Technology and the Law: Live Tweeting

The effects of modern technology on traditional professions like the law continues to be a topic of wide debate. In a speech for National Law Week Chief Justice Chris Kourakis South Australia's top judicial officer is reported by the ABC as saying that the traditional Court system "is struggling to keep up with technological change and that is hampering its effectiveness".

Further, in his speech, his Honour is quoted as saying "changes are needed to make the justice system more accessible to the public". One reform discussed in his Honours speech in this which has drawn much attention and puts technology into the spotlight is that of allowing journalists and media to use Twitter and Blogging technologies live from the court room during the hearing of cases.

His Honours speech refers to "the idea of journalists tweeting or filing stories from inside court rooms," saying . . . "[it] could become a reality in the near future, but not without restrictions". In his proposal, accredited reporters would be the only people allowed to broadcast information and tweeting would not be allowed to become "a running commentary".

An example of the controls which could be imposed given by his Honour is delaying tweeting of information to control what is reported, to cover evidence given which for legitimate reasons may need to be suppressed or corrected before its publication.

Currently the use of the Twitter techology to allow accredited journalists to file stories while in court is allowed in New South Wales, Victoria and in the United Kingdom and is likely to spread further, as the right parameters and practises are established.

In other areas of the law, Twitter is already coming in to wider usage as well, for example, if on any sitting day of the Australian Parliament you searched the hash tag #qt you'd see an online stream of thoughts, comments and reaction by observers, mostly journalists, and even the participant politicians themselves, during question time.

In the view of legal practice in SA, the Law Society can see both advantages and disadvantages to live Tweeting - its spokesman quoted as saying:

"Live Tweeting would have its challenges, but equally it's very important for the community at large to understand what happens in our courts."

Wider issues discussed by his Honour with respect to technology in his address, were the desire to see more court documents filed electronically, saving time and money; and extending the use of audio and visual technology during trials, "but not going as far as broadcasting trials .

Sources:

• Courts facing challenge of tweeting and technology (ABC)
• Plan to allow live tweeting from South Australian court proceedings (Adelaide Now)
• Tweeting from Courts (Kelly & Co)

"King Rat" not Unfair but Part of Political Vernacular

The Australian Press Council (APC) in a recent decision on 27 May 2013, has found that a digitally altered photograph of former House of Representatives speaker Peter Slipper was not highly offensive or unfair.

The person making the complainant, Jan Winstanley, said she was: "... horrified by the material and found it was highly offensive, unfair and goes against every principle that I am trying to instil in my children and in my workplace."

The photograph which covered most of the front page showed Peter Slipper MP standing at the Speaker’s Chair in the House of Representatives announcing his resignation from that office. His ears, nose and teeth digitally altered to resemble a rat, whiskers were added to his face, and a very large rat’s tail had also been appended to his body. The Daily Telegraph argued the altered depiction of Mr Slipper and the headline describing him as “King Rat” were “robust and powerful”. However it argued they were not unfair or offensive because they related to aspects of his behaviour falling within the long-established use of the term “rat” in the Australian political vernacular.

In its decision, the Council considered that the use of the term “King Rat” used in this context was not so highly unfair and offensive as to outweigh the public importance of allowing robust expressions of opinion on issues of political controversy, and in relation to digital alteration of the photograph, the Council considered that altered photographs are not necessarily to be assessed on precisely the same basis as if they were cartoons. 

This decision is yet another example of why there is little or no chance of balanced reporting in the Australian media while a situation prevails where one or two media organisation not only control most of the press but also having a large voice  regulating standards and ethics.

Another example of the same bias is the recent lampooning beyond reality and fact of the federal Minister for Communication for simply backing a mild legislative attempt to introduce some impartiality into media regulation. Legislation like that successful introduced in the UK to curb the excess caused by a media organisation run by the same company that owns the Daily Telegraph. 

Then there is the well known 2GB announcer who on an almost daily basis plays to bias and uses racist and derogatory terms to seed hatred and division. He too has fronted tribunal after tribunal and to date has profited from the experience in increased rating and thumbed his nose at any attempt to make him accountable.

