Censorship

The report of the  Review of Australian classification regulation provided to the government by former Communications Dept Secretary Neville Stevens in May 2020 has now been released.

The Review's Terms of Reference were

Classification plays a crucial role in helping Australians make informed decisions about content they or those in their care watch, read and play. 

 

The current National Classification Scheme (the Scheme) exists to provide a framework by which films, video games and certain publications made available in Australia receive a rating and consumer advice that provides a safeguard to the Australian public that content is consumed by the appropriate audience. 

 

It is a joint scheme between the Commonwealth and the states and territories and was established in 1995. The Commonwealth Classification (Publications, Films and Computer Games) Act 1995 establishes the framework for classification of content, and state and territory classification legislation regulates the advertising, availability and sale of classifiable content. 

 

The Scheme applies to online and physical video games, films and episodic series on all platforms including in cinemas, on DVD and online (such as streaming services and subscription video on demand) but not to programs broadcast on television. Classification of television programs is regulated under separate codes of practice covering free to air broadcasters, subscription television broadcasters, the ABC and the SBS. In 2012, the Australian Law Reform Commission’s (ALRC) report ‘Classification – Content Regulation and Convergent Media’ found that classification legislation ‘does not deal adequately with the challenges of media convergence and the volume of media available to Australians’. The Convergence Review Committee’s report in 2012 endorsed the findings of the ALRC review. Consistent with these reviews, the Australian Competition and Consumer Commission’s (ACCC) Digital Platforms Inquiry final report recommended that ‘a new platform-neutral regulatory framework be developed,’ including ‘creating a nationally uniform classification scheme to classify or restrict access to content consistently across delivery formats’ (Recommendation 6). 

The ALRC review was conducted before the popularisation of online streaming and video on demand services and the significant increase in online and mobile games available in Australia. This review will build on the ALRC report in the context of today’s diverse media content market. Consistent with the agreement of the Council of Attorneys-General, a review of the National Classification Code, the Guidelines for the Classification of Films (Films Guidelines) and the Guidelines for the Classification of Computer Games (Computer Games Guidelines) will also be undertaken to ascertain whether they continue to reflect contemporary community standards. The National Classification Code and the Films Guidelines were last reviewed in 2002, and the Computer Games Guidelines were last reviewed prior to the introduction of the R 18+ category for games in 2013. 

Scope 

 

An independent expert will be appointed to conduct the review, supported by the Department of Communications and the Arts (now the Department of Infrastructure, Transport, Regional Development and Communications).   

 

The review will cover: 1. Opportunities to harmonise the classification of, or restriction of access to, content across different delivery platforms including broadcasting services (commercial free to air, national broadcasting and subscription television), online stores and services, cinema releases, and physical product (e.g. boxed video games and DVDs). 2. The design of a contemporary Australian classification framework, including: a. What content requires classification; b. Consistency of classification categories, standards and access restrictions across media formats; c. Classification decision-making processes, including mechanisms for review; and d. Governance arrangements, including the suitability of the current cooperative scheme. 3. Opportunities to update classification decision-making standards, including a comprehensive review to update the National Classification Code, the Films Guidelines, and the Computer Games Guidelines. 

 

The following issues are out of scope: • Broader content regulation issues outlined in Recommendation 6 of the ACCC’s Digital Platforms Inquiry. Content regulation reform is a significant undertaking that needs to be broken down into interrelated processes. • Regulation of sexually explicit content online, which will be considered in possible reforms to the Online Content Scheme in Schedules 5 and 7 of the Broadcasting Services Act 1992.

The Report states

Australia’s classification system has existed since the early 1900s and has evolved over the decades. Departmental research consistently shows classification is wanted and valued by Australians. From an early focus on censorship, the system has shifted to providing information and guidance to help parents make decisions about the suitability of content for children of varying ages and to provide all consumers with information to make informed choices. 

There have been a number of reviews of classification arrangements including the Australian Law Reform Commission’s report in 2012 and the Australian Competition and Consumer Commission’s Digital Platforms Inquiry report in 2019. These reports highlighted deficiencies with current classification arrangements and recommended significant changes to take into account the increase in content available online and the convergence of media platforms. 

Areas of concern raised by these reviews and reinforced by submissions to this review include: • The high cost of the processes of the Classification Board (the Board), especially given the volume of content now requiring classification; • Timeframes to use the Board which are too long to be compatible with current media practices; • Separate regulatory systems and regulators for broadcast and for other content providers; • Lack of clarity on what content should require classification due to the very wide and outdated definitions in current legislation; • Lack of compliance with existing legislation among some content providers, including a number of video on demand providers and online games storefronts, partly as a result of the high cost and long timeframes of existing classification practices; • Governance arrangements between the Australian Government and the states and territories, which could better define roles and responsibilities of the various parties in an online environment, and which are not seen as sufficiently timely or flexible; and • Lack of a regular approach to updating classification guidelines to reflect contemporary community concerns and research into relevant matters, including child development issues. 

 

My analysis of these issues and my recommendations for change are informed by the need for a future classification regulatory framework that: 1. Is able to adapt to new technologies, market developments and emerging issues of community concern; 2. Provides clear, useful and easily accessible information to enable consumers to make informed media choices for both themselves and for their children; 3. Has evidence-based classification guidelines that are regularly updated, taking into regard both expert knowledge and Australian community standards; 4. Enables classification arrangements that are efficient and cost-effective for industry, that are consistent across content platforms and which have the confidence of the community; 5. Provides appropriate content restriction and enforcement for both physical and online content; and 6. Enables timely decision-making on changes to the classification scheme. 

 

National Classification Code and standards 

 

Clause 1 of the National Classification Code and section 11 of the Classification (Publications, Films and Computer Games) Act 1995 contain a range of underpinning principles and matters to be taken into account in classification. Although formulated in 1995, many aspects of these overarching principles retain value, in particular the balancing of protecting children from harmful content while preserving the right of adults to “read, hear, see and play what they want.” However, other concepts and language contained in these provisions, which have roots in the history of classification, are in need of an update. Such amendments would reflect the evolution of classification from its historical origins in censorship and concerns for public morals to a more objective, harms-based system focussed on informing consumers (particularly parents) and protecting children. 

