Discrimination and Offence

From the short Australian Human Rights Day oration by former NSW Chief Justice Spigelman -

I wish to discuss the boundary between hate speech, a significant factor in social inclusion, and free speech, perhaps the most fundamental human right underpinning participation in public life.

Human rights discourse, which has always been comfortable with privileging a right over an interest, has never successfully dealt with situations in which rights conflict. This is a context bedevilled by a conflict of metaphors: from “rights as trumps" to “balancing". As Benjamin Cardozo warned us: “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it".

“Balancing" is often a fraught process, particularly in the usual context where the conflicting values are simply incommensurable. As one United States Supreme Court Justice put it, the process is often like asking “whether a particular line is longer than a particular rock is heavy". In the present context, the issue requires determination of how much weight is to be given to the right to freedom of speech. For many, albeit not all, that right is usually entitled to determinative weight when it conflicts with other rights, relevantly, those protected by anti-discrimination statutes.

This issue has been controversial in Australia in recent years, in the context of the racial vilification provision in section 18 C of the Racial Discrimination Act 1975, which is proposed to be re-enacted as section 51 of the new omnibus legislation, the Human Rights and Anti- Discrimination Bill 2012. The Bill was recently released for comment, an invitation I will take up in this address.

There may now have elapsed sufficient time for us to debate the issue dispassionately, and not on the basis of whether or not you like Andrew Bolt. The focus of that debate was not on the existence of a racial vilification provision, but on the breadth of the conduct to which section 18 C extends, namely, conduct “reasonably likely … to offend, insult, humiliate or intimidate another person".

The key criticism was directed to the fact that the section made speech which merely “offends" unlawful. A similar, but less powerful objection, can be made to the reference to “insult". The critique did not, generally, extend to the words “humiliate or intimidate". ...

Spigelman goes on to comment that

I agree with Professor Waldron. His detailed analysis supports the proposition that declaring conduct, relevantly speech, to be unlawful, because it causes offence, goes too far. The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.

I am not aware of any international human rights instrument, or national anti-discrimination statute in another liberal democracy, that extends to conduct which is merely offensive. I have not conducted a detailed review of the international position in this respect. However, so far as I have been able to determine, we would be pretty much on our own in declaring conduct which does no more than offend, to be unlawful. In a context where human rights protection draws on a global jurisprudence, this should give us pause when we re-enact s 18C and before we extend such protection to other contexts.

Section 19(2)(b) of the proposed Human Rights and Anti- Discrimination Bill 2012, introduces “offending” into the definition of discrimination for all purposes, not just for racial vilification. None of the other pre-existing Commonwealth Acts – covering sex, disability and age discrimination –extends the concept of discrimination to conduct which only offends.

The new s19 defines, for the first time, discrimination by unfavourable treatment to include “conduct that offends, insults or intimidates" another person. As has always been the case with s 18C, the relevant conduct must occur “because the other person has a particular protected attribute”. Significantly, unlike existing s 18C (or its replacement by the new s 51), there is no element of objectivity, as presently found in the words “reasonably likely to offend”. It appears to me the new Bill contains a subjective test of being offended.

There are 18 separate “protected attributes” set out in section 17 of the draft Bill, seven of which apply only in the employment context. These are wide ranging and, in a number of respects, novel. One such attribute is “race”. This is not just redundant. It extends the protection of proposed s 51 because of the absence of an objective element.

The inclusion of “religion” as a “protected attribute” in the workplace, appears to me, in effect, to make blasphemy unlawful at work, but not elsewhere. The controversial Danish cartoons could be published, but not taken to work. Similar anomalies could arise with other workplace protected attributes, eg. “political opinion”, “social origin”, “nationality”.

Further, each of the four existing Commonwealth anti- discrimination Acts proscribe publication of an advertisement or notice which indicates an intention to engage in discriminatory conduct. Section 53 of the new omnibus Bill goes further into freedom of speech territory, by extending this proscription beyond advertisements to any publication.

The new Bill proposes a significant redrawing of the line between permissible and unlawful speech. This is so, notwithstanding the ability to establish that relevant conduct falls within a statutory exception. A freedom that is contingent on proving, after the event, that it was exercised reasonably or on some other exculpatory basis, is a much reduced freedom. Further, as is well known, the chilling effect of the mere possibility of legal processes will prevent speech that could have satisfied an exception.

