14 December 2017

Lemons

The Australian Competition and Consumer Commission has released the final report from its market study into Australia’s new car retailing industry.

The report follows 18 months of research and consultation with industry and consumer groups, with  three key observations
  • car manufacturers need to update their complaint handling systems and improve their approach to the handling of consumer guarantee claims
  •  a mandatory scheme should be introduced for car manufacturers to share technical information with independent repairers 
  • new car buyers need more accurate information about their cars’ fuel consumption and emissions. 
Salient features of the report are -
Commercial arrangements between manufacturers and dealers
After review of a range of ‘dealer agreements’ (commercial arrangements between car manufacturers and dealers) the ACCC  concludes that dealers respond to consumer guarantee claims within the framework of the policies and procedures set by manufacturers.
ACCC Chair Sims comments
If manufacturers' policies and procedures don’t adequately recognise consumer guarantee rights, this can influence the behaviour of dealers in responding to complaints. ... We recommend that car manufacturers update their complaint handling systems to ensure consumer law is front and centre of relevant systems, policies and procedures. Conditions or obligations under the manufacturer’s warranty must not exclude or limit consumers’ rights.. We are concerned that some manufacturers impose unnecessarily complex warranty claim processes, leaving dealers inadequately compensated for repairs or remedies provided to consumers
Sims noted that  dealers have direct responsibility to provide remedies to consumers but they also have a right under the Australian Consumer Law to recover the reasonable costs of providing these from the car manufacturers when the manufacturer is at fault, with the ACCC foreshadowing action "if a manufacturer prevents a dealer from fulfilling their legal obligations under consumer law".
Sharing of technical information
 Independent repairers continue to have problems accessing technical information to repair and service new cars. The ACCC accordingly recommends introduction of a mandatory scheme requiring car manufacturers to share  technical information needed to repair and service new cars with independent repairers. Sims comments that "Any mandatory scheme must be available on commercially ‘fair and reasonable terms’, and have safeguards that enable environmental, safety and security-related technical information to be shared with the independent sector".
Fuel consumption and emissions
The ACCC recommends that the Federal Government introduce more realistic laboratory tests for fuel consumption and emissions, and an on-road ‘real driving emissions’ test to give new car buyers more accurate information. Research from the Australian Automobile Association (AAA) found that real-world fuel consumption is on average 23%  higher than official laboratory test results.
Sims commented
Our research shows fuel consumption is the third most significant purchasing factor for consumers after price and model. We are concerned that new car buyers are not receiving accurate information about fuel consumption or emissions performance.
The ACCC considers that there may be additional benefits to consumers from an Australian real-driving emissions test. It accordingly recommends that the Government’s Ministerial Forum on Vehicle Emissions consider the costs and benefits of an Australian real driving emissions testing program.

Privacy Publics

'The Public Information Fallacy' by Woodrow Hartzog comments 
The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.
In this article, I argue that the “no privacy in public” justification is misguided because nobody even knows what “public” even means. It has no set definition in law or policy. This means that appeals to the public nature of information and contexts in order to justify data and surveillance practices is often just guesswork. There are at least three different ways to conceptualize public information: descriptively, negatively, or by designation. For example, is the criteria for determining publicness whether it was hypothetically accessible to anyone? Or is public information anything that’s controlled, designated, or released by state actors? Or maybe what’s public is simply everything that’s “not private?”
If the concept of “public” is going to shape people’s social and legal obligations, its meaning should not be assumed. Law and society must recognize that labeling something as public is both consequential and value-laden. To move forward, we should focus the values we want to serve, the relationships and outcomes we want to foster, and the problems we want to avoid.

