Data Rights

'Intermediating data rights exercises: the role of legal mandates' by Alexandra Giannopoulou, Jef Ausloos, Sylvie Delacroix and Heleen Janssen in (2022) International Data Privacy Law comments 

Data subject rights constitute critical tools for empowerment in the digitized society. There is a growing trend of relying on third parties to facilitate or coordinate the collective exercises of data rights, on behalf of one or more data subjects. This contribution refers to these parties as ‘Data Rights Intermediaries’ (DRIs), ie where an ‘intermediating’ party facilitates or enables the collective exercise of data rights. The exercise of data rights by these DRIs on behalf of the data subjects can only be effectuated with the help of mandates. Data rights mandates are not expressly framed in the GDPR their delineation can be ambiguous. It is important to highlight that data rights are mandatable and this without affecting their inalienability in light of their fundamental rights’ nature. This article argues that contract law and fiduciary duties both have longstanding traditions and robust norms in many jurisdictions, all of which can be explored towards shaping the appropriate environment to regulate data rights mandates in particular. The key in unlocking the full potential of data rights mandates can already be found in existing civil law constructs, whose diversity reveals the need for solidifying the responsibility and accountability of mandated DRIs. The continued adherence to fundamental contract law principles will have to be complemented by a robust framework of institutional safeguards. The need for such safeguards stems from the vulnerable position of data subjects, both vis-à-vis DRIs as well as data controllers.

The authors argue 

 The vicious circle of rapid technological and economic developments, and exponential data production, brings about countless social, legal, and ethical concerns. Many of these concerns can be traced back to the significant information and power asymmetries that characterize today’s political economy of data. Transparency asymmetries result from the size and complexity of data infrastructures as well as engineered opaqueness by those who control the infrastructures. Power asymmetries result from the ability to exploit these data infrastructures in light of strong (commercial/political) imperatives at the expense of individuals, communities, and/or society at large. 

Data rights are emerging as an emancipatory legal tool to challenge these asymmetries, empowering people to render visible data infrastructures and govern the use of their data. They feature in a growing number of legal frameworks, in Europe and elsewhere. Indeed, we can observe a proliferation of data rights in recent EU policymaking, either reinforcing or introducing new legal mechanisms to mitigate information/power asymmetries in the data economy. As (EU) policymakers are gradually catching up with the digital transformation of society, we also anticipate future legal frameworks will increasingly include data rights in specific contexts. For the time being, the most important legal source for data rights is chapter III of the General Data Protection Regulation (GDPR). The ‘rights of the data subject’ in this Chapter are intent-agnostic and can be deployed in many different ways in order to safeguard countless interests, rights, or freedoms. 

While underused for many years, recent initiatives have demonstrated the value of data rights in a variety of contexts; from invoking the rights of access, portability and not to be subject to automated decision-making to obtain better working conditions, to reverse engineering discriminatory credit scoring algorithms,8 or enabling academic research using digital trace data. As these examples illustrate, data rights should not be seen as (just) individualistic legal tools; they hold significant potential for tackling systemic data-driven injustices at a collective level. 

Despite the growing availability and awareness of data rights, important questions remain as to their functionality and effectiveness. Systemic transparency problems—resulting from the size and complexity of data infrastructures as well as engineered opaqueness by those who control those infrastructures—thwart fair and lawful data processing, proper enforcement, and effective exercises of data rights. Additionally, rights holders often lack the (technical, legal, financial)capacity, time, or knowledge to effectively deploy their rights. 

In light of the above, there is a growing trend of relying on a third party to facilitate or coordinate the (collective) exercises of data rights, on behalf of one or more data subjects. Within the context of this article, we term these intermediating parties ‘data rights intermediaries’ (DRI). We define data rights intermediation broadly, as situations where an ‘intermediating’ party facilitates or enables the (collective) exercise of data rights. Importantly, for our purposes here, DRIs should be clearly distinguished from data intermediaries. The concept of the data intermediary is used in a wide variety of contexts, generally to refer to organizations that capitalize on pooling data in one way or another. DRIs do not necessarily valorize any (personal) data, but simply assist in the (collective) exercise of data rights, whether it be the right to object, erasure, portability, or indeed access personal data. 

Data rights intermediation in general can range from simply making templates available to the public for anyone to use, to more organized initiatives like data trusts, which involve an active role of the intermediating parties in data governance. A central question in many of these initiatives is whether data subjects can effectively mandate the respective data rights to a third party. For the purposes of this article, we use the term ‘mandate’ to refer to situations where a data subject assigns to another party, the power to bring a legal action or exercise a right on the subject’s behalf. 

Under what conditions can data rights be lawfully exercised by someone other than the data subject, on behalf of one or more data subjects? As a key source of data rights, the GDPR, is essentially silent about whether intermediating parties can exercise data rights on behalf of the data subject. That is to say, the GDPR neither rejects nor explicitly condones data rights to be exercised by an intermediating party. Having said that, the GDPR does recognize the ability of data subjects to have specific types of organizations represent them, to obtain remedies for GDPR violations if such representation is recognized in Member State law. The role of such representatives is also acknowledged in relation to data protection impact assessments, where controllers are encouraged to ‘seek the views of data subjects or their representatives [emphasis added] on the intended processing.’ In this context, it is also worth mentioning that the Court of Justice of the European Union (CJEU) recently clarified that Article 80(2) of the GDPR does not preclude national legislation that allows a consumer protection association to bring legal proceedings in the absence of a mandate conferred on it for that purpose (and independently of the infringement of specific rights of a data subject), by alleging infringement of the prohibition of unfair commercial practices, consumer protection legislation or the prohibition of the use of invalid general terms and conditions. Important as it is, the latter ruling still leaves open the question of whether—and under what conditions—the data subject rights granted by chapter III GDPR can be mandated to a DRI. 

As will become more apparent throughout this article, there are many different understandings of the term ‘mandate’ both in normative descriptions and in case law. Because of the contrasted legal histories behind its uses in different jurisdictions, the concept of ‘mandate’ suffers from a significant degree of ambiguity. Yet its use in the GDPR, recent case law, and EU policy initiatives have made it a salient and increasingly important concept in a data protection context. This article addresses the sources of this conceptual confusion to highlight the practical significance of mandates if data protection regimes are to take on board both the relational (hence collective) dimension of personal data and the fundamental (hence inalienable) underpinnings of data rights.

