to speak or act in S’s name. Absent such authorization, R’s words and actions are attributed to S not truly, but ‘by Fiction’ (L 16.1). Inanimate things, such as hospitals and bridges, ‘cannot be Authors, nor therefore give Authority to their Actors’ (L 16.9). For this reason, inanimate things can only be personated by fiction. On the prevailing ‘fictionalist’ interpretation, the commonwealth (i.e. the people understood as a single collective body) is likewise personated by the sovereign by fiction. The commonwealth itself cannot possibly have authorized the sovereign to represent it because, Hobbes insists, the people incorporated cannot speak or act except via their representative. Representation by the sovereign is a precondition of the commonwealth’s capacity to act; authorization being an action, this precludes authorized (i.e. non-fictitious) representation. 

This article will not challenge these claims: properly understood, they are tenable. Rather, I will counter a further claim defended by proponents of the fictionalist interpretation: that the commonwealth comes into existence by being represented by the sovereign. It is commonly maintained that the commonwealth is a person by fiction since it exists as a person only insofar as it is personated by the sovereign – notwithstanding Hobbes’s claim that representation by fiction is impossible outside the state. Some have inferred from this that the commonwealth itself has a fictional character.  My contention is that the fictionalist interpretation misconstrues Hobbes’s theory of the state. It fails to appreciate that personation occurs at two levels: the sovereign represents each individual citizen, thus turning the multitude into one person (‘a commonwealth’), and he bears the person of the commonwealth thus formed. These two instances of personation, I argue, are different in kind, and only the second relation of representation can be said to be fictional. The corporate unity formed by individual authorization of a common representative is one person in virtue of its capacity to speak and act as one – as all its constituent members have bound themselves to accept as theirs whatever their common representative shall do. The fictionalist interpretation wrongly treats the commonwealth as existing apart from the multitude of individuals who compose it. Unlike personations of non-corporate entities like bridges, hospitals, children, and false idols, the person of the commonwealth is not brought into being by representation by fiction. 

I bolster my novel interpretation through a second original contribution to the literature. This article provides the first systematic analysis of the dramatic changes in Hobbes’s account and typology of ‘person’, and hence of state personality, between the early works and Leviathan.  Hobbes never wavers from regarding ‘persons’ foremost as agents – entities that can be said to speak and act.  But his views on what kinds of persons exist, and in what sense they are agents, alter fundamentally between De Cive (1642/1647) and Leviathan (1651). From Leviathan onwards, Hobbes advances what we may call a Ciceronian conception of agent-persons, linked to his new theory of personation by representation. ‘A Person’, Hobbes declares in allusion to Cicero, ‘is the same that an Actor is’ wearing a persona or mask (L 16.3). A person is thus someone who ‘acteth any thing in his own or another’s name, or by his own or another’s authority’ (EW 4: 310). Whoever acts in his own name is called a ‘natural’ person; whoever acts in the name of someone or something else is an ‘artificial’ or ‘representative’ person. The Ciceronian conception thus differentiates persons by whether they bear their own persona or someone else’s, not by their metaphysical status. 

An irreducibly different account of personhood is found in Elements (1640) and De Cive. Those texts portray a person as anyone or anything with independent legal standing – any entity to whom words and actions can be ascribed in law. Call this the Juristic conception of agent-persons. Hobbes distinguishes between two kinds of juristic persons: natural and civil ones. On the Juristic conception, ‘natural persons’ are rational agents capable of unmediated action. ‘Civil persons’ are incorporations of natural persons. Thus, Elements explores ‘how a multitude of persons natural are united by covenants into one person civil, or body politic’ (EL 20.1). As social constructs, civil persons are not capable of unmediated action. Some established and binding rule is necessary to determine which actions performed by which natural persons should be regarded as those of the civil person. The Juristic conception thus differentiates persons by their metaphysical status: whether their capacity for agency depends on some artifice or not. Observe that ‘natural person’ means something else on the Juristic conception than on the Ciceronian one. A Juristic natural person is any rational agent ‘naturally’ capable of acting; a Ciceronian natural person is anyone acting in their own name. The two can come apart. I shall therefore henceforth add subscripts: J (Juristic) and C (Ciceronian). 

My pioneering analysis of Hobbes’s changing conception of person sheds new light on the controverted question of what gives the commonwealth personality. In the early texts, a plurality of natural- J persons become one civil person by each submitting their will to another natural- J or civil person (‘the sovereign’). Incorporation requires formation of a single will, achieved by each constituent member promising simple obedience to the sovereign. In Leviathan, a multitude becomes one person through individual authorization of a common representative (‘the sovereign’) to carry their persons jointly. Authorized representation replaces promises of simple obedience as the means to ‘reduce all their Wills … unto one Will’ (L 17.13). Leviathan’s novel doctrine of personation by representation is in many ways an improvement: it offers a parsimonious and capacious explanation of how a multitude becomes one person and clarifies the relation between the sovereign and the commonwealth. Yet it also obscures the corporate nature of the Hobbesian commonwealth and conceals that personation occurs at two levels. It does not help that the English Leviathan incoherently states that the sovereign bears only one person – that of the commonwealth; a glitch corrected in the 1668 Latin Leviathan. To grasp Hobbes’s theory of the state, I conclude, we best turn to texts other than the English Leviathan.

