Showing posts with label law. Show all posts
Showing posts with label law. Show all posts

Wednesday, 26 June 2019

News Corp, Morrison Government & mining lobby groups in concerted attack on environmental lawyers



The Attack.....

The Australian, 22 June 2019:

A taxpayer-funded network of environmental lawyers has been handed more than $2.5 million by state governments, helping the group to clog up courts and launch dozens of cases against gas and mining projects, including Adani’s Carmichael mine.
Environmental Defenders ­Offices in NSW and Queensland were awarded more than $1m from the Berejiklian government and almost $400,000 from the Palaszczuk government in 2017-18….

Resources Minister Matt Canavan yesterday called on the states to deprive the green lawyers’ groups of any more taxpayer funds.

“These EDOs are not defending the public interest but pursuing a political agenda,” he said.

“As such, they should not be receiving taxpayer support to ­destroy people’s jobs.”….

Leading business groups ­accused the EDOs of engaging in “vexatious litigation” which is ­delaying projects for years, damaging job-creation efforts and hindering the flow of ­royalties to states and territories.

“Frivolous and vexatious legal challenges to environmental ­approvals delay projects and threaten jobs in regional Australia,” Minerals Council chief executive Tania Constable said.

An Australian Petroleum Production & Exploration Association spokesman said the EDOs’ advocacy on climate change was out of step with their apparent role as a community legal centre for environmental cases.

“We have for some time questioned the role of the EDO and its public funding,” he said.

The Response.....

NSW Environmental Defenders Office (EDO NSW), 22 June 2019:

EDOs stand firm against attacks

We are a community legal centre of expert lawyers, proudly and unapologetically helping the NSW community to use the law to protect wildlife, people and our planet.


Environmental laws should not be for the few. They affect us all. Yet once again we are forced to defend the community's access to justice against attacks by a fossil fuel lobby aggrieved by the power our work provides to communities who seek to challenge the lawfulness and merit of their major projects.

EDO NSW's litigation work on behalf of our clients plays an important role, ensuring that people have access to justice and are able to exercise their rights under Australian law. People have a right to use the law to protect their family, homes and environment. To be clear, as public interest community legal centres, EDOs do not litigate on our own behalf, but represent clients (community groups, Aboriginal groups and individuals) who may otherwise be unable to have access to the justice system.

It’s disappointing to see, yet again, the Minerals Council and Australian Petroleum Production & Exploration Association demonstrating their lack of understanding of, and respect for, the rule of law. At their heart, these claims are an attack on our democracy and  we should all be very concerned.

The fossil fuel lobby has a track record of making the unsubstantiated claim that EDOs engage in vexatious litigation, and frankly it’s getting tired. Despite being over-utilised, this claim remains a troubling proposition. EDO NSW lawyers, who include some of the best in our field, take our professional responsibilities extremely seriously. Our 30 year track record is evidence of that. Not once in our history have our clients’ cases been found to be ‘frivolous or vexatious’.

Underpinning most of our litigation work is a question about whether the law has been complied with. That decision-makers apply the law is a fundamental feature of our democracy. Ensuring the law is complied with should be uncontroversial.


In other instances, our work interrogates whether approving a project is – considering all the circumstances – the correct or preferable decision. These are not simple questions. The answer lies in the weighting of a range of different factors. Our important work ensures that evidence proffered in support of a project is thoroughly tested. 

In a number of instances, including in the recent case concerning the proposed Rocky Hill coal mine, the economic benefits of the mine put forward by the mining company were found to be overstated, based on the evidence put forward by both the Government’s expert and our client’s.  Equally the economic negatives of that project - including social impacts and impacts on Aboriginal cultural heritage - were found to have been understated by the mining company.

Litigation is a small component of the work this office does on behalf of clients. When we do so, it is only after application of our casework guidelines and detailed analysis from senior legal experts to ensure there are merits in bringing a case.
EDO NSW also provides the community with free legal advice and education - work that does see us receive some State government grants. Our office operates a daily advice line providing free advice on matters of environmental and planning law.

The NSW Government has provided EDO NSW with funding for decades, irrespective of which party is in Government. This demonstrates a bipartisan understanding of our role and corresponding support for the provision of access to justice in this space - that is, allowing members of the community to understand and seek advice about NSW environmental and planning laws. 

Our work relates to ensuring that laws are applied correctly, and ensuring that evidence put forward by project proponents is tested in an appropriate and independent forum. Any changes to the law that erode community opportunities to participate in environmental decision-making would be very concerning. This could easily be seen as a blatant attempt to further prioritise the rights of coal mining companies over the rights of communities, including farmers, eco-tourism operators and others.


David Morris
CEO - Solicitor

Monday, 17 June 2019

Australian mainstream media learns another lesson as to why racism is bad policy



BuzzFeed News, 13 June 2019:

Channel Seven has failed in its bid to strike out a lawsuit brought by a group of Aboriginal people who say they were defamed during a now infamous panel discussion on breakfast TV show Sunrise about adopting Indigenous children.
Yolngu woman Kathy Mununggurr and 14 others from the remote community of Yirrkala, including adults and children, are suing the TV network after they were depicted in blurred overlay footage that played during the segment in March 2018.

In the discussion, hosted by Samantha Armytage, commentator Prue Macsween said of the Stolen Generations that “we need to do it again, perhaps”, and then-radio host Ben Davis said Aboriginal kids are getting “abused” and “damaged”.

The comments made by the all-white panel provoked protests outside the Sunrise studio in Sydney's CBD.

Mununggurr and the adults suing argue they were identifiable in the footage and that by playing it during the discussion Sunrise had suggested they abused, assaulted or neglected children, were incapable of protecting their children, and were members of a dysfunctional community.

The children suing say the program defamed them by suggesting they had been raped and assaulted, and were so vulnerable to danger that they should be removed from their families.

The group is also suing for breach of confidence and breach of privacy, as well as misleading and deceptive conduct and unconscionable conduct under the Australian Consumer Law.

The TV network tried to strike out all aspects of the lawsuit in a Federal Court hearing on Wednesday afternoon, but was slapped down by Justice Steven Rares, who said all the issues could and should be argued at trial…..

"This is about an Aboriginal community. They’re all very close. The neighbours know each other, they all know each other," the judge said.

"You’ve got a whole community up there, most of whom will be able to recognise each other, obviously some of whom who watch Sunrise, or whatever the show is called."…...

Rares accepted there was an argument that Davis and the radio station 4BC were being promoted during the segment, but was less convinced when it came to Macsween.

“To me she’s a nobody. I’ve never heard of her and I’ve got no idea what contribution she possibly could have made to the program,” he said.

Nonetheless Rares sided with Catanzariti and declined to strike out the claim.
Seven's attempts to strike out the remaining claims of breach of confidence, breach of privacy and unconscionable conduct were similarly rejected.

Seven was ordered to pay the costs of the hearing.

Thursday, 6 June 2019

Climate change litigation and Australia


Pointing out the potential risks to business and government of ignoring or denying the reality of climate  change.....

The Canberra Times, 29 May 2019:

Since the late 1990s, Australian politics on climate change has been divisive.

Although Australia signed the Kyoto Protocol in 1998, it did not ratify it until 2007. 

Then, in 2011, the Clean Energy Act purporting to reduce greenhouse emissions was passed, only to be repealed in 2014.

In 2016, Australia ratified the Paris Agreement and the Doha Amendment to the Kyoto Protocol; however, any serious action on climate change remains to be seen.

At the same time, some states and territories also have emissions reduction targets. 

The uncoordinated approach is a problem for at least two important reasons.

First, climate change is an ever-increasing phenomenon, with tremendous impact on corporate, social and political discourse. Any meaningful legal framework to govern climate change requires the development of a legal consensus at the federal level, in line with international commitments.

Second, there is a rising wave of climate change-related litigation globally which is headed for Australia. Climate change litigation 2.0 (targeting companies) and climate change litigation 3.0 (targeting governments) will sink Australia, unless drastic measures are implemented.

Under the current legal regime, company directors may only be liable if found to be in breach of their duty of care or for failing to address a foreseeable risk. However, guidance from case law suggests that it is difficult to establish that the actions or omissions of a particular entity or director caused or contributed harm to be suffered by another. With the arrival of climate change litigation 2.0, this will all change.

For one, litigation 2.0 will force companies to assess and report on the risks of climate change and potentially set out plans for mitigating those risks. The recent tide of comments from the Australian Securities and Investments Commission, the Australian Prudential Regulatory Authority and the Reserve Bank of Australia are a testament to this.

Companies and their directors could soon face liability (including personal liability) if they fail to assess and address risks relating to climate change. Investors, shareholders and even communities will be able to recover losses and seek damages from companies and their directors, auditors and advisors, for failing to assess and mitigate risks.

As major climate change attribution studies emerge to assist in tracing particular weather events with greenhouse gasses, causation will be easier to establish. It is likely that in the future, courts will rely on such studies to conclude that a particular entity has contributed, at least in some proportion, to a particular harm……

Although unprecedented and unheard of in Australia, climate change litigation 3.0 will be the next phase. It will allow Australians to bring action against the government for failing to mitigate risks.

Claims of this nature around the world are already proving to be quite successful. 

The Urgenda litigation in the Netherlands is the leading example. In that case, a Dutch NGO argued that the Netherlands Government had breached its duty of care to the Dutch people by failing to mitigate the risks of climate change and reducing greenhouse gases. The remedy ordered by the court was that the Netherlands Government reduce emissions by at least 25 per cent by the end of 2020….. [my yellow highlighting]

It should be noted that on 8 February 2019 the NSW Land and Environment Court in its judgment Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 accepted that climate change formed part of critical reasons to reject a mine development.

Gloucester Resources decided not to appeal this decision and the proposed 830ha Rocky Hill Coal Mine in the Hunter Valley region will not proceed

Tuesday, 4 June 2019

US Court Blocks Trump's Border Wall As Court Case Proceeds


It would appear that two years and four months after Donald Trump was sworn in as President of the United States of America a healthy resistance against his heavy-handed autocratic tendencies is still alive and well........

“The position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds “without Congress” does not square with fundamental separation of powers principles dating back to the earliest days of our Republic."  [Judge Haywood S. Gilliam, US District Court Northern District of California, Sierra Club et al v Donald J. Trump et al, 24 May2019]


American Civil Liberties Union (ACLU), 25 May 2019:

From the beginning of his campaign for president, Donald Trump claimed that he was going to build a wall along the southern border. He said “nobody builds walls better than me.” He said the wall would be “big” and “beautiful.” He said someone elsewould pay for it. And he said it would be built so fast that “your head would spin.”

Last night, for the first time, a federal judge made clear to President Trump he couldn’t get his wall by illegally diverting taxpayer money.

The judge’s ruling comes in an ACLU lawsuit on behalf of the Sierra Club and the Southern Border Communities Coalition (SBCC). Together, the Sierra Club and SBCC represent the communities who live in, protect, and treasure the lands and communities along our southern border. For years, these communities have engaged in the democratic process and successfully persuaded their congressional representatives to deny President Trump funding to build his wall.

Our lawsuit centers on the question of whether the president abused his power to divert funds for a border wall Congress denied him. Unfortunately for President Trump, the Constitution is clear on the matter: only Congress has the power to decide how taxpayer funds are spent. And Congress, like border communities, said no to the President’s wall.

Congress didn’t bow to Trump’s pressure even after he caused the longest government shutdown in U.S. history over his demands for billions of dollars for his wall. Congress allocated only a fraction of the money that Trump demanded, and imposed restrictions on where and how quickly any border barriers could be built.

In a blatant abuse of power meant to circumvent Congress, President Trump declared a national emergency on February 15, 2019, and announced he would illegally divert $6.7 billion from military construction and other accounts for the border wall project.

From the beginning, the emergency was obviously a sham. Trump said as much himself when he declared the emergency, saying he “didn’t need to do this” but he’d prefer to build the wall “much faster.” He added that he declared a national emergency because he was “not happy” that Congress “skimped” on the wall by denying him the billions he demanded.

Despite this, the Trump administration tried to argue in court last Friday that Congress never actually “denied” President Trump the billions of dollars he is now trying to take from the military. The court rejected the administration’s argument, reminding the administration that “the reality is that Congress was presented with—and declined to grant—a $5.7 billion request for border barrier construction.”

The court’s ruling blocks the sections of wall that the Trump administration announced would be built with military pay and pension funds. It also invites us to ask the court to block additional projects as they are announced in the future. The judge emphasized the government’s commitment to inform the court immediately about future decisions to build.

It may be easy to ridicule President Trump’s desperation for a border wall — an absurd and xenophobic campaign promise for which he has only himself to blame. But as pointless and wasteful as it may be, Trump’s campaign promise now threatens to cause irreparable and real damage to our constitutional checks and balances, the rule of law, border communities, and the environment.

The wall is part of an exclusionary agenda that President Trump has targeted, over and over, at people of color. From his notorious Muslim Ban, to his efforts to eliminate protections for immigrants from Haiti, Sudan, Nicaragua, and El Salvador, courts have found“evidence that President Trump harbors an animus against non-white, non-European” immigrants. Trump has repeatedly justified his wall by lying about border communities, falsely claiming that America needs a wall.

Border communities know firsthand that walls are dangerous and wasteful. They divide neighborhoods, worsen dangerous flooding, destroy lands and wildlife, and waste resources. As our clients explained to the court, “we are a community that is safe, that supports migrants, that works well together and supports one another, that is worthy of existence.”  What border communities truly need is infrastructure and investment, not militarization and isolation.

The court’s order is a vindication of border communities’ advocacy for themselves, and of our Constitution’s separation of powers. As the court wrote, “Congress’s ‘absolute’ control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one.”


Wednesday, 15 May 2019

Palmer loses bid in Australian High Court to stifle election coverage on 18 May 2019


Clive Palmer before he resigned from parliament ahead of the 2016 federal election
Image: Huffington Post
Mining billionaire Clive Palmer may be back onto the Forbes Australian Rich List and currently attempting to 'buy' his way into the Senate on 18 May 2019, but the High Court of Australia is unimpressed by his latest legal foray.

The  Court unanimously dismissed Clive Palmer's application with reasons to be given at a later date.

SBS News, 7 May2019:

Clive Palmer's attempt to delay the publication of early results on federal election night has been shot down by the High Court.

Mr Palmer wanted the detailed data kept quiet until all polling booths had closed, lest last-minute crowds in far-flung locations be swayed by the results.

He was concerned West Australian voters who left their run until the last two hours could be influenced by early figures from the eastern states.

But the full bench of the High Court ruled the Australian Electoral Commission does not need to wait for stragglers in WA before broadcasting indications in east coast seats.

"The court is unanimous in its view that the application should be dismissed," Chief Justice Susan Kiefel said on Tuesday…..

Mr Palmer's case takes aim at the AEC's two-candidate preferred counting practice.
This is used on election night to give an early indication of results.

But the two candidates listed are almost always from Labor and the coalition, rather than the minor parties or independents. But the two candidates listed are almost always from Labor and the coalition, rather than the minor parties or independents…….

Solicitor-General Stephen Donaghue downplayed the potential "bandwagon" effect.
Mr Donaghue said last-minute voters in WA voters could be influenced by many other factors, including basic voting figures and exit polls.

He also argued the federal election was not a presidential race, with people in WA voting for different local candidates than those on the east coast.

Palmer's United Australia Party is said to be standing candidates in every federal electorate and for Senate positions in every state.

The Guardian reported on 1 May 2019 that almost 40% of all United Australia party candidates do not live in the electorates they are standing for and, the party has recruited senior executives from Clive Palmer’s mining interests to fill its ranks.

Monday, 13 May 2019

All drink driving in NSW to result in immediate loss of licence from 20 May 2019



NSW Transport for NSW, media release, 6 May 2019:

Immediate loss of licence for all drink drivers

All drink driving offenders can now immediately lose their licence under tough new penalties announced by the Minister for Transport and Roads Andrew Constance today.

From May 20 drink drivers who are first-time, lower range offenders will receive an immediate three month licence suspension and fine of $561.

“This means anyone caught drinkdriving in NSW, at any level, including low-range, can now lose their licence immediately,” Mr Constance said.

“This reform makes it clear if you break the law, you will pay the price. We are taking a zero-tolerance approach to drink and drug driving.”

Under the new laws, simpler and more certain penalties will also apply for drug drivers.

Offenders who drive with the presence of illicit drugs for the first time will receive a $561 fine and a three month licence suspension if the offence is confirmed by laboratory analysis.

Alcohol related crashes claimed the lives of at least 68 people on NSW roads last year, accounting for nearly one in five road deaths, including 55 lives lost on country roads.

Fatalities from crashes involving a drug driver accounted for similar numbers of deaths.

“Drivers who have an illegal level of alcohol in their blood or have used illegal drugs have no place on the road,” Mr Constance said.

Assistant Police Commissioner Michael Corboy said this reform will protect all road users by ensuring swift and certain penalties.

“Alcohol is one of the major factors in crashes that kill or injure people on NSW roads.The 0.05 blood alcohol limit has been in place for almost 38 years. There are no more excuses,” Assistant Commissioner Corboy said.

Sunday, 12 May 2019

Illegal net fishing on Clarence River costs fisherman $18,000



The Daily Examiner, 7 May 2019, p.4:

If you think illegal net fishing is no big deal, you may be about to get tangled up in a very expensive process.

The warning comes from NSW Department of Primary Industries Fisheries on the North Coast as they successfully prosecuted commercial fisherman from Iluka over seven illegal fishing offences in two years.

And the cost to him? More than $18,000 in fines and professional fees.

DPI director of fisheries compliance, Patrick Tully said all matters in relation to the offences were heard in court on April 10, with the offender convicted of all charges.

“This offender has incurred significant penalties related to the illegal use of nets in the waters of the lower Clarence River on two separate occasions in 2017 and 2018,” Mr Tully said.

“In November 2017, the offender failed to stop his vehicle when requested by Fisheries officers who then pursued him to his residence where they found him to be in possession of an illegal net and a number of fish taken illegally by that net. Then in April 2018, the offender was found using a net by illegal methods.

“On both occasions the nets and illegally taken fish were seized by DPI Fisheries officers.”

The man, a repeat offender, was convicted on all six fishing-related offences and one of obstructing fisheries officers. He was also required to pay the department’s professional costs….

Anyone with information on suspected illegal fishing activity is urged to contact their local DPI Fisheries office, call the Fisher Watch phone line on 1800043536 or report illegal fishing activities online.

Thursday, 2 May 2019

The Trouble with Water: National Party conflicts of interest and the rising odour of corruption



The Saturday Paper, 27 April 2019:

Former Australian Federal Police commissioner Mick Keelty is examining links between political donations and the issuing and buyback of agricultural water licences, amid concerns that undeclared conflicts of interest could be fuelling corruption.

Keelty told The Saturday Paper this week he is concerned about the extent of undeclared conflicts of interest among politicians, lobby groups and businesses operating in the water market.

“I’m interested to see how conflicted politicians are declaring their conflicts of interest when decisions are made about water policy,” he said.

“Where you get those conflicts of interest and they’re not addressed, that’s ripe for corruption.”

His comments come as the Commonwealth Environmental Water Holder confirmed to The Saturday Paper that two contentious water licences for which the federal government paid $79 million have returned next to no water to the environment since they were purchased two years ago.

Keelty is conducting inquiries in his capacity as the Northern Basin commissioner for the Murray–Darling Basin, a position to which the federal agriculture minister, David Littleproud, appointed him in August last year with the support of the Labor opposition.

On the issue of water licences, he draws a direct comparison with the management of development applications by local government, where conflicts of interest are required to be declared.

“We’re not seeing it in water, and it should be there,” he said.

Keelty, who was also the inaugural chair of the Australian Crime Commission, is not categorical about what exposing such conflicts might reveal, though he suggests they are widespread.

“I’m not saying it’s corruption; I’m saying it’s conflict of interest,” he said. “But you could draw a conclusion that if conflicts of interest aren’t transparent, it could lead to corruption … Water is now the value of gold. If you have corruption in other elements of society, if you have corruption in other areas of business, why wouldn’t you have it here, when water is the same price as gold?”

“IT IS NOT AS TRANSPARENT AS I FIRST THOUGHT AND IT IS MUDDIED BY IN-KIND DONATIONS AND THIRD-PARTY COMPANIES OR ENTITIES THAT ARE CREATED TO OBSCURE WHO THE REAL DONORS ARE.”

Over the past decade, Keelty has undertaken inquiries and investigations for various governments on issues relating to integrity in government policy, especially in emergency management.

Now turning his attention to the struggling river system, he is aiming to improve transparency in the management of the northern Murray–Darling Basin, which has a far worse compliance record than the river system’s southern half.

His task is to ensure that water gets back to the river system where it is needed and that those who rely on this water, and should have rights for its use, are not being ripped off, especially disenfranchised Indigenous communities and others living downstream.

Keelty argues that excessive numbers of water licences have been issued – sometimes on questionable grounds – and are seriously damaging the river.

“When you look at it strategically, there are too many licences having been allocated for the amount of water that is available,” he told The Saturday Paper.

“Nobody is addressing that, that I can see.”

Keelty also believes the system is too dependent on property owners acting within the law and reporting their own activities.

“The system relies on honesty and integrity but if you look at the number of prosecutions and infringement notices issued in New South Wales in the last 12 months, the pillar of honesty doesn’t appear to be that strong,” he said.

“I can understand the suspicion and the frustration in the southern basin states because they are directly impacted by the efficiency of the systems in the northern basin.”

Keelty is currently examining the Australian Electoral Commission records of political donations, checking links between donors, decision-makers and recipients of water licences or sales contracts.

“Clearly the National Party is probably, I guess, a glaring example of where politicians could be conflicted because their constituency are the very people who are using the water and the very people who are lobbying about water policy,” he said.

But he is examining links to other parties as well. “It’s not just the National Party. Different governments will make decisions about water policy that presumably benefit their state and their constituents.”

Keelty has concerns about the system of political donations more broadly.

“It is not as transparent as I first thought and it is muddied by in-kind donations and third-party companies or entities that are created to obscure who the real donors are,” he said. “I’ve found it more difficult and less transparent than what most of us probably think it is.”

The former police chief is also arguing for proceeds-of-crime legislation to be more clearly linked to offences in the water market because he believes the risk of losing a farming property would be a significant deterrent.

“Where you can prosecute criminal charges for offending, it makes sense to have parallel action in proceeds of crime because that will have more of an impact than perhaps some of the civil charges that are being used to remedy the situation to date,” he said.

Read the full article here

Wednesday, 1 May 2019

Facebook spends more than a decade expressing contrition for its actions and avowing its commitment to people’s privacy – but refuses constructive action



“It is untenable that organizations are allowed to reject my office’s legal findings as mere opinions. Facebook should not get to decide what Canadian privacy law does or does not require.[Canandian Privacy Commissioner  Daniel Therrien, 25 April 2019]

Facbook Inc. professes that it  has taken steps to ensure the intregrity of political discourse on its platform, but rather tellingly will not roll out transparency features in Australia that it has already rolled out in the US, UK, Eu, India, Israel and Ukraine.

The only measure it commits to taking during this federal election campaign is to temporarily ban people outside Australiabuying ads that Facebook determines are “political”.


So it should come as no surprise that Canada issued this three page news release…….

Office of the Privacy Commission of Canada, news release, 25 April 2019:

Facebook refuses to address serious privacy deficiencies despite public apologies for “breach of trust”

Joint investigation finds major shortcomings in the social media giant’s privacy practices, highlighting pressing need for legislative reform to adequately protect the rights of Canadians

OTTAWA, April 25, 2019 – Facebook committed serious contraventions of Canadian privacy laws and failed to take responsibility for protecting the personal information of Canadians, an investigation has found.

Despite its public acknowledgement of a “major breach of trust” in the Cambridge Analytica scandal, Facebook disputes the investigation findings of the Privacy Commissioner of Canada and the Information and Privacy Commissioner for British Columbia. The company also refuses to implement recommendations to address deficiencies.

“Facebook’s refusal to act responsibly is deeply troubling given the vast amount of sensitive personal information users have entrusted to this company,” says Privacy Commissioner of Canada Daniel Therrien. “Their privacy framework was empty, and their vague terms were so elastic that they were not meaningful for privacy protection.

“The stark contradiction between Facebook’s public promises to mend its ways on privacy and its refusal to address the serious problems we’ve identified – or even acknowledge that it broke the law – is extremely concerning.”

“Facebook has spent more than a decade expressing contrition for its actions and avowing its commitment to people’s privacy,” B.C. Information and Privacy Commissioner Michael McEvoy says, “but when it comes to taking concrete actions needed to fix transgressions they demonstrate disregard.”

Commissioner McEvoy says Facebook’s actions point to the need for giving provincial and federal privacy regulators stronger sanctioning power in order to protect the public’s interests. “The ability to levy meaningful fines would be an important starting point,” he says.

The findings and Facebook’s rejection of the report’s recommendations highlight critical weaknesses within the current Canadian privacy protection framework and underscore an urgent need for stronger privacy laws, according to both Commissioners.

“It is untenable that organizations are allowed to reject my office’s legal findings as mere opinions,” says Commissioner Therrien.

In addition to the power to levy financial penalties on companies, both Commissioners say they should also be given broader authority to inspect the practices of organizations to independently confirm privacy laws are being respected. This measure would be in alignment with the powers that exist in the U.K. and several other countries.

Giving the federal Commissioner order-making powers would also ensure that his findings and remedial measures are binding on organizations that refuse to comply with the law. 

The complaint that initiated the investigation followed media reports that Facebook had allowed an organization to use an app to access users’ personal information and that some of the data was then shared with other organizations, including Cambridge Analytica, which was involved in U.S. political campaigns.

The app, at one point called “This is Your Digital Life,” encouraged users to complete a personality quiz. It collected information about users who installed the app as well as their Facebook “friends.” Some 300,000 Facebook users worldwide added the app, leading to the potential disclosure of the personal information of approximately 87 million others, including more than 600,000 Canadians.

The investigation revealed Facebook violated federal and B.C. privacy laws in a number of respects. The specific deficiencies include:

Unauthorized access

Facebook’s superficial and ineffective safeguards and consent mechanisms resulted in a third-party app’s unauthorized access to the information of millions of Facebook users. Some of that information was subsequently used for political purposes.

Lack of meaningful consent from “friends of friends”

Facebook failed to obtain meaningful consent from both the users who installed the app as well as those users’ “friends,” whose personal information Facebook also disclosed.

No proper oversight over privacy practices of apps

Facebook did not exercise proper oversight with respect to the privacy practices of apps on its platform.  It relied on contractual terms with apps to protect against unauthorized access to user information; however, its approach to monitoring compliance with those terms was wholly inadequate.

Overall lack of responsibility for personal information

A basic principle of privacy laws is that organizations are responsible for the personal information under their control. Instead, Facebook attempted to shift responsibility for protecting personal information to the apps on its platform, as well as to users themselves.

The failures identified in the investigation are particularly concerning given that a 2009 investigation of Facebook by the federal Commissioner’s office also found contraventions with respect to seeking overly broad, uninformed consent for disclosures of personal information to third-party apps, as well as inadequate monitoring to protect against unauthorized access by those apps.

If Facebook had implemented the 2009 investigation’s recommendations meaningfully, the risk of unauthorized access and use of Canadians’ personal information by third party apps could have been avoided or significantly mitigated.

Facebook’s refusal to accept the Commissioners’ recommendations means there is a high risk that the personal information of Canadians could be used in ways that they do not know or suspect, exposing them to potential harms.

Given the extent and severity of the issues identified, the Commissioners sought to implement measures to ensure the company respects its accountability and other privacy obligations in the future. However, Facebook refused to voluntarily submit to audits of its privacy policies and practices over the next five years.

The Office of the Privacy Commissioner of Canada plans to take the matter to Federal Court to seek an order to force the company to correct its privacy practices.

The Office of the Information and Privacy Commissioner for B.C. reserves its right under the Personal Information Protection Act to consider future actions against Facebook.  

Related documents:

* Note: my yellow highlighting

Nor should this alleged 'mistake' made by Facebook cause surprise.......

The New York Times, 25 April 2019:

SAN FRANCISCO — The New York State attorney general’s office plans to open an investigation into Facebook’s unauthorized collection of more than 1.5 million users’ email address books, according to two people briefed on the matter.

The inquiry concerns a practice unearthed in April in which Facebook harvested the email contact lists of a portion of new users who signed up for the network after 2016, according to the two people, who spoke on condition of anonymity because the inquiry had not been officially announced.

Those lists were then used to improve Facebook’s ad-targeting algorithms and other friend connections across the network.

The investigation was confirmed late Thursday afternoon by the attorney general’s office.

“Facebook has repeatedly demonstrated a lack of respect for consumers’ information while at the same time profiting from mining that data,” said Letitia James, the attorney general of New York, in a statement. “It is time Facebook is held accountable for how it handles consumers’ personal information.”…

Users were not notified that their contact lists were being harvested at the time. Facebook shuttered the contact list collection mechanism shortly after the issue was discovered by the press…..

Facebook Inc's rapacious business practices has been the death of online privacy and now threatens the democratic process.