Accountability

'Artificial Intelligence Accountability of Public Administration' by Francesca Bignami in (2022) 70 (Supp 1) The American Journal of Comparative Law i312–i346 comments 

In law and policy debates, there are many terms that get thrown around—big data, algorithms, artificial intelligence. One way to understand the technology is to think of the big data as the fuel, algorithms as the rockets; and artificial intelligence as the planet that computer scientists seek to reach. That is, to go in reverse order, the goal of artificial intelligence is to empower computers to replicate all the things that humans can do—see, hear, speak, even think. And how is that to be accomplished? By algorithms that use big data. Or, more precisely, by machine learning algorithms that use big data. 

Machine learning algorithms represent a newer generation of computer science. Old style algorithms are based on complete models with relatively few explanatory variables and contain a comprehensive set of if-then statements that give instructions to a computer. Machine learning algorithms are very different: based on an initial algorithm and the data inputs and the desired output, they do the work of generating what can be an extraordinarily complex, operating algorithm. To quote from the computer scientist Pedro Domingos:

Every algorithm has an input and an output: the data goes into the computer, the algorithm does what it will with it, and out comes the result. Machine learning turns this around: in goes the data and the desired result and out comes the algorithm that turns one into the other. Learning algorithms—also known as learners—are algorithms that make other algorithms. With machine learning, computers write their own programs, so we don’t have to.

The difficulty with machine learning, at least for the law, is that the actual content of that algorithm is often not fully known or knowable to the humans operating the code, not even to the scientific expert:

State-of-the-art machine learning deploys far more complex models to learn about the relationship across hundreds or even thousands of variables. Model complexity can make it difficult to isolate the contribution of any particular variable to the result. . . [R]elatedly, the machine learning outputs are often nonintuitive—that is, they operated according to rules that are so complex, multi-faceted, and interrelated that they defy practical inspection, do not comport with any practical human belief about how the world works, or simply lie beyond human-scale reasoning. Even if data scientist can spell out the embedded rule, such rules may not tell a coherent story about the world as humans understand it, defeating conventional modes of explanation. 

Only recently has the law sought to address the new scientific and human reality. The novelty that the emerging legal frameworks seek to capture is the ability of machines to do what only a few decades ago most people thought only humans could do. So far, in the United States, no one legal definition of the technology and the policy problem has emerged as dominant. As the Administrative Conference of the United States puts it:

There is no universally accepted definition of “artificial intelligence,” and the rapid state of evolution in the field, as well as the proliferation of use cases, makes coalescing around any such definition difficult. . . Generally speaking, AI systems tend to have characteristics such as the ability to learn to solve complex problems, make predictions, or undertake tasks that heretofore have relied on human decision making or intervention. There are many illustrative examples of AI that can help frame the issue for the purpose of this Statement. They include, but are not limited to, AI assistants, computer vision systems, biomedical research, unmanned vehicle systems, advanced game-playing software, and facial recognition systems as well as application of AI in both information technology and operational technology.

There are a couple of definitions that have gained currency in the law. The first is contained in the John S. McCain National Defense Authorization Act for Fiscal Year 2019, and is used in the AI in Government Act of 2020, Executive Order 13960, and Office of Management and Budget, M-21-06. It reads as follows:

(1) Any artificial system that performs tasks under varying and unpredictable circumstances without significant human oversight, or that can learn from experience and improve performance when exposed to data sets. (2) An artificial system developed in computer software, physical hardware, or another context that solves tasks requiring human-like perception, cognition, planning, learning, communication, or physical action. (3) An artificial system designed to think or act like a human, including cognitive architectures and neural networks. (4) A set of techniques, including machine learning, that is designed to approximate a cognitive task. (5) An artificial system designed to act rationally, including an intelligent software agent or embodied robot that achieves goals using perception, planning, reasoning, learning, communicating, decision making, and acting.

The second definition is contained in the National Artificial Intelligence Act of 2020. It reads:

The term artificial intelligence means a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments. Artificial intelligence systems use machine and human-based inputs to—(A) perceive real and virtual environments; (B) abstract such perceptions into models through analysis in an automated manner; and (C) use model inference to formulate options for information or action.

Lastly, there are definitions that have been formulated as part of sector-specific proposed legislation, for instance bills on facial recognition, driverless cars, and social media. One example is the proposed Algorithmic Justice and Online Platform Transparency Act, which is targeted at commercial uses of algorithms on online platforms. Section 3 defines “Algorithmic process” as:

a computational process, including one derived from machine learning or other artificial intelligence techniques, that processes personal information or other data for the purpose of determining the order or manner that a set of information is provided, recommended to, or withheld from a user of an online platform, including the provision of commercial content, the display of social media posts, or any other method of automated decision making, content selection, or content amplification.

In keeping with the state of terminological flux, this Report uses the terms AI and algorithms interchangeably. Where, as is often the case, the law finds its origins in the 1970s and earlier computer practices of public administration, algorithm can refer to either old style computer programming or machine learning. There are a couple of other preliminaries to keep in mind before turning to the questionnaire. Unless otherwise stated, the discussion below refers to federal public administration, not to the state law governing the operation of the administrative agencies of the fifty states. Last, following conventional practice, the discussion of administration excludes national security agencies and defense agencies because of the different concerns and legal frameworks that apply in those domains.

COVID

The report of the Independent Review into Australia's Response to COVID-19 refers to 'four areas where we should have done better' - 

 1 Economic supports should have been provided fairly and equitably. 

Governments and businesses failed to urgently provide adequate sick leave to workers. This was unfair on those workers, helped the virus to spread and cost lives. Excluding migrants and international students from economic supports put people in danger. It unfairly forced charities, universities and businesses to pick up the slack. It has contributed to the labour force challenges we face today. Failing to include a claw-back mechanism for businesses supported by JobKeeper was a design fault. It was fiscally irresponsible and unfair when other groups in society were excluded from economic supports. Excluding casual and migrant workers from JobKeeper without a proportionate increase in, or access to, JobSeeker failed to get the balance right between supporting people in need and ensuring a flexible labour force. 

2 Lockdowns and border closures should have been used less. 

Lockdowns and border closures have significant social and economic costs and should be a last resort. They buy us time to collect information and data on the virus, bolster health system capacity, and develop and distribute vaccines. But too many of Australia’s lockdowns and border closures were the result of policy failures in quarantine, contact tracing, testing, disease surveillance and communicating effectively the need for preventative measures like mask wearing and social distancing. Politics also played a role. Localised outbreaks were inevitable. Statewide and nationwide outbreaks were not. 

3 Schools should have stayed open. 

It was sensible to close schools where there was an outbreak and when little was known about how the virus spread. But it was wrong to close entire school systems, particularly once new information indicated that schools were not high-transmission environments. For children and parents (particularly women), we failed to get the balance right between protecting health and imposing long-term costs on education, mental health, the economy and workforce outcomes. The same applies to closing universities and vocational education and training centers. The social and economic costs were likely significant. 