Fandom, SNS and Privacy

'Ethical and privacy considerations for research using online fandom data' by  Brianna Dym and Casey Fiesler in (2020) 33 Transformative Works and Cultures  comments

As online fandom continues to grow, so do the public data created by fan creations and interactions. With researchers and journalists regularly engaging with those data (and not always asking permission), many fans are concerned that their content might end up in front of the wrong audience, which could lead to privacy violations or even harassment from within or outside of fandom. To better understand fan perspectives on the collection and analysis of public data as a methodology, we conducted both an interview study and a survey to solicit responses that would help provide a broader understanding of fandom's privacy norms as they relate to the ethical use of data. We use these findings to revisit and recommend best practices for working with public data within fandom. 

The authors argue

Transformative fandom has long occupied the grey spaces online. Because fandom is both entirely open to the public and living in the cracks of obscurity, accessing its communities sometimes feels like knowing the secret knock to get into the speakeasy tucked away in the back alley. People come inside. They order their favorite special at the bar ("I'll have a 'And They Were Roommates,' please"). They make idle conversation with other patrons as they wait for the next performer or their favorite bartender to come along. At the end of the night, these visitors return home, friends and family often none the wiser to where they were or the specific transactions of their nightlife, though any of them could have easily come to the speakeasy if they had only known where to look. 

The metaphor neatly encapsulates online fandom life—though in the digital world those interactions also leave data traces, and knowing who has seen them is not as easy as looking around the room to see who else is there. The transactions of their nightlife have been broadcasted the entire time, leaving a trail of public data that is accessible, identifiable, and valuable. 

Even outside the context of fandom, many people are unsure at best as to whether or not their data are publicly viewable and how they might be accessed by third parties (Proferes 2017). Journalists, for example, might include a public tweet in an article to represent public opinion on a news-relevant issue. Meanwhile, internet researchers are increasingly collecting public data that may seem ephemeral to social media users but in fact lingers, and many of those users are entirely unaware that their data can legally be collected for research purposes (Fiesler and Proferes 2018). 

The disconnect between people, their data, and how others use them is complicated by the fact that researchers disagree over norms for studying public data as well as a definition for what public even means (Vitak, Shilton, and Ashktorab 2016). For example, while some researchers might argue that public data are freely accessible and therefore usable (Zimmer 2010), fan studies scholars often argue that scholars ought to inform or ask people about using their data, regardless of whether or not they are accessible (Nielsen 2016). While not all disciplines are in agreement, scholarship on the ethics of studying fandom has emphasized the need to preserve fan privacy (Busse and Hellekson 2012), prioritize transparency in research (Bennett 2018), and gain permission from fans before referencing their work in academic research (Busse and Hellekson 2012). These principles often sit in contrast to how many disciplines approach the ethics of using public data in their own work. 

Fan studies cover a wide variety of domains and methods. For example, fan scholars have provided literary analysis of fan works (Coppa 2017), analysis of human behavior (Guerrero-Pico, Establés, and Ventura 2018), and an understanding of different learning that occurs within fan communities (Black 2005; Evans et al. 2017). Bethan Jones (2016) has identified two primary traditions of approaching fan studies research: (1) literary analysis, when the content creator is assumed inaccessible and a fan work is the subject of study, and (2) human subjects research, in which the creator is the subject of study—whether with consent (e.g., interviews or surveys) or without consent (e.g., collecting public trace data). 

Traditional human subjects research, where consent must be established for data collection, often falls under the purview of ethical review bodies such as institutional review boards (IRBs) at US universities. However, many IRBs consider the collection of public data to not constitute human subjects research because it typically does not involve direct interaction with humans or collection of personally identifiable information (Vitak et al. 2017). Perhaps in part because of this line drawn by IRBs, a common perception among researchers is that the most important question for using data is whether they are public, regardless of other relevant factors such as users' expectations of privacy (Zimmer 2010). Our goal with the work here is to bridge discussions in fan studies with broader conversations about use of public data in research across all disciplines. 

Fan studies are an interesting context for examining the intersection of research ethics and privacy, in part because of the long-standing social norms that dictate sharing and privacy behavior (Dym and Fiesler 2018a). We also think that it is important that fans have a voice in determining best practices for researchers. To that end, we conducted an interview study and a large-scale survey in which we asked about privacy and ethical concerns in relation to fandom and public data. By fandom, we mean transformative fandom, or an online fan community that both creates and shares fan works that are transformative of source material through writing fan fiction, creating fan art, or other creative practices. 

Our findings further illustrate the concerns that fandom communities have about privacy, safety, and the integrity of their content. This includes (1) special concern for fans from marginalized backgrounds (especially LGBTQ fans) who may face serious consequences from privacy violations; (2) fear of harassment within fandom; and (3) the importance of positionality within and understanding of fandom for researchers. Our findings contribute to specific recommendations for working with public data generated within fandom, including special care to avoid amplifying fan content and ways that researchers can care for the trust they receive. These findings stand to inform broader discussions on what constitutes the ethical use of public data within other types of research as well, particularly for vulnerable populations.

'“Participant” Perceptions of Twitter Research Ethics' by  Casey Fiesler and Nicholas Proferes in (2018) Social Media + Society comments

Social computing systems such as Twitter present new research sites that have provided billions of data points to researchers. However, the availability of public social media data has also presented ethical challenges. As the research community works to create ethical norms, we should be considering users’ concerns as well. With this in mind, we report on an exploratory survey of Twitter users’ perceptions of the use of tweets in research. Within our survey sample, few users were previously aware that their public tweets could be used by researchers, and the majority felt that researchers should not be able to use tweets without consent. However, we find that these attitudes are highly contextual, depending on factors such as how the research is conducted or disseminated, who is conducting it, and what the study is about. The findings of this study point to potential best practices for researchers conducting observation and analysis of public data. 

The authors state

 In recent years, research ethics has become a topic of greater public scrutiny. This is particularly the case for research taking place on or using data from social computing systems (McNeal, 2014; Wood, 2014; Zimmer, 2010a). However, as Vitak, Shilton, and Ashktorab (2016) point out in a study of ethical practices and beliefs among online data researchers, there are not agreed upon norms or best practices in this space. Organizations such as the Association of Internet Researchers (AOIR) have offered guides for researchers (Ess and AOIR Ethics Working Committee, 2002), although these guidelines have had to be revised as new platforms present novel research contexts and as data collection practices evolve alongside them (Markham, Buchanan and AOIR Ethics Working Committee, 2012). It is also rare that the people whose data are being studied are involved in the development of such guidelines. However, public reaction to research ethics controversies (McNeal, 2014; Wood, 2014; Zimmer, 2016) suggests that these individuals have opinions about how researchers should study and use online systems and data. Brown, Weilenmann, Mcmillan, and Lampinen (2016) suggest that research ethics should be grounded in “the sensitivities of those being studied” and “everyday practice” as opposed to bureaucratic or legal concerns. We therefore suggest users can help inform ethical research practices.

Traditional interventional human subjects research involves informed consent and direct interaction with participants who are aware they are being studied. Under certain regulatory conditions, research that falls outside of this scope may not be strongly regulated. For example, in the United States, the use of publicly available data (e.g., tweets) may not meet the criteria of research involving human subjects as per the Code of Federal Regulations (45 CFR 46.101). However, there is a lack of consensus among individual university institutional review boards (IRBs) on this point (Vitak, Proferes, Shilton and Ashktorab, 2017). Data obtained from sources such as Twitter most often do not constitute research that requires their oversight or informed consent practices. Most researchers who use data sets of tweets do not gain consent from each Twitter user whose tweet is collected, nor are those users typically given notice by the researcher. Although Twitter’s Privacy Policy now mentions that academics may use tweets as part of research, this update was not included until revisions were made to the policy in the Fall of 2014.1 Moreover, Internet users rarely read or could fully understand website terms and conditions (Fiesler, Lampe and Bruckman, 2016; Luger, Moran and Rodden, 2013; Reidenberg, Breaux, Cranor and French, 2015).

Although there are a great many open questions around research ethics, including around experimental manipulation on online platforms (Schechter and Bravo-Lillo, 2014), for this study, we focus specifically on the issue of researchers’ use of public social media content. Because of the prominent use of Twitter data in research (Zimmer and Proferes, 2014), in this study, we ask: how do Twitter users feel about the use of their tweets in research?

Our goal with this work is not to suggest whether or not use of Twitter data is ethical or not based entirely on user attitudes. Instead, we aim to inform ethical decision-making by researchers and regulatory bodies by reporting on how user expectations align with the actual uses of their data by researchers. Therefore, we designed our survey instrument to probe contextual factors that impact whether Twitter users find studying their content acceptable. This study is exploratory, providing initial insights into a complicated space.

In brief, the majority of Twitter users in our study do not realize that researchers make use of tweets, and a majority also believe researchers should not be able to do so without permission. However, these attitudes are highly contextual, differing based on factors such as how the research is conducted or disseminated, who the researchers are, and what the study is about. After describing the study and findings, we conclude with a discussion of what these findings might suggest for best practices for Twitter research and offer potential design interventions that could help mitigate some user concerns.

Suppression

'Debunking the myth: why Victoria is not the suppression order 'capital' of Australia' by Jason Bosland in (2020) 24 Media and Arts Law Review incisively unpacks received wisdom regarding suppression orders, building on Bosland's Sydney Law Review article noted elsewhere in this blog (and in NSW Law Journal noted here).

