12 December 2017

Digital Rights

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

Citizenship Shopping

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


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

11 December 2017

Nudges and Capabilities

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

Witches and Institutional Capacity

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

Markets and Corporate Personhood

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

28 November 2017


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

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

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

26 November 2017


'Surveying the Law of Emojis' (Santa Clara University Legal Studies Research Paper, 8-17) by Eric Goldman comments
Everyone loves emojis! It’s easy to see why. Historically, most online communications have emphasized text, and emojis add much-needed emotional content to text-driven communications—and often help people express themselves more precisely. Due to the enthusiastic embrace of emojis, we are witnessing a historic change in how we communicate online. 
This article surveys three significant ways the emoji revolution will impact the law. 
First, questions about what emojis mean will arise in a wide range of legal doctrines, from criminal law to contracts. Our standard interpretative tools generally can handle new communicative technologies, but several aspects of emojis will require careful consideration. Most significantly, senders and receivers will unexpectedly see different versions of an emoji due to technological intermediation, leading them to make reasonable—but different—interpretations of the same communication, with potentially adverse consequences for one or both parties. The article will explore some steps that would reduce the risks of these misunderstandings. 
Second, emojis will often qualify for copyright and trademark protection. However, IP protection encourages platforms to differentiate their emoji implementations, which exacerbates the risks of miscommunications and misunderstandings. To mitigate this outcome, IP protections for emojis should be interpreted narrowly. 
Third, emojis create some issues for judicial operations, including if and how judges will display emojis in their opinions, if emojis in court opinions will be searchable, and how best to present emojis as evidence to fact-finders.

23 November 2017


'Leak-Driven Law' by Shu-Yi Oei and Diane Ring in (2018) 65 UCLA Law Review comments
Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries. 
The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially and economically beneficial. This Article argues, however, that the conventional wisdom is too simplistic. In addition to its clear benefits, leak-driven lawmaking carries distinctive risks, including the risk of agenda setting by third parties with specific interests and the risk associated with leaks’ capacity to trigger non-rational responses. Even where leak-driven lawmaking is beneficial overall, it is important to appreciate its distinctive downside risks, in order to best design policy responses. 
This Article is the first to thoroughly examine both the important beneficial effects of tax leaks, and their risks. It provides suggestions and cautions for making and enforcing tax law, after a leak, in order to best tap into the benefits of leaks while managing their pitfalls. 

08 November 2017

Postgrad Complaints

The NSW Ombudsman Discussion Paper Complaints about supervision of postgraduate students suggests steps that could be taken by universities to refine their policies and practices to specifically address conflicts that may arise in postgraduate supervisory arrangements.

