SUMMARY:
Ian and Raz have both replied. I have replied to both of them in one
super reply for all that are interested. The story so far is that Ian
has had a bad personal experience with regard to his details being
available on Austlii. Raz maintains that this is a matter for the law-
makers, not Austlii.
To put people in the picture, the Administrative Appeals Tribunal
is a Commonwealth tribunal that looks at decisions made by
administrative bodies. It is an appeals body that is able to review
decisions “on the merits.” It is a judicial proceeding like any court,
but with difference powers.
If anyone wants to do some background reading, there is an interesting
article on the Family Law Cases and the internet at:
http://www.com.au/apc/9605/specials/famcourt.html
And the Information Privacy Principles are found at:
http://www.austlii.edu.au/au/legis/cth/consol_act/pa1988108/s14.html
These principles are generally accepted to be the guidelines under
which the Privacy Commissioner works. They are not enshrined in
legislation in NSW, so they do not directly affect Austlii.
Let may say this at the outset- I did not attempt mislead or confuse
anyone. I believe I understand the issues of privacy, and I do not
believe that personal attacks promote the discussion at all. I did not
expect to have to don the flame proof jacket when I put my view to
the list.
On Tue, 21 May 1996 iwoolf@nospam.cliff.Aus.Sun.COM (Ian Woolf) wrote:
>> The reporter saying that sensitive family cases being on the internet
>> infringes privacy does not give due weight to the fact that those
>> materials are available in almost any library. Further, the only cases that ar
>e reported are the ones that change the law. They are reported so that they can
>>be referred to in other cases (hence the doctrine of precedent).
>> This is law that binds anyone.
>
>No, "almost any library" is deliberately misleading. Your local library
>will not have a CDROM containing all Australian legal cases.
My local library has law reports, some of which contain Family cases.
>You will
>only find this in legal libraries and University libraries. Most of the
>90 million odd people on the internet will happily type into search
>engine, who will never look for the paper or electronic archives of the
>legal library.
As Raz pointed out, this argument always arises with regard to IT and
privacy. In the past you relied on the fact that people could not be bothered
or did not have the skills to find the information. In my opinion this is not
maintaining privacy. The ease with which the information is available does
not make you privacy any more invaded, it means that people with fewer
skills have access to it.
>It is also untrue that ONLY cases that change the law
>are presented. There are Administrative Appeals Tribunal cases for
>example, and they aren't even COURT cases. AAT hearings don't have any
>sort of audience gallery or public exposure.
With all respect, you are wrong. Only cases that change the law are reported,
weather they are AAT, Family Court or Dust and Deceases Tribunal. The AAT
is a judicial body. It hears cases in a public forum (s35 of the AAT Act) and it
is bound by precedent like any other judicial proceeding. They may not be a
court, but they operate in the same way, and when I take a case to the AAT, I
may need to use your case to argue my point. It is law that affects me {this bit is only opinion} and I have a right to access it, and to access it easily. People have a right
to settle out of proceedings, to mitigate, and to apply to the Attorney-General to
have the proceeding not entered on the public record. Failing that, it is a public
tribunal making public law. I agree that is not ideal, but it is the system we have.
>> The arguments they are using is basically that non-lawyers can read the
>> cases when are on the internet. I don’t accept that that presents a
>> problem and I believe these are the points in favour of Family Court
>> cases being on the internet:
>
>How about privacy??
>
You have a right to your privacy and those rights are protected by legislation.
Legally spe) and there is
over 2 gigs of stuff there. Your argument is along the lines of “I could find
it, thus it is an invasion of privacy.” The stuff was available to the public
before it was on the net. I guarantee that more people read your case in print.
>> - It is not only lawyers that should have access to the law that
>> binds everyone
>
>We're talking people's private data, NOT the legislation - why make
>their names public to the world?
Legislation and Cases are both law. In the area of Administrative appeals,
the law is mostly case-based, so the cases are more important than the
legislation. IT IS NOT PEOPLES PRIVATE DATA because it is not
private. It is public and it is the law.
