12 October 2013

IP and Health Law

'A Human Rights Approach to Intellectual Property and Access to Medicines' (Global Health Justice Partnership Policy Paper 1, 2013) [PDF] by Hannah Brennan, Rebecca Distler, Miriam Hinman and Alix Rogers notes that
In this paper, we address whether and how human rights norms and frameworks can be used to improve access to medicines (A2M) by reducing the barriers that intellectual property (IP) laws create to such access. We evaluate the feasibility and usefulness of four human rights- based strategies that our contacts in the A2M community suggested might be particularly productive: (1) the use of human rights arguments in domestic court cases that deal with intellectual property laws, (2) the articulation of norms in the United Nations (UN) human rights system, (3) the use of human rights arguments and frameworks to secure greater pharmaceutical corporate accountability, and (4) the use of health-related rights to build multilateral and regional alliances that can more effectively oppose free trade agreements (FTAs) with TRIPS-plus provisions (TRIPS being Trade-Related Aspects of Intellectual Property Rights). We offer insights and specific short- and long-term action steps for each strategy, including recommendations for further research. 
We also offer this brief executive summary of each of the four sections that follow. 
In the first section, we address how, in the past few years, domestic courts have displayed a growing willingness to use human rights laws to reinterpret and even strike down IP laws that impede access to medications. For example, a court in India concluded that it could not issue injunctions in patent cases where the result would be a substantial increase in the price of medicines, relying in part on the right to life in the Indian constitution. A court in Kenya struck down an “anti-counterfeiting” law as a violation of the right to health in the Kenyan constitution. And a court in Colombia concluded that local health rights required it to enforce price control requirements (if not issue a compulsory license, as activists argued). If the logic of these cases were successfully extended to other countries and other areas of doctrine, domestic human rights protections could serve as a powerful fulcrum to help dislodge harmful intellectual property laws. Judicial articulation of the relationship between the right to health and intellectual property law might also legitimize broader political actions that prioritize the right to health over intellectual property protection. Although such court cases have not always succeeded, and gains have been incremental thus far, this strategy appears to be gaining momentum. We recommend that activists prioritize the pursuit of human rights arguments in IP-related court cases at the national level. We consider this to be the most promising of the four approaches we have considered, with the greatest likelihood of providing real results for access in the near future.
The second section considers how a number of international human rights treaties contain rights that bear on access to medicines. A variety of UN human rights bodies have already begun to develop law at the intersection of health-related rights and IP. An important general comment, for example, makes it clear that access to medicines is a component of the right to health. Human rights bodies have also recognized that TRIPS can negatively impact access and have urged states to utilize TRIPS flexibilities and avoid TRIPS-plus provisions in FTAs. But existing articulations of these obligations remain somewhat underspecified and are often couched in terms that leave much discretion to states. At least one recent human rights document, however, suggests that states “must” use TRIPS flexibilities, at least in certain circumstances. There is potential to build upon this work, to enunciate more specific obligations, and to stimulate more focused reviews of state practice. However, processes for achieving these results within the UN system are challenging. Pursuing a system-wide strategy that incorporates all of the political and expert bodies would require tremendous resources with uncertain rewards. We recommend that A2M activists assess and pursue selected human rights mechanisms that are likely to be the most feasible and productive, especially as applied in specific, strategic moments and country contexts. This may be particularly valuable to help support and disseminate successes at the national level. 
The third section engages with the question of corporate accountability. Pharmaceutical corporations have traditionally rejected the notion that they have obligations under the right to health, in part because the international human rights system has not historically considered corporate actors to be directly governed by human rights law. Recent developments, including the emergence of the Working Group on Business & Human Rights, may give A2M activists new tools for campaigns against companies. Some, however, have concerns about the limits of the norms that are being developed in this process, which tend to be modest, for example focusing on transparency. In campaigns, however, human rights language continues to be an important moral resource for targeting corporate conduct. We recommend further discussion by activists of the benefits and limits of formal human rights work on corporate liability, and that “informal” human rights language be invoked in campaigning to help concretize norms on pharmaceutical companies’ moral and legal obligations. 
The fourth section notes that activists already utilize human rights arguments to oppose TRIPS-plus provisions in FTAs. Human rights arguments could be additionally employed at all political levels by activists to generate political will and foster solidarity for the formation of multilateral alliances. Heightened negotiating power resulting from south-south alliances framed around human rights could provide developing countries with the opportunity and strength to oppose TRIPS-plus FTA provisions and stem the proliferation of IP norms that threaten access to medicines. Human rights arguments may provide a useful set of norms to help ensure that resulting alliances remain committed to protecting the right to health. We recommend that activists continue to invoke human rights as a political tool to encourage south-south alliances, particularly informal ones, and to help generate leverage against regressive FTAs. 
Finally, the paper concludes with several appendices that we hope will be of use to activists working on these issues. Appendix A gathers the most important recent domestic court cases in the area and describes their key holdings. Appendix B collects and describes the most important international human rights documents and standards relevant to IP and A2M. Appendix C offers clarification on the evolution of principles of corporate obligations to respect human rights.


In Bonang Darius Magaming v The Queen [2013] HCA 40 the Australian High Court, by majority, upheld the validity of the Migration Act 1958 (Cth) s 233C(1), which prescribed a mandatory minimum term of imprisonment for people smuggling, specifically the offence of facilitating the bringing or coming to Australia of a group of at least five non-citizens with no lawful right to come to Australia.

The High Court held that the provision was not beyond the legislative power of the Commonwealth Parliament and did not confer judicial power on prosecuting authorities.

Magaming was one of four crew members on a boat carrying 52 passengers intercepted near Ashmore Reef on 6 September 2010. The passengers were not Australian citizens; none had a lawful right to enter Australia. Magaming was charged with one count of facilitating the bringing or coming to Australia of a group of at least five unlawful non-citizens contrary to s 233C(1) of the Act.

The offence under s 233C(1) of the Act was an aggravated form of the people smuggling offence created by s 233A(1) of the Act, which prohibited facilitating the bringing or coming to Australia of an unlawful non-citizen.  Section 233C(1) of the Act carried a mandatory minimum sentence of five years' imprisonment with a minimum non-parole period of three years, in contrast to s 233A(1) which carried no mandatory minimum term of imprisonment.

Magaming was sentenced to the mandatory minimum term of five years' imprisonment with a non-parole period of three years, after pleading guilty in the District Court of New South Wales. He sought leave to appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales, alleging that the provision prescribing the mandatory minimum term of imprisonment was invalid. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, concluding that the relevant provision was valid.

Magaming the appealed to the High Court by special leave. He contended that in circumstances where prosecuting authorities could choose between charging an offence that carried a mandatory minimum sentence and charging another offence that carried no mandatory sentence, the prosecuting authorities impermissibly exercised judicial power. He also contended that the provision of the Act prescribing the mandatory minimum sentence was incompatible with the institutional integrity of the courts and that it required a court to impose a sentence that was arbitrary.

The High Court this week dismissed the appeal. Although prosecuting authorities had a choice as to which offence to charge, that did not involve an exercise of judicial power or confer on prosecuting authorities an ability to determine the punishment to be imposed for the same conduct. Imposition of a mandatory minimum sentence was not inconsistent with institutional integrity and did not involve the imposition of an arbitrary sentence.