The paper comments
The NSW Ombudsman has jurisdiction over all public universities in NSW – ten universities in all. We receive and investigate complaints from students about administrative actions relating to their enrolment, course progress, supervision and termination of their studies. At the Ombudsman’s office, we have worked with universities to develop tailored guidance for dealing with the unique issues that can arise in university complaints. An important stage in this work was in 2015 when we published, together with other Australian Ombudsman offices, Complaint Handling at Universities: Australasian Best Practice Guidelines. As the foreword to those guidelines observed about university complaints, ‘Mishandled complaints have a high potential cost, both financially and in damage to reputations’. For several years, we have been looking into complaints that relate to postgraduate supervision in NSW universities. We have received a steady number of these complaints and they are often complex and time consuming to examine. They are also often accentuated by career and personal concerns reflected in the breakdown of research relationships between postgraduate students and supervisors.
In January 2016, we released a draft discussion paper to university complaint handlers in NSW. There was strong interest in the topic, with submissions from universities and discussions between Ombudsman and university staff and with representatives from postgraduate student organisations.
We have now decided to take the issue a step further by publishing a revised discussion paper that will be made more widely available on our website. This revised paper builds on the consultation that has occurred to date. It includes a number of We invite submissions or comments from any interested parties by 31 January 2018 particularly examples of initiatives that have successfully resolved conflicts in postgraduate supervision. We will then decide if further action is needed to develop best practice guidelines or share practical examples and ideas among universities. ....
This project arose from the steady number of complaints the NSW Ombudsman has received over many years about postgraduate supervision in NSW universities. These complaints can be complex and take time and resources to examine. They often also have a personal aspect which makes them especially challenging to deal with.
In January 2016, we published a draft discussion paper for university complaint handlers and received many helpful submissions in reply. We also reviewed relevant university policies, surveyed all NSW universities, conducted follow-up interviews with university staff at each institution, and spoke with representatives of several postgraduate student organisations. This current discussion paper has resulted from those conversations and the strong interest that we have encountered on this topic.
Universities in NSW have told us that complaints by postgraduate students are not overall more frequent than other kinds of student complaints. Allegations of academic or non-academic misconduct in postgraduate supervision are not sustained after investigation any more often than other student allegations. However, universities generally recognise that there is a potential for postgraduate complaints to be complex and bitterly-contested and significant resources can be spent in dealing with them.
This discussion paper aims to help all those involved share what they feel to be best practice in complaint handling in this field. This will hopefully facilitate a constructive exchange of ideas and experience. There is no implicit suggestion in this project that universities have dealt poorly with these matters in the past, or that some universities have performed poorly compared to others. A number of universities have commented that the conversations leading to this discussion paper have been beneficial. For example, one university found that useful information it had published about dealing with conflicts between supervisors and students on a FAQ page on its website appeared only in the ‘for supervisors’ version of the page.
Universities have also moved of their own accord to address issues in response to the questions raised in our survey and follow-up interviews with interested parties. For example, some universities found that their policies were not as clear as they could be and have undertaken to revise them.
The paper comments that ' Difficulties and conflicts will always arise between postgraduate students and supervisors. The sensible path forward is therefore to develop a structured framework that acknowledges this possibility and implements steps to avoid or deal with it'. It accordingly suggests  ten strategies for inclusion in such a structured framework:
1. Universities should prepare accessible written guidelines for students and supervisors on dealing with conflicts and disputes – including counselling, appointing a new supervisor, and referring disputes for conciliation. These guidelines should advise students and supervisors that problems can arise in all supervisory relationships that are not the fault of either party.
2. Universities should consider developing or continuing a structured training program for supervisors on the skills of supervision. This training should contain practical advice on dealing with problems in the supervisory relationship, such as ‘having difficult conversations’.
3. Members of supervisory panels should be advised when they start their role to take note of signs of deterioration in supervisory relationships, and report these to the conflict resolution officer in postgraduate administration or the ‘mentor’ if one has been appointed to the panel.
4. Students and supervisors should be encouraged to keep a written record of their supervisory arrangements, expectations and mutual responsibilities. Both could be encouraged to co-sign any important records.
5. Universities should implement a procedure whereby a student, after their annual performance review, can submit a confidential report on perceived problems in their supervisory relationship.
6. Universities should nominate a designated officer – a ‘go-to’ person – that a student or supervisor can speak to if they are experiencing significant difficulties in a supervisory relationship. This designated officer (or panel of officers) could be located or administered by the central university office responsible for postgraduate administration. They could be given a recognisable title, such as ‘conflict resolution officer’.
7. A designated student ‘mentor’ could be appointed to the supervisory panel for each student who has changed their principal supervisor more than once – with the exception of changes arising from matters such as the death, illness, resignation or retirement of a supervisor. The mentor’s role would be to monitor the general supervisory relationship, independent of the substance of the research project. It should also be understood that the appointment of a mentor is not seen as a negative or punitive response to the changes in supervisory arrangements.  Universities could also consider, on an individual basis, whether a ‘mentor’ should be appointed to a supervisory panel in other special circumstances. For example, if the principal supervisor is undertaking supervision for the first time – or the principal supervisor was involved previously in a sustained formal grievance process or was the subject of serious allegations of bullying or harassment. Including the mentor on the supervisory panel should be seen as a safeguard measure to minimise potential problems and provide independent feedback to the supervisors – not as a performance management measure that reflects on the supervisor’s suitability.
8. Universities should consider establishing a panel of internal university mediators, conciliators or trained dispute-resolution specialists who are available – with the consent of the parties – to deal with unresolved conflicts between students and supervisors.
9. Universities should consider implementing a structured program for contacting students by email at designated stages of a research project, and inviting them to raise or discuss on a confidential basis any issues they may be experiencing with their supervision. The following is suggested text to include in the email:
The university recognises that postgraduate study can be stressful. The stress will be greater if you feel you have an unsatisfactory academic relationship with your supervisor. You may raise any concerns you have by replying to this email. Other options and procedures for dealing with problems you may be facing with your supervisor are outlined in the university’s guidance on postgraduate supervision, which is available at the following link: [a link to information on the university’s dispute–resolution or conciliation process]. If you believe your supervisor is acting improperly or unethically, you have the right to submit a formal grievance. The procedure for doing this is outlined in the university’s guidance on postgraduate supervision. The university will receive any concerns you raise on a confidential basis. However, it may be necessary to discuss an issue with your supervisor or members of the supervisory panel if we are going to further investigate your complaint. We will discuss this with you before contacting your supervisor.
10. Students should be made aware – both in their induction material and through other accessible policies or guidance material – of the independent complaint and appeal mechanisms that are available to them. This includes the right to complain to the NSW Ombudsman, the Australian Research Integrity Committee, The Anti-Discrimination Board of NSW, the Human Rights and Equal Opportunities Commission, the Tertiary Education Quality and Standards Agency, and the Independent Commission Against Corruption – as well as professional bodies, schools or boards that regulate careers in certain occupations.


