Open Content Licensing of Public Sector Information and the Risk of Tortious Liability for Australian Governments
© Springer International Publishing Switzerland 2015Brian Fitzgerald and John Gilchrist (eds.)Copyright Perspectives10.1007/978-3-319-15913-3_10
10. Open Content Licensing of Public Sector Information and the Risk of Tortious Liability for Australian Governments
Curtin Law School, Curtin University, Building 407, Level 3, Kent Street, Bentley, Perth, WA, 6102, Australia
There has been an increasing interest by governments worldwide in the potential uses of public sector information (PSI).1 An example of advancement in this area is the US government’s launch of the data.gov portal in May 2009 as part of the Obama administration’s Open Government Initiative.2 The aim of providing the portal was to increase the ability of the public to find, download, and use datasets generated and held by the US Federal Government.3 Similarly, the UK government launched the beta version of its data.gov.uk portal in January 2010, providing a single access point to over 2,500 central government datasets available for free re-use.4 The Australian government is moving in a similar direction by initiating the Government 2.0 Taskforce, with the intent of increasing the openness of government by making public sector information more widely available to promote transparency, innovation and value adding to government information.5 The Federal Government in its response to the Government 2.0 Taskforce final report supported the use of the Creative Commons Attribution licence as the default licence for PSI,6 and formally endorsed this approach in its Statement of IP Principles for Australian Government Agencies update of 1 October 2010.7
While the issue of access to and reuse of PSI in Australia has been considered by various government agencies and in reports commissioned by governments, there has been no comprehensive statement of policy, principle or practice relating to the publication of PSI under open access regimes by any tier of Australian government.8 An important legal aspect that has neither been fully canvassed in these reports nor tested in the courts is: can governments9 incur tortious liability for incorrect or inaccurate information released online under an open content licence?10 It is imperative that we address this question, because a heightened risk of tortious liability for information released could put a drag on innovation in this area.11
In order to fully understand the potential pitfalls and risks in releasing PSI online, this chapter will attempt to apply conventional negligence principles and defences to this yet to be adjudicated situation. In doing so, it will consider the relevance of certain factors including that the information has come from government, is for the benefit of the public, is being provided for free, and the presence of a disclaimer and appropriate information management policies.12 This chapter concludes that the release of public sector information online under an open content licence is within the bounds of an acceptable level of risk to government, especially where appropriate information management policies and principles are in place to ensure accountability for its quality and accuracy.
10.2 Copyright in Public Sector Information
Public Sector Information (PSI) means a vast range of documents, databases and other information compiled or produced by governments.13 For example, it includes geographical information (such as meteorological information, spatial and mapping information, mining exploration data and road safety information), public health information, economic and trade statistics, and parliamentary reports.14 In Australia, it was held in Desktop Marketing v Telstra 15 that an “industrial collection” may satisfy the originality requirement to sustain copyright, despite minimal intellectual input.16 Although raw facts and information as such is not capable of being protected by copyright, once it is selected and arranged, the resulting work could be protected as a compilation within the literary works category in Part III of the Copyright Act 1968 (Cth).17
As copyright owners, governments have the exclusive right to copy and to communicate the work to the public.18 “Communicate” is defined as to “make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance of otherwise) a work or other subject matter”.19 Thus, governments hold the right to control the electronic transmission of PSI as well as making it available to the public online via an intranet, the internet or other computer networks.20
Unfortunately, governments have often sought to control the right to access and use information under restrictive licensing arrangements.21 Whilst governments sit on the acres of information generated and gathered yearly by governmental bodies, there has been increasing demand for open access22 to this useful resource.23 Only recently has the consideration of implementing an open access regime emerged in light of the perceived societal and economic gains.24 These benefits include:
evidence based policy and decision making which contributes to an informed citizen base, whilst facilitating transparency and accountability within government;
improving returns on investments by governments, especially when access to publicly funded research is improved;
broadening opportunities for commercial exploitation of research data (specifically, leading to the emergence of successful commercial enterprises that create innovative products from repackaged, processed or amalgamated PSI); and
in general, enhancing the potential for innovation and creativity throughout society.25
10.3 Open Content Licences
The onset of the digital age and the corresponding improvements in the way in which information is disseminated has led to the development of new licence models that allow others to obtain access to and to reuse copyright protected material with minimal unmediated transactions.26 These licences, referred to as ‘open content’ licences, are considered a viable alternative to the existing licensing regimes adopted by governments.27 Whilst a wide range of open content licensing models has developed in recent years,28 the most recognised open licensing model is Creative Commons (CC). The standard permissions under the CC licences are the right to copy the work, to distribute it and to communicate it to the public.29 The CC licences are a more flexible tool by virtue of their “some rights reserved” terms, allowing copyright holders to grant more extensive rights to the public than under the more traditional “all rights reserved” model.30 The CC licences make copyright-protected content more “active” by enabling it to be reutilised with a minimum of transactional effort.31 Using these simple legal tools, combined with the vast digital landscape that we increasingly inhabit,32 the free-flow of information is greatly enhanced.