 

I recommend that key principles set out in the National Classification Code be updated to provide that: • Adults should be able to read, hear, see and play what they want, with limited exception; • Minors should be protected from content likely to harm or disturb them; and • Everyone should be protected from exposure to content of serious concern to the wellbeing of the community. 

 

Content to be classified  

 

There is a need to clarify what content should be classified, as current definitions in the Classification (Publications, Films and Computer Games) Act 1995 were designed for the content market of the 1990s and technically capture all streaming services and user-generated content uploaded to sites such as YouTube. 

 

The focus of classification should be on content that is most relevant and important to Australian consumers. I therefore recommend that the following three principles should be used to define content that should be classified: • Professionally produced – content with higher quality production values; and • Distributed on a commercial basis – to capture organisations or individuals that distribute media content as part of their business, as opposed to individuals or community groups whose main purpose is not to distribute media content for commercial gain; and • Directed at an Australian audience – a selection of content is specifically made available for Australia or marketing is specifically directed at Australians. 

 

Narrowing the definition of ‘classifiable content’ will capture online video on demand providers and online games stores directed at Australian consumers but exclude user-generated content. Classification should continue to be the responsibility of the organisation that makes the content available first in Australia, regardless of who originally made the content. 

 

The eSafety Commissioner would continue to have responsibility for responding to online content that is illegal, including content that would be Refused Classification under the National Classification Scheme. 

 

As part of the classification of films, sexually explicit (X 18+) films in physical formats should continue to be classified. Sexually explicit content online is regulated by the Online Content Scheme which is currently being reviewed. 

 

Current classification exemptions for films, computer games and publications should be maintained.   

 

Processes to classify content 

 

A range of different classification processes currently exist under the National Classification Scheme and broadcasting laws. Where some content providers are submitting content to the Board, some are using classification tools and others are self-classifying content. These varying processes mean that classification can be more expensive and time-consuming for some parts of industry compared to others and this uneven playing field can have an impact on compliance with classification laws. 

 

Classification decisions need to be consistent, accurate, accessible and easily understood by consumers. The community must have confidence that the right classification outcome is reached, regardless of the process that is used to achieve that classification. 

 

I recommend harmonising processes across platforms so that industry is given greater responsibility for undertaking classification, with the flexibility to choose the classification process that best suits them. These processes would be: • Self-classification by people trained and accredited by the regulator, who could be either in-house staff or third-party classifiers; or • Self-classification using classification tools approved by the Australian Government Minister; or • Submitting content to the regulator for classification. 

 

Many computer games online show Australian classifications using the International Age Rating Coalition (IARC) tool. However, Apple’s App Store uses its own international age-rating system where games are classified 4+, 9+, 12+ or 17+. The Apple App Store’s own system is working well – there are few complaints to the Department, and the Department’s research with the community indicates there is general consumer acceptance. I therefore recommend that the relevant Australian Government Minister should have the power to authorise the use of alternative classification systems for computer games where they provide the necessary classification information for the Australian community. 

 

The games storefront Steam, operated by the company Valve, does not display Australian classification information for all games and does not provide Australian consumers and parents with adequate information to help them make informed choices. This needs to change. If Valve does not participate in IARC in the near future, I recommend that the Department further discuss with Valve the implementation of a separate tool to generate Australian ratings for computer games sold to Australian consumers on Steam. 

 

Currently, the same content is required to be classified separately for release across different platforms and in different formats. To avoid this double handling, I recommend that once content is classified once, it should not need to be classified again, unless it is modified and the modification is likely to change the classification. However, content providers should be able to give additional consumer advice where necessary.\ 

 

The only exceptions to this would be to: • Allow content providers to reclassify content after 10 years to reflect changing community standards; and • Provide a limited provision for content providers to apply to the regulator for approval to reclassify where they consider the original classification category (e.g. G, PG, M, etc.) requires reassessment. 

 

Classification decisions should continue to be uploaded and published on the National Classification Database at www.classification.gov.au, and this database should also include content classified by the broadcasters. This will provide transparent information to Australian consumers and help content providers find the classification of content that has previously been classified. 

 

The review of classification decisions should be transferred from the Classification Review Board to the Australian Government regulator. In the infrequent cases where the regulator was the original decision-maker, alternative staff would review the decision to manage any conflict of interest issues. 

 

The community must have confidence that the move to greater industry self-classification will not undermine the integrity of the classification system. To continue high levels of community confidence in classification, industry self-classification must be underpinned by a robust accreditation, audit, review and timely complaints mechanism overseen by the Australian Government regulator. 

 

Classification categories and consumer advice 

 

A variety of suggestions were made about changes to the classification categories, including adding a category between PG and M, or introducing entirely new age-based categories. Although I see merit in providing more guidance on age suitability for parents, I do not recommend changes to classification categories at this time. 

 

The current scheme, while it may not be perfect, is well known to the community and a clear case would need to be made for any changes. There is no consensus amongst stakeholders, or arising from the Department’s consumer research, for any particular alternative system and changes are strongly opposed by some stakeholders on commercial and technical grounds. However, this matter should be kept under review. 

 

I recommend that the Refused Classification category should continue to include both illegal content and content which is abhorrent to the community but that it be renamed Prohibited to make the meaning of this category clearer. 

 

I also recommend that the current categories for submittable publications be replaced with equivalent categories currently in use for films and computer games: Unrestricted would be replaced with M, Category 1 restricted replaced with R 18+ and Category 2 restricted replaced with X 18+. This change would be clearer for consumers and bring greater uniformity to the classification system. 

 

There are various views in relation to consumer advice and how it is currently applied by classification tools, by broadcast classifiers and by the Board. With a move to greater industry self-classification, there needs to be more detailed guidance given to industry so that consistent consumer advice is provided. 

 

To be useful, consumer advice should be specific, direct and consistent. In this vein, I recommend that generic consumer advice, such as ‘strong themes’, be avoided wherever possible and instead, more descriptive consumer advice be provided. 

 

In updating guidelines for consumer advice, greater recognition should be given to current and emerging community concerns such as suicide, incitement of racial hatred and domestic violence. 

