Vol 36, No 1 (2019): Law & Society and Law & Technology

Financial regulators are challenged to respond to the innovation opportunities presented by financial technology (fintech). Current rules are not necessarily sufficient or effective to adequately regulate new business models and new products relating to innovations such as crypto assets or digital financial services. Regulators that fail to respond in a timely manner may drive innovation offshore and deprive their markets and consumers of appropriate, new services. To respond to new financial innovation, regulators have been establishing innovation hubs and regulatory sandboxes. Innovation hubs enable them to engage innovators more effectively. Sandboxes allow the products to be tested in a controlled environment and enable to regulator to consider whether existing laws are appropriate to regulate such products and, of not, what measures may be required. Sandboxes are however resource intensive and they hold a number of risks. Financial regulators are, of course, not alone in having to address the regulatory challenges of innovation. This article therefore also considers other non-financial regulatory experiences of innovative products and services, namely automated vehicles; emissions trading in China; and Uber and its clones, to consider whether those experiences hold lessons for financial regulators.

This is the keynote address for the Bold Thinking Series event at the National Gallery of Victoria (NGV) Great Hall on 4 May 2017. The language of the oral delivery of this address has been retained. Amidst a rich historical context, the author explores the legal and moral complexities that lie at the intersection of law, sexuality and health. Drawing on his long-standing participation in many international bodies concerned with human rights, he discusses the many great wrongs perpetrated against LGTBQI communities both internationally and domestically, and highlights the challenges that countries around the world face to remove discrimination in laws, policies and culture. He emphasises by way of case examples, the physical, emotional and political harm that this has caused and will continue to cause if legislative and cultural change is not forthcoming. He concludes that equality before the law is a basic tenet of human rights, and that to the extent that Australia and other countries are not achieving equality, we must rise to the challenge and drive genuine change.

Privacy protection legislation and policy is heavily dependent on the notion of de-identification. Repeated examples of its failure in real-world use have had little impact on the popularity of its usage in policy and legislation. In this paper we will examine some of the misconceptions that have occurred to attempt to explain why, in spite of all the evidence, we continue to rely on a technique that has been shown not to work, and further, which is purported to protect privacy when it clearly does not. With a particular focus on Australia, we shall look at how misconceptions regarding de-identification are perpetuated. We highlight that continuing to discuss the fiction of de-identified data as a form of privacy actively undermines privacy and privacy norms. Further, we note that ‘de-identification of data’ should not be presented as a form of privacy protection by policy makers, and that greater legislative protections of privacy are urgently needed given the volumes of data being collected, connected and mined.

The jurisliterary profession is the curious enterprise of writing, as a jurist, about law. Many seek to escape into literature, philosophy, critique, psychoanalysis, the couch, but then, in the main, they have abandoned law. Those that persist, who remain jurists, have the propensity to transgress the boundaries of the juridical, the strictures of abstraction and disembodiment, so as to generate accounts of legal sensibility, so as to manifest the polyglottal and visceral potential of transforming the juridical bubble into that most ethical of realms, the poetics of desire. Jurisliterary transgression, at its strongest, returns the materiality of imagination to the sensorium of legality.

The intersection between social media activity and employment is an emerging global issue. This article examines the cultural, economic and technical milieu that has generated contested social media misconduct dismissals in Australia and South Africa. Through an analysis of 42 Australian and 97 South African decisions, it is argued that the ubiquitous, enduring and open nature of social media affects employment quite differently depending on country specific factors. In Australia, the absence of entrenched political rights has meant that employee social media use is not subject to reasonable expectations of privacy. However, there is also tolerance for a certain level of larrikin behaviour. In South Africa, the existence of enshrined rights manifests differently in the context of social media dismissal. Within a culturally diverse population with deeply fractured race relations, the decisions reveal a White minority still perpetuating dominance over a historically disadvantaged Black workforce.

The purpose of this article is to analyse the strategies that incumbent market participants are using to fight collaborative platforms. I essentially focus on the battle between taxi drivers and Uber in Spain, because it is a very complete scenario. Traditional operators feel threatened by collaborative platforms due to the greater attractiveness of their business model. Therefore, they implemented t the two classic defence measures: imitation and confrontation. Nonetheless, some references are made to other examples of sharing economy, as “short-term rental market” and other countries.

     The first strategy is imitation. Established operators try to copy technological advances to increase competitiveness. Others team up with collaborative platforms to take advantage of their power of attraction and gain market share. We believe that it is the most desirable strategy, from a systematic point of view, because it improves competition and encourages innovation. Nonetheless, there are economic, social and legal obstacles that hinder imitation and collaboration.

     Traditional operators have faced collaborative platforms through different channels. The two most important are judicial and legislative. Regarding the first one, incumbents have grounded the lawsuits on unfair competition. They argued that collaborative platforms took advantage of breaking the laws, misled, sold at a loss and, in general, did not act in good faith. The Spanish experience shows that this strategy is not efficient. Multiple uncertainties condition the result; for instance, the lack of precise knowledge of disruptive technologies. Even when the result is favourable to the plaintiff, winning does not mean necessarily success.

     The third strategy is regulatory capture. Traditional operators put pressure on Parliaments, Governments and all kinds of administrations to forbid or restrict the activities of collaborative platforms. The Spanish experience is that this strategy can work. Success is not guaranteed as it full of difficulties and uncertainties. The outcome relies heavily on the political conjuncture, that uses to be fluctuating. Besides, it is very detrimental to the economic and legal system.

The drone sector offers a wide range of affordances, opportunities, and economic benefits for society. Delivery services, agriculture monitoring, wildfire control, public infrastructure inspections, humanitarian aid, or drone journalism, are among the activities enhanced by unmanned aerial systems (UAS). No surprise the civilian UAS market is growing fast throughout the world. Yet, on a daily basis, newspapers report serious concerns for people infringing other people’s rights through the use of drones. Cybersecurity attacks, data theft, criminal offences brought about the use of this technology frame the picture. Nowadays, several countries are changing their legal rules to properly address such challenges. In 2018, the European Union (EU) started its five year-long regulative process that should establish the common rules and standards for UAS operations within the EU Single Sky by 2023. A similar timeline has been adopted in the United States, so as to provide the jurisdictional boundaries for the civilian use of drones. The United Kingdom (UK) and Japan are adopting new rules too. From a legal point of view, the overall framework is thus rapidly evolving. The aim of this paper is to give attention to (i) privacy and data protection concerns raised by UAS operations; (ii) their monitoring functions and corresponding surveillance issues; and, (iii) how a privacy preserving approach – such as with privacy by design technologies, organizational measures, audit procedures, civic involvement, to name a few – makes a lawful and ethical use of this powerful technology possible.