Homonationalism

The problematical  'Dating the State: The Moral Hazards of Winning Gay Rights' by Katherine Franke in 49(1) Columbia Human Rights Law Review (2012) 1-46 offers

a critical analysis of the complexities of having the state recognize and then take up gay rights as a cause of its own. I examine three principal contexts – the role of gay rights in the state of Israel’s re-branding campaign, the response to Iranian President Mahmoud Ahmadinejad’s 2007 speech at Columbia University in which he claimed that there were no homosexuals in Iran, and the role of gay rights in Romania’s effort to join the European Community – as examples of the moral hazards that a minority faces when the state takes up their interests and uses their rights for purposes that well-exceed the obvious interests of the new rights-bearing community. I conclude that critical awareness of the state’s role as fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised. 

Franke concludes

I will end with Israel, just as I began this essay, to highlight a community that has resisted some of the moral atrophy that often accompanies conscription in the state’s larger projects. Some queer activists in Israel have parted company with the mainstream of the LGBT community, rejecting the terms of the deal made with the Israeli government whereby their rights are recognized in exchange for being used as a public relations tool. The 2010 Tel Aviv gay pride parade was held only a few days after the Gaza flotilla raid, and the more radical/queer wing of the community chose to hold an alternative parade in which they would disidentify queer people with the sort of nationalism that the state had been actively cultivating, thus reinforcing a kind of anti-nationalist identification. Their banners read: “There is no Pride in the Occupation.” These queer/left politics were met with an even greater homonationalization of the mainstream Gay Pride Parade, resisting what they termed the “occupation” of gay pride by queers who identified with the Palestinians not with Israel. Their signs and stickers, donned for the main parade, offered a retort to the signs of the anti-nationalists: “[N]o to the occupation of the parade,” and “I am a proud Zionist.” In the end, the resistance of some Israeli queers to their cooptation into a nationalist project provoked an invigorated re-nationalization of the Gay Pride Parade in response, resulting in the proliferation of Israeli flags held by parade-goers. Nevertheless, this intervention introduced and cemented a link between the dangers of Israeli nationalism, religious fundamentalism, and homophobia in a way that shifted the frame for gay politics in Israel.

Queer activists in Israel offer an example of a new kind of politics that at once appreciates the value of rights and launches new strategies to resist the perils of partnership with the state. Having said that, it is important to note how narrow the room for this work is and how perilous it can be. In February of 2011, I received an e-mail from the Office of Cultural Affairs of the Israeli Consulate letting me know that the Embassy was sponsoring a U.S. tour of a new documentary on the early days of the Israeli gay rights movement. “We would love to try and organize a screening and talk with Yair [Qedar, the filmmaker] at Columbia University,” the official wrote me. Worried that I was being invited to participate in a pinkwashing event, I e-mailed my colleague, Aeyal Gross, a law professor at Tel Aviv University, and asked whether he knew anything about the filmmaker or the film, Gay Days, and whether this was “the usual sort of propaganda.” He wrote me back immediately,

Yair—the director—is a friend and the film is certainly not propaganda. I’m sure some will consider any depiction of gay rights in [I]srael as such but you know that’s not a view I share—we should be able to talk of gay rights in [I]srael even if [it] is also coopted..... I think that it almost impossible to distinguish Israeli government promoting culture from the political uses of that, but as I say the film is not a propaganda effort—not coming from there at all (even if government promotes it for its own purposes). The director was involved in [grassroots] activism and founded Israeli gay monthly which under his leadership was a voice for queer thought (I used to write there regularly) and its dissemination.

In Aeyal’s response lies the challenge of activism in the era of homonationalist politics. Once the state takes up your cause—for the dual purpose of embracing greater rights and of advancing the state’s own larger political aims—politics becomes much more complicated in tragic ways. Jasbir Puar has termed the tethering of gay rights to nationalist projects a kind of “golden handcuffs.”

Working on the role of LGBT rights in relation to Israel/Palestine is particularly challenging in this regard, given that any critique of Israeli state policy (and it is important to reiterate that I am talking about state policy, not individual Israelis or Jews) is immediately tagged as anti-semitic. What is more, recently enacted Israeli law makes careful political engagement with these hard issues even more difficult. The “Boycott Bill” passed by the Knesset in July of 2011 allows Israeli citizens to bring civil suits against persons and organizations that call for economic, cultural, or academic boycotts against Israel, Israeli institutions, or regions under Israeli control. It also prevents the government from doing business with companies that initiate or comply with such boycotts.

