Techdirt has been writing about the question of what constitutes personal information in an online context for over half a decade. A recent decision in Australia, reported by the Guardian, suggests that the matter is far from settled around the world. The case concerns a journalist, Ben Grubb, who has been trying to get his personal data from the mobile phone company he uses, Telstra. Initially, the Australian privacy commissioner ruled that Telstra had failed to comply with local privacy laws when it refused to hand over the data, but that decision was overturned on appeal by an administrative appeals tribunal (AAT) on the following grounds:
In the AAT decision deputy president Stephanie Forgie took a narrow approach to defining personal information. She said that information such as IP and URL data were too remote to be considered personal information.
"That data is no longer about Mr Grubb or the fact that he made a call or sent a message or about the number or address to which he sent it. It is not about the content of the call or the message. The data is all about the way in which Telstra delivers the call or the message. That is not about Mr Grubb," she wrote.
That ignores just how much information even a single URL reveals about the visitor to the site and page in question. Moreover, putting all those URLs together can create an extremely detailed picture of the person concerned -- from things like their general character and beliefs to current concerns. It's an extension of the incorrect argument trotted out by governments that gathering and storing metadata isn't as intrusive as retaining content, when exactly the opposite is true. Since metadata is pre-sorted into handy conceptual categories, analysing and aggregating the information is extremely easy, even on a huge scale -- just ask the NSA and GCHQ.
However, the Australian privacy commissioner is not taking things lying down:
The privacy commissioner, Timothy Pilgrim, has launched a federal court challenge to a ruling that a journalist was not entitled to access parts of his personal mobile phone data.
The landmark challenge is believed to be the first time the Office of the Australian Information Commissioner has sought to appeal a case before the federal court.
As the Guardian rightly notes, the outcome of the case is likely to have important ramifications for future requests involving personal information under the country's privacy laws.
This past Friday, we published our response to an Australian lawyer, Stuart Gibson, who apparently works for a real law firm called Mills Oakley. I know that Gibson is a real lawyer, because he's represented big famous clients in the press before, including this impressive TV appearance in which he is left "categorically denying" statements that his client appears to have made directly and then having to defend himself when the news anchor points out what his client has actually said. Anyway, Mr. Gibson did not appear to appreciate my blog post on Friday, and sent a series of short emails over the weekend, with increasing fervor, in which he insisted that I "get proper legal advice instead of publishing your utter dribble," that my "legal theories" were "nonsensical" and finally demanded to know if I had "the guts" to face him in court.
I, as you know, am not a lawyer -- either in the US or Australia -- and honestly had no idea that one was supposed to make legal decisions based on whether or not one had "the guts." I had always assumed that this was the kind of thing that you need for bar brawls, rather than legal fights. But perhaps things are different down under. Either way, I did get "proper legal advice" (as I had before publishing my original post, but we'll leave that aside), and given Gibson's increasing email threats, our lawyer, the wonderful and well-regarded Paul Alan Levy from Public Citizen Litigation Group, has now responded to Gibson on our behalf. You can read it by following the link or embedded below.
In the meantime, others in the legal blogging world have begun to weigh in on Gibson's threat, including lawyer Scott Greenfield, who dubbed it Stuart Gibson's Really Bad Idea, and lawyer Ken White who noted that Milorad Trkulja is "not a gangster" but "Stuart Gibson Is, I Suppose, A Lawyer." I would recommend reading both posts, for further legal analysis of Mr. Gibson's threats (and make sure you stick around for his email exchange with Ken White). One wonders if this is the kind of publicity that Mills Oakley likes its lawyers to get.
Update: Stuart Gibson has replied to Paul's letter simply stating: "I wouldn't even be bothered to open this Spam." Apparently, Gibson thinks that detailed responses that actually include citations (unlike his own threat letters) from some of the most respected litigators around are "Spam." And the reputation of Mills Oakley continues to spiral down the drain...
Update, the second: Levy responded to Gibson by inserting the full text of the letter in the body of an email so that Gibson would not have to "open" the PDF he originally sent, and Gibson responded "Don't bother pal." Less than a minute later, he sent another email to Levy, saying just "Dribble." At this point I'm confused about Gibson and Mills Oakley and how they operate. Gibson himself had specifically requested that I seek out legal advice in responding to his letter. I have done so. And now he refuses to even read it? This is the professionalism that Mills Oakley and its lawyers demonstrate?
