Brennan Justice Talks 2020 Privacy Justice

>> Jane: It's six o'clock by my clock here so we might get started because we do only have an hour and I know that Sacha has a lot of interesting things to tell us. So good evening everyone and welcome to the third event for the Justice Talk series and tonight as you all know, we're focusing around issues around privacy and justice. My name is Jane Wangmann and I'm one of the co-directors of the Brennan Justice and Leadership Program and I'm joined to you tonight with my co-director from the Law Student Society Erika Serrano who will assist at question time in terms of organising speakers and Crystal McLaughlin our program administrator who I think you all know and most importantly our special guest and presenter for this evening Dr Sacha Molitorisz. Before we start the proceedings, I'd like to acknowledge the traditional owners of the land in which we are sitting and participating in this Zoom session. I'm coming to you from the land of the Gadigal people of the Eora Nation and I pay my respects to their elders past and present. I acknowledge that for some of you you might be coming to us from other traditional lands and I acknowledge the traditional owners of those lands. I'd also like to extend a very warm welcome to any Aboriginal and Torres Strait Islanders who are participating in this session. Before I introduce our guest speaker, I'd like to just mention a couple of housekeeping items before we start the event. So as I'm sure you are probably all very well aware now having been in lots of Zoom sessions, you have the ability to hide and show your camera as well as mute and unmute your microphones. We do ask that you mute your microphone when you are not speaking, just to prevent any background noise from distracting the speakers and if your bandwidth allows and you feel comfortable, it would be great if you could have your camera on. I guess particularly when Sacha has finished sharing his slides and particularly if you are asking a question. This does make it feel like a more interactive event and it is great to see friendly faces when you're talking but only do so if you feel comfortable. If you do have your camera on and you start to find that it's freezing, just switch it off so you can free up some bandwidth. Lastly a very important request, in order to get your five ROJ points, if you could just put your full name in the chat box and the Brennan team can then record your points and log it for you. You can also use this chat box during the session for any questions that you might have regarding privacy as Sacha is talking or about the Brennan program more generally. So now that I've dealt with all those housekeeping issues, I'd like to introduce you to our special guest and key speaker Dr Sacha Molitorisz. Sacha is a Post-Doctoral research fellow in the Centre for Media Transition here at UTS. The centre is an interdisciplinary research centre involving the faculty of Arts and Social Sciences and the faculty of Law. Sacha joined the centre here at the beginning of 2018 and his research in teaching areas there include digital privacy, trust in the media and media and legal ethics. Prior to working at UTS and undertaking his doctoral studies, Sacha worked at the Sydney Morning Herald as a reporter, blogger, editor, reviewer and senior features writer. Since 2012, Sacha has taught Global Media at NYU in Sydney. At the beginning of this year, Sacha published his book 'Net Privacy: How We Can Be Free in an Age of Surveillance' which is based on his PhD research which applied Kantian ethics to internet privacy. Reviewing this book Professor Jason Schaultz from NYU School of Lawl noted that Sacha "lays out a compelling case and helps us to understand that now is not the time to panic but instead to be pragmatic and political". Sacha describes his professional goal as 'finding the answers to the question of how in a digital age we can shape a more ethical media landscape'. It's a great pleasure to have Sacha here tonight. I heard Sacha earlier in this year when he launched his book and we're in for a very informative and stimulating evening thank you Sacha.