I must confess that I have experienced aggressive, sometimes violent, reactions to the recent work I have done that expresses sympathy for the rights of Palestinians and offers criticisms of Israeli state policy. As someone who has often taken unpopular positions in the LGBT and feminist communities, I thought I was prepared for the backlash that engagement with pinkwashing might generate. I wasn’t. Both our “golden handcuffs,” to borrow Puar’s term, and the chilling effect of the blowback certain political critique now receives, has made very crabbed room for politics and intellectual work that questions the role sexual civil rights now play in larger nationalist projects.

Queer activists in Israel/Palestine have something to teach us about what it means to do politics that resists state occupation. In their own ways, on either side of the so-called security “fence” (hafrada) or “wall” (jadir), some queers in the region are carving a path that neither privileges a global “gay citizen” nor succumbs to raw nationalism or racism/anti-semitism. The Palestinian queers I have met have a complex analysis of the relationship of occupation to homophobia, and refuse to privilege their experience of one over the other. They are acutely aware of and their politics respond to the ways in which negative social and cultural attitudes toward homosexuality in Palestinian culture are shaped in important ways by the occupation itself. They resist a politics that elevates a particular kind of sexual identity, such as gay or lesbian, over and apart from their identity as Palestinian. In this sense, their task has been so much more complicated than merely making demands for a gay pride parade in al-Manara Square in the center of Ramallah. Rather they situate queer politics within a complex web of Israeli occupation, nationalist resistance to the occupation, the weakness of the Palestinian Authority, the rise of Islamist politics, and a Palestinian biopolitical project that figures reproduction and the hetero-normative family as vital to national survival. All of these dynamics “have had serious consequences for Palestinian queers, not because Islam is an inherently (or particularly) ‘homophobic’ religion, but because Islamism has ascribed a (negative) ideological value to ‘homosexuality’ that did not exist before.”

So too, radical queer voices in Israel have refused the appeal of the new queer nationalism that they have been offered. They insist on drawing connections between the radicalism of the settlers’ homophobia/sexism and their imperial project in Palestine. The creation of social space for out LGBT people in Israel has occurred alongside the evacuation of Palestinians from that same territory. The one doesn’t necessarily cause the other, but the former has been used in the service of the latter. As one Israeli human rights lawyer from Tel Aviv told a group of us on the first LGBTI delegation to Israel/Palestine in January 2012, “Tel Aviv may be the most gay city in the world, but it’s also the least Arab you’ll find in the Middle East.”

This is what queering our politics demands: a refusal to take up the frames, and the identities those frames call up, which “winning” our rights produces. As it also turns out, rights are something the state is particularly well-suited to provide, and, as it turns out, those very rights end up being quite easily requisitioned by the state to advance its own larger interests. It falls on us, those in whose name those rights materialize, to resist the seduction of the state that, at long last, offers us its embrace, and in return seeks collaboration in its own imperial projects.

The ICN Act and privacy in S Korea

The short 'Korea Rolls Back ‘Real Name’ and ID Number Surveillance' by Whon-il Park and Graham Greenleaf in (2012) 119 Privacy Laws & Business International Report 20-1 comments that

South Korea’s online ‘real name’ statute - Article 44-5 of the Act on Promotion of Information and Communications Network Utilization and Data Protection, etc. (the 'ICN Act') was enacted in 2007 in response to such things as posted Internet comments describing fictitious sex scandals and plastic surgery operations concerning celebrities, and a number of suicides of celebrities. It required large-scale portal sites with more than 100,000 visitors on average a day to record the real name identities of visitors posting comments, usually via the poster's resident registration number (RRN). One result was that many South Koreans Internet commentators started to use overseas websites which allowed anonymous posting, such as Google and Twitter, and some therefore argued the law discriminated against domestic Internet services. A series of security breaches resulting in leaks of of personal data concerning millions of South Koreans from those websites that were required to adopt real-name policy also occurred over the last couple of years.