So... you may recall that, back in December, we received and responded to a ridiculous and bogus legal threat sent by one Milorad "Michael" Trkulja from Australia. Mr. Trkulja had sent the almost incomprehensible letter to us and to Google, making a bunch of claims, many of which made absolutely no sense at all. The crux of the issue, however, was that, back in November of 2012, we had an article about a legal victory by Mr. Trkulja against Google. The issue was that when you searched on things like "sydney underworld criminal mafia" in Google's Image search, sometimes a picture of Trkulja would show up. His argument was that this was Google defaming him, because its algorithms included him in the results of such a search and he was not, in fact, a part of the "underworld criminal mafia."
Either way, back in 2012 we wrote about that case, and Trkulja was upset that a comment on that story jokingly referred to him as a "gangster." Because of that, Trkulja demanded that we pay him lots of money, that we delete the story and the comments and that Google delist all of Techdirt entirely. Immediately, we pointed out in our response: the comment is not defamatory, the statute of limitations had long since passed if it was defamatory, as an American company we're protected by Section 230 of the CDA, and even if he took us to court in Australia, we're still protected by the SPEECH Act. Finally, we suggested that perhaps he chill out and not care so much about what an anonymous person said in the comments of an internet blog over three years ago -- especially when many people consider it a compliment to be called "a gangster."
Either way, it seemed fairly clear that there was no actual "harm" to Mr. Trkulja, given that he didn't even seem to care about it for over three years.
We had hoped that this would be the end of it, but apparently it is not. A few weeks back, we received the following, absolutely bogus legal threat from an Australian lawyer by the name of Stuart Gibson, who appears to work for an actual law firm called Mills Oakley. The original threat from Mr. Trkulja could, perhaps, be forgiven, seeing as he almost certainly wrote it himself (again, it was incomprehensible in parts, and full of grammatical and typographical errors). Our response was an attempt to educate Mr. Trkulja against making bogus threats.
However, now that he's apparently wasting money on a real lawyer like Gibson, we will address the rest of our response to Gibson: Your letter is ridiculous, censorious and not even remotely applicable. Going to court over this will make you and your client look extremely foolish. But let's dig in, because Mr. Gibson seems to think that blustery bullshit will scare us off. He's woefully misinformed on this.
First off, if you send a legal threat and say "NOT FOR PUBLICATION" at the top, it's tough to take you seriously, because such a statement is meaningless. We have no contractual agreement not to publish such information, and if you send us a bogus legal threat, we are damn well going to publish it:
And now on to the crux of Gibson's argument: we said mean things about his client and somebody's feelings may have been hurt.
If you can't read that, it says:
The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
Our client is a gangster;
That our client by virtue of his legal claims is incompetent and unfit to be a litigant;
That our client by virtue of his legal claims is a ridiculous litigant;
That our client is a criminal and a participant in organised crime;
That our client is unfit to be a litigant
None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.
Let's go through these one by one. First off, we never said that Mr. Trkulja is a gangster. In fact, in both of our previous stories about him, we noted that his concern was over being called a gangster when he was not one. To claim otherwise is Mr. Gibson lying in his threat to us. As a suggestion, lying in your legal threat letter is not a very good idea.
Second, at no point did we state that Mr. Trkulja was incompetent or unfit to be a litigant. We merely published his own words -- admittedly including his misspellings, grammatical errors and general confusion -- and our responses to them. If Mr. Gibson thinks this implies that his client is unfit to be a litigant, perhaps he should check his own biases.
Third, again, Mr. Gibson seems to be assuming the claim. We did say that the threat against us was ridiculous -- an opinion we stand by. But we did not say he was a "ridiculous litigant." Also, "ridiculous" is a statement of opinion and even in nutty Australia, "honest opinion" is not defamation. And it is our "honest opinion" that the threat is ridiculous.
Fourth, this is a repeat of the first claim. It was false the first time, and it's still false. Repeating a false claim may allow Mr. Gibson to add to his billable hours, but doesn't seem like particularly good lawyering.
Fifth, this is a repeat of the second claim. See point four above. And point two above.
So let's be clear: we did not say that Mr. Trkulja was a gangster. We said, in our honest opinion, that he won a lawsuit the results of which we disagree with, and that his legal threat to us was ridiculous. This is all perfectly reasonable and protected free speech. Second, we posted Mr. Trkulja's own words which, again in our honest opinions, do show the "ridiculousness" of his threat to us in that it was filled with grammar and spelling errors and was, at points, (again, in our honest opinion) incomprehensible gibberish.
Mr. Gibson, then suggests that arrogance is somehow defamatory:
If you can't see that, it says:
Moreover your commentary that still resides on your website is an arrogant, false and poorly researched piece for the following reasons:
The reference to "gangster" is not "totally innocuous". The reference is grossly defamatory and indefensible. One could not conceive a more defamatory reference than that. It may be a throwaway line in the United States but it is certainly not in this jurisdiction.