 

Legal restrictions 

 

Currently, the categories MA 15+ and R 18+ are legally restricted under the National Classification Scheme. However, MA 15+ content is not legally restricted on free to air television where broadcasters are subject to a requirement that it be broadcast after at least 8.30pm. Moreover, this content is readily available at any time through broadcasters’ video on demand (catch-up TV) services. Reflecting this, the MA 15+ category stands for Mature Audience on free to air television compared with Mature Accompanied for content classified under the National Classification Scheme. 

 

Despite MA 15+ and R 18+ both being legally restricted categories, an important distinction lies in the provisions relating to adult accompaniment or consent that apply to MA 15+. This means that the age restriction for this category is conditional on the physical accompaniment (for example, during the duration of a film screened in a cinema) or consent (for example, when purchasing a product in store) by a responsible adult. In contrast, the restriction of R 18+ is unconditional and only individuals 18 years and older can access this content. 

 

In the online world, where the concept of another person’s accompaniment or consent is difficult to monitor or enforce, the full conditions of MA 15+ arguably lose their validity. The fact that the accompaniment or consent caveat does not have application in a home setting is reflected in the different conditions that apply to the MA 15+ category for broadcast content. 

 

I consider that arrangements should be consistent across all online platforms and I am recommending that MA 15+ content accessed online no longer be legally restricted. Legal restriction of this category is not enforceable via available technology and this change would harmonise arrangements between broadcasters and other content providers. There are an increasing number of parental controls available online that enable parents to restrict access to particular content and I recommend that these be more widely available and better promoted. 

 

I recommend that the MA 15+ category should remain restricted in the physical world as there are readily available means of enforcing this restriction and in its absence, there would be no alternative mechanism for parents to prevent their children accessing this material. The R 18+ and X 18+ categories should remain restricted on all formats and the best available technology should be employed to restrict access. 

 

Classification guidelines 

 

There are different but similar guidelines for the classification of films applying to online content providers and free to air and subscription broadcasters. It would be preferable to have a single set of guidelines for films applying across all delivery platforms. 

 

The Films Guidelines use an impact hierarchy for classification, which is inherently subjective and relies heavily on the capacity of the Board to interpret in a consistent manner. The guidelines used by television broadcasters, by comparison, are more detailed in their description of what is allowable in each category. As classification increasingly becomes the responsibility of industry, there is a need for guidelines to be as detailed and as specific as possible to enable the provision of consistent classification decisions and information. This would provide the public with a transparent set of classification criteria and engender confidence in the system. 

 

I therefore recommend the development of more detailed and consistent guidelines across all delivery platforms. 

 

Currently, there is no mechanism for regular reviewing and updating of guidelines to reflect community standards, empirical research on child development issues or developments in content or modes of delivery. I recommend that a Classification Advisory Panel comprising experts in child development and other relevant fields, as well as representatives of community groups and those with industry experience, be established to provide advice on updates of the classification categories, National Classification Code, classification guidelines and matters to be taken into account in decision- making in the Classification Act. The panel would draw on both the empirical evidence in relation to harmful impacts of media content, especially on children, and research and consultation with the community. It would report at least every four years on possible updates to classification guidelines and as necessary to respond to issues that may be referred to it or on which it considers attention needs to be given. 

 

There are separate guidelines used to classify films, computer games and publications. A number of submissions called for the merging of the Films Guidelines and Computer Games Guidelines. Many adult gamers were concerned that the differences in these guidelines were unnecessary and resulted in a number of games being Refused Classification when they are both readily available internationally and would not be Refused Classification under the Films Guidelines. 

 

While there was considerable support for eliminating inconsistencies between the Computer Games Guidelines and Films Guidelines, other submitters were concerned that simply combining these Guidelines would not adequately capture certain interactive game features or provide adequate safeguards for children. 

 

I consider that there is a need to address concerns about the impact of interactive content on children and about violence in computer games, and for this reason do not recommend the merging of the Films Guidelines and Computer Games Guidelines. 

 

However, there are provisions in the Computer Games Guidelines that are more restrictive than the Films Guidelines and have led to a number of games being Refused Classification in Australia. Consistent with the principle in the National Classification Code that “adults should be able to read, hear, see and play what they want,” I recommend that the Films Guidelines and Computer Games Guidelines should be aligned at the R 18+ level and that corresponding changes are made to the Refused Classification provisions in the Computer Games Guidelines. Existing protections would continue to be applied, particularly relating to interactivity, for content below that level that may be accessed by children. 

 

Films Guidelines 

 

Some specific issues were raised in respect of the Films Guidelines. Concerns about sexualised depictions of minors in films is one such issue. While context, artistic merit and intended audience should be taken into consideration when assessing a film generally, sexualised depictions of minors (whether real or animated) that are gratuitous, exploitative or offensive, and which sexually objectify children, should never be permitted. 

 

I recommend that the Films Guidelines should be amended to make reference to the need to give greater weight to the possibility that sexualised depictions of children are gratuitous, exploitative or offensive. While the current classification system provides for child abuse material to be Refused Classification, the provisions in the Commonwealth Criminal Code Act 1995 (the Criminal Code) in relation to child abuse material are much more detailed than those in the National Classification Code and Guidelines, and I recommend that the National Classification Code and Guidelines should be aligned with the Criminal Code in this regard. 

 

There is also a need for clear warnings for consumers and specific guidance for classifiers about matters such as violence against women and sexual violence, suicide, dangerous imitable behaviour and scary content. 

 

I recommend that the Classification Advisory Panel should address these issues in providing advice on the development of revised and more detailed guidelines. It should also review evidence of impacts on children of lower levels of violence. While current treatment of language in classification is considered generally acceptable, there would be value in including racist and other discriminatory language in this element. I also recommend that the use of alcohol, prescription medications and smoking should be considered under the element ‘drugs’. 

 

For X 18+ films, I recommend that the absolute prohibitions on fetishes, which are not illegal, and violence (where it is unrelated to sex) should be removed. 