In August 2012 South Korea’s Constitutional Court unanimously held that the ‘real name’ statute is unconstitutional because the public gains achieved had not been substantial enough to justify restrictions on individuals' rights to free speech. The two cases decided by the Court were brought by individuals who were required to provide their real names in order to make postings, and also by an online Internet publisher required by the law to verify the names of those posting. This article analyses the Court’s reasoning, in the context of other decisions concerning freedom of speech, and the overall relaxation of South Korea’s previously very restrictive Internet environment.

Legislative reform has occurred in parallel. The RRN was previously compulsory in almost all dealings with government and many organizations in the private sector. Abuse of the RRN accounted for over 20% of all complaints about misuse of personal information. Under Korea’s new Personal Information Protection Act of 2011, unique identifiers the including RRN may not be processed without consent and explicit legislative approval. Alternative means of identification other than the RRN must now be provided by processors where individuals are subscribing to web-based services.

The article concludes with parallels between developments in Korean and European data protection.

The authors' 'Korean DPA Faults Google's TOS Changes: Global Privacy Implications?' comments that

The first decision of Korea’s Personal Information Protection Commission (PIPC) has borne out the perception that Korea’s new Personal Information Protection Act (PIP Act) is ‘Asia’s toughest data privacy law’. The PIPC has decided that Google’s changes to the Terms of Service (TOS) of over 60 of its services, unifying them in a single TOS, may be in breach of various provisions of the Act.

Google’s TOS changes are considered by the Commission to likely to breach these laws in three ways: (i) they do not specify the purpose of collection clearly enough, and cannot comply with the requirement that personal information may only be collected and used to the minimum extent necessary for the purpose for which it is collected; (ii) they do not comply with the requirement that where personal information is to be used for purposes other than the purpose for which it was collected, it is necessary to obtain additional consents for such uses; and (iii) they do not specify that that personal information will be erased immediately upon the expiration of its retention period or on request from a data subject.

This article analyses this decision, considering the PIPC’s reasoning, and the terms of the Korean legislation, in order to determine whether the PIPC’s findings (and the potential remedial action) are a result of features which are unique to the Korean law, or are they features which are common to at least some other countries’ data privacy laws.

The same issue of PLBIR features 'Obama's Privacy Framework: An Offer to be Left on the Table?' by Graham Greenleaf and Nigel Waters.

They comment that

The Obama Administration is offering the rest of the world a deal: ‘global interoperability’, comprising ‘mutual recognition and enforcement cooperation’. Perhaps we should read the small print. The ‘Framework’ initiative (Consumer data privacy in a networked world: A framework for protecting privacy and promoting innovation in the global digital economy, The White House, Washington, February 2012), launched in early 2012, represents a new level of serious consideration of privacy protection by a US Administration. While it is difficult to assess how much of it it is likely to be achieved in the face of both political gridlock and constitutional uncertainties, it is clearly in the interest of Americans that their government is attempting to take these steps to improve domestic privacy protections. But does this initiative offer sufficient of value to the rest of the world, for the price of ‘interoperability’?

This article looks at the proposed Framework from the following explicitly ‘non-US’ perspectives: Does the Framework’s ‘Consumer Bill of Rights’ meet international standards? Is the proposed method of achieving it realistic or futile? Is the US demand for ‘interoperability and mutual recognition’ reasonable? Is the USA ever likely to protect privacy to international standards? The article concludes that the rest of the world has to accept that there are some aspects of US domestic law on data privacy which are unlikely to change, but that does not constitute a reason for reducing international privacy standards in fundamental ways in order to accommodate the weaknesses of American privacy protection. The US approach does not deserves an undue amount of respect simply because of its economic and political power, and the Framework proposals do not at this stage change that. A better approach is to support those seeking reform in the USA by deferring ‘interoperability’ until US standards are in practice somewhere closer to those being adopted by most other countries. At some point it could become a rational decision that to have the USA implement and enforce significantly better CPBR would be a deal worth making, for the benefits of ‘interoperability’ on the basis of a minimum global standard. But at the moment that is not the right, best or only choice.

Komesar

'Finding the Best of the Imperfect Alternatives for Privacy, Health IT, and Cybersecurity' (Ohio State Public Law Working Paper No. 178) by Peter Swire forms part of a Wisconsin Law Review symposium honouring the work of Neil Komesar.

