27 April 2013

Public Transport Fishing Expeditions

Whatever were they thinking ... or not thinking?

Today's Age reports that
Concerns have been raised about [Victorian] Protective Service Officers collecting personal information from innocent bystanders, partly to show their superiors they have been working and, sometimes, to conduct on-the-spot criminal record checks. PSOs recorded the name and date of birth of more than 29,000 people last year, including those not suspected of any wrongdoing. The information may be used, at PSOs' discretion, to conduct criminal record checks by radio. ...
[O]ne PSO said another reason they wrote down people's details was to prove they had been working. The acting Victorian Privacy Commissioner, David Watts, was unaware of the practice and said he was "seeking comment and clarification from Victoria Police". ....
Victoria Police defended the practice as standard procedure used by both PSOs and police to gain information about an area. 
The Victoria Police, in recruiting people as Protective Service Officers, explains that
Your shift starts at your designated Police Station anywhere between 3pm and 7pm where you change into your uniform and equip yourself for duty. You and your team mates will receive a briefing from the supervising Sergeant outlining any safety concerns, events in the area and things to keep an eye out for. Transportation will be provided for you to your designated train station and your night will begin. You will always be on duty with at least one other PSO.
Throughout your shift, you will monitor peak hour train services where you will maintain a visible presence and engage with the community. You will build and maintain rapport with commuters and the surrounding community to build trust in the safety of the station. You will proactively patrol the train platform, car parks and surrounds, dealing with anti-social behaviour, property damage, alcohol and transport related offences as they arise. You will be provided with facilities to compile paperwork, which is minimal. You will also be provided with facilities to have a meal break along with other amenities as required.
You will be transported back to your designated Police Station to return your operational equipment along with any paperwork you may have completed during the shift. Shifts can vary from 8 to 10 hours and can start anytime from 3pm to 7pm. The Transit Safety division confirms your rosters 4 weeks in advance and takes into consideration your leave requirements.
Building rapport through fishing expeditions is problematical. In 2011 the Police Commissioner stated that "There are big differences in terms of what PSOs are able to do and what police do. PSOs won’t have all the powers police have but will be fully trained to be able to reduce crime, violence and anti-social behaviour in and around train stations."

The Age article goes on to explain that
 After beginning work in February 2012, PSOs were involved in the arrest of 1,397 people up to the end of 2012. More than 60 of those arrested were breaching bail conditions and 500 had outstanding warrants. A police spokeswoman confirmed one role of PSOs was to ''gather intelligence. PSOs can have between five and 50 contacts with commuters per shift (including those not behaving suspiciously) in the form of a greeting or a formal interaction where they obtain the person's name and date of birth.''
Under the Crimes Act people can refuse to give their name, address and date of birth, unless police have reasonable grounds for believing they have committed or are about to commit an offence, or could aid an investigation. The spokeswoman said when someone was not under suspicion ''a member of the public has the right to ask whether they are required to provide their details, which they would be advised that there is no obligation''. But police are not required to warn someone that they don't have to answer ....
On Tuesday morning Baljit Thind, 21, was outside the paid ticketing area on the ground level of Southern Cross Station. He was exploring the city, having arrived three weeks earlier from India to study in a language school, when he was approached by two PSOs. According to Mr Thind, one PSO said: ''Just show me your ID.'' ''I said, 'why'. He said, 'Just show me, we need your date of birth, name and address','' Mr Thind said. ''Because I was scared I gave him my Indian licence, and then he wrote my name and my date of birth in his diary. He told me, 'Where are you living in Australia?' and I told him my address.'' At no stage did the PSO tell Mr Thind that he was not obliged to reveal the information. ''I asked the police officer many times, 'Why do you need my ID?' because I didn't do anything wrong. He said to me, 'We just need it'.
Police did not disclose with whom the details were shared, but confirmed they were ''held by Victoria Police as law enforcement data''. The spokeswoman said the data was ''generally not'' cross-checked with CCTV footage ''unless the circumstances require an investigation''. 
No indication of how the data is processed, for how long it is retained and the framework for its disposal. (A comment on sharing of Myki data is here.)

Information collection by 'authorised officers' among public transport personnel  encompasses -
Powers of Authorised Officers
Authorised Officers have the authority to: see your ticket and concession identification where appropriate, even when you have left the vehicle or a paid area of a station
If an Authorised Officer believes an offence has occurred, they can:
ask for your name and address
ask to see evidence which confirms your identity
arrest you until your name and address is verified by evidence
arrest you until the police arrive if you refuse to comply
confiscate tickets for use as evidence if necessary.