>> - I know many people that would consider it easier to look up a
>> sensitive case in the law reports in the library.
>
>Nonsense, what could be easier than typing a person's name in the
>AUSTLII search engine?
Nonsense is not a useful statement in such discussion. The point I am
making is if there was some information that affected some of my law
friends that was only available on the internet, they would not have
access to it. They do not know one end of a computer from the other,
let alone the internet. If that information was then made available in
a properly catalogued library, it would seem pretty dumb to say “this
is an invasion of privacy, previously only computer-literate people
could access this information.”
Privacy is about availability of information, not the from in which it is
available.
>> - Highly sensitive information, such as the names of children,
>> are usually not released.
>
>I see, are you saying only children have the right to privacy? All
>Comcare AAT cases are listed in the Austlii database, and every single
>Comcare case contains private medical information - that is what
>Comcare is about. How can medical information presented on the
>international forum, NOT be an invasion of privacy?
Children’s names are withheld for safely reasons or to reduce the damaging
affect of custody proceedings on impressionable children. I take you point
about your details. Are you saying that this information about you should not be published, or that it should not be published on the internet? I say again that
it is a “cost” of a public judicial system is that your details are part of the
public record. Perhaps you should be talking to the Attorney-General
>> - The courts are for the public. People can sit in on most
>> hearings. Parties have the opportunity to settle out of court and not
>> release the terms, but if they go to the court for help, they must accept
>> that their dispute is part of the public record.
>
>
>The Administrative Appeals Tribunal is a place where you can settle out of court
>. The public cannot sit in on the hearings. There is no warning that
>your private medical information will go on the public record. AustLII do not
>give people any chance to update incorrectly reported information on their datab
>ase, which even Government keepers of data must allow by law.
Not quite true. AAT is not about settling out of court, it is about going to a special
court-like tribunal that has the power to review an administrative decision on the
merits. Technically, Austlii is not bound by the Commonwealth Privacy Act, so it
does not have a “statutory” obligation to allow people to correct inaccurate
information. However, the AAT and the Commonwealth government are. They
have several agreements with the government regarding the precise accuracy with
which they *only publish what they are given* by the A-G’s department. If it
is an allegation that the information on Austlii is not correct, then it should be
made to the proper people.
Granted there is no warning that it will be part of the public record. This is a
problem.
>> - May cases (such as criminal cases) also involve revealing
>> personal information about people, but the media does not seem to
>> have a problem with displaying those details all over the papers.
>
>Most newspapers would be sued if they published private medical information, wit
>hout permission. There are Privacy laws that explicitly mention broadcasters.
The privacy laws also talk about “record keepers.” As a record keeper, Austlii has
done nothing wrong. Putting the issue of copyright aside, I could publish your
medical details and would not be sued. The defence is that it has already been
published. Where material has already published, further publication does not
constitute an invasion. I think you missed my point about the media.
>> The internet is a means by which we can all have access to the law.
>> AustLII deserves our support.
>
>AustLII is completely insensitive to the concerns of ordinary citizens,
>and has no respect for privacy.
Austlii does not publish any information that is not already available.
>While cruising the Austlii database, I
>dicovered that MY private medical details were there for people to
>find, not only by searching, but by accident, as I did. I was searching
>for an obscure bit of legislation, and my name popped up. The AAT
>report contained my middle name and my birthdate, themselves sufficient
>to obtain information from a bank. When I explained my concerns to the
>people maintaining the database, they refused to understand what the
>word "privacy" meant.
With respect, I think they may have refused to understand your definition
of privacy.
>Privacy and censorship and completely different issues. You won't fool
>intelligent people with such attempts at confusion. If you truly don't
>understand, then try to imagine what it would be like if YOUR privacy
>had been violated, and you had never been to court or in any way warned
>that your medical data were now the public domain.
Your point about the warning is an emotive one is valid, but it is not up to
Austlii to do so. The fact that the information is more easily searched does
not, in my opinion, raise an issue of privacy. The information is simply
available to a separate audience.
*** End of reply to Ian *****
On Wed, 22 May 1996, Roland John Turner wrote (at some length...)