Judgments against US companies especially those resident in California are enforceable particularly monetary judgments.
You are not protected by the Speech Act.
This firm has enforced numerous judgments against corporations in your jurisdiction.
Your reference to "free speech" is absolute nonsense. Speech may be free but it is also actionable.
You did publish the comment. Under Australian defamation law, you have a duty as a moderator to moderate third party comments. If you do not and refuse to take action when given notice, you are liable.
First off, I may not be an expert on Australian defamation law, but I can tell you I find it difficult to believe that "arrogance" or "poorly researched" information is defamatory there. It certainly is not defamatory in the US, and, furthermore, Mr. Gibson, you are wrong that it was poorly researched. It was well researched and backed up with a great amount of detail -- details I will note your own threat letter to us appears to be lacking. And I'm sorry if we come off as arrogant to you, but we're allowed to speak our minds.
Next, Mr. Gibson, you "could not conceive a more defamatory reference" than calling someone a gangster? Really, now? Because I'm at least moderately familiar with some Australian insults and many of them seem way, way worse than "gangster" -- which, again I will remind, you we never called your client (and, in fact, correctly noted that he was upset at someone calling him a gangster). And, yes, it is innocuous. No one cares that someone anonymously in a blog comment jokingly called your client a gangster. It was harmless as is fairly clearly evidenced by the fact that your client didn't even notice it for over three years.
Next, I'll note that for all your talk of enforcing Australian monetary judgments in California, you don't name a single one. And, you're wrong, because the SPEECH Act absolutely does apply, and you'd be exceptionally foolish to test this, though of course that is your decision to make. The text of the SPEECH Act is pretty explicit, first about when defamation rulings are enforceable in the US and (clue time!) it doesn't count if the statements wouldn't be defamatory in the US:
a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.
Second, the law is also explicit that a service provider, such as us (in reference to comments published by readers on our site), if protected by CDA 230 in the US, would be similarly protected from foreign judgment:
a domestic court shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States.
I recognize that you're an Australian lawyer, not a US one, but I would suggest doing at least a tiny bit of research into the caselaw on Section 230 in the US. You will quickly learn that we do qualify as a service provider and that, no, we are not liable for statements in the comments. And, hell, even if we were, and even if the comments were defamatory under US law (which they're not), the statute of limitations on those original comments is long past anyway.
And, yes, in case you still have not read the SPEECH Act, the legal burden will be on you here:
The party seeking recognition or enforcement of the foreign judgment shall bear the burden of establishing that the judgment is consistent with section 230.
Good luck with that.
In case you still decide to ignore the actual text of the law, you can also go digging through the legislative record on the SPEECH Act, in which it was made explicit that the law was designed to protect against such forms of "libel tourism."
The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.
You can claim the law doesn't apply, but you are wrong. The text is clear. You can claim that you have won judgments or monetary awards in the past. And perhaps you have, but if you try to move against us, you will be facing the SPEECH Act and you will lose.
So, given all of the above, we will not be undertaking any of your demands. We will not apologize as we have nothing to apologize for. We will not retract anything, as we did not make any false or defamatory publications. We will not remove anything from our website. We will not pay your client anything, whether "reasonable costs" nor "a sum of money in lieu of damages."
Instead, we will tell you, as we did originally, to go pound sand and to maybe think twice before making bogus legal threats that you cannot back up.
from the would-anyone-run-a-business-like-this? dept
Mike has just written about the way the US public is being short-changed over the promised "debate" that would follow the completion of the TPP negotiations. That broken promise is just part of the general dishonesty surrounding the whole deal. For example, the public was told that it was not possible for it to make its views known during the negotiations, because they had to be secret -- even though many other trade deals aren't -- but that once everything was agreed there would be ample time for a truly democratic debate. Of course, at that point nothing could be changed, so the debate was little more than a token gesture, but now it seems the US public won't even get that.
It will be cold comfort to learn that US citizens are not the only ones being denied the opportunity to engage in a serious discussion with politicians about the merits or otherwise of TPP. Here's what's happening in Australia, as reported by the Guardian:
The trade minister, Andrew Robb, has rejected calls for an independent cost-benefit analysis of the Trans-Pacific Partnership after the World Bank estimated it could lift Australia’s economic output by just 0.7% by 2030.
Robb, who signed the regional trade pact with counterparts from 11 other nations in New Zealand on Thursday, dismissed opponents of the deal as "the usual suspects" who would not be persuaded by a new inquiry.
To dismiss those who want to weigh up the evidence for and against TPP as "the usual suspects" is insulting not just to them, but also to the Australian public, who are effectively being told that if they dare to question the value of TPP, they are just "the usual suspects." This is pretty rich, too:
There’s nothing that they’ve said that convinces me that they’re genuine about this ... I think the community accepts that we've got 25 years of uninterrupted economic growth in Australia, we've got millions of jobs which have come off the back of Australia opening up and participating in these sorts of major agreements around the world with all of our trading partners.
So Robb is saying that those who want a mature debate about TPP must convince him, rather than the other way around. And claiming that Australia's growth is due to trade agreements -- without providing any evidence -- expects people to be naive enough to fall for the old 'correlation implies causation' trick. In any case, it's the details of the deal that are being questioned, many of which are quite antithetical to genuine free trade -- enhanced monopoly protections for copyright and biologics being two examples.
Robb's problem is that the traditional instruments of government persuasion -- econometric models that purport to demonstrate the benefits of signing up to trade agreements -- reveal that TPP is likely to bring Australia vanishingly small economic benefits. As we wrote recently, the World Bank predicts that the annual boost to Australia's GDP thanks to TPP will be around 0.07%. The country's trade minister tries to side-step that awkward fact as follows:
Robb told Sky News there was "a war by modelling" occurring. He pointed to a US Department of Agriculture study that showed Australia's agriculture sector would be the "biggest winner by a country mile".
In other words, don't look at that World Bank study, look at this US Department of Agriculture (USDA) study instead. Techdirt discussed that analysis over a year ago, noting one rather pertinent fact that Robb somehow forgot to mention: the USDA predicted that the total boost to the Australian economy from TPP would be precisely zero, zip, zilch, nada. If Australia's agricultural sector is a big winner from TPP, there must also be some big losers to balance things out.
Those facts probably explains in part why Robb refuses to ask the Australian government's own Productivity Commission for an analysis of TPP, even though its job is precisely to provide "independent research and advice to Government on economic, social and environmental issues affecting the welfare of Australians." The other reason why he won't want them giving an expert opinion is probably because of this comment in the Commission's Trade and Assistance Review 2013-14:
Preferential trade agreements add to the complexity and cost of international trade through substantially different sets of rules of origin, varying coverage of services and potentially costly intellectual property protections and investor-state dispute settlement provisions.
The emerging and growing potential for trade preferences to impose net costs on the community presents a compelling case for the final text of an agreement to be rigorously analysed before signing. Analysis undertaken for the Japan-Australia agreement reveals a wide and concerning gap compared to the Commission's view of rigorous assessment.
Robb's reluctance may be understandable, but it is also unforgivable. The benefits for Australia from TPP are routinely exaggerated, but no account is ever taken of the costs of signing up to the trade agreement -- a situation that is plainly absurd. Any manager that suggested closing an important business deal without carefully weighing up both the benefits and the costs would be rightly dismissed for gross negligence and incompetence. And yet Robb expects 23 million Australians to agree to TPP on precisely that basis, simply because he says it's a good deal. That's not just appallingly arrogant, but also profoundly irresponsible.
As you may recall, late last year Australia put into effect a wonderfully ambitious data retention law that required ISPs in the country to do... well... something involving data retention. The problems began immediately, with ISPs unsure of exactly when they were supposed to start collecting all of this data, as the law allowed for some to petition to delay implementing the data collection, but the government hadn't bothered to get back to many of them. Never mind what would happen once this same inept government actually received the mountains of data it had requested.
But those concerns are all about the practical utility of such a law, not the larger concerns over whether this kind of data collection ought to be happening to begin with. To see an example of why a free people shouldn't allow the government to crack open this door, however, one needs only look again at the law in Australia. What was supposed to be collection chiefly to combat major criminal actions is now a collection that even the food police are trying to get in on. And, yes, I really do mean the food police.
If you are in the business of selling lamb chops, make sure you are weighing them properly: the National Measurement Institute wants warrantless access to Australians’ metadata to help them hunt down supermarkets skimping on portions. The NMI is one of 61 agencies that has applied to the attorney general, George Brandis, to be classed as a “criminal law-enforcement agency” in order to gain warrantless access to telecommunications data.
As part of the government’s assurances that there would be sufficient privacy safeguards, it reduced the number of agencies that could access the data. But agencies could reapply, with the permission of the attorney general, if they were involved in enforcing “serious contraventions” of criminal laws.
Now, this is still in the application phase, so the NMI, a government group tasked with investigating retailers to make sure they're packaging their goods properly, doesn't yet have access to Australian's metadata, but its petition did have to be approved by the attorney general as being relevant to even get that far. This is what happens when you crack open the door: the bulk of government will try to force its way in. Keep in mind that the efficacy of bulk collection practices for combating even terrorism and serious criminal actions is debatable, but now we're dealing with the food and retail packaging police wanting in on the action? This really should tell you everything you need to know.
Greens senator Scott Ludlam said: “The only saving grace the government was able to claim when they passed it was that they were narrowing the range of agencies that could access the data. On the face of it that was true, and obviously that’s just been blown to pieces.”
Just because slippery slope arguments are almost always lame, that doesn't mean they don't occasionally apply. It seems on bulk surveillance, they certainly do.
from the most-comprehensive-and-far-sighted-economic-agreement-of-all-time dept
As we've written recently, a report from the World Bank suggests that the economic benefits from TPP will be slight for the US, Australia and Canada. New Zealand is predicted to do better, but not much: the econometric modelling predicts a 3.1% boost to its GDP by 2030 -- roughly 0.3% extra GDP per year. That's a pretty poor payback given the price participant countries will have to pay in terms of copyright, biologics and corporate sovereignty. Such details have not prevented one of the main newspapers in the country, the New Zealand Herald, from banging the drum for TPP's signing ceremony, which is probably going to take place quite soon:
New Zealand is about to have the honour of hosting the formal signing of the Trans-Pacific Partnership agreement by trade ministers from 12 nations of the Pacific rim. And it is an honour. This is the most comprehensive and far-sighted economic agreement the world has seen in our lifetime, possibly of all time.
Rather bizarrely, the editorial goes on to list TPP's many problems:
The TPP's intellectual property discussions raised the risk that US patent law and copyright protection of pharmaceuticals and other products of investment in science and research could be strengthened at considerable cost to public purchasing agencies, such as Pharmac, and innovation in digital technology in other countries. Medical professionals and IT developers have been among those fearful of the TPP during the course of its negotiation. So were environmentalists and public health promoters. They feared the inclusion of investor-state dispute settlement procedures could stop governments taking action in the interests of public health or the environment that would reduce the value of commercial investments.
At this point, you might expect a refutation from the editorial, and a compelling explanation why all those concerns proved misguided. Instead, it notes that many of these fears were stoked by the insane secrecy surrounding the negotiations, and suggests that since the text was released two months ago, everything's OK now. The editorial has to admit that yes, there are 6000 pages that need to be read, but points out that the final text has provided great summer holiday reading for those in the Southern Hemisphere. It then makes the following claim:
The precise terms seem to have survived scrutiny so far.
In fact, the release of the TPP text has amply confirmed the main worries regarding just about every aspect of the deal. For anyone wanting a quick catch-up on the major problems there, Michael Geist is running a helpful series with the self-explanatory title "The Trouble with the TPP":
[I] wanted to expand on the trouble with the TPP in more detail. With that goal in mind, I plan to post each weekday until February 4th on problems associated with the TPP. The series will include posts on copyright, privacy, Internet governance, and many other issues.
Maybe the editors at the New Zealand Herald should read the series before the TPP signing ceremony, so that at least they understand why the following is not going to happen:
It is too much to hope any fears now assuaged [sic] will reduce the scale of protest at the signing. But it should not be too much to ask that those philosophically opposed to free trade respect the views of those who disagree with them, and let this country host the occasion with dignity and pride.
Dignity, maybe. But pride? That's hardly appropriate given what is really happening here.
Supporters of TPP generally insist it's absolutely worth doing, despite any infelicities it might contain, because of the huge overall economic benefit it will bring to participants. But when challenged, they are unable to cite any credible evidence for that claim. That's because there isn't any: despite the impact that TPP's measures will have on how the US and other countries do business, there are astonishingly few studies on whether it will indeed have a positive impact overall. Just over a year ago, we wrote about one of the rare attempts to model TPP, commissioned by the US Department of Agriculture, which came up with the following result for countries like the US and Australia:
TPP is projected to have no measurable impacts on real GDP
However, that particular study only looked at the effect of removing traditional tariffs; as it pointed out, TPP includes other elements that might also boost GDP. Fortunately, we now have a new report from the World Bank, no less, which took into account all aspects of the proposed deal. Here's the summary of what it found (pdf):
The model simulations suggest that, by 2030, the TPP will raise member country GDP by 0.4-10 percent, and by 1.1 percent, on a GDP-weighted average basis.
That's a little vague: 10% GDP increase is very different from only 0.4%, so it really matters who gets what. The detailed figures are as follows:
Vietnam -- 10%
Malaysia -- 8%
Brunei -- 5%
New Zealand -- 3.1%
Singapore -- 3%
Japan -- 2.7%
Peru -- 2.1%
Mexico -- 1.4%
Canada -- 1.2%
Chile -- 1%
Australia -- 0.7%
US -- 0.4%
But those figures too are misleading, because they refer to the cumulative GDP gain from TPP by 2030. It's not clear when the World Bank econometric model assumes TPP will come into effect, but by 2030 it's clearly been running for at least ten years, and maybe even 12. That means all of the figures above need to be divided by at least a factor of 10 in order to arrive at the annual boost to growth, which provides a better measure of TPP's impact than the overall figure.
So according to the World Bank's figures, the US will gain an extra 0.04% GDP per year on average, as a result of TPP; Australia an extra 0.07% annually, and Canada a boost of 0.12% per year. In other words, they differ from the USDA's earlier projection of "no measurable impacts on real GDP" by amounts that are so small they will be swamped by the general imprecision of the model -- trying to predict what will happen to a big chunk of the global economy out in 2030 is hard, and that's putting it mildly.
The fact that two econometric models of TPP's effects, both from highly-respected institutions, predict that TPP will produce vanishingly-small economic benefits for key countries, including the US, could explain why there are so few such studies. A cynic might suggest that others were started but generated such inconveniently-awful outcomes that they were quietly dropped and never published.
from the extrapolating-from-a-single-data-point dept
The challenge by Philip Morris to Australia's plain packaging law for tobacco products is perhaps the best-known example of how companies try to use corporate sovereignty provisions in trade agreements to force nations to change their policies -- in this case, one designed to save lives. That case was also notable for the way that it had been brought: since Philip Morris was very unlikely to win by invoking the trade agreement between Australia and the US, it used one between Australia and Hong Kong -- a classic case of treaty shopping. Last week, we heard that the case had been dismissed. An article by Kyla Tienhaara in The Sydney Morning Herald explains:
it appears that Australia was able to convince the tribunal that Philip Morris should not be permitted to plead the merits of its case because it engaged in "treaty shopping". In other words, it was an American investor when plain packaging was introduced and only adopted a "flag of convenience" in order to access arbitration.
It's great news that Australia won't be forced to pay huge punitive fines for proceeding with its health policy. But, predictably, people are already pointing to this result as "proof" that corporate sovereignty isn't really a problem, as in this column published by The Conversation:
A tobacco company sued a government for enacting laws designed to improve public health. They used a little understood mechanism -- ISDS -- to sue, despite having lost in Australian courts. International trade law disputes rarely have such a clear-cut villain. It is natural to distrust the mechanisms they relied on. However, this victory -- in the first ISDS claim brought against Australia -- should allay those concerns.
The author concludes:
Australia's victory over Philip Morris should take much heat out of this debate.
The bogeyman has been slain.
Leaving aside the rather important fact that it is not possible to extrapolate from a single data point -- and that there are dozens of other ISDS cases where governments have lost and been hit with massive fines -- there are couple of aspects to note here. First, as Tienhaara writes in her article:
the dismissal of the case on procedural grounds means that we will never get a ruling on the substance of Philip Morris' claims. As such, the award contributes nothing to the bigger debate about the conflict between investment protection and public policy.
That's the key issue -- whether companies can use corporate sovereignty provisions to trump laws enacted democratically. The defeat on a procedural issue leaves open the possibility that other ISDS cases will succeed where Philip Morris failed, and cause governments to repeal laws rather than pay massive fines. In particular, both TPP and TAFTA/TTIP are likely to give far stronger rights to tens of thousands of companies to sue governments directly, without needing to invoke obscure treaties with third parties. Tienhaara points out a further reason why the defeat of Philip Morris does not signal that corporate sovereignty is no longer a threat:
poor countries are in the worst position because they can't afford even a preliminary defence in an ISDS case. It has been reported that Australia has spent [AU]$50 million [about US$35 million] defending plain packaging in arbitration. Uruguay has been mired in its own dispute with Philip Morris for even longer than Australia and has to rely on funding from a foundation set up by former New York mayor Michael Bloomberg because it can't afford to pay its legal fees.
The high cost of ISDS makes the threat of arbitration a potent tool for the tobacco companies.
In other words, it is not necessary for companies to win all or even most corporate sovereignty cases: the mere threat of them winning is likely to be enough to dissuade many governments from proceeding with policies that could result in them paying huge awards. The ISDS bogeyman may have taken a hit with Australia's win, but it is most certainly not slain.