 

Computer Games Guidelines 

 

Issues relating specifically to the Computer Games Guidelines that have emerged during this review include simulated gambling, loot boxes and other micro-transactions. The main issue with loot boxes is the combination of expenditure with chance and concerns about gambling-like impacts on players, including children. To address this, I recommend that loot boxes that can be purchased are given consumer advice addressing both expenditure and chance aspects, and are given a minimum classification of PG. 

 

Simulated gambling games, which replicate casino games, require a stronger response to prevent children’s access to such games. I recommend that games which are purely based on simulated gambling should be given a minimum classification of MA 15+ and continue to be given consumer advice of ‘simulated gambling’. However, games which incorporate simulated gambling in a less prominent way (e.g. as part of a broader, narrative-based game), and where simulated gambling can be avoided, may not need such a high rating. Appropriate consumer advice would include ‘simulated gambling’ where it is interactive and clearly replicates casino games. 

 

Publications Guidelines 

 

There were few suggested changes to the Publications Guidelines. While I recommend maintaining separate Guidelines for Films, Computer Games and Publications, the Publications Guidelines should incorporate definitions of classifiable elements which are consistent with those used in the Films Guidelines and Computer Games Guidelines. Clarity is also needed in relation to allowable detail in depictions of nudity. 

 

Concerns were raised by two stakeholders about sexualised depictions of children in publications. As with the Films Guidelines, the Publications Guidelines should include the need to give greater weight to the possibility that sexualised depictions of children are gratuitous, exploitative or offensive. 

 

Advertising of films, games and publications 

 

I recommend no changes to classification regulation for the advertising of films, computer games and submittable publications, although responsibilities for advertising assessments that currently lie with the Board should be the role of the Australian Government regulator. 

 

Advertising for films and computer games on television should continue to be regulated through broadcasting codes of practice and the Australian Association of National Advertisers codes. Complaints about the placement of advertising should continue to be referred to the broadcaster in the first instance, with escalated complaints being dealt with by the regulator. Complaints about the substance of advertising should continue to be referred to Ad Standards. 

 

I looked closely at the film industry’s proposal to change Commonwealth laws for advertising unclassified films where the content of the trailer is assessed rather than the likely classification of the film being advertised. However, I recognise that parts of the Australian community may have concerns about potentially unsuitable films being marketed to children, in cinemas in particular, and on balance recommend no change. 

 

Classification governance 

 

Role of the Australian Government and the states and territories 

 

Under the National Classification Scheme, the Australian Government is responsible for classifying content and the states and territories are responsible for regulating the sale, exhibition, advertising and hire of classifiable content. Under the intergovernmental agreement signed in 1995, decisions made by Ministers must be effected through the Council of Attorneys-General (CAG). Any changes to the National Classification Code and the classification Guidelines must be unanimously agreed by Ministers from all jurisdictions. Many submitters were concerned that these long-standing arrangements were no longer working well in the digital age. 

 

To clarify classification responsibilities and to make classification decision-making more responsive to changes in the content market, I recommend that the 1995 intergovernmental agreement be revised so that: • The Australian Government retains responsibility for establishing the mechanisms to classify content, however a range of different classification processes can be used. • The Australian Government is responsible for enforcement of online classifiable content, with states and territories responsible for enforcement of offline (physical) classifiable content. • CAG decision-making should generally be made on the basis of consensus but where consensus cannot be reached, decisions should be made on the basis of a majority of the members. 

 

The Australian Government regulator 

 

Currently, classification regulation is split amongst a number of Federal bodies, including the Board, the Classification Review Board, Australian Communications and Media Authority (ACMA) and the Department. Consistent with the recommendations to harmonise content regulation across all delivery platforms, I consider that most of these functions should be consolidated in one body. Given its existing role in regulation of broadcasters and online content more generally, I recommend that this body be ACMA.

Sovereigns

'Sovereign citizens: A narrative review with implications of violence towards law enforcement' by Christine M Sarteschi in (2021) 60  Aggressive and Violent Behavior 101509 comments 

Extremist movements are growing in the United States. One concerning extremist group is that of sovereign citizens. Sovereign citizens have been labeled by the Federal Bureau of Investigation as a terrorist threat. Relative to other research about extremist groups, limited research exists about the sovereign citizen movement. The purpose of this article is to review all relevant literature concerning this movement, as it pertains to the threat posed to law enforcement, via descriptive research and to identify existing knowledge gaps. Most empirical work, about sovereign citizens, thus far has focused on legal matters, mental health, radicalization, and postdiction of targeted violence. The work presented here serves as a foundation for future research concerning this group. 

In 2013, a survey of law enforcement intelligence officers rated sovereign citizens as being the top serious terrorist threat, even higher than Islamic terrorists (Carter et al., 2014). Sovereign citizens are a loosely affiliated group of individuals whose primary belief is the illegitimacy of the United States (U.S.) government. They are antigovernment extremists who claim to be above the law and whose origins can be traced back to the Posse Comitatus, tax protestors and militias (Loeser, 2015). Their ideology often overlaps with other far-right extremist groups. They are mostly known for committing acts of paper terrorism, the practice of filing frivolous, pseudolegal claims. These claims involve large sums of money, and are often aimed at government officials, whom they believe have wronged them (Loeser, 2015). 

Most concerning are the sovereign citizens who have committed violent acts. Two incidents, one in Bunkerville, Nevada, and another at the Malheur National Wildlife Refuge, show their proclivity for violence. They pose a unique and significant threat to law enforcement during traffic stops (Smith, 2019) because of their reluctance to follow basic traffic and motor vehicle laws. Upon being stopped for a traffic infraction, sovereigns can become argumentative, combative and non-cooperative. They will often engage in conflict-oriented tactics such as demanding that officers prove jurisdiction, refusing to answer questions or insisting that they “do not consent” to the actions of law enforcement. Another common tactic is when asked to roll down their vehicle's windows, they will only crack the window, claiming that the window is broken. This makes communication difficult or impossible. Law enforcement often has no choice but to break the window and physically remove them from their vehicles. These are long, protracted interactions that can and have become deadly. Lethal force may erupt resulting in the death of the sovereign citizen or the police officer. Specific examples, of the latter, include the 2010 killing of two West Memphis, Arkansas law enforcement officers (LEOs) by father and son sovereign citizens. Another sovereign citizen shot and killed a California Highway Patrol (CHP) officer after being pulled over for an obstructed license plate (KPIX, 2013). 

