Below is a slightly edited transcript.  It relevantly provides:

The article provides:

WASHINGTON — Americans overwhelmingly favor installing video surveillance cameras in public places, judging the infringement on their privacy as an acceptable trade-off for greater security from terrorist attacks, according to the latest New York Times/CBS News Poll.

The receptiveness to cameras on street corners reflects a public that regards terrorism as a fact of life in the United States — 9 out of 10 people polled said Americans would always have to live with the risk — but also a threat that many believe the government can combat effectively through rigorous law enforcement and proper regulation.

For all that confidence, there are lingering questions about the role of the nation’s intelligence agencies before the attacks, with people divided about whether they had collected information that could have prevented them (41 percent said they had; 45 percent said they had not).

The murkiness of the case — the Tsarnaev brothers’ ties to the Caucasus; the warnings from Russian intelligence about potential extremist sympathies — has clearly left an impression on the public. A majority, 53 percent, said the suspects had links to a larger terrorist group, while 32 percent said they had acted alone.

President Obama, in a White House news conference on Tuesday, defended the performance of the Federal Bureau of Investigation and the Department of Homeland Security, saying the agencies had done their job, while acknowledging, “This is hard stuff.”

The poll suggested that Americans are willing to tolerate further tough measures to foil future attacks. Sixty-six percent said information about how to make explosives should not be allowed on the Internet, where it would be available to aspiring terrorists, even if some would view that as a form of censorship. Thirty percent said it should be permitted in the interest of free expression.

More broadly, only 20 percent of people said they believed the government had gone too far in restricting civil liberties in the fight against terrorism, while 26 percent said it had not gone far enough and 49 percent said the balance was about right. In 2011, the share of those worried about losing civil liberties (25 percent) was larger than that favoring more intrusive government approach (17 percent).

“I know some people are paranoid about the government intruding on their privacy,” Judith Richards, a retired teacher from New Paltz, N.Y., said in a follow-up interview. “But with all the horrible things that have been happening, I think you have to trust this as a way to protect our well-being.”

Jennifer Lopez, 26, a saleswoman in Pembroke Pines, Fla., said: “There are cameras in stores and supermarkets. Our families would be safer and surveillance cameras would provide evidence to help agencies pursue people, like they just did in Boston.”

The nationwide poll of 965 adults was conducted on landlines and cellular phones from April 24 to April 28, five days after the manhunt for the surviving suspect in the Boston bombings, Dzhokhar Tsarnaev, ended with his capture in a backyard in Watertown, Mass. It has a margin of sampling error of plus or minus three percentage points.

Polls taken in the aftermath of terrorist attacks often show spikes in the public’s fears of another attack. In a CBS News poll a year ago, just 10 percent of people said another attack in the United States in the next few months was “very likely,” while 27 percent said it was “somewhat likely.” In the most recent survey, 24 percent said it was very likely and 42 percent somewhat likely.

There is also evidence that fears about immigrants have increased modestly. Forty-nine percent said the risk of terrorism had risen in the United States because of legal immigration. The last time that question was asked, in 2007, the percentage was 42 percent.

Still, other responses were unchanged since the Boston bombings: Twenty-three percent said they were very concerned about a terrorist attack in the area in which they live, about the same as said so in 2010. Fifty-six percent said they approved of Mr. Obama’s handling of terrorism, essentially unchanged from a CBS News poll in February.

Mr. Obama said the law enforcement system had functioned as it should in the days after the bombings. He also said the F.B.I. had properly handled the information it received from Russian intelligence agencies about the older of the two suspects, Tamerlan Tsarnaev, even as Mr. Obama conceded the difficulty of preventing attacks. “People, I think, understand that we’ve got to do everything we can to prevent these kinds of attacks from taking place,” Mr. Obama said. But he added, “We’re not going to stop living our lives because warped, twisted individuals try to intimidate us.”