>{{ This is a little long. The thrust of it is that Iain puts up a case for
> keeping private some of the information that Austlii publishes,
> and I point out that these arguments are for changes in the law's handli
>ng
> of potentially private information, rather than being arguments for
> regulating the Internet. The information in question is seperate from
> that which Chris Wood is talking about. It would be interesting to
> hear Chris explain the rationale behind the publication of information
> that is not the reporting of precedents in public courts.
Cases that do not form part of “precedent” are available. You can buy the case
from the court for $30 or use the library’s Unreported cases CD-ROM. No
unreported cases are on Austlii. Perhaps this is more of an invasion than
putting an index on a public document (although unreported cases are still
law, although they do not affect it, or else they would be reported).
>I conclude that
> whilst Iain's problem is real, the solution is (a) if the law considers
> his information public, take on a change to the law's interpretation
> of what is private and what isn't, or (b) if the law does indeed
> consider the offending information private, Iain should seek an injuncti
>on
> to have Austlii cease publishing this particular information. That
> he has not done so leads me to believe that his information is not
> considered private and that he is attacking it at the level of the
> 'net because it is easier to cause the public to respond at this level
> then at potentially slightly obscure legal procedures.
>
> Those who are not yet bored, may wish to plow on. Everyone else, you've
> already read the thrust of my argument. Move on...
> }}
Let me deal with the injunction point first. To start with, he could not get one.
Secondly, he had a right to apply to the A-G to have the information not
released, and thirdly wouldn’t the injunction need to be brought against the
court to stop it from publishing it’s own reports?
>Ian Woolf wrote:
>
>> chrisw@nospam.arkady.austlii.edu.au wrote:
>>
*** CHOP ****
>> No, "almost any library" is deliberately misleading. Your local library
>
>Go easy Iain. It was an exageration. It was not a deliberate attempt
>to mislead. The contents of University libraries are available to
>anybody.
>
>> only find this in legal libraries and University libraries. Most of the
>> 90 million odd people on the internet will happily type into search
>> engine, who will never look for the paper or electronic archives of the
>> legal library.
>
>This is a fascinating problem that the Internet presents. A great deal of
>the status quo (in human society generally) assumes that searching and
>analysing public records is so time consuming that many types of search
>will never be attempted. The pace of advancement in the IT industry in
>very recent times has started to violate these assumptions.
Ian is arguing that he had privacy and it was violated by the computer.
If the only thing that was protecting his “privacy” was people’s
lethargy, then this is a false protection and the computer industry is
not answerable to the public for breaching a false protection.
>Society as it currently stands has taken millenia to develop. The Web
>has violated this underlying assumption (difficulty of searches) in
>less than 3 years. It's going to take a little while for things to
>adjust. To use an unfortunate single incident as a basis for arguing
>for the supression of information delivery via the 'net is foolish
>in the extreme.
>
>Granted, the problem that you raise with non-public cases being published
>needs to be addressed, but it should be tackled on its own, not by pushing
>to have Austlii silenced.
>
>> It is also untrue that ONLY cases that change the law
>> are presented. There are Administrative Appeals Tribunal cases for
>> example, and they aren't even COURT cases. AAT hearings don't have any
>> sort of audience gallery or public exposure.
>
>If the law regards this information as public, then your problem should be
>with that aspect of the law, not with Austlii. If the law does not regard
>this information as public, then you are in a good position to seek an
>injunction restraining Austlii from publishing this information. That you
>have not done so suggests the former.
>
>> > The arguments they are using is basically that non-lawyers can read the
>> > cases when are on the internet. I dont accept that that presents a
>> > problem and I believe these are the points in favour of Family Court
>> > cases being on the internet:
>>
>> How about privacy??
>
>You are dodging the issue. Should "non-lawyers" be allowed access to this
>information or not? If the answer is no, then the solution has NOTHING
>to do with Internet information access, it's with the public availability
>of the information in the first place. If the answer is yes, then
>you have nothing to argue.
