12 December 2017

Digital Rights

Last month's Digital Rights in Australia report by Gerard Goggin, Ariadne Vromen, Kimberlee Weatherall, Fiona Martin, Adele Webb, Lucy Sunman, and Francesco Bailo at the University of Sydney comments that
Australians are some of the world’s greatest users of social media and mobile broadband, and our nation is in the top ten globally for internet use. At a time when our use of these technologies is increasingly redefining aspects of our personal and professional lives, Digital Rights in Australia explores urgent questions about the nature of our rights now and into the future. 
 The report covers
rights issues in four areas: privacy, profiling and analytics; government data matching and surveillance; workplace change; and freedom of expression and speech regulation. It explores the ethical and legal challenges we face in using digital, networked technologies and the debates we are having about how to best manage their transformative impacts. 
Crucially this study examines the major role of private, transnational digital platforms in reshaping the way we work, study and conduct business, our interactions with government and with each other. 
This report draws on three sources of data: a national survey of the attitudes and opinions of 1600 Australians on key rights issues; focus group discussion of related rights scenarios; and analysis of legal, policy and governance issues, illustrated by case studies. 
It's core findings are -
 Privacy, Profiling, Data Analytics
  • Australians are concerned about their online privacy. While two thirds of our respondents believe they personally have nothing to hide, only a small group (18%) think that more general concerns about online privacy are exaggerated. 
  • A majority of our respondents do not feel in control of their privacy online. While a majority take active steps to protect their privacy (67%), and have changed settings on the social media they use most often (61%), a minority (38%) felt that they can control their privacy online. 
  • Women experience the online world differently from men: they are more likely to agree that they actively protect their privacy online (71%, compared with 63% of men) and change their social media settings (63%, compared with 58% of men), but feel no more in control of their privacy (39%, compared with 38% of men). 
  • There may be a significant group for whom the answer to questions relating to privacy online are: “it depends” (this contrasts with answers about governments and privacy). 
  • Corporations were the major source of concern: 57% were concerned about their privacy being violated by corporations, although a substantial number were also concerned about privacy violations by government (47%) and other people (47%). 
  • A large majority (78%) want to know what social media companies do with their personal data. 
  • In the online focus group, participants’ views were mixed on the use of data in targeted advertising and price discrimination. But there was a consensus that content targeting for political purposes is different: for example, paying a social media platform to boost a negative opinion article about a rival party to users in marginal seats was seen as crossing a line.
Government Data Matching and Surveillance
  • Nearly half of our respondents were concerned about government violating their privacy (47%). 
  • A majority are opposed to government programs for phone companies and internet service providers to keep metadata on phone calls and web use. 79% of respondents considered retention of information about phone calls to be a privacy breach. A majority (58%) were also opposed to a policy for government-mandated retention of information about internet communications. 
  • But a change in frame altered these numbers. When asked whether they favour law enforcement and security agencies being able to access metadata, the number in favour jumped up to 42% (47% opposed). Once framed as an anti-terrorism measure, government data-gathering about internet is supported by a majority of respondents (57%), while only 31% oppose a program described this way. 
  • Our findings highlight the critical importance of the framing of questions when assessing public support for data collection and sharing, and interpreting survey results. 
  • Respondents’ attitudes towards both government collection of communications data, and government data matching programs, varied significantly depending on political identification. Respondents who identified with the Coalition were significantly more likely to support programs; identification with the Greens made a respondent more likely to oppose such programs. 