24 April 2013

Red Hot Data Markets

'Exploring the social organisation and structure of stolen data markets' by Thomas Holt in (2013) Global Crime argues that
As consumers are increasingly using the Internet to manage their finances, there has been a concomitant increase in the risk of theft and fraud by cybercriminals. Hackers who acquire sensitive consumer data utilise information on their own, or sell the information in online forums for a significant profit. Few have considered the organisational composition of the participants engaged in the sale of stolen data, including the presence of managerial oversight, division of labour, coordination of roles and purposive associations between buyers, sellers and forum operators. Thus, this qualitative study will apply Best and Luckenbill's framework of social organisation to a sample of threads from publicly accessible web forums where individuals buy and sell stolen financial information. The implications of this study for criminologists, law enforcement, the intelligence community and information security researchers will be discussed in depth.
Holt concludes -
Over the last decade, research has begun to examine the ways that cybercriminals acquire, sell and use personal information to engage in fraud and theft. These studies highlight the types of products sold and the social relationships between participants, though few have considered the organisational composition of actors and techniques to manage exchanges between participants. This study explored these issues using Best and Luckenbill's 80 organisational framework through a qualitative analysis of posts from both Russian and English language forums.
The findings indicate that the participants in stolen data forums operate at various stages of deviant sophistication. Those who sell and buy data appear to operate as colleagues within the market to facilitate the exchange of data. Individuals do not have to work with others, but the collegial environment provides access to those who can facilitate partnerships to achieve a specific goal. An individual could buy cards from one seller and then seek out an encasher or provider who will liquidate an account. They may use these sellers again, or seek out others based on the availability of products and access to resources. Furthermore, these markets appear to make economic crimes much easier to commit, and foster a substantive division of labour between participants based on the range of products and services available. This study supports the assertion that ‘parts of the Net will soon develop into a new “improved” underworld’ to obtain all manner of resources and engage in crimes.  At the same time, the buying and selling process is peer-driven because actors can engage one another and influence action through recommendations. Buyers can discuss their experiences and interactions with sellers, and those who receive extremely positive feedback may be more likely to obtain multiple clients.  Forum administrators can provide reviews of products or influence the status of a seller which may also affect their share of the market. Additionally, administrators can ban users on the basis of fraudulent claims in order to moderate user activity. These mechanisms help to reduce the risk of loss for buyers, though the relatively low barriers to enter and participate in a forum allow unscrupulous vendors to take advantage of prospective buyers.  Individuals may ignore clear warning signs based on personal interests or needs and lose money with no formal recourse for compensation. Thus, actors in stolen data forums share similar risks with hawking markets for stolen goods in the real world  or even street corner drug sales.
This study also demonstrates that these forums vary in their organisational complexity based on extended duration over time and the presence of purposive relationships between groups. Two of the forums sampled constitute formal organisations, while the other two appear to be driven by teams due to their short duration and generally limited organisational complexity. The two forums that operate as formal organisations were also based on Russian language, suggesting that they may be more sophisticated than the two English language forums sampled. It is unclear if this is a function of distinct differences in the nature of the forum populations, or a reflection of general differences in the organisational structure of each forum overall. Additional research is needed with a larger sample of forums in various languages to understand the nature of formal organisations across the market. These findings will increase our knowledge of variations in the structure of stolen data markets in various settings across the computer underground.
The findings of this study call to question policy recommendations made by previous researchers.  Some have argued for the use of slander attacks against forums, by flooding threads with posts claiming that a seller is giving bad data or attempting to cheat customers. Such a campaign may initially cause confusion among participants, but this can be diffused through the internal mechanisms available to forum participants. Escrow services enable participants to have a satisfactory exchange, or engage in transactions with those who have gone through checking services. Prospective buyers could also examine advertisements and reviews posted on other sites to vet a sellers’ reputation. Finally, administrators may ban those users and edit the posts of those actors who attempt to disrupt the market with false posts and information. Rather than promoting simple attempts to disrupt forums, there may be a greater merit in cataloguing the behaviours and organisational composition of market actors to develop successful undercover identities for law enforcement. Federal agencies have infiltrated several forums through participation as data buyers, or in some cases, by turning market participants into confidential informants.  The success of these tactics depends on an implicit understanding of the formal and informal mechanisms between participants to manage relationships and transactions. This information can only be generated through constant observation of participant behaviours across multiple forums to discern differences in subcultural and market forces.
There is also a need for careful revision and adjustment of cooperative agreements to facilitate the international investigation and prosecution of data thieves. The findings of this study demonstrate that participants are compromising banks, businesses and citizens in the US and European Union. The participants, however, appear to be either native to the Russian Federation or Russian speakers living abroad. Currently, the US and the Russian Federation have difficulty collaborating to successfully facilitate the extradition of cybercriminals. As a result, it is vital that law enforcement agencies find ways to improve existing extradition treaties and cooperative frameworks to ensure that responsible actors may be detected and brought to justice.
Finally, there is a need for additional research to replicate the exploratory findings of this study and the organisational composition of participants in the sale of stolen data. Additional research needed in order to understand the relational networks that facilitate stolen data markets. For instance, it is unclear how frequently sellers appear as buyers within the market, or how buyers connect sellers together in the larger marketplace generally. Social network analyses of the posters and threads are needed in order to identify the relationships that undergird the social organisation of participants.  Furthermore, it is unknown how the organisational composition of forums affects the price of goods and services within the market.  Additional research is also needed to understand how product testing, verification of services and participant feedback influence the cost of financial information or cashout services. .