11 October 2013


'The Impact of Mobile Phone Usage on Student Learning' by Jeffrey H. Kuznekoff & Scott Titsworth in (2013) 62(3) Communication Education 233 reveals that - whodathunkit - texting in class by students might just have some impact on their learning. The authors comment -
in this study, we examined the impact of mobile phone usage, during class lecture, on student learning. Participants in three different study groups (control, low-distraction, and high-distraction) watched a video lecture, took notes on that lecture, and took two learning assessments after watching the lecture. Students who were not using their mobile phones wrote down 62% more information in their notes, took more detailed notes, were able to recall more detailed information from the lecture, and scored a full letter grade and a half higher on a multiple choice test than those students who were actively using their mobile phones. Theoretical and pedagogical implications are discussed.
In modern classrooms, instructors face many challenges as they compete for students’ attention among a variety of communication stimuli. Rapid growth of mobile computing, including smart phones and tablets, presents a double-edged problem: along with previously unimaginable access to information come previously unfore- seen distractions. Of wide concern to many instructors is the potential distraction caused by students using their mobile devices to text, play games, check Facebook, tweet, or engage in other activities available to them in a rapidly evolving digital terrain. That concern has potential merit; recent statistics from the Pew Foundation show that the median number of daily texts for older teens rose from 60 in 2009 to 100 in 2011 (Lenhart, 2012). Moreover, 64% of teens who own cell phones have texted during class, even in schools where cell phones are technically banned (Lenhart, Ling, Campbell, & Purcell, 2010). Those texts potentially come at the expense of learning, as texting during class reduces students’ ability to self-regulate and give sustained attention to classroom tasks (Wei, Wang, & Klausner, 2012). Cell phones, and the broader array of digital mobile devices, pose unique communication challenges for both users and those with whom they interact. Some critics argue that texting and other digital communication behavior potentially diminish key social skills like effective listening. As one commentator noted, ‘‘We think of phones as a communication tool, but the truth is they may be just the opposite’’ (Skenazy, 2009, np). Other views suggest that people are adapting to new communication norms in an increasingly digital world, learning to quickly attend to, process, and respond to multiple and sometimes simultaneous messages (Davidson, 2011). Given the many possible ways that digital communication tools will continue to influence practices of teaching and learning (Schuck & Aubusson, 2010), instructional communication scholars should enact programmatic research to understand how these tools impact classroom communication and subsequent learning outcomes. 
The present study builds on past research by examining whether texting or posting to a social network site has negative impacts on students’ note-taking behaviors and subsequent performance on exams. Participants took part in simulated classroom conditions where they watched a recorded lecture, took notes over the lecture, and were then tested over lecture content. There were three conditions in the study: a control group and two experimental groups. The control group simply watched the lecture, took notes on the lecture, and answered exam questions over lecture content. The other two groups engaged in the same activities as the control group, but also took part in simulated texting/Facebook interactions during the lecture; one group had a low frequency of texts/posts, and another had a high frequency. By using simulated text messages and Facebook posts, the objective of the study was to determine what effects, if any, these distractions had on student learning.

Disability and the CRPD

''Striking for the Guardians and Protectors of the Mind': The Convention on the Rights of Persons with Mental Disabilities and the Future of Guardianship Law' by Michael Perlin in (2013) Penn State Law Review comments that
 In many nations, entry of a guardianship order became the “civil death” of the person affected. It has been accurately characterized as “civil death” characterization because a person subjected to the measure is not only fully stripped of their legal capacity in all matters related to their finance and property, but is also deprived of, or severely restricted in, many other fundamental rights, [including] the right to vote, the right to consent or refuse medical treatment (including forced psychiatric treatment), freedom of association and the right to marry and have a family. 
Guardianship is also frequently entered. In Hungary, for example, there are approximately 80,000 people under guardianship, and approximately 40,000 of these people are under guardianship without active legal capacity. An estimated 300,000 people in Russia alone are currently under guardianship, all stripped of their personhood and of their legal rights. 
The United Nations’ ratification of the Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities, and in no area is this more significant than in the area of mental disability law. And there is no question that the CRPD speaks to the issue of guardianship. 
The question is this: What impact, if any, will the CRPD and other international human rights documents have on guardianship practice around the world? This question is of great importance, given the common usage of this status and the lack of procedural safeguards that attend the application of this status in many nations. Although there is some recent scholarship dealing with this issue, it has not been the focus of nearly enough attention in the four years since the CRPD’s ratification. I hope this article causes both scholars and advocates to take this issue more seriously in the future. 
First, in Part I, I will examine why guardianship is considered “civil death” in much of the world, with special focuses on practices in nations in Central and Eastern Europe. As part of this examination, I will consider why designating a psychiatric institution as a patient’s guardian is a conflict of interest per se and terribly wrong. Then, in Part II, I will briefly survey domestic law, with special focus on distinctions that are drawn between guardianships of the person and of property, and between limited and plenary guardianships. After that, in Part III, I will look more carefully at the CRPD, the relevant literature about that Convention’s possible impact on the application of guardianship laws, and the meager caselaw that has emerged, with specific focus on the question as to how the CRPD potentially can reshape guardianship law internationally. 
Next, in Part IV, I will raise some “red flags” that must be confronted in this inquiry. Such issues include the need for some mechanism to insure the appointment of counsel to persons facing guardianship; the need for a mechanism to insure that, in those cases in which guardianship is inevitably necessary, “personal” guardians will be appointed instead of institutional ones; the need for domestic courts — in all parts of the world — to take these issues seriously when they are litigated on a case-by-case basis; and the inevitable problems that will arise when our attention is drawn to Asia and the Pacific region, where there is no regional court or commission at which litigants can seek enforcement of the CRPD. Finally, in Part V, I will consider the impact of the school of therapeutic jurisprudence on the questions at hand. I will conclude by looking again at the CRPD as a potentially emancipatory means of restructuring guardianship law around the world, but if, and only if, the variables discussed immediately above can be resolved.

10 October 2013

Tasmanian Marriage Regime

The Tasmania Law Reform Institute research paper [PDF] The Legal Issues Relating to Same-Sex Marriage considers issues regarding a state-based same-sex marriage scheme. It complements the George Williams paper highlighted here.

The authors note that the objective
is not to draw conclusions or to provide recommendations; it is simply to provide a comprehensive guide to both sides of the debate, to allow the reader to appreciate more fully the legal arguments in relation to same-sex marriage. 
They go on to comment that
 Same-sex marriage is a topical issue in Australian politics and in society more generally at both a state and Commonwealth level. In 2012, an unsuccessful attempt was made to pass a Tasmanian same-sex marriage law. Other Australian states are also in the process of debating same-sex marriage laws. State-based initiatives raise legal questions about the capacity of the states to legislate for same-sex marriage, and the consequences which may follow if such laws are enacted. The legal questions emerged as major concerns for Tasmanian parliamentarians during the 2012 Same-Sex Marriage Bill debate. This paper aims to address these concerns. ...   
The issues and concerns raised by the Tasmanian Legislative Councillors in response to the Same-Sex Marriage Bill provide the starting point for this paper. Among the concerns voiced were:
  • That marriage is a topic that should be dealt with by the Commonwealth Parliament. Some members suggested that a national referendum is the only way to measure public opinion properly and to determine whether a change to existing laws should be made. 
  • That the Tasmanian Same-Sex Marriage Bill, if passed, would be unconstitutional. Advice from academics, practitioners and the Solicitor General could not provide a definitive prediction of whether the Tasmanian Bill would be valid. 
  • The likelihood of the Tasmanian Same-Sex Marriage Bill, if passed, being challenged in the High Court. Uncertainty about the parties who would have standing to make such a challenge was also a concern. 
  • The costs of defending a challenge in the High Court. Members quoted figures between $50,000 and $1.2 million as the potential cost. The uncertainty of the cost, coupled with the uncertainty of success in a High Court challenge was a significant factor in many of the dissenting members’ speeches. 
  • That same-sex marriages entered into in Tasmania would not be recognised as valid marriages in other states or under Commonwealth laws. 
  • That a same-sex marriage law would not achieve true legal equality for same-sex couples. 
The paper deals with a succession of questions regarding  state-based same-sex marriage, initially by offering explanatory context and then by providing a detailed assessment of competing arguments.

The authors indicate that
Many of the issues involved in this debate rely on complex legal principles. In writing this paper, attempts have been made to simplify the material as much as possible, while still retaining the integrity of the legal arguments. ... The 2012 Same-Sex Marriage Bill will be considered in some detail. However, this paper is intended to have a broader application than the analysis of the 2012 iteration, as any future bills on this topic may encounter new and different challenges. Discussion of the 2012 Bill is therefore intended to highlight the legal hurdles it faced and suggest ways in which these difficulties might be avoided in future versions. The issues which will be covered in Part 2 are as follows: 
1. What are the differences in the way marriage and same-sex relationships are currently recognised? 
2. Does the Commonwealth government have the power to make laws for same-sex marriage? 
3. Can Tasmania legislate for same-sex marriage? 
4. What would be the consequences if a Tasmanian same-sex marriage law came into force but was later invalidated? 
5. Which jurisdiction would deal with the breakdown of a same-sex marriage? 
6. Could same-sex marriages be recognised or dissolved outside of Tasmania? 
7. Would a same-sex marriage law encourage or lead to the sanctioning of polygamous marriages? 
8. If a law has the potential to be challenged in court, should it be passed? 
9. Who would have standing to bring an action to challenge a Tasmanian same-sex marriage law in the High Court? 
10. What would it cost Tasmania if its same-sex marriage laws were challenged in the High Court? 
11. Have same-sex marriage laws been enacted in overseas jurisdictions?
... As has been noted throughout the paper, the answers to some of the questions raised will be unknown until they are determined by the High Court. Some aspects of this debate raise relatively new issues which have not previously been considered. Consequently, it is difficult to even predict how the High Court might approach these issues. 
In closing, it can be noted that a state-by-state same-sex marriage scheme would not be an unusual legislative development. Until 1960, marriage was regulated by the states, with each state having its own slightly different legislation. It was not until the Commonwealth recognised a need for national uniformity that the Marriage Act came into existence. Similarly, Deeds of Relationship (or the equivalent) are regulated at a state level and are now available in Tasmania, Victoria, New South Wales, the Australian Capital Territory and Queensland. Commonwealth recognition of these relationships has been achieved through s 4AA of the Family Law Act, which lists formal registration of a relationship as an indicator of the existence of a de facto relationship for Commonwealth purposes. 
The recognition of same-sex marriage in other countries illustrates the wide range of ways in which the topic can be approached and regulated. Many common-law countries with systems similar to Australia now recognise same- sex marriage using a variety of different legislative mechanisms. Indeed, during the writing of this paper, there has been a significant increase in the number of jurisdictions which now recognise same-sex marriage, which indicates the rapid pace at which change and acceptance is occurring. Of course, marriage equality legislation remains in its infancy, and it is inevitable that new issues and challenges will arise. How these are dealt with remains to be seen.