When rights conflict, drawing the line too far in favour of one, degrades the other right. Words such as “offend” and “insult”, impinge on freedom of speech in a way that words such as “humiliate”, “denigrate,” “intimidate”, “incite hostility” or “hatred” or “contempt”, do not. To go beyond language of the latter character, in my opinion, goes too far.

None of Australia’s international treaty obligations require us to protect any person or group from being offended. We are, however, obliged to protect freedom of speech. We should take care not to put ourselves in a position where others could reasonably assert that we are in breach of our international treaty obligations to protect freedom of speech.

Talking About Privacy

Three noteworthy speeches ...

Lord Neuberger on privacy [PDF] -

Privacy is a subject which seems to be forever topical. It excites (in both senses of the word) public discussion, while demanding considered reflection. And it raises many difficult and, often, controversial questions. Is privacy a value which society should protect? If so, to what extent? Is protection of privacy a fetter on freedom of expression? If so, can and should a balance be struck between them? And if so, what type of balance? Should, for instance, freedom of expression always trump privacy, as it is sometimes suggested is the position in the United States? A suggestion, I may add, which ignores a variety of US statutes and constitutional provisions which protect certain aspects of privacy to varying degrees, subject to the First Amendment protection of freedom of speech and expression.

And is privacy a value which is, on deeper analysis, not inimical to or a fetter on freedom of expression: is it actually a necessary and vital aspect of freedom of expression? Or should we maintain the straightforward and generally held view that the two are wholly distinct, indeed often in conflict?

These are all difficult questions. They go to the heart of issues concerning the very nature of society. It was, of course, to a large degree concerns about invasions of privacy which underpinned the decision to set up Lord Justice Leveson’s Inquiry, which issues its report tomorrow, and will wholly drown the reverberations of anything I say this evening which is stupid or controversial.

Questions concerning privacy have become all the more pertinent over the last twenty years for three reasons, which are no doubt not entirely discrete from each other. The first is legal; the second is social; the third is technological.

The legal reason derives from the introduction of the Human Rights Act 1998 (“the HRA”), which incorporated the European Convention, and in particular Articles 8 and 10, into British law. For the first time, privacy, as a generalised free-standing (albeit not absolute) right, was enshrined in a British statute, and, it should be added, for the first time, freedom of expression, as a generalised free-standing (albeit not absolute) right, was enshrined in a British statute. The social reason can be traced to changes which started in the 1960s, and became embedded by the 1990s. It was in the 1960s when the largely self-imposed restraints on the press and the rest of the media started to loosen, when the previously strong cohesion of the establishment started to break up, and when what Tony Blair called “respect” started to disappear. The Profumo Affair, and Lord Denning’s subsequent report on it, is generally agreed to have been the watershed, although there is room for argument whether it was a cause of change or an early symptom of this change. One MP at the time recalled that, during the investigation, Lord Denning “could not move an inch without being followed by the television cameras”, and that his report was published “in an atmosphere of salesmanship and ballyhoo such as never previously pervaded the environs of Her Majesty's Stationery Office.” The Profumo Affair may have helped to instil in the media the confidence to challenge the establishment.

It was also in the 1960s that the seeds of the cult of celebrity (people who were famous simply for being famous – or even for not being famous) were sown, when what was previously unsayable and undoable in public started to be said and done on television and in the press, and when activities which were thought to be shameful, immoral or illegal started to be accepted. Legislation from the time highlights the increased acceptance of previously criminal activities: the Suicide Act 1961, the Abortion Act 1967, and the Sexual Offences Act 1967. At the same time, evolving social norms, as portrayed on television and in the press, were partly responsible for other legislation, such as the Race Relations Act 1965, the Equal Pay Act 1970, and the Sex Discrimination Act 1975. These rapid social changes may also have increased the confidence of the media, because they demonstrated how readily people react to what they heard and saw.

The technological reason stems, of course, from the exponential growth of electronic communication. In particular, there is the internet, which has spawned effortless, inexpensive and instant mass communication in forms such as emailing, social networking, blogging, and tweeting. Not so long ago, publication was effected via books, journals, magazines, newspapers, radio and TV. Now anyone, at no more than a mouse click, can blog their thoughts, post their photos and upload videos of themselves, or of anyone else it seems, onto the internet and thereby broadcast them to the world. Cyberspace has created a global village, of which we are all inhabitants, whether we want it or not. And another vital part of that global cyber-village is mobile phones, which mean that it is very easy to contact us, to trace us, to photograph us, and to record us, and, it appears, to intercept our messages.