4 Older Australians should have been better protected. 

The problems in aged care were well known before the pandemic. Many of these problems have their roots in the sad reality that Australia’s aged care system depersonalises older people. Funding was inadequate. The labour force was stretched. Fixing aged care requires changed attitudes. The decision to restrict aged care residents from going to hospital when they contracted COVID-19 was a mistake that cost lives. Restrictions on visits to aged care homes, long past the end of the outbreak, caused unnecessary pain and distress. 

 Five Overarchig Lessons are 

 1 Have societal fault lines front of mind. 

The overarching lesson from this Review, and the focus of its recommendations, is that policies were too often designed and implemented without proper regard for the inequalities in our society and the vulnerabilities of key communities. All governments should consider issues of fairness when they make policy. But at a minimum, we need to recognise the existence of disadvantage in our response to crises. Australia was too often playing catch-up during COVID-19, seeking to address predictable challenges only when they became evident. People experiencing social inequalities or particular vulnerabilities in our community suffered unnecessarily. They paid a higher cost. Much of this could have been avoided if planning had considered inequities from the outset. 

2 Plan, prepare and practise. 

Preparation is key to accounting for societal fault lines. Most of Australia’s pandemic plans were developed for a flu-like outbreak. They were not adequately scenario-tested and were quickly discarded. Australia needs plans in place. They must be regularly practised within well-coordinated, well-informed and well-funded institutions. 

3 Avoid the perils of overreach. 

There were too many instances in which government regulations and their enforcement went beyond what was required to control the spread of the virus, even when based on the information available at the time. Such overreach undermined public trust and confidence in the institutions that are vital to effective crisis response. Many Australians came to feel that they were being protected by being policed. These actions could have been avoided if we had built fairness into our planning decisions and introduced compassion into their implementation. 

4 Be transparent, clear and consistent. 

There was insufficient transparency in how decisions were made, who made them and why. The evidence relied upon was often unclear. A lack of consistency and clarity in rules led to unnecessary confusion, prosecutions and suffering. Transparency, inclusion and clarity ensure that decisions are made and supported by the best possible information and that public confidence in government intervention is maintained. 

5 Better balance competing trade-offs. 

The response to COVID-19 produced sharp trade-offs between health, social and economic outcomes, between short-term and long-term considerations and between different parts of the community. The existence of these trade-offs needs to be acknowledged and carefully managed and evaluated through risk management and cost-benefit frameworks.

The authors comment 

The outcomes from the pandemic suggest that initiatives to address the well-known fault lines throughout society remained at the periphery of the planning process rather than being placed at its core. To be better prepared for the next health crisis, we need to place people who are disadvantaged at the centre of our planning. Social inequities need to be considered from the start. This is the core focus of our recommendations. 

There was a gap between knowing that we need to account for societal fault lines and putting in place effective measures to address them. In some instances, this flowed from wrong-headed policies, such as deliberately excluding temporary migrants from financial support or preventing elderly people in aged care facilities from accessing hospital care when they had COVID-19. In other instances, government recognition of the adverse consequences of disadvantage came too little and too late. In virtually all cases, it reflected design flaws that flowed from not putting the most vulnerable at the centre of policy interventions. Below, we set out our six recommendations that, if taken up as a coherent package, will set the framework for a future response that can accommodate the lessons outlined in this report. While they relate directly to measures that can improve policymaking during a crisis, they are framed against a broader recognition that governments need to prosecute a range of structural and institutional reforms to address persistent challenges to broad-based prosperity. 

The recent Jobs and Skills Summit discussed some of these issues. But more action is required to address declining educational standards, the digital divide, health inequality, access to affordable housing, inadequate funding of aged and disability care, and the gap of disadvantage that separates Aboriginal and Torres Strait Islander populations from the rest of society. Clearly, there are other weaknesses in Australia’s social insurance system. Our Review does not seek to suggest how these wickedly complex problems of public policy should be addressed. Rather, it focuses its attention on ensuring that, in a crisis, the design and delivery of support is fully cognisant of the societal fault lines that will need to be addressed.

Accordingly there are six recommendations 

1 Strengthen crisis preparation, planning and testing. 

Pandemic plans should be wide-ranging. They need to be flexible and incorporate a broader range of transmissible, potential pandemic- causing pathogens. Plans should be regularly scenario-tested with key leaders, officials, ministers and representatives from business, unions and civil society. They should articulate the decision- making processes, the trade-offs considered and the balance of costs and benefits over time. Plans should identify risks and how these will be managed. 

2 Establish an expert body and trusted voice on public health. 

Australia should establish a world-leading Australian Centre for Disease Control and Prevention (ACDCP). The ACDCP should be structured with state-and territory-based nodes able to coordinate research institutes and universities across jurisdictions. It should be independent and apolitical in its staffing appointments. It should be data-driven and have complete access to federal, state and territory government datasets. It should also have the capabilities to develop its own additional datasets as needed. 

It should act as an early warning system and as the key advisory body to the Australian Health Protection Principal Committee (AHPPC). 

3 Improve government decision-making through broader advice and greater transparency. 

Australia should establish a panel of multidisciplinary experts, including business leaders and frontline community workers. It should have in place mechanisms to capture the voice of those with lived experience. Only then can we be confident that advice presented to the National Cabinet during health crises incorporates the broadest range of health, economic, social and cultural considerations, set within a risk management framework that balances short- and longer-term impacts. All levels of government should be required to invest in relationships with business and civil society to harness their expertise and networks in a crisis by committing to comply with the principles and core values for community engagement set out by the International Association for Public Participation (IAP2). The National Cabinet should clearly define its role in a health crisis, allocate responsibilities for key functions (for example, in relation to quarantine) and agree what constitutes an ‘essential’ worker or business. Its default position should be that it will publish all evidence and modelling that informs its decision-making. This may be politically challenging, but the greater transparency and openness will sustain public trust. 

4 Enhance public service collaboration, capability and communication. 

The National Cabinet should seek to significantly improve the collaboration of public servants across jurisdictions and with business and civil society. It needs to establish a clear authorising environment for cooperative work. To this end, it is time to undertake a major review, not of the quality of particular public services, but of how their cross-jurisdictional effectiveness can be enhanced. Recent reviews of federal, state and territory public administrations suggest that they are seeking to address a number of common problems. The National Cabinet should agree to establish an interjurisdictional Public Service Centre of Excellence. Its immediate focus should be on enhancing digital skills and data analytics, placing greater emphasis on the professional skills required to deliver major projects, and improving risk management and evaluation. The National Cabinet should expand and improve the channels of public communication, particularly with those from culturally and linguistically diverse backgrounds. With this in mind, all governments should increase the diversity of public sector employees. 