Swire comments that he used Komesar's Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy as

the main text in 2003 for one of the first law school courses on “The Law of Cybersecurity,” even though the book doesn’t even mention cybersecurity. The reason was that it was the best single vehicle I had found to prepare students to think critically about comparative institutional analysis, such as how to create institutions that better foster cybersecurity.

Part I praises Komesar for recognizing the importance both of market failures and government failures. President Reagan famously summarized the government failure argument: “The nine most terrifying words in the English language are, ‘I’m from the government and I’m here to help.’” More recently, President Obama pointedly joked about the knee-jerk answers of the anti-regulatory crowd: “Feel a cold coming on? Take two tax cuts, roll back some regs, and call us in the morning.” This article argues that Komesar does an admirable job of appreciating the interactions of these two sorts of failures, and provides an intellectual underpinning for the approach to cost/benefit analysis now institutionalized in the U.S. Office of Management and Budget.

Part II assesses the imperfect institutional alternatives that apply for the HIPAA medical privacy rule. Although the rule as drafted certainly had flaws, a regulation of this sort seems to have worked better than market-based or other alternatives for protecting medical privacy. Part III analyzes the institutional reasons that U.S. health providers have been slow to adopt electronic health records for patients’ clinical records. The Bush administration tried to spur adoption by emphasizing the role of private-sector standards efforts. Adoption appears to be growing much more quickly, however, due to funding for meaningful use of EHRs in the 2009 stimulus bill. The combination of funding and standards incorporated into regulations appear to be working better than alternatives for overcoming coordination problems for EHRs.

Part IV examines the institutional alternatives for U.S. governance of Internet privacy. Self-regulatory efforts have been important in changing industry practices. Legislation, however, may well improve practices in the area compared with sole reliance on such self-regulatory initiatives.

Part V examines imperfect alternatives for cybersecurity. As Komesar teaches, the features that make an issue difficult for one institution (such as a market approach to cybersecurity) often make the issue similarly difficult for another institution (such as government rules for cybersecurity). The analysis here suggests caution about proposed cybersecurity legislation, while acknowledging significant and continuing market failures.

Part VI examines the relatively limited role for the courts in governing these information policy issues, notably because systemic change of information practices is often a bad fit for the case-by-case approach of adjudication. In conclusion, Komesar’s work usefully informs the major information policy issues facing policy makers today.

Bullets

In R v Gordon [2012] QCA 334 the Supreme Court of Queensland has found that an 81 year-old man in poor health was required to serve a custodial term imposed upon him for multiple serious offences.

Gordon had sent letters containing bullets inserted into detonators to various public officials (eg the Prime Minister) and one private citizen.The prosecution submissions noted that the detonators in and of themselves were sensitive and could be fired by accidental impact and there was, thus, potential for actual harm to befall the recipients of those letters. One letter contained a threat to send a bomb, others made threats to kill and one letter stated that the water supply of a motel where refugees were staying had been poisoned. The letters were of anti-Catholic and anti-asylum seeker sentiment. They were sent over a period of three years. His defence counsel said “he knows that what he has done is very silly” but “also knows that what he has done is very serious”. Gordon contended that the detonators would not detonate unless they were hit with a hammer. His conduct was submitted to be

“a rant” venting his anger in respect of certain matters with which he disagreed.

Sending explosives to the Prime Minister, Roman Catholic Archbishop of Brisbane, the Queensland Premier, the Leader of the federal Opposition, the Reserve Bank Governor, the Westpac Bank chief executive officer and the Commonwealth Bank chief executive officer is not a good way to have "a rant".

Gordon pleaded guilty to 11 counts of unlawful use of postal service contrary to s 471 of the Criminal Code 1995 (Cth) and one count of unlawful possession of weapons contrary to s 50 of the Weapons Act 1990 (Qld).

Section 471 includes -

471.11 Using a postal or similar service to make a threat

Threat to kill

(1) A person (the first person ) is guilty of an offence if:(a) the first person uses a postal or similar service to make to another person (the second person) a threat to kill the second person or a third person; and (b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 10 years.

Threat to cause serious harm

(2) A person (the first person ) is guilty of an offence if: (a) the first person uses a postal or similar service to make to another person (the second person ) a threat to cause serious harm to the second person or a third person; and (b) the first person intends the second person to fear that the threat will be carried out.

Penalty: Imprisonment for 7 years.