Transplant Tourism

'Transplant Tourism: The Ethics and Regulation of International Markets for Organs' by I. Glenn Cohen in (2013) Journal of Law, Medicine & Ethics 269-285 [PDF] comments that
'Medical Tourism' is the travel of residents of one country to another country for treatment. In this article I focus on travel abroad to purchase organs for transplant, what I will call “Transplant Tourism.” With the exception of Iran, organ sale is illegal across the globe, but many destination countries have thriving black markets, either due to their willful failure to police the practice or more good faith lack of resources to detect it. I focus on the sale of kidneys, the most common subject of transplant tourism, though much of what I say could be applied to other organs as well. Part I briefly reviews some data on sellers, recipients, and brokers. Part II discusses the bioethical issues posed by the trade, and Part III focuses on potential regulation to deal with these issues.
In discussing consent Cohen comments that
I have assumed thus far that any exploitation in transplant tourism is consensual. Is it? Consent is a bit of a weasel-word, but can usefully be divided into three constituent parts, whether an individual’s agreement to a transaction is voluntary, informed, and competent.
Is consent to selling one’s kidney voluntary? In the basest sense of “not done under threat of force,” yes, though the empirical evidence discussed above suggested occasional cases where threats of force are used to induce initial compliance, and more often coercive techniques like threats of force or withholding of passports are used to ensure that individuals do not back out. Apart from these instances, the lack of other good options itself cannot be enough to make the transaction involuntary, for the reasons I suggested above. Is the seller’s consent informed? The existing studies suggest frequent problems with the accuracy of the information provided to sellers: sellers were misinformed about safety, the quality of the doctor performing their surgery, and falsely assured with the myth of the “sleeping kidney,” the promises of citizenship or a job, the pleasantness of the conditions in India where the transplant will take place, and not informed about the possible physical and stigmatic consequences of the surgery. Sellers were also misled into thinking they would be paid substantially more than they were actually paid.
Even when individuals are presented all relevant information, they may lack the competence or capacity to effectively process that information. Psychological research finds that even highly educated individuals are bad at understanding risk and susceptible to significant framing e!ects, especially in health care settings.  As the studies above suggest, many sellers are poorly educated and illiterate, although we ought to be careful not to equate those facts with incapacity. I think the best approach to considering the issue is data-sensitive rather than blanket demographic conclusions. Although we cannot very easily tease out whether the cause of the problem is misleading information, over-optimism bias or other forms of bounded rationality, the evidence here suggests there is a problem. In the Pakistan and India studies only 35% and 21% of sellers, respectively, recommended that a family member or friend sell their kidney; in the Bangladesh study 85% of sellers spoke against the organ market, with many (an exact number is not given) stating they would not sell if given a second chance. The fact that a very high number of kidney sellers later regret their choices for reasons that likely involve informational deficits, bounded rationality, etc., is to me the strongest argument in favor or legal intervention. Yet the argument faces a few obstacles:
First, we lack good information on exactly what is causing the sellers to have so much regret, which seems important in determining whether an outright ban is necessary. As discussed above, many sellers do not get paid what they are promised and instead receive closer to two thirds of the promised amount. If a regulatory intervention was capable of eliminating that problem, would the high amounts of ex post regret remain? Moreover, as I mentioned above, the literature on altruistic kidney donation in the U.S. suggests that kidney donors have health outcomes as good as non-donors, while the data on transplant tourism suggests significant (self-reported) health deficits. Indeed, given the literature on adaptation to disability and mitigation over time of the negative effects of health setbacks on happiness, this may suggest that even this high level of regret the sellers self-report may underestimate the true negative effects on their health. If the mechanism causing the regret is negative health outcomes flowing from poor screening of seller health care, surgical, or post-surgical health care, in principle there may be more targeted regulatory interventions that can improve the situation such as mandating standard for health assessment, care, and the like.
Second, the usual remedy for problems of ex post regret is not an outright ban on a practice but improvement in information-provision and “libertarian paternalist” interventions — such as altering default rules in ways that “influence behavior while also respecting freedom of choice” — or “debiasing” strategies — that “help people either to reduce or to eliminate” over-optimism, framing effects, or other forms of bounded rationality in their decision-making. In the transplant tourism context, this would lead us to implement regulations designed to ensure that sellers were provided accurate information on their likely health outcomes post-transplant, on the likelihood that the money received would be successfully used for their goal (e.g., debt elimination), information on the likelihood of post-transplant regret, and that all of this was presented in an informed consent process that makes it comprehensible to someone with little formal education, and uses framing and other debiasing strategies to try to quell bounded rationality difficulties. It would also lead us to regulation to make sure that sellers received what they were promised in terms of remuneration.