5 Modernise how governments use data. 

The Australian Government should amend the Data Availability and Transparency Act 2022 (Cth) (DAT Act) and the Tax Administration Act 1953 (Cth) (TAA) to make data sharing the default option. This would allow accredited private researchers to participate in the DAT Scheme established under the DAT Act, stimulate research in universities and improve access to administrative tax data for policymakers. Governments should encourage the sharing and linking of de-identified data between jurisdictions by reforming the Intergovernmental Agreement on Data Sharing between federal, state and territory governments. We should fast- track the development of interoperability frameworks for de-identified and anonymised health data. Governments should create elite data-led teams to build capabilities in empirical analysis. 

All of this should be undertaken in close consultation between the National Data Commissioner and the Privacy Commissioner, to ensure that confidential personal data is carefully protected. 

6 Build a culture of real-time evaluation and learning in the public sector. 

The Australian Government should establish an Office of the Evaluator General. It needs to have a truly independent and empowered senior executive at the helm, quarantined funding and a remit that includes real-time tracking of policy performance during a crisis. The Office should perform randomised control trials, natural experiments and other robust forms of analysis. It should report directly to Parliament. Ideally, similar models of evaluation should be developed by state and territory governments. In addition, all jurisdictions should embed an evaluation requirement for all new major policy proposals, particularly those that require legislative approval.

BioRights

Work by a Glocalist [sic] and Futurist for the England and Wales Law Society has resulted in Law In The Emerging Bio Age, which among other things offers a simplistic reference to overseas 'rights for domains' (conflating supposed formal rights with law on the ground). 

The report states 

This deep dive into what we might call the ‘emerging Bio Age’ – to distinguish it from the current digital Information Age – explores the evolving relationship between humans and living systems. That relationship will provoke new opportunities and risks that will demand oversight and new regulations, different contractual obligations, and create new alliances and conflicts as the rights of different human communities and natural systems themselves are challenged. 

Via an extensive scanning and systems mapping process, Jigsaw Foresight with the Law Society have in this project identified implications of emerging changes in this area that we have grouped as follows:

• New understandings of biotechnology and innovation 

• Second chances in addressing planetary limits and compensating for past damage to the global ecosystem 

• The rights of nonhumans and the greater role of nature in decision-making

The legal profession is already being affected by these emerging changes. Our purpose in this report is to explore those impacts and raise the overarching question of how humans can be better ancestors to future generations of all species and what that would mean for legal ethics. We raise many questions, some more uncomfortable than others, which is why we invite you to actively engage with the findings in this report. To help guide you, we offer conversation prompts at the end of the report to kickstart conversations at a formal or informal level. We also offer a deck of ‘postcards’ – concise creative artefacts to spark thoughtful ideas, connections, and conversations ... 

Scanning process and systems map 

As part of understanding a complicated topic, we identified categories of changes emerging that related to humans and living systems and mapped their interconnections. This creates an initial interconnected landscape of the issue, depicted visually as a summary systems map (see page 7). Each of the elements represents a category of trends and emerging changes identified during a four-month horizon scanning effort. ... 

The questions for the Law Society and the legal profession arise from the philosophical and ethical critiques of these shifts in humanity’s relationship to the planet and its living systems, and what that means in terms of ethics and rights. This in turn rebounds into the policy arena and decision- makers’ responsibilities in negotiating all of that by creating new laws and regulations – and working out how to enforce them. Three impact themes emerged from the general scanning data on this issue: New understandings, Second chances, and Rights for nonhumans. 

New understandings 

We begin with an exploration of the profound and surprising capabilities that are the direct result of advances in biotechnology research and innovation. Such discoveries have massive potential power for progress and may equally be weaponised or abused for exploitative ends. The efficacy of biotechnology regulation and risk mitigation for a range of areas must be examined. 

Second chances 

In this section we discuss how law and ethics can support us to mitigate future damage by operating within planetary limits and compensate for past damage to the global ecosystem. 

The practice of policy and law would need to tackle unintended consequences and perverse incentives, as well as a lack of transparency and accountability in financial disclosure and accounting practices. 

Rights for nonhumans 

We draw out here the emerging topic of rights for nonhumans. Rights have already been granted (and more are being sought in different jurisdictions globally) for elephants, trees, rivers, ecosystems, and landscapes. Rights for nonhumans communicates our dependence on and a greater role for nature in decision-making. The process and execution of a nonhuman rights-based framework in international and local law may differ radically from a human rights-based approach. For example, if rights were granted to nonhumans or living systems, then questions of liability for damage to the environment, such as climate change or biodiversity loss, arise. 

Roundtable discussions 

The Law Society hosted two roundtable discussions on this topic with lawyers, legal professionals, and topic experts. These discussions reviewed the existing topic system map and suggested additional implications for the legal profession, regulations, contracting, and policy. The roundtables aimed to elicit additional thoughts and insights on the scan results from a wider range of perspectives. The discussions were lively, critical, and creative; participants concluded this issue was urgent, under-discussed, and a topic the legal profession should engage. Highlights included:

• Commodification and the emphasis on economic growth reinforce the notion of humanity’s dominion over nature rather than our embeddedness in nature and living systems – the legal profession must consider how to best support the transition to a circular economy. 

• The legal profession should consider how to use the circular, interlinked frame of the issue system maps to cut through assumed hierarchies and look at interdependencies and connections. 

• Consider what the issue might look like from the nonhuman, or the ecosystem, point of view. • Explore the concepts of rights, identity, and personhood as critical to humans’ relationship to living systems, and our stewardship of environmental quality. 

• Emphasise the moral and ethical framing of this issue, and what it might mean for the legal profession to embrace humanist, artistic, spiritual, and sacred perspectives that reframe our relationships with living systems and create a form of environmental guardianship that stems from the sacred. 

• Risk, regulation, enforcement, and liability regarding all the facets of this complex system of innovations and issues demand uncomfortable conversations that we must face head-on with multiple stakeholders to assess where responsibility and accountability will lie regarding living systems and humanity’s biosciences capabilities. 

• Grappling with this issue demands long-term time frames and multiple timelines; we must avoid the constraints of political and business cycles. 

• The legal profession needs to consider what all these points mean for training the next generation of lawyers and how best to equip them to support long-term solutions with the necessary innovations in legal frameworks. 

A legal profession for the Bio Age 

Whether you are based in a large or small law firm, an in-house legal department, a member of the Law Society staff, a policymaker or part of another expertise community, three patterns that need shifting, collectively, and at multiple levels, emerge from this deep dive:

• Capacity building, leadership, and nurturing well-rounded next generation lawyers who are mission led as well as legally minded – lawyers for a blue planet;

• Developing a professional well-roundedness as well as a sense of shared purpose, collective responsibility and commitment to be agents of change across the legal profession. 

• Reframing, repositioning, and connecting the legal profession to longer as well as shorter term horizons of uncertainty, disruption, and uncertainty, protecting time to explore longer horizons of change; and 

• Reassessing impact and impact evaluation.

If we are to take account of living systems, then legal frameworks need to be fit for the more-than-human future.

In discussing rights for non-human life forms the authors state 

 Rights for nonhumans 

We draw out here the emerging topic of rights for nonhumans because rights have already been granted and more are being sought in different jurisdictions globally for elephants, trees, rivers, ecosystems, and landscapes. Rights for nonhumans communicates our dependence on and a greater role for nature in decision-making. The process and execution of a nonhuman rights-based framework in international and local law would likely differ from the human rights-based approach. For example, evolutionary development (including cognitive and emotional development) might be a right for nonhumans. 

When thinking about rights for nonhumans we acknowledge that human-constructed species hierarchies, i.e. cultural framings of nonhumans in binary groupings, determine who gets to live and who dies.  Current binaries include native and invasive, healthy and unhealthy, young and old, rare and common, cute and repulsive, pet and pest, sacred or profane. Such framings are sometimes applied to humans too. Using the example of ‘invasive’ species, we might consider how species become displaced as conditions in one location become inhospitable, e.g. due to heat, drought, pressure of other species. This is increasingly the case with climate change and the Argentinian town of Santa Isabel was overrun with unpleasant beetles when their habitat overheated. Humans also move because of rising sea levels, crop failure, conflict, and poverty. Positive human feelings for ‘charismatic’ nonhumans influence innovation and policy too, e.g. investment in new technology to talk to whales, people sending emails to trees, campaigns to ‘Save our English Oaks’. 

Some argue that in the current system human rights are not properly protected or balanced. If taxonomies like the species hierarchy are important in allocating rights, then we need to think about how bio body hackers who make extreme physical changes, biorobots, human-animal chimerae, and autonomous robots will be treated. We already see that transgender people and people with different characteristics are ‘othered’ and the effect of negative societal responses to body changes clearly links to the ‘cute or repulsive’ binary of the species hierarchy.

Regulation

'Testing the Regulator's Priorities: To Sanction Wrongdoers or Compensate Victims?' by Lachlan Peake in (2020) 39(2) University of Queensland Law Journal comments

As Australian corporate conduct came under intense and highly publicised scrutiny during the banking Royal Commission, so too did the conduct of the conduct regulator: the Australian Securities and Investments Commission (‘ASIC’). Following the Royal Commission, the regulator has adopted what it describes as ‘“Why not litigate?” operational discipline’ — a concept elaborated and recommended by Commissioner Hayne which is now the central tenet of ASIC’s updated enforcement model. This article discusses the hierarchy of strategic priorities evident in that enforcement model and asks: should the regulator focus its resources on compensating those harmed by regulatory contraventions rather than sanctioning those who have broken the law? 

Peake states

In the Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (‘Final Report’ and ‘Royal Commission’, respectively), Commissioner Kenneth Hayne said:

The Australian community expects, and is entitled to expect, that if an entity breaks the law and causes damage to customers, it will compensate those affected customers. But the community also expects that financial services entities that break the law will be held to account. The community recognises, and the community expects its regulators to recognise, that these are two different steps: having a wrongdoer compensate those harmed is one thing; holding wrongdoers to account is another.

In response to the Royal Commission, and specifically the ‘Why not litigate?’ mantra elaborated and recommended by Commissioner Hayne, the Australian Securities and Investments Commission (‘ASIC’) has significantly reshaped its enforcement model. It is quite clear that this model prioritises the sanctioning of wrongdoers over the delivery of redress to victims. The aim of this article is to test the theoretical and practical justification for such a preference. The central question — should the regulator focus its resources on compensating those harmed by regulatory contraventions rather than sanctioning those who have broken the law? — arises because, while it will sometimes be possible to achieve both goals simultaneously, the prudent allocation of finite resources usually dictates that the enforcement strategy be tailored to the regulator’s priority. As Commissioner Hayne put it, the ‘regulator must approach [its] work ... with a clear view of what kinds of outcome’ it wants to achieve; those desired outcomes — especially the most desired outcome — will guide the regulator’s choice of enforcement tools.

Part II of this article demonstrates, as a preliminary factual matter, that ASIC’s current enforcement model does not prioritise the delivery of redress to victims of misconduct. Part III examines whether, if such a priority were adopted, it would be theoretically justified, evaluating insights from regulatory scholarship, social psychology and sociology. The discussion commences with an analysis of the breadth of the regime that ASIC is required to enforce and the considerable discretion it is given to calibrate its enforcement style and determine its priorities when regulatory objectives conflict. The Part concludes that regulatory and interdisciplinary theory does not provide a secure foundation for either a punitive or a compensatory priority where those aims are in tension. As such, the article turns to resolve the question by reference to two key practical issues: whether regulatory mechanisms are more effective than others at achieving compensation, considered in Part IV; and whether, assuming a compensatory priority were adopted, this would unduly hinder the fulfilment of other regulatory objectives, considered in Part V. 

Part IV commences with the recognition that the regulator ought properly to be mindful of both the availability and efficacy of alternative avenues for victims to obtain redress before determining its strategic priorities and resource allocation in response to a particular contravention or class of contravention. Interestingly, however, the analysis finds that regulatory mechanisms are among the most available and effective in delivering compensation when compared with private litigation, alternative dispute resolution (‘ADR’) and external dispute resolution (‘EDR’). Despite this, Part V argues that a compensatory priority would unduly impede both the regulator’s ability to achieve deterrence through enforcement and to improve compliance through its softer activities of persuasion, education and policy advice. The article therefore endorses ASIC’s updated enforcement model to the extent that it conceives the agency’s statutory role as best fulfilled where it prioritises the punishment or censure of regulated entities who contravene the law.