Actual fear not necessary

(3) In a prosecution for an offence against this section, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.

Definitions

(4) In this section: "fear" includes apprehension. "threat to cause serious harm to a person includes a threat to substantially contribute to serious " harm to the person.

471.12 Using a postal or similar service to menace, harass or cause offence

A person is guilty of an offence if: (a) the person uses a postal or similar service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 2 years.

471.15 Causing an explosive, or a dangerous or harmful substance, to be carried by post

Offence

(1) A person is guilty of an offence if: (a) the person causes an article to be carried by post; and (b) the article consists of, encloses or contains: (i) an explosive; or (ii) a dangerous or harmful substance or thing that the regulations say must not, without exception, be carried by post.

Penalty: Imprisonment for 10 years.

In considering the appeal Holmes, White and Gotterson JJA found that the District Court had given due consideration to the man's health and to his advanced years.

Scalping and privacy

The Rugby Football Union (Respondent) v Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation) (Appellant) [2012] UKSC 55 is an appeal from The Rugby Football Union (Respondent) v Consolidated Information Services Limited (Formerly Viagogo Limited) (In Liquidation) (Appellant) [2011] EWCA Civ 1585.

The Rugby Football Union (RFU) had sought to discover the identity of people who had purchased tickets to football games via an online 'scalping' service, with the service operator claiming that the discovery process was contrary to privacy protection under EU human rights law.

The RFU as the governing body for Rugby Union in England has sole responsibility for issuing tickets for all international and other matches played at its Twickenham stadium. Its terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void. That stipulation is printed on the tickets and applicants are warned on ticket application forms. A further term stipulates that the tickets are property of the RFU at all times.

Viagogo operated a site that enabled people to sell tickets for RFU games: sellers would register their tickets with Viagogo, a price would be suggested based on current market data and the service provider would receive a percentage of any sale through that virtual meeting of buyer and seller.

The UK Supreme Court judgment notes that the RFU monitors such sites in an attempt to discover whether and by whom tickets were being sold above face value. "This effort was frustrated, however, in many instances by the anonymity offered by websites including Viagogo". The RFU discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham.

Tickets with a face value of £20 to £55 were being advertised for sale at up to £1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to protect its policy in relation to tickets. xxxxx The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress.

In Norwich Pharmacal Company & Ors v Customs And Excise [1973] UKHL 6 Norwich Pharmacal Co, as owner and exclusive licensee of a patent, brought proceedings against the UK Excise Commissioners to force disclosure of information that would identify unknown importers of its patented chemical. The House of Lords held that where an innocent third party had information relating to unlawful conduct, a court could compel that party to assist the injured person by supplying that information. The case established the Norwich Pharmacal disclosure orders against innocent third parties.

Viagogo argued that granting a Norwich Pharmacal order represented a disproportionate interference with the rights of the potential wrongdoers under article 8 (ie protection of personal data) of the EU Charter of Fundamental Rights.

The Court of Appeal upheld the decision of the High Court and decided that the RFU had no readily alternative means of pursuing the wrongdoers. Interference with the personal data rights of the individuals was proportionate in light of the RFU’s legitimate objective in obtaining redress for arguable wrongs.

The Supreme Court considered whether the grant of the order involved a breach of article 8 of the Charter. It noted that the essential purpose of an order was to do justice in the case. The need for an order for disclosure will only be found to exist if it is necessary and proportionate in all the circumstances, involved a careful weighing of all relevant factors including -

• the strength of the cause of action, 
• whether those who have committed the alleged wrong knew or would have been likely to know that what they were doing was unlawful and 
• the privacy rights of those whose identities were to be revealed 

Article 8 of the Charter was applicable as the order of the High Court involved disclosure of private data and thus was in the material scope of European Law.

The Supreme Court held that the appropriate test of proportionality under Article 8 of the Charter involved weighing the benefit of the information being sought by the RFU against the impact that disclosure was likely to have on the individual concerned. Lord Kerr comments that  it was artificial and unrealistic to suggest that the RFU’s aim of discouraging others in the future from flouting its rules should not be considered. Although the facts of each case must be considered individually there was nothing to support  the notion that the wider context for which the RFU wished to have the information should be left out of account.