"Beyond Bitcoin – Legal Impurities and Off-Chain Assets' (Queen Mary School of Law Legal Studies Research Paper No. 260/2017) by Chris Reed, Umamahesh, Sathyanarayan, Shuhui Ruan and Justine Collins comments 
Blockchain technology allows the creation of distributed ledgers. These distribute control among the players rather than requiring a centralised database, and so can reduce costs and speed up transactions. However, when it is used for assets which exist outside the blockchain itself, an unmodified adoption of the technology would bypass legal and regulatory requirements which, for these kinds of assets, cannot be bypassed without fundamental change to the law.
Building those requirements into any blockchain-based system introduces features which are not necessary for performing its core functions, and we call these ‘legal impurities’. The most important legal impurities required are those relating to identification of the parties, and introducing the ability of a trusted third party to make modifications to the ledger. Not only does introducing these legal impurities make fundamental changes to the concept behind blockchain, but it is also essential that they are implemented in ways which do not threaten the integrity of the blockchain as evidence.
'Is a ‘smart contract’ really a smart idea? Insights from a legal perspective' by  Mark Giancaspro in (2017) 33(6) Computer Law and Security Review 825-835  comments
Swift developments in the emerging field of blockchain technology have facilitated the birth of ‘smart contracts’: computerised transaction protocols which autonomously execute the terms of a contract. Smart contracts are disintermediated and generally transparent in nature, offering the promise of increased commercial efficiency, lower transaction and legal costs, and anonymous transacting. The business world is actively investigating the use of blockchain technology for various commercial purposes. Whilst questions surround the security and reliability of this technology, and the negative impact it may have upon traditional intermediaries, there are equally significant concerns that smart contracts will encounter considerable difficulty adapting to current legal frameworks regulating contracts across jurisdictions. This article considers the potential issues with legal and practical enforceability that arise from the use of smart contracts within both civil and common law jurisdictions.

07 November 2017


'African Drone Stories' by Kristin Sandvik in (2015) 8(2) Behemoth A Journal on Civilization comments
The process of normalizing drones throughout Africa has received little scholarly attention. Discussions of drone proliferation tend to assume that the drone industry is a monolithic, geographically concentrated entity, and that drone use will look the same and engender the same controversies, regardless of geography. The article aims to think through African drone proliferation by analyzing how drones and Africa are being construed as solutions to each other’s problems, and by exploring the interface between images of Africa and the notion of the drone as a game changer for development and security. The article also reads the African drone in the context of the early deployment of surveillance drones in Africa in the 1970s, as well as the legacy of technological imperialism and colonial airpower. The perception of Africa as being in need of external drone intervention dovetails with the drone industry’s efforts to identify and promote good uses for drones — efforts that are central to increasing the legitimacy of drones in the eyes of the Global North. Hence, the article argues that the ‘African drone’ has become a vehicle for the production and distribution of norms, resources, and forms of legitimacy that have implications for drone proliferation, both within and outside Africa.

History of Animal Law

'The Historical Development of Animal Welfare Law in Nineteenth Century Scotland' by Daniel James Carr examines 
the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.
Carr argues
This paper is confined to laying some historical groundwork by starting to look at the historical development of animal welfare law in Scotland. This is not a comprehensive treatment of the history of the legal development in Scotland: much of the paper is tentative, and, it also takes account of developments in England. It is hoped that this contribution might stimulate further research. Hopefully, the chapter will come to be situated within a broader possible research project on animal law in Scotland more generally, which would concentrate particularly on animal welfare law but could also encompass other areas of law dealing with animals. Therefore, this paper considers some of the early history of animal welfare law in Scotland, particularly in the early to mid nineteenth century. The paper demonstrates, I hope, how the law in Scotland has developed by small incremental developments from the common law, or at least it was retrospectively described as such a development, which was then substantially altered by legislative intervention in the mid-nineteenth century. It is possible to trace the changing background to the rules and discern some normative movement from viewing animals as mere property to some form of recognition of the interests of the animals themselves. The explanations given for the creation of legislation to increase the protection accorded to animals qua animals varied from the ownership, divine duty, projections of humanity onto animals, before moving towards thinking about the interests of the animal themselves as some kind of freestanding interest that was worthy of protection.
A secondary dimension of the paper is the interesting way it illustrates how different approaches have been taken by jurisdictions of the British Isles, and it forms a nice case study of different approaches have been taken from the early-19th century all the way through to the post-devolution era. Furthermore, that historical development also shows how these developing interests might be described very loosely as fitting in with other ‘humane’ movements around this period which were based on ideas such as rolling back personal oppression, the infliction of pain, the improvement of social conditions, and occupies a period where the increasing permeation of state intervention and legislation in many areas of law can be observed, and animal protection law becomes embedded within the emerging legislative web of such regulation which emerges within an emerging modern bureaucratic state. In turn, the protection of animals’ welfare comes to be protected not only in specific ‘animal cruelty’ statutes, but can also be seen across other forms of legislation dealing with food production, transportation of livestock, and even mining legislation.
A further and related dimension which I think is important, but which can only be lightly touched upon here, within this context of the increasingly present state and legislative interventions in relation to the management and regulation of that state, is the emergence of non-state actors conducting public duties (not in general, but the specific animal societies inspectors etc.) who become, in effect, quasi-state functionaries. This includes the societies against cruelty to children and animals which emerge as organisations which the state entrusts with certain public powers, and those functions remain considerably later than many other quasi-public entities disappear or at least diminish