The new piece argues that Victoria’s reputation as the nation's 'suppression order capital' is attributable ironically, as an unfortunate consequence of the Victorian courts being more transparent regarding levels of suppression than courts in other jurisdictions'. Bosland notes concerns regarding reliance on very incomplete data compiled by News Corp, with figures derived from the number of orders notified to media organisations (whether via email or directly to journalists present in court) rather than the number of orders actually made.

 The article notes that the NSW Supreme Court issued over 50% more suppression orders than the Victorian Supreme Court and that scrutiny of NSW lower courts is difficult because order notifications are rare and registries do not keep track of the numbers.

Importantly the article argues that the 'Suppression Capital' meme does not account for the variety in the types of orders that can be made, noting that a significant number of Victorian orders are made under statutory powers designed to deal with specific contexts, such as details of post-custodial sex offenders, or the names of people found not guilty by reason of mental illness. Courts elsewhere lack the specific statutory powers. Bosland accordingly notes that data should account for the fact that not all orders represent courts' 'general' approach to suppression; some instead respond to specific interventions by Parliament.

In a cogent examination of jurimetrics Bosland notes that jurisdictional 'rankings' do not account for significant differences in caseloads (consistent with differences in population). He argues that if judicial officers serve as a proxy for caseload, Victorian judges made an average of 1.5 general power suppression orders per judge, compared to 2.2 in Western Australia and 2.3 in South Australia. In a more restricted comparison between the NSW and Victorian Supreme Courts, the NSW supremes made 1.84 orders per judge and the Victorians made 1.36 orders per judge.

Jules O’Donnell, whose tweets drew my attention to the Bosland piece, astutely comments

 it seems to me that if you took the most hawkish approach to Bosland's analysis, your conclusion would still be: 'we can't be sure which State or Territory is the suppression capital of Australia, but we know Victorian courts and tribunals are the most transparent'.

Platforms

Harnessing Platform Envelopment in the Digital World' by Daniele Condorelli and Jorge Padilla in (2020) 16(2) Journal of Competition Law and Economics 143–187 comments

We revisit the economics of “platform envelopment strategies,” whereby a dominant platform (the enveloper) operating in a multi-sided market (the origin market) enters a second multi-sided market (the target market) by leveraging the data obtained from its shared user relationships. In particular, we analyze the logic and effects of “privacy policy tying,” a strategy whereby the enveloper requests consumers to grant their consent to combining their data in both origin and target markets. This may allow the enveloper to fund the services offered to all sides of the target market by monetizing data in the origin market, monopolize the target market, and entrench its dominant position in the origin market. We conclude by considering a range of possible policy interventions that may serve to limit such potential anticompetitive effects, while preserving the efficiencies generated by conglomerate platforms.

The authors state

In their seminal paper, Eisenmann et al. (2011) explained that entry in platform markets subject to network effects and high switching costs can occur in two ways: first, by offering drastically new functionality (that is, through Schumpeterian innovation) and second, through “platform envelopment.” 

They noted that Through envelopment, a provider in one platform market [the origin market] can enter another platform market [the target market] and combine its own functionality with that of the target in a multi-platform bundle that leverages shared user relationships. Envelopers capture market share by foreclosing an incumbent’s access to users; in doing so, they harness the network effects that previously had protected the incumbent. 

Platform envelopment thus involves the combination or bundling of the entrant’s functionality in the origin market with that of its new platform in the target market. The goal is to leverage shared user relationships and/or common components. For example, Google entered into mobile operating systems by bundling Android with Google Search, two separate platforms, in order to, among other possible goals, leverage the data generated by users of both platforms. Such data were effectively monetized through Google’s online advertising platforms. This strategy allowed Google to fund its entry in a way that could not be replicated by other competitors and contributed to its eventual dominance of the mobile operating system market. 

Importantly, platform envelopment strategies are viable not only when bundling platforms that are complements but also when they are weak substitutes or are functionally unrelated. Google entered online display advertising by bundling DoubleClick’s online display platform and its own online search platform, which were regarded as complements by many advertisers and weak substitutes by others. It entered into the mobile operating system market by combining two functionally unrelated platforms. And it may, like Facebook or Alibaba, successfully penetrate retail banking by combining a payment system platform with its online advertising businesses (De la Mano and Padilla, 2018). 

Eisenmann et al. demonstrated that “an entrant that bundles a complementary platform is most likely to succeed when the platforms’ users overlap significantly [ . . . ] an entrant that bundles a weak substitute platform is most likely to succeed when bundling offers significant economies of scope; [ . . . ] an entrant that bundles a functionally unrelated platform is most likely to succeed when the platforms’ users overlap significantly and when economies of scope are high.” 