The significant proliferation of open content licence usage “in a manner and at a pace that few could have imagined just a few years ago” in modern society has recently been recognised by the most senior specialist intellectual property court in the United States in Jacobsen v Katzer & Kamind Associates Inc. 33 Importantly, the Court of Appeals for the Federal Circuit acknowledged the economic and social value of an open access model, stating:
There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.34
Although the use of open content licences brings significant benefits to the community and the economy, there still remains a practical reality which may arise if a government chooses to release its information under open content licences: what if the information is incorrect and, as a result, causes loss or damage to citizens or businesses? Will the government be liable for such loss?
10.4 Liability for Incorrect Public Sector Information
In Australia, a person may be liable in negligence to another for the provision of incorrect information or advice (i.e. a negligent misstatement) where there exists a “special relationship” between the parties.35 However, despite speculation on liability for incorrect data,36 there do not appear to have been any authoritative decisions on whether a government which releases its public sector information online to the public under an open content licence is in a “special relationship” with the user of the information, and accordingly, whether the government may be held tortiously liable. As Lord Macmillan stated in Donoghue v Stevenson:
The grounds of action may be as various and manifold as human errancy, and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed …37 [emphasis added]
Hence, this paper will proceed in its attempt to apply the elements of negligence and the additional requirements peculiar to negligent misstatements to this novel situation.
10.5 Tortious Liability
For the tort of negligence to be established, the user of the information must prove that:
the government owed a duty of care to the user;
the government breached the standard of care appropriate to that duty of care; and
damage to the user was caused by the government’s breach of the duty (where that damage is not regarded as too remote in law).38
The main areas of contention arising from these three elements, which will be discussed in turn, are:
whether a duty of care exists;
the standard of care applicable to the government if a duty is found to exist;
whether reliance on the information was reasonable to establish a causative link between the release of the information and the loss suffered; and
Following these in Sect. 10.5.4 of this chapter, the impact of disclaimers on the duty of care is assessed.
10.5.1 A Duty of Care
In general, a person is under a duty to take reasonable care to avoid causing harm to others, in circumstances where Lord Atkin’s neighbour principle, as expounded in Donoghue v Stevenson, applies:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question . . .39
However, where a defendant provides advice or makes information available, a “special relationship”, in addition to the requirement of reasonable foreseeability from the general principle expressed in Donoghue v Stevenson,40 is essential to ensure that the imposition of liability on the defendant is justifiable. This is because damage flows, not immediately from the defendant’s act in disclosing the information or advice, but from the plaintiff’s reliance on the information or advice and his action or inaction which produces consequential loss.41 In other words, it is the actions of the plaintiff, not within the control of the defendant, which links the information or advice to the loss.
The features of this special relationship as expounded by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd 42 and reiterated by the Australian High Court in MLC v Evatt 43 are:
The circumstances caused the speaker or a reasonable person in the speaker’s position to realize that:
he/she is being trusted by the recipient to give information which the recipient believes the speaker to possess or to which the recipient believes the speaker to have access to, or
to give advice, about a matter upon or in respect of which the recipient believes the speaker to possess a capacity or opportunity for judgment,
in either case the subject matter of the information or advice being of a serious or business nature.
The speaker realized or the circumstances are such that the speaker ought to have realized that:
the recipient intends to act upon the information or advice in respect of his/her property or of himself/herself
in connection with some matter of business or serious consequence (i.e. an “assumption of responsibility” implied by the law).