>> Sacha: Thanks Jane that's a really generous introduction I really appreciate it. Jane and I studied to get all those years ago at UNSW so it's really nice for our lives to intercept again I'm fairly new to Academia but thanks Jane thanks to everyone for asking me along it's great to talk on justice and to try to bring some of the stuff that I've been working on into relationship with justice and to think about it in most terms. So hopefully what I talk about will be coherent because I'm going to try and bring a few different strands of thinking together. So one is privacy which Jane has already mentioned and the other is news media and hopefully I can bring those two together in a way that makes sense and spark some conversation for later. So the first thing I guess that is interesting to think about when we think particularly about privacy, is what we're doing you know I'm here in my living room. You know I was talking earlier some of you may have heard talking about acoustics in this room compared to other rooms in the house and we're doing all this work and communicating with other people all this communing in a way from our homes in a lot of cases you know. So Crystal's in at the office. Jane I think you're at home right? So we're all in these different spaces and what that does it means that there is this new configuration of what it means to be private what privacy means and what public means as well there's this kind of everything's being thrown up in the air to some extent and certainly what we've always thought of as private has been challenged you know and so we've lived over the past few months with coronavirus of course much more in our houses, connected via Zoom, done classes via Zoom you know what requires zoom and use all these other things like Microsoft teams all these digital platforms and services. That to me the way that changes privacy and what is private and what is public is really interesting and has all sorts of flow-on effects. So I'll just use that as a kind of as a bit of an intro to what I'm going to talk about so I'll share some slides now if I may obviously if this works. Here we are and also while I'm talking, please do feel free just to interrupt I won't be able to see the chat but maybe if you do put something in chat maybe Crystal or Jane can alert me. But if you just want to speak up I'm not at all the kind of speaker who doesn't like interruptions you know. If you have a point to make and it's or a question to ask and it's just right on point please do interrupt. All right so that's me. I'll tell you a little bit more about me very quickly after I tell you what I'm going to talk about. So Justice plus privacy, justice plus news media and digital platforms and then finally I'll wrap it up by talking about how we can be free even in a time of coronavirus. Three points that I'd suggest don't really look very linked but hopefully there'll be some sort of links we can see by the end. Me. I studied law and English literature initially did a BA and LLB at UNSW and then I went off and became a journalist I never practiced as a lawyer. I worked mainly as a features writer. I did a lot of popular culture writing so TV, movies and so on, too good to be a job it wasn't really a job too much fun. Then partly because of the implosion of news media, I went off reconnected with law, reconnected with the academic interests that I have and embarked on my PhD into the ethics and law of digital privacy that's what it ended up becoming. That led to my job with the Centre for Media Transition where I've been for nearly three years and the Centre for Media Transition is a really interesting place. It's very young it only just started before I got there and it's housed in the faculty of Law but there is a co-director there from journalism at UTS. So it's this kind of news media/law centre which gives us a scope to be very interdisciplinary. I guess my own specialty is under those three areas: ethics, law and media. Each of those is pretty big on their own when you bring them together they get even bigger so, some questions under the topics of ethics, law and media are what I specialise in. All right so that's the book that Jane mentioned. The best words in there on the cover there by Sean McAuliffe, what did he say, you can't read it there. He said "bookseller website algorithms will recommend this book because they know what you like. I'm recommending this book because I like it". I just quote that because he's a funny man. So privacy let me talk a little bit about privacy. I'll tell you about three people some of these you may have heard of. Emma Holten, Ashley Madison, Ed Snowden. One fictitious or not real to real people. Emma Holten so she is a very inspiring impressive Danish woman who a few years ago woke up one morning to find all sorts of intimate images of herself all over the internet and she found out because she suddenly received all these emails from strangers. You'll recognise that as probably not a completely unfamiliar story, it's something that happens very often. It was initially something dubbed revenge porn, we now know it as image-based abuse that's what the law knows it as and she responded to this by actually going out and taking some more photos after a while with her consent and sharing them with her consent as a form of taking power back. So there's Emma Holten. Next oh well before I go to the next, that was not meant to happen let me go back to my slideshow there we go. A sad reality of coronavirus just I mentioned on the slide is that image-based abuse is on the rise you know we're seeing all sorts of unfortunate you know apart from the obvious negative outcomes of the virus and the pandemic we're getting things like this. You know this line here the "complaints people sharing intimate photos and videos online as a kind of retribution for ended relationships are up by 245% compared with the same period last year" so that's terrifying. All right the second person that I want to tell you about is not a real person, Ashley Madison. It's a website the tagline is 'life is short have an affair'. You may have heard of it, it's an infamous website and the reason it's really interesting in privacy terms is because hackers broke into the Ashley Madison database to find out who the men may it's mostly men who use the site, who they were so they could out their identities and in the wake of that, there's at least one person who committed suicide I think there were several in the end. So it's a very interesting ethically complicated story about privacy and modern data breaches and data protection. Third Edward Snowden no doubt you've heard about him. His revelations when he emerged in 2013 in a Hong Kong hotel room to tell a handful of journalists about the documents that he had taken from the NSA, the National Security Agency He argues that what he discovered while working for the NSA was this widespread government surveillance that was unconstitutional, that was unethical and that was breaching Americans' privacy in a way that it shouldn't be breached, so he needed to tell people. So we've got those three people what do they tell us? Well they tell us that we're living in this Digital World which won't surprise you, that where privacy is under such threat so from individuals, in the case of Ashley Madison and with a big breach in 2015 from hackers and from phishing scams, it's also under threat from companies so Uber you no doubt would have heard about privacy breaches, Facebook and Google and the impacts on data of of the way their services work. Acxiom, I don't know if you've heard of them, but that's a data broking company. So all these companies like Acxiom exist in the background  to profit from the exchange, the sale of personal data and of people's information. You've probably heard that phrase the 'data is the new oil'. Then we get governments right so so these acronyms: NSA, GCHQ, ASD, that's the Australian Signals Directorate and so on. So you're getting privacy challenges from a lot of different directions and they have different ramifications naturally. You might have heard of this idea of the Panopticon. It's a metaphor that's evoked quite often in relation to digital technology, the idea of the Panopticon is something that dates back more than 200 years. Jeremy Bentham; lawyer, philosopher, he came up with this idea of the prison, a prison that would be different to the ones that existed in his day and in this one, you would have the guards in the middle in this watchtower centrally located and that all the cells around the outside. This meant that the guards will be able at any time to look into any cell, so prisoners could be watched at any time and they never knew given the particular design of the guard station and the blinds and so on that we used, the prisoners never knew if they were being watched or when they were being watched. So what we get now really you can characterise it as Panopticon on steroids or Panopticon 3.0. I think that's one way that we can think about it and it's much more than the Panopticon. So we have that initial design for a prism which in fact was then realised in man countries, many countries built prisons according to that design. But in fact what's going on which hopefully you can see from the examples I gave, is that the viewing is not just of guards of prisoners but it goes in every direction you know it's prisoners watching other prisoners, it's prisoners watching guards, the viewing goes in all directions and the thing about the data, the digital data that's collected is that if you have enough of it, you can see into the past and arguably you can make certain predictive assessments as well which are very powerful. This brings us to the first poll Crystal would you be so kind as to launch poll number one.

>> Crystal: Of course Sacha.