The court indicated that although there should be an intense focus on the rights claimed by the individuals concerned, this was not a case where disclosure would result in oppressive or unfair treatment. The only information sought was the names and addresses of individuals who had bought and sold tickets in clear breach of the RFU’s ticket policy.

It went on to state that in some  limited cases the particular circumstances affecting a person whose data was sought may displace the interests of the applicant for disclosure even where there was no feasible alternative way of getting the information.

Midwives

ACMA, Australia's national broadcasting regulator, has concluded that Channel Nine Adelaide (NWS 9) has

breached the privacy provisions of the Commercial Television Industry Code of Practice 2010 (the code) by identifying a family involved in a home birth. It is the first television broadcast to breach the privacy provisions of the code since the new privacy guidelines were introduced in December 2011. 

The finding [PDF]  is a welcome sign that ACMA, an example of industry capture, is taking privacy protection more seriously.

ACMA states that

The news story concerned a deregistered midwife continuing to practise but it broadcast sensitive personal information about a newborn baby. The 16 February 2012 broadcast also contained identifying and intrusive footage of the complainant and his family inside their home and surrounds. 

‘The concept of being protected against someone intruding on your private space is a key tenet of the privacy guidelines,’ said ACMA Chairman, Chris Chapman. 

‘It is partly based on a person’s reasonable expectation that their activities would not be observed or overheard. In this case, footage in and around the complainant’s home was found to be an invasion of privacy,’ he said. 

The ACMA also found that the licensee failed the additional code obligation to exercise special care before using sensitive personal information about a child. 

NWS 9 has agreed to a tailored training program for relevant staff and to making a statement on its website providing a link to the ACMA’s investigation decision.

The NSW 9 site does not, as far as I can see, feature an apology … merely a link to the ACMA PDF.

What Price Privacy?

In a forthcoming article for Privacy Law Bulletin and book chapter I have commented that the 1,987 page report by the Right Honourable Lord Justice Leveson on An Inquiry into the Culture, Practices and Ethics of the Press at first glance seems a world away from Australia, a media world that features by naughty vicars and photogenic princesses, executives with a penchant for spanking, official corruption, allegations of child sex offences involving media personalities, and defamatory claims regarding other figures.

On second glance that world looks familiar, with disagreement during the past month about mining deals involving a NSW politician, the pasts of Julia Gillard and Julie Bishop, revelations about child abuse and payoffs involving religious institutions, another round of litigation by Australia’s richest woman involving public access to information about family trust arrangements, and claims by the pharmaceutical industry to the ACCC that transparency in undisclosed payments to medical practitioners would both be premature and breach practitioner privacy.

From an Australian perspective the Leveson Report is important for three reasons.

The first reason is that it looks backwards, documenting activity involving journalists and their agents that has seen some people go to prison, others facing criminal charges and questions about corporate governance in some of the UK’s most powerful organisations, including the Metropolitan Police and the British arm of Australia’s dominant media group – News Corporation. Some of those actors egregiously and recurrently breached a range of UK privacy law. Others appear to have condoned the breaches or failed to provide a corporate culture in which serious misbehaviour was identified and dealt with.

The second is that the report looks forward, recommending changes that address those privacy abuses and failed governance. Irrespective of Prime Minister Cameron's dismissal of Leveson’s recommendations, they will provide a benchmark for debate within Australia about media self-regulation at a time where analysts forecast the demise of one of the commercial television groups, the dominant commercial television group has been restructured, Ms Rinehart apparently hasn’t completely lost interest in Fairfax and Ten, and the Gillard Government has lost interest in both the Finkelstein Report and the proposed Privacy Tort.

The third reason is that the Leveson Report poses questions about public interest justifications for disregard of privacy. In essence, it suggests that we need to differentiate between public curiosity and public interest. Curiosity does not justify invasions of privacy. Leveson is emphatic that privacy should be enjoyed by public figures and by ordinary people alike, expressing concern that the victims of privacy abuses in the UK have often been the powerless rather than individuals whom Rupert Murdoch characterized as scumbag celebrities. There is a public interest in politics, public administration, corporate misgovernance, dangers to health, environmental dangers and other matters. That interest justifies responsible journalism; something that is different to entertainment.

Contrary to hyperbole over the past two weeks, Leveson does not call for a draconian restriction on journalism or media proprietors. By extension he would not crimp the implied freedom of political communication found by the High Court in Australia.

