Data breach notification law in the EU and Australia – Where to now?

Mandatory data breach notification laws have been a significant legislative reform in response to unauthorized disclosures of personal information by public and private sector organizations. These laws originated in the state-based legislatures of the United States during the last decade and have subsequently garnered worldwide legislative interest. We contend that there are conceptual and practical concerns regarding mandatory data breach notification laws which limit the scope of their applicability, particularly in relation to existing information privacy law regimes. We outline these concerns here, in the light of recent European Union and Australian legal developments in this area.     

Analysing the application of Brussels I in regulating e-commerce jurisdiction in the European Union – Success,deficiencies and proposed changes

This article analyses the regulatory framework of e-commerce jurisdiction in the European Union (EU). Firstly, it discusses and analyses the current regime under the Brussels Regulation, highlighting its success in consumer protection and the deficiencies for e-commerce jurisdiction, which need to be addressed. Secondly, the article compares the EU regime with that of the United States (US). It is argued that the US courts follow uncertain and distinct approaches compared to the clear rules of the Brussels Regulation. Their present approach of minimum contacts analysis as followed in the Yahoo! case poses problems for a transnational EU litigant in similar cases. Thirdly, the article examines the recent proposals adopted by the European Commission to remedy the deficiencies in the Regulation. The most important change proposed is the inclusion of third-state defendants within its ambit. It is argued that the changes to be adopted by the European Parliament are insufficient, and the author therefore provides recommendations. Lastly, the article highlights the inability of the proposed changes to address the deficiencies identified by the discussion.     

Fewer politicians and smaller assemblies: how party elites rationalise reducing the number of seats in a legislature – lessons from Canada

Scholars are unable to rationalise the number of elected representatives in legislative assemblies. This study offers some insights into the political arithmetic by examining the rare event of reducing seats in a legislature. It is hypothesised that a policy of cutting electoral districts occurs during a search for cost efficiencies and a burst of populism. Interviews with party elites involved with seven seat reduction events in Canadian provinces establishes that the primary reason for the policy is its symbolic value. The message of fewer politicians sets an example for belt-tightening across government that will assist the executive branch with its austerity agenda. In these situations, the final number of members of a legislature matters little to a cabinet and most legislators compared with the broader symbolism of a smaller legislative branch.     

I shop online – recreationally! Internet anonymity and Silk Road enabling drug use in Australia

Internet technologies are beginning to influence the sale and supply of illicit drugs in Australia. One such technology, an online marketplace known as Silk Road, had dramatically increased in popularity since its worldwide launch in February 2011. This research and paper were completed prior to the Silk Road's founder, Ross Ulbricht being arrested on 2 October 2013 and Silk Road being taken off line. This research paper will consider such factors; as the increasing use of internet by Australians, the popularity of shopping online and the variance in the quality and price of products available on Silk Road to those available in other drug markets. The case study will provide an in-depth look at Silk Road from an Australian perspective and in light of the continuing popularity of illicit drug use in Australia. Though Silk Road is currently off line, ‘Bitcoin’ has survived and it will only be a matter of time before a substitute for Silk Road emerges.     

The prosecutor and human rights – from the general to the particular

It is not unusual that one or all parties commit a genuine mistake when making contracts. While there is the strict general duty under the law to respect agreements, there equally exists the duty for courts and tribunals to be fair and to render commercial justice in the factual matrix of cases before them. In national legal systems and transnational law regimes, rescission for mistake on economically efficient and just terms is embedded in contractual obligations. The Solle v Butcher (1950) doctrine, which represented the English law approach, was rejected in The Great Peace (2002). Potential conflicts and crises now exist in commercial relations and international dispute resolution when ‘English law’ is the applicable law. This extends to jurisdictions where English decisions are highly persuasive. This article examines the correctness and effect of The Great Peace decision on the doctrine of equitable rescission for genuine mistake as propounded in Solle v Butcher, and possible clarifications needed after the complications brought by The Great Peace. It analyses the conceptual importance of the remedy of equitable rescission for mistake in commercial transactions, and identifies serious substantive errors of law by The Great Peace court. Finally, it provides other effective, fair and efficient legal methods that remain available to avoid the weaknesses of the decisions.     