Digital Rights Advocacy

'The Israeli Digital Rights Movement's campaign for privacy' by Efrat Daskal in (2017) 6(3) Internet Policy Review [PDF]
explores the persuasion techniques used by the Israeli Digital Rights Movement in its campaign against Israel’s biometric database. The research was based on analysing the movement's official publications and announcements and the journalistic discourse that surrounded their campaign within the political, judicial, and public arenas in 2009-2017. The results demonstrate how the organisation navigated three persuasion frames to achieve its goals: the unnecessity of a biometric database in democracy; the database’s ineffectiveness; and governmental incompetence in securing it. I conclude by discussing how analysing civil society privacy campaigns can shed light over different regimes of privacy governance.
Daskal comments
The digital era has expanded the boundaries and meanings of basic human rights such as freedom of expression, the right to privacy, and the right to information. These changes have triggered constant deliberations between national governments, global internet corporations, inter- and nongovernmental entities over the scope of these rights (Benedek, 2008; Kay, 2014). This paper focuses on one of these actors: civil society organisations which advocate for digital rights, also known as digital rights advocates. These organisations advocate for computer and internet-related civil liberties on parallel tracks: on the one hand, they confront governments and internet corporations in the constitutional, political, and judicial arenas, and on the other, educate the public about their rights. Thus, they are among the few social actors with the potential to challenge and sometimes even change the rules decided upon by powerful social actors (Breindl, 2011; Postigo, 2008).
In order for them to achieve their goals, digital rights advocates have to persuade other stakeholders, including the public. Yet such persuasion is not easy and usually requires them to reframe issues to their advantage. This is why, for example, the American Electronic Frontier Foundation (EFF) frames copyright issues as issues of fair use in order to legitimize expanding consumer privileges in copyrighted works (Postigo, 2008). This is also why, when dealing with net neutrality digital rights advocates worldwide have recently framed their campaigns as essential to saving the internet (Fernández Pérez, 2015; Kosoff, 2017; Panwar, 2015). Yet, only few studies explored in depth the persuasion techniques used by digital rights advocates, especially concerning the right for privacy (Bennett, 2008). This study wishes to contribute to the literature in the field by asking: “what are the persuasion techniques employed by Israel’s Digital Rights Movement organisation (DRM) in its campaign for privacy and against the biometric database in Israel?”
To do so, I have analysed the organisation’s textual products and involvement in legislation initiatives, judicial rulings, and public discourse in 2009-2017. This research sheds light on the role civil society organisations can play in constructing the boundaries of digital rights. Second, it contributes to the literature dealing with the right to privacy in a specific sociocultural context. Finally, it deepens our understanding of the global issue of privacy governance. In what follows, I will elaborate on the role civil society organisations play in protecting digital rights, especially the right to privacy. I will then address the Israeli case, and present the research questions and methods. My findings will describe the main activities of the DRM against the biometric database, as well as the persuasion techniques employed thereby. I will conclude by discussing how the study of civil society privacy campaigns can assist in conceptualising and understanding issues of privacy governance