Despite the problems and threats posed, the sovereign citizen literature base remains quite limited. The primary goal of this research is to provide a narrative review of the literature, to summarize what is known to date and to review the violence aimed at law enforcement by sovereign citizens. This work will not focus on sovereign citizen beliefs and ideology, as that has been extensively described elsewhere (cf. Berger, 2016; Parker, 2014; Sarteschi, 2020). Finally, implications of the current state of affairs and suggestions for future areas of research are included.

Nature

'Are Rights of Nature Manifesto Rights (And is That a Problem)?' by Patrik Baard in (2023) Res Publica comments 

That nature, including insentient entities such as trees, rivers, or ecosystems, should be recognized as right-holders is an enticing thought that would have substantial practical repercussions. But the position finds little support from moral conceptions of rights and moral distinctions that have judicial relevance in the sense of providing normative reasons for legislation and assessing existing laws. An alternative to viewing rights of nature as proper rights resting on valid moral claims that ought to be legally recognized is to regard them as ‘manifesto’ rights. Such rights are based on political demands and hold even if there is no one with a corresponding duty to fulfill them. I investigate whether rights of nature can be considered manifesto rights. Some objections to regarding rights of nature as manifesto rights will be considered, such as difficulties of delimiting the borders of an environmental entity and making successful analogies with existing (human) rights based on interests and needs. It will be suggested that while some of those challenges can be mitigated by custodianship, it is not clear what needs of insentient entities in nature would justify such claims. It is found that rights of nature depend substantially on legitimate custodians both for delineation of the entity in question and for establishing interest-like characteristics. But rights of nature are not manifesto rights when there is a legitimate custodian having the possibility of evoking duties in others. However, the need for a legitimate custodian in delimitation and establishing normatively relevant characteristics of specific environmental entities defeats universal appeals to rights of nature. 

Rights of nature (hereafter: RoN) may finally have come to fruition. Legislation in some nations are affirming the position, as is the United Nation’s program Harmony with Nature (United Nations n.d.), communities and activist groups are demanding recognition of RoN (Kauffman and Martin 2021), authors discuss them (Powers 2018), and anthologies are published on them (Corrigan and Oksanen 2021). Even business organizations are getting warm to the idea, such as the Sustainable Markets Initiative’s suggestion of a ‘terra carta’ (Sustainable Markets Initiative n.d.). In short, there are many calls for RoN to be accepted, and it is generating increased interest. 

In this article, RoN refer to the supposed rights of insentient entities, moreover primarily encompassing aggregates such as rivers or forests. Such rights are correlated by duties of moral agents to not damage the entities in question, or imperatives to contribute to restoration should damage occur, and ought to be reflected in legislation for moral reasons. While the relation between ethics and law is by no means straightforward, the following will assume that ethical reasons can play a role in legislation, both when new laws are established, and when assessing existing laws. Moreover, as will be discussed below, there are moral distinctions with legal relevance (Kramer 2001). The awkward concept ‘entity’ is motivated by how RoN encompass a diverse range of (inanimate and insentient) objects and systems, such as rivers. To successfully accept RoN as universally valid rights that there are reasons for everyone to accept (and that should eventually issue in corresponding legislation), requires us to radically re-conceptualize notions of rights and their supporting pillars. The entities in question differ so much from other right-holders such as natural persons, citizens, and even sentient animals that it becomes highly questionable whether the same conditions apply, or whether rights would mean the same thing that we conventionally understand by them, as a right-holder having rights by virtue of specific characteristics, and grounding others’ duties. That is, current conceptualizations of moral rights with legal relevance are not applicable to natural entities. Rather, one must then settle for different criteria. Such re-conceptualization of rights is risky, given how current conceptions of rights, despite weaknesses of practical implementation, provide a ground for valid claims with substantial ethical, political, and legal importance. The risk is that right-holding, and the conditions upon which rights are ascribed, becomes unclear and too volatile to be practically implementable. This poses the choice to either reject RoN to keep existing conditions for justifying rights, or to accept RoN and reject existing conditions in favor of a model with greater flexibility. 

Rather than these two options, I will investigate whether RoN can be considered ‘manifesto rights’. Manifesto rights are claims that are not yet valid claims (Feinberg 1970), and towards which no one has a corresponding duty to fulfill the claims (Pogge 1995). Such valid claims are here understood as proper rights, consistent with conventional understandings of rights resulting in claims (Feinberg 1970; Raz 1986). Feinberg suggests that a ‘claim’ that is not yet valid refers to needs, but not against any particular individual (1970, p. 254), which differs from proper rights that are valid claims resulting in duties of specific individuals. Manifesto rights are political calls for claims and needs to be recognized as valid, but which are not yet proper rights. To regard RoN as manifesto rights has the benefit of avoiding many of the objections to RoN as ‘proper rights’, while encompassing the intuition that a wrong is committed or interests are wrongfully neglected when a species goes extinct or habitat loss increases, even if it is not clear who is to do what. 

Advocates of RoN suggest that they are proper legal rights or rights of more universal validity, often with reference to moral conceptions of rights, or axiological concepts such as intrinsic value (Stone 2010, 1972; Chapron et al. 2019). Though the relation between moral and legal rights is complex, to provide convincing arguments for moral conceptions of rights seems to be a strong part of a case for legal rights of nature. But as I will outline below, support from moral conceptions of rights is not available. Consequently, in this case, to regard RoN as manifesto rights provides a possible normative credential to RoN, and places them in the vicinity of rights through notions of claims that are not yet valid claims (Feinberg 1970), while also recognizing the calls from social movements and activists that RoN refer to an actual need that ought to be legally encoded. To justify RoN as ‘manifesto rights’ has the potential of providing support for a central contemporary discussion that will have practical implications for environmental law and governance, even if RoN cannot be considered proper rights. 