Underscoring the president’s point, a large majority of those polled, 72 percent, said they did not plan to avoid large public events to reduce their exposure to potential terrorist attacks. That confidence came even as people were divided about whether their state and local authorities were prepared to deal with such an attack (48 percent said they were prepared; 41 percent said they were not).

Federal and local law enforcement agencies won high praise in the poll for their handling of the bombings — 84 percent approved — and some people in follow-up interviews seemed to regard the way the F.B.I. worked with the Boston and other police forces as a template for the future.

“If we’re going to have to live with the threat of terrorism, I think it is incredibly important that it be controlled at the local level,” said Lynn Francis, 52, a retired insurance agent in Rowlett, Tex. “If there is national intelligence, it needs to be shared with local government as quickly as possible and followed up on. National and local authorities should work together.”

Kath Buffington, a retired teacher from Rochester, N.Y., said she was rattled by the images of a locked-down Boston, even if it was warranted in this case. But she said that in a country dealing with the threat of terrorism since the September 2001 attacks, the fight against it should not be a pretext for more pervasive forms of surveillance.

“I don’t have a problem with cameras as long as they are public,” Ms. Buffington said. “But wiretapping without a warrant goes too far, now that the immediate 9/11 crisis is over.”

The effectiveness of CCTVs in preventing organised terrorist acts is at best arguable.  They are far more effective in investigating the crimes, that is after the event has taken place.  For example the London bombings on 7 July 2005 were not thwarted by the ubiquity of that city’s CCTV network. The sober reality is that the collection by human intelligence and traditional forms of investigation and policing are are more effective in preventing crimes.  The recent arrest of suspects in Al Quaeda conspiracy to derail a train in Canada was thwarted by human intelligence, not CCTV.  See article here.

The cost in establishing, manning and maintaining a CCTV network to the required standard is enormous.   Installing an extensive surveillance network and not funding it gives a misleading sense of security.  It is a recipe for failure.

Major criminal or terrorist events are triggers for a, often temporary, re evaluation of individual rights.  Government action in that environment is often excessive and poorly targeted.  The US is still struggling with the poorly drafted Patriot Act.  The military commission structure to handle prosecutions of detainees in Guantanamo Bay is moribound.

A pause is needed before any action is taken.  Benjamin Franklin, a Bostonian, said “Those who would sacrifice freedom for security deserve neither”.  Words to live by.

]]> http://www.peteraclarke.com.au/2013/05/04/new-york-times-poll-on-camera-surveillance-after-boston-bombing/feed/ 0 http://www.peteraclarke.com.au/2013/04/26/tweets-last-forever-heres-the-proof/ http://www.peteraclarke.com.au/2013/04/26/tweets-last-forever-heres-the-proof/#comments Fri, 26 Apr 2013 07:09:22 +0000 Peter Clarke http://www.peteraclarke.com.au/?p=3209 Recently the World Today the report UK youth commissioner under fire over foul tweets highlights the permanence of the cybersphere and what one in the full bloom of fiery youth may regret as the rules of polite society beckon.  Woad warriors could transform themselves into paragons of virtue pre internet.  Memories fade and plausible deniability is an active option. Now the the Net sets all matters in in cyber concrete.  This has had an impact lately on Paris Brown.

The story provides:

ELEANOR HALL: Teenagers are often warned about what they say on social media sites: that they could come back to haunt them in later life.

A young woman in the UK didn’t have to wait long.

17-year-old Paris Brown’s position as the country’s first Youth Police and Crime Commissioner has been put in doubt by the publication of a string of offensive tweets from her account, as Europe correspondent Barbara Miller reports.

BARBARA MILLER: Paris Brown was chosen from dozens of young applicants to be the UK’s first Youth Police and Crime Commissioner. Many no doubt were attracted in part by the more than $20,000 in salary on offer.

The role was to liaise between police and young people in the county of Kent in south-east England. Her apprenticeship was going well, until someone checked her Twitter account.

