Monday, 8 May 2017

Legal Aid

Like many lawyers in the litigation space, I used to undertake work on legal aid. From 1978 when I was admitted to the bar, legal aid grew to a substantial part of many lawyers practice, including mine. It was very simple initially, because in criminal legal aid, the judge would often assign people on the spot. It later grew into a more sophisticated model, where the applicant needed to complete a form. The legal profession supported the use of legal aid, and set up committees of volunteer lawyers who would process the applications for legal aid, particularly in civil cases and family cases. These were unpaid positions, and the lawyers would use their own local knowledge to quickly process large numbers of applications. I was a volunteer on such a committee in Auckland for some years.

Gradually legal aid became more political, and we began to hear criticism of lawyers on a gravy train. However there were always challenges with legal aid because the hourly rate was sadly neglected for many years (no politician wanted to give lawyers for money) and some enterprising lawyers used the system with some efficiency, which is not a criticism, to earn reasonably good incomes from legal aid.

Political interference then brought in the very unbalanced report from Dame Margaret Bazley, in 2009, which was a singular lack of any empirical evidence attacked the operation of criminal legal aid particularly in South Auckland. Based on this report, legal aid was restructured and made considerably more difficult to obtain. For lawyers for the first time there was a process to obtain a provider contract, so that the lawyer had a formal contract with the then Legal Services Agency. Things grew worse, and the agency was swallowed up by the Justice Department to become a unit subject to bureaucratic control of senior Justice managers.

The abject failure to increase rates was then compounded by a very lengthy application process, which all lawyers had to complete to obtain a contract. Many lawyers who did not do much legal aid did not want to go through the lengthy process and dropped off. This is confirmed by statistics which show the number of family law providers has dropped from 1850 in 2007 to 942 in 2016 (and will have dropped further by now). There are smaller towns in New Zealand where it is now impossible to find a family law legal aid provider. And yet, many moved to smaller towns because the cost of living is smaller, because of their reduced incomes. So the average income in those small towns would make more people eligible for legal aid, but the government has manoeuvred the legal aid system to a point where lawyers are no longer interested.

I am not sure that the New Zealand Law Society has been very effective in negotiating with the government on these issues. I suspect part of it is that the politicians just refused to listen to the views of the lawyers. A number of judges have also expressed concerns about the number of self represented litigants, and the greatly increased cost of litigation where an unskilled party is involved.

So when I returned to practice after my previous role, I thought I would obtain a provider contract. Sadly, I have been defeated by the system. Despite having been a provider from 1979 until 2011, I was unable to successfully navigate through the system to obtain a contract. I sent a substantial amount of material to Legal Services, but apparently took too long to complete the forms. I will continue to do pro bono work, but choose not to do so on grounds of legal aid, because I decline to complete the forms again. While the staff at Legal Services were polite, they have obviously been given a straitjacket for new providers, which I cynically wonder is designed to weed out too many applicants.

Wednesday, 1 March 2017

Access to the Internet and Human Rights

Most of what we conventionally accept as human rights are issues which are very old within the societies which recognise such issues. Rights such as the right to a fair trial, or the right to freedom from want can be traced back to Greek and Roman philosophers in Western culture, and recognised in other ways by Chinese and Indian scholars.

The concept of the right to access to the Internet is a radical new idea, if only for the reason that such access has only been possible since the invention of the Internet. Of course, what has accelerated this issue as it least in part social media. Platforms such as Twitter and Facebook have become an essential part of many people's lives. The tremendous growth in the use of smart phones means that these and other social platforms are now ubiquitous. Some who thought access to the Internet was never possible, connect via smart phones from villages in the remote parts of Africa and India, relying on solar power to keep the phones charged. Even in failed states such as Somalia, somehow the cell phone companies have continued services enabling those with access to smartphones to then access the Internet.

In a number of countries such as New Zealand and South Korea, there is specific government policy to move government services online rather than maintain offices and call centres. It goes beyond social media, because most banking is now online and shopping online has become very common. Once government services are provided online as the 1st point of contact, then it must be essential that the government ensures that citizens who require access to the government services have an appropriate method of doing so online. As well as the use of a smart phone or a desktop computer or perhaps a tablet, the more itinerant citizens may need use in places like public libraries. But I have seen beggars on the street using a smart phone.

So access to the Internet has become such an essential part of the lives of many people that some say that this has created a new human right. In the New York Times there is a report of a case before the United States Supreme Court on how access to the Internet is such an important right, that even where a judge has attempted in a lower court to restrict access, the Supreme Court judges find that this may be an undue restriction on the US Constitution 1st amendment rights. While this is not specifically called a human right, and if successfully upheld, would be a constitutional right, it is my view moving to one of those fundamental human rights.

The New York Times article is here https://www.nytimes.com/2017/02/27/us/politics/supreme-court-north-carolina-sex-offenders-social-media.html?_r=0



Tuesday, 7 February 2017

Disputed Domain Names

There is a well-established body of decisions about the conflict between owners of trade marks and the use of a domain name which appears to conflict with the trademark. The ICANN UDRP system enables trademark owners to make a claim through dispute resolution providers such as the World Intellectual Property Organisation (WIPO) to make a claim that the owner of the domain name must transfer the name to the trademark owner.

On the face of it, you would think that once you establish the trademark, that the domain name should be transferred. In a recent decision CIA. Industrial H. Carlos Schneider v. WHOIS Privacy Service Pty Ltd. / Domain Admin, Ashantiplc Limited which can be found here http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2016-2167  there was a majority decision refusing to transfer the name.

The majority decision was not as strongly in support of refusing transfer as the third member of the panel. They went through the usual exercise of establishing that the trademark owner/applicant did have a legitimate interest in the domain name, but found that the respondent had not registered in bad faith and that the name was not being used in bad faith (See, e.g., Telstra Corporation Limited v. Nuclear Marshmallow, WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd, WIPO Case No. D2006-1052).

Interestingly, there was a minority decision from a very senior arbitrator Hon Neil Brown QC who
the trademark owner has neglected to renew the name, and only made the application to have the name transferred, almost a decade later. There is a line of authority which considers that the equitable doctrine of laches applies to such applications, which is that if you sit on your remedies, then you are likely to be rejected. The panellist delivered a strong decision about delay, emphasising the failure to renew for a very substantial period of time. The lawyer for the respondent, John Berryhill PhD will no doubt be carving another notch in his belt, but the decision was in reality fairly predictable.

For those who want a detailed analysis, I would always recommend the text on Domain Name Arbitration by Gerald M Levine, which interestingly has a foreword by the Hon Neil Brown QC,

Thursday, 2 February 2017

When You Need To Talk To Someone

I have recently volunteered to act as one of the members of the friends panel for the Arbitrators and Mediators Institute of New Zealand. The link for this is here
http://www.aminz.org.nz/Category?Action=View&Category_id=989

The purpose of the panel is really to enable our members to have someone to talk to on a confidential basis. It is a form of professional support, and we are there to listen. Sadly, some of our members find it difficult to find someone to talk to, and this can lead to problems with those difficult files or personal issues.

I am humbled that I have been chosen to be part of the members of the panel. As a mediator I strive for empathy, and this will continue as a friend on the panel. I hope that any of our members can feel free to contact me just to talk, perhaps have a quiet coffee and I will be there to listen.

Monday, 30 January 2017

Restorative justice On the Internet

One of the issues about the practice of an ombuds is how to resolve conflict which results in harm to one party. In particular the issues of cyber bullying, and harassment of any nature undertaken online, create particular problems in terms of resolution.

The concept of restorative justice, perhaps best-known in the work of Howard Zehr and others, does deal with the issue but on a personal level in a restorative justice circle. The very nature of such a circle is the personal relationships which develop between the parties and the facilitator, which enable some resolution. Particularly when you need to deal with cyber bullying, where it is very easy to go online and say harmful things about another person, actually being in the same space as the victim, so that the bully can understand the harm, is a very powerful tool.

Typically an ombuds will deal with such incidents in person, although restorative justice does not appear to be commonly used as part of the dispute resolution process. It may not even be appropriate for the ombuds to facilitate a restorative justice circle, although finding a facilitator would not be a problem. But I found that as the ICANN ombudsman, so much was done online that forming a restorative justice circle would have been impossible. When a harmful incident took place at an ICANN meeting, there would not commonly be time to set up a restorative justice circle within the very limited timeframe, between 4 to 9 days of the actual meeting. After the meeting, the attendees disperse to their homes around the world and of course establishing a restorative justice circle then becomes physically impossible.

It is conceivable that such a circle could be established using the correct platform. There are a number of different software platforms where parties can participate with a live view of each participant. Although it would not be as effective as being in the same room, being able to actually see the reactions of the participants may be useful. Of course, this would not need to be limited to a restorative justice circle meeting on ICANN issues, but may be of wider application. I would be curious to know if anyone has attempted such an exercise.

This year I will be undertaking restorative justice training at Victoria University under Prof Chris Marshall. This is a part-time evening course, and I hope to gain some insight into online applications as well as the wider training itself. I would be interested to receive feedback.

Tuesday, 17 January 2017

New Zealand Domain Name Disputes

The New Zealand Domain Name Commission has published disputed domain name decisions relating to the .nz space for many years. It was therefore interesting to read the three December decisions which while based on the New Zealand policy, will be no surprise to those who follow the UDRP decisions issued by WIPO.

The first two decisions were relatively routine because they were attempts to use well-established trademarks to register a domain name. In both cases the respondent did not take any steps to defend the claims, and it was inevitable that the names would be transferred back to the trademark holder. There appears to be a certain level of naïvety in relation to attempts to use such domain names, because whether under the New Zealand policy or under WIPO decisions for UDRP cases, a clear violation of the trademark will always result in a transfer. So it is the expected outcome that
ritzcarlton.co.nz, ritzcarlton.nz and wisesmaps.co.nz were transferred respectively to the Ritz-Carlton Hotel Company, L.L.C. and to NZ Directories IP Limited (publisher of Wises directories and maps).

The third decision in relation to a domain which is newplymouthnz.co.nz was actually defended. The principles used to decline the transfer and dismiss the application will be familiar to those who follow UDRP decisions. Mr Pulford, the respondent, had registered the domain name on October 10, 2003. The complainant, the New Plymouth District Council, owned a number of domain names which included newplymouthnz.com, and 6 other domain names, all of which resolved to their website. The council asserted that it had been using a website for at least 13 years, and the domain name was used on all their forms and stationery. Many local authorities appear to use the 2nd level domain of .govt.nz, so this council is a little unusual in its use of that name. Nothing comes of this  however.

Mr Pulford is a resident of New Plymouth and said in his response that he had previously used the domain name for a number of purposes including businesses which he had run in the city. The problem arose because he had some sort of disagreement with the council, and then directed the domain name to a website which included material which upset the council. The council claimed the material was defamatory and unauthorised. The website contained a photograph of a council employee and comments about several council employees and former employees. The council attempted to negotiate with Mr Pulford to ask him to remove the website content, but his response was that he had no intention of doing so would not stop using this domain name.

The council claimed that their business was disrupted because they could not set up a new website, which was delayed a few months, because the council was concerned that the public would access Mr Pulford's site rather than the official council site. This problem became exacerbated because Mr Pulford then changed the direction so that the site pointed to a pornographic website.

The very experienced panellist, Clive Elliott QC, gently chided the council for the quality of its submissions. He pointed out that a complainant must establish the requisite rights, and commented that he expected that they would have better articulated the basis on which the rights were claimed. He reminded them that the online forms stressed the need to provide supporting evidence of the use of an unregistered mark or of the reputation of the mark or name. He also suggested that because publication of previous decisions had been made for many years, this should help articulate any cases based on the precedents. This comment was necessary because he then went on to say that the council appeared to have assumed that because it was the local authority in New Plymouth, that this established the relevant rights in this domain name. He cited a number of DRS and UDRP decisions which make it clear that the legal authority of a geographic area does not have an exclusive right to that name, even though they may be able to claim a trademark. However in this case such evidence was entirely absent and no rights could be established in relation to this name. So it was not necessary to consider whether this was an unfair registration under the New Zealand policy.

In an interesting twist, even though he rejected the argument for the council, he did consider that the direction to a pornographic website may have been an unfair use of the domain name, in the sense of disrupting the business of the council, but for the finding that the council had no rights to the name anyway. So if Mr Pulford had restricted the redirection of the name to the website critical of the council he would have been on safer grounds. Although this comment would be considered obiter, or not binding as a precedent, it is something of a warning.