Oyston Damages

Another bullying benchmark, with final orders in the Oyston dispute.

In Oyston v St Patrick's College (No 3) [2013] NSWCA 324 the New South Wales Supreme Court of Appeal has made final orders awarding damages in the sum of $ 162,207.34 to Jasmine Oyston, who was subjected to bullying and harassment by other students of St. Patrick's College in Campbelltown.

The final order reflected an increase in the amount awarded for non-economic loss and interest as agreed by the parties.

In Oyston v St Patrick's College (No 2) [2013] NSWCA 310 the Court considered Oyston v St Patrick's College [2013] NSWCA 135, which followed Oyston v St Patrick's College [2011] NSWSC 269 and Oyston v St Patrick's College [2011] NSWSC 826. The judgment in NSWCA 135 - noted here - found that the College's breach of duty of care to the Oyston was the institution's failure, particularly during 2004 when she was in Year 9, to take reasonable steps to bring to an end her bullying by other students.

In essence
a) The College, through Mrs Ibbett (the Year 9 Coordinator responsible for investigating any reports of bullying) recognised that bullying could affect the well-being of a student and could occasion a depressive condition in an adolescent girl already suffering from anxiety, as was Oyston to Mrs Ibbett's knowledge; 
b) The College was well aware that bullying was taking place and of the impact of bullying upon individual students, which it had recognised by putting in place an anti-bullying policy which required action to be taken in response to any complaints about bullying; 
c) Not only were complaints of bullying to be investigated, but a specific procedure was laid down in the policy depending upon whether the bullying by a particular perpetrator was the first, second or third incident of such conduct by that student; 
d) Particularly during 2004, the appellant was regularly, if not relentlessly, bullied, in particular by JP and LM; 
e) The College was aware that the appellant claimed that she was being bullied at least from 6 February 2004. The evidence disclosed a number of particular incidents of bullying during 2004, particularly in April, May, November and December, all of which put the College on notice that bullying of the appellant was continuing; 
f) The College was obligated in performing its duty of care towards Oyston to take reasonable steps to ensure that she was protected from bullying, including taking reasonable steps to ascertain the identity of the perpetrators and to take such action as was reasonable to prevent repetition by those persons of such conduct. In particular, Mrs Ibbett was well aware that bullying was a serious ongoing problem in the school, to eradicate which it was necessary to take such active steps as the College's policy contemplated; 
g) The College was aware from February 2004 that the Oyston was vulnerable, that she suffered from anxiety and panic attacks and, therefore, that she was likely to be susceptible to psychological harm if bullied; 
h) The steps taken by Mrs Ibbett during 2004 did not provide a reasonable response to the not insignificant risk of harm to students such as Oyston if bullying of them continued. It was insufficient for the College merely to request teachers to keep an eye out for bullying once a complaint of bullying had been received. Once such a complaint was received it required investigation and, if substantiated, action against the perpetrator. In this context, the evidence established that Oyston was regularly bullied by JP and LM and, to a lesser extent, by AM. However, no reasonable steps were taken by Mrs Ibbett to investigate Oyston's allegations of bullying by those students and to act on them if she was satisfied that they were justified; 
i) Accordingly, the primary judge's conclusion that Oyston was subject to ongoing bullying in 2004, that the College was aware that this was so, and that it failed to take reasonable steps to bring that conduct to an end, was amply justified by the evidence.

National Breakups

Who gets the family cat, the fridge, the mortgage and the unwanted wedding presents when a relationship breaks up? Disassembling nations is more interesting, particularly if there isn't bloodshed.

'Legal Issues Surrounding the Referendum on Independence for Scotland' by Stephen Tierney in (2013) 3 European Constitutional Law Review comments that
On 18 September 2014 a referendum will be held in Scotland. It will pose the following question to the people: "Should Scotland be an independent country?". If a majority of voters say "Yes" to this proposition, Scotland will withdraw from the United Kingdom (UK), ending a union formed in 1707 and offering an unclear future for one of Europe’s oldest nation states. The significance of this process for other European States and for the European Union (EU) project itself is also considerable. Never before has part of an EU Member State broken away while simultaneously seeking to remain a member of the EU as a new State. Important questions arise. The UK is an important member; would its influence within the EU diminish with the loss of an important part of its territory and territorial waters? Will Scottish independence offer encouragement to other highly mobilized sub-state nationalist movements in Belgium and Spain for example, while providing a precedent for access to international and European institutions for secessionist territories? 
These questions are political in nature and rather than attempt to answer them directly, this paper will address the legal context which must condition how such questions are addressed. We will look first at the domestic constitutional situation in the United Kingdom. It is notable that an intergovernmental agreement has been reached by the UK and Scottish Governments setting out a framework for the process rules which will govern the referendum. This is itself remarkable. The UK Government has entered consensually, if somewhat reluctantly, into a process which could lead to the break-up of the State, a level of acquiescence which is itself unprecedented in the EU context. We will consider the key elements of the referendum process which are being set out in detailed legislation by the Scottish Parliament, assessing the prospects for a fair constitutional referendum. Secondly, we will turn to the possible implications of a majority Yes vote for Scotland and the United Kingdom under international law. Would Scottish independence be characterized by the international community as a case of secession or as bringing about the dissolution of the UK? What challenges would Scotland face in seeking recognition as a new State and in succeeding to the UK’s international obligations? And, most crucially, how would an independent Scotland come to take up membership of international institutions, in particular the United Nations and the EU?

09 October 2013

Personal Information and tracking

'If Personal Information is Privacy's Gatekeeper, then Risk of Harm is the Key: A Proposed Method for Determining What Counts as Personal Information' by Eloïse Gratton in (2013) 24(1) Albany Law Journal of Science and Technology argues
In the late sixties, with the development of automated data banks and the growing use of computers in the private and public sector, privacy was conceptualized as having individuals "in control over their personal information" (Westin, 1967). The principles of Fair Information Practices were elaborated during this period and have been incorporated in data protection laws ("DPLs") adopted in various jurisdictions around the world ever since. These DPLs protect personal information, which is defined similarly in various DPLs (such as in Europe and Canada) as "information relating to an identifiable individual". In the U.S., information is accorded special recognition through a series of sectoral privacy statutes focused on protecting "personally identifiable information" (or PII), a notion close to personal information. Going back to the early seventies, we can note that identical or very similar definitions of personal information were already used in DPLs, illustrating that this definition of personal information dates back to this period.
In recent days, with the Internet and the circulation of new types of information, the efficiency of this definition may be challenged. Recent technological developments are triggering the emergence of new identification tools allowing for easier identification of individuals. Data-mining techniques and capabilities are reaching new levels of sophistication. In the era of Big Data, because it is now possible to interpret almost any data as personal information (any data can in one way or another be related to some individual) the question arises as to how much and which data should be considered as personal information.
In section 1, I elaborate on how a literal interpretation of the definition of personal information is no longer workable. In light of this, I present the proposed approach to interpreting the definition of personal information, under which the ultimate purpose behind DPLs should be taken into account. I then demonstrate that the ultimate purpose of DPLs was to protect individuals against a risk of harm triggered by organizations collecting, using and disclosing their information. In section 2, I demonstrate how this risk of harm can be subjective or objective, depending on the data handling activity at stake and I offer a way forward, proposing a decision-tree test useful when deciding whether certain information should qualify as personal information. The objective of my work is to come to a common understanding of the notion of personal information, the situations in which DPLs should be applied, and the way they should be applied. The approach is meant to provide for a useful framework under which DPLs remain efficient in light of modern Internet technologies.
The Article 29 Data Protection Working Party has followed up 2011 work on cookies, 'do not track' and consent by adopting (on 2 October) ‘Working Document 02/2013 providing guidance on obtaining consent for cookies’ [PDF].