Further, however much it cost Ian for his lawyer was too much. The only
way to break the protected money printing racket that is the legal profession
is to open up the law to everyone.
*** CHOP ***
>
>> > - I know many people that would consider it easier to look up a
>> > sensitive case in the law reports in the library.
>>
>> Nonsense, what could be easier than typing a person's name in the
>> AUSTLII search engine?
>
>That was a strange remark on Chris's part. Perhaps he meant "easy".
See above. To you, the Internet is the easiest way to get info. Not in all
cases.
>> > - Highly sensitive information, such as the names of children,
>> > are usually not released.
>>
>> I see, are you saying only children have the right to privacy? All
>
>No, he is not saying that. The courts decide this, and frequently, the
>courts choose to close a court session to protect the identity of
>a child. Again, if you don't like it, tackle the underlying law.
>
>> Comcare AAT cases are listed in the Austlii database, and every single
>> Comcare case contains private medical information - that is what
>> Comcare is about. How can medical information presented on the
>> international forum, NOT be an invasion of privacy?
>
>And again, either the information is public or it is not. If it is, then
>there is no problem with its availability on the 'net. If not, then
>
>> > - The courts are for the public. People can sit in on most
>> > hearings. Parties have the opportunity to settle out of court and not
>> > release the terms, but if they go to the court for help, they must accept
>> > that their dispute is part of the public record.
>>
>> The Administrative Appeals Tribunal is a place where you can settle out of cou
>rt. The public cannot sit in on the hearings. There is no warning that
>> your private medical information will go on the public record. AustLII do not
>> give people any chance to update incorrectly reported information on their dat
>abase, which even Government keepers of data must allow by law.
>
>Ah, please explain this last remark. NOBODY is able to report false information
>about individuals and remain out of reach of the law, government body or
>otherwise.
>> > - May cases (such as criminal cases) also involve revealing
>> > personal information about people, but the media does not seem to
>> > have a problem with displaying those details all over the papers.
>>
>> Most newspapers would be sued if they published private medical information, w
>ithout permission. There are Privacy laws that explicitly mention broadcasters.
>
>You keep talking about "private medical information". The fact that you
>have not sought an injunction to have Austlii cease publishing this
>information about you suggests that you have not been advised to, which in
>turn suggests that the law does not view the published information as
>private, anyway.
>
>What's the story?
>
>> > The internet is a means by which we can all have access to the law.
>> > AustLII deserves our support.
>>
>> AustLII is completely insensitive to the concerns of ordinary citizens,
>> and has no respect for privacy. While cruising the Austlii database, I
>> dicovered that MY private medical details were there for people to
>> find, not only by searching, but by accident, as I did. I was searching
>> for an obscure bit of legislation, and my name popped up. The AAT
>> report contained my middle name and my birthdate, themselves sufficient
>> to obtain information from a bank. When I explained my concerns to the
>
>Change banks.
>
>> people maintaining the database, they refused to understand what the
>> word "privacy" meant.
>
>So you were talking to service donkeys. Talk to someone else.
Raz, that may not be accurate. I hope that Ian was talking to Geoff King
or Andrew Mowbray (both of whom got a copy of this mail). The both
have a degree in law and in computing. I think it is important to understand
the argument from both sides. The journalist who wrote the article did
not understand either.
>> Privacy and censorship and completely different issues. You won't fool
>> intelligent people with such attempts at confusion. If you truly don't
>
>You and I know the difference Iain. Many less intelligent people do not.
>Silencing Austlii completely because of this apparent violation of your
>privacy (given that it continues, I doubt that the law views it as an
>invasion) would set a damaging precedent in that the appearance that
>telling someone to withdraw information from the 'net is an appropriate
>solution to problems where someone is publishing information that someone
>else doesn't want published. This would be applied to censorship pushes
>as frequently as to privacy violations.
>
>That was an ugly sentence. Your own inclusion of the word "intelligent"
>supports my point - not ALL people will be able to tell the difference.
>MOST will not.
>
*** End of Raz Reply ***
A little more than my 2c worth, but I hope it sorts out some misconceptions.
Regards,
Chris