  • There is considerable ambivalence among the survey participants towards online government data matching programs. We found that 42% are in favour and 45% are opposed to a program that tracks citizen use of public services and benefits. Our online focus group was also sharply divided on a range of data matching scenarios put to them.
  • Digital privacy at work matters. Most Australians do not think employers should look at their employees’ social media pages. While 37% agreed that it was acceptable for either prospective or current employers to look at public social media posts; only 20% agreed that it was ok for either current or prospective employers to look at private posts. 
  • High school educated, those not working in professional/skilled work, and respondents over 40, were most concerned about employers accessing their social media posts. 
  • Only 16% of people agreed that using social media was an important part of their job, but most workplaces (72%) they were in had a policy about using social media while at work. Most workplaces seem to recognize the everyday ubiquity of social media use and are attempting to govern it, though only 46% of respondents said their workplace had a policy on what they post online. 
  • In this terrain of unclear directions over social media at work and employers’ rights to access posts, our online discussion groups reinforced that privacy boundaries are important, but also that employees needed to use their own “common sense”. 
  • The encroachment of some new policy agendas, such as that seen in the case study of the Public Service Commission, needs to better reflect citizens’ desires for digital privacy at, and from, work. 
  • The app driven, online gig economy presents a new space for digital rights analysis. Most respondents have heard of, but not used, a platform such as Uber, Airtasker or Deliveroo; and use is skewed towards those under 40 and the university educated. 
  • Australians see gig work as providing workers with more flexibility, but at the same time a majority are also concerned about the financial insecurity of this kind of work. Over 60% believe that these new forms of work need new government regulations. Yet, as shown in the case study, institutionalising fairer regulations is fraught.
  • Australians are not strongly wedded to the North American ideal of absolute speech freedom online. Just over a third (37%) of those surveyed agreed that they should “be free to say and do what I want online”, but 30% disagreed and a third expressed reservations about the idea. People were also less supportive of others having that absolute freedom than themselves. 
  • 50% of Australians agreed that everyone should have the right to online anonymity or pseudonymity, a figure that increases to 57% for those under 40 years. Around a third of younger Australians said it was more likely that they would make honest and open comment on the news, talk about sensitive topics like sexuality or question others’ opinions if they had the opportunity to comment anonymously. 
  • Men are more likely to assert their right to free expression than women, reflecting the male dominance of everyday speech online as much as of offline. 
  • Gender is a key variable in understanding attitudes to social media regulation. Men were less likely than women to agree with the need to remove within 24 hours instances of sexual harassment, abuse targeted at an individual, or hate speech that encourages violence against others. Women were less supportive than men of the right to anonymity. 
  • While most Australians had not experienced negative impacts from risky or harmful online speech, 39% have been affected by mean or abusive remarks and 27% have had personal content posted without consent. Our case study on image-based abuse emphasises the need for law reform and educational strategies to address new privacy and speech rights breaches. 
  • More than was the case for either work or privacy issues, Australians agreed on the need for more regulation of online discussion environments. They flagged the need for increased involvement by social media platforms in content moderation and ‘easy’ complaints reporting. 
  • There was a perception gap between people’s belief that harmful social media content was easy to get taken down, and the procedural reality that it is not always straightforward and may require regulatory intervention to persuade the host company to act, as the European Commission hate speech case study suggests.