Freedom of speech indeed is a most important sacred right but equally no right should be taken for granted or abused by people who hide behind it with the clear purpose of whipping up hate against those they do not like or favour. 

Google's High Price of Success

Sometimes it is possible to be too successful? So much so that it actually makes you a target for legal proceedings. Google in recent times appears to have been a major bulls-eye for lawyers and their clients.

In the case of Milorad Trkulja, Google was forced to cough up more than $200,000 in damages to an Australian man who brought his search results to court. Trkulja a Melbourne resident was at a restaurant with his mother in the summer of 2004 when he got shot in the back by an unidentified hitman. The 62-year old music promoter Trkulja survived the attack but a Google search now showed his online reputation didn’t have the same luck. A search for his name on "Google Images" bought up a Who’s Who of Melbourne’s Most Wanted. Results including alleged murderers, drug traffickers and even mob bosses. Even though the only link Trkulja actually had to Melbourne’s underworld was being a victim of an unsolved crime. As a result of Google's search logic (the algorithm that drives its search engine) he was showing up in the same results as were the less than savoury characters accused of shooting him.

Arguing this to be an assault on his reputation and determined to see it end Trkulja launched
his action in the Victorian Courts and succeed in getting damages.

A similar case has arisen where a Port Macquarie surgeon is now suing Google in the USA (in he California District Court) for defamation over an auto-complete search suggestion that he and his lawyers argue has cost him clients. It is claimed that when Google is searched for the surgeon’s name the search also displays the word “bankrupt” and that this association of words is affecting his reputation as a surgeon.

The expected response from Google as it has been in the past when such cases arise is that auto-complete is "a reflection of the search activity of all web users and the content of web pages indexed by Google", essentially arguing that the processes is automated and is not controlled by Google.

Similar cases appear to be arising around the world, for example, the “French court [who] fined Google $65,000 because the search engine's auto-complete function prompted the French word for "crook" when users typed the name of an insurance company”. In another Australian case, the ACCC has taken action in the High Court of Australia where it is claiming that Google should be held responsible for its AdWords rankings and placements. A decision in that case is expected soon.

It will be interesting to see how the standard Google defence that it is just using automatic algorithms and is not acting like a newspaper publishing a story holds up. Certainly as indicated in the press the courts are and will be looking at Google more closely in the future as will many eager legal advisers sensing the opportunity to take big sums in damages from one of the worlds leading technology companies. Sounds like the high price of success?

Merry Christmas thoughts

Today as it is a funny type of Christmas Day - not your hot sunny Christmas day of the Travel & postcard type but somewhat soggy and wet. So as I sit playing with the new bluetooth keyboard on my iPad and muse how sometimes the tested things are the best my thoughts are floating about several ideas.

Having tried to type with my thumbs on my iPad Screen at any kind of speed I have now ditched the idea of doing any serious kind of typing on screen and returned to the imperfect world of the QWERTY keyboard which while also not a perfect device does provide the ability to use more than two fingers (or in my case just Mr Pointer). Amusing that the QWERTY was actually designed with the keys arranged the way they are in an effort to slow the would be speed demon female typists of the early 20th century so the would not gum the works of mechanical type-weiters. Amusing because the human spirit as it always does adapted and found it could touch type and thwart the QWERTY design. Now the why is lost and what we find is we can't do without the QWERTY design.

How does this relate to Christmas? Well its the same story in some ways it can be that religion does not alway live up to expectation but at least the spirit is right and it kind of gets us there in the end - so much so that one is left to thinking well I can't just keep typing with my thumbs?

Merry Christmas one and all... and a happy new year. Lets make it a good one.

Ashby Gate: Abbott says no need for " witch-hunt"!

Opposition Leader Tony Abbott says there is no need for an inquiry into the collapsed case against former speaker Peter Slipper where the judge found outrageous behavior by many who had more than a passing connection with the LNP. Abbott claims such an inquiry "would only end up as a "witch-hunt"" and he might know having conducted a few in the last year or so? One is tempted to ask if the concern arises only because of the like subject(s) of the inquiry.