Peake concludes 

As Australian corporate conduct came under intense and highly publicised scrutiny during the Royal Commission, so too did the conduct of the conduct regulator. ASIC has fully embraced the recommendations made by Commissioner Hayne that deal with its own approach to enforcement. In updating its enforcement model, ASIC has been and will continue to be supported by legislative reform, both to its own powers and to the scheme of duties and penalties that apply to regulated entities. The central change to ASIC’s enforcement approach is its adoption of the ‘Why not litigate?’ operational discipline. That mantra effects a renewed strategic prioritisation of the need to ensure appropriate punishment or censure of those who break the law, above and beyond other goals that the regulator may be interested in achieving, such as the delivery of adequate redress to victims of misconduct. The purpose of this article has been to interrogate that prioritisation and consider whether it would be preferable for the regulator to adopt the opposite position, and more readily focus its resources on the delivery of compensation to victims of misconduct. 

The central argument advanced in this article — that a regulator compensatory priority would be an effective way to deliver redress to victims but would unduly impede other desirable regulatory objectives — used the assumptions and logic of responsive regulation as its yardstick. It was beyond the scope of the article to engage in a substantive critique of that theory or its symbolic manifestation in the enforcement pyramid. However, given the extensive adoption of responsible regulation, including by ASIC, it is logical to discuss the merits of a compensatory priority, or indeed any shift in regulator focus, from that perspective. The article began by considering the underlying theoretical question: whom or what does the regulator serve? This discussion was approached broadly, evaluating insights from diverse sources: conventional regulatory scholarship, social psychology, and sociology. The answer was the amorphous ‘public interest’, which leaves little secure theoretical footing for a compensatory priority. As such, the practical implications of such a shift were taken to be the most important considerations. There is sufficient evidence, in my view, for concluding that regulatory mechanisms are among the most effective at delivering compensation. However, a regulator’s choices are complex and its resources must be deployed to ends other than compensation alone, particularly deterrence and compliance. My analysis suggests there is a credible risk that substantial violence would be done to the fulfilment of those goals if the interests of victims were to be preferred in a case of conflicting regulatory objectives. Such a priority should not be adopted.

OPCA

In Schneider v Colhoun, 2022 SKQB 163 the Saskatchewan Court states

[1] The plaintiff has brought an application for judgment against the defendants, his former residential landlords. He claims he is entitled to judgment of $1,024,743.00. He says he is entitled to this because the defendants failed to respond, but not to his statement of claim – they filed a defence and counterclaim, to which the plaintiff has actually replied – but to some arcane quasi‑litigation process of his own apparent devising. 

[2] The grounds for the plaintiff’s application are impossible to decipher. It is as if “ludicrous” and “risible” had a child. In chambers the plaintiff attempted to explain same but the water he was swimming in just became murkier. The plaintiff has fully bought into the bamboozle, and he does not appear able to extricate himself from same notwithstanding that the bamboozle is demonstrably incorrect and devoid of legal foundation and merit. … 

[15] You might think with this classic and linear pleadings history, this matter would be following the classic litigation path. 

[16] You would be wrong. 

[17] The plaintiff has established an alternate litigation path, one unknown to our procedures in this Court be those in statute or the rules or the common law. To explain this alternate path (perhaps alternate reality) will take some time. 

[18] The plaintiff’s current notice of application came before me in Regina chambers on June 7, 2022. It was filed May 20, 2022 – before the defendants’ defence was due and indeed before it was filed. While not easy to discern, the application sought judgment of $1,024,743.00 from the defendants as a result of their “default”. “Default”, of course, is a term of art in The Queen’s Bench Rules. It means the defendants had failed to serve and file a statement of defence in a timely way. That is not the case here, since as at May 20th the defendants still had time to file a defence even if I assume the claim was served on them on May 4th, the date it was issued. Also, in the case at bar, the defendants have not been noted for default of defence pertaining to the statement of claim. 

[19] So. The plaintiff’s present notice of application seeks the following remedies:

1. Remedies related to Default of Defence section 3‑21 Norm and Laura Colhoun in the amount of $1,024,743 dollars as the Defendants did not respond to the attached “Notice of Demand”, “Notary Certificate Notice of NON_RESPONSE”, or the Notarial Certificate of Dishonour. 

2. 3‑24 Claim for debt or liquidated demand and pecuniary damages or detention of goods by Norm and Laura Colhoun in the amount of $1,024,743 dollars.

[20] Thus the plaintiff’s application is a curious blend of a (mis)application of The Queen’s Bench Rules and processes of the plaintiff’s devising or adoption, the provenance of the latter not being entirely clear. Let me explain. 

[21] The plaintiff’s supporting material states that the plaintiff, “a living soul”, sent two registered letters to the defendants containing some documents: - December 17, 2021. The plaintiff sent a “Notice of Demand” to the defendants. He says he received no response to same. - January 20, 2022. The plaintiff sent a “Notice of NON‑RESPONSE” to the defendants, to which he also says he received no response. 

[22] The plaintiff purports to put this information before the Court in his document entitled “VERIFIED DECLARATION IN THE NATURE OF AN AFFIDAVIT”. It is not an affidavit. It is not affirmed or sworn, nor does it comply with The Queen’s Bench Rules pertaining to affidavits. Nevertheless I have considered this document. 

[23] After asserting the two mailings (above) the plaintiff goes on to say this: In light of the dishonors and failure to provide a defence as noted above, I hereby request your services as a notary public for the Province of Saskatchewan, to evidence the dishonor and failure to provide a defence as outlined above by re‑presenting my Notary Notice of Dishonour and Default Further, Affiant sayeth naught. 

[24] The Notice and Demand of December 17, 2021 is attached to this fiat as Appendix “A”. The Notice of Non‑Response of January 20, 2022 is attached to this fiat as Appendix “B”. These documents speak for themselves. I will not attempt to explain them. I am not sure I could. 

[25] There’s more. The plaintiff filed an undated, untitled document which begins “Information in support of the Statement of Claim”. It purports to be just that, but it is not in sworn form and is not actual evidence before this Court on this application. It includes a list of items for which specific sums are claimed, running the gamut from killing his cat to moving expenses to expensive liquor to sexual aids.  ...

[27] Next, as Appendix “D” I have attached the document the plaintiff calls his “Affidavit of Facts, Decree Under Claim of Right and Fee Schedule”. To be fair, this is a comprehensive document. It begins “The Creator created the universe, the earth and life” and ends with the extensive claims the plaintiff makes against these defendants. These documents draw distinctions as to the nature of the plaintiff: his corporeal self, his private self (to which no laws apply), his sole shareholder/beneficiary self in his name, his agency self. The claims advanced by these various personages are themselves varied. For example there are numerous human rights offences alleged, for each the plaintiff says he is entitled to 50 grams of gold. It’s sort of like catching a leprechaun apparently. 