Shortcomings in the Operation and Coordination of Witness Protection in Australia. Where to from Here?

Criminal Law Forum - Witness protection in Australia has, to date, been less than successful in implementation and execution. An ad hoc system of Commonwealth and state/territory witness protection...     

EU GDPR or APEC CBPR? A comparative analysis of the approach of the EU and APEC to cross border data transfers and protection of personal data in the IoT era

This article examines the two major international data transfer schemes in existence today – the European Union (EU) model which at present is effectively the General Data Protection Regulation (GDPR), and the Asia-Pacific Economic Cooperation (APEC) Cross Border Privacy Rules system (CBPR), in the context of the Internet of Things (IoT).While IoT data ostensibly relates to things i.e. products and services, it impacts individuals and their data protection and privacy rights, and raises compliance issues for corporations especially in relation to international data flows. The GDPR regulates the processing of personal data of individuals who are EU data subjects including cross border data transfers. As an EU Regulation, the GDPR applies directly as law to EU member nations. The GDPR also has extensive extraterritorial provisions that apply to processing of personal data outside the EU regardless of place of incorporation and geographical area of operation of the data controller/ processor. There are a number of ways that the GDPR enables lawful international transfer of personal data including schemes that are broadly similar to APEC CBPR.APEC CBPR is the other major regional framework regulating transfer of personal data between APEC member nations. It is essentially a voluntary accountability scheme that initially requires acceptance at country level, followed by independent certification by an accountability agent of the organization wishing to join the scheme. APEC CBPR is viewed by many in the United States of America (US) as preferable to the EU approach because CBPR is considered more conducive to business than its counterpart schemes under the GDPR, and therefore is regarded as the scheme most likely to prevail.While there are broad areas of similarity between the EU and APEC approaches to data protection in the context of cross border data transfer, there are also substantial differences. This paper considers the similarities and major differences, and the overall suitability of the two models for the era of the Internet of Things (IoT) in which large amounts of personal data are processed on an on-going basis from connected devices around the world. This is the first time the APEC and GDPR cross-border data schemes have been compared in this way. The paper concludes with the author expressing a view as to which scheme is likely to set the global standard.     

Should the EU Protect Democracy and the Rule of Law inside Member States?

Against the background of recent developments in Hungary, the article discusses the question whether the European Union ought to play a role in protecting liberal democracy in Member States. First, it is argued that the EU has the authority to do so, both in a broad normative sense and in a narrower legal sense (though the latter is more likely to be disputed). The article then asks whether the EU has the capacity to establish a supranational militant democracy; here it is argued that at the moment both appropriate legal instruments and plausible political strategies are missing. To remedy this situation, the article proposes a new democracy watchdog, analogous to, but more powerful than, the Venice Commission. Finally, it is asked whether EU interventions would provoke a nationalist backlash. There is insufficient evidence to decide this question, but the danger of such a backlash probably tend to be overestimated.     

To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

Should Europe disturb historians? On the importance of methodology and interdisciplinarity

Does the emergence of the European Union (EU) disrupt the frames of reference of the contemporary history of Europe to such an extent that historians distrust it? It would seem that methodological Euroscepticism exists. European integration arouses scepticism among some in the community of historians of contemporary Europe, since the conceptual underpinnings of that history cannot in themselves account for European integration. This billet expresses, more than a word of caution, a call for enhanced dialogue on the EU as an object of study among the different strands of historical studies and different disciplines. On the one hand, some of the analyses provided by historical studies on contemporary Europe constitute a fertile source for the study and understanding of European integration, notably in the field of history. Using them can stimulate the development in the European studies field of new concepts, new representations and new hypotheses for grasping the EU as a reality and a comparatively new object of academic interest. On the other hand, the critical study of the EU conducted in the specific field of the history of the EU questions and sheds a new light on the analytical categories of contemporary European history. In this regard, the fruitful interaction between history, political geography, law and political science can enrich contemporary European history. Interdisciplinary studies on European integration notably enable us to decentre notions of sovereignty, territory and democracy, which have classically taken the nation state as their reference in broad explanatory narratives of contemporary European history. Research mutualisation would offer all the potential interpretative and analytical benefits of the conceptual and methodological rethink of our various disciplines and of European integration as an object of study.     

