Category Archives: Law

Crown Court TV

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Since studying Law at university, I sometimes wonder whether I’d ever get selected for Jury Service; surely the defence (or even the prosecution) would object to anyone who had more than a rudimentary knowledge of the law, because of the potential to influence the other members of the jury during their deliberations?

Apart from participating in a police identity parade (an extra curricular activity of my Criminal Law course), and aside from representing a couple of clients at employment and social security tribunals (through voluntary work), my only involvement with court hearings has been to prepare case papers (take witness statements, issue summonses, draft client briefs) on behalf of local councils, and to appear as a witness in some of those proceedings.

I graduated in Law 40 years ago, and although I never intended to become a solicitor or barrister, I am still fascinated by the legal process, and by court proceedings themselves. Hence, I have something of a weakness for police procedurals, and court room dramas on TV. Of course, not all court room proceedings are that riveting – out of curiosity, I once popped in to London’s Royal Courts of Justice, and was rather surprised to see a leading Judge appear to fall asleep during a case he was hearing…

One British TV series from the 1970s and 1980s, “Crown Court”, stands apart from its peers in the way it presented court cases in a realistic and non-sensational fashion. First, its somewhat dry approach to criminal court proceedings means that it tends to be less judgemental than more dramatic productions. Second, the focus on what happens within the court room itself means we get to see and hear only what is presented to the jury. There are no side bars, no ex-parte applications in judges’ chambers, and rarely any last-minute evidence or surprise witnesses. By removing the traditional drama, and presenting just the facts and the witnesses’ own evidence, we only have as much information about the case as the jury does in order to reach their verdict.

In some ways, “Crown Court” was a public information service. It was broadcast in the wake of significant changes in the Criminal Law system in England and Wales, and at a time of growing suspicion of police corruption (notably within the Met’s infamous Flying Squad). Also worth bearing in mind is the fact that TV cameras were not allowed into real court rooms, so it was a way to show the public how justice was being administered in their name, and what to expect should they have to appear in court, as defendant, witness or jury member.

The other fascinating aspect of “Crown Court” is the roll-call of actors, writers, directors and producers who subsequently became regulars on British TV. In that regard, it resembled an on-air repertory theatre, similar to the leading soap operas of the day, recalling an era of public broadcasting that has largely disappeared.

Next week: BYOB (Bring Your Own Brain)

 

 

AI vs IP

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Can Artificial Intelligence software claim copyright in any work that was created using their algorithms?

The short answer is “no”, since only humans can establish copyright in original creative works. Copyright can be assigned to a company or trust, or it can be created under various forms of creative commons, but there still needs to be a human author behind the copyright material. While copyright may lapse over time, it then becomes part of the public domain.

However, the extent to which a human author can claim copyright in a work that has been created with the help of AI is now being challenged. A recent case in the USA has determined that the author of a graphic novel, which included images created using Midjouney, cannot claim copyright in those images. While it was accepted that the author devised the text and other prompts that the software used as the generative inputs, the output images themselves could not be the subject of copyright protection – meaning they are either in the public domain, or they fall under some category of creative commons? This case also indicates that, in the USA at least, failing to declare the use of AI tools in a work when applying for copyright registration may result in a rejected application.

Does this decision mean that the people who write AI programmes could claim copyright in works created using their software? Probably not – as this would imply that Microsoft could establish copyright in every novel written using Word, especially its grammar and spelling tools.

On the other hand, programmers and software developers who use copyright material to train their models may need to obtain relevant permission from the copyright holders (as would anyone using the AI tools and who uses copyright content as prompts), unless they could claim exemptions under “fair dealing” or “fair use” provisions.

We’re still early in the lengthy process whereby copyright and other intellectual property laws are tested and re-calibrated in the wake of AI. Maybe the outcomes of future copyright cases will depend on whether you are Ed Sheeran or Robin Thicke….

Next week: Customer Experience vs Process Design

 

Smart Contracts… or Dumb Software

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The role of smart contracts in blockchain technology is creating an emerging area of jurisprudence which largely overlaps with computer programming. However, one of the first comments I heard about smart contracts when I started working in the blockchain and crypto industry was that they are “neither smart, nor legal”. What does this paradox mean in practice?

First, smart contracts are not “smart”, because they still largely rely on human coders. While self-replicating and self-executing software programs exist, a smart contact contains human-defined parameters or conditions that will trigger the performance of the contract terms once those conditions have been met. The simplest example might be coded as a type of  “if this, then that” function. For example, I could create a smart contract so that every time the temperature drops below 15 degrees, the heating comes on in my house, provided that there is sufficient credit in the digital wallet connected to my utilities billing account.

Second, smart contracts are not “legal”, unless they comprise the necessary elements that form a legally binding agreement: intent, offer, acceptance, consideration, capacity, certainty and legality. They must be capable of being enforceable in the event that one party defaults, but they must not be contrary to public policy, and parties must not have been placed under any form of duress to enter into a contract. Furthermore, there must be an agreed governing law, especially if the parties are in different jurisdictions, and the parties must agree to be subject to a legal venue capable of enforcing or adjudicating the contract in the event of a breach or dispute.

Some legal contacts still need to be in a prescribed form, or in hard copy with a wet signature. A few may need to be under seal or attract stamp duty. Most consumer contracts (and many commercial contracts) are governed by rules relating to unfair contract terms and unconscionable conduct. But assuming a smart contract is capable of being created, notarised and executed entirely on the blockchain, what other legal principles may need to be considered when it comes to capacity and enforcement?

We are all familiar with the process of clicking “Agree” buttons every time we sign up for a social media account, download software or subscribe to digital content. Let’s assume that even with a “free” social media account, there is consideration (i.e., there’s something in it for the consumer in return for providing some personal details), and both parties have the capacity (e.g., they are old enough) and the intent to enter into a contract, the agreement is usually no more than a non-transferable and non-exclusive license granted to the consumer. The license may be revoked at any time, and may even attract penalties in the event of a breach by the end user. There is rarely a transfer of title or ownership to the consumer (if anything, social media platforms effectively acquire the rights to the users’ content), and there is nothing to say that the license will continue into perpetuity. But think how many of these on-line agreements we enter into each day, every time we log into a service or run a piece of software. Soon, those “Agree” buttons could represent individual smart contracts.

When we interact with on-line content, we are generally dealing with a recognised brand or service provider, which represents a known legal entity (a company or corporation). In turn, that entity is capable of entering into a contract, and is also capable of suing/being sued. Legal entities still need to be directed by natural persons (humans) in the form of owners, directors, officers, employees, authorised agents and appointed representatives, who act and perform tasks on behalf of the entity. Where a service provider comprises a highly centralised entity, identifying the responsible party is relatively easy, even if it may require a detailed company search in the case of complex ownership structures and subsidiaries. So what would be the outcome if you entered into a contract with what you thought was an actual person or real company, but it turned out to be an autonmous bot or an instance of disembodied AI – who or what is the counter-party to be held liable in the event something goes awry?

Until DAOs (Decentralised Autonomous Organisations) are given formal legal recognition (including the ability to be sued), it is a grey area as to who may or may not be responsible for the actions of a DAO-based project, and which may be the counter-party to a smart contract. More importantly, who will be responsible for the consequences of the DAO’s actions, once the project is in the community and functioning according to its decentralised rules of self-governance? Some jurisdictions are already drafting laws that will recognise certain DAOs as formal legal entities, which could take the form of a limited liability partnership model or perhaps a particular type of special purpose vehicle. Establishing authority, responsibility and liability will focus on the DAO governance structure: who controls the consensus mechanism, and how do they exercise that control? Is voting to amend the DAO constitution based on proof of stake?

Despite these emerging uncertainties, and the limitations inherent in smart contracts, it’s clear that these programs, where code is increasingly the law, will govern more and more areas of our lives. I see huge potential for smart contracts to be deployed in long-dated agreements such as life insurance policies, home mortgages, pension plans, trusts, wills and estates. These types of legal documents should be capable of evolving dynamically (and programmatically) as our personal circumstances, financial needs and living arrangements also change over time. Hopefully, these smart contracts will also bring greater certainty, clarity and efficiency in the drafting, performance, execution and modification of their terms and conditions.

Next week: Free speech up for sale

 

Responsibility vs Accountability

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One of the issues to have emerged from the response to the current coronavirus pandemic is the notion that “responsibility” is quite distinct from “accountability”.

