16 January 2014


'The Trial of Dorian Gray' by Simon Stern in Richard Kaye ed Dorian Gray in the Twenty-First Century (Oxford University Press) argues that
 Wilde’s three trials in 1895 served, in effect, as an obscenity prosecution of The Picture of Dorian Gray (1890/91). Though the novel was not formally charged with obscenity, Dorian Gray’s first reviewers suggested that it was obscene, and the book remained unavailable in England for nearly two decades after Wilde’s trials. The novel's relation to Wilde's trials thus raises a number of questions about the use of fiction as legal evidence and about the ways in which a criminal prosecution might be taken to reveal the meaning of the defendant's writings. This essay discusses the late Victorian campaign against obscene literature and the victims of that campaign; the reviews of the original version of Dorian Gray (in Lippincott's Magazine, 1890); the oblique manner in which the innuendo about its obscenity functioned during Wilde's three trials (1895); Wilde's own ironic engagement, at several key points in the novel, with the conception of influence at work in the legal test governing the evaluation of obscenity (R. v. Hicklin, 1868); the relation of the painting itself, and of the notorious French novel that Dorian borrows from Lord Henry, to that conception of influence; and Wilde's reenactment of his ironic perspective at the narrative level.
Stern comments
The Picture of Dorian Gray was published at a time when obscenity prosecutions in England were growing in frequency and were increasingly targeting “borderline cases” involving works that had not traditionally been considered obscene. Wilde’s novel abounds in descriptions and scenarios that evoke the concerns fueling the campaign against publications with a “tendency to corrupt,” and although Wilde is more concerned with the workings of this tendency than with its substance, he circles around the subject so intently that it seems surprising— particularly given the recommendations of some commentators—that no charges were laid against the novel. Perhaps it avoided prosecution because Wilde’s trials also served in effect as an obscenity trial. Just as the early reviewers’ objections led one of the major British newsdealers to stop selling the issue of Lippincott’s Magazine that featured the original version of the story, Wilde’s conviction led his publishers to stop selling the book, and nearly twenty years would pass before another British edition appeared. The case against the novel — first in the reviews and then in the courts — took its homoeroticism to be the most damning evidence of its corrupting tendencies, but Wilde’s detractors were also responding to a proclivity that suffuses the novel more generally. As a reviewer for the Pall Mall Gazette explained, “We are conscious of a penetrating poison in the air, yet cannot see clearly whence it proceeds.” Were it not for the implicit censure, Wilde would have appreciated this observation, which succinctly captures the novel’s pervasive concern with the dynamics of the corrupting influence, and which might even have been inspired by Lord Henry’s figuration of influence as a “subtle fluid or a strange perfume,” an almost imperceptible force that can be discerned mainly from its ramifying effects. 
The final decades of the nineteenth century, as Katherine Mullin has noted, marked a rise in obscenity prosecutions in England, and “the ‘artistic merit’ defence against the law, never explicitly established, was increasingly under siege.” In the late 1880s, Henry Vizetelly was tried twice for publishing English translations of Zola’s novels, and there were also prosecutions in the London courts against a peddler who sold photographs of “pictures publicly exhibited in the Paris Salon,” the publishers of the Evening News for featuring “salacious details” of a society divorce case, and a publisher who had excerpted “salacious highlights” from Boccaccio’s Decameron. In 1898, a few years after Wilde’s conviction for “gross indecency” under section 11 (the Labouchere Amendment) of the Criminal Law Amendment Act 1885, the Bedborough trial would result in the suppression of the second volume of Ellis and Symonds’s Studies in the Psychology of Sex—the volume titled Sexual Inversion. When W.T. Stead was tried in 1885, in the wake of his reporting on “The Maiden Tribute of Modern Babylon,” a columnist in the Saturday Review observed that the defense of having “done good service by his publications” could hardly excuse the provocative “rhetorical flourishes” that had garnished Stead’s articles. 
The author concluded that the proceeding, though “in form a trial for abduction,” was correctly “regarded by many as in substance a trial for obscene libel.” 
Wilde’s trials had much the same result for Dorian Gray. The only explicit characterization of the novel as an obscene work, during the three rounds of litigation, appeared at the very outset, in the pretrial pleadings filed in Wilde’s libel suit. Charles Gill, one of the defense counsel, sought to justify Queensberry’s language by calling Dorian Gray an “immoral and indecent work” that described the “passions of certain persons guilty of unnatural practices.” Gill’s allegation, though not repeated in court during the libel trial, would figure as an underlying theme in the defense arguments of Queensberry’s lawyer Edward Carson, which in turn would reappear in Wilde’s first criminal trial when Gill (now acting as prosecution counsel for the Crown) had Carson’s arguments from the libel trial inserted in the court record, only to see the judge strike out the literary evidence when the case was sent to the jury. Gill’s accusation thus migrated from one liminal site to another in the course of Wilde’s trials while nevertheless continuing to play a vital role.

MOOCs and avalanches

'The Merchants of MOOCs', a concise piece by James Grimmelmann in Seton Hall Law Review comments that
A loose network of educators, entrepreneurs, and investors are promoting Massive Open Online Courses as an innovation that will radicaly disrupt higher education. These Merchants of MOOCs see MOOCs' novel features — star professors, flipped classrooms, economies of scale, unbundling, and openness — as the key to dramatically improving higher education while reducing its cost. 
But MOOCs are far from unprecedented. There is very little in them that has not been tried before, from 19th-century correspondence courses to Fathom, Columbia's $25 million dot-com boondoggle. Claims of disruption look rather different when this missing context is restored. This essay examines some common arguments about what gives MOOCs their value, and finds them wanting. There is a sharp division between the features that make MOOCs exciting for education and the features that make them financially appealing to the Merchants of MOOCs.
Grimmelmann begins -
Meet the MOOC.  In 2011, Stanford professors Peter Norvig and Sebastian Thrun filmed the lectures from their artificial intelligence course and put the videos online. They opened registration to anyone, anywhere in the world The response was massive: more than 160,000 students signed up. Only 23,000 completed the course, but that is still roughly 22,800 more students than would have in a normal semester. And of the 248 students who received perfect scores, every single one was online rather than at Stanford. 
The success of the “Stanford AI course” made MOOCs — Massive Open Online Courses — front page news. It also drew the attention of a group I will call the Merchants of MOOCs: a loose network of educational entrepreneurs investing in bringing MOOCs to the masses. Thrun gave up his Stanford tenure to found Udacity, which has raised $20 million in venture capital; two of his Stanford colleagues founded Coursera, which has $65 million to its name; Harvard and MIT jointly funded the nonprofit edX with $60 million. They, and many others, are promoting MOOCs as a transformative innovation for higher education. 
Consider a typical MOOC program. Columbia University is working with a 14-member international consortium including the London School of Economics and the Smithsonian to offer courses in “computer science and technology, the arts, journalism, and physics” featuring “a wealth of free content usually only available on university campuses and at leading museums and libraries.” It centers around “elaborate online courses replicating the Ivy League experience” that combine streaming video, online texts, and discussion groups. A great many are free, but college students seeking course credit can enroll in more formal courses for a fee. 
Wait. What’s that? Oh. I see. 
Excuse me. I’ve just been informed that I’ve been talking about Columbia's previous venture into online learning, Fathom.com, which launched in 2000. Although some 65,000 people created Fathom accounts, very few of them paid for any courses. Fathom closed in 2003 after blowing through $25 million. Fathom, of course, is completely different from Columbia’s current venture into online learning in partnership with Coursera, which offers Ivy League courses in computer science and economics that combine streaming video, online texts, and discussion groups. They’re free to take, but Coursera offers certificates of completion for a fee. As you can see, Fathom and Coursera have utterly nothing in common, nothing at all — or nothing that anyone involved cares to admit. 
As Columbia’s amnesia about Fathom suggests, MOOCs are far from unprecedented. Almost everything in them has been tried before, often repeatedly. In what follows, I will critically examine some common claims about MOOCs in light of this missing context, and suggest that MOOCs are both far less and far more disruptive than the Merchants of MOOCs would have us believe.
Last year's Institute for Public Policy Research An avalanche is coming: Higher education and the revolution ahead [PDF] by Michael Barber, Katelyn Donnelly and Saad Rizvi argues that -
the next 50 years could see a golden age for higher education, but only if all the players in the system, from students to governments, seize the initiative and act ambitiously. If not, an avalanche of change will sweep the system away. Deep, radical and urgent transformation is required in higher education. The biggest risk is that as a result of complacency, caution or anxiety the pace of change is too slow and the nature of change is too incremental. The models of higher education that marched triumphantly across the globe in the second half of the 20th century are broken. 
This report challenges every player in the system to act boldly. 
Citizens need to seize the opportunity to learn and re-learn throughout their lives. They need to be ready to take personal responsibility both for themselves and the world around them. Every citizen is a potential student and a potential creator of employment. 
University leaders need to take control of their own destiny and seize the opportunities open to them through technology – Massive Open Online Courses (MOOCs) for example – to provide broader, deeper and more exciting education. Leaders will need to have a keen eye toward creating value for their students. 
Each university needs to be clear which niches or market segments it wants to serve and how. The traditional multipurpose university with a combination of a range of degrees and a modestly effective research programme has had its day. 
The traditional university is being unbundled. 
Some will need to specialise in teaching alone – and move away from the traditional lecture to the multi-faced teaching possibilities now available:
  • the elite university 
  • the mass university 
  • the niche university 
  • the local university 
  • the lifelong learning mechanism.
The pressure of competition on universities is greater than ever, not just because of the global competition between them, but also because a range of new players like MOOCs provider Coursera, skill-educator General Assembly and consultancies that develop people and produce cutting edge research, are now stepping up to compete with various specific functions of a traditional university. 
Governments will need to rethink their regulatory regimes which were designed for a new era when university systems were national rather than global. In the new era, governments need to face up to big questions – how can they fund and support part-time students? Should a student who takes courses from a range of providers, including MOOCs, receive funding on the same basis as any other student? How can government incentivise the connection between universities, cities and innovation? In an era of globalisation how do governments ensure that universities in their country continue to thrive? How can meritocracy be ensured? 
There are three fundamental challenges facing systems all round the world:
1. How can universities and new providers ensure education for employability? A great example of the future is the excellent employability centre at Exeter University in the UK which offers all students sustained advice and promotes volunteering as well as academic success. Given the rising cost of degrees, the threat to the market value of degrees and the sheer scale of both economic change and unemployment, this is a vital and immediate challenge. 
2. How can the link between cost and quality be broken? At present, the global rankings of universities in effect equate inputs with output. Only universities which have built up vast research capacity and low student:teacher ratios can come out on top. Yet in the era of modern technology, when students can individually and collectively create knowledge themselves, outstanding quality without high fixed costs is both plausible and desirable. New entrants are effectively barred from entry. A new university ranking is required. 
3. How does the entire learning ecosystem need to change to support alternative providers and the future of work? A new breed of learning providers is emerging that emphasise learning by practice and mentorship. Systematic changes are necessary to embedding these successful companies on a wider scale.
The key messages from the report to every player in the system are that the new student consumer is king and standing still is not an option. Embracing the new opportunities set out here may be the only way to avoid the avalanche that is coming.