The document states that -
Since the adoption of the amended e-Privacy Directive 2002/58/EC in 2009, implemented in all EU Member States1, a range of practical implementations have been developed by websites in order to obtain consent for the use of cookies or similar tracking technologies (hereinafter referred to as “cookies”) used for various purposes (from enhanced functionalities, to analytics, targeted advertising and product optimisation, etc., by the website operators or third parties). The range of consent mechanisms deployed by website operators reflects the diversity of organisations and their audience types. 
The website operator is free to use different means for achieving consent as long as this consent can be deemed as valid under EU legislation. The assessment as to whether or not a particular solution implemented by the website operator fulfils all the requirements for valid consent is considered later in this paper. 
Although the ePrivacy Directive stipulates the need for consent for the storage of or access to cookies the practical implementations of the legal requirements vary among website operators across EU Member States. Currently observed implementations are based on one or more of the following practices, although it is important to note that whilst each may be a useful component of a consent mechanism the use of an individual practice in isolation is unlikely to be sufficient to provide valid consent as all elements of valid consent need to be present (e.g. an effective choice mechanism also requires notice and information):
  • an immediately visible notice that various types of cookies are being used by the website, providing information in a layered approach, typically providing a link, or series of links, where the user can find out more about types of cookies being used, 
  • an immediately visible notice that by using the website, the user agrees to cookies being set by the websites, 
  • information as to how the users can signify and later withdraw their wishes regarding cookies including information on the action required to express such a preference, 
  • a mechanism by which the user can choose to accept all or some or decline cookies, 
  • an option for the user to subsequently change a prior preference regarding cookies.
Taking into account the different interpretations of the e-Privacy Directive among stakeholders and the respective practical implementations, the emerging question is: what implementation would be legally compliant for a website that operates across all EU Member States? 
Article 2(f) and recital 17 of Directive 2002/58/EC define the notion of consent in reference to the one set forth in Directive 95/46/EC. Article 2(h) of Directive 95/46/EC provides that consent of the individual for processing his or her personal data should be a freely given specific and informed indication of his or her wishes by which the individual signifies his or her agreement to this data processing. According to Article 7 of Directive 95/46/EC consent should also be unambiguous. 
In its opinion on consent the Working Party has acknowledged the differences in the notion of consent that may occur in different Member States. The opinion on consent provides further clarity on the requirements of valid consent and its main elements:
1. Specific information. To be valid, consent must be specific and based on appropriate information. In other words, blanket consent without specifying the exact purpose of the processing is not acceptable. 
2. Timing. As a general rule, consent has to be given before the processing starts. 
3. Active choice. Consent must be unambiguous. Therefore the procedure to seek and to give consent must leave no doubt as to the data subject's intention. There are in principle no limits as to the form consent can take. However, for consent to be valid it should be an active indication of the user’s wishes. The minimum expression of an indication could be any kind of signal, sufficiently clear to be capable of indicating a data subject's wishes, and to be understandable by the data controller (it could include a handwritten signature affixed at the bottom of a paper form, or an active behaviour from which consent can be reasonably concluded). 
4. Freely given. Consent can only be valid if the data subject is able to exercise a real choice, and there is no risk of deception, intimidation, coercion or significant negative consequences if he/she does not consent. 
In line with the above clarifications and elsewhere6 on what constitutes valid consent across all EU Members States, the Working Party elaborates that should a website operator wish to ensure that a consent mechanism for cookies satisfies the conditions in each Member State such consent mechanism should include each of the main elements specific information, prior consent, indication of wishes expressed by user’s active behaviour and an ability to choose freely.


'Evolution of an Issue: Voter ID Laws in the American States' (APSA 2013 Annual Meeting Paper) by Seth C. McKee, Daniel A. Smith, William D Hicks and Mitchell Sellers offers
 a comprehensive examination of voter ID legislation in the American states, from 2001 through 2012. We show that there has been a notable evolution in the behavior of partisan lawmakers regarding their handling of this issue. Whereas in the early 2000s voter ID laws were few and primarily motivated by efforts to comply with the 2002 Help America Vote Act (HAVA), which was passed in response to the vote counting fiasco in Florida in the 2000 presidential election, more recently there is evidence of extreme partisan polarization regarding voter ID laws across state legislatures.
With a dataset that includes over 1,000 proposed and nearly 100 enacted voter ID laws spanning a dozen years, we employ (1) negative binomial and multilevel over-dispersed Poisson count models and (2) pooled time series cross-sectional regression models with binary dependent variables, to determine the likelihood a state legislature in a given year introduces and adopts restrictive voter ID bills. It is clear from our evaluation of legislative activity on voter ID laws that they have evolved from a valence issue into a partisan battle where, with few exceptions, Republicans defend their enactment as a safeguard against fraud while Democrats indict them as the leading tactic for voter suppression. Though the partisan fight over voter ID laws is now common knowledge among political observers, the legislation is not uniform across the states; that is, not all Republican-controlled legislatures have pushed for more restrictive voter ID laws.
We argue that a state’s broader electoral and demographic context - including a state’s turnout rate and whether or not it is a presidential battleground state - conditions why some Republican - controlled state legislatures have focused on voter ID laws as a useful political tool to shape the electorate. In an age of highly competitive partisan politics, when neither party can lay claim to a dominant electoral position, voter ID laws constitute an issue that both parties utilize to further their political interests. In short, the voter ID issue is a pawn in the larger partisan game of electoral politics.

08 October 2013

ALRC Privacy Invasions Paper

This afternoon the Australian Law Reform Commission released its 56 page Issues Paper [PDF] regarding the former Government's 'Serious Invasions of Privacy in the Digital Era' reference, ie following up exploration of the privacy tort highlighted elsewhere in this blog.

