09 July 2014

Sorry and another OPCA incident

A perspective from the New York Times on the Facebook research ethics problem
this is hardly the first time Facebook has apologized for its behavior. Over its 10-year history, the company has repeatedly pushed its users to share more information, then publicly conceded it overstepped if an upset public pushed back.
Take, for example, when Facebook first introduced the news feed to the public in 2006. It was the first time a running stream of the actions you took on was were visible to your friends. Users were alarmed, and Mark Zuckerberg, Facebook’s chief executive, took to his profile page to personally apologize.
“We really messed this one up,” he wrote. The company introduced a new set of privacy controls to go with Mr. Zuckerberg’s apology.
Little more than a year later, Facebook was at it again. The company introduced a new product, Beacon, that, when connected to partner web sites like eBay or Fandango, would publish actions taken on those third-party sites back to Facebook for friends to see. Some Facebook users said this violated their privacy, and were irate enough to eventually file a class-action lawsuit.
Again, Mr. Zuckerberg was sorry.
“We simply did a bad job with this release, and I apologize for it,” he wrote on his personal Facebook page. Facebook introduced a way to opt out of Beacon soon after, and eventually dropped the service entirely.
Then in 2009, Facebook changed its privacy settings for users, in what the company characterized as an effort to simplify a set of complicated controls. Some digital rights advocacy groups, however, claimed that the simpler controls tacitly pushed users to share even more information about themselves than before. Users were forced to share their information, for instance, with apps connected to their Facebook accounts.
Six months and many complaints later, Mr. Zuckerberg said he was sorry (sort of) — this time on the editorial page of The Washington Post.
“Sometimes we move too fast,” Mr. Zuckerberg wrote. “We just missed the mark.” Facebook introduced another set of privacy changes to remedy the older, unpopular set.
One of the company’s biggest concessions came in 2011, in the form of a settlement with the Federal Trade Commission, after the agency said Facebook had deceived consumers on its privacy practices.
“I’m the first to admit that we’ve made a bunch of mistakes,” Mr. Zuckerberg wrote, while also noting a batch of privacy “improvements” Facebook had introduced over a period of two years. “We can also always do better.”

In ACM Group Ltd v Jenner [2014] QMC 7 - involving an A4V ('Acceptance for Value') pseudo legal claim - the Magistrates Court of Queensland comments 

The case highlights the tension between the fundamental principle that all parties have unobstructed access to civil justice regardless of whether or not they are legally represented (Tomasevic v Travaglini (2007) VSC 337 at [84]), on the one hand, and the need to protect members of the public from unscrupulous and unqualified people offering unsatisfactory legal services, on the other. 

The judgment states 

 [17] The defendant purports to invoke unknown principles and spurious “higher laws” to override or avoid normal commercial obligations. Through Ms Wales, Ms Jenner apparently claims the truly remarkable ability to transform a letter of demand into a cheque or other bill of exchange which is then payable by a non-entity from non-existent funds. 

[18] On her case the non return of the A4V notice within 72 hours of receipt “provided evidence of the acceptance by the plaintiff of the money order and satisfaction of the liability” (par 9(c)- (d)). 

[19] A “certified agreement” (see page 39 of APB 1) is also relied upon to prove a binding agreement “...by all parties that the plaintiff’s claim of a liability against the defendant was discharged” (par 9(j)(l)). 

[20] There is no evidence of any financial entity known as “Treasury AUSTRALIA” and no reason to believe that Ms Jenner has contractual or other recognised legal right or authority to compel enforcement of the “A4V notice” on presentation. 

[21] The A4V notice and the “certified agreement” are unilateral “quasi-agreements” unsupported by valuable consideration. Neither is binding on the involuntary party. The documents do not create formal legal relations or contractual consequences with or for anyone. 

[22] In fact despite its misuse of Latin maxims and bizarre make believe legal babble the A4V notice is not worth the paper it’s written. 

[23] The plaintiff claims that Ms Wales is an emerging breed of vicarious vexatious litigants known in Canada as organised pseudo legal commercial argument litigants (OPCA Litigants) characterised and distinguished by the use of muddled legal concepts and terms calculated to frustrate the legitimate legal rights of others and disrupt court proceedings (See Meads v Meads [2012] ABQB 571 per Rooke ACJ at [1]). 

[24] OPCA litigants, according to Rooke ACJ, belongs to a group unified by specific but irrelevant formalities and language they appear to believe to be (or portray as) legally significant and “...will only honour (agreements and legal obligations) if they feel like it. And typically they don’t” (Meads at [4]). 

[25] According to A4V mythology OPCA adherents are associated with the secret government bank account with millions of dollars in it which can be unlocked and accessed by special stamps and notations that convert the original document into a bill of exchange drawn on the secret government account in favour of a nominated payee. 

[26] The A4V document here closely resembles those used by OPCA Litigants in Canada in “money for nothing schemes” discussed in Meads at [199] – [244]. 

[27] As Counsel for the plaintiff points out the defence and counter claim here also bear a striking similarity to the OPCA modus operandi generally and, in particular, to the uses of unilateral agreements (eg A4V notice) and the fiction of quadruple counter claims (see Meads 473, 531, 483). 

[28] A similar situation arose in Boughan v HSBC Bank Australia Ltd [2009] FCA 1007 where a litigant asserted an implied agreement that the account was “settled and closed” [23-29] because a bank officer did not sign and return a document within a specified time. 

The correct reference in [28] is Vaughan v HSBC Bank Australia Ltd [2009] FCA 1007.

[29] Graham J [in Vaughan] held:

It is apparent that the applicant’s case against the bank well and truly earns the description of being unmeritorious and unsustainable. The applicant has no recall or prospect of successfully prosecuting any part of his proceeding against the bank. In relation to his claim for summary judgment against the bank it is totally without foundation, it proceeds on the premise that, because the bank did not reply to his rather odd communication to it, by its silence the bank agreed to make a gift to the applicant of $666,000. 

[30] The A4V concept was also reviewed and rejected in Underworld Services Ltd v Money Inc [2012] ABQC 327.