IP Australia has announced a quick turnaround consultation regarding draft legislation to amend the Patents Act 1990 (Cth), Trade Marks Act 1995 (Cth), Designs Act 2003 (Cth) and the Plant Breeder's Rights Act 1994 (Cth).

The proposed amendments considered in the consultation paper [PDF]  are to:
  •  implement the Protocol amending the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Protocol), enabling Australian medicine producers to manufacture and export patented pharmaceuticals to countries experiencing health crises, under a compulsory licence from the Federal Court 
  • extend the jurisdiction of the former Federal Magistrates Court to the Federal Circuit Court to include plant breeder's rights matters 
  • allow for a single trans-Tasman patent attorney regime and single patent application and examination processes for Australia and New Zealand, as part of the broader Single Economic Market (SEM) agenda 
  • make minor administrative changes to the Patents, Trade Marks and Designs Acts to repeal unnecessary document retention provisions that are already adequately governed by the Archives Act 1983 (Cth)
  • make minor technical amendments to the Patents Act to correct oversights in the drafting of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) passed in March 2012.
Regrettably but unsurprisingly IP Australia hasn't unpacked the intellectual property provisions in the upcoming TransPacific Partnership Agreement.

Privacy Seals

The European Commission has released a 290 page report [PDF]  titled EU Privacy seals project: Inventory and analysis of privacy certification schemes, covering 25 online privacy seals.

The report concludes -
 The privacy seals market place is defined by heterogeneity. Whilst we can identify a relatively small number of ways in which seal schemes function, there is a large degree of variation around these core functional models. These variations can have significant implications for the claims that a seal scheme is legitimately able to make. In addition to this, the level of variation amongst seals likely impacts upon the effectiveness of seals. An individual (or organisation) cannot generalise about a seal scheme from their knowledge of other seal schemes (if any). It is a possibility that more niche seals will emerge, which will increase the level of variation further. Privacy seal schemes face a challenge in making legitimate claims about complex behaviours and standards, and making these claims rapidly, transparently, accessibly and communicating these reassuringly.
One of the key results of our study relates to the privacy and data protection elements of analysed schemes; some schemes have extensive privacy and data protection elements, others have none or a bare minimum. The focus of schemes differs. The more legally aligned schemes have a national or regional scope and coverage potentially restricting their universal application. The level of guarantees made to data subjects also varies – some schemes specify these explicitly, while others make no mention of it at all. While most of the analysed schemes seem to follow a typical model, there are highly divergent certification practices. This has implications for seal audiences who may not be able to determine the nature and scope of the certification process or to make informed judgements about a scheme that forms the basis of a seal. To this extent, it will be important to distinguish best practice from common practice in any future privacy seal scheme. A good privacy seal scheme must make specific, concrete certification of privacy and data protection behaviour. Blending these claims with other business practices may diminish the distinctiveness of a privacy seal offering (as evident in some of the analysed schemes).
While the objectives of the analysed schemes cluster around six categories (building confidence or trust, signalling compliance or accordance with a standard, signalling the presence of privacy measures, providing guarantees, increasing market transparency and resolving disputes), and though there is some evidence of schemes achieving a certain measure of success (as in the case of profitable and expanding schemes such as TRUSTe), in actual practice, it is difficult to gauge the actual achievements of most of the objectives.
EU-based schemes display some key differences in comparison to their US-based or global counterparts. Europe has schemes administered by data protection agencies. The analysis also shows that European schemes are more likely to be aligned with legal standards for privacy and data protection, to make guarantees of compliance with such standards and requirements and less likely to have abstract guarantees on data subject rights. Non-EU schemes do not generally meet the legally-binding standards of EU data protection legislation.
In general, compliance with privacy and data protection law is a challenge for organisations. The GDPR imposes a high legal standard for privacy and data protection. Though the analysed EU-based certification schemes tend to approximate as best as possible the proposed GDPR requirements, unless guided effectively on how to concretely incorporate the GDPR requirements as their standards or criteria, they might fall short of what they can actually deliver through their schemes. For the non-EU based schemes, the GDPR criteria may be less relevant (attributable to different industry and regulatory environments within which they operate). Non-EU based schemes could adopt the GDPR criteria as this would give them a good standing and even form the basis for mutual recognition efforts if their subscribers engage with European consumers and data subjects. 
Amongst the EU-based schemes, we find there is a lack of public discussion and preparation in relation to the new GDPR requirements (such as rights of data portability, right to be forgotten, data protection impact assessments, the principle of accountability and the special protection afforded to minors). EU-based schemes are also largely national in scope – while several schemes were identified in certain Member States such as Germany or Spain, no noted attempts for mutual recognition and co-operation are evident. This absence of harmonisation amongst EU-based seals puts them at a disadvantage in comparison to other international schemes that are able to cover a wider audience. EU citizens are exposed to a very wide variety of seal schemes in their use of the Internet; however, only a small sub-set of these schemes signal compliance with EU privacy and data protection law. 
There are various beneficiaries of privacy seals: policy-makers, regulators, other public bodies, scheme operators, subscribers (of all types, large, medium and small), third parties (e.g., independent evaluators, auditors), industry associations, privacy and data protection organisations, consumers and individuals. On a broader front, privacy and data protection schemes benefit society. They encourage and facilitate good privacy and data protection practices and increase the participation of individuals in online commercial and social activities. 
Privacy seal schemes can have various benefits (that are divergently applicable to beneficiaries): generation of privacy and data protection accountability and oversight, provision of privacy assurances, reduction in the regulatory and enforcement burden, enhancement of trust and confidence, reputational, competitive and market advantages, increasing trade and commerce, driving industrial growth, generation of privacy awareness, helping prove fulfilment of privacy and data protection obligations, encouraging the implementation and maintenance of data protection measures, and presenting a quick and accessible means to determine and verify privacy and data protection commitments. These benefits were broadly supported by the stated objectives of many of the analysed seal schemes. These included abstract trust-building (encouraging a general sense of confidence, with trust strongly related to commercial opportunities for the certified entity), compliance signalling (with regard to laws or other standards), signally data protection measures, the provision of binding guarantees, increasing market transparency and providing additional dispute resolution mechanisms. Each of these objectives can be understood as responding to particular problems of exercising trust online.
Privacy certification schemes also have an impact on their beneficiaries. This impact affects the propensity of organisations to subscribe to the scheme. The impact relates to various costs such as design costs, seal costs, seal administration costs, certification costs, certification compliance costs, human resource costs, accreditation costs, regulatory approval costs.
Required success factors for privacy seal schemes
One of the key factors that determine the extent to which a privacy certification scheme benefits individuals and citizens is how easy or difficult it is to break the link between the signifier (the presence of a seal on a website or entry in a register) and the signified (the particular privacy and data protection practices being certified). An effective seal must have a strong link between the two. Several factors identified in this study contribute towards weakening this link. The classical and linked seal models have weaker links between the signifier and signified than the hosted seal. This is because the website hosting the seal can potentially resist its revocation and continue to display a seal to which it is not entitled. Similarly, if a scheme fines a member who is in breach of its programme requirements rather than revokes the seal, then it becomes difficult for an end user to determine whether the seal represents a website in good standing with the programme requirements. The possibility of a negotiated relationship between seal provider and certified entity and too frequent changes to the programme requirements over time also undermine the link between the signifier and the signified, as a seal can signify different things on different websites, at different times. Finally a lack of information on what exactly the seal is supposed to signify is a concern. Too many of the analysed schemes were difficult to find, too abstract or had incomplete information accessible to the public. Given that the role of a seal is to signify something, it should be possible to determine what is being signified in a relatively easy and straightforward manner. 
Transparency and openness of schemes is a necessity for ensuring that privacy seal schemes are not simply a front or means for an organisation to build and develop its profile and other supplementary activities (e.g., consulting). There is a need to eliminate this conflict of interest as it affects the credibility of the scheme. 
Another key factor impacting the success of a privacy and data protection certification scheme is the certifier’s reputation and ability to attract (and retain) subscribers. A certifier must be independent (financially and resources), capable of engendering trust from members and successfully able to implement and enforce the scheme. This may suggest the need for increased involvement from data protection authorities. Universality (ability to offer a more widely applicable seal) of the scheme is another advantageous factor that might contribute to success of a scheme. Further, if SMEs are to gain the most from subscribing to these schemes, then certification schemes must find a way of catering to this beneficiary more effectively.