The Paper features a range of questions -
Principles guiding reform 
Q1. What guiding principles would best inform the ALRC’s approach to the Inquiry and, in particular, the design of a statutory cause of action for serious invasion of privacy? What values and interests should be balanced with the protection of privacy?
The impact of a statutory cause of action 
Q2. What specific types of activities should a statutory cause of action for serious invasion of privacy prevent or redress? The ALRC is particularly interested in examples of activities that the law may not already adequately prevent or redress. 
Q3. What specific types of activities should the ALRC ensure are not unduly restricted by a statutory cause of action for serious invasion of privacy? 
Invasion of privacy
Q4. Should an Act that provides for a cause of action for serious invasion of privacy (the Act) include a list of examples of invasions of privacy that may fall within the cause of action? If so, what should the list include?
Q5. What, if any, benefit would there be in enacting separate causes of action for: misuse of private information; and intrusion upon seclusion? 
Privacy and the threshold of seriousness 
Q6. What should be the test for actionability of a serious invasion of privacy? For example, should an invasion be actionable only where there exists a ‘reasonable expectation of privacy’? What, if any, additional test should there be to establish a serious invasion of privacy? 
Privacy and public interest 
Q7. How should competing public interests be taken into account in a statutory cause of action? For example, should the Act provide that: competing public interests must be considered when determining whether there has been a serious invasion of privacy; or public interest is a defence to the statutory cause of action?
Q8.What guidance, if any, should the Act provide on the meaning of‘public interest’?
Q9: Should the cause of action be confined to intentional or reckless invasions of privacy, or should it also be available for negligent invasions of privacy?
Q10. Should a statutory cause of action for serious invasion of privacy require proof of damage or be actionable per se
Q11. How should damage be defined for the purpose of a statutory cause of action for serious invasion of privacy? Should the definition of damage include emotional distress (not amounting to a recognised psychiatric illness)? 
Defences and exemptions 
Q12. In any defence to a statutory cause of action that the conduct was authorised or required by law or incidental to the exercise of a lawful right of defence of persons or property, should there be a requirement that the act or conduct was proportionate, or necessary and reasonable? 
Q13. What, if any, defences similar to those to defamation should be available for a statutory cause of action for serious invasion of privacy? 
Q14. What, if any, other defences should there be to a statutory cause of action for serious invasion of privacy? 
Q15. What, if any, activities or types of activities should be exempt from a statutory cause of action for serious invasion of privacy? 
Monetary remedies 
Q16. Should the Act provide for any or all of the following for a serious invasion of privacy: a maximum award of damages; a maximum award of damages for non-economic loss; exemplary damages; assessment of damages based on a calculation of a notional licence fee; an account of profits? 
Q17. What, if any, specific provisions should the Act include as to matters a court must consider when determining whether to grant an injunction to protect an individual from a serious invasion of privacy? For example, should there be a provision requiring particular regard to be given to freedom of expression, as in s 12 of the Human Rights Act 1998 (UK)?  
Other remedies 
Q18. Other than monetary remedies and injunctions, what remedies should be available for serious invasion of privacy under a statutory cause of action? Who may bring a cause of action 
Q19. Should a statutory cause of action for a serious invasion of privacy of a living person survive for the benefit of the estate? If so, should damages be limited to pecuniary losses suffered by the deceased person? 
Q20. Should the Privacy Commissioner, or some other independent body, be able to bring an action in respect of the serious invasion of privacy of an individual or individuals? 
Limitation period 
Q21. What limitation period should apply to a statutory cause of action for a serious invasion of privacy? When should the limitation period start?
Location and forum 
Q22. Should a statutory cause of action for serious invasion of privacy be located in Commonwealth legislation? If so, should it be located in the Privacy Act 1988 (Cth) or in separate legislation? 
Q23. Which forums would be appropriate to hear a statutory cause of action for serious invasion of privacy? 
Q24. What provision, if any, should be made for voluntary or mandatory alternative dispute resolution of complaints about serious invasion of privacy? 
Interaction with existing complaints processes 
Q25. Should a person who has received a determination in response to a complaint relating to an invasion of privacy under existing legislation be permitted to bring or continue a claim based on the statutory cause of action? 
Other legal remedies to prevent and redress serious invasions of privacy 
Q26. If a stand-alone statutory cause of action for serious invasion of privacy is not enacted, should existing law be supplemented by legislation: •providing for a cause of action for harassment; enabling courts to award compensation for mental or emotional distress in actions for breach of confidence; providing for a cause of action for intrusion into the personal activities or private affairs of an individual?
Q27. In what other ways might current laws and regulatory frameworks be amended or strengthened to better prevent or redress serious invasions of privacy? 
Q28. In what other innovative ways may the law prevent serious invasions of privacy in the digital era?
The ALRC proposes the following principles for guidance in its examination of potential changes to Australian law -
Privacy as a value: Privacy is important for individuals to live a dignified, fulfilling and autonomous life. It is an important element of the fundamental freedoms of individuals which underpin their ability to form and maintain meaningful and satisfying relationships with others; their freedom of movement and association; their ability to engage in the democratic process; their freedom to advance their own intellectual, cultural, artistic, financial and physical interests, without undue interference by others.
Privacy as a matter of public interest: There is a public interest in the protection of individual privacy and confidentiality.
The balancing of privacy with other values and interests: Privacy of an individual is not an absolute value which necessarily takes precedence over other values of public interest. It must be balanced with a range of other important values, freedoms and matters of public interest, including:
  • freedom of speech, including the freedom of the media; 
  • freedom of artistic and creative expression; 
  • the proper administration of government and matters affecting the public or members of the public; 
  • the promotion of open justice; 
  • national security and safety; 
  • the prevention and detection of criminal and fraudulent activity; 
  • the effective delivery of essential services in the community; 
  • the protection of vulnerable persons in the community; 
  • national economic development and participation in the global digital economy; and 
  • the capacity of individuals to engage in digital communications and electronic financial and commercial transactions
International standards in privacy law: The protection of privacy in Australia should be consistent with Australia’s international obligations, for example, under the International Covenant on Civil and Political Rights, and take into account, as far as appropriate, international standards and legal developments in the protection of privacy.
Flexibility and adaptability: The design of the legislative protection of privacy should be sufficiently flexible to adapt to rapidly changing technologies and capabilities without the need for constant amendments, but at the same time be drafted with sufficient precision and definition to promote certainty as to its application and interpretation.
Coherence and consistency: Any recommendation for a statutory cause of action or other remedy should promote coherence in the law and be consistent with other laws or regulatory regimes in Australian law, and should promote uniformity or consistency in the law applying throughout Australian jurisdictions.
Access to justice: The law should provide a range of means to prevent, reduce or redress serious invasions of privacy which provide appropriate access to justice for those affected.

Defensive Homicide

The Victorian Department of Justice has released a consultation Paper on Defensive Homicide: Proposals for Legislative Reform.

