27 July 2013

Corporate Defamation

'Adding Insult to Injury in Corporate Defamation Damages' by Hilary Young argues that
The law of defamation treats corporations almost identically to natural persons. In most common law countries, corporations may bring defamation actions, and the elements are the same for corporate plaintiffs as for natural person plaintiffs, as are the defences. So too, are the principles for awarding damages. 
Both people and corporations have valuable reputations worthy of legal protection. However, given the significantly different effect of reputational injury on humans than on corporations, the principles applied in quantifying damages to each should differ. Aggravating factors relating to emotional injuries should not be considered in assessing reputational injury to corporations, because corporations cannot suffer such injuries. Specifically, I focus on the relevance to the quantification of damages of: a) the defendant’s failure to apologize; b) the defendant’s malice; and c) the aim of vindicating reputation. Examples are drawn primarily from Canadian law but also from the laws of other common law countries.
The article first argues against treating a defendant’s failure to apologize to a corporation as a factor aggravating damages. The only relevance to a corporation of an apology is as a form of setting the record straight. Thus, an apology may mitigate damages but a failure to apologize will often have no effect on damages. Yet the law treats a failure to apologize as aggravating damages. 
Similarly, the defendant’s malice is considered a factor aggravating damages, but since corporations cannot be upset, embarrassed or insulted, it is not clear that malice should be relevant to calculating their compensatory damages. 
Finally, courts should no longer award damages in order to vindicate corporate reputation. The interest in human dignity may justify the vindicatory goal of defamation law. However, given that corporations have no dignity to protect, and given a number of problems associated with attempting to award damages to vindicate reputation, it is not justifiable to award corporations damages to vindicate their reputations.
Australian law, of course, takes a different stance regarding defamation of corporate persons.

'Splendid Isolation? Australia as a Destination for 'Libel Tourism'' by David Rolph in (2012) 19 Australian International Law Journal 79  comments
The phenomenon of ‘libel tourism’ has caused tension between the United States and the United Kingdom. The issue highlights the differences between American and English defamation laws and conflict of laws rules. Both in the United States and the United Kingdom, there has been legislation proposed or enacted to address the real or perceived problem of ‘libel tourism’. This article analyses ‘libel tourism’ and the responses to it in both countries. Given that Australia’s defamation laws and conflict of laws rules are arguably more restrictive than those of the United Kingdom, this article examines the prospect of Australia becoming an attractive destination for ‘libel tourism’.

Jurors and Social Media

'Jurors Using Social Media in Our Courts: Challenges and Responses' by Lorana Bartels and Jessica Lee in (2013) 23 Journal of Judicial Administration 35-57 considers the use of social media by jurors during the trial and deliberation processes.
The article presents examples of such conduct from Australia, the United States and the United Kingdom. The article considers research on why jurors use social media, and discusses the likely prevalence of the issue. The article then discusses the risks this conduct presents to the defendant’s right to a fair trial and the administration of justice generally. Possible solutions are examined, including banning telecommunication devices, requiring jurors to take an oath and developing specific jury instructions. Research on the effectiveness of jury instructions is reviewed, and future directions for research, policy and practice noted.
The article is cited in the recent Juries and Social Media [PDF] report for the Standing Council on Law and Justice by Jane Johnston, Patrick Keyzer, Geoffry Holland, Mark Pearson, Sharon Rodrick and Anne Wallace. 

The report comments that
It is a fundamental principle of law that an accused has a right to a fair trial. An incident of this right is that information relating to prior convictions of an accused should not be made available to the jury as it may bias their verdict. In our legal system, this principle has traditionally been underpinned by the common law offence of sub judice contempt of court. It is also reinforced by legislation, in each State and Territory, which makes it an offence for a juror to enquire about a person who is a party to a trial or any matter relevant to a trial. The traditional or ‘legacy’ media are aware of the law of sub judice contempt and as a result do not comment on the criminal history of an accused (although there are exceptions, as Hinch v Attorney-General (Vic) demonstrates). In recent times it has become clear that information about trials can be shared via social media, carrying implications for the right to a fair trial. 
In response to a request from the Victorian Department of Justice made on behalf of the Standing Council on Law and Justice, we were invited to:
1. Conduct a literature review of existing research and studies that discuss the use of social media by empanelled jurors and in particular the purpose and effect of such use and describe this research and these studies. 
2. Review any policy implemented in interstate or overseas (Commonwealth) jurisdictions that aims to address potential prejudice caused by a juror’s access to and use of social media, and provide details regarding whether any policy has been successful.
The 29 page report covers -
1. What is social media? 
2. Limitations on the effectiveness of sub judice and suppression orders in the digital era 
3. Problems cause by juries using social media during trials 
4. The current menu of options 
5. Recommendations 
6. Appendix One: social media platforms 
7. Appendix Two: jury directions in the United States

26 July 2013

Patents, Objectives and Offensiveness

Intellectual Property Australia has released a consultation paper [PDF] "to encourage discussion and seek views" on proposed amendments to the Patents Act 1990 (Cth).