[28] I am not going to go through each of these documents in detail. Suffice it to say that they are complex, convoluted, labyrinthine and – alas – unknown to law. 

[29] The plaintiff has also filed a partially completed Form 3‑22, affidavit for default judgment on a debt or liquidated demand. 

[30] These are the documents that the plaintiff relies upon for the present application. These constitute his alternate claim mechanism which, nevertheless, he attempts to incorporate into the standard system of civil litigation in this Court. I do not pretend to understand why he must use our Rules if these other processes bestow such wide rights upon him. … 

[32] I commence my analysis by noting that at the chambers hearing I recognized that the plaintiff was entitled to represent himself in these proceedings, but strongly urged the plaintiff to obtain legal advice, if not legal representation. It is fair to say he did not embrace my suggestion. 

[33] The obvious starting point in this analysis is to reference Meads v Meads, 2012 ABQB 571, [2013] 3 WWR 419. Mr. Justice Rooke crafted this masterful review of the tactics of “Organized Pseudolegal Commercial Argument (OPCA) Litigants” over a decade ago. It withstands the test of time and has been widely adopted in Canada. He succinctly described the nature of OPCA Litigants at para. 4 of his decision:

[4] OPCA litigants do not express any stereotypic beliefs other than a general rejection of court and state authority; nor do they fall into any common social or professional association. Arguments and claims of this nature emerge in all kinds of legal proceedings and all levels of Courts and tribunals. This group is unified by: 1. a characteristic set of strategies (somewhat different by group) that they employ, 2. specific but irrelevant formalities and language which they appear to believe are (or portray as) significant, and 3. the commercial sources from which their ideas and materials originate. This category of litigant shares one other critical characteristic: they will only honour state, regulatory, contract, family, fiduciary, equitable, and criminal obligations if they feel like it. And typically, they don’t.

[34] Having regard to the rest of the judgment in Meads and the material and arguments presented to me on this application, I have absolutely no hesitation in finding that Mr. Schneider falls within the OPCA category. His arguments fall within several of the categories set out by Justice Rooke in Part VI of Meads. I will point out five of the most salient of these. 

[35] First, the plaintiff asserts that he is not subject to the authority of statute, rules, this Court or the rule of law generally. In Meads this is dealt with beginning at para. 267. The case at bar is an interesting hybrid. While the plaintiff discounts this Court’s ability to set and govern its own process as a court of inherent jurisdiction, and while he sets forth and relies upon his own set of “laws” and “rules”, he nonetheless adheres roughly to this Court’s process by bringing a statement of claim and a notice of application for judgment. One wonders why, if his Notice of Dishonour system has legitimacy and efficacy, he needs to engage at all with this Court’s process. 

[36] In chambers the plaintiff asserted that this “system” of rights enforcement was widely known and recognized. I asked him where I could find the basis for this system. His reply was “It’s the notary process”, expressed in a tone of frustration that I would not know that process and embrace same. His view is that notaries are the real judges. 

[37] In particular the plaintiff repeatedly asserted that the “Uniform Commercial Code” applied, that it had been adopted in Canada, and that he was entitled to use it and I was bound to enforce it. Again, this is markedly similar to Meads. At paras. 26 and 27 Justice Rooke noted as follows:

[26] Mr. Meads stated that his birth certificate has an associated bond with large amounts of money that could easily discharge in full the claims advanced by Ms. Meads. He said this Court could order that payment. He then attempted to provide me with an envelope, presumably containing documents. Mr. Meads said the contents of the envelope had been “filed internationally”: a UCC filing, a Canadian filing, a commercial security agreement, an identity bond, “actual and constructive notices”, hold harmless and identity agreements, non‑negotiable security agreements, an affidavit of his status, a copyright and trade‑mark of his name contract, and definitions of the words used in those documents. “UCC” means the “Uniform Commercial Code”, which is U.S. commercial legislation. 

[27] I refused the envelope, and noted that if the envelope was abandoned then I would put those materials in the garbage. I reassured Mr. Meads that I will apply the laws of Alberta and Canada, and that while he is in Court, he will follow the Court’s rules. Mr. Meads’ reply was that was “unacceptable”, and he claimed that the “UCC” is “universal law”.

[38] The troubling nature of this Uniform Commercial Code argument was further dealt with at para. 150 of Meads:

[150] Similarly, Mr. Meads in his documents and arguments references the Uniform Commercial Code [the “UCC”], which is American legislation to harmonize commercial transactions within the United States. That too is not relevant to this proceeding, and will not be applied by this court. That said, as the caselaw survey that follows illustrates, the UCC is also a common motif in material from Canadian OPCA gurus, and forms a significant element in much OPCA mythology. However, why anyone would believe that American commercial legislation would apply in Canada is baffling. Still, OPCA litigants indicate that this legislation has a broad, even extraordinary scope. My office has recently received a document where an OPCA litigant said the UCC applies to governments, “... whether interstellar, intergalactic, international, national, state, provincial, or local ...” [emphasis added].

[39] This finding in Meads has been adopted in other cases. See, for example, Perreal v Knibb, 2014 ABQB 15 at para 8, 581 AR 275. 

[40] This Code has no application in Canada or Saskatchewan, despite the plaintiff’s sweeping pronouncements to the contrary. I have not applied it to the application before me. This highlights the first aspect of the plaintiff’s OPCA arguments. 

[41] Second, the plaintiff asserts that without his express agreement the law simply does not apply to him. He regards the laws of this nation and this province more as opt‑in provisions than as laws. 

[42] One example of this in the within case is from the material filed by the plaintiff. In the material sent to the defendants the plaintiff included the following:

The Creator created the universe, the earth and life. Humans, as a creation of The Creator are inherently equal and have inherent rights. These rights, bestowed by The Creator, cannot be compromised or undone by any other, but The Creator. That being said, the state or government was created by humans and is thereby subservient to humans. The creators of Canada acknowledge these inherent rights cannot be violated and have stated the Charter and Constitution only applies to the government, see Appendix A. I, Geofrey J Schneider, am the living man. As such, I am not, at any time performing on behalf of, or contracting with the government. I am always in the Private unless I issue a statement otherwise. Therefore, all government statutes, acts and codes do not apply to me. As a man of The Creator I follow inherent jurisdiction which states that I am free to do whatever I see fit as long as I DO NO HARM. [Emphasis added]

[43] Through his materials and arguments the plaintiff plainly asserts the legitimate laws of Canada and Saskatchewan simply do not apply to him unless he wishes them to apply. This is another OPCA characteristic. 