15 January 2014

Art Markets and Investment

From an item by Melanie Gerlis in the Financial Times promoting her Art as an Investment? A Survey of Comparative Assets (Lund Humphries, 2014) -
 art falls short relative to many of the other assets to which it is frequently – and favourably – compared. These include both traditional and alternative investments, whether public and private equity, gold, wine, or residential property. Its lack of correlation to such assets is also questionable. 
The combination of the market’s illiquidity, opacity, lumpy supply and asymmetry of information undermines art’s profile as an asset. This is reinforced by the unique qualities of each work – including its history of ownership, trading and display – which create enormous ranges of pricing and valuation, and preclude sensible data aggregation or comparison. The market’s opacity further opens it up to unchecked manipulation. 
Price transparency is another huge problem facing those who would map art’s returns on to a Bloomberg screen, alongside their other investments. Only 50 per cent of an already relatively small number of art trades are recorded (auction results are made public, dealers’ prices are not). To put this into perspective, Artnet, a database of auction sales, records that 1.8m works of fine art were offered at auction in 2012. By comparison, there were an average 1.5m trades per day through the London Stock Exchange alone in May 2012. Even if the limited, patchy and inconsistent available data on art sales could be put into a hypothetical basket of all segments of art, its financial profile is hardly compelling. Most such theoretical analyses of the art market find that the average compound return for works kept for between five and 10 years is around 4 per cent. 
Relatively speaking, this is already less than for gold, wine and both public and private equity, and also lower than the residential property market – another market of unique goods, but with more trading volume and available data (as well as an actual and economic utility) than the art market. And this is before considering the so-called risk adjusted return (the profits needed to make up for the peculiarities of any market). One investment professional whom I interviewed for my book said that, given the risks in the art market, anyone who is content with less than a 50 per cent return on art “needs a lesson in investment”. 
Meanwhile, art’s supposed lack of correlation with other markets is not entirely convincing. The price levels for art do not reflect its fundamental characteristics, rather the fortunes of its buyers. The art market as a whole crashed soon after the economic downturn began in earnest in 2008. Thereafter, only the top-priced works recovered as the wealthiest few emerged relatively unscathed from the credit crisis and new wealth was created outside the gloom of Europe and the United States. Many experts also agree that the data frequency to support the correlation claim is much too short to be meaningful, given how relatively infrequently art is sold for a known price. What may seem to be a lack of correlation may in fact just be a lack of information.
You could of course buy art or books (if necessarily skipping lunch) for pleasure. Cuddling up with a gold bar or a bearer bond? No. Liquidating the assets by drinking the collectable bottle of wine (particularly after realising that it's a fake)? A transient pleasure with a headache the next day.

Gerlis notes 'On the valuation of psychic returns to art market investments' by Erdal Atukeren and Aylin Seckin in (2007) 26(5) Economics Bulletin 1-12
Investing in art objects yields financial and psychic returns. The psychic returns arise since art has a superior consumption good aspect as well. The question is whether it is possible to measure the psychic returns. One valuation method for estimating the psychic returns to investing in artworks is their rental price. Here, we make use of the prices charged by a Canadian fine art company for its art rental services and calculate the implied psychic returns to be about 28 percent. Next, we review the finance-theoretic approaches to measuring the psychic returns to investing in artworks. We follow Hodgson and Vorkink's (2004, Canadian Journal of Economics) suggestion that the alpha parameter in the CAPM captures the extent of net psychic returns. The evidence on alpha from the art market applications of the CAPM coupled with the transaction cost data from international art auctions also suggests that the psychic returns to investing in artworks might amount to about 28 per cent.
Overall I preferred works such as 'Art Investment and the British Rail Pension Fund' by Peter Cannon-Brookes in (1996) 15(4) Museum Management and Curatorship (1996), 'Art as an Alternative Investment Asset' by Raya Mamabarchi, Marc Day and Giampiero Favato, 'Accounting for Taste: An Analysis of Art Returns Over Three Centuries' by William Goetzman in (1993) 83(5) American Economic Review, 'Reflections on historical series of art prices: Reitlinger's data revisited' by Guido Guerzoni in (1995) 19(3) Journal of Cultural Economics 251, 'Unnatural Value: or Art Investment as a Floating Crap Game' by William Baumol in (1986) 5 American Economic Review, 'On pricing the priceless: Comments on the economics of the visual art market' by Louis-André Gérard-Varet in (1995) 39(3) European Economic Review 509.

Pets, Probate and Privacy

'More Americans Are Writing Their Pets Into Their Wills - Leaving Thousands of Dollars for the Care of Animals' in the 12 January Wall Street Journal reports that
As of 2012, 68% of U.S. households owned pets, up from 62% in 2010. Among cat owners, 9% had made financial provisions in their wills for their animals, up from 6% in 2010, according to the American Pet Products Association, which represents manufacturers of pet food and other products. From 2010 to 2012, the percentage of dog owners making such arrangements rose to 9% from 5%. 
No indication of course as to whether the American Pet Products Association data is representative.

'Wills as Public Documents - Privacy and Property Rights' by Joseph Jaconelli in (2012) 71(1) The Cambridge Law Journal 148 comments
It is a long-established legal rule that the contents of a will, once it is admitted to probate, are available for inspection by any member of the public. This article is the first examination of this remarkable rule, its possible rationales, and its attendant disadvantages. Particular attention is paid to the problems of the ensuing loss of privacy. Legislative attempts to limit open access are considered together with non-legislative devices used for the same purpose: the secret trust; and applications for the sealing of a will (a device especially prevalent in the case of royal wills).
Jaconelli notes that
A long-standing feature of certain national newspapers has been a regular column which gives a brief summary of the wills of recently deceased persons. Those who are selected for inclusion in these columns will have been distinguished in life by fame or wealth (or both). Each entry typically gives the value of the estate together with some details of the main bequests. The affairs of those who were neither famous nor rich also attract the attention of the press, but do so more sporadically on the basis of such factors as strikingly unusual testamentary dispositions. The same range of materials is also to be found in local and provincial newspapers. What these lack in circulation figures by comparison with the national press is more than offset by the greater likelihood that the testator and the beneficiaries under the will are personally known to the readers. Such material, irrespective of its form, has been an aspect of the content of newspapers for so long that it scarcely provokes a second thought. Yet, on reflection, its presence calls for some explanation and justification since it involves disclosure to the public of the contents of a document that lays bare the closest emotional ties that the testator will have formed during his or her lifetime. In the legal systems that are based on the common law, characterised as they are by freedom of testamentary disposition, there is the greatest scope for testators to give expression to those emotional ties. This stands in marked contrast to the forced heirship regimes that are characteristic of civil law systems (for instance), where a person may freely dispose by will of only some fraction of his total estate. In these there must necessarily be a correspondingly reduced interest in disclosing the contents of a will. 
In reporting the contents of wills the press is merely availing itself of a facility that is open to all. In English law the basis of that entitlement is section 124 of the Supreme Court Act 1981 (as amended):
All original wills and other documents which are under the control of the High Court in the Principal Registry or in any District Probate Registry shall be deposited and preserved in such places as may be provided for and directions given in accordance with. ... the Constitutional Reform Act 2005; and any wills or other documents so deposited shall, subject to the control of the High Court and to probate rules, be open to inspection.
The general right of access is qualified by the probate rules in question: namely, the Non-Contentious Probate Rules 1987. Rule 58 stipulates that a will or other document referred to in section 124 “shall not be open to inspection if, in the opinion of a district judge or regis- trar, such inspection would be undesirable or otherwise inappropriate”. No criteria, it should be noted, are provided on the basis of which inspection of a will might be deemed neither desirable nor appropriate. In addition, section 125 of the Supreme Court Act provides a facility whereby, subject to the payment of an administrative fee, an applicant is entitled to be supplied with a certified copy of any will that is open to inspection. 
The existence of the right of access, in whatever form, is remarkable enough. That the personal information capable of being gleaned from such searches may be freely disseminated to a mass readership calls for particularly compelling justification. Yet in the very substantial literature on privacy it is impossible to find more than a few lines on the subject of the inspection, and publication of the contents, of wills. The Younger Committee on Privacy has given it the most attention. The Committee viewed the statutory availability of wills to applicants as falling within the public sector, and hence outside its terms of reference. On the separate issue of disclosure of their contents by the media, it saw no stronger case for restricting such accounts than it did for restricting further dissemination of any other information that was publicly available. In this regard the Committee went against the findings of a survey that it had commissioned on how various institutions and phenomena that impinge on the privacy of individuals (for example, credit rating agencies and closed circuit television) were perceived by the public. Under the heading “Publication of Will”, 77 per cent. of those canvassed were of the opinion that this was an invasion of privacy while 71 per cent. believed that it should be prohibited. Clearly, then, opinion is divided on the question of public access to the contents of wills. The purpose of this article is to assess the arguments in favour of publicity and privacy respectively.