The development of this global cyber-village brings questions of privacy and freedom of speech into sharp focus. We have, I think, only just started to appreciate the fundamental effect of this technological development on our perception of the right to privacy and to freedom of expression. The pace of development of IT seems to be ever accelerating, and this adds to the problem, as it means that the way in which individuals view their rights to privacy, and to freedom of expression, is in turn changing. We are, as they say in America, always playing catch-up.

Lord Leveson on the net and media [PDF] -

So we have been here before. The birth of a new technology has seemingly brought an end to privacy not once, but now twice. The mass media did not however kill it off. No doubt it probably felt for a time that it would, and in fact, had done so. But the shadow of the laws of defamation and, later, and breach of confidence, whether these last were introduced by statute or were developed by the courts, undoubtedly acted as a break on the light of the press. I recognise, of course, that, as yet, Australia has no tort of privacy either at common law or by statute whereas breach of privacy as a tort has developed in the UK most significantly following the incorporation into UK law of the European Convention on Human Rights, and, in particular, Article 8 dealing with private life.

Perhaps more importantly, public opinion shaped the development of ethical standards on the part of the press and not necessarily to desirable outcomes. It may also be reasonable to draw the conclusion that financial interest proved a limit on the extent to which the media was interested in pushing the boundary between free speech and individual privacy. Interest in a story about the US President’s honeymoon may sell a front page and, today, there are many in the public eye who would have a similar effect; consider, for example, the honeymoon of film stars, singers, and footballers. It is doubtful that the same coverage and attention in the honeymoon of two ordinary members of the public who have never been in the public eye would sell as many copies.

Given the historical failure to develop limitations on incursions into privacy by the media, it might reasonably be said that it is difficult to assume that any such limitations might evolve in so far as the internet is concerned. It is much more plausible to assume that any such limitations will require some type of intervention. Further, it could be said that in recent years the ethical limitations on the conduct at least of certain sections of the press, have weakened. Further, perhaps, due to commercial pressures including the advent of the internet, they have started to push against ethical boundaries and in some instances have pushed too far. At the very least, without treading into dangerous territory, so much is clear from the background to my Inquiry.

But that is not to say that such standards backed up by law enforcement and effective regulation cannot develop and hold. How likely is it that such standards could develop in respect of the internet? This is perhaps where the historical analogy might begin to break down. I am conscious that the Convergence Review here in Australia has recommended that media outlets should be regulated regardless of platform. ....

Given the nature of the internet, the ease and speed with which information can be placed on it and can circulate widely, and the seeming view that it can be placed there with impunity, how likely is it that norms of behaviour will develop as they developed for the media? And how can we hope to police those norms? Or is it the case that, as Eric Schmidt, the former CEO of Google, has it, that only foolish governments would attempt to protect privacy on the internet; foolish because they are unlikely to succeed. Is the protection of privacy in an internet age a possibility or an improbability? Is it even desirable?

Let me take the second of those questions first. If protecting privacy in the internet age is not desirable, there is little reason to attempt to do so. The question then is this: is it desirable to seek to protect privacy?

The first point which I think needs to be remembered in this regard arises from a consideration of freedom of expression. Privacy and freedom of speech and expression are often conceived of as in opposition to each other. My privacy is an infringement of your freedom of expression, and vice versa. What is often not fully appreciated is that privacy is in itself both an aspect of freedom of expression and necessary for freedom of expression to be fully realised. It is an aspect of freedom of expression in that an individual can properly choose not publicly to disclose certain aspects of conduct, views or personality. To that extent, therefore, the right to be silent is itself not only exercising a right to privacy but it is also a form of freedom of expression.

Private expression is still a form of expression. Privacy is also necessary for freedom of public expression as it is often only in private that we can discuss, debate and form our views, beliefs and ideas. In the absence of a private sphere how could we fully develop those ideas? It seems more than arguable therefore that some protection of privacy is desirable if we are to properly protect freedom of public expression. It is a difficult policy question how to do that though, and different countries approach it differently.

It is also arguably desirable for another reason. In many cases, gossip over the internet will be no more and no less harmful than gossip over the garden fence or in a bar. It will be of no great interest to the vast majority of people and, albeit it will be recorded permanently, it will cause no great concern. In other cases this is clearly not the case, as the super-injunction and Newsnight examples show. ....

Assuming then, without deciding the issue, that some degree of privacy protection is desirable how might we do so?