Citizenship Shopping

'State Inc.' by Tsilly Dagan and Talia Fisher in (2018) Cornell Journal of Law and Public Policy comments
 Conventional wisdom holds that citizenship is not a consumer good and that the goods that the state confers upon its constituents - e.g., economic and social rights, access to its publicly provided goods, political voice and identity - are not for sale. In fact the relationships between states and actual or potential citizens is ideally conceptualized as standing in stark contrast to a seller-buyer relationship. The ideal type of state-citizen relationship is based in an entirely political sphere disconnected from the market. In accordance with this ideal conceptualization of the state-citizen relationship, the state is depicted as the legal guardian of citizenship entrusted with authority to determine who its members are and to exercise its powers in a manner that is compatible with the underlying normative values shared by its political members. It has an obligation to reinforce and represent the politically pronounced collective will. Being a citizen, according to this view, translates into being a member of a political community, participating in its deliberative process and as such bearing rights vis a vis the state and being entitled to the benefits it confers.
This ideal depiction of the relationship between the state and its actual or potential citizens is not, however, fully aligned with current reality where we are witness to gradual erosion of various dimensions of state-citizen relationship and an infiltration of market logic into this interaction. States seemingly desert their role as trustees of citizenship and assume a market player position, recruiting human capital and investments by putting their real and political assets up for grabs. They engage in the sale and barter of various aspects of membership in their polities and at times even in the sale or barter of full-fledged citizenship. Individuals as well, shop for citizenship, residency, work and other permits as well as for additional goods that states provide.
We argue that in order to fully account for this process of market infiltration into the realm of citizenship both on a descriptive and a normative level, one needs to widen the perspective through which state-citizen interaction is viewed. The ideal depiction of a distinct separation between the political sphere and the market realm fails to take into account the fact that the state-citizen relationship does not stand in a vacuum. Rather, it is part of a greater market order plagued with democratic and political deficits. In this decentralized order states themselves inevitably participate and function as market players vis a vis other states. They compete for capital and human resources by offering their public goods and political participation for sale. This market thus conflates monetary and political currency, and puts a price tag on political membership. At the same time, individuals and corporations compete for state-provided membership, rights, and public goods.
Competition does not only change the strategic positions of states and citizens in pursuing their goals. It percolates into the interaction between states and their subjects (their current citizenry as well as potential constituents) altering traditional roles of both states and citizens; it changes the kinds and quantities of public goods and entitlements being offered, it alters modes of democratic participation, schemes of distribution as well as the meanings and values underlying the state-citizen interaction.
The purpose of this Article is twofold: first, on a descriptive level we wish to uncover existing manifestations of the market infiltration into the state-citizen interaction. We will discuss how globalization reshapes this interaction’s phenomenology as well as the strategic goals of both states and citizens. Second, on the normative plane we explore and evaluate the marketization and fragmentation of the state-citizen relationship in light of central normative criteria--efficiency, distributive justice, autonomy identity and political participation.
Part A will focus on the descriptive dimension and unravel real world practices where state-citizen relationships are being marketized in full or in part. These examples of selling citizenship a-la carte will demonstrate the infiltration of the market into the political sphere and how market forces shape both the identity of the polity, and the formation of the collective will.
Against the backdrop of these markets for citizenship induced by state competition, part B will turn to the normative discussion evaluating the desirability of markets for citizenship.


'Privacy As Protection of the Incomputable Self: Agonistic Machine Learning' by Mireille Hildebrandt comments
This paper takes the perspective of law and philosophy, integrating insights from computer science. First, I will argue that in the era of big data analytics we need an understanding of privacy that is capable of protecting what is uncountable, incalculable or incomputable about individual persons. To instigate this new dimension of the right to privacy I expand previous work on the relational and ecological nature of privacy and the productive indeterminacy of human identity. Second, I will explain that this does not imply a rejection of machine learning, based on a more in-depth study of the assumptions, operations and implications of the practice of machine learning – highlighting its alignment with purpose limitation as core to its methodological integrity. Instead of rejecting machine learning, I advocate a practice of ‘agonistic machine learning’ as core to scientifically viable integration of data-driven applications into our environments while simultaneously bringing them under the Rule of Law. This should also provide the best means to achieve effective protection against overdetermination of individuals by machine inferences.