Prisoners’ gang-related activity: the importance of bullying and moral disengagement

Abstract

Gang-related activity can have a significant impact on the effective management of prisons in the UK, yet little is known about the characteristics of the prisoners involved. In this study, 141 adult male prisoners’ gang-related activity was examined in relation to their bullying behaviour and use of moral disengagement. Results showed that prisoners most involved in gang-related activity were likely to have spent a longer total time in the prison system, be perpetrators of bullying and have high levels of moral disengagement. Findings also show that moral disengagement partially mediates the relationship between bullying and gang-related activity. Implications for treatment programmes and the prison estate are discussed.     

School climate and delinquency – on the significance of the perceived social and learning climate in school for refraining from offending

School is regarded as a central arena for crime prevention. This study analyses the effects of student perceptions of school contextual aspects on self-reported offending, using logistic regression with control for clustering effects. The data comprise a census of pupils in year nine in comprehensive school (15 year olds) and in year two of upper secondary school (17 year olds) in the City of Stockholm in 2006, 2008 and 2010 (n = 25,850 of which 47% are boys and 53% are girls). Besides showing that several aspects of students’ perceptions of the school setting have direct protective effects on offending, the study shows that perceiving schoolwork as meaningful appears to moderate the effect of adverse home conditions on delinquency for boys. The only aspect of school investigated in this study that was not significantly related to offending was the perception of classroom order, indicating that emotional support from teachers is more important for crime preventive implications than maintaining order in the classroom. Controlling for clustering effects shows differences in offending between classes and schools that are not produced by differences between the students.     

Information rights and donor conception: lessons from adoption?

This article reviews the Australian experience in providing information rights for people separated through adoption, and considers its relevance in adjusting the competing interests of those involved in donor conception. The Australian laws, which differ from State to State, create information rights for adults who have been adopted, and also--with more qualifications--for other family members, such as birth parents and siblings. Some laws also seek to protect privacy, notably by use of the "contact veto". The author argues that the review of the Australian laws provides strong support for the rights of donor offspring, when adult, to information about their genetic origins. It also raises important questions about the rights and interests of other family members involved in donor conception, and how they might be accommodated.     

Visualising the past – An evaluation of processes and sequences for fingermark recovery from old documents

This study aimed to collect data on the effectiveness of most of the fingermark visualisation reagents currently used on porous surfaces on fingermarks aged for up to 90?years, significantly extending the timescales for which such information exists. A limited subset of the variables associated with processing of old fingermarks was explored, with a focus on the use of 1,8 diazafluoren-9-one (DFO), 1,2-indandione, ninhydrin, and physical developer. These techniques were used in sequence on batches of cheques between 11 and 32?years old, and on documents dating from the 1920s and 1940s. The potential for applying a physical developer enhancement process (blue toning) as the final step in the sequence was also explored. The benefits of using processing sequences on porous items were clearly demonstrated, with all processes in the sequence adding value in terms of additional marks found on the cheques up to 32?years old. In addition, physical developer was found to be capable of developing fingermarks up to 90?years old, whereas the amino acid reagents appear less effective on documents of 70?years and older. An experimental physical developer formulation with reduced environmental impact was found to be as effective as the existing process in these experiments. Blue toning was found to visualise an additional 10–25% of marks, and its wider use after silver-based deposition processes is recommended based on the evidence from this study.     

mHealth and data protection – the letter and the spirit of consent legal requirements

In this article, the role of consent is discussed in the framework of fundamental rights and in the context of mobile health technologies (mHealth), such as smart phones, mobile phones or tablet/palm-held computing devices to provide healthcare. The authors surmise how, in practice, although there will be more emphasis on informed consent formally, there will be less space for genuine individual consent. This betrays a focus more on the letter of consent rules in data protection than their spirit. This risks reducing consent to a tick box operation in a manner analogous to consumer transactions, something manifestly unsuitable for consent, even if only in informational terms, during medical procedures.     