The paper states that
Defensive homicide has now been in operation in Victoria for more than seven years. In recent years, it has attracted considerable public attention. This has included the criticism that it is not producing the results that were intended and calls for its abolition. The first step in the department's review of defensive homicide led to the publication of a Discussion Paper in August 2010. While defensive homicide is the primary focus of the review, the review also considers the operation of self-defence more generally and the way in which the criminal justice system works in cases where a woman kills in response to family violence. Since the Discussion Paper, the number of defensive homicide convictions has increased from 13 to 28. This has included the conviction of three women for the offence of defensive homicide. These cases, as well as cases in which men have been convicted of defensive homicide, shed further light on the operation of the reforms introduced by the Crimes (Homicide) Act 2005. The data from the 28 convictions for defensive homicide indicates that:
  • the overwhelming majority of offenders were men (25 out of 28) 
  • the overwhelming majority of victims were men (26 out of 27) 
  • all three female offenders killed a man (3 out of 3) 
  • a minority of offenders had a family relationship with the victim (7 out of 28) 
  • a majority of the intimate partner killings were by women (3 out of 4) 
  • the majority of offenders pleaded guilty (19 out of 28), and 
  • the majority of female offenders pleaded guilty (2 out of 3).
These figures should be considered in the context of family violence killings. The Australian Institute of Criminology found that in 2008–09 and 2009–10:
  • 66% of domestic homicides were intimate partner homicides 
  • 88% of all homicide offenders were men and 12% were women, and 
  • 68% of all homicide victims were men and 32% were women.
A number of criticisms of defensive homicide concern the structure of the offence and suggestions that excessive self-defence would be better recognised as a partial defence to murder (resulting in a conviction for the offence of manslaughter), rather than an offence. This also raises the issue of the complexity of defensive homicide and excessive self-defence. In Part 2 of this paper, the department has identified ways in which the complexity of defensive homicide could be reduced. However, there is an irreducible level of complexity involved in any form of excessive self-defence. 
Changes to reduce the complexity of defensive homicide are unlikely to make any significant difference from a policy perspective to the outcomes of the application of defensive homicide. Excessive self-defence was recommended by the VLRC as a 'safety-net' to support women pleading not guilty to murder and manslaughter and running a complete self-defence case. Whether a ‘safety-net’ is required depends upon the effectiveness of complete self-defence in the context of a woman who kills in response to family violence. The changes to self-defence in the context of family violence appear to have made a difference. However, it is not possible to draw definitive conclusions about how defensive homicide is likely to continue to be used by women in the future, from the small number of cases to date. 
For instance, of the three women convicted of defensive homicide to date, the Court of Appeal said that one woman fell outside the parameters of murder by a narrow margin and it could be argued that another woman potentially had a good case for self-defence but pleaded guilty to defensive homicide instead. However, it is very difficult to comment about such cases without seeing and hearing all of the evidence or the decisions that lawyers must make in deciding whether to advise their clients to plead guilty or not guilty. Further, the number of cases is insufficient to identify any discernible trend. 
One of the questions posed in the Discussion Paper was how effective self-defence would be where the threat faced was not immediate. All three of the defensive homicide cases involving female offenders involved an immediate threat. Accordingly, the new laws have not been tested in this situation. 
In over seven and a half years of operation, there has been one trial where a woman was convicted of defensive homicide and two women have pleaded guilty to defensive homicide. To obtain a small, but potentially sufficient, sample of defensive homicide trials involving women, there would need to be at least 10 trials. At the current rate, it would take 75 years before 10 women would be convicted of defensive homicide at trial. Accordingly, it would appear to require too long a period of time for definite conclusions to be drawn based on the data where women are accused, particularly since during that period, at the current rate, 250 men would be convicted of defensive homicide at a trial or by plea of guilty. Accordingly, it is important to consider defensive homicide both in policy terms as well as how it applies when men kill. 
From a policy perspective, the VLRC acknowledged that its consultations revealed that there was both support for, and opposition to, recognising excessive self-defence. Submissions received in relation to the department’s Discussion Paper also revealed mixed views about defensive homicide from a purely policy perspective. 
In some ways, defensive homicide distorts homicide laws and has unintended effects. The existence of defensive homicide shifts the focus of debate from the adequacy of complete self-defence to defensive homicide. This creates a real risk that the existence of defensive homicide suggests that a woman who kills in response to family violence is not acting reasonably, or will often not be acting reasonably, and therefore it is better to plead guilty to defensive homicide than raise self-defence at a trial. 
On balance, the department considers that it is difficult to conclude that this defence clearly works to the benefit of women who kill in response to family violence. Accordingly, it is not clear that it achieves its intended objective. Further, defensive homicide may work to the detriment of women who kill in response to family violence and its existence may inhibit attempts to drive further cultural change in considering the situation of women who kill in response to family violence. 
There is clear evidence that defensive homicide inappropriately provides a partial excuse for men who kill. Defensive homicide is primarily relied upon by men who kill. In many of these cases, men have killed in circumstances which are very similar to those where provocation previously applied. For the following principal reasons, the department proposes that the partial defence of defensive homicide be abolished:
  • it is inherently complex, making it difficult for judges and juries, and the community, to understand and apply 
  • there is no clear benefit to having defensive homicide as part of the legal framework for women who kill in response to family violence, and 
  • it inappropriately excuses killing by men.
To date, men have comprised 25 of the 28 convictions for defensive homicide. The price of having defensive homicide for the comparatively small number of women who kill is substantially outweighed by the cost of inappropriately excusing men who kill. 
The 2005 reforms to self-defence included setting out the social context evidence that is relevant in cases of family violence. This was a significant and important change. However, defensive homicide may detract from the position that a woman who kills in response to family violence should rely on self-defence laws. 
The ability to introduce social context evidence to better understand family violence, its dynamics and its effects was limited to homicide offences. Self-defence may be relevant to many other offences and family violence may be a relevant factor in considering self-defence in relation to other offences. For instance, a woman who attempts to kill or cause serious injury to her partner in response to family violence should also be able to adduce social context evidence to explain why she was acting in self-defence. 
Accordingly, the department proposes removing the limit on using social context evidence laws only in homicide cases. Such evidence should be available wherever self-defence may be raised. Further, greater use of social context evidence in relation to a number of offences should result in the legal profession and the courts: being more familiar with the laws governing this kind of evidence, and better understanding the ways in which this kind of evidence may be relevant. In turn, this should improve the effectiveness of social context evidence laws when used in homicide cases. 
The proposals in this paper include having one test for self-defence which applies to all offences (as was the case before 2005). Even before defensive homicide laws were introduced, Victoria’s selfdefence laws differed from those in other jurisdictions in Australia. Most other states in Australia have changed their test for self-defence. The second limb of the common law test focused on whether the person had reasonable grounds for believing it was necessary to do what they did. The VLRC Report recommended that this be changed to the test used in other jurisdictions, including New South Wales. That test is whether the person’s response was reasonable in the circumstances as perceived by them. 
The VLRC recommendation provides a more objective test as it focuses on the person’s response, rather than their grounds for believing action was necessary. However, it is not fully objective because, like the common law test, it must be determined in accordance with the circumstances as perceived by the person. 
The paper includes a discussion of both of these proposals and asks whether Victoria should adopt the common law test or the test recommended by the VLRC. 
Evidence about homicide victims 
A number of submissions identified problems with the evidence that is led in some homicide trials about homicide victims. The abolition of provocation may have reduced ‘victim blaming’, but it continues to be a problem. This paper suggests two new ways of tackling this issue. First, by modifying existing laws concerning ‘improper’ questions (e.g. questions that are offensive, demeaning or based on stereotypes) so that they apply to questions asked about a homicide victim. This would prohibit these questions unless they are necessary in the interests of justice. Secondly, by adapting character evidence laws to enable the prosecution to lead evidence in rebuttal to address issues raised about the victim that bear on the issues in the case. 
These two potential reforms aim to limit victim blaming and inappropriate questioning. Sometimes questions which may be regarded as offensive or damaging to the victim’s reputation are integral to the issues in dispute in the case. These potential reforms would not prevent such questions from being asked if they are relevant and necessary as part of the accused’s defence. However, where this evidence concerns the homicide victim’s character, the possible reforms would enable the prosecution to lead evidence to the contrary to provide the jury with a more complete picture of the issues in the case. 
This new capacity for the prosecution to lead evidence of the victim’s good character may in some cases deter particular lines of questioning by removing the unfair advantage that may arise because the homicide victim is not a witness in the proceeding. The potential reforms would remove any unfair advantage the accused may have while being consistent with the accused’s right to a fair trial. This paper asks whether these two potential reforms should be introduced. 
Monitoring and reviewing 
The proposals in this paper involve significant reforms. The VLRC recommended that the department review the operation of excessive self-defence five years after it had commenced operation. That recommendation fixed an appropriate time frame for reviewing such an important change. 
The department’s proposals (as informed by comments on this paper) should, if enacted by the government, also be reviewed to see if they achieve the intended outcomes. The department proposes that these laws should be reviewed five years after their commencement. 
The paper identifies several proposals and questions -
Proposal 1 – Defensive homicide (Part 2)  –  that the offence of defensive homicide be abolished. 
Proposal 2 – Excessive self-defence (Part 2)  –  that excessive self-defence (in any form) should not be introduced. 
Proposal 3 – Self-defence (Part 3)  –  that the first limb of the common law test of self-defence should be reinstated, namely, whether the accused believed that it was necessary to do what he or she did to defend himself, herself or another. 
Question 1 – Self-defence (Part 3) Should the test for self-defence be that the accused believed that it was necessary to do what he or she did to defend himself, herself or another, and (a) had reasonable grounds for that belief (the common law test), or (b) the accused’s response was a reasonable response in the circumstances as perceived by the accused (the VLRC / NSW test)? 
Proposal 4 – A consistent test for self-defence (Part 3)  –  that the test for self-defence should be set out in the Crimes Act 1958 and should apply consistently to fatal and non-fatal offences. 
Proposal 5 – Abolition of the common law test for self-defence (Part 3)  –  that the common law test for self-defence be expressly abolished, wherever the new statutory test for self-defence applies.  
Proposal 6 – Social context evidentiary laws (Part 3)  –  that the social context evidence laws contained in section 9AH of the Crimes Act 1958 be extended to apply to any claim of self-defence and not be limited to where the offence charged is murder or manslaughter. 
Question 2 – Improper questions about homicide victims (Part 4) Should new evidence laws be introduced to prohibit questions in a homicide case about the victim (unless necessary in the interests of justice) where, if the victim was alive and giving evidence in court, the question would: be offensive, humiliating or demeaning to the victim treat the victim without respect fail to respect the victim’s reputation, or have no basis other than a stereotype (e.g. a stereotype based on the victim's sex, race, culture, ethnicity, age or mental, intellectual or physical disability)? 
Question 3 – Evidence in rebuttal about homicide victims (Part 4) Should new evidence laws be introduced to provide that in a criminal proceeding for a homicide offence, if the accused introduces evidence to show that the victim was not a person of good character, either generally or in a particular respect, the prosecution: may adduce evidence about the victim to show that the victim was a person of good character, either generally or in a particular respect, but may not use the evidence to infer guilt (tendency reasoning)? The rules governing hearsay, opinion, tendency and credibility evidence would not apply to this evidence. 
Proposal 7 – Review of the operation of reforms (Part 5)  –  that there be a review of the operation of reforms arising from this review five years after the reforms commence operation.

Fair Information Practices

'Fair Information Practices: A Basic History' [PDF] by Robert Gellman offers
a history of Fair Information Practices (FIPs) with a focus – but not an exclusive one – on activities in the United States. The text usually quotes key portions of source documents in order to allow for easier comparison of different versions of FIPs. For the most part, the analysis is neutral, with only limited interpretation, comment, and criticism. 
FIPs are a set of internationally recognized practices for addressing the privacy of information about individuals. Information privacy is a subset of privacy. Fair Information Practices are important because they provide the underlying policy for many national laws addressing privacy and data protection matters. The international policy convergence around FIPs as core elements for information privacy has remained in place since the late 1970s. Privacy laws in the United States, which are much less comprehensive in scope than laws in some other countries, often reflect some elements of FIPs but not as consistently as the laws of most other nations. 
FIPs began in the 1970s with a document from the Department of Health, Education & Welfare. The Organisation for Economic Cooperation and Development revised the principles in a document that became influential internationally. FIPs have evolved over time, with different formulations coming from different countries and different sources over the decades. There is some evidence that Fair Information Practices may be becoming a generic trademark for privacy principles, whether or not the principles meet any particular standards. A 2013 revision by the Organisation for Economic Cooperation and Development retained the original statement of privacy principles.