Regulated Speech

'Old School/New School Speech Regulation' by Jack M. Balkin in Harvard Law Review (Forthcoming) comments
 In the early twenty-first century the digital infrastructure of communication has also become a central instrument for speech regulation and surveillance. The same forces that have democratized and decentralized information production have also generated new techniques for surveillance and control of expression. 
“Old-school” speech regulation has traditionally relied on criminal penalties, civil damages, and injunctions directed at individual speakers and publishers to control and discipline speech. These methods have hardly disappeared in the twenty-first century. But now they are joined by “new-school” techniques, which aim at digital networks and auxiliary services like search engines, payment systems, and advertisers. For example, states may engage in collateral censorship by threatening Internet intermediaries with liability to induce them to block, limit, or censor speech by other private parties. 
Public/private cooperation and co-optation is often crucial to new-school techniques. Because the government often does not own the infrastructure of free expression, it must rely on private owners to assist in speech regulation and surveillance. Governments may use a combination of carrots and sticks, including offers of legal immunity in exchange for cooperation. States may also employ the “soft power” of government influence. Owners of private infrastructure, hoping to reduce legal uncertainty and to ensure an uncomplicated business environment, often have incentives to be helpful even without direct government threats. 
Finally, governments have also devised new forms of digital prior restraint. Many new-school techniques have effects similar to prior restraints, even though they may not involve traditional licensing schemes or judicial injunctions. Prior restraints are especially important to the expansion of government surveillance practices in the expanding National Surveillance State. Gag orders directed at owners of private infrastructure are now ubiquitous in the United States; they have become fully normalized and bureaucratized elements of digital surveillance, as routine as they are invisible, and largely isolated from traditional first amendment protections.
Balkin concludes -
(1) Old school goals: chilling effects and ex post punishment 
The goals and practices of old school speech regulation have been shaped by the possibilities of enforcement in the pre-digital era or using pre-digital technologies. Old school regulation tries to control bodies, spaces, and pre-digital technologies of mass distribution. Before publication moved to digital networks, it was relatively difficult for the state to block prohibited activity before it happened; therefore much old school speech regulation is ex post—criminal prosecutions, civil fines, seizure and destruction of books and other materials. For example, New York Times v. Sullivan involved defamation law, which is ex post regulation. 
In the old school model, ex ante prevention of speech is certainly not impossible, but the opportunities are more circumscribed than in new school speech regulation. These are, roughly speaking, situations in which effective prior restraints are possible in a pre-digital world. First, the state can block disfavored activities before they happen when the state can plausibly and effectively impose a licensing scheme on publishing or broadcasting technologies, or control access to government property. Second, the state can prevent disfavored speech when it is able to learn that speech is about to occur and it can act in time to stop it through a judicial injunction. Pentagon Papers involved the latter situation. 
Beyond these two situations, the state usually cannot stop speech before it occurs, and therefore old school speech regulation often relies on deterrence. The state hopes to prevent undesirable expression by giving people reason to fear the consequences of acting. To this end, the state may pass regulations that are overbroad and vague in order to discourage expressive conduct that the state wishes to prevent. Although the state may not want to capture protected expression, it wants to make sure that all unprotected activity is deterred. From the perspective of regulation (as opposed to civil liberties protection), uncertainty about whether one’s conduct is illegal may be a virtue, not a vice. 
Modern first amendment doctrine’s focus on chilling effects is simply the flip side of what old school speech regulation seeks to achieve. Old school speech regulation wants to induce a chilling effect on speech that the state hopes to control. It is also helpful if the state’s threats of retribution or punishment for disfavored speech are either highly visible or widely recognized by the public. Similarly, it may also be helpful if surveillance of expressive activity is public or the possibility of surveillance is highly salient to the public. Even if the public never sees a policeman taking names at a demonstration or sees a person arrested for illegal speech, it is enough that the citizens know that such practices are real. xxxxx The point of old school speech regulation is to dissuade and discourage, and thus to produce fear, apprehension, pessimism or docility. 
(2) New school goals: pervasiveness, low salience, and ex ante prevention— from chilling effects to chilling out 
In a digital world, the state’s practices and techniques have a different emphasis. New school speech regulation offers additional possibilities—and more effective possibilities—for ex ante prevention than old school speech regulation did. Because the infrastructure of free expression merges with the technologies of regulation and surveillance, the state is better able to discover when disfavored speech is occurring. It may also be easier to block speech, either directly or by inducing private parties to engage in surveillance and collateral censorship. The state can give incentives for private parties to search for disfavored content, slow it down, filter it, or block it entirely. 
To be sure, old school speech regulation does not go away. Even in new school speech regulation, the government may want to chill activity to protect property rights and surveillance capability. The boundaries of copyright law and the defense of fair use are often quite vague, and hence their combination may chill protected expression. As noted previously, gag orders that accompany national security letters are designed to produce an in terrorem effect so that no business will attempt disclosure. 
Nevertheless, because digital networks make both surveillance and prevention easier, new school speech regulation makes greater use of ex ante strategies, including blocking and filtering. Thus, roughly speaking, while old school speech regulation emphasizes deterrence and chilling effects, new school speech regulation emphasizes prevention and low salience (or invisibility). 
As surveillance and blocking of harmful content become increasingly effective and pervasive, the old school approach of generating chilling effects becomes more complicated. Strategies of governance change as we move from a world in which only (or primarily) suspicious people are targeted for surveillance to a world in which government and private business collect data on as many people as possible to facilitate analysis, prevention, and counter-measures. 
The state and private infrastructure owners may prefer that surveillance be largely invisible to the general public. The scope and extent of data collection and analysis should be secret or at the very least of very low salience in order to make people feel that, although they are secure, they are not constantly being observed. When surveillance is not salient to people, they may be more willing to reveal information that the government or owners of private infrastructure can then collect and analyze. That is especially important because data collected about perfectly innocent people may help the state identify, understand, apprehend, or block the actions of those the state suspects. To the extent that the public is aware of pervasive surveillance, both the government and private business may want the public not to see it as a threat that is designed to induce obedience and docility; instead, government and private business may want to depict data collection operations as normal, unobtrusive, and inoffensive. In the National Surveillance State, the experience of surveillance, once reserved for “suspicious” persons, is democratized, universalized, and made banal. In a world of pervasive surveillance, the state and owners of private infrastructure may not want to achieve chilling effects with respect to most people; instead, they may want most people just to chill out. 
In sum, the goal of new school speech regulation is normalcy and invisibility—or at least low salience—employing actions that prevent rather than merely punish, and that can occur automatically and at a distance. The irony of the democratization of speech in the digital age is precisely that it has led to these practices of control and surveillance. To vary another famous saying, on the Internet, nobody knows you are a dog—except for the government and the owners of private infrastructure. 
New York Times v. Sullivan and Pentagon Papers are twentieth-century responses to twentieth-century techniques of speech regulation. Yet techniques of speech regulation have not stood still; nor have the technologies that facilitate them. Just as defenders of free expression during the post-New Deal period had to devise ways of constructing constitutional guarantees that would respond to old school techniques, it falls to current generations to reimagine the free speech principle in a world of new-school speech regulation. The commitment to freedom of speech may be enduring, but the techniques of speech regulation are protean and ever-changing. So too must be our responses.

14 January 2014


'Citizenship and the Law of Time in the United States' by Elizabeth Cohen in (2013) 8(1) Duke Journal of Constitutional Law & Public Policy 53 argues that early US citizenship law illustrates "four larger points about the relationship between rights and time in a liberal democracy".
First, measured time is integral to establishing the boundaries of a sovereign population and to the extension of citizenship within the boundaries of states. Dates such as those associated with the union of the Scottish and Irish crowns establish sovereign boundaries around a population of subjects, marking only those born in the territory after the moment of establishment as legal subjects. Consent-based democracies such as the United States adapt the citizenship principle to permit critical periods of constitutional reasoning rather than relying on single moments of establishment in which subjecthood is bestowed on persons without their consent. 
Second, the establishment of pivotal dates and durations of time reflects a set of beliefs and commitments about the moral value of time in politics. Measured time is an important means with which polities can embody, represent, and quantify intangible moral qualities and relationships such as allegiance, consent, civic virtue, and experience. Temporal laws and policies embody a form of commensuration in which intangible personal and political qualities are translated into precise quantities of time. Time provides a way for a state to create and administer uniform rules for transforming non-citizens into citizens particularly in cases of disagreement about whether non-citizens should be included at all. 
Third, after the qualitative moral traits of a citizen have been expressed in the tangible quantitative terms of measured time, durations of time can be exchanged for rights and political status. In short, time has political exchange value. It is used to create temporal equations in which time (other actions and qualities) = citizenship rights. 
Fourth, the use of time in the establishment and conferral of citizenship rights helps negotiate tensions between conflicting doctrines of membership. Because time appears to treat all subjects and citizens identically, progressing at the same rate for all, temporal rules offer the appearance of objectivity and even-handedness associated with liberalism. At the same time, people’s time can be valued or devalued in subjective ways that reflect situated judgments. Finally, time is a highly efficient means with which bureaucratic states can process complex decisions such as “which criminals have paid their debt to society and/or rehabilitated themselves?” and “who is mature and qualified for full citizenship?” Polities are therefore very likely to turn to temporal laws and policies to facilitate compromise and lawmaking in the context of normative conflict.