>> Sacha: Privacy is: my favourite small bar in Newtown, an 80s synth band, a fundamental human right or dead. I don't know if this allows you to answer more than one at a time I think not but you can try. What have we got here.

There is a considerable number of people who are saying it's dead, a quarter of you very interesting, a fundamental human right most of the rest of you, so nearly three quarters. I haven't been to that favourite... to that little small bar in Newtown it's too private for me. That's very revealing, does anyone want to, is anyone bold enough to speak up about why they think it's dead?

>> Crystal: Should I end the polling now and just see if we can show it with everyone or the results. 

>> Sacha: Yes yeah why not. Great. Who said it's dead? I won't put you on the spot. I'll just keep talking we'll do a time check. I've heard from but of course over the years, I've heard from a lot of people including students about it being dead and I'm not surprised to hear it. I don't think it is, but certainly there is a significant trend putting immense pressure on the privacy that we have and on the right to privacy. So there's reason to feel fatalistic about it but I don't think we need to be in fact quite the opposite I think we need to be optimistic and positive. I'll close this poll. Okay so from there I'm jumping, hopefully deftly, into topic number two: news media and digital platforms. So this is another area that we work at, at the Centre for Media Transition and definitely an interest of mine as someone who worked at the Sydney Morning Herald and at smh.com.au and watching it evolve from 1994 when I started till 2012 when I left and over that time of course the internet and the World Wide Web in particular became huge and that's where most media now plays out that's where the action is right. So in you may have heard of this, the Digital Platforms Inquiry of the ACCC: The Australian Competition and Consumer Commission. In the middle of last year 2019, it handed down its final report where it made a whole lot of recommendations. So late 2017, the Federal Government charged the ACCC with conducting an inquiry into the impact mainly of Google and Facebook on media. So what's happening here? What is the impact of Google and Facebook on news media? What is their impact on advertising? What is their impact on media more generally? 18 months later they handed down this final report and I was lucky enough to be quite close to the process and do some research on their behalf as part of the process and I was incredibly impressed with how they went about the task and with this report which is more than 600 pages long. You may, I did share a link to to it well, Crystal I believe did. Hopefully you had a chance to have a look at the first 30 or so pages because I think it it makes a lot of very powerful points and makes a lot of very powerful recommendations. One of the very important, it was never asked to investigate privacy, but one of the very important conclusions that they came to very early was that they couldn't look at the impact of digital platforms without thinking about data the use of data. So here's a screenshot from one of the pages of the PDF version of the final report and this is a a graphic that I think explains this really well. So the ACCC realised that competition, which is what it's job is to look at, and consumer protection which is its job as well, to look at that in a modern digital media ecosystem it needs to think about data protection and privacy. Those three are inextricably interlinked they you can't think about where Google sits in the marketplace or where Facebook sits in the marketplace without thinking about data. So this point on the bottom right where it says competitive data driven markets competing for well-informed consumers on all dimensions of price and quality including a level of privacy protections. That's at the very centre of that graphic there and explains why the ACCC and many others think that we need to think about data when we're thinking about these issues. It came to these recommendations, I won't read these out but there's a whole list of recommendations that the ACCC came to about strengthening Australia's privacy law. My perspective there is they're very good very important recommendations that need to be taken up and there are more. That was just a Privacy Act, the ACCC recommended broader reform of Australian Privacy Law, it recommended that the privacy commissioner implement a new privacy code for digital platforms, that we implement a statutory tort for serious invasions of privacy something that the Australian Law Reform Commissioners recommended on numerous occasions and that we have these final two prohibitions. The prohibition against unfair contract terms and a prohibition on certain unfair trading practices. So the ACCC has made all these recommendations about how we ought to reform Privacy Law and the government has started acting on those there is wide scale privacy law reform underway including the development of a code and a look at the Privacy Act again and more. Meanwhile, the ACCC also recommended a number of measures to help news media because news media is in a pretty bad state so recommendation seven was designate a digital platforms to provide codes of conduct governing relationships between digital platforms and media businesses to the ACMA the Australian Communications and Media Authority. It recommended stable and adequate funding for public broadcasters, it recommended grants for local journalism and also tax settings to encourage philanthropic support for journalism. So one of the things that the ACCC realised is that journalism is in dire straits and part of the problem is that that goes hand in hand with the success of the digital platforms and that's not just a correlation the ACCC saw that there was some imbalance there and there was some causation. So here's the simple truth, journalism currently is in crisis the million dollar question is just how much responsibility do Google and Facebook and other digital platforms bear? Things are getting worse. Why are things getting worse now? Well the virus right. So things were bad already and you could just imagine the scenario of a local paper pretty much any paper, but it's more acute in local and regional areas. You know picture a small town paper all of a sudden there's no local restaurants trading or there are not so many trading there are no events there are no artists coming through playing gigs, there are no gigs, so all of a sudden the advertising that was left, following the rise of the internet, just disappeared. So there have been titles shutting down one after another over the past few months more than 100 titles have shut down in Australia either temporarily, where they're just suspending they say or permanently and in some cases the print editions have closed and digital only newspapers in particular remain. Regional local particularly hard hit, I've done some research with a few colleagues that looked at jobs data from 2012 to 2020 and it just underscored all these it there were some interesting findings including for instance that there was a surprising increase in job ads to 2016 but there's been a terrifying gender inequity that's tied up. So sometimes these consequences a little bit less obvious a lot less obvious and the data brought it out clearly journalism skills are shifting to I won't dwell on that. One of the big things that you might have heard of is this news media bargaining code so out of the digital platforms inquiry, one of the recommendations was that digital platforms and news media businesses need to come up with a code whereby they can address the unfair value exchange and ultimately, digital platforms can pay some money to news media. The government back in April said this is happening too slowly we're going to make it mandatory, so it fast tracked the process and you may have heard just in the past couple of weeks, the ACCC released its draft legislation for the code and Google and Facebook were not very happy. Facebook said we're going to pull if this goes ahead, we're going to pull all news from our platform and Google was pretty unimpressed too. So the government wants to to bring this in by the end of the year. This is the issue is there a fair value exchange if not, how do we make it fair? The tech companies this word was used it's a Shakedown of Google and Facebook. Okay and that brings us to poll two. Crystal would you be so kind. Privacy is:

>> Crystal: Trying to work out the polls, oh here we go there's a drop down.

>> Sacha: I thought the first one was so good we should do it again.  

>> Crystal: You're too kind here we go.

>> Sacha: Okay the mainstream news media is what do you think I'm curious to hear your thoughts. Generally trustworthy, generally untrustworthy, mix of trustworthy and untrustworthy. I wouldn't know I never consume any mainstream media. It's great to see like it's really interesting to me to see that there's some of you who fall into it, there are at least two of you in each of those categories.

>> Crystal: We'll just close the voting now, last votes then we'll share them for you.

>> Sacha: Great. Does anyone care to add anything? Why particularly people who are in the generally untrustworthy or never consume any major stream media? What are some of your objections?

>> Erika: Sacha I think Maximilian raised his hand.

>> Maximilian: Hi personally I put it in mixed I think that with the rise of independent media online, there's been a need for conventional media to sense to increasingly sensationalise its work, to try and keep up with Independent Media online. I'd say like for example government-funded organisations such as the ABC and I guess just a lot of Australian media that remains on TV does have that regular  or normal journalism as I'd probably refer it to as opposed to centralisationised journalism. But pretty much just with the rise of online and decentralised media, in order to compete they're sort of an easy way of going about it originally would have been through censorious means so for example your Buzzfeeds, your vices etc. So as that's propagated, it goes less to potentially the legitimacy of the work and more to the emotional response you can get from your audience.

>> Sacha: Yeah great thanks for sharing that Max that's a great response. Look I remember conversations that, The Herald on exactly this point. Where there was the hard copy newspaper which is being read by fewer and fewer people, meanwhile there was the the kind of same thing online in a different form because initially that's what it was. The online form was seen as the online version of the newspaper only relatively recently has that changed and there were discussions about hang on a second, as the online the stuff that works online is the emotional stuff it is and editors started chasing that so the online then did change in tone from the hard copy version and it was more low brow and emotional and in some cases just not not as good. But yeah there is that's a very interesting point you raise. All right look just in interest of time, I'll keep going 

>> Crystal: Uh Sacha, so I'll just stop sharing the results and I'll close that. Just while I've got the mic, I'll just ask everyone, if you haven't posted your name as it appears in Careerhub or your student number, just pop it in there in the chat just so you get your points, there's a few people that haven't. There's iPhone and Natasha guest, we just don't know who you are. There's actually a question from Richard in the chat box saying "Sacha thanks for speaking with us today and basically wondering if you could define privacy".

