Ben Stokes v The Sun: gross intrusion or simple reportage? How media privacy law works’

“When Ben Stokes celebrated his part in the England cricket team’s World Cup triumph, followed by his incredible match-winning innings during the Ashes, dubbed the ‘greatest ever’, he could not have anticipated that heightened interest in him would lead to the later unwelcome unearthing of an old family secret. The day after the Ashes series ended, The Sun newspaper ran a story headlined ‘Stokes’ Secret Tragedy’ recounting the 1988 murder of Stokes’ two siblings by his mother’s ex-partner in New Zealand …” (more)

[Rebecca Moosavian, Inforrm’s Blog, 23 September]

Lau Jia Jun, Penner and Wong, ‘The Basics of Private and Public Data Trusts’

The term ‘data trust’ has recently come into circulation to denote some kind of legal governance structure for the management of data, in particular digital databases, but there is much uncertainty and confusion about what a data trust is supposed to be, legally speaking. This paper examines the nature of data as a possible trust asset, and concludes that the traditional trust, the historical creation of English Equity jurisprudence and now found around the world, is a perfectly sensible vehicle for the management of data, in particular the management of combined datasets for both private and charitable, in particular educational, purposes. The paper also considers the data protection issues that arise in relation to data trusts.

Lau Jia Jun, Jeremiah and Penner, James and Wong, Benjamin, The Basics of Private and Public Data Trusts (September 23, 2019). NUS Law Working Paper No 2019/019.

‘Legal Theory Lexicon: Social Welfare Functions’

“One of the key ideas in contemporary economic theory in general and law and economics in particular is the social welfare function. Law students without a background in economics might be put off by the fact that social welfare functions are expressed in mathematical notation, but there is no reason to be intimidated. The basic ideas are easily grasped and the mathematical notation can be mastered in just a few minutes …” (more)

[Lawrence Solum, Legal Theory Blog, 22 September]

Eugenio Velasco Ibarra, ‘Lee v Ashers Baking Company Ltd and Others: The Inapplicability of Discrimination Law to an Illusory Conflict of Rights’

Providers of customised goods and services do not directly discriminate against a customer when their refusal to fulfil an order is based on their objection to the message requested by the latter and not on any protected characteristics of the person. This is the conclusion reached by the Supreme Court of the United Kingdom when faced with a claim of direct discrimination on grounds of sexual orientation and religious beliefs or political opinions contrary to two Northern Ireland Statutory Rules against a bakery which objected to incorporating the message ‘Support Gay Marriage’ into a cake. In this case comment it is argued that the Supreme Court correctly identified the crucial distinction between a message and a person for the purposes of discrimination law. Each of the two grounds of discrimination at issue is examined and an explanation for the inapplicability of a finding of discrimination on either is offered.

Eugenio Velasco Ibarra, Lee v Ashers Baking Company Ltd and Others: The Inapplicability of Discrimination Law to an Illusory Conflict of Rights, Modern Law Review. First published: 19 September 2019.

Fitzpatrick, Compton and Foukona, ‘Property and the State or “The Folly of Torrens”: A Comparative Perspective’

Australian lawyers often extol the virtues of the Torrens system as a means to secure property in land. Yet, the comparative evidence of benefits is mixed and context-dependent, particularly in terms of the nature, provenance and capacity of the state. This article analyses ways in which positivist land laws, including Torrens systems of title by registration, create legal understandings of property that are tied closely to projections or assumptions of state territorial authority. The intertwining of property and sovereignty constructs allodial conceptions of property based on possession or custom as subordinate, if not illegal, simply because they exist in social orders that lie beyond the administrative systems of the state. As a result, there is a chronic fragmentation of legal and social understandings of property in areas of the world with Torrens law and large numbers of informal settlements. The case studies include the Philippines and the Solomon Islands.

Daniel Fitzpatrick, Caroline Compton and Joseph Foukona, Property and the State or ‘The Folly of Torrens’: A Comparative Perspective, University of New South Wales Law Journal (Advance).

Pappalardo and Meese, ‘In Support of Tolerated Use: Rethinking Harms, Moral Rights and Remedies in Australian Copyright Law’

In this article, we propose a thought experiment: what if copyright law could better incorporate social and cultural norms around content engagement and re-use? We draw on empirical research that explores the norms of different creative communities when they reuse the work of others, and the norms of consumers around sharing. We outline how both creators and copyright users engage almost daily in small-scale infringement that does not substitute or disrupt copyright owners’ established markets, either because the uses are highly transformative, or personal and unremarkable. We suggest that copyright could better reflect these norms if both norms and moral rights were considered as part of a remedies assessment. We propose that in cases where work has been attributed and treated with integrity, and where the use does not directly cause economic harm to the copyright owner, courts should award only nominal damages and decline to order injunctive relief.