There they found racist tweets, homophobic tweets, ones that made reference to sex and drug-taking. Paris Brown says she is sorry for any offence caused on the now-deleted account.

PARIS BROWN: All teenagers make mistakes, all teenagers think at one point, oh I’m annoyed, write something stupid. If you look back at… I look back on our Facebook statuses or tweets that I wrote when I was, like, 13, and they’d just make you cringe. Not because they’re offensive, but because they’re just stupid.

And it is. It’s an age thing. When you are a young person, you do have views that you don’t really agree with yourself.

BARBARA MILLER: The 17-year-old says people her age sometimes tweet before thinking:

PARIS BROWN: Older generations haven’t grown around, grown up with Twitter, social media. They know how to sort of, maybe talk to other people about it, but for young people it’s different. We don’t want to bother people with your problems; you just think, oh I’m annoyed, tweet.

BARBARA MILLER: Paris Brown is adamant that she doesn’t hold the views the tweets appeared to represent.

PARIS BROWN: I’m not homophobic. (upset) I’m not racist. I don’t condone drug-taking. And I do not (upset)…I don’t want people judging me based on a few stupid things that I wrote which I didn’t mean, which were taken out of context, which were not meant as they are portrayed.

BARBARA MILLER: Questions are being asked about whether Paris Brown really is the right person for the job.

Labour MP Keith Vaz is the chairman of the Commons Home Affairs Select Committee.

KEITH VAZ: Of course it’s refreshing to have people in these posts, and I congratulate Ann Barnes for thinking of having the post of Youth and Crime Commissioner, but I just question whether she did proper scrutiny, asked the right questions. These kinds of statements ought to have been dealt with before the appointment.

BARBARA MILLER: Kent’s independent police and crime commissioner Ann Barnes recruited Paris Brown.

She says she has no regrets.

ANN BARNES: I do not condone one single solitary word of these terrible tweets of Paris’. I’m as ashamed of them as she is and her parents are. But you know, she made them – a few out of 4,000 – horrible though they were, when she was 14, 15, 16-year-old. It would be awful for me to stop her having a life chance for something that was done when she was so young, and for which she is truly, truly sorry.

And I hope she really thinks seriously about what she’s done – well, I know she’s going to. And I don’t regret making the appointment, no.

BARBARA MILLER: Ann Barnes says it would be a sorry state of affairs if everyone’s future were determined by what they wrote in social networking sites between the ages of 14 and 16. She at least is prepared to give Paris Brown a second chance.

On Twitter, some users are not nearly so forgiving.

]]> http://www.peteraclarke.com.au/2013/04/26/tweets-last-forever-heres-the-proof/feed/ 0 http://www.peteraclarke.com.au/2013/04/21/violet-homes-loans-pty-ltd-v-schmidt-anor-2013-vsca-56-25-march-2013-unconscionable-conduct/ http://www.peteraclarke.com.au/2013/04/21/violet-homes-loans-pty-ltd-v-schmidt-anor-2013-vsca-56-25-march-2013-unconscionable-conduct/#comments Sun, 21 Apr 2013 10:08:15 +0000 Peter Clarke http://www.peteraclarke.com.au/?p=3154 In Violet Homes Loans Pty Ltd v Schmidt & Anor [2013] VSCA 56 the Court of Appeal unanimously upheld the trial judge’s decision that a mortgage originator

FACTS

In Perpetual Trustees Australia Limited v Schmidt & Anor [2010] VSC 67 the trial judge, J Forrest J, found that Violet Homes Pty Ltd (“Violet”) had acted unconscionably and in breach of the general law, section 51AC of the Trade Practices Act and section 12CB of the Australian Securities and Investment Commission Act 2001.

In 2003 the Plaintiff (“Schmidt”) responded to an advertisement which claimed an investment of $40,000 in  syndicate would lead to a net return of $80,000 within 12 months.  Schmidt range the number given and spoke to a Mr Maddocks (“Maddocks”).  In next month he invested $80,000 in the syndicate.  obtained a line of credit from Perpetual Trustees Australia Ltd [12].  In early 2004 Maddocks pursuaded Schmidt to make further investments.  Schmidt was unable to borrow from his bank, the Bank of Melbourne, because he was a pensioner who had no capacity to repay [13].  Maddocks arranged a loan for Schmidt from Perpetual, preparing the loan application and income declaration.  The documents contained false information, as to Schmidt’s employment situation and his annual income.  Schmidt did not provide the false information but signed the documents without reading them [14].  The documents were provided to a finance broker, Medallion Finance Concepts (“Medallion”) who onforwarded them to Violet [16]. Responding to querries by Ms Bonnici a credit officer at Violet, including a failure to provide an ABN, raised Maddocks prepared an amended the application and had Schmidt sign it [20].  At no time did anyone from Violet deal with Schmidt directly.

DECISION

Unconsionability

The Court found that “..recklessness, in the form of wilful blindness, may in some cases supply the necessary element of moral obloquy”[58].  The court said that there was limited use in comparing facts of particular cases to determine whether the facts in question is unconscionable, by way of compare and contrast.  Rather, the court said “.. the task requires a more synthesised approach which takes into account all of the facts relevant to the impugned conduct and determines whether, in all the circumstances, that particular conduct is unconscionable” [59]. In this case:

Here, the discrepancy in the figures in the loan application and income declaration, not just once, but twice and the absence of an ABN, which was requested but never provided, ought to have raised the suspicion of Violet that something may be amiss with the application.

The fact that Violet did not comply with its own procedures told against it in light of its other failures with the court stating, at [67]:

However, sometimes a risk eventuates and, depending on all the circumstances, the lender may be held responsible for the consequences, partly because the very system the lender has established facilitates the perpetration of frauds upon borrowers. No doubt lenders take this into account when pricing their products and determining that, overall, it is in their commercial interests to proceed with the simplified and, in some senses, automated, processing and outsourcing of lending functions.

In light of that the court said, at [68], that:

So it was that when the revised forms were submitted with a reduced figure for Mr Schmidt’s income and no ABN, Ms Bonnici did not question this nor examine nor question more closely the other matters that suggested all was not right (for example the payment of interest out of capital in the Assetbuilder Loan account and Mr Schmidt’s age) that ought to have been apparent from the other information provided. In those circumstances, and without a satisfactory explanation, the failure of Violet to conduct an interview (by telephone or in person) was reprehensible. Whilst a failure to conduct an interview and thus comply with the guidelines may not of itself constitute unconscionable conduct in the generality of cases, in the circumstances of this case, that failure strongly supports the proposition that Violet’s conduct was unconscionable.

Section 12CB of ASIC Act

Section 12CB prohibits unconscionable conduct in relation to a consumer.  The appellant claimed that Schmidt’s application was for business credit, not “..were not of a kind ‘ordinarily acquired for personal, domestic or household use’ and therefore not subject of section 12CB.

The Court undertook an anlaysis of the authorities ([72]- [74]) in particular Young J in Bunnings Group Ltd v Laminex Group Ltd where the applicable principles were described as:

(a) the word ‘ordinarily’ means ‘commonly’ or ‘regularly’, not ‘principally’, ‘exclusively’ or ‘predominantly;

(b) it is preferable to ask whether the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption as a single composite question. His Honour referred to a passage from Clean Investments Pty Ltd v Commissioner of Taxation:

For example, an architect’s stool, an office chair and a kitchen stool or chair may be described as ‘stools’ or ‘chairs’ and their purpose as being ‘to provide seating’. Yet it would be wrong to conclude that the architect’s stool or the office chair is of a kind ordinarily used for household purposes for no other reason than that, like the kitchen chair, it is ordinarily used for the purpose of providing seating^.