Focusing attention on the bundling of functionally unrelated platforms, Eisenmann et al. explain that in this case the multi-platform entrant may benefit when (a) component overlap is meaningful and cost economies of scope are significant, or (b) user overlap is large and there are significant demand economies of scope (and thus users prefer to concentrate their purchases on a single supplier), or (c) user overlap is large and the entrant can exploit negative correlations in valuations across platforms to price discriminate more effectively. 

In this article, we consider alternative conditions under which bundling unrelated platforms are likely to be profitable. In addition to the scenarios (a)–(c) identified by Eisenmann et al. and listed above, we find that enveloping of unrelated platforms can be profitable even in the absence of “direct” economies of scope in demand and/or supply and when there is no component overlap. We show that this may occur when a firm operating in multiple platform markets with a common user side engages in “privacy policy tying,” that is, when the (conglomerate) firm’s privacy policies in each of those platform markets request users to grant consent so that it can combine the data they generate when using its multiple platforms to improve its offerings in one or more of them. 

In particular, we show how a platform monopolizing a multi-sided market where user data are monetized (the origin market) can profitably envelop another platform market with overlapping users (the target market) by tying its privacy policies in both platform markets to (i) combine the data generated by the common users in both markets without infringing the privacy laws and (ii) monetize such rich and difficult-to-replicate data in its dominant origin which can be profitably exploited by the dominant enveloping platform in the origin market. The combination of data across multiple platforms allows the enveloper to fund the services offered to all sides of the target market by monetizing that data in the origin market. As a result of this and its position of dominance in a key primary market, it may be able to monopolize the target market and entrench its dominant position in the origin market. 

The enveloping platform’s advantage does not lie in any “deep pockets,” because both the enveloper and its rivals may have the same profitability. Rather it flows from the enveloper’s first-mover advantage granted by itsestablished monopoly on a key origin market. In fact, in challenging a young rival in a data-ripe market, the dominant enjoys a commitment to compete toughly to monopolize the target market. This is so because leaving the data in the hands of the rival may in turn trigger its entry in the origin and more profitable market. Crucial to our argument is the competitive advantage resulting from the combination of data from unrelated markets; a combination that is facilitated by a strategy of tying privacy policies. 

Platform envelopment strategies may explain why “competition in the digital sector today is heavily shaped by competition between large digital competitors (Bourreau and Streel, 2019, p. 4).” Such strategies can distort competition and cause consumer harm. In particular, we discuss how this strategy can be used to protect the origin market from potential entry by more efficient competitors that operate (or may operate) in the target market. We illustrate the use of this enveloping strategy by reference to an actual case study. 

Finally, we discuss possible remedies, including ex post antitrust intervention, ex ante business-line regulation, limitations on the ability to combine user data from multiple platforms, data sharing, and so forth, seeking to constrain the potential competitive and consumer harm created by platform envelopment while allowing these strategies when they are likely to be welfare increasing. 

We discuss two regulatory solutions in greater detail. The first alternative is to mandate data sharing conditional on customer consent so that dominant platforms provide consistent application program interface in an interoperable form on terms parallel to FRAND licensing. Platforms with market power in well-defined origin markets would be mandated to grant access to other platforms to access a subset of their data, including personal data, if the individual or business in question decides so. Because data are “non-rivalrous” and, therefore, can be shared without losing them, data sharing is likely to have a small disincentive effect on the incentives to collect data. Meanwhile, the benefits of mandated access or data sharing are bound to be large since those data can be used to foster competition in many related and unrelated platforms at once. It follows that, unlike it may be the case with physical assets, patents, and other intellectual property rights, the trade-off between the short-term and long-term effects on competition and innovation points in favor of mandatory sharing. 

The second option is to enhance the privacy protection offered by dominant, conglomerate platforms by limiting their ability to combine user data across their platforms regardless of user consent. Of course, a potential drawback of this policy is that it may limit efficiency by preventing the creation of large and rich databases that could be mined in the interest of consumers and business users. We thus consider less stringent alternatives, which however may fell short of the objective of limiting the data superiority of dominant multi-platform conglomerates. 

The remainder of the article is organized as follows. In Section II, we provide a brief overview of the economics of platforms. This is a well-known topic; yet we believe it is important to ensure that the reader understands the basic principles and terminology used in subsequent sections. In Section III, we discuss the logic of platform envelopment. In Section IV, we particularize this discussion to consider platform envelopment strategies based on the combination of data from origin and target markets. We illustrate how such a strategy may work when the monetization platform (that is, the platform where the data are monetized) is an online advertising platform in Section V. In Section VI, we summarize the potential procompetitive and anticompetitive effects of such strategies, and in Section VII, we explore alternative ways to limit their possible detrimental effects on the integrity of the competitive process and consumer welfare. Section VIII concludes.

Unwell

In Health Care Complaints Commission v McGregor [2020] NSWCATOD 13 the NSW Civil and Administrative Tribunal has cancelled the registration of Sydney psychiatrist Dr McGregor after the practitioner posted a blog on his practice website which was “bizarre and suggestive of impaired reality testing” and verbally abused Medical Council panel members. NSWCAT considered whether McGregor's conduct constituted unsatisfactory professional conduct and professional misconduct, whether the practitioner is impaired whether he has “sufficient physical and/or mental capacity to practise medicine”, accordingly imposing appropriate protective orders.