Abbott was speaking for the first time since a Federal Court judge Rares ruled that the sexual harassment case, brought against Mr Slipper by staffer James Ashby, was an abuse of process designed to cause "significant public, reputational and political damage".

It was interesting to note that many LNP ministers and members previously present and opinionated on the matter were today absent or if available not answering the real questions. No brandishing legalities from Senator Brandi's, no needling from there redoubtable Pyne - just that kind of feeling that if they just shut up it will be gone after Christmas.

Given that Justice Rares has made clear he Machievalian nature of this conspiracy saying he believed the case "was designed to further the political interests of the Liberal National Party (LNP) and Mal Brough, who has been preselected as the Coalition's candidate in Mr Slipper's Sunshine Coast electorate of Fisher". ... there is need for an inquiry, a proper inquiry and one not run, created and decide by the LNP and it's friendly press.

Judgement in Slipper Case Sees Ashby Claims held to be "Abuse of Process"

Yesterday (12 December 2012) Justice Rares of the Federal Court of Australia handed down his judgement in Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411. The judgement has thrown out Ashby's sexual harassment claims in an emphatic judgement which among other things found: “that these proceedings are an abuse of the process of the Court. "

Justice Rares found that the "originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper". The judge then questioned various claims saying they "contained the scandalous and irrelevant 2003 allegations and assertion about intended reporting of the Cabcharge allegations to the police."

Finally, Justice Rares concluded that to "allow these proceedings to remain in the Court would bring the administration of justice into disrepute among right-thinking people and would be manifestly unfair to Mr Slipper."

The key facts

The case was an application by Peter Slipper MP and former Speaker to have the proceedings brought against him by Ashby dismissed or stayed as an abuse of the process of the Court.

The key contention was that an abuse had arisen because the Court's process was employed for an “ulterior or improper purpose, or in an improper way, or in a way that would bring the administration of justice into disrepute among right thinking people”.

It was further alleged by Slipper that Ashby had an “improper, predominant purpose for commencing and pursuing … proceedings that he commenced on 20 April 2012 by filing his originating application”.

Ashby accepted a position as an adviser on Slipper's official staff shortly after Slipper became Speaker of the House of Reps in controversial circumstance in 2011, Slippper also resigning his position as a member of the opposition Liberal National Party and sitting as an independent. As a result of this Slipper was then facing a possible challenge for pre-selection for his seat by Mal Brough a former Howard Government minister.

Ashby made serious allegations against Slipper as follows:

- that he had sexually harassed Ashby in the course of his employment verbally, in text messages, and on one occasion, by stroking his arm in his office;

- that in 2003 Slipper had relationship of a sexual nature with a younger male member of his staff and an encounter between them had been recorded on a video. A viewer of the video had concluded that the relationship depicted was consensual; and

- that Ashby had been forced on three occasions in late January to mid February 2012 to watch Mr Slipper sign multiple Cabcharge vouchers during his employment and hand them to the driver of a vehicle in which they both travelled and that Ashby intended to report these matters to the AFP.

In response Slipper alleged Ashby had “commenced and prosecuted the proceedings in a manner that was seriously and unfairly burdensome, prejudicial and damaging” to him.
Slipper further alleged that Ashby brought and continued the proceedings in combination with one or more co-workers on his staff and Mr Brough and a News Ltd journalist, a media consultant (Anthony McClellan), his solicitor (Michael Harmer and Harmers Workplace Lawyers), for an improper predominant purpose. Finally, Slipper alleged that Ashby had brought and continued the proceedings, for the predominant purpose of forming a political attack on Slipper to aid the Liberal National Party and or Mr Brough so that Ashby and Doane would be able to find new employment with the help of the LNP.

Justice Rares Conclusions

All Quotes below are from the summary of case.

Justice Rares concluded that Ashby's primary consideration in launching proceedings was political and not for redress of a wrong and as such an abuse of process.
To quote “I have reached the firm conclusion that Mr Ashby's predominant purpose for bringing these proceedings was to pursue a political attack against Mr Slipper and not to vindicate any legal claim he may have for which the right to bring proceedings exists."