Digital Literacy

'Viewing youth and mobile privacy through a digital policy literacy framework' by Leslie Regan Shade and Tamara Shepherd in (2013) 18(12) First Monday argues
Digital policy literacy is a critical element of digital literacy that emphasizes an understanding of communication policy processes, the political economy of media, and technological infrastructures. This paper introduces an analytical framework of digital policy literacy and illustrates it with examples of young people’s everyday negotiations of mobile privacy, in order to argue for increased policy literacy around privacy and mobile phone communication. The framework is applied to the Canadian context, where a small pilot study engaged 14 undergraduate university students in focus groups about their uses of mobiles and knowledge of mobile privacy issues. Preliminary findings show that while our participants were aware of a variety of privacy threats in mobile communication, they were not likely to participate in policy processes that might protect their privacy rights. The paper concludes with a discussion of why young people may not be motivated to intervene in policy processes and how their digital policy literacy around mobile privacy is mitigated by the construction of youth as a lucrative target consumer market for mobile devices and services. … 
14 students! The authors continue -
Canadian federal policy on the digital economy frames digital literacy initiatives as a crucial site for training youth in digital skills, defined as ‘the ability to locate, understand, evaluate, create and share information using digital technology’. Fluency in digital practices constitutes not only the basis for a thriving information economy, but enables a more connected and engaged citizenry; increased digital literacy will ‘open up new opportunities for all Canadians to participate in Canada’s democratic, economic, cultural and social life'. 
In their submission to Industry Canada’s Digital Economy Strategy Consultation, the media literacy organization Media Awareness Network (now renamed MediaSmarts) argued for a comprehensive national digital literacy plan involving government, civil society, and educators, to strengthen the Canadian economy and enhance Canadian lives (Media Awareness Network, 2010). Based on a survey with diverse stakeholders, the Canadian Internet Registration Authority (CIRA) positioned digital literacy — encompassing use, understanding, and creation of digital media content and technologies — as essential for achieving the ‘digital economy value chain’ of creativity, innovation, productivity, and competitiveness. 
These examples illustrate how digital literacy is promoted as essential for Canadian youth in an increasingly technologically mediated society. Missing from these entreaties for digital literacy, however, is an explicit focus on the acquisition of knowledge about digital policy issues. Rather than being an essential component of digital literacy, digital policy issues are mentioned with reference to the mitigation of risks and to protect youth from harm by, for instance, averting online identity fraud or enhancing reputation management. Intellectual property policy is evoked so that youth can better understand what constitutes copyright infringement in order to dissuade piracy practices. In relation to privacy, regulatory development of tools for young people to protect their online privacy tend to focus on cultivating skills of individual information disclosure (e.g., the Office of the Privacy Commissioner of Canada’s Youth Privacy portal), and the deliberate use of software featuring “privacy by design” principles (e.g., Ontario Information and Privacy Commissioner Ann Cavoukian’s promotion of built–in privacy protections). 
We argue that regulators’ focus on digital skills, and attendant discussion of policy only insofar as it addresses business issues such as fraud, piracy, and liability, obscures a consideration of the democratizing possibilities of digital literacy for civic participation (O’Neill and Hagen, 2009). Public discourse about digital literacy tends to frame youth as mere consumers. We concur with O’Neill, who contends that this focus on ethical individualism needs to be countered with an alternative vision foregrounding communication rights that would consider ‘the right to accessible information, the right to communicate and the right to privacy’. The digital policy literacy framework adds this crucial conception of rights to prevailing models of digital literacy. 
A focus on communication rights directs attention to new challenges for literacy and pedagogy. Within communication policy research, digital literacy is said to be ‘gaining ascendancy, in key ways taking over the ground where audience studies once held sway’ (Livingstone, 2008). Digital literacy typically refers to the technical, cognitive, and sociological skills needed in order to perform tasks and solve problems in digital environments (Tyner, 1998). Notions of digital literacy can be traced to earlier accounts of ‘computer literacy’ in the 1980s (Bawden, 2001), and ‘information literacy’ in the 1990s (Behrens, 1994). By situating digital literacy as primarily comprising technical skills, the vestiges of the computer and information literacy approaches remain, most recently framed as the ‘21st century skills’ required for participation in a high–tech economy (Trilling and Fadel, 2009). 
Alongside these instrumental versions of literacy in technological environments, critical variations of digital literacy draw from media literacy approaches concerned with the pedagogical impact of digital media in society (Alvermann and Hagood, 2000; Hobbs, 2011). Here digital literacy challenges notions of skills procurement; Buckingham, for example, describes how digital literacy cannot be seen ‘simply as a matter of “information” or of “technology,”’ but as a means of ‘cultural understanding’, which involves a critical perspective on the social, political, and economic implications of the ubiquity of information technology. This stance is furthermore intended to foster in young people critical analysis of the relationships between media and audiences, information and power, as a crucial element of participatory democracy in the twenty–first century (Kellner and Share, 2007; Livingstone and Brake, 2010; Hoechsmann and Poyntz, 2012).
The authors conclude -
When illustrated by this group of young Canadians’ discussions of mobile privacy, the digital policy literacy framework highlights how young people’s mobile privacy is constructed as a consumer right. The participants in our study were all reasonably literate about mobile marketing practices, and understood that privacy was a tenuous right in mobile apps that are predicated on data collection. While they were concerned about their privacy in mobile and online environments, participants often felt ambivalent about privacy protection, given a lack of interest in making policy interventions and a feeling of mistrust toward wireless service providers. Moreover, the commercial infrastructures that govern privacy policies as legal contracts were framed in terms of surveillance and intrusion, but were often not explicitly threatening enough to take action against. Because this group of young Canadians expressed a fair degree of literacy about privacy settings, they felt that managing privacy on their mobiles was a matter of individual responsibility, and not necessarily a broader policy concern. 
The trade–off that participants described between using the mobile service or app and relinquishing some personal privacy was framed as an everyday exchange governed by individual choice. Even if these young people claimed to understand the risks involved in having their data collected through mobile devices, they did acknowledge that not everyone shared their degree of literacy; as Nick said: ‘I think most people are blinded by the convenience of whatever service or product they have without actually looking deeper and realizing, oh wait, there’s all this other stuff that goes behind this that I wasn’t aware of that’s potentially going to bite me in the ass later.’ Despite this contention that ‘most people’ were probably unaware of the consequences of information disclosure, none of the participants suggested that federal regulation was necessarily an appropriate course of action to address mobile privacy concerns. 
We argue that these young people’s reluctance to claim a role for policy interventions about mobile privacy, instead likening privacy protection to an individual responsibility, reflects a neoliberal trend in media policy more broadly that frames the citizen as consumer (Livingstone and Lunt, 2007; Thorson, 2012). In our focus group discussions and in federal regulatory discourse, citizen needs and the public good is replaced by consumer demands and fair business practices. The 2013 CRTC consultation on the wireless code was emblematic in this regard, in its ‘development of a mandatory code for all mobile wireless service providers to address the clarity and content of wireless service contracts and related issues for consumers’ (CRTC, 2013). Similarly, in our focus groups about mobile privacy, participants often described themselves as consumers making choices in a mobile marketplace based on issues of cost and convenience. The lack of privacy in networked environments sometimes bothers these young people, but because it has not typically been experienced as a significant threat, they mostly feel ambivalent about mobilizing around privacy policy–making. 
The role for the digital policy literacy framework in this context is to provide a rejoinder to the dominant consumer framing of privacy, in the form of a citizen–centric framing, whereby privacy is seen as a fundamental right in a democratic society. Given that privacy is shaped by current mobile and online marketing practices — and that government breaches of privacy also rest on commercial infrastructures of data collection, starkly illuminated by the recent revelations about the U.S. National Security Agency’s Prism surveillance program’s reliance on social media data (Greenwald and MacAskill, 2013; Rushe, 2013) — a citizen–focused framing lends a necessary policy imperative to delimit the power of commercial actors in determining how people’s information gets collected and used. Literacy around not only why information privacy is important, but also how it might be guaranteed through policy measures, is the first step toward getting people to participate in policy–making. Such an intervention into digital literacy more broadly is especially crucial for young people growing up with digital and mobile technologies as ubiquitous communication infrastructure. For youth entering civic life through technology, literacy about digital policy issues will shape their lives as both consumers and citizens as they negotiate the constantly changing contours of participation.

Hot Art

Amid thoughts of restitution and the Australian Proceeds of Crime regime, the 'truthiness' of people such as Mortenson and controversy over The Wolf of Wall Street (Belfort claims that he has been libelled by the Wall Street Journal) it is interesting to see the sentence on Vilma Bautista in New York.

The former personal secretary to Imelda Marcos was sentenced yesterday to two to six years in state prison for conspiring to sell Impressionist paintings belonging to the Philippine government.

The canvases, formerly held in the Marcos apartment in Manhattan, disappeared when Ferdinand Marcos was overthrown as president in 1986. They included Monet's 1881 L’Eglise at la Siene a Veuthevil, Marquet’s 1946 Le Cyprès de Djenan Sidi Saïd and Sisley’s 1887 Langland Bay.