(c) depending on the precise statutory question and the circumstances of the particular case, it will be relevant to inquire as to the essential character of the goods in question;

(d) the question is ultimately a question of fact and degree^.

and found, at [75] the financial services were of a kind ordinarily acquired for personal use [75] stating:

“.. it is now not uncommon for funds to be borrowed by retirees and used in investment projects, such as the project that Mr Schmidt thought he was investing in. Indeed, the advertisements to which Mr Schmidt responded were headed ‘Retirees/Investors/Superannuation’. Moreover, the type of ‘low doc loan’ obtained by Mr Schmidt was only available if the security property was residential with a loan to value ratio of 80 per cent. The maximum amount that could be borrowed was $600,000. Ordinarily, that type of loan is one that is used for personal investment, rather than for the operation of what might be described as an investment business. ..”

Trade or Commerce

 While the Court was not required to consider whether there was a contravention of section 51AC of the Trade Practices Act they cited with approval the New South Wales Court of Appeal in Kowalczuk v Accom Finance Pty Ltd where the Court stated:

“..a transaction is entered ‘for the purpose of trade or commerce’ when it is entered to enable some further activity, that has itself a trading or commercial character, to be engaged in. For a private individual, or a private individual’s company, to make an investment is not, in my view, to enter a transaction ‘for the purpose of trade or commerce’ when it is not itself a part of a business of investing…”

ISSUE

In this case the Court found the recklessness in the form of wilful blindness gave rise to a claim of unconscionable conduct. Unconscionable conduct is a developing area of equity and this case highlights the latest development in expanding the potential liability of financial service providers (and advisors). Here the court was critical of the creditor who breached its own protocols to effect the loan.

“..first, whether if a debt is relied upon for the issue of the bankruptcy notice and as an act of bankruptcy, that debt must continue to be owing at the time when the creditor’s petition is heard for the Court to make a sequestration order; secondly, if the debt is no longer owing at that time, whether the petitioning creditor can rely upon a later debt which first arose after the act of bankruptcy and after the filing of a creditor’s petition; and thirdly, if that debt can be relied upon at the hearing of the creditor’s petition and at the time of the making of the sequestration order, must that debt be for a liquidated sum.”

Facts 

The Appellant (“McCracken”) and the Respondent (“Phoenix”) were involved in a proceeding which culminated in judgement being entered for Phoenix in the sum of $2,025,212.17 on 15 June 2011. On 7 July 2011 the official receiver issued a bankruptcy notice directed to McCracken [4]. On 12 July 2011 McCracken filed a notice of appeal [5] and on 13 July the trial judge ordered McCracken to pay Phoenix’s cost of the proceedings [6]. Those costs were never assessed. On 10 August 2011 a bankruptcy notice was served on McCracken [12] with Phoenix filing a creditor’s petition on 11 August 2011. The creditors petition relied on a number of acts of bankruptcy including McCracken absenting himself from Australia and his dwelling house to avoid service. It did not rely upon the appellants failure to pay the judgement sum [13].  On 27 September 2011 in the Court of Appeal refused McCracken’s application for a stay of the judgement [15] and the Federal Magistrates Court refused his application for a stay of the bankruptcy proceeding [16]. On 18 October 2011 Phoenix filed an amended creditors petition relying upon McCracken’s failure to comply with the bankruptcy notice [17].

On 18 May 2012 the Court of Appeal allowed McCracken’s appeal and set aside the orders made by the trial judge [19]. On 19 July 2012  the Federal Magistrates Court heard the petition and made a sequestration order against McCracken on 14 September 2012 [22]. Their Honours’ noted that at the time the Federal Magistrates Court heard the creditor’s petition the debt which was relied on in both the bankruptcy notice and the creditor’s petition no longer existed, having been discharged by the Court of Appeal [23]. The Federal Magistrate concluded that even though the amount may have changed there was an ongoing debt that which was still doing due and owing [31] and that once an act of bankruptcy had been committed it remained available for the purposes of a sequestration order and did not rely on other acts of bankruptcy relied upon by Phoenix, such as the conduct of the appellants to avoid service [33].