The CLSR-LSPI Seminar – ‘The future of privacy regulation in the online world’

The annual CLSR-LSPI Seminar (www.lspi.net) took place on 19 September 2011 at the Sixth Legal, Security & Privacy Issues in IT Conference (LSPI) at University of Nicosia, Cyprus. The event, led by Prof. Steve Saxby, Editor-in-Chief of CLSR, invited contributions from five legal specialists on a variety of current issues dealing with the future of privacy. A lively discussion took place amongst those present after each intervention. The reports of those who presented are recorded below.     

Safeguarding adults and mass marketing fraud – Perspectives from the police,trading standards and the voluntary sector

Despite the growing awareness of mass marketing fraud (MMF) in the financial abuse of vulnerable older people, little empirical research has been undertaken in this area. This paper is one of the first to consider the perspectives of a range of professionals who work with victims of mass marketing fraud and financial crime. MMF is a growing threat in the financial abuse of older people, and is increasingly recognised as a concern for professionals involved in supporting and safeguarding vulnerable older people. This paper considers the themes emerging from a small exploratory qualitative study into the perspectives of professionals working to safeguard those at risk of MMF and considers some of the complexities involved in tackling MMF. This involves consideration of the techniques used to groom and lure victims in plausible looking frauds, and the factors that serve to reinforce their sustained involvement in such activity.     

The EU or France? The CSDP Mission in Mali the Consistency of the EU Africa policy

The EU’s role in the recent Mali crisis offers a good opportunity to assess the consistency of the EU’s Africa [Africa as used here refers to Sub-Saharan Africa (SSA)—the region of the EU’s most extensive external policy] policy in the post-Lisbon era. Against the background of the EU’s external policy objectives with special reference to SSA, this Article will particularly offer a comprehensive overview of the legal and policy dynamics of the EU’s Common Security and Defence Policy (CSDP). This will be discussed especially with reference to how they relate to (in)consistency in implementation as illustrated in the EU’s role in the recent Mali crisis. Although the EU initially made a decision to deploy an EU Training Mission to Mali, the EU did not activate the peacekeeping dimension of the CSDP as required at an advanced stage of the crisis. Instead, this gap was filled by France’s unilateral military intervention in Mali. The EU’s inertia in this regard raises the question of the consistency of its external policy instruments and policy objectives towards the region. Without excluding other possible contributing factors, the analysis submits that the ‘partial’ activation of the CSDP in Mali is mainly attributable to the constitutional specificity of the CSDP especially its lack of permanent and planning conduct structures. In any event, it is argued that these do not render the EU’s role in Mali less inconsistent both in the light of the relevant EU external policy instruments and objectives towards SSA in general, and in the light of the CSDP objectives in particular. In general, the Article uses Mali as a case study to illustrate the extent and therefore the limits of the consistency of the EU’s CSDP and its overall policy towards SSA especially post-Lisbon. Whilst acknowledging the current limits of the law in this context, the Article nevertheless argues that the dire implications of inconsistency for the effectiveness of the EU’s policies and for the credibility of the Union make a search for practical, if not legal solutions, a political imperative. This is necessary especially if the EU wants to protect or indeed rebuild its credibility as an international actor in general, and as an effective partner for crisis management in SSA, in particular [The EU’s credibility in much of the African Caribbean and Pacific states, especially SSA is reportedly already at an all-time low (Mackie J et al. in Policy Manag Insights ECDPM 2, 2010)].     

Conclusion: regional parliaments – a distinct role in the EU?

ABSTRACT

Regional parliaments can shape EU policy-making via a range of domestic and European channels. In the context of a renewed interest in the subnational level, this article aims to address three core questions: have regional parliaments really been empowered by the early warning system provisions? Which factors explain differences in strength and mobilisation? Finally, what kind of a role do regional parliaments play in EU policy-making today, now that they have had several years to react to the trend towards multilevel parliamentarism? The authors argue that regional parliaments do indeed have the potential to contribute a distinct perspective to EU policy-making, even if their current level of activity is still low. Their distinctive territorial focus sets them apart from national parliaments. Their level of activity still varies greatly between parliaments depending on a number of factors.