David Chaikin's 2000 'Tracking The Proceeds of Organised Crime: The Marcos Case' [PDF] notes suggestions that Marcos and associates snaffled upwards of US$5bn. In one settlement in 1991 civil actions by the US regarding ownership of "certain currency, securities, gems, antiques and other property" ended with the Philippine Government agreeing to dismiss US civil claims against the Marcos family in return for those kleptocrats agreeing to transfer certain assets to the Philippines.

Bautista was also ordered to pay US$3.5m in state/city taxes, attributable to the 2010 sale of Monet's 1899 Le Bassin aux Nymphéas for US$43m.

The sale of that work was apparently uninhibited by the inability of Bautista to prove title apart from a single-page document purportedly signed by Mrs. Marcos in 1991 and witnessed by a notary who wasn't present when Marcos supposedly put her paw marks on the paper.

Last year the New York Times commented that
Cyrus R. Vance Jr., the Manhattan district attorney, likened the conviction to a “white-collar cold case” that came to light only because prosecutors had analyzed Ms. Bautista’s finances and tax returns. He said the case also highlighted the darker side of the art market. “We have solved the mystery of a painting that has been missing for decades,” he said. 
Ms. Bautista’s lawyers, Susan and Fran Hoffinger, had argued to the jury that their client was authorized to act as Mrs. Marcos’s agent and had intended to send some of the proceeds to her, but could not because the district attorney’s office had seized the money. 
Prosecutors never accused Ms. Bautista of stealing, but they presented evidence that she had hidden the paintings at her apartment on East 64th Street. Beginning in July 2009, as she was running short of money, she enlisted her nephews to find a private collector willing to buy the work. 
The jury was shown more than a dozen emails sent between Ms. Bautista’s nephews outlining their plans to sell the paintings on her behalf. The two men expressed worries about being caught and going to jail. … 
In April 2011, she failed to report the $28 million windfall on her state tax return and paid about $80 in taxes.

Prescribed Information

The Canberra Times reports that former Australian Federal Police officer Alexander Preston-Stanley has pleaded guilty to copying an intimate video he found on the mobile phone of a victim who came to the Tuggeranong Police Station in April for help last year.

Preston-Stanley, who has not been convicted, reportedly discovered the video while browsing through the victim's phone, making a copy of what the CT characterises as "explicit material", which he later showed to another officer. During a subsequent visit to the victim's house that colleague realised that the victim was the woman in the video video. The colleague reported Preston-Stanley.

The CT states that Preston-Stanley was charged with making a record of prescribed information, a crime under secrecy provisions of the Australian Federal Police Act.
The case came before the ACT Magistrates Court on Tuesday, where Commonwealth prosecutors described Preston-Stanley's actions as a breach of his duty, an abuse of his position, and an abuse of the victim's trust in police. 
The prosecution said the victim's privacy had been violated in a "very serious manner", and the circumstances of the video were humiliating and embarrassing when seen by someone who did not have her permission. 
The court heard there were only a handful of similar cases involving officers making records of prescribed information in the past, and the prosecution asked for more time to obtain a pre-sentence report on Preston-Stanley. 
Section 60A of the Australian Federal Police Act 1979 (Cth) provides that
(2) A person to whom this section applies must not, directly or indirectly:
(a) make a record of any prescribed information ; or 
(b) divulge or communicate any prescribed information to any other person; except for: 
(c) the purposes of this Act or the regulations; or 
(d) the purposes of the Law Enforcement Integrity Commissioner Act 2006 or regulations under that Act; or 
(e) the purposes of the Witness Protection Act 1994 or regulations under that Act; or (ea) the purposes of the Parliamentary Joint Committee on Law Enforcement Act 2010 or regulations under that Act; or 
(f) the carrying out, performance or exercise of any of the person's duties, functions or powers under Acts or regulations mentioned in paragraphs (c), (d), (e) and (ea). 
Penalty: Imprisonment for 2 years.
In that section "personal information" has the same meaning as in the Privacy Act 1988 (Cth) and "prescribed information" means
information obtained by a person to whom this section applies:
(a) in the course of carrying out, performing or exercising any of the person's duties, functions or powers under: (i) this Act or the regulations; or (ii) the Law Enforcement Integrity Commissioner Act 2006 or regulations under that Act; or (iii) the Witness Protection Act 1994 or regulations under that Act; or 
(b) otherwise in the course of the person's service, employment or engagement under Acts or regulations mentioned in paragraph (a).

13 January 2014

Tobacco and the TPPA

'International trade law, plain packaging and tobacco industry political activity: the Trans-Pacific Partnership' by Gary Fooks and Anna B Gilmore in (2014) 23(1) Tobacco Control comments that
Tobacco companies are increasingly turning to trade and investment agreements to challenge measures aimed at reducing tobacco use. This study examines their efforts to influence the Trans-Pacific Partnership (TPP), a major trade and investment agreement which may eventually cover 40% of the world's population; focusing on how these efforts might enhance the industry's power to challenge the introduction of plain packaging. Specifically, the paper discusses the implications for public health regulation of Philip Morris International's interest in using the TPP to: shape the bureaucratic structures and decision-making processes of business regulation at the national level; introduce a higher standard of protection for trademarks than is currently provided under the Agreement on Trade Related Aspects of Intellectual Property Rights; and expand the coverage of Investor-State Dispute Settlement which empowers corporations to litigate directly against governments where they are deemed to be in breach of investment agreements. The large number of countries involved in the TPP underlines its risk to the development of tobacco regulation globally. 
The article notes that
Leaked text of a draft TPP chapter on ‘regulatory coherence’ suggests that negotiating parties are seeking to use the TPP to stipulate guidelines for regulatory rulemaking and review along the lines of the Better Regulation and regulatory review agenda in the European Union (EU) and USA. This represents a departure from existing investment agreements and is part of a global process of regulatory reform that draws heavily on US administrative law and its cost-benefit approach to regulatory review. The formal purpose of the chapter is to establish rules for regulatory formation and review that will reduce the likelihood of TPP countries creating and maintaining regulations that are inconsistent with the agreement. Some of the guidelines proposed are consistent with well-informed, methodical decision-making. However, they also promise to increase tobacco companies’ capacity to influence health policy by increasing their access to the policymaking process, augmenting their ability to challenge regulation and reinforcing their existing information advantage. 
Three provisions in the draft chapter are likely to facilitate tobacco companies’ policy access. The first is a recommendation that parties to the TPP establish a national coordinating body with the power to review whether regulatory measures adhere to ‘good regulatory practices’. A similar system of review is practiced by the Australian Office of Best Practice Regulation, a regulatory oversight body in Australia which monitors how government departments and agencies develop regulation. In 2010, the office concluded that a draft regulatory impact assessment prepared by the Department of Health and Ageing for the Australian plain packaging law did not satisfy best practice guidelines. The policy was subsequently adjudged ‘non-compliant’ and earmarked for a postimplementation review within 2 years of it taking effect. Reviews such as this provide tobacco companies with increased opportunities to challenge and shape regulation. In the case of the TPP, which recommends that existing, as well as new, regulation is regularly appraised, these opportunities are likely to be substantial. The second, a recommendation that the national coordinating body ensures that all ministries with an interest in a particular regulation participate in its development, is likely to increase involvement of non-health ministries who are more likely to promote tobacco industry interests. The third provision is a recommendation for collaboration between governments and ‘their respective stakeholders’, including dialogue, meetings and exchange of information. British American Tobacco played a key role in a broad alliance of multinational corporations promoting a similar requirement for stakeholder consultation in EU policymaking and the tobacco industry has subsequently used such requirements in its efforts to undermine Article 5.3 of the WHO Framework Convention on Tobacco Control which, among other things, seeks to reduce tobacco industry access to policymakers. 
A recommendation in the draft to integrate impact assessments into policy may also enhance tobacco companies’ influence over policymaking. Existing research on British American Tobacco's efforts to embed impact assessments into the policymaking processes of the EU indicates that their primary aim was to formalise their ability to exploit information asymmetries that commonly characterise business-government relations. Finally, the draft chapter also proposes that governments ensure their regulatory bodies provide access to ‘supporting documentation’ relating to regulatory measures, analyses and data. Such detailed disclosure exacerbates existing information asymmetries between business and government, thereby increasing the industry's leverage to challenge decision-making.
 The authors conclude -
Trade and investment agreements have been criticised for transferring state decision-making from the national to the international level and providing transnational corporations with a supranational court of appeal with which to challenge the capacity of governments to introduce new public health legislation. PM Asia's continuing action against the Australian government under the Hong Kong-Australia BIT given its defeat in the Australian High Court over the 2011 Act illustrates this point well. PMI's formal request to the USTR that the TPP be used to extend IP rights, harmonise the process of regulatory formation, and provide a comprehensive system of ISDS reflect the contents of leaked drafts of the TPP agreement. These suggest the TPP will extend IP protection to trademark use, strengthen corporate influence in regulatory formation, and provide tobacco companies with extensive powers to litigate against governments directly. Although the extension of IP protection is subject to exceptions for measures aimed at promoting public health, the precise scope of these exceptions is unclear. Consequently, all three measures are likely to increase the tobacco industry's policy influence and to deter governments from introducing plain packaging, albeit in different ways. First, by increasing litigation risk for legislating states, the extension of IP protection to trademark use will increase tobacco companies’ power to present the costs associated with plain packaging and other policies affecting pack design as prohibitively expensive. Likewise, proposals such as regulatory review, stakeholder consultation and the use of impact assessments provide the industry with a range of tools to access and feed information into health policymaking. Combined with the TPP's proposal for states to provide access to ‘supporting documentation’ relating to regulatory measures, analyses and data, which may exacerbate existing information asymmetries between states and multinational corporations, these reforms are likely to facilitate challenges to regulatory innovation under international law. By underpinning these measures with ISDS, which increases the economic costs associated with litigation and institutionally embeds uncertainty in treaty interpretation, the TPP provides a powerful new toolbox for the industry in preventing the introduction of plain packaging and other innovative health measures. 
Finally, the lack of transparency in the TPP negotiations illustrates the limitations inherent in the state-centric nature of Article 5.3 of the WHO Framework Convention on Tobacco Control. Article 5.3 aims to limit tobacco industry involvement in health policy by, among other things, requiring parties to the Convention to make interactions between the tobacco industry and public officials as transparent as possible. The USA is a non-party to the Convention and is, therefore, under no obligation to make public any involvement of tobacco companies, either directly or through third parties, in TPP policymaking. This enables the tobacco industry to undermine APEC states’ efforts to implement Article 5.3 and influence health policy remotely through TPP negotiations. 
Key messages 
The TPP threatens to increase the tobacco industry's policy influence and increase the litigation risks of plain packaging legislation and other innovative tobacco control measures. 
Parties to the Framework Convention on Tobacco Control should consider how Article 5.3 can be implemented to prevent tobacco companies from influencing public health policy remotely through trade and investment agreements. 
Agreements involving non-party states raise additional complications which need to be raised during treaty negotiations.

