Privacy and democracy in the digital age
Steven I Friedland
The digital age has helped to reshape existing notions of privacy, particularly through an increasing number and variety of privacy-stripping mass surveillance systems. These systems, including cameras and drones, Big Data, the use of biometrics such as face recognition software, and the smart devices that populate the Internet of Things, show just how dangerous the invisible transfer of truthful information to third parties can be. Without visibility, the mass surveillance systems escape the checks and balances of democratic governance. To minimise the likelihood of government repression resulting from unseen government and government-private partnerships, several potential remedial avenues exist. First, a stronger privacy right should be erected from the existing law. Unfortunately, the existing regime of American constitutional privacy remains rooted in 20th century notions of physical walls and doors and needs to be updated to reflect the digital world. Even if such an updating to constitutional interpretation or statutes should occur, other problems have compounded the issue. The use of Big Data has transformed what can be done with the information, and the Internet of Things is producing increasing quantities of information. Culturally, the members of the generations born digital are used to free exchanges of information. Finally, after 9/11 especially, there has been considerable pressure to find and prevent acts of terrorism. Consequently, a change in law alone will likely be insufficient to create a proper valuing of privacy. The mass media ought to play a larger role in protecting privacy by supplying a narrative that explains to the public what the effects of the massive invisible data accumulation are. In this way, the world-wide mass media can serve as an important conduit in promoting transparency in government.
‘Tweeting from court’: New guidelines for modern media
Anne Wallace and Jane Johnston
Australian courts in five States recently changed their rules to permit journalists reporting on court proceedings to use electronic devices to send text-based transmissions from court. These changes reflect an international trend to allow journalists and, in some cases, members of the public, to use live text-based communication in the courtroom. This development has clear benefits in terms of promoting open justice and timely reporting of court proceedings, in an era when mobile computing technologies have become essential tools for news reporting. However, it also poses risks to the administration of justice, including the potential for an increased risk of breaches of court orders in relation to publication. This article analyses the approach taken by the courts in Australia and overseas in developing policies that attempt to manage these risks.
In any defamation case, the plaintiff must first identify the material (or publication) that is alleged to be defamatory. Once identified, the ‘whole publication’ principle (as it will be referred to in this article) requires the tribunal of fact to consider the material in its entirety in order to determine any imputations that may arise. This article will discuss this principle, its justification, and implications for defamation proceedings. There may be cases where there is uncertainty as to the scope or boundaries of the relevant publication — that is, what constitutes the ‘whole publication’. In such cases, courts may take note of certain factors that suggest that material is to be considered together. This article will consider the relevant factors identified by the courts when determining the scope of a publication on traditional forms of media and the internet. In light of the case law, courts have grappled with specific issues surrounding the application of this principle to the internet. Critics of the ‘whole publication’ principle suggest a reconsideration of this principle. It is concluded that a movement away from the principle is unnecessary. Nevertheless, courts must have regard to the novel features of the internet and the nature of people’s engagement with online media when determining the scope and content of a publication on the internet.
Street art has not been considered generally to be of much relevance to copyright law. Since the 21st century, however, art institutions have increasingly recognised street art as worthy of the art world’s attention. The elevated status of street art has led to unwelcome economic intrusions into the practice of some street artists. This article examines whether, despite the counter-cultural positioning of street art, the moral right of integrity recognised in the Australian Copyright Act 1968 can provide street artists in Australia with legal protection against such intrusions. The examination uses the hypothetical example of Banksy, a street artist whose work has catapulted him to a level of fame seen usually in mainstream artists, and No Ball Games, a street artwork by Banksy that the Sincura Group extracted, fragmented, restored and exhibited without his consent. It concludes that, if enforced, the right of integrity can advance the interests of street artists in Australia meaningfully by providing legal protection against the fragmentation, restoration and exhibition of their work.
Risks and opportunities in big data — how well adapted are Australia’s privacy laws?
In today's world, more data is collected than ever before. Data is powerful. When skilfully analysed, big data can deliver deep insights into human behaviour, improve decision making and drive efficient resource allocation in large systems and economies. It may even be used to pre-empt harmful deeds, such as acts of terrorism. Big data analysis also demands big resources, that are increasingly cloud-based and may be located anywhere in the world. This poses threats to information security and privacy, because data can also be personal. Appropriate safeguards are essential to protect individuals from harm and to foster trust in the system, to encourage sustainable innovation into the future. In the context of large datasets, Australia's privacy laws strike a balance between privacy and innovation, while its data retention laws strike a balance between privacy and national security. But are they the right ones?
Trade marks, globalisation and foreign language: Cantarella Bros Pty Ltd v Modena Trading Pty Ltd
Posting sexually explicit images on Facebook: The action for breach of confidence expands further into the privacy space
A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms