The introduction of data breach notification legislation in Australia: A comparative view

This article argues that Australia's recently-passed data breach notification legislation, the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), and its coming into force in 2018, makes an internationally important, yet imperfect, contribution to data breach notification law. Against the backdrop of data breach legislation in the United States and European Union, a comparative analysis is undertaken between these jurisdictions and the Australian scheme to elucidate this argument. Firstly, some context to data breach notification provisions is offered, which are designed to address some of the problems data breaches cause for data privacy and information security. There have been various prominent data breaches affecting Australians over the last few years, which have led to discussion of what can be done to deal with their negative effects. The international context of data breach notification legislation will be discussed, with a focus on the United States and European Union jurisdictions, which have already adopted similar laws. The background to the adoption of the Australia legislation will be examined, including the general context of data privacy and security protection in Australia. The reform itself will be then be considered, along with the extent to which this law is fit for purpose and some outstanding concerns about its application. While data breach notification requirements are likely to be a positive step for data security, further reform is probably necessary to ensure strong cybersecurity. However, such reform should be cognisant of the international trends towards the adoption of data security measures including data breach notification, but lack of alignment in standards, which may be burdensome for entities operating in the transnational data economy.     

Hong Kong's data breach notification scheme: From the stakeholders’ perspectives

Data breach notification laws have been enacted in an increasing number of economies around the world. These laws establish the requirement for notice in the event of a data breach incident. Although, there are a number of reasons for requiring data breaches to be notified, the primary objective of the laws is to regulate organizations’ data security practices in order to protect the data privacy of its customers. In so doing, the data reporting obligations promote accountability, transparency and trust, thereby improving the overall organizational data security environment. Opinions are, however, divided amongst various private sector stakeholders on the issue of mandatory data breach notification. Drawing on the interviews with 24 private sector representatives with interest in data breach issues, this article documents and examines their position on the appropriate regulatory approach for data breach notification in Hong Kong .     

Poetic Justice: An Interpretation of Lawyers’ Reactions to Verse Judgments

This article offers an interpretation of lawyers’ reactions to verse judgments, being judicial decisions rendered in rhymed poetry form. While, in recent history, there has been an unexplained break in the close historical connection between poetry and law, some judges nevertheless continue to render their judicial decisions in verse. This has met strong criticism from fellow judges, inevitably, but also from lawyers. However, there is no evidence in academic writing of anyone attempting to explain why lawyers are having these reactions. Endeavouring to fill that void, this research employs hermeneutics to offer an interpretation of lawyers’ reactions to verse judgments. The article analyses the varied opinions uncovered in five qualitative interviews with lawyers of different backgrounds, and contends that a movement of poetry back towards its utilitarian origins would see lawyers change their reaction to verse judgments, instead viewing them as an appropriate form of judicial expression.     

《民法典》第584条(违约损害赔偿范围)评注

《民法典》第584条为有关违约损害赔偿范围的规定,可从事实因果关系和法律因果关系两个视角进行分析。事实因果关系视角下,应注意区分履行利益、信赖利益和返还利益。在因解除而发生的违约损害赔偿的计算中,应注意履行利益和返还利益的关系,避免重复计算。违约损害赔偿范围的决定中,确定性问题位于事实因果关系层面,是事后判断;而可预见性问题位于法律因果关系层面,是事前判断。若涉及确定性问题,确定性问题的探讨应在可预见性问题之前。     

Training in the Strategic Use of Evidence technique: Improving deception detection accuracy of American law enforcement officers

The Strategic Use of Evidence (SUE) approach is a framework for planning and executing suspect interviews with the aim of facilitating judgments of truth and deception. US law enforcement officers (N = 59) either received training in the SUE approach or did not. Each officer interviewed a mock suspect (N = 59) who had either committed a simulated security breach or had completed a benign task. The officers who received SUE training interviewed in line with the training: They questioned the suspect systematically, withheld the evidence and critical case information until after questioning, and relied on statement-evidence inconsistency to detect deceit. Consequently, SUE-trained interviewers achieved a higher deception detection accuracy rate (65%) compared to untrained interviewers (43%).     

The negligence of prison authorities and the protection of prisoner’s rights

This article looks at the potential for legal action brought by prisoners (and their dependants) who have suffered from the alleged neglect of the prison authorities. The article will examine the case law in this area to assess the success of prisoners’ negligence claims and whether such claims are unduly fettered by judicial attitudes and other more practical issues such as the difficulty in establishing a breach of duty. In particular the article will consider whether the law and its application has been, or should be, modified in the light of new obligations imposed on public authorities, including the courts, by the Human Rights Act 1998 and by the developing case law of the European Court of Human Rights in respect of Convention rights such as the right to life and freedom from inhuman and degrading treatment.     

Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act

This article examines the development of a remedy for unauthorised publication of personal information that has resulted from the fusion of breach of confidence with the limited 'horizontal' application of Article 8 of the ECHR via the Human Rights Act. Its analysis of Strasbourg and domestic post-HRA case law reveals the extent to which confidence has in some areas been radically transformed into a privacy right in all but name; however it also seeks to expose the analytical and normative tensions that arise in the judgments between the values of confidentiality and privacy as overlapping but not coterminous concepts, due in part to the failure to resolve decisively the horizontal effect conundrum. This judicial ambivalence towards the reception of privacy as a legal right into English law may, it will argue, also be seen in the prevailing judicial approach to the resolution of the conflict between privacy and expression interests which, it will suggest, is both normatively and structurally inadequate.     

论违约责任

随着中国市场经济的发展，世界一体化进程的加快，以及中国成功加入世贸组织，合同与各种市场主体乃至寻常百姓的接触越来越频繁，越来越密切。而违约责任约定则是一份合同的核心所在，一份完备的合同离不开具体、有效的违约责任条款。笔者拟从违约责任的要件、责任承担方式、几种违约方式的适用、损失赔偿范围等几个方面封《合同法》中的违约责任追行分析，最后就如何在合同中合法、有效地约定违约责任提出一些建议，以最大限度保护守约方的合法权益。     

关于无单放货的理论与实践——兼论提单的物权性问题

论文总结了我国无单放货的司法实践 ,将某划分为三个历史阶段 ,即绝对侵权说 ,相对侵权说和违约说 ,或兼采侵权与违约说。在此基础上 ,从理论上阐述了承运人无单放货应定性为违约行为。     

Terrorist Attacks

This paper reflects upon the USA’s war against terror and how it has been reflected in recent attempts to change German law. The author highlights the differences between war and crime, between police law and ius belli and pleads that this differentiation be respected in the formulation of policy. He charts the recent debate about the role of the armed forces in Germany especially in relation to potential missions within the country, particularly in accordance with the aviation protection act, which was found to breach the constitution. The paper highlights the issues as to why this was the case and ends with an account of the anti-terrorist measures undertaken by the EU.     

英国行政法上的听证

文章在阅读教科书和判例的基础上,对英国行政法上的听证程序做了相对翔实的阐述。其中主要讨论四个问题：听证原则的产生及其发展历程,听证的适用对象,听证的方式,以及违反程序规则的救济。文章最后探讨了英国听证制度对中国行政程序建设可能的启示。     

各国立法上违约金性质比较研究

违约金诞生于罗马法,至今理论界仍存在很大分歧,这集中表现在两大法系对惩罚性违约金的态度上。我国合同法第114条对违约金性质做了专门规定,但在理论上依然有一些问题引发争论。如何吸收两大法系的经验,及时完善我国违约金制度,避免国际贸易中的合同条款因违背各国的国内强行法而无效,实有必要对各国违约金的性质进行比较研究。     

Conflict of laws and the cloud

Cloud technology offers wonderful potential for users in terms of convenience, ease of obtaining updates etc. However, it presents significant legal challenges. Our laws, largely based on notions of territoriality, struggle to respond to technology in which lines on maps are largely irrelevant. In this article, I articulate some of the specific challenges. The law of contract, tort and national regulation might all apply to a claim of breach of privacy in relation to material uploaded to the cloud. Unfortunately, each of the jurisdictions studied would approach the issues in different ways, potentially creating significant confusion. The article proposes a need for international co-operation and agreement on these matters.     

Going to the dogs?

Corporate trustees administer assets worth billions and directorsof these trusts expect to carry on their work without fear ofpersonal liability to beneficiaries other than in exceptionalcases whose ambit is limited and well understood. The emergence in recent years of an action known as the ‘dog-leg’claim threatens this certainty. The claim is brought by beneficiariesfor breach of trust generally, directly against the trustees,where none of the usual grounds for personal liability is evenalleged. The claim relies on being able to prove that the corporate trustee'srights against directors for breach of director's duties areheld by the trustee not for its own benefit, but for the benefitof the trust. This article explains how the claims are put togetherand why, fortunately, in practice they will rarely (if ever)succeed. The recent case of Alhamrani v Alhamrani has stimulatedthis appraisal.     