He does not call for a government agency to control media groups and journalists. His report does, however, distinguish between what is socially valuable and what is merely salacious or saleable. That differentiation should be borne in mind as courts, private sector bodies and the national Privacy Commissioner give effect to the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) passed on 29 November and in effect from 14 March next year.

Investigation since initial public disquiet about hacking of a murdered teenager’s mobile phone has resulted in 17 arrests over interception of mobile phone messages, 52 arrests over payments to officials (primarily to police) and 17 arrests regarding other offences such as computer hacking and unauthorised access to personal records. It has resulted in the demise of the tabloid News of the World and the current breakup of the global News conglomerate into discrete print and broadcast groups, along with serious damage to News Corporation senior executives such as James Murdoch. As Leveson asked, in quoting two 2006 papers by the Information Commissioner, What Price Privacy?

The report deals with the culture, ethics and practices of the UK press, including questions about governance in the major print groups – misbehaviour within the Murdoch publications was particularly egregious but problems are evident in other publications such as the Mirror – and analysis of whether industry self-regulation has been effective. The  inquiry encompassed competition policy and, importantly, the UK regulatory framework for data protection.

Overall, the report emphasises the virtues of a free press and the importance of responsibility. It is a notably lucid, carefully written and in parts quite cautious document. Leveson’s condemnations thus have particular force. He questions governance within the News group and the credibility of some senior News figures. He characterizes the Press Complaints Commission (PCC) – counterpart of Australia’s Press Council (APC) – as lacking independence, having “numerous structural deficiencies” and “not actually a regulator at all”.

The APC is a voluntary body - like the PCC - with no statutory power. Its credibility was placed in question with the announcement in April this year that Seven West Media (one of the dominant players in the media sector, encompassing Pacific Magazines, Yahoo!7 and the Seven television network) was putting in place an 'alternative independent complaints-resolution body' that would "guarantee accountability of all the group’s publications". We are of course still waiting on details: the announcement indicated that Seven West would release full details of its plan in future, with no further comment until then.

Leveson notes “serious and systematic illegality and poor practice in the acquisition and use of personal information”, going on to conclude that existing criminal law is insufficient and that the Data Protection Act 1998 hobbled the Information Commissioner through “unnecessary and inappropriate barriers in the way of regulatory law enforcement and the protection of victims rights”. Public benefit rationales mean that privacy is not absolute but journalists, along with other actors such as the police, must act responsibly.

His report accordingly seeks to ensure a balance, by both providing a statutory underpinning for an independent press regulator and enshrining an explicit duty of the Government to uphold and protect freedom of the media. In particular, amendment of the Data Protection Act should provide for the Information Commissioner, in considering exercise of any powers regarding the media, to have special regard for the obligation in law to balance the public interest in freedom of expression alongside the public interest in upholding the data protection regime. Leveson indicates that more rigorous application of existing UK criminal law does not and will not provide the solution to governance problems.

 The report features a recommendation that the Civil Justice Council (the independent public body advising the Lord Chancellor) should consider increases in the level of damages regarding privacy, breach of confidence, and data protection. Leveson suggests that the Law Commission’s 1997 report on Aggravated, Exemplary and Restitutionary Damages should be adopted, with retention of exemplary damages (retitled as punitive damages). Those damages should be available in actions for breach of privacy, breach of confidence and defamation. Aggravated damages should only be awarded to compensate for mental distress, with no punitive element. Compensation under s 13 of the Act should encompass pure distress rather than being restricted to pecuniary loss.

 Leveson’s most controversial recommendations concern a new model of self-regulation. He suggests a voluntary “independent regulatory body”, established and organized by the industry (ie not a government entity) but subject to periodic review by an independent “recognition body”. The recognition body would not regulate individual journalists, publications or publishers but would certify whether the regulator had fulfilled certain “legitimate requirements” enshrined in a new statute. Leveson suggests that Ofcom (counterpart of Australia’s ACMA) should act as the recognition body, although a “less attractive alternative” would be to appoint an independent ‘Recognition Commissioner’ supported by Ofcom staff.

Commitment by the publishers would be encouraged through the potential for direct statutory regulation by a “backstop regulator” such as Ofcom – similar to the potential for ACMA to supersede auDA if there is a fundamental failure in Australian domain name regulation - and the likelihood of adverse costs awards in civil litigation.