Kylie Pappalardo and James Meese, In Support of Tolerated Use: Rethinking Harms, Moral Rights and Remedies in Australian Copyright Law, University of New South Wales Journal (Advance).

Toy and Gunasekara, ‘Is There a Better Option than the Data Transfer Model to Protect Data Privacy?’

The data transfer model and the accountability model, which are the dominant models for protecting the data privacy rights of citizens, have begun to present significant difficulties in regulating the online and increasingly transnational business environment. Global organisations take advantage of forum selection clauses and choice of law clauses and attention is diverted toward the data transfer model and the accountability model as a means of data privacy protection but it is impossible to have confidence that the data privacy rights of citizens are adequately protected given well known revelations regarding surveillance and the rise of technologies such as cloud computing. But forum selection and choice of law clauses no longer have the force they once seemed to have and this opens the possibility that extraterritorial jurisdiction may provide a supplementary conceptual basis for championing data privacy in the globalised context of the Internet. This article examines the current basis for extraterritorial application of data privacy laws and suggests a test for increasing their relevance.

Alan Toy and Gehan Gunasekara, Is There a Better Option than the Data Transfer Model to Protect Data Privacy?, University of New South Wales Law Journal (Advance).

Babie and Nikias, ‘The Renewal of the Old: Lionel Murphy’s Progressive-Relational Conception of Property’

As we approach Justice Lionel Murphy’s 100th birthday on 30 August 2022, this article explores and renews a significant aspect in the jurisprudence of this truly radical judge: the social relations or progressive view of property. Justice Murphy both identified and judicially expounded this view well before the American social relations or progressive schools. And rather than merely identifying it as some intellectual museum piece, the article also builds on it. The article contains five parts. Part I contextualises the jurisprudential debates surrounding property. Part II recounts Justice Murphy’s judicial radicalism. Part III explores the elements of Murphy’s progressive-relational view of property. Part IV applies the elements of Murphy’s progressive-relational property to the High Court’s recent native title decision in Northern Territory v Griffiths. Part V offers some concluding reflections on the bright future for property found in Murphy’s conception.

Paul Babie and Kyriaco Nikias, The Renewal of the Old: Lionel Murphy’s Progressive-Relational Conception of Property, University of New South Wales Law Journal (Advance).

‘von Hein, Kieninger and Rühl: How European is European Private International Law?

“Over the course of the last few decades, the European legislature has adopted a total of 18 Regulations in the area of private international law, including civil procedure. The resulting substantial legislative unification has been described as the first true ‘Europeanisation’ of private international law, and even as a kind of ‘European Choice of Law Revolution’. However, it remains largely unclear whether the far-reaching unification of the ‘law on the books’ has turned private international law into a truly European ‘law in action’ …” (more)

[Giesela Ruehl, Conflict of Laws .net, 22 September]

Michael Pressman, ‘Calculating Compensation Sums for Private Law Wrongs: Underlying Imprecisions, Necessary Questions, and Toward a Plausible Account of Damages for Lost Years of Life’

The ubiquitous corrective-justice goals of ‘making a party whole’ or ‘returning a party to the position she was in’ are typically understood in monetary terms, and in this context it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions, and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first task.

Next, the Article focuses on the imprecision that the law must grapple with whose implications are most salient: How to aggregate happiness across years of a life. This imprecision becomes significant in the context of torts that shorten a person’s life. The Article explores the appropriate measure of damages (under a corrective-justice theory) in cases in which a victim has her expected future shortened by a tort (eg, medical malpractice or exposure to carcinogens), but in which she has not yet died. The fact that the victim is still alive makes it possible to compensate the victim herself directly for the value of life-years. Should she be compensated? The question, already critical in a number of cases, will substantially increase in prevalence with developments in science and technology in the coming years. This Article argues, contra current law in most states, that the law should take these types of cases seriously and that victims should be compensated if their loss of life-years constitutes a loss of happiness. The contrary position is in great tension with the commonsense intuition that losing life-years is one of the most (if not the most) serious harms that one can incur. But is our commonsense intuition correct?

The Article proposes a three-step framework that can be used for addressing these questions of loss and getting to the appropriate measure of monetary compensation: (1) Determine which ‘happiness aggregation function’ to espouse, (2) determine how much happiness (if any), according to one’s happiness aggregation function of choice, a plaintiff lost as a result of the harm; and (3) determine how much monetary compensation will bring about a transfer of happiness to the plaintiff that will equal the amount that she lost (according to one’s happiness aggregation function of choice).

Pressman, Michael, Calculating Compensation Sums for Private Law Wrongs: Underlying Imprecisions, Necessary Questions, and Toward a Plausible Account of Damages for Lost Years of Life (September 10, 2019), 53 University of Michigan Journal of Law Reform (2019) (forthcoming).