“I am satisfied that these proceedings are an abuse of the process of the Court.”

“Sexual harassment of anyone, including an employee such as Mr Ashby, is a violation of the person's human dignity and rights. The Court must always be available for the hearing and determination of bona fide proceedings to vindicate and protect those rights. But for the reasons I have given, Mr Ashby's pre-dominant purpose in bringing the proceedings was not a proper one.”

On Slipper's argument of a wider conspiracy which would have included a News Ltd journalist and Ashby’s legal team, Justice Rares did not find such a wide conspiracy existed. He did find collusion at the level of Ashby, Doane and Brough.

“Even though I have not found that the combination was as wide as Mr Slipper alleged in his points of claim, the evidence established that Mr Ashby acted in combination with Ms Doane and Mr Brough when commencing the proceedings in order to advance the interests of the LNP and Mr Brough. "

Justice Rares concluded: "Accordingly, I am satisfied that the exceptional situation that enlivens the Court's power to dismiss proceedings as an abuse has been proved to the heavy standard required. The duty and power of the Court to protect its own processes require that I give effect to the findings I have made by dismissing the proceedings with costs.”

Comment

This decision is on the one hand a victory for law over lynch mobs. On the other proof that even with a less interested in fact media the truth and justice find a way into the public domain. Serious questions now arise to be answered by he likes of Mal Brough, the people who mentored this in the Liberal National Party who mentored the claims and most of all the leader of the opposition in terms of what he knew of the collusion and what he will do with respect to Mal Brough now an endorsed Liberal candidate.

The 'Daily' Tablet Newspaper to Stop: Murdoch Pulls Plug

In a year that can not be called a winner for the Murdoch brand (don't mention the phone tapping) the Murdoch empire has announced that it will shut down its purpose built tablet app "The Daily". The reason being given is a lack of readers. ABC reports that "Murdoch's News Corporation has announced it will cease publication of its iPad app, The Daily, from December 15, due to a lack of readers." - the virtual newspaper was launched in February 2011.

On its launch The Daily was described by Murdoch as "exclusively designed for touchscreen tablets and costing 99 cents a week or $39.99 a year - a bold experiment.

On its demise Murdoch is quoted "Unfortunately, our experience was that we could not find a large enough audience quickly enough to convince us the business model was sustainable in the long term."

At its peak The Daily was believed to have reached 100,000 paying subscribers contrasting with Murdoch's reported expectation when launching the digital paper that it would need to recruit 500,000 readers a week to break even. In July, he announced it would cut 29 per cent of its staff, or 50 employees.

One identified failing was that The Daily was initially designed to work on Apple's iPad tablet, and only later made available for some Android devices and smartphones. Many said that relying on the Apple platform turned out to be a mistake, limiting its appeal and market.

Another failing is to quote reports - "Research has since shown that tablet owners are 'digital omnivores' who consume media seamlessly across tablets, smartphones, PCs and print publications. To serve them news on only one platform is not satisfying."

Indeed it would seem to any observer that Murdoch has tried to meet the shifting tastes for news provided by the ability to obtain it from many sources with an old world model based on the print newspaper enhanced by technology and flashing lights. To this observer it seems little wonder that The Daily has failed.

Another issue is that we now live in an age of aggregation and "freemium" news and information which is quick and easy to obtain in many ways - for example, Google and in particular Google News, Twitter where I can follow like minded people who point and lead me to the stuff I want to read or even directly from the source of the news as in a government sites, associations site etc. It would seem the greatest threat to print media lies in the adherence to old business models and a failure to realize that people no longer pay in the traditional way (subscription for example) and further, even if there is a bill at the end, they want to get quite a good deal for free - at least enough to get so hooked that they will happily pay a small amount in ever increasing quantity to keep the supply (one reason Apps have become such a pervasive way of delivering software, ads and information).

It will be interesting to see what Murdoch does next with respect to print media but whatever it is it will require more innovation and entirely different business model.