Violations of out-group and in-group regulations in the eyes of ordinary and protected prisoners: an instance of judgmental modularity

According to the functional theory of cognition, everyday life blaming for wrongdoing reflects individuals' functional morality. The judgments of normative people were found to be modular, that is, changeable as a function of the social role taken at the moment of the judgment. This article presents several empirical indications that prisoners' functional moral judgments are modular as well. These studies were conducted within the experimental framework of functional measurement, which was chosen due to its ability to bypass prisoners' suspicion and resistance to out-group investigations. The studies focus on delinquents' core moral issues such as eyewitness testimony and informing to out-group authorities. As expected, the judgments of ordinary and protected inmates were modular. It is claimed that these findings are applicable to offender rehabilitation and correction and to offender therapy.     

Workplace harassment: A test of definitional criteria derived from an analysis of research definitions and Canadian social definitions

Public awareness of the occurrence and effects of workplace harassment continues to grow. However, despite increasing awareness, ambiguity remains about how harassment is defined and, consequently, how to determine whether a questionable situation should be judged as harassment. For this research we reviewed definitions of workplace harassment and identified four elements that were frequently included as criteria for making judgments of whether harassment had occurred (i.e., repetition, intent, perceived intent, consequences). In two separate studies, fictional scenarios were used to evaluate the extent to which participants' judgments about harassment were affected by the presence or absence of the four elements. Ratings of the scenarios provided by student participants (study one; N = 160) and a convenience sample of community participants (study two; N = 292) with varying levels of work experience and diverse professional backgrounds were analysed. According to our results the four elements significantly influenced participants' judgments of harassment. The intent of the harasser had the strongest and most consistent effect on harassment judgements and whether the behaviour was repeated had the weakest and least consistent effect. In addition to the unique effects of the individual elements, significant interactions between the elements emerged and suggest that harassment judgements depend on the interplay of a variety of factors. Though the results of these studies add to the growing body of research that focuses on defining workplace harassment, they also highlight the need for additional research in the area.     

Protecting your confidential information

DATA PROTECTION There are two sides to the issue of Data Protection namely:

• •⊎ Protection of Company Information; and
• •⊎ Protection of Personal Information.

The proliferation of computers within government, business and the public generally has provided certain individuals with enormous potential power over the people and the information gathered in the many databases in existence throughout the world. The cross matching capabilities of these systems at terrific speeds has given rise to genuine concerns as to the purposes to which this information will be put and the possible abuses.In Australia (unlike the US) there is not constitutional protection of privacy and the only remedy available to either companies or individuals is via the common law for breach of confidence or the unauthorised disclosure of a trade secret.In this article I intend to raise some of the issues faced by both the corporation attempting to restrict access and abuse of confidential information together with the protection of individual privacy in the face of increased central data collection.     

“This case is about you and your future”: Towards Judgments for Children

A handful of ‘child-friendly’ judgments have emerged in the UK in recent years, attempting to adopt a child-centred approach to the decision-making stage of the legal process. Most notable is Sir Peter Jackson's judgment in Re A: Letter to a Young Person which, in taking the form of a letter to the child, has been applauded as a model of how to achieve ‘child friendly justice’. This article examines how and why the form and presentation of judicial decisions is an important aspect of children's access to justice, considering not just the potential but the duty of judges to enhance children's status and capacities as legal citizens through judgment writing. We identify four potential functions of judgments written for children (communicative, developmental, instructive and legally transformative), and call for a radical reappraisal of the way in which judgments are constructed and conveyed with a view to promoting children's access to justice.     

Domestic Courts’ Reading of International Norms: A Semiotic Analysis

This article focuses on a number of cases in international law in which US domestic courts have produced judgments that conflict with those given by the International Court of Justice. The nature of these courts’ judgments has been extremely closely tied to the interpretation given by the US national Executive to a certain international norm. This situation raises a number of questions, which can be broadly categorized into two spheres: the legal (regarding the overall legality of the courts’ decisions) and the semiotic (regarding the manner in which a ‘meaning’ for the norm has been claimed by the courts). In this article we aim to provide answers to a number of these questions, both from the standpoint of international law and from that of a reader-response model of semiosis. We also analyse the level of interdependency that exists between the two spheres.     

违约精神损害赔偿的理论障碍及其克服

精神损害赔偿问题在理论上至今仍然被认为是侵权行为法上的专门问题,与合同法中的违约责任问题关系不大。尽管我国合同法确立了责任竞合的有关规则,然而该规则并非万能,它无法解决仅仅因为违约但不侵权导致的精神损害后果的赔偿问题。对违约精神损害赔偿问题持反对意见者所提出的种种理由虽然值得重视,但均不足以成为立法政策上拒绝规定违约精神损害赔偿制度的真正法理依据。现实生活与司法实践迫切期待打破违约责任中不存在精神损害赔偿问题的理论神话,在严格限制其适用范围与构成要件的基础上,我们应当建立违约精神损害赔偿制度。