Decision

Where the debtor who has committed an act of bankruptcy is ordinarily resident in Australia the court may make a sequestration order against the estate of the debtor [51].  The first requirement to found that jurisdiction is that the debtor has committed an act of bankruptcy [52]. The second necessary fact is that the debtor comes within one of the descriptions and section 43(1) (b) of the Bankruptcy Act 1966 (the “Act”).

The Court found that whilst the debt need not be the same debt as was relied upon to the act of bankruptcy it must be a debt which existed at the time of the act of bankruptcy [63]. The debt must also be a debt for liquidated sum payable immediately or at a certain future time [65].  Section 52 (1) requires the creditor by affidavit or viva voce evidence of the matters stated in the petition. That requires proof that an act of bankruptcy occurred as alleged in the proof of debts relied upon in the creditors petition and they can only be those that existed at the time of the act of bankruptcy occurred and when the creditors petition was presented [77]. The creditor must also prove that the debts on which the petitioning creditors rely is or are still owing [79].

The Court found that at the time a hearing of creditor’s petition the debt which was created by the judgement of the Supreme Court of Queensland and relied upon in the act of bankruptcy and in the petition no longer existed [91]. Phoenix could not rely upon it therefore could not satisfy section 52(1)(a) of the Act. Phoenix could not have relied any judgement debt in the form of a costs order.  That order only came into existence on 18 May 2012. Further that order in any event was not a debt for liquidated sum [94] and the debt could not become a liquidated sum until the procedures had been finalised and the registrar had made an order in the assessors certificate [94].

The Court rejected Phoenix’s submission that it had not engaged a costs consultant because the McCracken was insolvent and it would not have recovered the costs of the assessment and McCracken could have required Phoenix to assess the costs. Their Honours also rejected Phoenix’s  submission that an approved costs assessor had provided opinion that the costs could have been assessed at about $400,000 which could be relied upon [96].  As such no sequestration order could have been made because it is a prerequisite for the making of such an order that at the time of the orders made the creditor is able to provide a liquidated sum in excess of $5000 (section 41 (1) (b) (i)).

Issue

That bankruptcy notices and creditor petitions are technical documents which must comply with the Act is trite  This decision highlights the great care in determining what is the debt upon which a notice or petition applies and what act of bankruptcy is relied upon.  The fact situation in this case is unusual but highlights the need to always refer back to the legislation to determine whether the creditor’s position changed vis a vis the debtor.  Phoenix found itself without a judgement debt and while it had obtained a costs order its favour it had not assessed that order so that it could be calculated and a certificate issued for liquidated sum. Notwithstanding that, it pressed on with and the court found the fatal flaws in the petition.  Lander J’s decision will be quite influential as he  undertook a very detailed and useful analysis of the operation of bankruptcy notices and creditors petition.

]]> http://www.peteraclarke.com.au/2013/04/21/mccracken-v-phoenix-constructions-queensland-pty-ltd-2013-fcafc-41-18-april-2013-bankruptcy-whether-debt-owing-at-time-of-bankruptcy-sections-441-and-521-of-bankruptcy-act/feed/ 0 http://www.peteraclarke.com.au/2013/04/14/google-chief-raises-privacy-issues-about-drones/ http://www.peteraclarke.com.au/2013/04/14/google-chief-raises-privacy-issues-about-drones/#comments Sun, 14 Apr 2013 03:48:55 +0000 Peter Clarke http://www.peteraclarke.com.au/?p=3225 Who would have thought someone from Google would raise worries about privacy……..about anything.  But it has happened.  In Google chief urges action to regulate mini-drones Eric Schmidt raises privacy and security concerns about drones.