>> Sacha: Yeah okay just a small question there. We could spend a lot of time talking about this. Philosophers and theorists have argued about this a lot. They've argued about this question, what is privacy, and also why it matters or even whether it matters at all. To go to that second question first, there have been some philosophers including Plato, who argued which we'd be better off without it you know we shouldn't have it. Privacy is really just something to protect us from embarrassment and shame and we're all human and we share ultimately the same fundamental reasons for living and motives and so on so without privacy we'd be better off. So there is that, it's worth thinking about you know just why do we value it and I think we need to mount that case pretty strongly. But to your actually to your question about what is privacy. Philosophers and theorists tend to come up with two main ways of thinking about it. One is it's about control. So privacy is me controlling the limits of what it is I want to share about my body, about information about myself, about my relationships what I want to share, so control is one of the models. The model that I'm actually more attracted to is the the model that is that says that privacy is about access. So it's about limitations on access and that access can sometimes be determined by control, so sometimes it's where I say this is what I share and this is what I don't share but sometimes it's drawn by something else for instance the law the law might say no the line is drawn here, you're not allowed to go naked on most beaches you know you need to maintain swimwear. That's what the law tells us that most Australian beaches and to me that shows that number is not always about my personal control and what me determining where the line should be drawn so access to me is the key the key word but I'm happy to talk about this issue for the rest of the session. I might move on quickly if I can to the last part of me speaking. okay so hopefully to tie some of these thoughts I've been raising together how can we be free even in a time of COVID and not just free but well-informed by a good functional trustworthy news media and not just free individually but free together. So that's something I want to ponder on, free together. So contact tracing okay so the COVID Safe app. I'm sure have a basic idea of how it works, even though there was a lot of misinformation about it too so a lot of people having done some focus groups into privacy, a lot of people misunderstood the way the COVID Safe app works  but this is the basic idea here's a graphic from the BBC. It was launched in April and to me, this is such a great illustration of the need to start to think about privacy in individual terms but also as more than and also how it relates to other rights and freedoms that we have you know this is what coronavirus is bringing out in so many different ways. I'm going to throw this phrase at you the idea of relational privacy. So the idea of my privacy as not just being about me and one clear way I think I can bring that out is just by talking about something like DNA testing right so if I send off a sample of mine to some company that is going to tell me about my family tree you know that my Norwegian or Swedish or German or Brazilian roots and how they all interconnect, that test may also reveal all sorts of predisposition to diseases or  but it will also reveal other people it will reveal my kids and it will reveal other people in my family their predisposition to certain diseases. So when I'm making that decision to send off a sample of my own DNA I'm actually sending off information and data about other people around me. To me what that reveals is that privacy really shouldn't be thought of just as me and my right and this kind of self-contained bubble I guess. It needs to be thought of as something much more complicated the way that we all relate to each other, privacy in fact is the way that we make our connections with other people what we share. So with that sort of concept in mind, have a think about a group of friends is a drawing I found online, so we can imagine these people and they're all on some social network except maybe this guy on the left with the crutch he doesn't want to be on this social network and the kids they're too young they're not allowed maybe the older kids are on the social network. But if the rest of these people with the five adults there if the yeah let's say that four people are on the social network. If those four people are on the social network and they're talking about everyone in that group who's in this picture those others will be revealed as well they might be in the background of photos or they might just be in conversations so this social media network can get details, data, profiles about all the people. This is what can happen online so easily that we're sharing information about ourselves but also at the same time we're sharing information about other people and this is what makes it really tricky and thinking to me this is perhaps the really big challenge about privacy and data and how we're going to protect it properly and duly in a digital age. So much data can be inferred right this is what happens online and you might have heard this phrase of Shadow profile, so Shadow profile is really what I've just described where someone who isn't on a social media network, will have a profile on that social media network. The phrase Shadow profile is something that Zuckerberg and Facebook have been quizzed about a number of times. They say they don't have them they don't like that phrase but they have admitted to collecting data on non-facebook users for security purposes so I'm not quite sure what the distinction is. On that point of inferred data, you know this is a study from a number of years ago about what you like online revealing a lot of other things so likes when you like Colbert or Harley-Davidsons, you will be revealing things such as your sexuality or your drug use or your politics, things that you don't realise that you're sharing. Cambridge Analytica of course is perhaps the the high point of this this story about relational data and about then the way that people can be manipulated, so we don't know exactly how much people were manipulated what in fact impact Cambridge Analytica had on the particularly the 2016 election. There is a chance that Trump is in the White House as a result of the disabuse of personal data. So what does any of that have to do with justice? Well a lot I think, you know  privacy invasions I've been arguing a relational you can get these broader harms Cambridge Analytica if I didn't go into the specifics of the example hopefully you have a bit of background there. Privacy invasions can harm society and democracy and in justice terms this is very important too, there's a lot of emerging research about the privacy impacts being worse for disadvantaged groups isn't that always the way. So you know you have this dystopian scenario that perhaps we're moving towards a situation where privacy is something that rich people can afford and others can't. News media well you know, good journalism that's how we hold people to account how we hold power to account and we expose injustice so clearly there's a link. Yeah just from last week thinking about the two journalists, the foreign correspondents in China who were sent home. All the arguments around there why it was so important that they were there in the first place, perhaps we should what I would encourage you to do is to start thinking about privacy and all rights perhaps in new ways so that's where you come in. Yes so instead of the right to privacy, let's challenge ourselves to think about the duty of privacy, you don't get rights unless people are observing the duty right our right means nothing, my right to free speech means nothing at all unless there are other people who are willing to respect my right to free speech right it's the same with everything with every right, every freedom, every interest we need the corresponding duty here. So I think this is there's been too little focus on the duty of privacy and the duty of informing ourselves and I'd say let's protect privacy not just for ourselves but for others. Support this is really how you might want to get involved if you do, support law reform and pay for news that's a good one too but so is in this digital age not to where we're used to consume content for free, whether it's music or films or news, to think that hang on I should pay to support the journalism I believe in whatever that is and that's it really and I'll stop sharing now. Erika over to you.

>> Erika: No I was just going to say maybe to kick off some questions. I've asked a few students about things that they've thought was interesting and one topic that you actually did touch on was revenge porn. So they were saying what are your thoughts on the current approach to regulation and you know dealing with the matter.

>> Sacha: Yes so the short answer there is that we have always had laws or we have had for a long time laws that could be used in those images in those cases, but they were very very rarely used to prosecute image-based abuse. A number of jurisdictions including New South Wales have specific laws that they've brought in recent years under which in a number of jurisdictions, you know whether you're talking about Canada or the UK, people have been prosecuted and sent to jail. So this is one of those situations where legislatures in many countries have decided they need to enact new laws and the existing laws even if they can be stretched to cover this case, they need new ones which strikes me as a pretty good idea I think. Sometimes there's a bit of a knee-jerk reaction to seek to pass new laws but in this case I think targeted laws are probably a good idea. This is a really widespread it's you know the statistics suggests that it's frighteningly common so you know we need to do something to try to stop this happening.

>> Erika: Thank you. We actually have five people with their hand up so I'll move on to Nikki if you'd like to unmute.