Jurimetrics

'Judging the Judiciary by the Numbers: Empirical Research on Judges' by  Jeffrey J. Rachlinski and Andrew J. Wistrich in (2017) 13 Annual Review of Law and Social Science asks
Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.
The authors comment
Judges are the axle on which the wheels of justice turn. They manage pretrial proceedings, mediate settlement conferences, rule on motions, conduct bench trials, supervise jury trials, take guilty pleas, impose criminal sentences, and resolve appeals. In the process, they find facts, make or apply law, and exercise discretion. Judges wield enormous power and society therefore rightly expects much of them. Judges must be fair minded, impartial, patient, wise, efficient, and intelligent (Wistrich, 2010). They must set aside their politics and their prejudices, make rational decisions, and follow the law. (See, e.g., American Bar Association, Model Code of Judicial Conduct, 2011, Rules 1.1, 1.2, 2.2, 2.3, 2.4, 2.5, 2.8). But is it possible for judges to perform as we expect?
The answer to this question remains somewhat uncertain. Twenty years ago, Lawrence Baum (1997, p. 149) concluded, “Despite all the progress that scholars have made, progress that is accelerating today, we are a long way from achieving truly satisfying explanations of judicial behavior.” Much more research has been conducted since then, but judicial behavior still remains something of a mystery. Some scholars argue that judges behave rationally but make decisions that further their self-interest ( Epstein et al. 2013). That assertion, however, raises as many questions as it answers: What do judges see as their self-interest? Are fairness and impartiality their primary goals? What incentives do judges really face? After all, they rarely lose their positions and seldom get promoted. And even if judges primarily strive for fairness and impartiality, do they achieve these goals?
Research on human judgment and choice indicates that most people face cognitive limitations that lead them to make choices that do not consistently further their own ends (Ariely 2009). People commonly rely on intuition and simple shortcuts (or  heuristics) to make choices (Kahneman 2011). Heuristics can be effective and surprisingly accurate (Gigerenzer and Todd 1999), but can also lead to predictable mistakes when over-applied or misused. These problems plague professionals as well. Research on doctors, dentists, accountants, futures traders, and others shows that they all fail to live up to an idealized standard of judgment in many settings ( Ariely 2009). It would be surprising if judges are any different.
The available research on judges suggests that they sometimes f all short of the lofty ideal to which society holds them. A growing body of research supports the conclusion that although judges are often excellent decision makers, they have vulnerabilities. At the outset, we know that in some areas of law, judicial decisions are too chaotic. A study of immigration asylum decisions, for example, reveals that some judges grant asylum in a high percentage of cases while others almost never grant asylum (Ramji-Nogales et al. 2007). Asylum outcomes thus turn on the random assignment of a case to one judge or another. Decisions concerning whether to grant leave to appeal or to allow release on bond in immigration cases are similarly erratic ( Rehaag 2012; Ryo, 2016). Concerns about variation in conviction rates have also long haunted criminal law (Weisselberg and Dunworth, 1993). Even in criminal sentencing decisions in federal court, in which a highly structured set of guidelines cons trains judges, variation remains robust ( Scott 2011). Judges do not seem to decide as reliably as might be hoped or expected. Worse still, the variation does not just arise from chaos or a lack of meaningful standards, it arises from systematic vulnerabilities in how judges think.
This article surveys the empirical research that assesses whether judges live up to the standards of their profession. The evidence accumulated to date reveals that judges fall short in predictable ways. First, as the legal realists feared, judges’ personal characteristics influence their decision making. Specifically, the research indicates that when cases raise issues that are salient to judges’ personal characteristics, they do not consistently put their characteristics aside. Second, judges overreact to mechanisms of accountability, such as appellate review, retention, and promotion. Third, judges rely too heavily on intuitive ways of thinking that can be misleading. Fourth, in making decisions, judges sometimes rely on factors outside the record, including inadmissible evidence, their emotional reactions, and prejudices.
To be fair to judges, they labor under a great deal of academic scrutiny. The existing research on judicial decision making probably focuses too heavily on judicial failings. Scholars conduct their research with an eye towards showing that judges are politically motivated or biased. This is understandable, given the ideal of neutral judging that society expects from judges, but the emphasis on deviations likely makes judges seem worse than they are. The research includes several studies in which judges adhere to an ideal norm of neutrality, and we certainly include these in our review. No studies really provide usable estimates of how many cases are skewed by politics, prejudice, or other misjudgment, and the research does not support a means of making a reasonable estimate. The circumstances under which judges deviate from the norm are nevertheless worth exploring, not to make judges look bad, but to identify potential ways they might improve.
In reaching our conclusions, we review a diverse array of both experimental and field studies of judicial decision making. We set aside judges’ autobiographies and biographies, interviews of judges, careful parsing of individual opinions, and judges’ own accounts of how they make decisions. Such undertakings can provide valuable insights, but our focus lies on systematic empirical accounts of judicial decision making. These include archival studies of actual decisions and experiments or simulations using hypothetical cases. Although most research on judges emphasizes decisions of the US Supreme Court (especially since the Second World War), our focus lies with the state courts, lower federal courts, and a handful of international studies. Although the US Supreme Court is important, of course, it resolves few cases and represents only a tiny window into the judicial decision-making process. Each of the studies we incorporate into our analysis involves vastly more judges than the 39 people who have served on the Supreme Court in the last 70 years. The focus on the Supreme Court also tends to emphasize the role of politics in judging. Political influence is only one way judges can fail to meet the demands of their roles. We discuss this concern but expand upon it.