The kind of regulation needed for this would be expensive, extensive, difficult to implement, and difficult to audit. This would be true if it was just a matter of putting in place regulation at the domestic level, but the problems are likely to be worse with transplant tourism, where three countries are typically involved (the buyer’s, the seller’s, and the location of transplant) and there is a real fear of regulatory race to the bottom, where the countries least willing to take action will be the ones who become the go-to destination for recruiting sellers or engaging in transplants. Moreover, because there are so many stigmas attached to kidney sale in these societies, it will be difficult for word of the ex post regret of prior sellers to circulate widely. Thus, while in a first-best world of perfect regulatory implementation, the consent deficits identified would lead to targeted correctives, the question is whether in the real world we are unlikely to avoid the problems identified with anything short of an outright prohibition? The “Working Group on Incentives for Living Donation,” consisting of Arthur Matas at the University of Minnesota and Sally Satel at the American Enterprise Institute among many others, has recently published its “Proposed Standards for an Internationally Acceptable System,” which are meant to establish the groundwork for a “regulated incentive system,” that is, legalized organ sale. They envision that under their system “[e]ach country will need to enact guidelines for evaluation and selection of donors,” institutional oversight, clearly defined “policies for follow-up, outcome determination and for detection” of irregularities with appropriate penalties. Moreover, they envision a system where the “donor must be fully informed” so that they adequately understand all risks and the nature and method of distribution of the benefit. Because I have argued that the chief concern with transplant tourism is not the in-principle objections (such as the corruption arguments) but the paternalism/regret problem, evaluating their proposal (or others like it) would require examining how well it would actually combat these concerns and whether it would receive sufficient buy-in and implementation by destination countries to blunt the illegal trade. Because their proposals are thus far untested, the matter remains open, and I do not purport to fully evaluate the issue here, but judging from Iran’s experience with a regulated kidney market, there are reasons for not being too sanguine that regulation can forestall these problems. Iran has robust regulation of kidney selling — all renal transplantation teams belong to universities and the costs of the transplant are paid by the government with no incentives allowed to transplant teams. Sellers are provided health insurance and an award from the government, and most are also provided a “rewarding gift” arranged before the agreement from the recipient or a charitable organization. The Iranian Society for Organ Transplantation carefully monitors all transplants for ethical violations. Nevertheless, Zargooshi’s study of 300 kidney sellers in Iran finds that 85% of them would definitely not sell their kidney again, and 76% strongly discouraged potential vendors from doing so. If the concerns about ex post regret persist in the one heavily regulated legal kidney sale market, this should cause some skepticism as to the superiority of regulation to outright prohibition.
Third, and more philosophically, paternalist arguments for outright bans are controversial at a political theoretical level, in that libertarians reject them. As Tony Kronman astutely observed almost three decades ago, one pressing a paternalistic argument to block a voluntary transaction “has an obligation to explain why such interference is permissible in some instances but not in others” for “only in this way can the legitimacy of paternalism be established and its limits defined.”
In this case such a limiting principle might be: “where many sellers of a good are being given false information, are poor, desperate, and uneducated, and where their ex post regret is quite high (routinely above 70%), and where the practice has significant negative effects on their health and economic fortunes, and where information-providing and other gentler correctives will not be effective, we should prohibit a practice outright.” To be sure, there are losers in such a move, not only the recipients who desperately need organs and the brokers who make a living mediating the trade, but the proportion of sellers (likely between 15% and 35% based on the above-discussed studies) who sell their kidneys and are, by their ex post assessment, glad that they did. They can legitimately press the hypocrisy argument on us, and lament that we have “protected them” out of their ability to get out of bonded labor and otherwise improve their lot in life. We can respond that we remain committed to making their lives better, to ending bonded labor and lifting people out of poverty, but the cynics among us will note that the headway we make on those lofty projects will be slow in coming, if it ever does. Instead it is better to look them in the eye and say “while we recognize that you feel you have benefitted from this trade, a clear majority of your neighbors find themselves worse o! after selling their kidneys and deeply regret what they have done. Sometimes regulatory prohibitions to protect the many will burden the few, and that is the price of living in a just society.” Will they be satisfied? Perhaps not. But we should be.

Attribution and Moral Rights in Photographs

More moral rights law - extending Meskenas and Perez - in Corby v Allen & Unwin Pty Limited [2013] FCA 370, the dispute over use of photographs in Eamonn Duff's Sins of the Father (Allen & Unwin), an account by that the Court identifies as "condemnatory of both Schapelle Corby and her father Mick Corby".

Mercedes Corby, brother Michael Corby and mother Rosleigh Rose complained that copyright in five photographs under the Copyright Act 1968 (Cth) had been infringed by the respondent and that the moral right of attribution of the author had been infringed in relation to four of the photographs. The publisher unsuccessfully argued that the photos were supplied to the author  or members of the media for publication.

The book features 37 photographs.
Ownership of copyright in one of the photographs has been passed by inheritance to four people – Rosleigh Rose being one of them. She is now a 25% owner of the copyright in that photograph, holding her share as a tenant in common. A co-owner of copyright holding an interest in copyright as a tenant in common may sue independently of other co-owners for protection of that interest ... Copyright in the other photographs remains in the ownership of their authors – i.e. the person who took the photograph. Copyright in one each of the remaining photographs is owned by Mercedes Corby and Michael Corby. Copyright in the other two photographs remains owned by Rosleigh Rose.
Buchanan J found that publication of the photographs in the book had infringed the exclusive rights of the copyright owners. No great surprises there.

The Court went on to consider moral rights under the Copyright Act.
The applicants also sought remedies under Part IX of the Copyright Act, which deals with moral rights. Such rights are additional to other rights (s 192(1) of the Copyright Act). Where an author dies, moral rights (so far as here relevant) may only be exercised by a legal personal representative and are not transmissible by will (s 195AN(3) of the Copyright Act). The third applicant, therefore, has no enforceable moral right in the Kuta photograph. 
One moral right (the only one relevant here) is a right of attribution of authorship. Section 193 of the Copyright Act provides:
Author’s right of attribution of authorship 
(1) The author of a work has a right of attribution of authorship in respect of the work. 
(2) The author's right is the right to be identified in accordance with this Division as the author of the work if any of the acts (the attributable acts) mentioned in section 194 are done in respect of the work. 
Reproduction of a photograph in a material form is a relevant attributable act (s 194 of the Copyright Act). None of the photographs carry attribution of authorship, although in the text of the book Rosleigh Rose is identified as the author of the airport photograph. 
Section 195AO of the Copyright Act provides: 
195AO Infringement of right of attribution of authorship 
Subject to this Subdivision, a person infringes an author's right of attribution of authorship in respect of a work if the person does, or authorises the doing of, an attributable act in respect of the work without the identification of the author in accordance with Division 2 as the author of the work.
However, s 195AR(1) and (2) provide:
195AR No infringement of right of attribution of authorship if it was reasonable not to identify the author  
(1) A person who does, or authorises the doing of, an attributable act in respect of a work does not, because the author of the work is not identified, infringe the author's right of attribution of authorship in respect of the work if the person establishes that it was reasonable in all the circumstances not to identify the author. 
(2) The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances not to identify the author of a literary, dramatic, musical or artistic work include the following:
(a) the nature of the work; 
(b) the purpose for which the work is used; 
(c) the manner in which the work is used; 
(d) the context in which the work is used; 
(e) any practice, in the industry in which the work is used, that is relevant to the work or the use of the work; 
(f) any practice contained in a voluntary code of practice, in the industry in which the work is used, that is relevant to the work or the use of the work; 
(g) any difficulty or expense that would have been incurred as a result of identifying the author; 
(h) whether the work was made: (i) in the course of the author's employment; or (ii) under a contract for the performance by the author of services for another person; (iii) if the work has 2 or more authors – their views about the failure to identify them.
 Buchanan J states that
The respondent argued that it was reasonable not to attribute authorship of any of the photographs because there is an industry practice that authorship of photographs is not always attributed. Ms Kaiser gave some evidence to that effect and there were some examples provided of books about Schapelle Corby in which authorship of photographs of the Corby family was not attributed. The respondent did not argue that it was sufficient to identify Rosleigh Rose as the author of the airport photograph in the text of the book; and that identification does not appear to me to satisfy the requirements of ss 195AA and 195AB of the Copyright Act, which require that identification to be clear and reasonably prominent. 
I am prepared to accept that attribution of photographs (particularly photographs from private collections) is not always done. So much is accommodated by the matters referred to in s 195AR(2) itself, such as the difficulty of identifying an author. However, there is no evidence in the present case that lack of attribution was due to the observance by the respondent of any industry practice. Some photographs in the book were attributed. No attempt was made to establish that the photographs for which no attribution was made were so treated pursuant to some industry practice, or because it was too difficult to find the author or for any other particular reason contemplated by s 195AR. 
In the present case, no effort was made by Mr Duff or the respondent to identify any author whose identity was unknown, although Mr Duff clearly knew that Rosleigh Rose was the author of the airport photograph. I conclude that the respondent, and Mr Duff, chose not to make any enquiries. I am not satisfied it would have been difficult or expensive to do so. I am not satisfied the respondent was following any particular industry practice. I conclude that it followed its own desires and that its conduct infringed the moral right of attribution of the first applicant in the Polda photograph, the second respondent in the Broadwater photograph and the third applicant in the Santa photograph and the airport photograph. Remedies for infringement of moral rights are available under s 195AZA of the Copyright Act which provides (relevantly):
195AZA Remedies for infringements of author’s moral rights 
(1) Subject to section 203, the relief that a court may grant in an action for an infringement of any of an author's moral rights in respect of a work includes any one or more of the following: (a) an injunction (subject to any terms that the court thinks fit); (b) damages for loss resulting from the infringement; (c) a declaration that a moral right of the author has been infringed; (d) an order that the defendant make a public apology for the infringement; (e) an order that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed. 
(2) In exercising its discretion as to the appropriate relief to be granted, the court may take into account any of the following: (a) whether the defendant was aware, or ought reasonably to have been aware, of the author's moral rights; (b) the effect on the author's honour or reputation resulting from any damage to the work; (c) the number, and categories, of people who have seen or heard the work; (d) anything done by the defendant to mitigate the effects of the infringement; (e) if the moral right that was infringed was a right of attribution of authorship – any cost or difficulty that would have been associated with identifying the author; (f) any cost or difficulty in removing or reversing any false attribution of authorship, or derogatory treatment, of the work. ..... (Section 203 has no application in this case.)
The applicants have sought relief under s 195AZA(1)(b), (c) and (d). However, s 195AZGG(3) provides:
195AZGG Saving of other rights and remedies 
... (3) Any damages recovered in proceedings brought otherwise than under this Part are to be taken into account in proceedings brought under this Part and arising out of the same event or transaction. 
As a result any damages awarded for infringement of copyright must be taken into account in assessing damages for moral infringement. 
I am not satisfied that any of the applicants in fact suffered a loss resulting from lack of attribution, whether loss includes commercial loss or injury to feelings. There is no reason to conclude that any of the applicants would have wished their name to be published in connection with a photograph of which they were the author, thereby suggesting they were in some fashion or other implicated in, or receiving credit for, reproduction of the photograph in connection with the book. It is not necessary for me to consider, either, whether aggravated damages might be available under s 195AZA(1)(b) in addition to compensatory damages under that provision. There is no basis to conclude that any conduct of the respondent has caused loss, hurt, embarrassment or damage to the reputation of any of the applicants as artists or as authors of any photograph. That status has no relevance for the complaint which the applicants have made which is that their distress and sense of outrage arises as family members, not as authors of photographs having a moral right of attribution with respect to those photographs. 
I am prepared to make a declaration that the moral rights of attribution of each of the applicants has been infringed in the present case, even though the infringement seems to me to be more a question of form than substance. That is because, in my view, the respondent is not entitled to the benefit of any discretion to withhold such relief, having regard to its demonstrated preparedness to disregard the provisions of the Copyright Act. 
However, I see no utility in ordering an apology with respect to a failure to make an attribution of authorship to which, in each case, the applicants would have been indifferent or would have found distasteful.