11 December 2017

Nudges and Capabilities

'The Folly of Categorization: Why Nudges are Even More Defensible than Their Advocates Suppose' by Douglas Husak in (2016) 14 The Georgetown Journal of Law and Public Policy comments
Count me among those philosophers who believe that most of the normative controversies about nudging or so-called libertarian paternalism are vastly overblown. I hope we are many, but it is hard to be sure. Nearly all of the worries brought against nudges qua nudges expressed by or attributed to moral philosophers are misdirected and/or exaggerated. My modest goal is to support this claim by attempting to show that Cass R. Sunstein—who almost certainly is the most well-known champion of nudges or libertarian paternalism—takes several of the philosophical objections to his proposals too seriously and responds to them less forcefully than he might.
'Working With And For Animals: Getting The Theoretical Framework Right’ by Martha Nussbaum in (2017) 94(4) Denver Law Review 609 comments
Friends of animals have lots to complain about and lots of work to do. To the familiar list of horrors—torture of animals in the meat industry, misery inflicted on puppies by puppy mills, the damages of research using animals, the manifold harms endemic to the confinement of apes and elephants in zoos, we have some further issues that have only become issues in the past few decades: depletion of whale stocks by harpooning, the confinement of orcas and dolphins in marine theme parks, the poaching of elephants and rhinos for the international black market, the illicit trafficking of elephants from Africa into U.S. zoos, the devastation of habitat for many large mammals through climate change. New issues arise all the time. The world needs an ethical revolution, a consciousness raising movement of truly international proportions. 
But bad behavior also needs law. No major crimes against sentient beings have been curbed by ethics alone, without the coercive force of law—although it typically takes an ethical movement to goad law into action. And so far, both in the U.S. and in the international community, law has been lagging behind the evolving ethical consciousness of humanity. Animals still lack standing under both U.S. and international law. They also lack any rights of ethical consideration. All human animals are treated as persons and ends (no matter how immature the human is), but all non-human animals are treated as mere things, as property. Law must find ways to make animals legal subjects and not mere objects. We need to move toward a world in which human beings are truly Friends of Animals, not exploiters or users. 
To make progress, we need theoretical approaches that are sound in terms of reality, grappling with what we know about animals, and that also direct law in a useful fashion. In this Article I will examine two extremely influential approaches to animal entitlements in philosophy, both of which have implications for law and policy: the “So Like Us” approach and the “Least Common Denominator” approach. I shall argue that both are defective intellectually, and also in terms of strategy. A version of the Capabilities Approach, an approach to justice for both humans and other animals that I have developed over the years, does far better in directing ethical attention. Does it also do better in directing legal strategy?
‘The Legal Status of Whales: capabilities, entitlements and culture’ by Rachel Nussbaum Wichert and Martha C. Nussbaum in (2016) 72 Sequência (Florianópolis) comments
Whales, among our planet's most majestic, mysterious, powerful, and intelligent beings, are profoundly endangered. International law has for some time attempted to protect them from extinction. Our paper addresses the legal status of whales and argues that they should be regarded as creatures with rights, not simply as commodities. Currently, international law does not recognize whales as creatures with rights. International organizations, particularly the International Whaling Commission (IWC) and its founding document, the International Convention for the Regulation of Whaling (ICRW), have focused on the issue of overfishing and have allowed exceptions to usual standards based both on the alleged needs of scientific research (in the case of Japan) and on the alleged claims of culture (in the case of aboriginal groups in the Arctic).
 The authors state
In a related paper, we have explored the moral basis of animal entitlements, in the context of evolving legal debates about whether animals can be granted "standing" to approach a court of law (through an advocate, as is now the case with human with severe disabilities)1. Many animal rights activists have urged that the best basis for legal (and moral) standing for animals is suffering, an approach that can be traced to Jeremy Bentham, the founder of Utilitarianism. While we support Bentham's radical extension of moral concern to all sentient beings, we argue that suffering is not the only relevant notion. Intelligence and the ability to be social are qualities that are at least as important. Indeed, there is a strong case for considering cetaceans "non-human persons" and according them legal rights, most importantly standing to sue in their own right. Whales cannot be said to be "like" humans in terms of DNA, but they have their own form of intelligence and deserve protection under the law. 
On the other hand, we reject as misguidedly anthropocentric the form of this argument that exalts intelligence above physical suffering. Each animal species has its own form of life, and each deserves opportunities to flourish in its own way. We argue that ultimately the best philosophical approach to these issues is an analysis of animal lives in terms of a range of distinct but related capabilities, intertwined into a form of life. This approach, however, has never been accepted in either domestic or international law, despite years of argument by environmental groups urging courts to treat marine mammals as creatures with moral and legal rights.
They conclude
If environmentalism and conservation are an important part of the IWC's mission, it is well placed to take action on the specific question of whale protection. It is the major organization specifically focused on whales. In the process, it should also consider the threat posed by climate change. If significant portions of the Arctic open up for commercial oil and gas drilling in the future, this will pose further dangers for the marine mammals who live there and for their entire ecosystem. 
The issue, then, ultimately comes back to the moral and legal question of standing. By now most of the international community agrees that the harms done by cultural traditions must be limited in the name of human rights. But they don't reach the same conclusion about marine mammals, because they do not grant them legal or moral standing. The international community must decide: are whales person-like beings with legal entitlements, or are they not? At present, they are not, under customary international law. But customary international law is at odds, here, with moral reasoning grounded on empirical fact, and at odds with the moral judgments of a growing proportion of the international community. The romanticization of traditional whaling is no more morally defensible than the romanticization of domestic violence and child prostitution. Whales are person-like beings with intelligence, social interactions, and the capacity for not just suffering but a wide range of experiences and activities. The time has come for international law in general, and the IWC in particular, to recognize this.

Witches and Institutional Capacity

'Taxes, Lawyers, and the Decline of Witch Trials in France' (GMU Working Paper in Economics No. 11-47, 2012) by Noel D. Johnson and Mark Koyama comments
 How is rule of law established? We address this question by exploring the causal effect of increases in fiscal capacity on the establishment of well enforced, formal, legal standards in a pre-industrial economy. Between 1550 and 1700 there were over 2,000 witch trials in France. Prosecuting a witch required a significant deviation from formal rules of evidence by local judges. Hence we exploit the significant variation across time and space in witch trials and fiscal capacity across French regions between 1550 and 1700 to show that increases in fiscal capacity caused increased adherence to the formal rule of law. As fiscal capacity increased, local judges increasingly upheld de jure rules and the frequency of witch trials declined.

Markets and Corporate Personhood

'The Institutions of Roman Markets' by Benito Arruñada in Giuseppe Dari-Mattiacci (ed.), Roman Law and Economics vol. 2 (Oxford University Press, 2018) comments
I analyze the basis of the market economy in classical Rome, from the perspective of personal-versus-impersonal exchange and focusing on the role of the state in providing market-enabling institutions. I start by reviewing the central conflict in all exchanges between those holding and those acquiring property rights, and how solving it requires reducing information asymmetry without endangering the security of property. Relying on a model of the social choice of institutions, I identify the demand and supply factors driving the institutional choices made by the Romans, and examine the economic circumstances that influenced these factors in the classical period of Roman law. Comparing the predictions of the model with the main solutions used by Roman law in the areas of property, business exchange and the enforcement of personal obligations allows me to propose alternative interpretations for some salient institutions that have been subject to controversy in the literature, and to conclude with an overall positive assessment of the market-enabling role of the Roman state.
'Brexit and Corporate Citizenship' by John Armour, Holger Fleischer, Vanessa Jane Knapp and Martin Winner  in (2017) 19(2) European Business Organization Law Review 225-249 comments 
The UK’s recent vote for Brexit has sparked a fierce debate over the implications for the rights of EU citizens living in the UK and UK citizens living in the rest of the EU. So far, however, there has been relatively little discussion of the implications of Brexit for legal persons – that is, corporate citizens of the EU, which may also be profoundly affected by consequent changes. The ECJ’s 1999 decision in Centros made clear that the freedom of establishment protects the entitlement of corporate persons formed in one EU Member State to carry on their business in another Member State. Since then, many entrepreneurs in continental European countries have chosen to form companies in the UK, while still carrying on their business in their home country. What will the consequences of Brexit be for such companies? 