As we've noted, we regularly get legal threats, some of which are more serious than others. Sometimes we ignore them entirely, and sometimes we feel the need to respond. Depending on the situation, sometimes we respond privately. Sometimes we respond publicly. The more ridiculous the threat, the more likely we are to respond publicly -- and I think the latest holds up as one of the most ridiculous legal threats we've seen. It comes from Milorad Trkulja, who is also known as Michael Trkulja, and who lives in Australia. Trkulja made some news a few years back when he (somewhat surprisingly) successfully sued both Yahoo and Google for hundreds of thousands of dollars, because when people did image searches on a variety of phrases related to things like "Australian criminal underworld mafia" sometimes a picture of Trkulja would show up. Apparently, Trkulja was actually shot in the back a decade ago by an unknown gunman. And somehow, for whatever reasons, certain websites included pictures of him along with enough keywords that the search algorithms at both Google and Yahoo would return his photo in such searches. We wrote about his victory over Google back in November of 2012, pointing out how ridiculous it was that an Australian court said you could sue search engines because image search happens to pop up your image along with actual gangsters.
Anyway, after we wrote about the case, as happens on Techdirt, people commented on the story, including one anonymous comment from someone who, in a totally offhand way, claimed that "Trkulja's a gangster, too." The actual content of the comment, as you can see was actually to clarify some of the misconceptions -- including who "Tony Mokbel" is (a well-known Australian gangster) and responding to the author of the post, Tim Geigner's (admittedly weak) sarcastic joke that Australians fight with machetes, rather than guns.
Now, it appears that Trkulja just found out about this comment (more on how in a moment) and has sent off a fairly massive 54-page document to both myself and to Google with a series of increasingly hilarious demands -- including that we respond by 4pm today (he does not designate in what time zone -- not that it matters). The letter is, well, you kinda have to read it. It is full of misspellings, along with typographical and grammatical errors of all kinds. For someone who claims to have consulted a lawyer before sending the letter, you'd think he'd consult someone who could proofread his letter as well. No such luck, apparently.
It starts out by claiming that it's "Not for publication" but that's totally meaningless. You send it to us, we can absolutely publish it. Free speech means something here in the US.
It then includes a recitation of some "facts" about certain Australian organized crime individuals, followed immediately by this:
I'm not an expert on Australian law, but I'm pretty sure that's totally false. I believe that he's either referring to his own earlier case, or (more likely!) the dreadful recent decision in a South Australia court, concerning one "Janice Duffy." Duffy, as we've discussed, sued Google after she became quite upset that a Ripoff Report post mocking her was a high result on her name (what is often left out of this discussion was that Duffy went to Ripoff Report first and posted fake posts to attack a psychic website where she felt she had been connected to a psychic who provided her with false information, and the supposedly "defamatory" content on the site was someone referring to Duffy as a "psychic stalker"). The ruling in that case did not say that Google is automatically liable for any defamatory content online, but rather, in this specific instance, Google could be found as the "publisher" of some defamatory content, based on the way that Google chose to display that content. I disagree strongly with the decision as is, but even if we accept it at face value, it does not say what Trkulja is claiming.
Oh yes, speaking of Duffy, it felt... odd... to receive a legal threat from Australia so soon after discussing the Duffy decision -- especially given that Duffy had not only just yelled at us online, but had also been going off on some bizarre rants and outright threats against some individuals who expressed an opinion suggesting that the ruling in favor of Duffy was troubling.
So, it didn't come as a huge surprise that Trkulja then admits he only found out about our post and the comments... thanks to Duffy, who is apparently a "family friend" of his.
If you can't read that, it notes that the "matter in paragraph 14" (which is the comment I mentioned above) "come to my attention when my family friend Dr Duffy from South Australia send me link that you have been defaming me as from 2012."
From there, he notes:
I complains is an article authored by you and posted to the "Techdirt" website situate at https://www.techdirt.com ("the website")....
Well, I'm really not quite sure what to do with that information, because almost everything in it is wrong, but we'll get there. From there, he mentions that he spoke to an Australian defamation lawyer, and suddenly shifts oddly from the first person to the third person -- possibly copying what someone told him, though it's not at all clear from the text of the letter. The key point: he claims that comment is defamatory and that Techdirt is liable for it. This is wrong on a variety of levels -- but we'll get there as well.
Then, we get to the "demands." It starts with a demand for Google. They are apparently supposed to delist Techdirt entirely because of a single comment that Trkulja falsely believes is defamatory. Also, it could be read as to be asking Google to block me personally from Google's website. Or something. Also, he wants Google to block some other websites. No reason or explanation is given.
Then there are demands for me that include identifying the anonymous "subscriber," delete the comment, the post and anything ever mentioning Trkulja. Oh, and I should fork over a bunch of money:
These demands are then repeated again on the next page in slightly different language. And numbered instead of lettered. No idea why. Then there's a demand that we respond by December 1st, 2012. Yes, 2012. I'll assume that's a typo.
Then there are a ton of screenshots that I assume are "exhibits" of some sort. They include my Twitter page for no clear reason. And also the Techdirt profile of the author of the original article, Tim Geigner, and, for reasons unknown, Tim's Amazon author page. He also refers to Tim as "Darknight aka Timothy Geigner" while I think most of our regulars recognize that Tim is better known as "Dark Helmet" in our comments....