GI

'Geographical Indications and Environmental Protection' by Michael Blakeney in (2017) 12(2) Frontiers of Law In China 162 comments
The protection of Geographical Indications (hereinafter "GIs") is required by all members of the World Trade Organization (hereinafter "WTO"), as this is mandated by the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (hereinafter "TRIPS"). Among the primary justifications for the protection of GIs is to enable producers to secure the premium prices which are attracted by products which have a unique quality that is attributable to their place of production. As this article points out, one reason for this premium price, in the case of agricultural products is that traditionally produced goods are often free from contaminants, such as herbicides and pesticides. Not previously discussed in the literature is the fact that from an environmental protect perspective, GIs applied to agricultural products provides some consumer confidence in their purity, as well as in their traceability. In securing higher returns for agricultural producers, GIs play an important role in securing rural development and the maintenance of rural landscapes. Finally, the article points out that the international GIs regime provides an important means of protecting the traditional knowledge of agricutlural producers.

13 December 2017

CCTV in EU teaching spaces

In Antovic and Mirkovic v Montenegro [2017] ECHR 1068 the European Court of Human Rights has held that CCTV in a public lecture theatre at the University of Montenegro breached Article 8 of the European Convention on Human Rights. CCTV networks are a feature of teaching spaces in many Australian universities.

Article 8 of the Convention protects the right to respect for private and family life. The Dean of the School of Mathematics installed video surveillance in a public lecture theatre at the university to "protect safety of property, people and students". It also recorded lectures. The data was protected by codes known only to the Dean and kept for one year. A decision articulated by the Dean specified that the introduction of CCTV was intended to ensure the safety of property and people, including students, and the surveillance of teaching.

In March 2011 academics Ms Nevenka Antović and Mr Jovan Mirkovic complained to the state Personal Data Protection Agency about the video surveillance and the collection of data on them without consent. They relied on Montenegro's Personal Data Protection Act. In particular, they argued that the amphitheatre where they taught was locked both before and after the classes, that the only property there was fixed desks and chairs and a blackboard, that they knew of no reason to fear for anybody’s safety and that, in any event, there were other methods for protecting people and property and monitoring classes. They requested that the cameras be removed and the data erased.

Antović and Mirkovic  challenged the assessment. The Montenegrin Personal Data Protection Agency ordered the removal of the cameras. There was no evidence safety was an issue and therefore no legitimate grounds for data collection. The Agency ordered the School of Mathematics to remove the cameras from the auditoriums within fifteen days, as the video surveillance was not in accordance with the Personal Data Protection Act. In particular, the reasons for the introduction of video surveillance provided for by s 36 of that Act had not been met, given that there was no evidence that there was any danger to the safety of people and property in the auditoriums, still less to confidential data, and that the surveillance of teaching was not among the legitimate grounds for video surveillance. In January 2012 the cameras were removed.

Ms Antovic and Mr Mirkovic brought compensation claims against the University of Montenegro, the Personal Data Protection Agency and the State of Montenegro, for a violation of their right to a private life, notably by the unauthorised collection and processing of data on them.
They submitted in particular that such an interference with their private lives, without any possibility to control that process, was not provided for by any piece of legislation and that therefore it had not been in accordance with the law, within the meaning of Article 8 § 2 of the Convention. They also maintained that it had not pursued any legitimate aim and had not been necessary in a democratic society. They relied on the relevant provisions of the Personal Data Protection Act, Article 8 of the Convention and the relevant case-law of the Court.
Domestic courts held that Article 8 had not been violated. The Court of First Instance for example found that the notion of private life certainly included activities in the business and professional spheres. However, the university was a public institution performing activities of public interest (inc teaching), and that it was thus not possible for video surveillance of the auditoriums as public places to violate the applicants’ right to respect for their private life. The lecture space was a working area, akin to  a courtroom or parliament, where professors were never alone, and therefore they could not invoke any right to privacy that could be violated. The data that had been collected could thereby also not be considered as personal data.

The Court further held that monitoring of actions taking place in public (in accord with the Court’s case-law) >was not an interference with a person’s private life when those means just recorded what others could see if they happened to be in the same place at the same time. The monitoring of the actions of an individual in a public place by the use of photographic equipment which just instantaneously recorded visual data did not give rise to an interference with that individual’s private life, which could arise once any footage of such material became publicly available. The Court  concluded that the installation and use of video surveillance and the collection of data thereby had not violated the applicants’ right to privacy and had therefore not caused them any mental anguish.