The proposed amendments reflect the Australian Government's November 2011 response to three reports into gene patents and patentable subject matter, ie the Senate Community Affairs References Committee Gene Patents report, the Advisory Council on Intellectual Property (ACIP) Patentable Subject Matter report and the Australian Law Reform Commission's major Genes and Ingenuity: Gene Patenting and Human Health report, highlighted elsewhere in this blog.

The Government accepted recommendations to amend the Act to introduce
  • an objects clause to provide clarity in the interpretation of the Act, and
  • a patentability exclusion to prevent the commercialisation of inventions that would be wholly offensive to the Australian public.
ACIP argued that an Objects Clause (aka a Statement of Objectives) ‘would clarify the interaction between the patent system and competition policy’ and referred to the TRIPS description of the objectives of the intellectual property system
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
ACIP's recommended Objects Clause highlights the purpose of the Act as
being to provide an environment that promotes Australia’s national interest and enhances the well-being of Australians by balancing the competing interests of patent rights holders, the users of technology, and Australian society as a whole.
A second option is
the purpose of the patent system is to provide an environment that enhances the well-being of Australians by promoting innovation and the dissemination of technology and by balancing the competing interests of patent applicants and patent owners, the users of technology, and Australian society as a whole.
The second area of amendment concerns "introduction of an explicit exclusion from patentability for inventions where society would have a moral objection to commercialisation of the invention". ACIP recommended against reference to ordre public (mistranslated by one student as public ordure), and suggested "exclusion for an invention the commercial exploitation which would be wholly offensive to the ordinary reasonable and fully informed member of the Australian public".

IP Australia comments that
Patent examiners will be expected to apply the patentability exclusion during examination of patent applications. However, as noted in the ACIP report, the consideration of ethical issues is not a routine exercise for patent examiners. Patent examiners may also not be equipped to consider whether the commercialisation of an invention would be offensive to the Australian public. 
To address this problem ACIP recommended that the Patents Act be amended to provide the Commissioner with an explicit power to seek advice. This increases transparency and clarifies the Commissioner’s powers to seek assistance when applying the patentability exclusion. ACIP recommended: "that the Commissioner be given the power to seek non-binding advice, and have the discretion to decide the most appropriate way to do this".
Written submissions are due by 27 September 2013.

25 July 2013


'Accommodating Childhood' by Annette Ruth Appell in (2013) 19 Cardozo Journal of Law and Gender 715 argues that
Unlike other social categories, such as race, gender, sexual identity, and disability, the category of childhood has received little critical examination in the legal academy. Yet like other socio-legal categories with natural referents, childhood masks the contingency and normativity of behavior, expectations, power, and regulation, rendering this social order natural and inevitable. Childhood also scripts behavior and produces subordination and privilege in a manner unique to the adult–child dichotomy. As such, the category bears examination not only for what it reveals about adults, but also for what it reveals about the power and agency of children and the artificiality of childhood as presently constructed. 
This article presents children as complex and powerful subjects in their own right, but also recognizes and embraces the important foundational and instrumental roles of childhood. While the dichotomous developmental frame that dominates the regulation of youth is important from the perspective of adults, and even children, this framework unduly limits consideration and appreciation of children’s agency and participation in social and political orders. Despite the undeniable developmental differences between most children and most adults, the socio-legal categories of childhood and adulthood are no less inevitable than man-woman, black-white, able-disabled. The adult-child divide is a social construct in, and of, a regime which creates and privileges independence in adulthood and privatizes and subordinates dependency in childhood. In turn, this subordination creates moral and political power in adults and removes it from children. 
This article recognizes the structural importance of this categorical divide and the vulnerability this divide creates in childhood, but also its possibilities. Taking cues from ascendant human rights and disability approaches, this article suggests a model for bringing justice to children while preserving the important freedoms childhood creates for adults. This model, the Children’s Participation Act, presents an analytic framework for a more contemporary approach to children’s rights which aims to protect and promote children’s dignity and participation. This approach is part of a broader movement away from negative rights and toward liberty rights that enhance self-determination and value positive engagement with children and recognition of their individuality and humanity.