Pricing, Bargaining and Big Data

'Big Data and Personalised Price Discrimination in EU Competition Law' (King's College London Law School Research Paper No. 2017-38) by Christopher Townley, Eric Morrison and Karen Yeung comments
The networked digital revolution is ushering in a new data-driven age, powered by the engine of Big Data. We generate a massive volume of digital data in our everyday lives via our on-line interactions, which can now be tracked on a continuous and highly granular basis. Being able to track this data has radically disrupted the retail sector through, amongst other things, digital personalisation. However, this is no longer limited to shopping recommendations and advertising delivered to our smartphones, laptops and other mobile devices, but may extend to the prices at which goods and services are offered to customers in on-line environments, making it possible for two individuals to be offered exactly the same product, at precisely the same time, but at different prices, based on an algorithmic assessment of each shopper’s predicted willingness to pay. This is done by mining consumers’ digital footprints, using machine learning algorithms to enable digital retailers to predict the price that individual consumers (‘final end users’) are willing to pay for particular items, and thus offer them different prices. This phenomenon, which we dub ‘algorithmic consumer price discrimination’ (ACPD) forms the focus of this paper.
The practice of price discrimination, which we define as “… charging different customers or different classes of customers different prices for goods or services whose costs are the same or, conversely, charging a single price to customers for whom supply costs differ…” is hardly a new phenomenon. Familiar forms include loyalty discounts, volume or multi-buy discounts, and the offering of status based discounts for students, old-age pensioners and the unemployed. However, the technological capacities of Big Data substantially enhance the ability of digital retailers to engage in much more precise, targeted and dynamic forms of price discrimination that were not previously possible.
There are many areas of law that might mount a response to rising public anxieties associated with these practices. Our paper examines ACPD from the perspective of competition law through which we seek to evaluate ACPD by reference to two contrasting normative values: economic efficiency, on the one hand, and fairness or equity on the other. Competition law provides a unique lens for interrogating the social implications of ACPD due to its distinctive character as a form of ‘economic law’ that is intended to protect and strengthen the process of rivalry in the marketplace. Although ‘traditional’ forms of price discrimination have long been the subject of economic analysis to evaluate whether they are economically efficient, algorithmic price discrimination has hitherto attracted relatively little critical analysis. As we demonstrate in Section 2, the incentives for firms to engage in ACPD often exist. We find that consumers are in the aggregate often better off, economically, when sellers can price discriminate in this way, thereby enhancing consumer surplus. However, this is not always the case. Furthermore, whether EU competition law is solely and exclusively concerned with economic efficiency, or whether it provides scope for non-efficiency based considerations in the application of its provisions, is a matter of debate.
Accordingly, in Section 3 we evaluate ACPD by reference to its fairness or justice (which we also call equity) understood in three distinct (and sometimes overlapping) ways: (a) the perceived fairness of pricing practices; (b) unfair dealing between online retailers and consumers (corrective justice); and (c) fairness as a requirement of distributive (or collective) justice. For each of these understandings of fairness, we identify points of convergence and conflict with economic evaluations of the effects of ACPD on aggregate consumer welfare. No Article 102 cases have directly considered the legality of ACPD.
Section 4 therefore interrogates existing Article 102 case law to ascertain whether ACPD would likely breach this provision. Because the current legal position is unclear, Section 5 draws together the efficiency and fairness evaluations by considering whether ACPD should be regarded as unlawful under EU competition law. We argue that where ACPD increases both consumer surplus and fairness, it should not breach Article 102. Conversely, where ACPD undermines both consumer welfare and fairness, then such practices should be unlawful under Article 102.
However, because economic and fairness evaluations of ACPD may conflict in specific cases, Section 5 also considers whether, in the light of the underlying justifications for EU competition law and the EU’s foundational principles, ACPD should be considered a violation of Article 102 where it undermines justice or equity, even though it may enhance consumer surplus, and vice versa. We deal with the clashes between these goals in two ways: first, we offer a partial reconciliation between these goals, by supplementing conventional economic analysis with insights from behavioural economics, thus enabling some fairness considerations that affect consumer welfare to be taken into account. Secondly, we suggest that fairness should have a secondary role when Article 102 is applied to ACPD, in the form of a ‘defence’ to an allegation of abuse of market power. On our suggested account, ACPD which reduces consumer surplus may nonetheless avoid falling foul of Article 102 if it can be justified on grounds of fairness. Section 6 concludes, suggesting that EU competition law may have a valuable but limited role to play in redressing some of the adverse impacts of ACPD, primarily by focusing on the consumer welfare effects of ACPD, and in which considerations of fairness and justice play a relevant, but nonetheless subsidiary, role. Competition law cannot, and should not, seek to solve all the social problems associated with market behaviour, including data-driven forms of personalised pricing.
'The End of Bargaining in the Digital Age' by Saul Levmore (Forthcoming) Cornell Law Review comments 
Bargaining is a fundamental characteristic of many markets and legal disputes, but it can be a source of inefficiency. Buyers often waste resources by searching for information about past prices, where a seller already holds that information. A second – and novel – source of social loss is that some buyers will avoid otherwise beneficial bargains because they recognize the seller’s advantage in any haggling match, and avoid sellers with negotiable prices. Similarly, parties might decline to accept settlement offers because they sense some disadvantage. This Article argues for mandated disclosure of past prices, and occasionally settlements, where these have been negotiable. The rule requires uniform or transparent pricing, where uniformity means that customers know that a price offered to them is the same as that offered to others, and transparency refers to the disclosure of past sale, or settlement, prices. The rule is applied to markets where consumers presently haggle with professional sellers, including the sale of medical services to hospital patients, law school merit scholarships offered to prospective students, and legal services sold to non-business clients. We additionally explore its potential in employment relationships, where it might be deployed to reduce male-female pay disparities.
A requirement of uniform or transparent transactions can limit a seller’s ability to price discriminate. There are a few markets in which price discrimination is desirable, sometimes to deliver important goods such as life-saving medicines and clean water. We demonstrate how those markets can be preserved alongside a requirement of transparency. Drawing on a variety of examples, including familiar disclosure rules in contracts, as well as compulsory licensing in copyright and the utmost good faith doctrine in insurance, this Article shows that law is conceptually equipped to address the social loss generated by duplicative search and other inefficiencies, and that pricing disclosure rules can be easily implemented, especially as markets increasingly digitize.

