O’Rourke, Pyman, Teicher and van Gramberg, ‘Old wine in new bottles? Regulating employee social media use through termination of employment law: A comparative analysis’

The explosion in social media usage and ease of access to instant communication provided by new technologies presents employers and business with benefits and problems. The literature on new technologies and the workplace is replete with employer unease about employee use of social media. The most prominent of these apprehensions concern what has been described as ‘cyberslacking’ or ‘cyberloafing’, and reductions in concentration and workplace productivity. The most common employer response to these concerns is often to engage in employee surveillance or termination of employment. This article examines the latter response. It explores whether new legal principles are emerging from Courts, Tribunals and Commissions adjudicating social media and email dismissal cases or whether they are merely reframing existing laws to adapt to novel workplace situations. We use a comparative approach to address this question, comparing legal cases in Australia, Britain and America. The purpose of this article is to assess if there are any commonalities emerging between the three jurisdictions, or by contrast, whether the law is being shaped by the unique features of each jurisdiction.

Anne O’Rourke, Amanda Pyman, Julian Teicher and Bernadine van Gramberg, Old wine in new bottles? Regulating employee social media use through termination of employment law: A comparative analysis, Common Law World Review. First Published November 14, 2018. https://doi.org/10.1177/1473779518807155.

Call for Abstracts: Canadian Law of Obligations Conference, University of New Brunswick, 10-11 May 2019

“Plan to attend the second Canadian Law of Obligations conference on May 10-11, 2019 at the University of New Brunswick Faculty of Law in Fredericton, NB. The conference will bring together established and new scholars and practitioners in areas of Contracts, Torts and Restitution. Its aim is to promote scholarship and collaboration in this area of private law. This year’s theme is Access to Justice in the Law of Obligations …” (more)

‘A tasty decision for cheese lovers’

“The CJEU has rejected a controversial attempt to use copyright law to protect the distinct taste of a food product, in this case a Dutch cheese. The court explained that taste is too subjective to allow a work to be uniquely identified, even using science, and so cannot be protected. The Court of Justice concurred with the Advocate General’s opinion that an artistic work must be capable of being seen and heard …” (more)

[The 1709 Blog, 15 November]

‘Brexit and Data Protection: Update’

“Panopticon has generally avoided venturing too far into Brexit-related updates: there has invariably been very little by way of actual facts to comment on (not that that has stopped people). But 14 November 2018 does mark something of a landmark, even if by the time you read this it may well all have collapsed like a particularly badly made soufflé. By the time you watch the repeat on Dave it may look like a legal history article. Here goes nothing …” (more)

[Christopher Knight, Panopticon, 15 November]

‘The Impact of the EU-UK Draft Agreement on Judicial Cooperation in Civil and Commercial Matters’

“Yesterday, on 14 November 2018, the UK cabinet, after five hours of deliberation, accepted the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators’ level on the same day …” (more)

[Jan von Hein, Conflict of Laws .net, 15 November]

Timothy Mulvaney, ‘Property-as-Society’

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception of property-as-society presents a more useful structure for assessing whether an allocative choice is fair and just absent compensation than the conceptions of property-as-liberty and property-as-investment. Second, on doctrinal grounds, it suggests that the property-as-liberty conception has fallen from grace in takings jurisprudence since its peak in Lucas v South Carolina Coastal Council in 1992; moreover, while the property-as-investment understanding remains of some force, the property-as-society conception has ascended to a position of jurisprudential prominence, as most recently evidenced in both the majority and the dissenting opinions in the 2017 matter of Murr v Wisconsin.

Mulvaney, Timothy M, Property-as-Society (November 1, 2018). Wisconsin Law Review, volume 2019, forthcoming; Texas A&M University School of Law Legal Studies Research Paper No 18-57.