The New Zealand Plant Variety Rights Journal, dealing with the NZ equivalent of Australia's Plant Breeder's Rights regime under the International Union for the Protection of New Varieties of Plants (UPOV), reports on
application for the 1000th rose variety, accepted from Glenavon Roses for the variety ‘Somirevan’. Applications for rose varieties make up approximately a third of all PVR applications made since the scheme began in 1975. Roses continue to be an important part of PVR with 10-20 varieties tested each season.


Have been referring students tonight to change of diet during the siege of Paris (less grim than that of Leningrad or parts of China under Mao) ...

Gautier noted -
Soon the animals observed that man was regarding them in a strange manner and that, under the pretext of caressing them, his hand was feeling them like the fingers of a butcher, to ascertain the state of their embonpoint. More intellectual and suspicious than dogs, the cats were the first to understand and adopted the greatest prudence in their relations.
The very wealthy (and very unpleasant) gourmand, journalist and MP Henry Labouchere reported in Diary of the Besieged Resident in Paris that -
The servant who was in charge told me that up there they had been unable to obtain bread for three days, and that the last time that he had presented his ration ticket he had been given about half an inch of cheese. "How do you live, then?" I asked. After looking mysteriously round to see that no one was watching us, he took me down into the cellar, and pointed to some meat in barrel. "It is half a horse," he said, in the tone of a man who is showing some one the corpse of his murdered victim. "A neighbouring coachman killed him, and we salted him down and divided it." Then he opened a closet in which sat a huge cat. "I am fattening her up for Christmas-day, we mean to serve her up surrounded with mice, like sausages," he observed.
Each person now receives 100 grammes of meat per diem, the system of distribution being that every one has to wait on an average two hours before he receives his meat at the door of a butcher's shop. I dine habitually at a bouillon; there horse-flesh is eaten in the place of beef, and cat is called rabbit. Both, however, are excellent, and the former is a little sweeter than beef, but in other respects much like it; the latter something between rabbit and squirrel, with a flavour all its own. It is delicious. I recommend those who have cats with philoprogenitive proclivities, instead of drowning the kittens, to eat them. Either smothered in onions or in a ragout they are excellent. When I return to London I shall frequently treat myself to one of these domestic animals, and ever feel grateful to Bismarck for having taught me that cat served up for dinner is the right animal in the right place.
The following is a list of the prices of "luxuries:"—Terrines of chicken, 16f; of rabbit, 13f; a fowl, 26f; a rabbit, 18f; a turkey, 60f; a goose, 45f; one cauliflower, 3f; one cabbage, 4f; dog is 2f. a lb.; a cat skinned costs 5f.; a rat, 1f., if fat from the drains, 1f. 50c. Almost all the animals in the Jardin d'Acclimatation have been eaten. They have averaged about 7f. a lb. Kangaroo, however, has been sold for 12f. the lb. Yesterday I dined with the correspondent of a London paper. He had managed to get a large piece of mufflon, an animal which is, I believe, only found in Corsica. I can only describe it by saying that it tasted of mufflon, and nothing else. Without being absolutely bad, I do not think that I shall take up my residence in Corsica, in order habitually to feed upon it.
rench people, more particularly the poorer classes, can exist upon much less than Englishmen; but the prospect for any one blessed with a good appetite is by no means reassuring. In the Rue Blanche there is a butcher who sells dogs, cats, and rats. He has many customers, but it is amusing to see them sneak into the shop after carefully looking round to make sure that none of their acquaintances are near. A prejudice has arisen against rats, because the doctors say that their flesh is full of trichinæ. I own for my part I have a guilty feeling when I eat dog, the friend of man. I had a slice of a spaniel the other day, it was by no means bad, something like lamb, but I felt like a cannibal. Epicures in dog flesh tell me that poodle is by far the best, and recommend me to avoid bull dog, which is coarse and tasteless. I really think that dogs have some means of communicating with each other, and have discovered that their old friends want to devour them. The humblest of street curs growls when anyone looks at him. Figaro has a story that a man was followed for a mile by a party of dogs barking fiercely at his heels. He could not understand to what their attentions were due, until he remembered that he had eaten a rat for his breakfast. The friend of another journalist, who ate a dog called Fox, says that whenever anyone calls out "Fox" he feels an irresistible impulse which forces him to jump up. As every Christmas a number of books are published containing stories about dogs as remarkable as they are stale, I recommend to their authors these two veracious tales. Their veracity is guaranteed by Parisian journalists. Can better evidence be required? 