>> Nikki: Hi how are you? So I probably should preface this by saying I actually worked in digital for a long time and have worked in news organisations as well and social media right. So social media sites  claim that their platforms rather than publishers but we should be viewing them as publishers who are bound by regulations in the same way traditional media is. Or is it not possible due to the complex multi-jurisdictional ways that they've structured their businesses?

>> Sacha: All of that yes. It's a that is a huge issue. There's a real problem in the digital platforms have been largely unregulated and I think we need to bring them into the ambit of our regulatory mechanisms but I don't think they're publishers. So at the Centre for Media Transition, we've done quite a lot of work in this space and more my supervisor Derek Wilding than me and the argument that we're coming to is that, they're not digital platforms they're not publishers but nor are they merely bulletin boards or whatever the you know non-publishers. We need a new category, you know whether that's distributors, news distributors, intermediaries of some sort where they attract some responsibility, some legal responsibility, for the material that is published on them. Of course you mentioned also those jurisdictional issues you know that's just one of the that's something you'll really need to grapple with. You know it's great for Australia to come up with a fantastic law that you know solves all Australia's problems but can it you know? I don't given given the international nature of these  these digital platforms and we're seeing that now with the bargaining code, the news media bargaining code that I mentioned there's a whole lot of discussion about how this will play out internationally and Facebook and Google aren't so worried about Australia I think but they're worried about Australia doing a really good job that other countries like the look of and then emulating. Particularly since the ACCC has been talking very closely with regulators overseas about its movement so everyone's you know talking about this and that this the Australian this is a bit of an experiment that's happening at the moment with the news media bargaining code and the ACCC recognises it's really difficult in an international context but they're not backing down and the Australian government doesn't look like it's backing down. So it may well end up causing some sort of global precedent and I think ultimately when it comes to these big issues, be that privacy or be that the news media bargaining code, you need to have a bit of a global outlook that's the only way it will work. Tough issue.

>> Erika: Thank you and thank you Nikki. Perhaps we'll move on to Tamim.

>> Tamim: Yep thanks Sacha for the discussion so far it's been really interesting. My question sort of relates to how Australia got here in terms of its privacy laws. So I should probably preface to I'm doing a project into that relates to data privacy and regulatory frameworks and when I was researching laws and frameworks overseas, what struck me particularly in the EU, is how much further ahead the concept of data as as a personal right or the concept of or really giving credence to the idea of privacy. It was kind of strange to me that Australia has adopted and taken so many of its legal principles from the EU but hasn't really adopted the same sort of view of privacy at least so far there's discussions but it hasn't been implemented yet. So do you sort of have an opinion or view as to why Australia is so far behind from that privacy perspective?

>> Sacha: That's a really good question and the comparisons between different jurisdictions when it comes to privacy, they're really interesting and you mentioned the EU. So that the EU has the General Data Protection Regulation, the GDPR, it came in two years ago and it was quite radical really I mean it built very logically on the privacy laws that have been in place in Europe over the years have been evolving over the years. It went a long way you know, the financial penalties are very strict, the definition of consent is very detailed and powerful. You know just to pull out one element it needs to be as easy for people to withdraw their consent as it is to give their consent, now that's pretty that's very powerful. So the GDPR went a long way, it has a very strict age limit for kids and the processing processing of kids data which from memory was young it was 13 I'd need don't quote me on that. You know in all these different ways and you would have heard about the right to be forgotten as well you know which is a really interesting initiative stemming from a court case of a few years ago where people can, there's a common misconception about it, people can apply to have so go to Google and say please when I when someone types in my name can you de-list these particular links that doesn't mean wiping those links off the internet. All right so so sorry I'm perhaps elaborating too much there, but Europe does have these powerful protections that have been developed over a couple of decades at least. The Australian approach has been much more itsy the Privacy Act which was, came into effect in 1988 and has been subsequently significantly amended, was never nearly as as comprehensive. It has all sorts of blind spots so for a long time there has been talk about the need for some comprehensive reform. The ACCC recently has said yes we we need to have this comprehensive reform we need a broad overview  of what Privacy Law is and how we need to change it. Why is it so different? You know there are legal, historical reasons I guess you know our common law tradition coming from the UK but at the same time being influenced by a U.S Privacy Law you know there are a number of elements that have made their way into Australian Privacy Law from the U.S. The U.S law being different again so I guess it's just a one of those weird legal stories where you know the law is this mix of all these different strands coming together and in Australia I think what is needed is exactly what the ACCC needs. That's a good long hard look at okay what do we have, what do we need, let's get some statutory reform with some big steps taken.

>> Tamim: Great thank you.

>> Crystal: So Erika do you want to refer to some of the questions that are in the chat I just read. Yes we've got a subject of the ACCC from Camille was asking questions kind of one thing with the question before the last

>> Erika: Exactly so Camille's just asked, I'm still somewhat confused with why the ACCC is taking action against Facebook and Google also what is the ultimate aim of the ACCC.