It is reasonable in all the circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the speaker (i.e. a “reasonable reliance”).
Factors for judging reasonable reliance are:
The nature of the subject matter;
the occasion of the interchange; and
the identity and relative position of the parties as regards knowledge actual or potential and relevant capacity to form or exercise judgment.
The element of trust between the parties has been described as being the heart of the special relationship.44 It tends to arise out of an unequal position of the parties which the recipient reasonably believes to exist, especially where the recipient believes the speaker to have superior information or greater capacity than the recipient.45 Further, the special relationship does not arise unless it is reasonable for the recipient to act on that information or advice, without further inquiry, for the purpose for which it is used.46
10.5.1.1 Liability in the Government Context: Open Content Licensing
The “incremental approach” to the law of torts (i.e. the development of the law of torts incrementally through novel cases by reference to analogous cases) has been favoured by the majority of the High Court.47 Accordingly, we may draw on the principles as discussed in relation to negligent misstatements (which apply equally to advice and information)48 and attempt to apply them to the dissemination by government of PSI online under open content licences.
The argument that physical injury and damage is direct and obvious, whereas with information or advice no loss results unless the hearer relies and acts upon the information or advice (the loss and damage in a real sense directly arising out of the hearer’s actions) was rejected by Barwick CJ in MLC v Evatt. 49 As Lord Devlin reasoned in Hedley Byrne v Heller 50:
A grave defect there would be in the common law if recovery permitted in the case of physical acts or omissions were denied in the case of information and advice given with a lack of due care.51
The same argument applies to public sector information (PSI) disseminated online under open content licences. The fact that incorrect information can cause loss or damage cannot be denied.52 However, it is important to recognise that the context in which the information is shared may be quite different from previous cases involving negligent misstatement. The early cases of Hedley Byrne & Co Ltd v Heller & Partners Ltd,53 MLC v Evatt 54 and Shaddock v Parramatta 55 were concerned with ascertaining conditions which would attract a duty of care in responding to an inquiry for specific information. In addition, the provision of information or assurances by the public authority in Shaddock v Parramatta 56 incurred a prescribed fee.
Previous decisions are but illustrations of the general duty of care in its application to particular circumstances of negligent misstatement, because ‘the special complications which arise in connection with the imposition of a duty of care on the author of a statement can only be unraveled in a variety of factual situations’.57 Until there is a clear judicial pronouncement on the issue, the question remains—are the features of a special relationship as identified in these cases still applicable to this situation of government making PSI available online under an open content licence? Indeed, the release of information in the online medium creates another set of factors which may impact on the existence of a duty of care.
10.5.1.2 The Online Medium
Where information is made available online (whether by a government agency or otherwise), liability may be greatly expanded.58 It is difficult to assess how wide the neighbourhood principle extends.59 Unlike the ginger beer in Donoghue v Stevenson 60 which can only be drunk once and in all likelihood by one person only, information may be used by many, perpetuating the damage or causing multiple damages.61 The features of the relationship become more akin to communications via mass media, rather than a special relationship between the parties. Consequently, there may be good grounds to fear imposition of liability “in an indeterminate amount for an indeterminate time to an indeterminate class”.62
Thus, it is all the more essential to identify the “relationship of proximity” in order to limit liability for information published to the world at large in this context.63 However, this concept of proximity does not define legal rules which prescribe an issue of fact on which legal consequence depends.64 As a result, it has been described as a “label of choice”, concealing underlying policy considerations motivating that decision65 Further, the High Court has criticized it as “a convenient short-hand method of formulating the ultimate question in the case,” but one which “provides no assistance in deciding how to answer the question”.66 Instead, by drawing analogies with previously decided cases, combined with a process of induction and deduction, we may systematically identify factors relevant in those cases to finding a duty of care and perhaps identify previously unidentified factors.67
In the present context, it would appear that there are several factors (carrying with them corresponding policy reasons) which may influence whether a duty of care may be found to exist:
the PSI is provided without fee for the benefit of the public;
the PSI is proactively provided to the public in general;
the PSI is provided by government
Fee Free Provision of PSI for the Benefit of the Public
Although tortious liability is entirely separate from contractual liability and the concept of consideration is not relevant to tort, the provision of PSI by government on a no-fee or non-commercial basis may well present an additional layer of complexity relevant to the application of negligence principles. In commercial transactions where the information or advice is paid for, the acceptance of responsibility by the provider is implicit.68 Conversely, where the government provider supplies PSI on a no-fee, non-commercial basis, it is arguably reasonable to hold it to a lower standard of legal liability.
In the case of San Sebastian v Minister,69 the plaintiffs argued that the publication of redevelopment feasibility study documents (a plan which was later abandoned) gave rise to a duty of care on the part of the Authority and the Council due to the intention or purpose of inducing developers to develop the land in accordance with the plan. Whilst the intention or purpose of inducing another to act on a representation may be critical to the existence of a duty of care in certain cases,70 it is not an absolute requirement. It is but one of the various means by which it may be shown that the plaintiff’s reliance on the information was reasonable.71 As Kitto J stated in MLC v Evatt 72:
Just as words which otherwise would create a contract (because the speaker or writer receives a quid pro quo) are held not to do so if the parties are dealing with one another on a plane where there is really no intention of altering legal relations – as in the case of purely domestic arrangements – so words giving information or advice without any quid pro quo will be held to entail no legal responsibility for carelessness if the correct conclusion from the circumstances be that the person who acted upon them could not reasonably have understood them as uttered, as one might say, in the way of business, or (to express it more generally) as uttered on a plane to which legal liability naturally belongs.73 [emphasis added]
The general interest which governments have in promoting or encouraging the digital economy is not a “pecuniary interest” which supports the existence of a duty of care.74 Conversely, by releasing PSI for free under unrestrictive licensing regimes, the government is putting into practice the overriding principle that ‘the community has a right to information held by the [g]overnment’75; it is not seeking a private commercial benefit. In San Sebastian v Minister,76 it was ultimately held that reliance on the publication was unreasonable due to the general nature of the documents which contained no representation or assurance about the ultimate level of development or continuing application by the Council.
A duty of care will not be lightly imposed where a government provider does not charge a fee for the information. The courts must consider whether the imposition of such a duty would deter socially desirable activity. In the words of Brennan J in San Sebastian v Minister 77:
Helpful information and friendly advice, even on matters of the gravest import, will often be proffered without any thought of the informant or adviser being responsible for its truth or soundness. To impose a legal duty of care on the unsolicited and voluntary giving of any information and advice on serious or business matters would chill communications which are a valuable source of wisdom and experience for a person contemplating a course of conduct.78 [emphasis added]
In short, the wide range of PSI which could be released by government to benefit the public presents a strong public policy reason against imposing tortious liability on government in such circumstances.79
A General Proactive Publication of PSI
Should there be a duty where general PSI (non-specific to the particular plaintiff) is made available online? Whilst the existence of an antecedent request for information certainly assists in demonstrating reliance, it is by no means essential.80 The fact that information is proactively made available to the world by a government does not preclude a duty of care from arising.
All the same, it is undoubtedly of importance to consider the specificity and relevance of that information in relation to the person or class of persons to whom it is directed when determining whether reliance by that particular person or member of that particular class is reasonable. For example, in Perre v Apand Pty Ltd,81 the damage caused was not too remote as it was possible for the respondent to identify precisely who would be affected by an outbreak of bacterial wilt caused by its negligence. Depending on the nature and purpose of the information, it may be possible for the government to identify the class of possible plaintiffs. Arguably, whilst the government may not be able to identify the particular individual users, it may be within contemplation that the information is likely to be downloaded and used by certain categories of people for serious purposes.82
Nevertheless, where PSI is released by the government to the general public without a specific request, it may be difficult for the government to foresee how and by whom the information will be used. There is a lesser extent of proximity between the government provider and the user of the information, upon which the government provider may be seen to have assumed legal responsibility. In Crimmins v Stevedoring Industry Finance Committee,83 McHugh J was of the opinion that the imputation of constructive knowledge should be treated with caution, because “it would be a far-reaching step to impose affirmative obligations on a statutory authority merely because it could have or even ought to have known that the plaintiff was, or was a member of a class which was, likely to suffer harm of the relevant kind.”84
Provision by Government