The Coif of Minerva (and the cash register)

'Lions in conflict: Ellesmere, Bacon and Coke - The prerogative battles' by James Spigelman in (2013) 38(1) Australian Bar Review 1 offers a view of Coke CJ.

It is the third in a series of lectures, the first being 'Lions in conflict: Ellesmere, Bacon and Coke - the years of Elizabeth' in (2007) 28 Australian Bar Review 254 and 'Lions in conflict: Ellesmere, Bacon and Coke - treason and unity' in (2008) 30 Australian Bar Review 144.
When Sir Edward Coke was appointed Chief Justice of the Court of Common Pleas in 1606, he was the first of a century who had never appeared as an advocate in that court. Such appearances were restricted to the handful of senior counsel called sergeants-at-law - the QCs of the day. Coke had only been coifed as a serjeant the day before his elevation. The coif was a white silk cap work in court, which Coke once called the helmet of Minerva, traditionally the goddess of wisdom, whom he called, revealingly the goddess of counsel. 
Coke brought to his new task the full force of his considerable intellect. His encyclopaedic knowledge and his output were prodigious. The Latin inscription on his tombstone correctly describes him as having been a 'living library'. However, his mind was so narrow and unsubtle, so incapable of jettisoning detail, so often inconsistent, that no one has ever speculated that he wrote the works of Shakespeare. Macaulay described him as a:
pedant, bigot and brute [but] ... an exception to the maxim ... that those who trample on the helpless are disposed to cringe to the powerful. …
Coke’s aggressive pursuit of the institutional interests of his new Court became as fervid as his advocacy of the interests of the King had been prior to his appointment. His transmogrification was as passionate and as complete as that of Thomas Becket’s transition from Henry II’s Chancellor to the office of Archbishop of Canterbury, a matter with which I have already dealt. As a regrettably anonymous pundit once put it: “Where you stand depends on where you sit”.
Spigelman notes that
His motives were mixed. In Isaiah Berlin’s dichotomy, he was a hedgehog not a fox, with his one big idea being the ancient origins of the common law – a fable to which I will return in the next lecture. There is no doubt he genuinely believed in the conviction of the common law profession, led by the judges, of the continuity and centrality of the common law. Indeed, he did more than anyone else to perpetuate that intellectual tradition. 
Further, like any new leader of an organization, his capacity for leadership and his own power in the community depended on acceptance of an institutional imperative to protect and expand his organisation’s dominion. It was more than simply convenient that aggressively pursuing these institutional interests also served his financial interests and that of the judges of his Court and of the profession that practiced before them. The judges kept the fees of providing “justice” which, at the time, was an exceptionally lucrative service industry. Adam Smith himself, in The Wealth of Nations explained how competition between the common law courts, driven by financial incentives, was the principal explanation of the high quality of the common law system. Others have shown how this competition operated by developing practices and substantive principles in such a way as to favour plaintiffs, who decided which court would hear the case. 
Throughout their careers, each of Ellesmere, Bacon and Coke, were careful to develop their wealth, Bacon least successfully. Perhaps for that reason, he alone articulated the limits of this pursuit. He explained, in his essay “Of Riches”:
As the baggage is to an army, so is riches to virtue. It cannot be spared or left behind, but it hinders the march and the care of it sometimes loses or disturbs the victory. Of great riches there is no real use, except it be in the distribution, the rest is but conceit.


Amid controversy over claims of regulatory overreach and claims that Queensland Police are requiring recreational motorcyclists (as distinct from members of outlawed motorcycle gangs) to remove tshirts or leathers in order to facilitate photography of tattoos it is worth looking at the state legislation.

Section 40 of the Police Powers & Responsibilities Act 2000 (Qld), noted in the past, provides that -
Person may be required to state name and address 
40(1) A police officer may require a person to state the person's correct name and address in prescribed circumstances. 
40(2) Also, the police officer may require the person to give evidence of the correctness of the stated name and address if, in the circumstances, it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated name or address or to otherwise be able to give the evidence. 
40(2A) If— (a) a police officer reasonably suspects the person is a person mentioned in section 41(ba)(i) or is a person mentioned in section 41(ba)(ii); and (b) the person can not provide evidence of the correctness of the stated name or address when the requirement is made; the person may be detained for a reasonable time to confirm the correctness of the stated name and address. 
40(2B) If the police officer reasonably suspects it is necessary to do so to confirm the correctness of the stated name given by a person mentioned in subsection (2A), the police officer may take or photograph all or any of the person's identifying particulars. 
40(2C) If the person is not proceeded against for an identifying particulars offence within 12 months, the identifying particulars must be destroyed within a reasonable time in the presence of a justice.
'Identifying Particulars' are defined as "any of the following" -
(a) palm prints; 
(b) fingerprints; 
(c) handwriting; 
(d) voiceprints; 
(e) footprints; 
(f) a photograph of the person's identifying features; Examples for paragraph (f)— 1 photographs of scars or tattoos; 2 photographs of the person 
(g) a measurement of any part of the person's body, other than the person's genital or anal area, buttocks or, for a female, breasts.

12 January 2014


My chapter on financial criminals features the much hyped Jordan Belfort, operator of the Stratton Oakmont  boiler-room 'pump & dump' scam currently being celebrated in Martin Scorsese's film The Wolf Of Wall Street.

One of the fascinations of people such as Alan Bond, Allen Stratton, Jabez Balfour, Whittaker Wright, Jordan Belfort and Peter Foster is their ability to picture themselves as victims. Some of them are apparently lie with a straight face before, during and after conviction … enough so to convince themselves, their victims and bystanders.

The Wall Street Journal claims - accurately or otherwise - that Belfort "has been shirking court-ordered restitution to his victims".
Mr. Belfort is allegedly living off book proceeds, movie royalties and motivational-speaker fees in Australia, where his assets are out of reach of U.S. authorities. ...
A lawyer for Mr. Belfort, Nicholas De Feis, said his client had made every restitution payment required of him and said Mr. Belfort has pledged to turn over 100% of book and movie royalties to victims of his fraud scheme. He denied prosecutors' claims that Mr. Belfort had relocated to Australia. Mr. Belfort lives in Manhattan Beach, Calif., his lawyer said, and had traveled to Australia for work reasons.
"He's made payments as he was required to make payments and as he earned income," said Mr. De Feis. "He has never run from his obligations."
The WSJ states that
Prosecutors went public with their frustrations this week after Mr. Belfort made what they claimed were false statements touting his generosity toward his victims. In a Dec. 29 post on Mr. Belfort's Facebook page, the convicted fraudster and former head of the Stratton Oakmont brokerage firm said he was going above and beyond the court order to turn over 50% of his gross income and would instead give 100% of his book and movie proceeds to victims.
"For the record: I am not making any royalties off the film or the books, and I am totally content with that," Mr. Belfort said in that post.
That didn't sit well back in Brooklyn, where prosecutors had filed a motion placing Mr. Belfort in default two months earlier. "We want to set the record straight," said Mr. Nardoza. "Belfort's making these claims, and they're not factual. He's in Australia and using that loophole to avoid paying."
For example, Mr. Belfort received $940,000 in 2011 selling movie rights to his story, according to court documents, but that year paid just $21,000 in restitution and claimed a $24,000 deduction on his income tax for the payment. ...
Federal prosecutors indicted Mr. Belfort in 1998 for securities fraud and money laundering. He pleaded guilty and was ordered to pay $110.4 million in restitution to his victims. The court ordered him to pay 50% of gross income to victims until the full amount had been repaid. In exchange for cooperating with investigators, Mr. Belfort received a reduced sentence of three years in prison.
Mr. Belfort has paid $11.6 million in restitution so far, but the vast majority of that came in the form of properties forfeited as part of his plea agreement, according to prosecutors. While serving a three-year period under court supervision after his April 2006 release from prison, Mr. Belfort paid the required 50% of his income, though he made little money in that period, according to prosecutors.
Once that probationary period ended in 2009, however, prosecutors said Mr. Belfort stopped paying. He moved to Australia, complicating the government's efforts to track and seize his assets, they said. Prosecutors believe Mr. Belfort's income began to grow as his motivational-speaking business took off, royalties from two books picked up, and a lucrative movie deal was signed, according to Mr. Nardoza.
In October 2013, prosecutors filed a motion placing Mr. Belfort in default on his restitution payments, but they subsequently withdrew it to pursue a negotiated settlement. They declined to comment on the progress of those talks, which are continuing. Mr. Belfort's lawyer also declined to comment on the talks.