23 July 2013

Law and Morality

'Should Law Improve Morality?' (Oxford Legal Studies Research Paper No. 73/2013, forthcoming in Criminal Law and Philosophy) by Leslie Green notes that
 Legal theorists have long debated whether law should enforce social morality. This paper explores a different problem: should law (try to) improve social morality? I argue that it should. First, against conceptual and empirical doubts, I argue that it is possible for law to improve morality. Second, against certain moral objections, I argue that it is often proper for law to try to improve it. Third, I offer an example: law should try to improve our social morality of sex, by trying to re-shape what we regard as valid consent to sexual activity. Along the way, the ideas of H. L. A. Hart and Patrick Devlin are examined, as are the empirical and policy claims of Paul Robinson and his collaborators.
Green comments that
Lawyers and philosophers have long debated whether law should enforce social morality. No, says J. S. Mill, unless doing so prevents harm to others. Yes, says James Fitzjames Stephen, so that intentionally inflicted suffering can affirm and validate the community’s moral judgments. H. L. A. Hart replies: never, unless doing so attains some good that outweighs the loss of liberty and happiness that come with enforcement. Patrick Devlin rejoins: on the contrary, provided what is at issue is a moral standard whose breach an average person would regard with intolerance, indignation, and disgust, we should enforce it. Ronald Dworkin dissents: but that would be to give force to mere hostilities and prejudices, and those do not even count as moral views. Joseph Raz mediates: it is permissible to uphold social morality when the morality enforced helps constitute a valuable form of life and the ‘enforcement’ makes no or minimal use of coercion.
The debate about the enforcement of morality represented in these well-known arguments is far from settled. Disputes continue at the theoretical level, for none of the above doctrines is entirely satisfying and, as with all philosophical arguments, when debate progresses it transforms the questions and our sense of the conditions an adequate answer must meet. And the enforcement of morals is not just a problem that persists for theory; it continues to be controversial in practice. In Anglo-American political cultures, the appetite for enforcing social morality remains healthy and on some issues is ravenous. It is an obstacle to reform of unjust and ineffective systems of criminal punishment. How to address this confounds even sophisticated legal actors. In the law of obscenity, for example, courts can in one breath disown moralistic interpretations of what is obscene, declaring that it is to be defined not by violations of community standards but instead by reference to harmfulness, but then in the next breath affirm that what counts as ‘harm’ is whatever the community regards as harmful. The controversies also spill across national boundaries. Moral views that were once an unremarkable part of our own cultures and then became as minority, even pariah, outlooks, are being given new life. It was not so long ago that our societies held it morally unproblematic that men should be entitled to control women’s lives; that family honour should trump individual well-being; that children are vassals of their parents; and that law should support the true religion. Our moral consensus against such attitudes is destabilized by the mobility and migration of peoples who take a different view. Liberal societies have not always reacted well to such fresh encounters with their moral pasts. Much of the backlash against 1980s-style ‘multiculturalism’ is bound up with frustration, or perhaps weariness, at having to confront these views all over again, and now not as philosophical hypotheticals but as the actually-held values of neighbours and co-workers.
So the theoretical and practical issues about the enforcement of morality remain hugely important. Here, I poach a few ideas and arguments from that debate, but only in service of a different project. I focus instead on a problem that has been almost entirely neglected by legal theorists. The issue of the enforcement of morals begins on the footing that a society’s morality is already established—no doubt including diversity and complexity and open to interpretation—but nonetheless in a relatively stable existence. The enforcement question asks how law should respond to that actually-existing morality. But that image is inaccurate if it is anything other than a freeze-frame, artificially holding things constant while we inspect various details in the picture. This can mislead, because social morality is not fixed or given; it is fluid and dynamic. Like any set of customary norms—for example, the rules of grammar, or fashion, or etiquette—a society’s morality is in flux. What is more, one of the forces that moves and shapes that morality is its law. Or so I shall argue. And if that is correct we have a further issue to consider: how, if at all should law attempt to shape our morality?
In contrast to the very rich literature on the enforcement of morality, contemporary legal philosophy has almost nothing offer us on this question. Here, I try to make a start on it, looking to some recent work in legal sociology for help. I begin with some general observations about social morality. Next, I consider how such a thing could change, and—what is different—how it could be changed, including through the instrumentality of law. If morality can be changed, we need to consider whether it should be changed, and if so how. There is, obviously, no general answer to this last question, save the formally correct but empty one: law should attempt to change social morality for the better. But to exemplify the sort of analysis I think worth pursuing, I conclude with some less empty, but more conjectural, reflections on a case for changing aspects of our social morality about sex. I choose the example because it is the area in which the debates about the enforcement of morals were fought out, and also because it is where we now find some of the sharpest conflicts between liberal and more ‘traditional’ moralities.

22 July 2013


The Grattan Institute has released Taking university teaching seriously [PDF] by Andrew Norton, arguing that -
Australia has national debates about the quality of teaching in our schools. We worry about who is recruited to teach, what qualifications they have, and how well their students learn. Teaching quality in universities has received much less attention. As higher education enrolments expand towards 40 per cent of young people, university teaching needs to be taken much more seriously.
Universities now enrol students who would once have gone straight into work or vocational education. About a quarter of students entering university on lower ATARs never complete their degree. By comparison, university drop-out rates for the most able school leavers are below 10 per cent. The time, talent, and money of a large group of students are going to waste. Student surveys indicate whether students in Australian universities have conditions and experiences that are conducive to learning. Despite improvements since the 1990s, there is room to do better. Australian students rarely report being pushed to do their best work, are often not actively participating in classes, and have little interaction with academic staff outside of class. Academics are typically appointed for their subject expertise, with much less attention given to their teaching skills. Most academics have no training in teaching or have taken only short courses. Universities outsource large amounts of teaching to casual staff. Many academics prefer research to teaching.
Better research does not necessarily lead to better teaching. Original empirical analysis conducted for this report investigated the effect of research on teaching. It found that students in highresearch departments have very similar experiences to students in low-research departments.
Teaching-only universities are occasionally proposed as a solution. But this report’s findings suggest that removing research would not on its own solve the teaching problem. Departments that research less have not compensated by building specialisation in teaching. They have similar staffing profiles and practices to departments that research more.
While strong university leadership will ultimately drive quality improvements, government has a modest but important role. Among other things, it should continue to sponsor surveys of students’ learning experiences. It should maintain a competitive student funding system, so students can leave courses with poor teaching.
This report recommends a new, cost-neutral scheme to hire 2,500 teaching-focused staff at all academic levels across twelve universities. Teaching-focused roles can better recruit, develop and recognise effective teachers. A critical mass of skilled university teachers would act as a circuit breaker to research dominance.
Universities have long required research qualifications, sought research talent, and promoted their most able researchers. Teaching-focused academics can help lead a university culture shift that will make teaching an equal partner with research.

Visa Fraud Statistics

The ABC reports that "thousands of Indian students, skilled workers and 457 visa holders have been admitted to Australia on dodgy travel and work documents", with "out-of-control, large-scale fraud of the visa system".

Substantially redacted documents under FOI (eg here) indicate that internal audits by the Department of Immigration & Citizenship (DIAC) showed fraud rates from the 2008/09 financial year approached 50 per cent, with "longer term, robust biometric processes embedded in Indian identity documents and in DIAC systems [being] the only effective combatant". For a General Skilled Migration visa class, there was a 46.9% fraud rate for 23,767 visa lodgements in 2008/2009. The fraud rate was as high as 51.6% in the third quarter of the 2008/09 financial year. The DIAC documents show a 37% cent fraud rate from 41,636 lodgements for Indian student visas across the same period.

The Department indicates that
Around the periods of 2008, 2009, 2010 the fraud levels were quite considerable, a matter of real concern to the Department of Immigration and Citizenship. We're quite confident that those people who were issued with a visa ... 99.9 per cent are who they say they are and are doing what they said they would do when they were granted that visa.
The ABC states that -
An Immigration Department eyes-only briefing from the New Delhi office, published in April 2011, bluntly describes its purpose is to "report on the ease with which identity fraud is possible in India".
The documents outline one alarming case where a man breached Australia's borders by entering the country under a false identity.
He had previously been detained and deported from Australia, and run up a debt with the Government.
He had also applied unsuccessfully for a protection visa, and had gone through all levels of appeal.
He was able to subvert the numerous visa checks by simply changing his birth date.
"During the interview, his wife admitted that he had lived in Australia, and he had withheld this information from the department," the documents said.
The man was eventually caught and re-deported, however the migration agent responsible for the fraudulent application was also living in Australia under a false identity.
The documents suggest that, in exchange for payment, the agent helped many others into Australia while avoiding detection.
As a sidelight on claims of identity crime it is disappointing to note that DIAC doesn't publish the 'released' documents on its site alongside its FOI Disclosure Log. Potential readers are instead expected to contact DIAC by email and request a copy. That contrasts with the practice of other Commonwealth entities that publish the documents on their sites. DIAC still hasn't quite embraced the spirit of the revised FOI legislation.