The action was initiated by the NSW Health Care Complaints Commission. NSWCAT notes that

During 2017 Dr McGregor became suspicious that his wife, who was a receptionist at the practice, was having an affair with another psychiatrist in the practice. Around July 2017 he engaged a private investigator to download data from his wife’s mobile phone. On 22 December 2017 he provided that data, together with his own commentary, to the Australian Health Practitioner Regulation Agency (AHPRA). Dr McGregor characterised the notification as a “mandatory notification” alleging that the other psychiatrist had breached ethical guidelines. On 18 January 2018 a colleague who practised in the same building as Dr McGregor, complained to AHPRA about Dr McGregor’s behaviour in forwarding her a copy of the complaint he had sent to AHPRA. Dr McGregor said that he sent the complaint to his colleague to protect his reputation. As part of the investigation of the colleague’s complaint, investigators accessed Dr McGregor’s practice website and found a blog  - characterised by McGregor as his “Australian patriot blog” - on that psychiatric practice website.

Shortly thereafter an employee of the NSW Health Pharmaceutical Regulatory Unit (PRU)  poke with the Medical Director of the NSW Medical Council about the content of the blog. That content might politely be described as colourful, featuring reference to ' FISA wiretapping, M 16 connection, Assassination plots and ... unmentionable satanic ritual evidence'.

In praising QAnon and President Trump for fighting the satanic 'deep state' the blog stated

 Julian Assange is not in the Ecuadorian Embassy. He is either in Switzerland or Washington. Q and the MoD, SVR (Kremlin) confirm this. He is an Australian hero and would make a fine future PM. When the infant torture, rape and satanic rites cannibalism by elites is provided by Trump on tape – seek the comfort of others. Pay attention to the news cycle. Follow Q breadcrumbs on 8chan. Message, tweet, post and discuss with friends and family. Be open to new knowledge and cross check information thoroughly. Await the Australian Treason Trials (TT’s). 

After reviewing the blog, the NSW Medical Council decided to raise an 'own motion' complaint against McGregor with the Health Care Complaints Commission, expressing considerable concern for the practitioner's mental health and well-being. The Commission referred the complaint to NSWCAT as a serious complaint under s 145D of the Health Practitioner Regulation National Law, seeking an order from the Tribunal that McGregor’s registration be cancelled either because he is not competent to practise medicine or because he is guilty of professional misconduct: s 149C(1)(a) and (b). The Commission also sought an order under National Law s 149C(7) that McGregor cannot reapply for registration for a period of 12 months.

McGregor was on notice that the Tribunal would hear the complaint on 11 December 2019 but   did not attend. The HCCC provided McGregor with a copy of all the material it had lodged with the Tribunal, including the orders it was seeking.  Rather than alleging that McGregor had expressed extreme political views on his blog, the HCCC alleged that “the information published by the practitioner had the potential to expose his patients to harm when accessing the practice website for information or to make an appointment.”

McGregor did not respond and had not attended a meeting with a consultant psychiatrist, required by the Council. NSWCAT states 'We note that if a medical practitioner fails, without reasonable excuse, to comply with a requirement to attend a medical appointment, that failure is evidence the person does not have sufficient physical or mental capacity to practise medicine: National Law, s 152B(4)'.  McGregor did not respond to subsequent contact by the Medical Council apart from stating 'regardless of what Council does, it won’t change his political views and he won’t remove the blog from his website'.

NSWCAT states

On 5 March 2018, the Council held a hearing under s 150 of the National Law. During that hearing, the panel attempted to contact Dr McGregor by phone. Eventually Dr McGregor spoke with the three Council delegates on the panel. He repeatedly asserted that it was his politically views, as expressed in his blog that had brought him to the Council’s attention. Despite the Presiding Member telling him that it was concerns about his mental health that had triggered their response, Dr McGregor continued to assert that he was being persecuted because of his political opinions. At one stage during the phone call, Dr McGregor explained that, “there are great political changes occurring in the world at the moment and um I uh you know I need to uh uh get that across to other people and um ah if you uh feel that because uh my opinion is a little different to yours that you need to take away my registration that’s up to you . . um but . . .” He went on. “Um if you had any understanding of politics um you would understand that that that the beliefs that are actually put on the blog are actually um the uh directives um from ah from President Trump.” 

The issue for the Council delegates at that hearing was whether McGregor’s registration should be suspended to protect the health or safety of any persons or because the delegates were satisfied that suspension was necessary in the public interest. The delegates concluded that Dr McGregor showed such impaired judgment that exposure to those views had significant potential to expose his patients to risk of harm. McGregor’s response on hearing of the consequent suspension was visceral.
McGregor later stated on his blog

Sadly I was deregistered from practicing as a doctor today. The Medical Council of NSW found me guilty of publishing a website and expressing a political opinion which they disagreed with. . . . I sincerely apologise to all of my patients who have been terribly affected by this. I am very sorry to have caused you so many difficulties. . . . The truth is that it is very likely that I shall go bankrupt, and shut down, as my practice has enormous running costs. Thus it is best not to wait to see if The Medical Council of NSW will change its mind, but rather to find another Psychiatrist. 

