Peter A Clarke

The Internet Corporation for Assigned Names and Numbers (ICANN) has given the .XXX top-level domain (TLD) its final seal of approval.

The TLD is meant to give pornographic websites a clearly marked home on the Internet, but it has gone through so many ups and downs over the last 11 years that it’s almost a shock that it has finally gone through. Still, the measure didn’t pass without opposition—nine ICANN board members voted in favor of .XXX, while three opposed and four abstained—and the vote went against the recommendation of ICANN’s Government Advisory Committee.

The .XXX TLD was initially proposed by ICM Registry in 2000 and resubmitted in 2004, but it faced strong opposition from politicians and conservative groups. After the second .XXX proposal was approved in 2005, the Family Research Council (FRC) launched a campaign arguing that the TLD would allow pornographers to “expand their evil empires on the Internet.” The porn industry opposed the TLD as well, arguing that it would lead to censorship and promote legislation harmful to the industry.

ICANN’s board of directors ultimately rejected .XXX in 2006, concerned that the TLD might make ICANN responsible for enforcing laws and regulations over Internet porn. Read the rest of this entry »

According to EPIC Facebook has indicated in a letter that it will go forward with a proposal to provide users’ addresses and mobile phone numbers to third-party application developers, including anyone who writes games or applications that use the Facebook platform. The developers would be able to ask users for their contact information, and the user would have to give permission by clicking the “allow” button before they accessed the application.

Facebook’s comments came in response to Read the rest of this entry »

The EU is to force Facebook and other social networks to set high standards on default settings and give control over data back to the user.

EU justice commissioner Viviane Reding stated:

“I want to explicitly clarify that people shall have the right – and not only the possibility – to withdraw their consent to data processing,” Reding said. “The burden of proof should be on data controllers – those who process your personal data. They must prove that they need to keep the data, rather than individuals having to prove that collecting their data is not necessary.”

In the Guardian article Reding’s spokesman, Matthew Newman is quotated as saying:

“A year ago she issued Facebook a warning because the privacy settings changed for the worse and now she’s legislating to put flesh on those bones.”

Facebook profiles have been accessible by default since January last year. Users have to opt in to ensure that their photographs and other information can be viewed only by friends.

Newman said companies “can’t think they’re exempt just because Read the rest of this entry »

I attended lecture by Baron Walker of Gestingthorpe last year on THE ENGLISH LAW OF PRIVACY – AN EVOLVING HUMAN RIGHT .  It is extracted in the latest edition of Bar News (at page 78).

It is a particularly thoughtful speech. Of particular interest his view on the future of the action:

As the law of privacy develops its origin in the law of confidence will become a historical curiosity, and invasion of personal privacy will be recognised as a separate tort. Indeed I think we have probably reached that point already. Another necessary exercise Read the rest of this entry »

It has been three years since Eliot Spitzer resigned as governor of New York after being exposed, so to speak, hiring a prostitute. Ashley Dupre was the high-priced prostitute Spitzer was accused of patronizing.

Ashley was offered a million dollars to be in a new Girls Gone Wild magazine spread and promotional tour. But when the producers realized they already had archival footage of her from years earlier, they revoked that offer.

Dupre sued Joseph Francis, the head of Matra Films (the producer of Girls Gone Wild) for $10 million alleging that he improperly used Dupre’s image from the archival footage. She claimed that because she was only 17 at the time, she didn’t understand the nature of what she was doing. Francis responded by releasing a video that made its rounds on the web that showed the 17-year-old Dupree saying she was of age, and presenting a New Jersey driver’s license bearing the name of plaintiff Arpaio.

Plaintiff filed this lawsuit against Dupre and Girls Gone Wild alleging defamation and invasion of privacy. After none of the defendants responded to the lawsuit, the court entered default against the Girls Gone Wild defendants. Plaintiff never properly served the complaint on Dupre, so it did not enter default judgment against her.

The court awarded plaintiff $3 million in damages. It based this figure on her testimony and other evidence relating to plaintiff’s distress from being mistaken for Dupre, her concern that future employment would be jeopardized from employers doing a Google search on her and learning of the situation, the harm from plaintiff’s children (someday) being exposed to insulting material, and plaintiff’s symptoms consistent with post traumatic stress disorder.

Not a bad piece in the SMH today, Privacy, phone cameras and celebrity encounters, about the ubiquitous camera phone intruding on celebrities as they go about their business, including going to the toilet.

Unfortunately it recites the problems and highlights the problems of not having anything even vaguely like a right to privacy.  If anyone can enforce such a right it is well heeled celebrities keen on keeping a private space.  Then again in the US, where there is a right to privacy (in certain circumstances) paparazzi are even more invasive and common than here.

The Obama administration plans to ask Congress Wednesday to pass a “privacy bill of rights” to protect Americans from intrusive data gathering, amid growing concern about the tracking and targeting of Internet users.

Lawrence E. Strickling, an assistant secretary of commerce, is expected to call for the legislation at a hearing of the Senate Commerce Committee, said a person familiar with the matter.

This person said the administration will back a law that follows the outlines of a report issued by the Commerce Department in December. The administration wants any new rules to be enforceable and will look to expand the Federal Trade Commission’s authority, this person said.

Among other things, the December report suggested that companies should ask an individual’s permission to use personal data for a purpose other than for which it was collected. The administration also eventually could propose that consumers be given the right to access information about themselves and to have the information stored securely, the person said.

Professor Megan Richardson, Professor at the University of Melbourne and expert in privacy law, has prepared an interesting paper titled Too Many Academics? The Experience of Privacy Law Reform.  Her thesis is that the chattering amongst the various academics and the range of reports from the law reform bodies has diffused and confused the message for reform which in turn has reduced the likelihood of reform being enacted.  There is no doubt that the proposed elements of a proposed tort of breach of privacy differs between reports.  But is that what has privacy law reform stuck in the long grass.  I doubt it.

Part of the problem is as Prof Richardson describes:

It is already very clear that there will be opposition from parts of the media to any proposals for privacy law reform, with some quite persuasive arguments being mounted – for instance, that we have got along fine without legislative privacy protection in the past; that the common law provides or will provide sufficient protection where needed including through the equitable action for breach of confidence which has been recognised by courts as giving considerable protection against the misuse of private information; that Australian media are generally self-restrained; and that there are large segments of the population who don’t care much for privacy anyway.

to which she counters:

Each of these arguments can be countered: for instance, Read the rest of this entry »

Today’s article in the  Australian, Judges reclaim power from political masters, is a thoughtful piece on the court’s more assertive approach to legislative limits on discretion. At least the first part of the article is.   This court has been much more inclined to not only defend judicial independence by striking down prescriptive legislation but it has also been more receptive to broadening established principles.  That shouldn’t be regarded as notable except that it stands in fairly strong contrast to the Gleeson High Court. A simple for instance is the approach taken to offshore processing.  Previously the court gave it the green light.  In Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 while not overturning or even disturbing the process dealt with procedural fairness.  I am not sure that the pre French court would have been so moved to action.

What is distinctive and powerful about the High Court’s decisions this year is that most decisions are overwhelming majorities if not unanimous.  Given the reputed conservativeness of Keiffel and Crennan and cautious black letter approach of Hayne and Gummow this is an approach many commentators would have expected.