02 November 2017

DNA copyright

'DNA Copyright in the Administrative State' by Dan L. Burk in (2018) 51 UC Davis Law Review comments 
For nearly three decades, academics have toyed with the question of copyright protection for recombinant DNA sequences. Recent interest in synthetic biology has prompted a resurgence of such dubious speculation. But current advocates of DNA copyright have gone further than academic conjecture, attempting to register nucleotide sequences with the United States Copyright Office. Not surprisingly, the Register of Copyrights refused the application, setting the stage for a possible appeal to federal court. This scenario raises the general administrative law question as to the degree of deference a court should give to a registration decision of the Copyright Office. The issue is surprisingly complex, and precedents are sparse. In this paper I take up the question of administrative deference as it applies to synthetic biology and other technologies that could be the subjects of questionable copyright registration.

31 October 2017

Drums and Trumpets

'War Manifestos' by Oona A. Hathaway, William Holste, Scott J. Shapiro, Jacqueline Van De Velde and Lisa Lachowicz in (2018) 85 University of Chicago Law Review (Forthcoming) is characterised as
the first to examine “war manifestos,” documents that set out the legal reasons sovereigns provided for going to war from the late-fifteenth through the mid-twentieth centuries. We have assembled the world’s largest collection of war manifestos — over 350 — in languages as diverse as Classical Chinese, German, French, Latin, Serbo-Croatian and Dutch. Prior Anglophone scholarship has almost entirely missed war manifestos. This gap in the literature has produced a correspondingly large gap in our understanding of the role of war during the period in which manifestos were commonly used. Examining these previously ignored manifestos reveals that states exercised the right to wage war in ways that would be inconceivable today. In short, the right to intervene militarily could be asserted in any situation where a legal right had been violated and all peaceful channels had been explored and exhausted. The Article begins by describing war manifestos. It then explores their history and evolution over the course of five centuries, explains the purposes they served for sovereigns, shows the many “just causes” they cited for war, and, finally, considers the lessons they hold for modern legal dilemmas. The discovery of war manifestos as a set of legal documents offers lawyers and legal scholars something rare: a new window into the international legal universe of the past. That is not only valuable in itself, but it also casts entirely new light on several long-standing legal debates.