28 November 2017


The Legal and Constitutional Affairs References Committee report Law of contempt recommends 'that the submissions received to this inquiry be referred to any future Senate inquiry into contempt'.

The Committee was tasked in August 2017 with reporting by 25 November on
(a) the recommendations of the 1987 Australian Law Reform Commission report on contempt and, in particular, the recommendation that the common law principles of contempt be abolished and replaced by statutory provisions; 
(b) the recommendations of the 2003 New South Wales Law Reform Commission on contempt by publication and the need to achieve clarity and precision in the operation of the law on sub-judice contempt; 
(c) the development and operation of statutory provisions in Australia and overseas that codify common law principles of contempt; 
(d) the importance of balancing principles, including freedom of speech and expression, the right of fair trial by an impartial tribunal, public scrutiny of the operations of the court system and the protection of the authority, reputation and due process of the courts; and 
(e) any other related matters.
The committee received six submissions

The report states that
On 7 April 1983, the Australian Law Reform Commission (ALRC) was referred an inquiry which sought to consider the following forms of contempt:
• improper behaviour in court; 
• attempting to influence participants in proceedings; 
• failing to comply with a court order or an undertaking given to a court; and 
• contempt by publication.
In June 1987 the ALRC tabled its final report, Contempt, which made 124 recommendations. ... In essence, the ALRC recommended that the common law principles of contempt be abolished and replaced by statutory provisions which would govern all Federal Courts except the High Court of Australia. 
On 14 July 1998, the Law Reform Commission of New South Wales (NSWLRC) was asked to inquire into the law of contempt by publication. Specifically, the terms of reference were:
To inquire into, and report on, whether the law and procedures relating to contempt by publication are adequate and appropriate, including whether and in what circumstances, a person against whom a charge of contempt is found proven should be liable to pay, an addition to any criminal penalty, the costs (of the government and of the parties) of a criminal trial aborted as a result of the contempt
The report, Contempt by publication, was published in June 2003 and subsequently tabled in the NSW Parliament on 16 September 2003. The committee made 39 recommendations .... The report noted that to codify contempt by publication, while leaving the common law to regulate other forms of contempt, would not have the effect of achieving clarity over the operation of contempt laws. However, the report recommended significant legislative reform in the area of contempt by publication, 'while allowing the common law to continue to develop.'
Codification of the law of contempt 
The views of submitters relating to whether or not contempt laws should be codified were mixed. The Legal Service's Commission of South Australia (LSC) supported the codification of contempt laws arguing that this would achieve greater clarity for defendants and consistency in the manner in which sanctions were being imposed. The LSC made the following suggest[ion]s if contempt laws were to be codified:
• that a catch all provision be included in the definition of contempt so that unforeseen incidents of contempt are not excluded; 
• that contempt in the Family Courts take into account its unique role and be tailored to its unique priorities, such as the welfare of children; and 
• if contempt is to be dealt with entirely in the criminal courts, then it should not be dealt with summarily and the defendant have the right to request the matter be heard by a different judicial officer.
The Law Council of Australia (Law Council), expressed the view that contempt laws currently operate 'satisfactorily', although it was not opposed to the codification of contempt laws in line with the recommendations of the ALRC and the NSWLRC reports. However, in noting its broad support for the codification of the law of contempt, the Law Council explained the importance of retaining certain principals such as flexibility and freedom of expression: 
Despite its support for efforts to codify rules of contempt, the Law Council is conscious of the special role contempt plays in the judicial system and considers it to be critical that any measures to codify the law of contempt retain as much flexibility and discretion as possible to allow judicial officers to appropriately deal with issues arising from contempt of court on a case-by-case basis.
The nature of contempt demands a complex balancing of interests, most notably between freedom of expression on one hand and the integrity of the justice system on the other. In this regard, the Law Council emphasises the need for reform proposals to remain cognisant of the fundamental importance of the administration of justice and the contribution made by the law of contempt to preserving this. The reform proposals must also avoid unduly infringing principles of freedom of expression and open justice.  