>> Sacha: Yeah that's a good question. So all right so if we're thinking about privacy in particular, we can think about it a number of different ways. One of the ways that we can think about it is as a human right you know and that's the way that I naturally come to it. My thesis started out by taking a principle from Immanuel Kant, an 18th century philosopher you know and really a very influential figure for modern ethics and modern human rights thinking, the ACCC is not about human rights the ACCC's about consumers and competition. So it's a really valid question. Why is the ACCC that is trying to a promote privacy and B promote public interest journalism how does that fit into competition and and consumers and what consumers want and need? What's the answer? I don't know? I guess they're the most effective body at this point they're just in the right place at the right time and if you look around the world in a lot of jurisdictions at the moment, it's the market regulator, the competition regulator that is doing the the hard work and it seems to be most effective. I guess that's how regulators are coming at these issues, they look at Google and Facebook and they think hang on a second something is broken down with competition in the market and things like privacy and news media, they're the casualties so they're looking at competition regulators. So I guess that's why the ACCC is playing this key role. I do see a limitation there because there are competition and consumer regulator they necessarily won't be thinking in terms of human rights. What's their aim? I think their aim is really straightforward you know I don't think the ACCC has any sort of hidden agenda. I think they're genuinely concerned that there's a marketing balance and there are these casualties on the side you know news media is a big one and for properly functioning democracy we need a strong sound news media so  it's looking at what it can do in the marketplace to try to make that work. It's you know I've been resting with this for the past few weeks, months and it's it's a tough one how do you use market mechanisms to promote public interest journalism by tapping Google and Facebook you know it does. It's not always and natural flow of logic that gets you to this solution, that's a good question.

>> Erika: Do you mind Sacha we'll just alternate between some questions in the chat box and some people have their hand up as well. So  Maria I think you've had your hand up for a while we'll go to you.

>> Maria. Thank you. Thanks Sacha for the talk I think it's pretty good to discuss especially since we're more dependent on technology now. I was wondering, what would be your take on interventions like the mobile phone detection camera and as you mentioned the COVID tracking device that were implemented for the greater good of society. It's like what would your ideas like are the ideas you have contemplated on like parameters we should draw for privacy ones with the purpose of protecting and managing society.

>> Sacha: Yeah yeah look the cameras, this is what we need to think about right so it's when I was getting at relational privacy I was I'm thinking about how do we balance the individual and the group you know and coronavirus has really brought that to the surface. Look when it comes to something like using your mobile phone in your car, we know how many people are killed by on the roads and and that use of mobile phones plays a significant part in that. I don't think there's I think the invasion of privacy is completely proportionate and the ends are fair enough in that case that no one is identified or penalised in any way unless they're found to be using a a camera while driving in which case they're identified and fined that to me strikes me as fair enough. The COVID Safe app is another really interesting one. The law surrounding the app had very strong very good privacy protections, the government really needs to be commended on the law that went with the technology now as we've been hearing the technology itself hasn't really done a lot of good it seems you know it doesn't we can't really point our finger up as far as I've read at any successful cases of contact tracing that weren't also traced by humans. So I don't actually think that app is a significant encroachment on privacy, I think in Australia there have been a lot of significant encroachments on privacy through other pieces of legislation so we we need to focus there you know metadata retention, you know movements against encryption and so on. In those two cases I would say the law and the mechanism is actually reasonably well balanced and fair enough.

>> Erika: Thank you so I think our next question was from Davina she says, I was wondering what your thoughts were regarding the argents which justify imposing a duty of privacy upon the individuals instead of ensuring platforms do not use the data they collect improperly. Is a waiver when creating an account enough to legitimise platforms use of personal data.

>> Sacha: Yeah good question. Look I think the responsibility of the platforms doesn't get enough focus you know one of the constant argents by Facebook and and other digital platforms is look, we let users control their privacy settings and frankly that's not true you know, I can't control what you've done with my data. Certainly I can set my privacy settings up in a certain way and that will have some impact. But ultimately I certainly don't have complete control. I think that does need to be a lot more focused on the role of the platforms how they're set up to use data and often to gain access to data in ways that I would call unethical. So yeah you allude to terms and conditions and that kind of contractual consent model. Research has been done that people will click 'accept' to terms and conditions even when they involve agreeing to give up their firstborn child or selling their soul to the devil. This research has actually been done. So you know there clearly is a bit of a failure in the contractual consent based model that we're using I still think it has an important role to play and we need to improve it, but we also need to ensure that digital platforms can't just get this nominal consent. That it actually needs to be meaningful so that you know the ACCC recommending that unfair contract terms and practices are prohibited I think that's a really positive big step in the right direction. We need to get that that spirit right and the focus needs to be on the role of platforms and their responsibility.

>> Erika: Thanks Sacha we just have two more questions. So Maximilian if you'd like to unmute.

>> Maximilian: Hi thank you for your presentation. Just in recent media in about probably the last week there's been reports in New Zealand about the power company Vector and their relationship with Amazon. I was wondering if I could get your take on oh so I'll give you a brief rundown. So pretty much the power meters or smart power meters outside of homes, the data collection from those smart power meters is now being sold to Amazon and through that the use of that data, you can tell how old someone's fridge, is what appliances they have in the house, the rooms or like how many people you have in the house, potentially like the genders like there's a bunch of things you can work out based on that data and that's hijacking off of like a system in New Zealand that the government implemented for 1.6 million homes already. So do you see any protections in Australia that could prevent something like a company being able to spy directly into your house?