Canadian Social Media and Privacy

Canada's national parliament Standing Committee on Access to Information, Privacy & Ethics has released its anaemic 93 page report on Privacy and Social Media in the Age of Big Data [PDF].

The Committee notes that
On May 8, 2012 [it] agreed to undertake a study on the efforts and the measures taken by social media companies to protect the personal information of Canadians, and to report the Committee’s findings back to the House of Commons. 
On May 29, 2012, the Committee held its first hearing on this matter. Jennifer Stoddart, the Privacy Commissioner of Canada, appeared before the Committee and gave a brief overview of the social media industry, what it does and how its activities have an impact on the privacy of Canadians. In the Commissioner’s words:
Social media involve applications that allow individuals, organizations, and communities to share information and to generate content. 
Commissioner Stoddart went on to highlight the four areas of privacy protection which most concerned her Office — accountability, meaningful consent, limiting use, and retention — giving the Committee a first framework for studying this vast issue. 
Between May 29 and December 11, 2012, the Committee dedicated 15 meetings to the study, heard over 30 witnesses representing government, academia, public interest groups and the private sector, and received several written submissions. The Committee also travelled to Washington, D.C. in early October to meet with U.S. privacy experts and officials.
Recommendations in the report are as follows -
R1 The Committee recommends that the Privacy Commissioner of Canada establish guidelines directed at social media and data management companies to help them develop practices that fully comply with PIPEDA, particularly accountability and openness. 
R2 The Committee recommends that the Privacy Commissioner of Canada establish guidelines directed at social media and data management companies to help them develop policies, agreements and contracts that are drafted in clear, accessible language that facilitates meaningful and ongoing consent. 
R3 The Committee recommends that the Privacy Commissioner of Canada establish guidelines directed at social media and data management companies to help them put in place mechanisms that ensure individuals have access to any personal information that those companies may hold about them, that limit how long those companies hold on to that information and that facilitate the deletion of such information. 
R4 The Committee recommends that the Government of Canada and social media companies continue to provide support to organizations that provide education and training on digital activities and privacy. 
R5 The Committee urges social media companies to play a larger role in promoting safe and active online activities that protect the privacy and personal information of individuals, particularly in regard to vulnerable groups such as children and young persons. 
R6 The Committee recommends that the Government of Canada and social media companies continue to provide support to organizations dedicated to educating and promoting awareness to children, their parents and teachers to protect their personal information and privacy online. 
R7 The Committee recommends that the Government of Canada continue to provide support to digital literacy programs. 