The Age reports that the Victorian Government "will become the first state to erase the criminal records of men who were previously convicted for having gay sex", presumably on the model of the opt-in expungement provisions of the UK Protection of Freedoms Act 2012 noted here.
The move will end decades of anxiety for countless men who were prosecuted before homosexuality was decriminalised in Victoria in 1981. Before decriminalisation, men who had consensual sex with other men were convicted of crimes such as ''buggery'' and ''gross indecency with a male person'', restricting them from travelling, volunteering or applying for jobs such as teaching. …
Premier Denis Napthine will reportedly state that
"these convictions have been allowed to stand for far too long'' and had stigmatised many people who had been forced to live with the burden of a criminal record. 
''It is now accepted that consensual acts between two adult men should have never been a crime,'' Dr Napthine said. ''The Liberal government, led by Sir Rupert Hamer, recognised this and decriminalised homosexual sex in the 1980s. We also recognise the social and psychological impacts that have been experienced by those who have historical convictions for acts which would no longer be a crime under today's law.'' 
The changes follow similar laws recently introduced in Britain by David Cameron's Conservative government, which allow an estimated 16,000 convictions to be wiped from police records. In Victoria, legislation will be introduced this year, paving the way for a showdown between the state Coalition and Labor over the so-called ''pink vote'', particularly in electorates such as Prahran and Albert Park. 
Under the policy, anyone with a historical conviction for an offence relating to homosexual acts would be able to apply to have their conviction expunged, provided the offence is not a crime under current legislation. 
The application would then be reviewed to ensure the offence related to consensual sex with a person of legal age. If determined the offence was no longer a crime under existing law, the record would be wiped clean. Convictions for non-consensual sex or sex with a minor will remain.
We will now wait, presumably for quite some time, for the other jurisdictions to follow suit. No chance, alas, of a general apology from the ADF for dishonourable discharge of men with a same sex affinity.

The Victorian development appears to reflect the Human Rights Law Centre paper [PDF]. Its recommendations are applicable to the other jurisdictions -
Recommendation 1: (primary offences) 
Any future scheme to expunge gay sex offences should include the following historical offences:
  • consensual ‘buggery’ or attempted ‘buggery’; 
  • consensual acts of gross indecency between male persons; 
  • indecent assault of a person who is a consenting party; 
  • loitering or soliciting for homosexual purposes; 
  • ‘offensive behaviour’ charges under current and repealed legislation, for acts committed in public which would not be considered offensive by today’s standards; and 
  • ‘offensive behaviour’ charges for acts committed in public spaces that could not reasonably be observed by a member of the public. 
Recommendation 2: (other LGBTI people) 
The scheme should accommodate the expungement of offences used against:
  • people who did not conform with gender stereotypes, including in dress, mannerisms or appearance, including female impersonators/ drag queens, transvestites and transgender people (including transsexuals, gender queer and/or cross-dressers) where such conduct would be found to be lawful today; and 
  • lesbians and other same-sex attracted women, where the criminal conduct would have been found to be lawful had it been engaged in by persons of the opposite sex and therefore lawful today. Further research should be undertaken to identify the offences used against these individuals 
Recommendation 3: (associated and inchoate offences) 
The scheme should accommodate the expungement of:
  • convictions for offences that would not have taken place had it not been for a primary offence referred to in Recommendation 1 above eg. resisting arrest; and 
  • convictions for inchoate offences relating to a primary offence including, for example, ‘attempts’. 
Recommendation 4: (cautions, warnings, fines)
  • A proposed scheme in Victoria should, as is the case in the UK, allow for expungement of cautions, warnings, fines and other reprimands in relation to the specified offences. 
  • A review of police and other records should be undertaken to gather further information about how cautions, warnings, fines and other reprimands may be disclosed to the public and removed from a person’s record.   
Recommendation 5: (age of consent)
  • A person convicted of an offence for consensual sexual activity with another person, which would not currently be an offence under age of consent laws, should be entitled to have their conviction and any associated records expunged. 
Recommendation 6: (effect of expungement) 
In summary the scheme should:
  • remove the conviction from a person’s criminal record; 
  • remove any possibility that a person may be treated adversely in law for the former conviction; 
  • ensure there is no capacity for the conviction to be made public and protect the privacy of affected individuals; 
  • authorise a person not to disclose the fact of their past gay sex conviction (remove the risk of perjury or contract breach); 
  • prohibit disclosure of the fact of the conviction by other relevant persons; and 
  • repair damage caused by the conviction. 
Recommendation 7: (electronic records) 
The proposed scheme in Victoria must provide that all electronic records of expunged offences must be permanently deleted. This includes records held by:
  • Victoria Police; 
  • Victorian Courts; 
  • Office of Public Prosecutions; and 
  • Department of Justice and other Government departments including documents relating to:  working with children checks; and the registration of sex offenders. 
Recommendation 8: (paper-based records)
  • Consideration should be given to whether deletion of paper-based records is appropriate and/or practical and, in the alternative, such paper-based records should be redacted or, if redaction is not appropriate, annotated to make it clear that the conviction and the circumstances leading to conviction have been ‘disregarded’ or ‘expunged’. 
Recommendation 9: (perjury and contractual terms)
  • Once expunged, a proposed scheme in Victoria should expressly provide that the person is not required by law to disclose the former conviction while under oath. The proposed scheme should follow the UK and Australian federal model under section s85Z of the Criminal Records Act 1914 (Cth). 
  • The proposed scheme should also provide that a person may deny an expunged conviction in contract terms and make a contract term requiring such information unlawful. 
Recommendation 10: (explicit prohibition on discrimination)
  • A proposed scheme in Victoria should expressly provide that discrimination on the basis of a former gay sex conviction is unlawful. 
  • A contract term must not require a person to disclose an expunged conviction and is unlawful to the extent that it does so. 
Recommendation 11: (consequential amendments to other statutes) 
  • Care should be taken when drafting proposed legislation to ensure that in addition to removal from criminal history checks, expunged convictions are not considered ‘relevant’ offences for the purpose of Working With Children Checks and other administrative decisions. 
  • The Victorian Government should conduct an audit to identify any necessary consequential amendments to other legislation to remove possible discrimination against people with expunged convictions. 
Recommendation 12: (expungement upon application)
  • The expungement process should be as simple and easy for affected men as possible and where possible avoid the need for men to apply to have a conviction expunged. 
  • The Victorian Government should review access to and content of police records for the purpose of devising a scheme that minimises the impact on individuals. 
  • Based on how records are stored and what information is recorded, consideration should be given to whether some or all of the relevant offences can be automatically expunged. 
Recommendation 13: (application process) 
  • The application process should be simple and straightforward 
  • If an application is refused, the applicant should be provided with reasons and relevant records forming the basis of the refusal. 
  • Internal and external review processes should be established. 
  • Judicial review of an administrative decision under the scheme should be expressly preserved in the legislation. 
  • The scheme should ensure the privacy of all persons applying for expungement or applying to an internal or external review body. 
Recommendation 14: (representation for applicants)
  • Applicants should be given an opportunity in the application form or application process to appoint a representative to act on their behalf and receive correspondence relevant to the application. 
Recommendation 15: (posthumous expungement)
  • The estate or next of kin of a person who lived with a conviction for a gay sex offence should be permitted to apply for expungement posthumously. 
Recommendation 16: (location of relevant records)
  • A review of all possible sources and locations for records be undertaken to determine which agencies should be requested to provide records to assist the decision-making process.   
Recommendation 17: (publicise the scheme) 
The following steps should be taken to publicise the scheme:
  • develop a community education campaign and communication strategy in partnership with the LGBTI community, aged care providers, volunteer, employer and employee associations and unions and Victoria Police (who administer criminal record checks); 
  • include a notice on criminal record check and Working With Children Check forms and relevant websites about the scheme and how to apply for expungement if a person thinks they may be eligible; and 
  • ensure that where a person’s criminal record check or working with children check discloses a conviction listed in the scheme from the relevant period, Victoria Police should provide information about the scheme to that person with the results. 
Recommendation 18: (formal repudiation)
  • The Victorian Government should formally acknowledge that the criminalization of homosexuality was wrong and repudiate the laws in question. 
Recommendation 19: (apology)
  • The Victorian Government and Victorian Police should also issue a formal apology for past discriminatory laws and practices targeting same sex attracted men in Victoria, taking into account established principles for formal apologies articulated in the 2012 Senate Committee report on forced adoption. 
Recommendation 20: (support and assistance for applicants)
The Victorian Government should fund:
  • independent professional support and counselling services for LGBTI people following the introduction of an expungement scheme; 
  • an independent LGBTI organisation to provide guidance and advice to affected individuals and assist them through the application process.
The Victorian Premier's media release is here.