Google’s tangles with the regulators continue with French regulator fining it 80 million for breach of GDPR

January 23, 2019

Facebook had a worse 2018 than Google but to a large extent that is merely a matter of degree. Facebook’s travails with its association with Cambridge Analytica and not doing much with the proliferation of false news stories planted by Russia and other actors made 2018 an annus horribilis. Google has had to deal with the phenonama of false news issues as well as years of litigation in the European Union, the UK and Australia.
It might be that Google will have a hotter time of it in 2019 with the French Regulators, the National Data Protection Commission, fining it 50 million euros for not getting valid user consent to gather data for targeted advertising. The regulators claim that Google breached the GDPR, the General Data Protection Regulation.

Read the rest of this entry »

US District Court of California rules that police can not force people to unlock a mobile phone with their face or finger

January 17, 2019

Courts generally have found the rapid changes in technology a challenge when applying and sometimes adapting legal principles. That is particularly so regarding privacy protections and when a search warrant is required. Smart phones can, and often, do contain more data than the physical contents of a person’s office, a photo collection and diary. While a search warrant is required to enter and search a house police try and often succeed in forcing a person to open their phone to prying eyes. The principle is the same even if the physical circumstances differ. There have been appalling acts of intrusion with no oversight regarding the actions of Australian Border Force officers.

Police databases and breaches of privacy

January 15, 2019

Police databases are a critically important investigative tool. They enable police to locate suspects, confirm addresses, check car ownership and registration and generally access information about individuals, often provided to the many governmental agencies through compulsion. It is then concerning when police abuse their powers to access data bases. There have been reports of such breaches in Queensland and Victoria.

Read the rest of this entry »

Its late but still worth it…yes Virginia there is a Santa Claus

December 26, 2018

It is an annual tradition which strays from legal analysis and commentary on this page; posting the wonderful piece, Yes Virginia there is a Santa Claus to brighten up my invariably grey offerings.  I publish it every year, invariably before Christmas (my bad this year).  I publish it because it is, first, wonderful prose.  Crisp, short sentences that get straight to the theme and avoids mawkish sentimentality.  Second, like all good writing, it speaks a truth.  It proudly and unequivocally rejoices in optimism and speaks out against a cynicism (though the piece describes it as a skepticism) which is an ill that hurts the psyche and harms communities.   Third, it is short.  It says what it wants to say as economically as possible and then stops.  Modern commentators are masters of bloviation and repetition. They should read this prose, as well as offerings of Orwell and Waugh to relearn, or sometimes even learn, how to write.

To write as well as Francis Pharcellus Church, the editorial writer at the New York Sun, would be a wonderful achievement.

It has held up very well over the years.

DEAR EDITOR: I am 8 years old.
Some of my little friends say there is no Santa Claus.
Papa says, ‘If you see it in THE SUN it’s so.’
Please tell me the truth; is there a Santa Claus?

VIRGINIA O’HANLON.
115 WEST NINETY-FIFTH STREET.

VIRGINIA, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men’s or children’s, are little. In this great universe of ours man is a mere insect, an ant, in his intellect, as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, VIRGINIA, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no Santa Claus. It would be as dreary as if there were no VIRGINIAS. There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.

Not believe in Santa Claus! You might as well not believe in fairies! You might get your papa to hire men to watch in all the chimneys on Christmas Eve to catch Santa Claus, but even if they did not see Santa Claus coming down, what would that prove? Nobody sees Santa Claus, but that is no sign that there is no Santa Claus. The most real things in the world are those that neither children nor men can see. Did you ever see fairies dancing on the lawn? Of course not, but that’s no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

You may tear apart the baby’s rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest man, nor even the united strength of all the strongest men that ever lived, could tear apart. Only faith, fancy, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, VIRGINIA, in all this world there is nothing else real and abiding.

No Santa Claus! Thank God! he lives, and he lives forever. A thousand years from now, Virginia, nay, ten times ten thousand years from now, he will continue to make glad the heart of childhood.

For some background the Washington Post’s ‘Is there a Santa Claus?’: How a child’s letter inspired the classic ‘Yes, Virginia’ response.

ACCC releases preliminary report on Google, Facebook and Australian news with significant recommendations on privacy law

December 10, 2018

Nature abhors a vacuum.  That truism tends to apply, eventually, in law as in the natural world.  Gaps in the law that are not filled by regulations are, often with baby steps, attended to by the courts.  Similarly a failure by one regulator to attend to its garden will often find another regulator, with aligned interests, stepping in to carry the weight.  And it is that last circumstance that applies with the ACCC’s preliminary report into Google, Facebook, Australian News and advertising.  Amongst the  11 preliminary recommendations the ACCC proposes at recommendations 8 – 10 increasing privacy protections by amendment to the Privacy Act 1988 to improve notification requirements, strengthening consent requirements, enabling the erasure of personal information, enabling a person to bring an action for breach of the Privacy Act and introducing an action for serious invasion of privacy.  The Information Commissioners’ Office has Read the rest of this entry »

Jolimont Heights Pty Ltd v Ryan [2018] VSC 678 (9 November 2018): section 459 of Corporations Act, application to set aside statutory demand, genuine dispute

November 22, 2018

The Victorian Supreme Court, per Matthews JR, considered an application to set aside a statutory demand in  Jolimont Heights Pty Ltd v Ryan [2018] VSC 678.