The first point is that we already can do much through an application of the law as it presently stands. Individuals who tweet or use social media platforms are not beyond the reach of the criminal law. Following the riots which took place in England in autumn 2011, two men were prosecuted and convicted of inciting riot via their Facebook pages.

In respect of the Newsnight case, defamation proceedings are, it seems, to be instituted against a number of tweeters. In principle, there is no reason why individuals who tweet in breach of court orders, including privacy injunctions, cannot be traced via their ISPs and rendered subject to legal proceedings. We can, of course, serve injunctions via Twitter and claims by Facebook. The shadow of the law falls on the internet as it does all other aspects of society. Continued consideration will have to be taken to ensure that search engines heed the risk and that techniques are developed to deal with it.

Given that the internet is not entirely out of the law’s reach it is likely in time that, as with the media in the 19th century, it will start to have an effect on individual’s behaviour. It will start to modulate behaviour, and curb its wilder excesses. Time and the proper application of the law will play the same role for the internet as it has done in all other areas of our lives; it will shape our behaviour and help to reinforce social norms. Just as it took time for the wilder excesses of the early penny press to be civilised, it will take time to civilise the internet.

This is not to say that social norms may not change over time. Our view of what is, for instance, private information may change. Our view of privacy may change. I imagine though that individuals will always seek to preserve some degree of privacy and will seek the law’s protection to protect it. The question for us in this century will not simply be how to protect it, but what is it that we seek to protect.

Perhaps most significantly though, while established legal norms are in many respects capable of application to the internet, it is likely that new ones and new laws will need to be developed. The rise of the media produced Warren and Brandeis’s famous dissertation on privacy law. The internet may well – and no doubt will – require us to think as creatively as they did.

Only if we do so will we properly understand the role and values which underpin privacy and freedom of expression, the balance to be struck between them and the means to ensure that they are both safeguarded in an internet age. The answers we reach might differ from those we have reached in the past. It is an important discussion. I look forward to today’s contribution to it.

Turnbull MP on the net and media -

If regulations make us safer, healthier, better educated or better informed, there is a tangible benefit. But all too often we can not clearly identify such an outcome from various restrictions.

So with every regulation we need to ask these questions, what is the policy objective the regulation seeks to achieve? Is it worthwhile or relevant? If not, the regulation should go. And that’s why it’s so important to review what I call ‘legacy regulations’, and where these no longer serve a useful purpose, remove them.

And if the objective remains valid, the question for legislators and policy makers, should always be whether the same outcome should be achieved either without formal regulation or with a less burdensome or intrusive law or rule. And that’s really at the crux of the Australian debate over media regulation. We would all like to see the media pay greater attention to getting information right.

We’d all like to find a better way for those who are aggrieved over their treatment in the press to be heard and where appropriate receive redress. And we all understand the need for our laws to reflect the reality of the digital age, not the world as it once was.

But the question is, what is the least costly, most efficient, least intrusive way of doing this? We also have to face a few hard facts about the nature of this discussion. There’s been a decline in confidence around the world in media organisations. The correlation with struggling business models cannot be over looked.

The fact is that the foundations of the news media, the foundations of journalism are under threat in a way that would have seen unbelievable, inconceivable, only a decade ago. ....

I can set out some general principles of where we stand. This is the Coalition’s stance. And the first principle is that we’d prefer self-regulation to government regulation, we recognise that there’s a long history of ACMA, ably chaired by Chris, directly regulating – well enforcing in effect, industry codes over broadcast media, and that’s of long standing.

I question its effectiveness, but I’ve made the point elsewhere that all of ACMA’s efforts to introduce a l higher degree of accuracy and civility with Sydney broadcast radio, doesn’t seem to be very effective. But a Twitter campaign did seem to have a very significant impact on Mr Jones and 2GB. And what that tells me is that the answer to some of the ailments of the press that we complain about is more likely to be more freedom, rather than more regulation.

It was the freedom that the internet, Twitter in particular and Facebook, social media, it was the freedom that that gave to thousands of people who no longer had to go to a mainstream media gatekeeper to get their views amplified or broadcast.

It was that freedom which was able to hold Mr Jones to account, and in a pretty high impact way. We also don’t believe, and this is where we agree with David Cameron. I’m not expressing a view about what should be done in the United Kingdom. I’m not saying what I would say if I was a member of the House of Commons as opposed to the House of Representatives. But in terms of Australia we do not believe self-regulation, that’s to say a Press Council, a revamped Press Council should have a basis in statute.

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.