US Edubrands

The 65 page 'University TM: Trademark Rights Accretion in Higher Education' by Jacob H. Rooksby in Harvard Journal of Law and Technology (Forthcoming) notes that
Since the mid-1970s, American colleges and universities have quietly been amassing trademark portfolios of substantial portion and variety. Although some scholars have examined college and university trademark activities on an anecdotal level, these activities largely have escaped comprehensive empirical and theoretical analyses. This Article fills the void by reporting results of a study to identify every federal trademark registration currently owned and maintained by an American college or university. The results reveal a staggering number of trademarks accreting in higher education. Once thought of as a provincial and ancillary activity pertaining strictly to institutional names and athletic concerns, this Article makes the case that college and university trademark activity is an important and growing pursuit with significant policy implications for higher education. This Article discusses and analyzes these concerns with a view toward establishing a model for college and university trademark behavior that is consistent with the public’s interest in higher education.
Rooksby comments that
This Article is by no means the first to consider how accretion of commercial trappings is changing the character of American higher education. In this sense, the data presented here can be considered further evidence of the rise of what legendary scholar and college president Clark Kerr identified as the “multiversity.” Administrative functions are central to the identity of the multiversity, which strives to be more like industry rather than emulate any ancient, romantic concept of “the idea” of the university. The modern multiversity is a complex balance of disparate activities and interests held together by a conservative governance structure. Acquisition of trademarks by the dozen is very much consistent with the administrative- and administrator-driven characterization of modern higher education. Perhaps cognizant of losing earlier fights to maintain claim over some aspect of their intellectual commons, colleges and universities are choosing to be proactively defensive and protective of anything the law allows them to claim as “theirs.” 
Other possible explanations for this behavior abound, informed by academic perspectives as diverse as sociology, organizational theory, and management. Subsequent efforts should be undertaken to examine why trademark rights accretion has occurred, and what forces drive it, but ultimately I want to conclude with a view toward the future: what would a model for college and university trademark behavior look like? Perhaps by stating an ideal, commentators can better assess where we are now, and practitioners can reflect on where best to go next. I think every institution needs to start by identifying which trademarks are truly “mission critical” to the institution. That is to say, which trademarks protect the primary identity and essence of the institution? 
The answer is likely to be an array of formal and abbreviated names, logos, and insignia. Federal trademark registrations for these items are defensible and often necessary. Likely to be further afield are trademarks for programs, slogans, and products that were developed at the institution. These are less often necessary to protect any internal or popular conception of what it is the institution “does,” and in some instances— particularly where they lay claim to some aspect of the public good—may not even be defensible. 
As part of this conscientious exercise, institutions should place primacy on protecting trademarks that create licensing opportunities instead of only creating enforcement opportunities. The licensing opportunity, however, should have some clear nexus to the institution, apart from merely reflecting a product, service, or idea that emanated from the institution. Licensing opportunities abound if what is sought are trademarks of a generalized and broad sort, such as “bioflex” for scientific research, or “the premier online high school” for high school education services. What links these marks, in the public’s eye, to higher education, let alone to a particular institution of higher education? Colleges and universities should seek to protect what we would expect them to protect, not venture into registering marks whose primary association with the institution will be when an attorney links the two while drafting a cease and desist letter. 
Colleges and universities should decline to assert ownership in trademarks that suggest a removal of teaching, scholarship, and research activities from the public sphere. Institutions of higher education receive tax subsidies and other preferential treatment precisely because they undertake scholarship and research for reasons that do not translate into return on investment in the quantifiable sense that stockholders of for- profit corporations expect. To a large degree, the people are the stockholders of both private and public higher education, and colleges and universities should not be in competition with them. By parceling out and asserting rights to fundamental aspects of their teaching, scholarly, and research activities, colleges and universities are abusing their historic pact to pursue those activities for the benefit of everyone, not just those who pay a licensing fee for the privilege. 
All of these suggestions beg a common question: when is federal registration of a mark actually necessary?  Certainly the need is strong in circumstances where colleges and universities wish to develop licensing programs involving their names, logos, and insignia. But in other circumstances, the need for federal registration is less clear. For example, is there any reason to deter a medical school or hospital in California from claiming to offer “the future of medicine” to prospective students or patients? I do not think so, yet the University of Pennsylvania’s federal trademark registration for that slogan is likely to have precisely that deterrent effect, if located by attorneys for institutions in California. The University of Pennsylvania may have reason to gripe if Temple or Drexel (both also based in Philadelphia) start branding their medical school using the same slogan, but owning a federal trademark registration for the slogan is not a prerequisite to filing suit for trademark infringement, let alone prevailing in such action. In short, what may be “best practices” for for- profit companies looking to dominate a given market by use of a catchphrase or slogan should not dictate the behavior of colleges and universities. Colleges and universities do not operate in hopes of a “liquidity event” that would entail transferring trademark rights, free and clear, to a new owner.  Most are not start-ups looking to make a name for themselves, nor do all pull “buyers”—or substantial numbers of buyers—from all fifty states. And although the competition between colleges and universities for students increasingly is fierce, institutions’ interest in marketing should not swallow the public’s interest in a marketplace unfettered by excessive and needless rights-staking by institutions supported by, and intended to benefit, the public. 
These suggestions deserve measured consideration by every college and university that claims rights in a trademark. They also merit implementation. Antitrust concerns may prevent colleges and universities from collectively agreeing to play by the rules sketched above, but nothing prevents the development of “points to consider” or other hortatory documentation that institutions could publicly endorse and profess to follow, including, at a minimum, the following:
  • Register only “mission critical” trademarks; 
  • Favor the registration of trademarks with clear or apparent ties to the institution; 
  • Place registration primacy on marks that the institution plans to use well into the future or that present legitimate and natural licensing opportunities; 
  • Seek registration of trademarks for their institutional value, never for their enforcement value; 
  • Decline to assert ownership in, or seek registration of, trademarks that suggest the removal of teaching, scholarship, or research functions from the public sphere.
As part of preparing or endorsing these suggested practices, colleges and universities should make their trademark holdings—whether registered or unregistered—easily publicly accessible in one place on their institutional website, obviating the need for knowledge of the USPTO’s TESS database and how to use it. Such a public listing should be seen as a commitment to transparency, as it would allow the public and other internal constituents the opportunity to learn about the metes and bounds of the college or university as a commercial, corporate entity. Secrecy and obfuscation have no legitimate roles to play in this arena, and a public listing of an institution’s claimed rights likely would discourage the institution from asserting infringement of unlisted “rights,” or infringement of listed rights in situations of negligible confusion and marginal threat to the institution’s interests (e.g., attempts to squelch lewd speech that administrators find objectionable for its potential to call to mind the institution in some way). 
Unfortunately, college and university trademark activity seldom captures the concerted attention of higher education policy groups, likely because of the misguided assumption that the activity begins and ends with athletics. The ties of ICLA—the only industry group that focuses on trademark issues in higher education—to athletic directors likely prevents trademark issues in higher education from attracting more widespread attention and discussion. 
These obstacles must not prevent long-overdue discussion and action aimed at creating sensible trademark norms in higher education. Trademark rights do not have to last forever. Colleges and universities choose which trademarks to register and which to maintain. At present, the choices are many, but the guiding principles are few. It is time to encourage the reclaiming of the public good in higher education, and the release of college and university trademarks that lay claim to important parcels of the public domain, before it is too late

07 October 2013

Domains and Confusion under the ACL

In Vendor Advocacy Australia Pty Ltd v Seitanidis [2013] FCA 971 Middleton J has questioned whether consumers pay much attention to the difference between dot com and dot au domain names, and considered whether momentary or transitory confusion that might arise from use of similar domain names by different enterprises would amount to misleading or deceptive conduct.