The article provides:

The influential head of Google, Eric Schmidt, has called for civilian drone technology to be regulated, warning about privacy and security concerns.

Cheap miniature versions of the unmanned aircraft used by militaries could fall into the wrong hands, he told the UK’s Guardian newspaper.

Quarrelling neighbours, he suggested, might end up buzzing each other with private surveillance drones.

He also warned of the risk of terrorists using the new technology.

Mr Schmidt is believed to have close relations with US President Barack Obama, whom he advises on matters of science and technology.

“You’re having a dispute with your neighbour,” he told The Guardian in an interview printed on Saturday.

“How would you feel if your neighbour went over and bought a commercial observation drone that they can launch from their backyard. It just flies over your house all day. How would you feel about it?”

Warning of mini-drones’ potential as a terrorist weapon, he said: “I’m not going to pass judgment on whether armies should exist, but I would prefer to not spread and democratise the ability to fight war to every single human being.”

“It’s got to be regulated… It’s one thing for governments, who have some legitimacy in what they’re doing, but have other people doing it… it’s not going to happen.”

Small drones, such as flying cameras, are already available worldwide, and non-military surveillance were recently introduced to track poachers in the remote Indian state of Assam.

The US and Israel have led the way in recent years in using drones as weapons of war as well as for surveillance.

America’s Federal Aviation Administration is currently exploring how commercial drones, or unmanned aircraft systems, can be safely introduced into US airspace.

Everything Schmidt says is absolutely correct.  Some form of regulation is required, both as to how they operate but also (and distinctly) the privacy protections.  In Australia CASA would regulate the nuts and bolts use of drones; high low they can fly, where they are not permitted to go (eg airports, near power lines etc) but such regulation generally does not work well in providing a coherent legal framework in protecting privacy.  It is possible for an operator to be properly licensed, to use a drone which complies with all specifications and fly within permitted areas and still egregiously interfere with someone’s privacy.  There needs to be civil penalties for interference with privacy which can be used by individuals and the Privacy Commissioner. Sometimes an individual  will prosecute a claim where the Privacy Commissioner will not because of resourcing or policy issues.  Other times the Privacy Commissioner will take action where individuals have no resources.  What is often forgotten in this discussion is the failure of State Governments to provide adequate privacy protections.  It is not a Commonwealth issues per se.  State laws could affect how drones are used in both public places and on or over private properties. The Victorian Government was provided with a report from its Law Reform Commission in 2010 recommending a statutory right or privacy.  It did nothing.  A failure to provide adequate privacy protections in Victorian is a shared failure of both the State Government and the Commonwealth.

The homepage for the conference is found here. The tentative agenda is found here.

I will be on a panel on Sunday 5 May 2013 covering Reputation and Identity Online.  My presentation is titled Managing Online Identity.

The agenda relevantly provides:

FACTS

In approximately 2006, the Complainant forwarded an unsolicited email application to an employee of the Respondent for a job. This application contained a covering letter and details about the Complainant’s qualifications.

Subsequently, this application was uploaded to a personal blog website by an employee of the Respondent. The uploaded information contained extracts of the Complainant’s application together with  unfavourable remarks about the Complainant’s qualifications and the application.

The website was available online and without any restrictions as to who could view it. Additionally, other unidentified individuals had made further negative statements in the ‘comments’ section of the website about the Complainant’s application and qualifications.  In June 2012, the Complainant became aware of the website when he was directed to it by a friend.

The Respondent conceded that a breach of the Complainant’s privacy had occurred. It  provided a written apology to the Complainant, instructed the employee to remove the material from the website and that employee was directed to attend privacy training. The Respondent argued that the organisation was unaware of the employee’s actions until the complaint was raised and was therefore unable to take reasonable steps to protect or secure the Complainant’s personal information. The Respondent argued that it had adequately dealt with the complaint under section 29(1)(h)(i) of the Act and requested the Acting Commissioner exercise his discretion to decline the complaint.