Following this introduction, I will clarify how RoN are ill-fitted with conventional notions of rights. Sect. ‘Manifesto rights’ will survey manifesto rights. In Sect. ‘Rights of nature as manifesto rights: Possibilities and objections’, I will investigate whether RoN fulfill the conditions of manifesto rights, before ending with a concluding remark. This includes investigating the extent to which RoN refer to unfulfilled needs, and whether there is no one with a corresponding duty to fulfill that need. It will be concluded that RoN are reasonable when authorized or justified custodians represent that entity, the state it is to be in, and evoke corresponding duties of others. Thus RoN, under some conditions, are more like proper rights than manifesto rights, which defeat RoN as being general and universal rights applicable to wider sets of environmental entities.

'Rights of Nature Reach Europe: The Mar Menor Case in Spain in the Light of Latin American Precedents' by MC Fuchs in Verfassungsblog comments 

On September 30, 2022, the Spanish Senate approved the „Mar Menor Act “(Law 19/2022) which granted legal personality to the Mar Menor lagoon and its basin. Being the first legal text in Europe to recognize a natural entity as a subject of rights, it is one more piece in the mosaic of a global movement towards ecological justice, which tries to find strong legal answers in times of global ecological crisis. 

However, the Act is not met with approval everywhere. It is a thorn in the side of Spanish right-wing populists. A few days ago, on the 7th of February 2023, the Spanish Constitutional Court allowed a constitutional challenge against the Act brought forward by members of the Vox parliamentary group. In addition to alleged violations of the right to private property and freedom of occupation, among others, Vox challenges the Act’s legal basis because of disproportionate restrictions on agricultural activities in the region. They consider the concept of rights of nature as constitutionally unclear. Any decision or sanction carried out on the basis of the Act would be legally uncertain and therefore void.

Robots

'Both/And - Why Robots Should not Be Slaves' by David J. Gunkel in Person, Thing, Robot: A Moral and Legal Ontology for the 21st Century and Beyond (MIT Press, 2023) comments 

One solution to the exclusive person/thing dichotomy that persists in both moral philosophy and law is slavery. Already in Roman times, slaves were regarded as something more than a mere thing but not quite a full person. They occupied a liminal position that was situated in between the one and the other, being both thing and person. And there has been, in both the legal and philosophical literature, a surprising number of serious proposals arguing for instituting what can only be called Slavery 2.0. This chapter provides a thorough critique of these “robots should be slaves” proposals, demonstrating how this supposed solution to the person/thing dichotomy actually produces more and significantly worse problems than it can possibly begin to resolve.

Tracking

'Eye-Tracking in Virtual Reality:A Visceral Notice Approach for Protecting Privacy' by Evan Selinger, Ely Altman and Shaun Foster in (2023) 2 Privacy Studies Journal 1-34 comments 

Eye-tracking is in our future. Across many fields, it is becoming widely used. This paper analyzes eye-tracking in virtual reality and characterizes the results as a case study that illuminates novel privacy risks. Our research question is: How can we support and protect users in this environ-ment? We consider a design strategy originally proposed by Ryan Calo called “visceral notice” that provides users with an experientially resonant means of understanding privacy threats. To make our case for visceral notice, we proceed as follows. First, we provide a concise account of how eye-tracking works, emphasizing its threat to autonomy and privacy. Second, we discuss the sensitive personal information that eye-tracking reveals, complications that limit what eye-track-ing studies establish, and the comparative advantage large technology companies may have when tracking our eyes. Third, we explain why eye-tracking will likely be crucial for developing virtual reality technology. Fourth, we review Calo’s conception of visceral notice and offer suggestions for applying it to virtual reality to help users better appreciate the risks of eye-tracking. Finally, we consider seven objections to our proposals and provide counterpoints to them. 

David Eggers’s fictional satire of Silicon Valley, The Every, presents an incident where a powerful technology company uses eye-tracking technology to derail a politician’s career. A “vigorous” “global debate about the ethics of eye tracking” follows. However, as Eggers writes, “anyone hoping to hold back” the technology “was proven a fool.” Once “capitalists leaped in” and “apps and related products” started “proliferating,” it was too late to prevent technology companies from engineering uncritical societal acceptance of their vision. It will be tragic if real life ends up imitating art. 

Like it or not, eye-tracking is picking up steam. For example, eye-tracking could provide manufacturing companies with insights into the “cognitive state” of their employees, their situational awareness, their attention, and more, leveraging that data to identify, predict, and eliminate inefficiencies.4In light of all the workplace possibilities, eye-track-ing researchers warn that the technology “should never be used for ‘big brother’ style monitoring or for evaluative assessments of workplace satisfaction and performance.” 

Workplace surveillance is just the beginning. Tobii, a prominent Swedish eye-tracking company, claims to “unlock the future” by applying eye-tracking to simulations that enhance how pilots and doctors are trained in high-intensity but low-risk environments. Eye-tracking could also gauge if drivers are attentive behind the wheel. Additionally, researchers are exploring the possibility of expanding eye-tracking to typical smartpho-nes (no VR headset required). This shift has the potential to increase eye-tracking by “orders of magnitude.” 

During this eye-tracking frenzy, it is important to look to the future and proactively address one of the most concerning applications: virtual reality (henceforth, VR). If the enthusiasm surrounding the metaverse is any indication, VR will likely be one of the largest eye-tracking domains. Currently, metaverse-oriented companies are investing heavily in VR technology and services. As recently as October of 2022, Meta released their newest VR headset (which has eye-tracking capabilities), the Meta Quest Pro, for a hefty $1,499. A frequently cited estimate predicts “the collective value” of change that the metaverse will facilitate “will be in the tens of trillions of dollars.” 

While it may be a decade or more before VR goes mainstream outside gaming, enterprise and health products, and specialized simulations, we ought to start thinking about pri-vacy now. Otherwise, it may be too late to enact robust safeguards to mitigate the flow of function creep and the power that special interests will exert over infrastructure and technical standards. Without anticipatory governance, too much control will be ceded to technology companies with poor privacy track records, like Meta, that are prioritizing VR development. As heavily financed first-movers, they will have a powerful influence on consumer behaviour. 