On appeal the European Court (by four votes to three) ruled that although the University is a public sphere, private life encompasses business and professional activities. Article 8 had been breached.

The compensation awarded was, from an Australian perspective, symbolic.

Antović and Mirkovic were awarded one thousand euros each in respect of non-pecuniary damage. They were awarded 1,669.50 euros jointly in respect of costs and expenses.

Plumbers and the French Disease

From Cynthia L. Haven's Evolution of Desire: A Life of René Girard (Michigan State University Press, 2018) -
The theatrics of Baltimore raise another important point, and one that’s emerged since. To put it bluntly: How much was pure sham, pure preening and ego jousting? At times, the mimetic rivalries and derivative desires seemed to be a showcase for the very principles Girard’s Deceit, Desire, and the Novel describes.
The American philosopher John Searle excoriated Derrida, insisting, 
You can hardly misread him, because he’s so obscure. Every time you say, “He says so and so,” he always says, “You misunderstood me.” But if you try to figure out the correct interpretation, then that’s not so easy. I once said this to Michel Foucault, who was more hostile to Derrida even than I am, and Foucault said that Derrida practiced the method of obscurantisme terroriste . . . And I said, “What the hell do you mean by that?” And he said, “He writes so obscurely you can’t tell what he’s saying, that’s the obscurantism part, and then when you criticize him, he can always say, ‘You didn’t understand me; you’re an idiot.’ That’s the terrorism part.”
Not everyone, of course, agrees with this reading—though many have criticized Derrida for his byzantine writing, with its italics, its phrases in phantom quotation marks, and its dizzying wordplay. Girard himself clearly felt respect, as well as dismay, for his colleague. Girard himself, although dismayed by the deconstructive frenzy Derrida wrought, clearly had respect for his colleague as well. In particular, he wrote and spoke admiringly of Derrida’s early essay, “Plato’s Pharmacy,” which anticipated his own insights in some respects.
To some extent, Searle’s criticism reflects the porous divide between analytic and continental philosophy, and the former still dominates the American intellectual landscape and our public discourse. Speaking very roughly, analytic philosophy focuses on analysis—of thought, language, logic, knowledge, mind; continental philosophy focuses on synthesis—synthesis of modernity with history, individuals with society, and speculation with application. Anglo-American philosophy has emphasized the former; mainland Europe the latter. Searle is aligned with the analytic camp; so is linguist and philosopher Noam Chomsky, one of America’s leading public intellectuals.
Chomsky called Lacan a “total charlatan” posturing for the television cameras, charging that “there’s no theory in any of this stuff, not in the sense of theory that anyone is familiar with in the sciences or any other serious field. Try to find in all of the work you mentioned some principles from which you can deduce conclusions, empirically testable propositions where it all goes beyond the level of something you can explain in five minutes to a twelve-year-old. See if you can find that when the fancy words are decoded. I can’t,” he said.
Searle’s and Chomsky’s critique is part of the American opposition that began in the 1980s, continuing the philosophical school of “American pragmatism” that looks for ideas to deliver some intellectual payoff. American pragmatists have been called “the plumbers of philosophy”—they attempt to solve problems, not provide elegant and clever descriptions of problems.
Perhaps questions should be practical, too. Sometimes a single naive question can bring down an entire edifice of thought. Let me extend a few naive questions, then, in that spirit: How is a philosophy embodied in the man who espouses it? What is a philosophy that does not change a man—not only what he says, but how he lives? How does a man’s being—the sum of his knowledge, experience, and will—“prove” his knowledge? Can we ever devise a philosophy, even a theory, wholly apart from who we are, and what we must justify? These questions were raised in earnest when Heidegger’s affiliation with the Nazis, and later Paul de Man’s complicity with them, were revealed. What does the test of time show us about the merits of an idea? However heated the arguments in the Parisian coffee shops, in the end, decades later, they would become systems of thought characterized by wordplay, mind games, and a noncombatant’s flexibility, charm, and elasticity—all delivered with an ironic wink.