Okay, so that's the situation. Now, the response: we're not going to do any of the demanded things. For a whole variety of reasons. Let's go through just a few, because this post is getting too long already and if I had to respond to all of the ways this letter is wrong, none of you would still be reading.
First up, not that it really matters, but the statute of limitations is one year in Australia, as it mostly is in the US as well. Under some circumstances, it can apparently be extended to three years, but (oops) that comment was published on November 13, 2012. The statute of limitations is up. Sorry.
The comment isn't defamatory. The reference claiming you're a "gangster" is totally innocuous. It's a trivial throw away comment on a blog post that no one would notice. Trivial comments are not defamation in Australia (or the US for that matter).
The other lines that you seem to complain about are opinions not statements of fact. The reference to the "gun" was a response to Geigner's joke in the post about machetes, not to anything involving you. Opinions are not defamation. Things unrelated to you are not defamation of you.
Also, we're a US company with no presence in Australia, so your threats are pretty pointless.
Even if you could convince an Australian court with some sort of wacky legal argument, we're totally protected from such judgment thanks to the SPEECH Act.
Free speech, dude.
We have no "subscriber" named Anonymous Coward. That's the designation given to anyone who comments without logging in.
We didn't publish the comment. An anonymous user did. We're not liable for it. If you have any legitimate complaint at all (and you don't), it's with an anonymous user who posted a trivial comment three years ago, rather than us or Google.
Even if none of the above is true: what the fuck? NO ONE is finding a comment buried deep below a blog post about your legal victory and suddenly saying "oh, well that proves that Trkulja was a gangster."
Wait, what's so terrible about being called a "gangster" anyway? To many people it's a compliment or something to brag about.
That's enough of a response. There are tons of other possible responses, but in short: we're not doing a damn thing in response to this ridiculous threat. You have no case whatsoever and complaining about this is ridiculous. It may be time to find a hobby or something, Mr. Trkulja, because poorly written and ridiculous legal threats to foreign entities aren't doing you any good.
A private Facebook account belonging to Rhys Liam Halvey (under the name "Rhys Brown") was surveilled by NSW Police Senior Constable Daniel Moss after it came to his attention that it contained "derogatory" posts. Moss used someone else's login information to access the closed account (likely one of Brown's "friends") and see what was being posted. This began in late 2013 and continued until March of 2014 when a "string" of "derogatory" posts appeared.
The content of the supposedly derogatory posts is laughable and far from what anyone but the most small-minded police force would view as "criminal."
They featured a NSW Police infringement notice together with photographs of several serving officers, taken in a Sydney street setting.
One image carried a large sum of cash and words to the effect of: "Here's my $25,000 for your $101 fine." Another image depicted Miley Cyrus "twerking" in front of an officer.
Nevertheless, the posts did result in charges against Halvey, who has never admitted ownership of the surveilled "Rhys Brown" account.
Rhys Liam Halvey was arrested and charged with three counts of using a carriage service to offend police and a further three counts of publishing an indecent article.
Despite having no legal authority to perform this surveillance, the NSW police force supported Moss's actions. Statements were entered by one of the "highest ranking police officers in the state," and when cautioned by a judge for their illegal activity, police supervisors doubled down on protecting Moss from the consequences of his actions.
Not only did they offer two sworn affidavits in support of his actions, they also claimed that any further public discussion of the methods used by Moss to perform his illegal surveillance would be "injurious" to the "public interest."
The judge was not impressed.
In ordering costs against police, Magistrate Brown described the conduct as "reprehensible" and the charges as "trivial."
"There is no difference to the police trespassing on a Facebook page for four months and my steaming open my neighbour's mail in the hope of one day finding something, anything, to report to police."
The state's rights advocacy agency also questioned the tactics used and the apparent willingness of senior law enforcement officials to support abusive behavior by constables under their supervision.
NSW Council of Civil Liberties president Stephen Blanks said public confidence in the police was being "undermined" by an inability to acknowledge the occasions when "it does the wrong thing."
"How deep in police culture is this willingness to break the law?" he asked. "Even after they have been caught out, it would appear no adverse consequences are going to be suffered by those responsible because the illegal actions are supported by police at the most senior level."
Still, the NSW Police managed to have the last word… by preventing anything further from being said. When the judge refused to indulge their request to keep discussions of Moss's surveillance methods from entering the public record, the law enforcement agency withdrew the case and handed over $14,429 in costs to Halvey... and then walked away from the mess promising to investigate actions it had known about since November of 2013.