Leveson comments that

I have made very clear that, by a very long way, my preferred solution, and hence my recommendation, is that the industry should come together to construct a system of independent regulation that could be recognised. If it does so, there will be no need for a backstop regulator.

However, if some or all of the industry were not prepared to adopt that position, I do not accept that they should expect the public to settle for less, much less escape standards regulation altogether. More significantly, if the possibility exists that a significant provider of press like services could avoid independent regulation without consequence, then there would simply be no incentive for an unwilling industry collectively to deliver it. My personal view, therefore, is that there may be a need for the realistic prospect of a backstop regulator being established.

The new regulator would not have the power to prevent publication. Instead it would promulgate and promote a Code of standards (including privacy), hear complaints and offer redress regarding alleged breaches (with power to investigate “serious or systemic breaches” and impose appropriate sanctions), and provide a quick and inexpensive arbitration service to deal with civil law claims.

The regulator would provide guidance on the interpretation of the public interest. Leveson suggests consideration of “a purely voluntary pre-publication advice service to editors who want support on how the public interest might be interpreted in a specific case before a decision is reached on publication”, without “notice to the subject of the story” and thus contrary to recent requests by Max Mosley for a ‘prepublication notice’.

Sanctions by the regulator – independent of the Data Protection Act 1998 – would be “appropriate and proportionate”, including financial sanctions up to 1% of turnover (with a maximum of £1m) on a member found to be responsible for serious or systemic breaches of the Code or governance requirements.

Given Leveson’s criticisms of inaction by media executives and difficulties facing the Information Commissioner he recommends that the regulator have power to conduct own-motion investigations and be strengthened though establishment of a whistleblowing helpline for journalists.

Participation in the regulator’s arbitration service would be a condition of membership. That service would be staffed by retired judges or senior practitioners with specialist knowledge of media law. Arbitration would rely on an inquisitorial model, with the process being be free for complainants. (Vexatious or trivial complaints would be struck out at an initial stage.) Importantly, under amendment of the Civil Procedure Rules a choice by a publisher not to participate in the new regulatory body would permit the courts to deprive that publisher of its costs in any privacy, breach of confidence or defamation litigation where the publisher was successful.

 Leveson also suggests that consideration should also be given to amending the Data Protection Act 1998 to formally reconstitute the Information Commissioner’s Office as an Information Commission. That is of interest locally, given concerns about the resourcing of the Privacy Commissioner function within the Office of the Australian Information Commissioner and perceptions that the OAIC is disengaged, evident in criticisms of belated and permissive responses to incidents such as the Telstra, Sony and Vodaphone data breaches. The Australian Commissioner now has enhanced powers but there is uncertainty about whether those powers will be used and used effectively.

 Australian responses to Leveson so far have been unenthusiastic or simply indifferent, with for example comments that media practive and governance in the UK are so very different as to have no relevance downunder. That is unsurprising given the vehemence with which the 2012 Finkelstein Inquiry report was received and condemnation by the commercial media (particularly News group outlets, where Andrew Bolt worried about “a sinister law, planned by a government with sinister motives”) and bodies such as the Rule Of Law Institute of the Government’s vague proposals for a privacy tort.

The notion of a privacy tort is not remarkable and does not seriously threaten freedom of speech, freedom of political communication or freedom of publishers (three categories sometimes conflated by advocates for the commercial media groups). Statutory provision of a tort regarding invasion or serious invasion of privacy has for example been recommended by the Australian Law Reform Commission, NSW Law Reform Commission and Victorian Law Reform Commission.

A reader of the Leveson report might reasonably conclude that individual journalists and media groups are not necessarily best equipped to self-regulate and that commercial pressures may well induce a race to the bottom. In a symposium last month I questioned some of the more alarmist expressions of concern that enhanced privacy protection in Australia would lead to a wave of frivolous litigation or fundamentally crimp investigative journalism in the public interest.

The history of confidentiality law, and more broadly Australian jurisprudence in cases involving the media over the past thirty years, suggests that Australian courts have coped effectively with litigation and founded their decision-making on public interest. Examples of that jurisprudence are Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 and Attorney General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30, where the courts have looked to the bases of civil society – in the same way that they have identified foundations for the implied freedom of political communication – and have not confused public curiosity with public interest.