In the Australian political arena, this is being played out in two specific aspects, both of which reveal some weaknesses in the Federal and State delineation. The first is the Ruby Princess, the passenger cruise ship that appears to have been a significant source of Covid19 infections from returning and in-bound travellers. In this case, blame or liability for the breach in quarantine measures is being kicked around between Border Force (Federal), and NSW Health (State): who was responsible and/or accountable for allowing infected passengers to disembark?

The second arises from the number of Covid19 cases among aged care residents in the Melbourne Metropolitan area. Here, the issue is the governance of aged care facilities as between privately-run homes (Federal oversight), and public homes (State operation). As an example of the strange delineation between Federal and State, “…the Victorian government mandates minimum nurse-to-resident ratios of up to one nurse for every seven residents during the day, the Commonwealth laws only call for an “adequate” number of “appropriately skilled” staff – both terms are undefined.”

As with all key areas of public policy and administration (health, education, social services), the relationship between different government departments and administrative bodies can be confusing and complex. In very broad terms, public funding comes from the Commonwealth (via direct Federal taxes and the redistribution of GST back to the States), since States have limited options to raise direct revenue (land taxes, stamp duty, payroll tax, and fees from licenses and permits). The Commonwealth funding can be allocated direct, or co-mingled with/co-dependent upon State funding. Likewise, service delivery can be direct by the Commonwealth, jointly with the States, or purely at the State (or even Local) level.

Within Victoria, there is an added dimension to the “responsibility” vs “accountability” debate, largely triggered by apparent failures in the oversight of the hotel quarantine programme. This in turn led to the second wave of Covid19 infections via community transmission (and the tragic number of deaths among aged care residents). The Premier has said he wasn’t responsible for the decision to use private firms to operate the security arrangements at the relevant hotels. In fact, the Premier appears not to have known (or wasn’t aware) who made that decision (or how/why it was made). But he does admit to being accountable for it.

Meanwhile, his departmental ministers have similarly denied knowing who made the decision, or they have said that it was a “multi-agency” response – maybe they are trying to shield each other in a strange show of cabinet collective responsibility, and to avoid apportioning direct blame to their colleagues. But if the government didn’t know who was supposed to be running the hotel quarantine programme, then surely the private security firms certainly couldn’t have known either – if so, who was paying them, and from whom did they take their orders and direction?

We are being drip-fed information on the failures in the hotel quarantine programme: did the AMA “write a letter” to the Victoria Department of Health & Human Services about their concerns over the hotel quarantine programme? did the DHHS provide “inappropriate advice” on the use of PPE by hotel security staff? did the Victorian Premier actually propose the hotel quarantine programme at National Cabinet, and then omit to request support from the police and/or the ADF?

It’s not surprising, therfore, that confusion reigns over who was responsible, and who is accountable; more importantly, who will be liable? What would be the situation if, for example, front line medical staff or employees in “high risk settings” have died from Covid19 as a result of community transmission within their workplace (itself stemming from the hotel breakout), and where there were inadequate workplace protections, especially if the latter were based on government advice and supervision?

The new offence of criminal manslaughter applies in Victoria since July 1, 2020. It will only apply to deaths caused since that date and as a result of “negligent conduct by an employer or other duty holders … or an officer of an organisation, which breaches certain duties under the Occupational Health and Safety Act 2004 (OHS Act) and causes the death of another person who was owed the duty”.

Finally, in reading around this topic, I came across an academic paper which discusses the treatment of responsibility, accountability and liability in the context of professional healthcare. In trying to define each from a clinical, professional and legal perspective, the author concluded that:

“….[R]esponsibility means to be responsible for ensuring that something is carried out whilst accountability moves beyond this to encompass the responsibility but adds a requirement that the healthcare professional provides an account of how they undertook the particular task. Liability moves the definition forward by adding a dimension of jeopardy to the definition of accountability. In a strict legal sense once the accountable person has provide their account they have fulfilled their duty. However, if the healthcare professional is liable rather than accountable for their action then the account they provide will be judged and, if found to be wanting, there may be a penalty for the healthcare professional.” (emphasis added)

I wonder if we should be assessing political and administrative liability by the same standard?

Next week: Startupbootcamp Demo Day – Sports & EventTech