We expect users will face heightened privacy risks in VR. Some problems are familiar, such as companies aggregating sensitive information into big data profiles, weaponizing predictive analytics, and deploying dark patterns. Given how interfaces are often desig-ned and the invisibility of back-end data collection and analysis, people cannot reaso-nably be expected to understand what they agree to and how vulnerable they become when consenting to typical terms of service agreements. Our paper focuses on one of the most important new threats in VR: eye-tracking. As Tom Wheeler, former chairman of the U.S. Federal Communications Commission, notes: “Meta has already patented tech-nology to build eye tracking and facial expression tracking into the optical equipment worn to access the metaverse ... [that] ... could be more revealing than hooking up to a lie detector.” 

To address the privacy risks that eye-tracking poses, this paper considers the following research question. What are the merits and limitations of a design shift for conveying information in an experientially resonant manner that follows privacy scholar Ryan Calo’s “visceral notice” strategy? We see this as a modest proposal, not a silver bullet. After all, providing robust privacy protections in VR will require many governance mechanisms. Furthermore, since our design recommendations are conjectural, additional interdisciplinary testing is required to assess their efficacy. 

To make our case for visceral notice, we proceed as follows. First, we provide a con-cise account of how eye-tracking works, emphasizing its threat to autonomy and pri-vacy. Second, we discuss the sensitive personal information that eye-tracking reveals, complications that limit what eye-tracking studies establish, and the comparative advan-tage large technology companies may have when tracking our eyes. Third, we explain why eye-tracking will likely be crucial for developing VR technology. Fourth, we review Calo’s conception of visceral notice and offer suggestions for applying it to VR to help users better appreciate eye-tracking risks. Finally, we consider seven objections to our proposals and provide counterpoints to them. We recognize that eye-tracking exists outside of VR, that eye-tracking data in VR can be combined with additional information, and that even without eye-tracking, companies can collect and analyze a host of sensitive information in VR, including biometric data. Indeed, researchers who constructed an escape room game in VR to experimentally determine how many privacy data attributes an attacker can obtain, claim the metaverse presents “unprecedented privacy risks.” Nevertheless, we limit the scope of our analy-sis to the privacy risks that eye-tracking poses in VR. Our justification is that developing the hardware and software needed to create maximum fidelity and engagement likely means relying heavily on eye-tracking. The confluence between technical requirements and privacy risks makes eye-tracking in VR a topic worthy of its own inquiry – especially because, as we will contend, designers can use the distinctive affordances of the medium (perhaps more effectively than in typical 2D applications) to highlight novel dangers. Relatedly, we recognize that visceral notice in the context of privacy risks is neither a comprehensive nor global solution. Nevertheless, as U.S.-based writers we live in a coun-try where the notice-and-consent regime is central to privacy regulation. Consequently, this is our starting point, and we believe that our analysis of visceral notice’s application to eye-tracking risks will have broader value.

Rights

In 'Robot Rights? Let’s Talk about Human Welfare Instead' (2020 AAAI/ACM Conference on AI, Ethics, and Society (AIES’20), February 7–8, 2020) Abeba Birhane and Jelle van Dijk comment

The ‘robot rights’ debate, and its related question of ‘robot responsibility’, invokes some of the most polarized positions in AI ethics. While some advocate for granting robots rights on a par with human beings, others, in a stark opposition argue that robots are not deserving of rights but are objects that should be our slaves. Grounded in post-Cartesian philosophical foundations, we argue not just to deny robots ‘rights’, but to deny that robots, as artifacts emerging out of and mediating human being, are the kinds of things that could be granted rights in the first place. Once we see robots as mediators of human being, we can understand how the ‘robot rights’ debate is focused on first world problems, at the expense of urgent ethical concerns, such as machine bias, machine elicited human labour exploitation, and erosion of privacy all impacting society’s least privileged individuals. We conclude that, if human being is our starting point and human welfare is the primary concern, the negative impacts emerging from machinic systems, as well as the lack of taking responsibility by people designing, selling and deploying such machines, remains the most pressing ethical discussion in AI.

Contempt

In Yap -v- Matic [No 7] [2023] WASC 55 the Court has dealt with  contempt by a sovereign citizen, stating 

[18] Contempt of court is a matter that lies both within the court's inherent jurisdiction and is provided for by the statutory regime relating to the court's powers. It is a tool that the court may employ to protect the due administration of justice. A finding of contempt may be dealt with summarily and may, if appropriate, result in the imprisonment of a contemnor without trial. 

[19] The ability of the court to charge a party with contempt, to determine the matter of guilt and to impose a penalty of its own volition is an immense power and must be exercised sparingly It is therefore important to distinguish between that conduct of which the court disapproves, and that which attracts the court's condemnation and punishment. 

[20] In John Fairfax & Sons Pty Ltd v McRae, their Honours Dixon CJ, Fullagar, Kitto and Taylor JJ quote from Cotton LJ in Hunt v Clarke as follows: 

A penalty will not be imposed in its exercise 'unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference'.

[21] Conduct which the court considers unusual, irritating, rude or even belligerent does not necessarily invoke the summary powers of the court. A party may express beliefs about the legitimacy of a court order, or the quality of a judgment, or may resist particular principles of law. It is not enough that the court is insulted, or that the beliefs expressed do not align with those of the judicial officer. The threshold requirement is that the court must find that the conduct interferes with the administration of justice or in some way demonstrates a contumelious disrespect for the authority of the court. 

[22] In matters such as this it is particularly important to emphasise that the court does not impose punitive measures in relation to people's beliefs. Mr Matic is quite entitled to his beliefs even if they are irrational, irritating or even offensive to others. In a tolerant and humane society people must be entitled to hold such beliefs without fear of sanction or punishment from the State. History is littered with the tragic consequences of intolerance and injustice perpetrated by state authorities for beliefs that do not meet with the approval of the governing or ruling elite. However, at the same time the court must be concerned with, and must remain vigilant to protect, the administration of justice from conduct, including on occasion the expression of views, that corrodes public confidence in and respect for the courts and the justice system. A just and tolerant society must zealously guard the instruments and institutions that preserve justice and tolerance. ...

[26] ... In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, 313 - 314, Kirby P observed:

Contempt law has been fashioned by the courts to protect the administration of justice. This is an activity, self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours. In Ditfort v Calcraft (1989) 98 FLR 158 at 160, I said: '... These well known features of our legal system make the faithful compliance with subpoenas issued by the courts essential to the proper administration of justice.' A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately [sic appropriately] emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. ...

[27] Recently, the Western Australian Court of Appeal considered the purpose of punishing contemnors in R v T. In that decision, Mazza, Mitchell and Vaughan JJA said:

Sentencing for a contempt of court constituted by a breach of the court's orders may serve two distinct purposes. These purposes may be described as coercive and punitive. A sentence for contempt may provide a coercive means by which the court orders can be enforced and future compliance with the order secured for the benefit of a party to the proceedings can be ensured. However, a sentence for contempt may also punish wilful disobedience of a court's order so as to vindicate judicial authority and maintain the integrity of the court's process in the public interest.

[28] Their Honours went on to observe that:

It is also clear that punishment of past intentional disobedience of court orders is a significant consideration in sentencing for contempt of court. As the Full Court of the Family Court of Australia recognised in Tate:

Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, it is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party's failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.

... 

[30] In relation to those factors, I make the following observations. (a) Sandi Matic's contempt was serious in the sense that it was a deliberate and defiant disregard of an order of this court. However, other than continuing to delay the proceedings, and the distraction and diversion of public resources caused thereby, the consequences of the contempt were limited. (b) The context of the contempt is unfavourable to Sandi Matic. At the time of the conduct that gave rise to the charge of contempt, that is 30 November 2022, Sandi Matic had already been convicted of contempt once before, on 27 October 2022. (c) The reason for the contempt, at least insofar as Mr Matic has submitted, was a lack of understanding of the significance of, or doubt in relation to the authenticity of, the relevant orders. In part for the reasons set out in Yap v Matic [No 4], and in part in relation to the oral submissions proffered by Mr Matic on 13 December 2022, I do not accept those reasons. (d) There is no evidence that Mr Matic gained any benefit from his contempt, other than to delay the proceedings by a week. (e) Mr Matic has expressed no remorse, nor contrition, for his contempt in any real sense. In fact, since being convicted for contempt in December 2022, Mr Matic has continued to fail to appear at hearings, including the hearing of 30 January 2023. (f) Other than matters I have canvassed in previous decisions in these proceedings, Sandi Matic has not put before the court any evidence of his character, personal circumstances, or antecedents. There is no evidence of any criminal record. However, I note again that at the time of the relevant contempt, Sandi Matic had already been convicted of contempt, and since that conviction, has been separately convicted of criminal contempt by her Honour Archer J. (g) General and personal deterrence, and denunciation of the contempt, are important factors in this case. I shall return to these issues. ... 

[39] The case of Sandi Matic raises important questions about the nature of contempt, and the metes and bounds of the court's authority. I shall emphasise again, that the function of this charge and penalty is not to punish Sandi Matic for his beliefs, or to necessarily seek to correct the beliefs that Sandi Matic holds in his private life. 

[40] However, Sandi Matic's behaviour has not been without a cost. That cost involves the court resources that are wasted in hosting repeated hearings when parties fail to appear. There is importantly, a social and reputational cost to the court when litigants are given wide berth to disregard or ignore court orders. There is a cost to other parties, who have the right to expect that court orders will be complied with. 

[41] Additionally, there is a clear need for personal and general deterrence. While Sandi Matic has previously been afforded by me the benefit of doubt in relation to his contemning, the circumstances of this contempt are different. That is most plainly illustrated by the origin of each of the charges. The first conviction for contempt was made out following an application from the plaintiffs in this matter. The second conviction, with which I am now dealing, arose of the court's own initiative. 

[42] In my view, it is tolerably clear that Mr Matic has chosen to knowingly defy court orders. All of the surrounding circumstances, including Sandi Matic's communications with the court and his conduct at hearings relating to this conviction, lead in my view to an irresistible inference that Mr Matic's conduct is born from a lack of genuine acceptance of the authority of the court. 

[43] Mr Matic has at various points, been at pains to express that his failure to appear in accordance with court orders was not a rejection of the court's authority. Rather, he has asserted that his lack of compliance rests on his confusion about the proceedings and set of misguided beliefs about the justice system. ... 

[44] I have previously outlined that Mr Matic's beliefs appear to align with those of the self‑proclaimed ' sovereign citizen ' movement. This is a movement that has been gaining popularity and traction in Australia over the last few years but has also been prolific in other jurisdictions for longer. The growing prevalence of this class of beliefs and associated conduct is a matter of concern for the preservation of the authority of the court and the administration of justice. It reinforces the importance of general deterrence in the community. I reiterate again that Mr Matic is at liberty to hold his beliefs but that does not absolve him of the responsibility to adhere to the rule of law which includes acceptance of, and compliance with, court orders. 

[45] While Mr Matic has stressed in oral submissions and written communications that he is attempting to be 'honourable' and that he does 'respect the court authority', that is not a sentiment frankly, that can be taken seriously against the background of his actual conduct. By the time of the original hearing in relation to this penalty decision, that is the hearing on 30 January 2023, Mr Matic had twice been convicted of contempt by me. He had once been arrested and made to appear before the court. He had been instructed in no uncertain terms that 'if the court orders you to attend, it's not an invitation; it's an order'. On 13 December 2022, when listing the penalty hearing on 30 January 2023, Sandi Matic's family commitments were accommodated and his preferences were taken into account. Sandi Matic told the court that if the penalty was listed 'towards the later part of January...I can attend.' Sandi Matic also expressly confirmed that the date and time set by the court were convenient to him. I therefore did not consider it necessary to order that he appear at the penalty hearing. Nevertheless, Sandi Matic once again failed, without notice or explanation, to attend court on 30 January 2023. 

[46] Additionally, as part of Mr Matic's previous conviction for contempt of court, on 8 December 2022 I ordered that Mr Matic pay the plaintiffs' costs of their contempt application, fixed in the amount of $16,057 and payable forthwith. As at the time of this judgment, Sandi Matic remains in default of that order. This may be a further demonstration of Mr Matic's lack of respect for the authority of a court order. That ongoing default also casts doubt over the utility of making a costs order or imposing a fine on Sandi Matic.