His Honour noted that in considering Section 18(1) of The Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) - which provides "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive" - the principles and substantial case law in relation to s 52 of the Trade Practices Act 1974 (Cth) continue to be applicable. He commented that -
In circumstances where a trader adopts a descriptive trade name the use by another trader of a trade name that also uses those descriptive elements will not generally (in itself) constitute misleading or deceptive conduct.
The judgment states that
Since at least 2001, the applicant company Vendor Advocacy Australia Pty Ltd (‘VAA’) has carried on a business in Australia of representing and advising owners of real estate in selling their properties and in their dealings with real estate agents. Mr Ian Reid, who is the founder and principal of the business of VAA, has had a long career in the real estate. After working for VAA for a number of years, from about January 2011, the respondent, Mr Peter Seitanidis, carried on a similar business in competition with VAA. It is fair to say that there has been and continues to be a high level of animosity between Mr Ian Reid and Mr Seitanidis, demonstrated through their actions towards each other.
Seitanidis is the registrant of several domain names featuring the words vendoradvocacy and vendoradvocate. The judgment states that
VAA disclaims any ownership of the expression ‘vendor advocacy’, and does not seek to prevent competitors from using that term. However, VAA seeks the relief it does because it believes there is the likelihood that consumers who intend to contact VAA will be misled, and that consumers who intend to visit VAA’s website will instead be directed to Mr Seitanidis’ site.
In general terms, VAA has sought relief in respect of:
  • Breaches by Mr Seitanidis of copyright in VAA’s listing authority; 
  • Breaches by Mr Seitanidis of copyright in the text of VAA’s website; 
  • Mr Seitanidis’ conduct in passing himself and his business off as being VAA; and 
  • Misleading or deceptive conduct engaged in by Mr Seitanidis.
I need say very little about the copyright allegations, as on the fourth day of the trial Mr Seitanidis admitted breach of copyright, and VAA (upon its election to accept damages) indicated it was willing to accept $1.00 offered by Mr Seitanidis by way of nominal damages. A dispute remains as to the need for and the extent of declaratory and injunctive relief in respect of the copyright breach, to which I will return.
If VAA cannot succeed in its misleading and deceptive conduct claim, it cannot otherwise succeed in its passing off claim. Therefore, I proceed to consider only the misleading and deceptive conduct claim, which requires me to determine whether Mr Seitanidis engaged in conduct that misled or was likely to mislead, and whether he should be restrained from such conduct in the future.
At the outset, I indicate that whilst throughout these reasons I will be referring to the promotional activity of VAA and the need to put the documentation and oral evidence in context, this is primarily in an endeavour to show the relevant state of knowledge of consumers, and to put the conduct of Mr Seitanidis in context. There is no requirement for VAA to establish any reputation as an element of the misleading and deceptive conduct claim. However, to establish misleading and deceptive conduct in this proceeding depends upon the level of consumer perception of VAA’s reputation and how it promoted itself.
Middleton J went on to state that -
Consumers may often remember promotional and advertising material imperfectly, and so may type in a domain name or visit a website they think is that of the advertiser, without being certain of the correct address. Further, the consumer may hear and see an advertisement but may not act on the material until some later time. In these circumstances, a consumer may not have the advertisement or promotional material in front of them, and may be forced to rely on that imperfect recollection. In addition, a consumer viewing a website may do so in circumstances that do not allow for in-depth consideration (for example, a website viewed on a mobile telephone screen), which compounds the imperfect recollection. In circumstances where a descriptive phrase is used, this imperfect recollection or confusion cannot give rise to liability on the part of a rival trader without more.
Further, clearly the “real life” use of brands is important, as is the use of a brand in the circumstances of the promotion or advertising relied upon by any applicant. ....
Basically, the enquiry is into the reason the misconception has arisen – to find a person liable, it must be because the impugned conduct has sufficiently caused the likelihood of deception, or the deception in fact: see eg Bromberg J in REA Group at [116] to [122]:
A certain amount of confusion is an inevitable outcome of the use of descriptive words.
As Emmett J noted in the context of trade marks in Connect.Com.Au Pty Ltd v GoConnect Australia Pty Ltd (2000) 178 ALR 348; (2000) 50 IPR 535; [2000] FCA 1148, at [61]:
The possibility of blunders by members of the public will always be present when names consist of descriptive words. So long as descriptive words are used by two traders as part of their respective trade names, it is possible that some members of the public will be confused whatever the differentiating words may be: see Sir Ninian Stephen at CLR229 in Hornsby Building.
A further consequence of this principle, noted by Marshall J in Insurance News Pty Ltd v JEM Nominees Pty Ltd t/a Insurance News Australia (2008) 80 IPR 239; [2008] FCA 1966, at [17], quoting Emmett J with approval, is:
...that for a descriptive name to become distinctive, “a very substantial amount of use in the relevant market would be necessary for it to acquire any secondary meaning.”
At [58] his Honour said: [58]
... where a descriptive trade name is used there will always be the possibility of confusion ... {and} where a descriptive name is used it will be difficult for that name to become distinctive of a particular business. Application to like businesses would not ordinarily mislead the public: see Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre.” (emphasis added)
These principles have been applied in many cases: see eg Equity Access Pty Ltd v Westpac Banking Corporation and Another [1989] FCA 506; (1989) 16 IPR 431; Australian Telecommunications Corporation v Hutchinson Telecommunications (Aust) Ltd (1009) 17 IPR 615; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 (Gummow, French and Hill JJ); Commercial Dynamics Pty Ltd v M Hawke Nominees Pty Ltd (1996) ATPR 41-503 (Jenkinson, Miles and Finn JJ); Guide Dog Owners’ & Friend’s Association v Guide Dog Association of NSW & ACT [1999] FCA 316; (1998) 43 IPR 531 (Heerey, Carr and Mansfield JJ) and Betta Foods Australia Pty Ltd v Betta Fruit Bars Pty Ltd (1998) 41 IPR 347 (Goldberg J).
And at [258] to [266] -
It is important to recall that conduct causing confusion is not necessarily co-extensive with misleading and deceptive conduct: see Google Inc v Australian Competition and Consumer Commission (2013) 294 ALR 404; [2013] HCA 1 at 407 [8] per French CJ, Crennan and Kiefel JJ; Campomar [2000] HCA 12; (2000) 202 CLR 45 at 85 [102], and REA Group at [79] per Bromberg J.
Therefore, I may summarise my conclusions as follows. The phrase “vendor advocacy” is descriptive and was generally used by various traders in the same line of business. I am not satisfied that the words or brand relied upon in this proceeding by VAA have any secondary distinctive meaning. VAA has primarily promoted itself by reference to the persona of Ian Reid. I do not consider that any consumer which assume that a reference to vendor advocacy, or Australian Vendor Advocacy, would be associated with VAA or Ian Reid. In fact, because Ian Reid has been so much at the front of the promotion of VAA, without his presence the consumer may well assume it is not associated with him or VAA. Any imperfect recollection of consumers would arise from VAA’s adoption of a name consisting of descriptive words. The lack of recall will be as a result of the promotional activity adopted by VAA, by reference to the descriptive words ‘vendor advocacy’.
Looking then at the domains. There is no doubt that once the consumer enters the domain of Mr Seitanidis there can be no confusion of the type complained of by VAA. The content of the sites are quite distinct. Even if there was momentary ‘confusion’ in the mind of a consumer upon searching vendor advocates, or even Australian Vendor Advocacy, I do not think this would justify in a finding of misleading and deceptive conduct on the part of Mr Seitanidis.
A transitory incorrect impression, or a transient period of being misled even, would not necessarily lead to there being liability imposed upon a respondent: see eg Knight v Beyond Property Pty Ltd [2007] FCAFC 170; (2007) 242 ALR 586, at [54], [58].
I have not needed to enter the debate as to the significance of the various accoutrements of domain names, such as “.com.au”. I agree with the observations of various judges that consumers do not pay any real attention to such references: see eg Architects Australia at [21]; Solahart Industries Pty Ltd v Solar Shop Pty Ltd [2011] FCA 700; (2011) 281 ALR 544 at [49]; Sports Warehouse v Fry Consulting Pty Ltd [2010] FCA 664; (2010) 186 FCR 519 at [155] and REA Group at [128] to [129].
I do observe that, in the context of searching the internet, consumers will be vigilant when confronted, as they are, with many domain names referring the phrase “vendor advocacy”. Of course, if the consumer knows of Ian Reid and are looking for his business, they will look for the entity or entities specifically associated with him.
I interpolate that if the consumer had visited a VAA site previously, the consumer would be familiar with the Ian Reid persona, and could not be misled by the conduct of Mr Seitanidis in his use of his domain names. In this context, I accept that the websites of VAA were very popular. I do not know the extent of the popularity compared to all websites of vendor advocates. In any event, the popularity of the VAA website does not lead to the conclusion that any secondary meaning has been established through such websites in the terms “vendor advocacy” or “Vendor Advocacy Australia”, or that a not insignificant proportion of consumers would associate those terms with VAA. A consumer on the internet would still view the terms as descriptive and would not assume any association between each website.
If there is an imperfect recollection of the type suggested by VAA, any confusion, as I have said, arises from the advantage of a descriptive trade name as used by VAA. If the consumer has never heard of VAA, Mr Ian Reid, or Vendor Advocacy Australia, he or she may be ‘confused’ with the various different vendor advocates, but this would not be because of the conduct of Mr Seitanidis. Therefore, in my view, VAA failed to demonstrate that the conduct of Mr Seitanidis complained of was misleading and deceptive.