He then requested an 'immediate reinstatement of my right to practice medicine', claiming the Presiding Member 'knowingly used the power of Political Correctness to inflict woman to male intimidation and assault against me. She knew that my political beliefs were different to hers and as such I felt she was using legal, financial and reputational intimidation as a woman against me. I feel her behaviour was that of a feminist thug used to deny me consent and respect'.

 In the written decision next month the Council delegates gave detailed reasons for suspending the registration, expressing the view that McGregor has an impairment with severely distorted judgement, construed as evident in the 'bizarre nature of aspects of his blogs (such as his reference to cannibalism and Satanic rituals) and publishing such disturbing material on his practice website where vulnerable patients could easily access the content'. Later in April a lengthy email from McGregor to the Council about the proposed s 150A hearing appears to have characterised the Council as 'clearly a Government Institution with bigoted/intolerant socially left wing zealots who conform to groupthink and take political views to further their careers'. The Council set aside the decision to suspend Dr McGregor’s registration and instead, imposed a condition that he is not to practise medicine, referring the matter to the Commission under s 150F to the HCCC. Doubling up, McGregor stated

 The Medical Council of New South Wales is a Paedophile Protection Agency. The operatives who have been involved in Politically destroying me are deranged President Trump haters and those who are Political sycophants of what the Deep State represents. That is, they Sensor and Punish any Patriot who criticises Paedophilia, and other Deep State crimes. . . . Furthermore, the Council has allowed a Politically malevolent pre-determined report be used against me by a Council affiliated Psychiatrist/Political activist/operative for the intention to entrap by The Political Abuse of Psychiatry.  ...
 Elite globalist satanic paedophiliac rituals, child trafficking, torture and cannibalism will be exposed in time. It will change the political landscape forever. The elite use secret societies and satanic infant/child abuse to maintain control and cohesion. The in-group allegiance is absolute with these binding behaviours. The initiation rites enforce compliance with the aims of the NWO – which is subjugation of the world’s people for their own benefit.

NSWCAT concluded

Complaint 1 

(1) Are the facts of the four incidents of alleged inappropriate conduct set out in Complaint 1 proved? Yes. 

(2) Did the blog publication conduct have the potential to expose Dr McGregor’s patients to harm when accessing the practice website for information or to make an appointment? Yes. 

(3) Did each of the four incidents of alleged inappropriate conduct set out in Complaint 1 relate to “the practice or purported practice of medicine”? Yes. 

(4) If so, (a) is the “complaint to Council” conduct “any other improper or unethical conduct”? No. (b) is the “distribution of the complaint to another medical practitioner” “any other improper or unethical conduct”? No. (c) is the “publication of blog” conduct; “any other improper or unethical conduct”? Yes. (d) Is the “abusive language” conduct “any other improper or unethical conduct”? Yes. 

Complaint 2 

(5) Did Dr McGregor self-prescribe the medications in the quantities and on the dates listed in the table set out under complaint 2, particular 1? Yes. 

(6) If so, was any self-prescribing in breach of the code of practice or the self-treatment guidelines? Yes, if Dr McGregor initiated these medications. 

(7) If so, has Dr McGregor “engaged in any other improper or unethical conduct relating to the practice or purported practice of medicine”? No. 

Complaint 3 

(8) Are any of the particulars in complaint 1 or complaint 2 sufficiently serious to justify suspension or cancellation of Dr McGregor’s registration? No. 

(9) If not, are all the particulars in complaints 1 and 2, or any other combination of particulars in complaints 1 and 2, when considered together, of a sufficiently serious nature to justify suspension or cancellation of Dr McGregor’s registration? Yes. 

Complaint 4 

(10) Does Dr McGregor have a “physical or mental impairment, disability, condition or disorder (including substance abuse or dependence)? Yes. 

(11) Does that disability, condition or disorder detrimentally affect or is it likely to detrimentally affect his capacity to practise medicine? Yes. 

Complaint 5 

(12) Does Dr McGregor have “sufficient physical and/or mental capacity to practise medicine”? No.