30 October 2017

Communication Markets

The !80 page ACCC draft Communications Sector Market Study report features the following Key points
  • The Australian communications sector has been undergoing a period of significant change that is affecting how supply chains function and the nature and extent of competition in retail and wholesale markets. This change includes both structural reform, as a result of policy initiatives, at the centre of which is the rollout of the NBN, and the rapid pace of technological advance and product innovation that is occurring globally. 
  • We consider that the economic regulatory framework for the communications sector has proven to be capable of accommodating major changes to the sector and has allowed for appropriate responses during the transition to the NBN. We do not find that there is currently a need for significant changes to this regulatory regime. 
  • Notwithstanding considerable concentration in both fixed and mobile retail markets there is evidence of competition between the major service providers of broadband and voice services. Smaller providers and new entrants have the potential to provide additional competitive tension by constraining the larger providers. 
  • The rollout of the NBN is a major investment in communications infrastructure and is having a significant impact on the Australian communications sector. The changes within the supply chain and consequential impacts on consumers and retail service providers have inevitably been a key focus of the market study. 
  • The NBN rollout is now well advanced with three million premises activated and NBN Co progressing at a rapid pace to meet a commitment to complete its build by 2020. 
  • However, a number of competition and consumer issues related to the NBN transition have emerged and require immediate measures to resolve on the part of both retail service providers and NBN Co, some of which are already underway. 
  • We are undertaking measures to promote improved consumer and competition outcomes directed at ensuring availability of reliable and useful information to support consumer choice. These measures include: o broadband speed claims guidance for service providers o introduction of the broadband perfo rmance monitoring and reporting program o enforcement of the Australian Consumer Law (ACL) to address serious or systemic failures in advertising 
  • Other processes also underway to identify and address issues arising in the delivery of services over the NBN i nclude NBN Co’s consultations with its customers on its pricing construct and the Australian Communications and Media Authority’s (ACMA) review of consumer experience on the NBN. 
  • The outcomes of these various initiatives, and extent to which issues of concern persist, will be an important factor in determining the need for further regulatory responses in the short term. 
  • 5G deployment could create significant opportunities for industry and consumers. It has the potential to accelerate the extent of fixed to mobile and fixed wireless substitution thereby disrupt ing existing business models. The degree of future substitution will in part depend on the performance of NBN services, both in terms of price and service quality. 
  • We have not identified any immediate competition concerns in relation to new and emerging communications services such as over the top content services, cloud services and the Internet of Things (IoT). We propose to address any future competition concerns that may arise in relation to these services through use of our competition law powers in the first instance.  
  • Our assessment makes draft findings on a range of issues, including some of immediate concern. We have examined the issues of concern in detail to develop our proposed actions and recommendations, including the urgency with which they should be addressed. 
The draft report goes on to state -
State of competition in the supply of voice and broadband services Voice and broadband services are the essential communications services on which individuals and businesses rely. The retail provision of these services displays considerable concentration, with the four largest providers accounting for 96 per cent of services to residential premises. Telstra’s fixed line dominance has not been significantly eroded so far in the transition to the NBN despite some losses in regional areas where its dominance has been greatest. Competition for mobile services is concentrated in the hands of the three mobile network operators that account for 91 per cent of mobile services. Notwithstanding the high level of market concentration there is evidence of competition between the vertically integrated major service providers in the markets for voice and broadband services, over both fixed and mobile access technologies. This is particularly evident in the price competition between suppliers of both fixed and mobile services. However, while non-price competition extends across multiple product dimensions for mobile services with significant product differentiation, the same is less true for fixed services. To date there is less differentiation in the fixed services on offer and competition in the fixed segment of the market has not focused on quality of service dimensions, such as broadband speed. While there are signs of retail price competition occurring, we have heard from many service providers, both in submissions to the market study and at the stakeholder forum held in July 2017, that the NBN wholesale pricing construct and level is constraining their ability to provision greater capacity given consumers’ current willing ness to pay. NBN Co has expressed another view, stating that it has undertaken research that indicates consumers have a greater willingness to p ay and that service providers should be doing more to promote the adoption of higher speed services. These issues may affect efficient use of NBN infrastructure and NBN Co’s ability to recover its investment costs. In this regard, we note that an objective of the policy decision to build the NBN is to support retail competition. While we are observing some product differentiation and market segmentation in the retail plans currently in the market, there is scope for this to further develop. We anticipate that competition in the supply of fixed line and mobile voice and broadband services will increase following the entry of Vodafone into the provision of fixed line services and TPG into the provision of its own mobile network. This will result in four major carriers providing both fixed and mobile services. Transitioning consumers to the NBN The challenges faced by NBN Co include provision of services over the NBN that meet consumer expectations and deliver an efficient use of the infrastructure being deployed as well as completion of the build. A significant number of consumers are reporting unsatisfactory experience with the NBN both during and after migration from the legacy networks. Two principal concerns arise in this regard. The first concern relates to connection and activation problems at the time of migration and fault rectification after connection, including missed appointments and lack of reliable information and unsatisfactory complaint resolution processes. The primary concern is that current NBN service levels do not represent an appropriate basis to support a positive end-user experience, and there is insufficient recourse to compensation where service levels are not met. Compounding these problems is ineffective communication and coordination in the supply chain resulting in consumer misunderstanding and confusion. The second issue is the speed of services supplied over the NBN which is not always meeting consumer expectations. There are a number of aspects to this issue, the most significant of which are the choice of speed tier made by a consumer when migrating to the NBN and the provisioning of connectivity virtual circuit (CVC) capacity by service providers to deliver the speed and user experience appropriate to that speed choice dur ng the busy hours. In addition, the capability of the fibre-to-the-node (FTTN) technology to deliver certain higher speed services can be limited. These migration and experiential issues have gained significant attention, both within the industry and more broadly in the media, and in our view stem from failures in retail and wholesale markets that could largely be overcome through more accurate information, improved information flows and better coordination along the supply chain and to consumers. In this regard, we consider the issue of consumer dissatisfaction with the speed of their NBN service can be addressed directly through the provision of improved retail plan information on speeds that supports consumers in making their purchase decisions, and through retailers ensuring their retail NBN services typically operate in the manner advertised. We are introducing measures we consider have good prospects of bringing widespread improvements in the near term, via retailers implementing our 2017 broadband speed claims guidance, our introduction of a broadband performance monitoring and reporting program, and enforcement of the ACL to address serious or systemic failures in advertising practices. We consider that this strategy can bring benefits without the potential risks associated with more intrusive measures, such as mandating minimum standards, which could curtail the offering of less expensive but slower plans over the NBN