The Assisted Reproductive Treatment Amendment Act 2013 (Vic) amends the Assisted Reproductive Treatment Act 2008 (Vic) - highlighted in previous posts about the Victorian ART regime - to
(a) to permit the Patient Review Panel, in exceptional circumstances, to extend storage periods for gametes and embryos without the written approval of the person who produced the gametes or a person who produced gametes from which the embryo was formed;
(b) to permit the Patient Review Panel, in exceptional circumstances, to extend storage periods for gametes and embryos if the storage period has expired;
(c) to provide for a 20-year storage period for gametes obtained from a child or from an adult certified as at risk of premature infertility;
(d) to provide that gametes and embryos kept in storage on commencement of this Act are lawfully stored despite expiry of the storage period;
(e) to allow time for removal of gametes and embryos from storage after the storage period expires; and
(f) to alter the constitution of the Patient Review Panel and make other amendments to improve its operation.
The administrative amendments for example are meant to "allow the Patient Review Panel to operate more flexibly and efficiently" through enabling the Panel to be "constituted by a single member in order to determine time-sensitive extension of storage period applications as expeditiously as possible".

22 April 2013

Occupy, but not overnight

In O'Flaherty v City of Sydney Council [2013] FCA 344 Katzmann J in the Federal Court of Australia has held that the arrest of protesters at the Occupy Sydney demonstration in October 2011 did not infringe the implied freedom of political communication.

A protester charged, under s 632 of the Local Government Act 1993 (NSW), with staying overnight in a public place argued unsuccessfully that public notices in Martin Place were unconstitutional because they prevented him from effectively conveying his political message.

Section 632(1) of the Act provides that
A person who, in a public place within the area of a council, fails to comply with the terms of a notice erected by the council is guilty of an offence.
Section 632(2) provides that "The terms of any such notice may relate to any one or more of the following" -
(a) the payment of a fee for entry to or the use of the place,
(b) the taking of a vehicle into the place,
(b1) the driving, parking or use of a vehicle in the place,
(c) the taking of any animal or thing into the place,
(d) the use of any animal or thing in the place,
(e) the doing of any thing in the place,
(f) the use of the place or any part of the place
The notice regarding Martin Place prohibited camping or staying overnight at that location, "any other act which may cause damage to the area, Any other act which may cause inconvenience or injury to others" (eg skateboarding) and littering. O'Flaherty disregarded the notice during 'occupation' of Martin Place, ie as part of a political protest.

The Court considered whether prohibition against staying overnight infringes the implied freedom of communication or association. In particular did the NSW statute in its terms, operation or effect effectively burden that freedom? Was the law reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
O’Flaherty testified that his purpose was to play his part in a protest against a world “corrupted and despoiled by systematic greed and institutional short-sightedness” in which too much power is assigned to “wealth and the wealthy few”. He said he believed that by staying at the occupation site continuously, the protesters were powerfully demonstrating their commitment to the Occupy Sydney cause, communicating in a way that appeared more “intense” and “long-lasting” than a rally or protest march. He believed that the act of occupation demonstrated the protesters’ solidarity with other Occupy movements and that more people could be involved in a continuous protest. Drawing on the media interest in the Occupy movements in the United States, he considered that an occupation would also attract greater media and public attention. Mr O’Flaherty said that he had intended to stay in Martin Place continuously and indefinitely as part of a public demonstration to highlight issues of social and economic inequality by enduring for himself the hardship of living on the street. He described the very act of occupation as an act of communication of political ideas.
O’Flaherty stayed overnight in Martin Place on both 21 and 22 October 2011, sleeping in a sleeping bag laid on a yoga mat, and  sharing his concerns with other protesters and passers-by. He was subsequently arrested.

The City officials were unimpressed by the occupation; the judgment states that
The evidence indicated that despite the efforts of the protest’s organisers, rubbish accumulated on the site and stains appeared on the pavement – even after the arrests in October 2011. For example, an inspection of Martin Place conducted in April 2012 revealed chalk graffiti from Occupy Sydney, urine and “vomit throughout”. In January 2012 a proper steam clean was unable to be carried out because protest leaders refused to move some of their items. A powerful odour lingered and staining remained after about 20 minutes of steam cleaning. On other occasions the area was not steam cleaned at all because belongings were not removed.
O'Flaherty argued that
the ends of the prohibition may be legitimate but the means by which the ends are achieved are not reasonably appropriate and adapted to serve those ends in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. He says that the arrests have had a chilling effect on the protesters’ activities, pointing to the dramatic reduction in the number of protestors prepared to stay overnight. He points out that of the 10 complaints made to the City about the protest, none of them related to staying overnight and none of them suggested inconvenience to the public. He also emphasises the absence of complaints to the police. He submits that there are other less drastic means by which the ends might have been achieved. He contends that the prescribed method – a total ban on staying overnight, punishable as a crime – is not reasonably necessary for that purpose. In other words, the means are disproportionate to the ends. Mr O’Flaherty points out that, while not all the activities that carry a penalty under s 632(1) involve the exercise of the freedom of political communication, some do. He argues that an exception or defence could have been built into the prohibition to protect the implied freedom. He notes that s 632(3) of the Act expressly contemplates exceptions. He contrasts the prohibition with s 199 of the Law Enforcement (Powers and Responsibilities) Act 2007 (NSW) which makes it an offence to fail to comply with police directions but limits the exercise of the power by providing in s 200 that police officers are not authorised to give directions in relation to “an apparently genuine demonstration or protest”. He also points to the fact that new signs that the City has erected elsewhere in recent years do not ban staying overnight. They only prohibit camping.
The Court asked "What are the legitimate ends of the prohibition? Are those ends compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?" In responding it held that
The legitimate ends of the prohibition are maintaining public health, safety and amenity in a high use public area and preserving the ability of all members of the public to use the area. Those ends are compatible with the maintenance of the constitutionally prescribed system of government.
Katzmann J referred to Corneloup and to Levy v The State of Victoria (1997) 189 CLR 579, aka the Duck Shooting Case.  He stated that
Martin Place is a popular precinct attracting a large amount of pedestrian traffic. No doubt that was one of the reasons the protesters decided to gather there. A survey of pedestrian use commissioned by the City shows that, between the hours of 8.00 am and midnight on a weekday in March 2007, more than 60,000 people passed through it and in July 2007, nearly 90,000. The prohibition facilitates and (the evidence indicates) is designed to accommodate cleaning at times when there is little pedestrian traffic and a negligible audience for any protest activities, minimising the impairment of any communication.
.... permitting protesters to stay overnight would detrimentally affect the City’s capacity to undertake the functions with which the Parliament entrusted it. At all events, it would interfere with the City’s capacity to do so efficiently, particularly if the protesters realised their ambition to occupy Martin Place indefinitely. It would also interfere with the rights of other members of the public to use the area. The fact that there were few complaints about Occupy Sydney from the public and that none of them concerned staying overnight is neither here nor there. Once the protesters were removed on 23 October 2011 very few stayed overnight again. In any case, whether the prohibition is constitutionally valid does not depend on how many complaints are made about the conduct it was designed to deter. Mr O’Flaherty submitted that there was no rational basis for the respondents’ argument that staying overnight threatens to block access to Martin Place by members of the public not involved in the protest. He also submitted that there was no rational connection between the prohibition against staying overnight and the promotion of public health, safety and public amenity. I reject both submissions.
The more successful the protest, the more people are likely to be attracted to the cause and with this, the greater the interference with the rights of others wishing to use the space. What about those who needed to use it, for example, to gain access to Martin Place railway station from Macquarie Street or to leave the station to get to Macquarie Street?
The greater the number of people staying overnight, the greater the interference with the City’s capacity to carry out its maintenance responsibilities. On the evidence called by Mr O’Flaherty, the rally on 15 October 2011 attracted around 3,000 people. The police estimate at a given time was 600. Either way, the numbers are significant for the area. In theory, the protestors (or hundreds like them) could have stayed on the site for days, months, even years on end. That would have transformed Martin Place into an obstacle course, if not the private domain of the protesters, and made it extremely difficult (perhaps impossible) for the City to clean and conserve it. This would have had a deleterious effect on the environment and public health. It would also have deprived any other group (including those with a political message) of the use of the space.


In Seven Network (Operations) Ltd v Brown [2013] NSWSC 372 the Supreme Court of New South Wales has ordered that Melanie Brown - aka 'Scary Spice' of the Spice Girls - be restrained from appearance on television in Australia as a performer other than for the Seven Network in 2013.

Brown and a company controlled by her husband had entered into an agreement that would see her act as a judge in 2013 on the Nine Network's Australia's Got Talent.

Hammerschlag J concluded that Brown was required under a previous agreement to provide her exclusive services to Seven in 2013. Seven was entitled to performance of that obligation.