Shi-Ling Hsu, ‘Cooperation and Turnover in Law Faculties: A Game-Theoretic Model and Empirical Study’

A standard account of group cooperation would predict that group stability would bring about greater cooperation, because repeat-play games would allow for sanctions and rewards. In an academic unit such as a department or a law faculty, one might thus expect that faculty stability would bring about greater cooperation. However, academic units are not like most other groups. Tenured professors face only limited sanctions for failing to cooperate, for engaging in unproductive conflict, or for shirking. This article argues counter-intuitively that within limits, some level of faculty turnover may enhance cooperation. Certainly, excessive and persistent loss of faculty is demoralizing, and reduces the number of individuals among which administrative work can be spread. But for less dire losses, faculty turnover may play the disciplining role that academic units are deprived of by the tenure system.

This article sets forth a game-theoretic model showing how the possibility of faculty turnover may induce greater cooperation in a faculty. The intuition is that while some antisocial behavior in a faculty – fighting or shirking – may garner some short-term gains at the expense of others, the possibility of exit may reduce this behavior, because loss of a colleague could be worse than the gains from fighting or shirking. Losing a colleague means probably losing a productive colleague, taking the time to replace her, and possibly replacing her with a less productive substitute. These downsides may play a role in curbing unproductive behavior in a faculty. This article presents some empirical evidence in support of the hypothesis that faculty turnover short of some excessive amount does, in fact, produce higher levels of collegiality and collaboration.

Hsu, Shi-Ling, Cooperation and Turnover in Law Faculties: A Game-Theoretic Model and Empirical Study (September 23, 2018). Marquette Law Review, forthcoming.

Kamarinou, Millard and Oldani, ‘Compliance as a Service’

This paper provides an empirical review of GDPR-related marketing communications and data processing agreements of 13 cloud service providers (‘CSPs’). Our analysis focuses on how these agreements reflect and deal with the key data protection obligations imposed on controllers and processors under Article 28 GDPR. More specifically, we discuss issues of engaging sub-processors, complying with security and personal data breach notification obligations, complying with the obligations to keep records of processing activities and carry out audits, managing data subjects’ requests and complying with obligations regarding transfers of personal data outside the EEA.

Article 28 GDPR creates an inter-dependency between controllers and processors for compliance purposes. The CSPs surveyed not only provide assurances regarding their own GDPR compliance, but also commit to assisting their customers to comply. We argue that this symbiotic framework will facilitate the development of a Compliance as a Service model, particularly in areas with growing technical challenges such as security arrangements, identification of data breaches, and management of audits. Even though a controller’s GDPR compliance cannot be outsourced completely, we argue that it is likely that controllers will become increasingly dependent on CSPs for various compliance purposes.

Kamarinou, Dimitra and Millard, Christopher and Oldani, Isabella, Compliance as a Service (November 14, 2018). Queen Mary School of Law Legal Studies Research Paper No 287/2018.

LSE Private Law Forum 2018-19

Wednesday 21 November, 4pm
Peter Turner (Cambridge), ‘Lex Sequitur Equitatem: Fusion and the Penalty Doctrine’

Thursday 13 December, 4pm
Dan Priel (Osgoode Hall), ‘The Impossibility of Independent Corrective Justice’

Thursday 7 February, 12pm
Prince Saprai (UCL), ‘Contract Law Without Foundations: Towards a Republican Theory of Contract Law’

Thursday 28 February, 1pm
Aness Webster (Nottingham, Philosophy), ‘Distinguishing between Criminal and Tort Law: Rights and Responsibilities’

Please contact Nick Sage (n.sage@lse.ac.uk) or Andy Summers (a.d.summers@lse.ac.uk) if you would like to attend.

‘Personal Data as an Environmental Hazard’

Omri Ben-Shahar, ‘Data Pollution’, University of Chicago Public Law & Legal Theory Paper Series, No 679 (forthcoming 2018), available at SSRN. What was the nature of the harm when data on 143 million Equifax consumers was stolen? More generally, what is the problem with personal data use and misuse by commercial players? The most immediate answer: privacy, individuals’ privacy interests are infringed. But then the question becomes what is the problem with infringing one’s privacy? Here, the answer usually is that infringing one’s privacy infringes upon her autonomy, dignity, emotional wellbeing, and such. To these non-monetary harms, one can add various monetary harms such as monetary losses associated with identity theft and other economic losses. These personal harms have led privacy scholars to focus on the private and personal aspects of data breaches … (more)

[Ronen Avraham, JOTWELL, 14 November]