even where these plans would be sufficient to meet the requirements of many consumers. The NBN supply chain We acknowledge that the above measures will not resolve all of the poor outcomes that are being delivered by retail NBN markets, and also that there are significant concerns expressed by retailers regarding their upstream supply arrangements that are potentially contributing to these outcomes. A potentially significant factor contributing to these outcomes is that current average revenues per user for NBN services may not be sufficient to meet NBN Co’s long term cost recovery requirements. One factor is that we are not seeing the degree of risk sharing and alignment of incentives we would expect in a well-functioning wholesale market. These issues are the subject of processes with the potential to improve outcomes for consumers. NBN Co is currently consulting with its customers on potential modifications of or alternatives to the current pricing model. In addition, in August 2017 the Government convened an industry roundtable to secure joint action to better support co nsumers during the NBN migration. We welcome an industry led approach to improving the NBN experience of consumers and an outcome on NBN pricing that meets the objectives of NBN Co and service providers. We consider an industry resolution can be preferable to a regulatory outcome as it is likely to be more responsive to the immediate concerns of NBN wholesale customers and should be afforded reasonable time to reach that resolution. Therefore, we are watching developments and; if needed, however, we will consider exercising our regulatory powers where this would support these market outcomes being realised sooner. In the meantime, to provide additional flexibility to the parties in negotiating pricing outcomes, we have deferred our decision on the Special Access Undertaking (SAU) variation that NBN Co has submitted. NBN Co’s proposed SAU variation incorporates FTTN, fibre to the basement (FTTB) and hybrid fibre coaxial (HFC) access technologies into the SAU, to reflect the current NBN model. If approved, the SAU variation would extend the current SAU pricing arrangements to these access technologies. Further, the ACMA is undertaking inquiries and research to provide a better understanding of the nature, extent and causes of the concerns regarding consumer experience before, during and after the migration of consumers to services provided over the NBN. We propose to examine NBN service standards and their impact on consumer experience. In particular, we will examine incentives in place along the supply chain and whether they are sufficient to support appropriate consumer outcomes. Key intermediate inputs Smaller service providers have the potential to add to the competitiveness of communications markets by constraining the behaviour of the larger providers and in creasing competitive tension. However smaller providers frequently rely on wholesale inputs, either of resale services (as in the case of mobile virtual network operators (MVNOs) ) or of intermediate inputs such as transmission between NBN points of interco nnection (POIs) and their own point of presence (POP), as well as internet interconnection services to reach the customers and the content hosted by the larger providers. In addition, some smaller service providers do not have the scale to make direct connection to NBN services at all 121 POIs and rely on wholesale services that aggregate this direct connection with other wholesale services. The market study has looked at whether these wholesale markets upstream of retail markets are operating competitively to supply key intermediate inputs that meet the needs of smaller service providers, including to build scale. An area where we have identified some concerns is the NBN wholesale aggregation market where potential limitations with the NBN wholesale aggregation services being supplied may be impeding the ability of smaller service providers from entering markets or offering differentiated products over the NBN. We consider that the development of this wholesale market to date is not as advanced as might be expected given that the NBN rollout commenced over five years ago and passed its mid-point earlier this year. Complexity in retailing on the NBN during the network build and the effect this has on the business case for investing in the supply of wholesale aggregation services may be contributing to the slow development of the wholesale market. The market study has considered options to promote the wholesale aggregation market while it is still developing. These options include potential action by NBN Co to provide transitional products or pricing measures during the rollout period to facilitate the entry of smaller or niche service providers. We have also identified concer ns in the internet interconnection market where Telstra, Optus and TPG appear to hold some market power in relation to access to their networks. We intend to continue to assess whether access to these services is available at prices and terms that support competition in the range of downstream markets they support. 
Network competition and convergence
The above issues need to be considered in the wider context in which the NBN is being rolled out. Relevantly, this context encompasses the increasing substitutability between and convergence in the use of alternative last mile access networks. Substitution of fixed line services for mobile services has been occurring for a number of years and is likely to  continue in response to the recent increase in the data inclusions offered in mobile network operators’ plans as the capacity of their networks increases. The substitutability between mobile and fixed line has the potential to be boosted when deployment of 5G begins in two to three years. The extent to which th is potential is realised will depend on relative costs of utilising the NBN compared to bypassing the NBN with fixed and mobile wireless alternatives, which is significantly influenced by NBN Co’s pricing. The NBN already faces some competition from non-NBN fixed line networks, particularly in large occupancy buildings and new estates. These networks are typically in low cost to supply areas and have consequently affected the NBN financing model which relies on a cross subsidy from services provided in low cost areas to meet the costs of providing NBN services in high cost regional and remote areas of Australia. The Government is intending to impose a charge on these networks under its Regional Broadband Scheme (RBS) to help fund the NBN’s non-commercial fixed wireless and satellite services. We do not consider this charge should be extended to other substitute networks in the future; indeed, we have a preference that all non-commercial services be funded directly from the budget. In the medium term, given the social objectives it is required to fulfil by supplying services to uneconomic parts of Australia, and depending on future developments, the Government could consider whether NBN Co should continue to be obliged to recover its full cost of investment through its prices via options that may provide it with greater flexibility regarding its cost recovery objectives. These could include direct budget funding arrangements for non-commercial services, debt relief measures or an asset revaluation. The latter step is consistent with that usually taken by private sector enterprises if and when business plans are not met.
Emerging services and issues
Beyond the large number of issues relating to the provision of voice and broadband services, the market study has considered the growth and development of services delivered over or using the internet, including IoT, and changes in supply chain structures and related services such as the use of content delivery networks and data centres. We have also considered the emergence of cloud based services which are transforming the way services traditionally provided locally to the user are consumed. We consider that these markets are highly dynamic and seem to be operating competitively. These areas are diverse, subject to rapid innovation and change and, for the main part, do not give rise to immediate concerns regarding the competitive functioning of their associated markets. However, there are instances where incumbents in the communications sector may be able to exercise market power or where market power concerns could emerge due to strong network effects to the detriment of competition in these markets. Our intention is to keep abreast of developments in these markets to ensure that rigorous competition is sustained and take appropriate competition enforcement action if necessary.
Policy implications and priorities
Finally, the draft report sets out our views in relation to policy implications and priorities. We consider that the current communications regulatory and competition arrangements that we administer have remained fit for purpose notwithstanding the evolution of the communications market to date and appear to be well suited to deal with the immediate and longer term issues we have identified in the market study. The policy priorities largely relate to reviews that are currently being conducted or have recently been completed. These policy issues have interdependencies with competition in and the efficient operation of communications markets and include: spectrum management; data availability and use; the proposed RBS; and the Government’s Mobile Black Spots Program.