[44] Third, the plaintiff asserts that this alternate legal process has the force of law and is legitimate. It is not. By way of example and as previously noted, in chambers he asserted quite vociferously that the Uniform Commercial Code is the law of Canada. It is not. He is incorrect. The Uniform Commercial Code is not the law of Canada or Saskatchewan. 

[45] Fourth, the plaintiff asserts his person is split into several components. I have already referenced that he is in this legal action as a “private person”. For example his “Notice and Demand” of December 17, 2021 is signed by him at page 4 as “Principal in Fact, and the Only Authorized Representative for GEOFREY J SCHNEIDER including any and all alphabetical or numerical derivations thereof”. 

[46] As well, in his “Affidavit of Fact” supporting his alternate process claim he states (page 1), “Let it be understood: the legal entity/person mentioned prior to and following this statement shall not be mistaken for the legal entity on the Birth Certificate created by the Government for the Government.” Later in that same document he states as follows:

If as the sole shareholder/beneficiary I appoint myself, Geofrey J Schneider the sole Executor/Director and Principal Administrator of my Legal Person/Entity, GEOFREY J SCHNEIDER, with full liability, then your role is as follows …

[47] This intrapersonal schism of the plaintiff is a recurring theme flowing through his material and arguments. This is a hallmark of the OPCA litigant. 

[48] Fifth, the plaintiff asserts that he can unilaterally make the defendants agree with him, have a contract with him, and be subject to his belief system. 

[49] I will refer to a few of the plaintiff’s submissions to illustrate this point. His “Notice and Demand” (Appendix “A” hereto) contains his assertions to this effect. His notice purports to command the defendants’ response within ten days, failing which he is entitled to his claimed remedies. This notice reads in part:

Your failure to respond, within ten (10) days as stipulated, and rebut with particularity everything in this letter with which you disagree, is your lawful, legal and binding agreement with, and admission to the fact, that everything in this letter is true, correct, legal, lawful and binding upon you in any court anywhere in Canada, without your protest or objection or that of those who represent you. As your silence is your acquiescence, notification of legal responsibility is the first essential of due process of law. Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading. … 

I: Geofrey J Schneider accepts your open and binding offer of contract to form a firm and binding, private, bilateral contract between both parties, in which you agree to pay Geofrey J. Schneider by certified cheque in the amount of $1,024,743 one million, twenty four thousand and seven hundred and forty three dollars … 

The foregoing lawful NOTICE AND DEMAND is made in good faith and explicitly without recourse and now constitutes a binding contract and any deviation there from must be and will be treated as a breach of contract, a violation of substantive due process, a breach of public trust and a breach of fiduciary duty.

[50] In the chambers discussion the plaintiff asserted there was nothing untoward about any of this, that this mode of contract formation and enforcement was widely recognized all over the country. Hmmm. Not in my village. 

[51] Meads deals with the unilateral formation of agreements commencing at para. 447. A few excerpts illuminate:

[447] OPCA litigants frequently attempt to unilaterally foist obligations on other litigants, peace officers, state actors, or the court and court personnel. These foisted obligations take many forms. None, of course, creates any binding legal obligation. In that sense, these are yet more ‘magic hats’. … 

[449] Common examples of these foisted agreements purport to appoint someone a fiduciary, establish a contractual relationship or declare an OPCA person no longer has an obligation, such as to pay income tax. Some purport to unilaterally settle lawsuits or legal claims, without court direction. Others provide a system of predetermined fines. 

[450] Sometimes the unilateral agreement says that the recipient has a certain window of time to respond and disagree, otherwise they are held to have agreed to the terms of the unilateral agreement. That may be framed as a requirement that the recipient must rebut or prove themselves exempt from the foisted obligation. However, some foisted unilateral agreements do not even provide that courtesy, and instead allegedly indicate the recipient is bound, whether they like it or not. 

[451] Foisted unilateral agreements are almost always expressed in a documentary form. Many foisted unilateral agreements include dramatic language and warnings.

[52] This aspect of this case is, too, a feature of the OPCA litigant and arguments. 

[53] In this case the plaintiff is something of a poster boy for OPCA litigants and arguments. His arguments make no sense in numerous respects: grammatically, logically, legally. They are, in a word, nonsense. While the plaintiff presented as truly believing that he could somehow do this, at law he cannot. 

[54] There is absolutely not a scintilla of merit in the plaintiff’s present application for judgment. I have not the slightest hesitation in dismissing his application for judgment. …. The plaintiff did not depend entirely on his alternate system, but tried to incorporate same into the legitimate legal system in existence in this province even as he asserted that legitimate process did not apply to him. He should have stuck to the latter. His bifurcation of his claims and arguments have resulted in extra expense to the defendants. … 

[60] This is an unfortunate situation. The plaintiff has bought the bamboozle. He cannot now see its true nature. He cannot discern that it is nonsense, that it has absolutely no place in Canadian law. Like a stubborn terrier, he has bitten into the bamboozle so hard that he will not let go, no matter how foul it begins to taste. The bamboozle has captured him and he cannot admit it. The plaintiff has ceded his independent thinking to the charlatans who created this alternate legal theory; I hope he can recover it.

Obscurity

The recent large-scale Optus data breach has been followed that the telco will provide short-term funding to affected consumers for credit watch services by Equifax. As I've noted in a forthcoming article Equifax itself featured in a very large-scale data breach in 2017. 

'Interoperable Obscurity' by Thomas Kadri in the Journal of Free Speech Law (Forthcoming) comments 

Data brokers are abuse enablers. By sharing people’s information, brokers thwart obscurity, stimulate surveillance, and ultimately facilitate interpersonal abuse. This Essay canvasses four regulatory responses to brokered abuse: prohibiting abusive acts, mandating broker transparency, limiting data collection, and restricting data disclosure. Though some of these measures have merit, none is adequate, and several recent privacy laws can even make matters worse. Put simply, the current legal landscape is neither effective nor empathetic. 

Of particular concern, prevailing approaches can exacerbate victims’ trauma by forcing them to engage repeatedly with their abuse and vulnerability. Due partly to existing laws, people face a whack-a-mole task of pleading to remove their data from every single broker separately. But lawmakers could put an end to this traumatic experience through a regulatory regime of “interoperable obscurity.” In short, brokers could be compelled to design their systems to let a person obscure their information across all brokers with a single request. 

Requiring brokers to support a centralized obscurity process would represent the kind of empathetic regulation needed to tackle abuse. The right to defend oneself is sacred in many cultures, but those responsible for creating both law and technology have been slow to empower people with rights and tools of self-defense fit for the digital age. Interoperable obscurity is no panacea, but it could be a start.