Should reforms to the law of contempt proceed, the Law Council made the following recommendations:
• Any reform to the laws of contempt should be co-ordinated between the Commonwealth and the States to achieve uniformity; 
• The recommendations of the ALRC that common law principles of contempt be recast as criminal offences should be implemented, to the extent that they do not already overlap with the criminal law; 
• The recommendations of the ALRC that contempt in the face of the court be replaced with a series of criminal offences to be tried summarily should be implemented; 
• The recommendations of the ALRC that civil contempt be replaced with a statutory regime of non-compliance proceedings should be implemented; 
• A "substantial risk" test proposed by the NSWLRC should be uniformly implemented in relation to contempt by publication; 
• Summary trial procedures for sub-judice contempt should be retained; 
• if contempt is to be dealt with entirely in the criminal courts, then it should not be dealt with summarily and the defendant have the right to request the matter be heard by a different judicial officer. 
• The public interest defence recommended by the NSWLRC in relation to contempt by publication should be implemented; 
• The law of contempt by publication should be reviewed to ensure that it applies to circumstances where an Internet Service Provider or Internet Content Host has been made aware of the material but, thereafter, fails or refuses to remove it.
The Law Council also recommended that they be consulted prior to any reforms relating to the law of contempt being introduced. 
 The NSW Office of the Director of Public Prosecutions (ODPP) did not comment on the recommendations of the ALRC's report, however, stated that it 'supports the development of uniform statutory provisions governing the law of sub judice contempt.' The ODPP noted that since the NSWLRC's report of 2003, social media platforms such as Facebook and Twitter were launched, which have significantly changed the media landscape, including in the manner and form in which media is being reported. As such, the ODPP suggested that '[t]he proposed legislation will need to take account of the changing media environment to ensure that all manner of publications are covered by the sub judice provisions, including the new and emerging social media platforms.' 
While the International Commission of Jurists Victoria (ICJ) described the NSWLRC's report as 'an extremely useful and comprehensive tool in discerning the relevant issues with respect to contempt by publication laws…', it argued against the broad codification of contempt laws. The ICJ disagreed with criticism that the laws of contempt were difficult to determine and potentially lacking in procedural fairness. It noted that the flexibility of the current law allows the courts to appropriately tailor their responses and that courts have shown that they are able to apply their powers in a 'fair and nuanced way'. Finally, the ICJ argued that it was essential that courts are able to initiate contempt proceedings on their own motion as this is vital to the exercise of their independence. 
The NSW Office of the Director of Public Prosecutions (ODPP) did not comment on the recommendations of the ALRC's report, however, stated that it 'supports the development of uniform statutory provisions governing the law of sub judice contempt.' The ODPP noted that since the NSWLRC's report of 2003, social media platforms such as Facebook and Twitter were launched, which have significantly changed the media landscape, including in the manner and form in which media is being reported. As such, the ODPP suggested that '[t]he proposed legislation will need to take account of the changing media environment to ensure that all manner of publications are covered by the sub judice provisions, including the new and emerging social media platforms.' 
A couple of submitters did not offer a view as to whether or not the law of contempt should be codified, however made the following observations: 
• the right to freedom of expression and the right to have a fair hearing can sometimes compete with one another but freedom of expression should not be misused to prejudice the prospects of a person obtaining justice before the courts;
• that the point of view and lore of Australia's Aboriginal and Torres Strait Islander people be considered.
The committee thanks all organisations and individuals who made submissions to this inquiry, though it notes that the number of submissions received is far lower than it had anticipated. Having received such limited input, the committee does not feel that it is in a position to properly inquire into this complex issue, or to form a considered view as to whether the laws of contempt should be codified. However, having regard to the important and considered views expressed in the submissions received, the committee recommends that the submissions be referred to any future Senate inquiry into contempt.