NSWCAT states

Between February 2018 and March 2019, the practitioner inappropriately published a personal Internet ‘blog on a website attached to his medical practice and identified himself as the author of the blog where the information published by the practitioner had the potential to expose his patients to harm when accessing the practice website for information or to make an appointment. (“publication of blog” – particular 1) Around 5 March 2018, the practitioner engaged in inappropriate and abusive language to the Council section 150 delegates by stating to the delegates, [abusive language]

NSWCAT bites the view that

McGregor's response to his marriage breakdown and concerns about harm to his reputation was “highly unusual . . . and likely to cause an escalation in conflict, and certainly took no account of his former wife’s privacy.” In the complaint to the Tribunal, the HCCC characterised this conduct as “inappropriate”. However, it must be more than inappropriate to meet the definition of unsatisfactory professional conduct in s 139B(1)(l). It must be “improper or unethical conduct.” In our view, Dr McGregor lacked judgment in making a complaint to AHPRA about his colleague and his wife having an affair. Their relationship is a private matter. The fact that Dr McGregor perceived that it impacted on his reputation, is not a sufficient reason for making the complaint. Dr McGregor did not point to any guidelines or codes of practice applicable to the medical profession which Dr Keighran was said to have breached. In our view, Dr McGregor’s complaint was misguided, but his conduct in making the complaint was not improper or unethical.   

... asked whether he thought he had breached his wife’s privacy in distributing such personal information, “he said that his wife gave him the mobile phone”, and that, “I still feel it was the right decision.” When Dr Wright asked him whether he thought there might be an ethical problem in distributing such material, he replied that, “there’s something in the back of my mind . . .” As with the previous particular, the HCCC characterised this conduct as “inappropriate”. In our view, Dr McGregor lacked judgment in distributing the complaint to a colleague especially when it contained sensitive personal information about his former wife. As we have said, her relationship with one of Dr McGregor’s colleagues is a private matter. His fears about loss of reputation do not justify distributing this material. In our view, Dr McGregor was misguided, but his conduct in distributing the complaint was not improper or unethical.

In discussing the blog on the practice site, NSWCAT comments

We find that Dr McGregor was the author of all the material lodged by the HCCC for that period and we rely on that material. In his 27 March 2018 report, Dr Wright accurately described the content of the blog: A review of the blog content shows it included opinions reflective of a global conspiracy perspective. Dr McGregor identifies the content as his opinions, and if they are indeed his opinions, some of the material is quite disturbing. They include references to “infant torture, rape and Satanic Rites cannibalism by elites is provided by Trump on tape . . elite globalist satanic paedophiliac (sic) rituals, child trafficking, torture and cannibalism will be exposed in time . . The elite use secret societies and satanic infant/child abuse to maintain control and cohesion. . expect the paedophilia and child torture/cannibalism to be fully exposed prior to the mid terms in November. 

Dr Wright expressed the view that: These are extraordinary beliefs for a consultant psychiatrist to publicly associate himself with, particularly on a website associated with his clinical practice. 

Some of this material reflects a loss of perspective and potential loss of reality testing. We agree with that opinion. Contrary to Dr McGregor’s assertions, the content of the blogs are not merely expressions of his political beliefs. Existing and potential patients had access to the website to obtain information or make an appointment. The publication of this material relates to the practice of medicine because it is on the practice website. The fact that Dr McGregor identifies himself as a medical practitioner and psychiatrist on the website gives his comments added credibility.

Algocracy

'Fighting Back Algocracy: The need for new participatory approaches to technology assessment' by Timothy Kariotis and Darakhshan J. Mir in PDC '20: Proceedings of the 16th Participatory Design Conference 2020 - Participation(s) Otherwise vol 2 (2020)148–153 comments

City, municipal, and state governments around the globe are increasingly looking towards algorithmic solutions to long-standing and difficult problems in governance. We use the term algorithmic governance to capture this increasing use of predictive and other algorithms to provide efficiencies in the targeting of services and government processes. However, in the course of pursuing these efficiencies, openness, transparency, public accountability, and community-based deliberation, key pillars of democracy, come under threat when decision making is black-boxed in an algorithm. Furthermore, algorithmic governance (for example, in domains like welfare management) typically exacerbates the marginalization of the most disadvantaged in society, while simultaneously making such marginalization invisible to the larger citizenry. A hybrid technology assessment (TA) comprising of elements of both participatory TA (that involves public debate about technology) and constructive TA (that involves co-construction of technology between society and designers) employed through the framework of engineering technology for social justice, may help address these challenges.

Deep Fakes

"Sex, Lies, and Videotape: Deep Fakes and Free Speech Delusions' by Mary Anne Franks and Ari Ezra Waldman in (2019) 78 Maryland Law Review comments

The longstanding position of civil libertarians that harmful speech should generally be tolerated instead of regulated is based on three interrelated claims about free speech. One is that an unfettered “marketplace of ideas” ultimately leads to the discovery of truth. The second, closely related to the first, is that harmful speech is always best addressed through counterspeech rather than regulation. The third is that even well-intentioned and modest regulations of speech will ultimately be used to silence minority or dissident voices. Whatever merit these claims may have had in the past, they cannot be sustained in the digital age. Unbridled, unlimited free speech rights, especially in an era of technologically mediated expression, have led to the disintegration of truth, the reign of unanswerable speech, and the silencing and self-censorship of women, queer people, persons of color, and other racial and ethnic minorities.