27 October 2017


'Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation' by Jack M. Balkin comments
We have now moved from the early days of the Internet to the Algorithmic Society. The Algorithmic Society features the use of algorithms, artificial intelligence agents, and Big Data to govern populations. It also features digital infrastructure companies, large multi-national social media platforms, and search engines that sit between traditional nation states and ordinary individuals, and serve as special-purpose governors of speech.
The Algorithmic Society presents two central problems for freedom of expression. First, Big Data allows new forms of manipulation and control, which private companies will attempt to legitimate and insulate from regulation by invoking free speech principles. Here First Amendment arguments will likely be employed to forestall digital privacy guarantees and prevent consumer protection regulation. Second, privately owned digital infrastructure companies and online platforms govern speech much as nation states once did. Here the First Amendment, as normally construed, is simply inadequate to protect the practical ability to speak.
The first part of the essay describes how to regulate online businesses that employ Big Data and algorithmic decision making consistent with free speech principles. Some of these businesses are "information fiduciaries" toward their end-users; they must exercise duties of good faith and non-manipulation. Other businesses who are not information fiduciaries have a duty not to engage in "algorithmic nuisance": they may not externalize the costs of their analysis and use of Big Data onto innocent third parties.
The second part of the essay turns to the emerging pluralist model of online speech regulation. This pluralist model contrasts with the traditional dyadic model in which nation states regulated the speech of their citizens.
In the pluralist model, territorial governments continue to regulate speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is "new school" speech regulation. Digital infrastructure owners, and especially social media companies, now act as private governors of speech communities, creating and enforcing various rules and norms of the communities they govern. Finally, end users, civil society organizations, hackers, and other private actors repeatedly put pressure on digital infrastructure companies to regulate speech in certain ways and not to regulate it in others. This triangular tug of war -- rather than the traditional dyadic model of states regulating the speech of private parties -- characterizes the practical ability to speak in the algorithmic society.
The essay uses the examples of the right to be forgotten and the problem of fake news to illustrate the emerging pluralist model -- and new school speech regulation -- in action.
As private governance becomes central to freedom of speech, both end-users and nation states put pressure on private governance. Nation states attempt to co-opt private companies into becoming bureaucracies for the enforcement of hate speech regulation and new doctrines like the right to be forgotten. Conversely, end users increasingly demand procedural guarantees, due process, transparency, and equal protection from private online companies.
The more that end-users view businesses as governors, or as special-purpose sovereigns, the more end-users will expect -- and demand -- that these companies should conform to the basic obligations of governors towards those they govern. These obligations include procedural fairness in handling complaints and applying sanctions, notice, transparency, reasoned explanations, consistency, and conformity to rule of law values -- the "law" in this case being the publicly stated norms and policies of the company. Digital infrastructure companies, in turn, will find that they must take on new social obligations to meet these growing threats and expectations from nation states and end-users alike.