FACTS

Jolimont Heights Pty Ltd (‘JH’), made an application pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Act’) by originating process dated 9 July 2018 to set aside a statutory demand dated 19 June 2018 (‘Statutory Demand’)  [1].

The application was made under s 459H &/or s 459J on the basis:

  • there was a genuine dispute as to the existence of the debt
  • due to some other reason, being that the Statutory Demand was defective  [2].

In support of its application, JH relied on Read the rest of this entry »

Guy Fawkes Day – Remember remember the fifth of November

November 5, 2018

The whole Guy Fawkes story and its consequences is so compelling that it often inspires me to break policy and write on a non legal subject.

For starters there is the wonderful ditty/ poem or piece of doggerel:

Remember, remember!
The fifth of November,
The Gunpowder treason and plot;
I know of no reason
Why the Gunpowder treason
Should ever be forgot!
Guy Fawkes and his companions
Did the scheme contrive,
To blow the King and Parliament
All up alive.
Threescore barrels, laid below,
To prove old England’s overthrow.
But, by God’s providence, him they catch,
With a dark lantern, lighting a match!
A stick and a stake
For King James’s sake!
If you won’t give me one,
I’ll take two,
The better for me,
And the worse for you.
A rope, a rope, to hang the Pope,
A penn’orth of cheese to choke him,
A pint of beer to wash it down,
And a jolly good fire to burn him.
Holloa, boys! holloa, boys! make the bells ring!
Holloa, boys! holloa boys! God save the King!
Hip, hip, hooor-r-r-ray! Read the rest of this entry »

Drones used to stalk victims, in ongoing issue of drones and privacy

October 1, 2018

The ABC in Perpetrators using drones to stalk victims in new age of technology fuelled harassment  again highlights what has long been known about the potential of drones for being an effective privacy invasive tool. It also goes on to set out the range of ways new technology is being used to interfere with privacy and harrass.  All the while the law lags.

In the United States there have been specific state laws to Read the rest of this entry »

Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018 passed into law

August 22, 2018

The Government has amended the Broadcasting and Enhancing Online Safety Act 2015 by giving the eSafety Commissioner with powers to seek civil and criminal penalties to deal with image based abuse, mainly revenge porn in practical terms.  The civil penalties apply for failing to remove images and criminal penalties for transmitting private sexual material or a if there has been 3 civil penalty orders made against a person.

In principle the laws are welcome.  In practice it really depends on the vigour of the eSafety Commissioner.  Australia has a poor reputation in regulating privacy infringing behaviour.  The amendments themselves highlight a very process laden means of achieving a legislative end. It

What is more than passing strange is that for all of these amendments the Government has not provided individuals with the power to take enforceable action relating to an interference with their privacy, either under the Enhancing Online Safety or the Broadcasting Acts.  Everything must be channeled through the eSafety Commissioner.  That might work for some or many people but others may wish to take steps themselves, such as obtaining compensation as well as taking down the images.  It is a somewhat patronising omission. It is also the triumph of bureaucracy over freedom of the individual to take action in their own right.

A statutory cause of action for interference with privacy is the simple and straightforward way of giving individuals a right to take action.   This has been suggested for many years but most formally by the Australian Law Reform Commission in 2008 and again in 2011.  It has been emphatically rejected by the current government and ignored by the previous government.  In short there has been a bipartisan policy failure in this area. Read the rest of this entry »

The Government agrees to amend My Health Records Act and provide greater privacy protections. It would be better to ditch the legislation entirely.

July 31, 2018

The My Health Records Act 2012 is a dreadful piece of legislation.  Privacy professionals have known this for some time.  They have been saying it for some time.  While the system involved voluntary placement of records onto the systems the Government could avoid grumblings from various groups.  The Privacy Commissioner was on an extended tea break on the issue.  Nothing new there. So the legislation was untouched and the agency responsible for its management, the ADHA, filled forms, ignored complaints and generally kept a low profile.

Then the opt out provisions came into effect and various commentators “discovered” the privacy invasive aspects of the system. Janet Albrechtson took up the cudgels as did Peter Van Onsolen at News Ltd.  Similar negative treatment came from Read the rest of this entry »