DECISION

The Acting Commissioner found the Respondent had not taken reasonable steps to protect the personal information it held from misuse and disclosure (IPP 4.1) or inaccuracy (IPP 3.1). There also appeared no grounds under IPP 2 that supported the disclosure.

The Commissioner also found that actions of an employee are generally attributable to an organisation (here, the Respondent) and that the Respondent had not provided evidence to support what steps the Respondent had taken to educate the employee on their responsibilities under the Information Privacy Act.

The Commissioner considered that there was merit in referring the complaint to conciliation to resolve the matter.

ISSUE

The Privacy Commissioner was correct to reject the Respondent’s claim that it could not be responsible for the breach as it was not aware of the posting.  Once the application came into the possession of the employee of the Respondent it was the Respondent’s responsibility to maintain proper record of the document and ensure it was secured adequately.  That an employee could take it and upload it onto a web site and have other members of the public comment on it is a very serious breach of privacy.

It is an indictment on the structure of reportage that the department or agency is not named.  That is the best way of rectifying poor management and poor insight.  That the respondent agency/department could somewhat argue that it was not ultimately responsible for the breach is indicative of arrogance, a lack of understanding of the Information Privacy Act or breathtakingly incompetent legal representation.  Or a combination of all three factors.

It provides:

Strip club operator Maxine Fensom is being sued for defamation by liquidator Glenn Crisp over photographs of him in ”compromising positions with strippers” that were passed on to a man with alleged links to outlaw motorcycle gangs.

Mr Crisp alleges Ms Fensom took photographs without his knowledge on a Yarra River boat cruise in 2012, which he claims cost him his $600,000 a year job and portrayed him as ”a person of disrepute”.

Ms Fensom allegedly copied the photos on to a disk, which was found in the office of Steve Iliopoulos, the director of trucking company Viking Group. Mr Crisp was in charge of liquidating Viking Group.

Mr Iliopoulos, who is fighting fraud charges totalling $33 million over the collapse of Viking Group, has been linked in evidence to the Victorian president of the Comancheros outlaw motorcycle gang, Amad ”Jay” Malkoun.

In a writ filed with the Supreme Court of Victoria, Mr Crisp claims he was invited on to the cruise where ”Ms Fensom attended together with a number of waitresses and erotic dancers”. ”During the course of the boat cruise, without Mr Crisp’s knowledge or consent, Ms Fensom took photographs of Mr Crisp in the company of strippers as they performed,” the writ claims.

Forensic examination confirmed the photos were taken ”on Ms Fensom’s Apple iPhone 3GS mobile phones during the course of the boat cruise”, according to the writ.

Mr Crisp said on Thursday: ”I am after damages for whatever has happened to me.”

Ms Fensom said she did not know Mr Crisp or Mr Iliopoulos and was unaware of the writ.

”I take photos all the time. Everyone knows I video a lot of my events. I had no complaints from this person or any other person in regard to functions and taking photos,” she told Fairfax Media.

Mr Crisp’s writ claims the explicit photos were discovered on a disk two weeks later following a search of Mr Iliopoulos’ office by security staff hired by his then-employer RSM Bird Cameron.

On April 5 the security staff allegedly passed the photos on to RSM executive Andrew Beck.

Mr Crisp claims that because of the photographs he was stripped of a $200,000 share in RSM’s profits and fired from his job on April 16. The defamation occurred when photos taken by Ms Fensom were viewed by other people.

Mr Crisp is claiming general damages and loss of income of $2.6 million.

This includes the difference between what he could have earned at RSM over the next 13 years and the $400,000 a year job he holds at Jirsch Sutherland.

In separate County Court proceedings, RSM last year alleged Mr Crisp transferred $500,000 in fees earned from an insolvency job into a personal bank account.