>> Sacha: Look this is all a it's such a a new frontier that so much is being developed and implemented and sometimes it'll be on the right side of the law and sometimes it will be on the wrong side of the law. So you know whether that would be you know the Privacy Act in Australia prohibits the collection, certainly it's sensitive information, but even personal information without consent in certain conditions you know which it sounds like is what is happening here so on the face of it, this is a this would be a breach of the Privacy Act in Australia. But you know there have been all sorts of breaches of the law when it comes to privacy in Australia and they've generally gone unprosecuted. So one of the things the ACCC has also done in recent months over the past year or so which you might have heard about too is the ACCC has brought two court cases against Google for what it says are contraventions of the law misleading and deceiving people about its collection of data. So one of those for instance was location data when you first got your device, it would say do you want I won't get the wording exactly right which is obviously very important, but it was basically an option to do you want to turn off your location history. If you click that you did want to turn it off, your location was still being tracked and the ACCC argues that's not that is misleading and deceptive. So it is currently suing Google for that and for one other similar case. So potentially there are all these cases where the law has already been in the process of being breached for many years and the ACCC now is taking a much more active role and seeking to get some redress for the past you know these past actions by companies such as Google.

>> Erika: Sacha would you be all right to answer one more question that we have in the chat box? So we've just got from Georgina, I noted you mentioned Cambridge Analytica. Considering this is another U.S election year, how do you think privacy and data is going to impact the upcoming election? Have there been any active checks and balances to prevent a similar outcome from occurring?

>> Sacha: Just a small question to finish. That's we don't know. The real problem with Cambridge Analytica was that it all happened on such a an individualised level. So the basic deal was that Cambridge Analytica got access to the personal data of so many people without them realising and could then target them with very personalised, individualised ads even and supposedly manipulate those people if they were maybe thinking, you know I'm not sure who to vote for Hillary or Donald, not sure which one to go for they could just sway them enough to to vote for Donald Trump. Alternatively, if they were thinking of voting for Hillary but they weren't totally convinced they might convince them to stay away from voting on the day. Apparently there have been steps taken, the obviously Facebook and digital platforms have become much more open-eyed about this you know given the public outcry in 2018 when this story emerged and Zuckerberg's very public mea culpa which didn't stop the company continuing to grow in in size and profit. You know he's very aware and other digital platforms are very aware that this is a very real issue and they're also very aware that regulators are doing things like the ACCC here looking to bring to implement laws that will have a significant effect. So I can't speak for any specific laws that have been passed in this space, I'd need to get back to you on that but I certainly know that there's been a shift and there's much more focus on the digital platforms to change their ways that's yeah. That's a good question.

>> Jane: All right that actually brings us to seven o'clock Sacha and I acknowledge that some people have classes to go to. Thank you so much for a really rich and stimulating and wide-ranging discussion. I'm actually sure people have lots of more questions to ask and we could go for another couple of hours. But thank you so very much for your time this evening and thank you to everyone for their fabulous questions. Our next Justice Talks seminar is on the 6th of October and we will have Nicholas Stewart talking about LGBTQI justice issues. For those that are interested, please register for that event and thank you everyone for your participation.

>> Sacha: Thank you. Thanks for having me.

>> Crystal: Night everyone.

>> Erika: Thanks Sacha have a good night.

>> Sacha: Thanks Erika. Thanks Crystal.

>> Jane: Yeah thanks Sacha have a great evening.

>> Sacha: Will do.

>> Jane: Thanks Crystal. Thanks Erika.

>> Sacha: Hi Hugh.

>> Erika: Thanks Jane, thanks Crystal. Nice to see you Paul if you're there.

>> Paul: I'm there yes thank you Sacha, terrific presentation great.

>> Sacha: Thank you very much Paul. Very pleased to see you here. This is a great program so I was very very great to be asked to I was really pleased to be asked to to take part in tonight.

>> Crystal: I think it's pretty great yeah.

>> Jane: We had a fabulous turnout it was.

>> Crystal: Yeah it was great. The largest one in this year well yeah it's only been from this year so the largest ever 

>> Sacha: Oh great yeah there's a lot to talk about and they everyone's so engaged and asks such great questions on which is somewhat scary.

>> Crystal: It'll keep you on your toes.

>> Sacha: Yeah exactly and Hugh you didn't get to ask your question.

>> Hugh: Yeah no you kind of answered it I was just curious about the news bargaining code and whether it should go like to tax reform or something else instead.

>> Sacha: Yeah yeah yeah.

>> Hugh: Because it's not really public interest if you just fund the sensationalist stuff that gets the clicks but.

>> Sacha: So I've been, one thing I didn't mention is I've been doing some consulting for the Public Interest Journalism Initiative which is putting together all its submissions to the ACCC about what should happen. It's really tricky, really tricky. Yeah as you say, they could be it could be done in a much more straightforward way, let's just tax you know let's just tax and redirect that money straight to public interest journalism. News court wouldn't like that so much.

>> Hugh: Yeah I was going to say it seems like it's a bit of like political lobbying also that the state broadcasters are then cut out but that's where a lot of the public interest journalism is.

>> Sacha:  Right right and that's a really hot issue I guess we better let people go right Jane?

>> Jane: Yep we should probably get going.

>> Hugh: Yep thank you.

>> Sacha: Thanks everyone, yeah Hugh's worked at the Centre for Media Transition that's why yeah.

>> Crystal: There you go, sneaky 

>> Sacha: Yeah yeah thanks everyone.

>> Jane: Have a great evening.