Where government provides the information, it is more likely to be seen as being in a special relationship with users of the information and it may be seen to have assumed responsibility to the public by making information available. This is largely because a government is often in a better position than the general public to ensure the accuracy of the information released. While this may not always be so where PSI is utilised by people with special skills or knowledge or by large corporations, the argument is especially compelling where the government has a monopoly on important information, and formally sets itself up as the distributor.85 In this scenario, the public may be seen as being in a position of relative vulnerability.86
It has been said that the “risk of indeterminate liability must give way to the more important role attributed to the law of negligence in the form of its deterrent effect”.87 However, the law of negligence does not operate in a vacuum. Finding liability not only affects the defendant government but also society as a whole. If faced with extensive liability, the provision of information may represent such a financial risk that it is prohibitory.88 Where it is a discretionary undertaking by a government agency, the risk of liability is highly likely to deter the release of information, because there is neither a specific public obligation89 nor a financial incentive to do so. In determining whether a duty of care should be recognised, the possibility that its recognition might lead to a flood of claims, although not decisive, weighs the balance against the recognition of that duty.90
In Queensland, recognition of the constraints applicable to public or governmental authorities is contained s 35 of the Civil Liability Act 2003 (Qld).91 Section 35 states that, in deciding whether a public or other authority has a duty or has breached a duty, the following principles apply—
the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions;
the general allocation of financial or other resources by the authority is not open to challenge;
the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates); and
the authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.
Section 35 reflects the common law principle as espoused by Gleeson CJ in Graham Barclay Oysters v Ryan that “decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political…[and] are ordinarily decided through the political process.”92
These additional section 35 conditions when taken into account may, depending on the circumstances, lead to the conclusion that there is no duty of care. Alternatively, where a duty of care is held to exist, these principles will again be relevant in assessing whether the duty of care was breached.
10.5.1.3 Does the CLA Bind the Crown in Right of the Commonwealth?
In Australia, the Crown’s historical immunity from suit was removed by the various state Crown Proceedings Acts93 and at the Commonwealth level, the Judiciary Act 1903 (Cth).94 Under these Acts, the Crown (both in right of the Commonwealth and in right of the State) is subject to the same common law tortious principles as its subjects and may be held vicariously liable for torts committed by its employees.95
As there is no Commonwealth civil liability legislation, question arises as to whether the States and Territories have the legislative power to bind the Commonwealth government under their civil liability legislation. The Queensland legislation is the only state or territory legislation which specifically purports to bind the Commonwealth, so far as it is able to.96 New South Wales, South Australia, Western Australia and the Northern Territory legislatures provide that their respective pieces of legislation bind not only the Crown of the respective jurisdiction, but also, so far as able, the “Crown” in all its capacities.97
As yet, the courts have not been called upon to decide whether State or Territory civil liability legislation will bind the Crown in right of the Commonwealth. Generally, State laws of general application can bind the Commonwealth. In Pirrie v McFarlane,98 the High Court held that a member of the Air Force was required to hold a Victorian driver’s licence when carrying out Commonwealth duties involving the operation of a motor vehicle within Victoria. Therefore, Commonwealth officers, employees and agents must comply with State laws of general application even when undertaking Commonwealth Government activities. However, in Commonwealth v Cigamatic Pty Ltd (in liq),99 the Court held that States cannot bind the Commonwealth with laws which define or regulate Commonwealth rights or duties towards its subjects or which regulate or control its prerogative rights.100 These principles were affirmed by the majority of the High Court in Re Residential Tenancies Tribunal of NSW and Henderson. 101
Civil liability legislation are laws of general application which apply to the Crown in regards to actions in which it may choose to engage in exercise of its capacities and functions (i.e. activities which it carries on in common with other citizens).102 The acts do not purport to govern the capacities and functions of the Crown in right of the Commonwealth.103 In other words, the legislation covers the civil liability of the Crown should it be negligent in releasing PSI which causes loss, but it does not affect the Crown’s ability to release PSI. In short, it is likely that, as far as negligent acts or omissions are concerned, the Commonwealth is bound by State and Territory civil liability legislation, so long as there is no inconsistency with Commonwealth legislation that would attract the operation of s 109 of the Commonwealth Constitution.104 Even if the State civil liability legislation is held not to apply to the Crown in right of the Commonwealth, general negligence principles at common law will still apply.105
10.5.1.4 Is the Provision of Information a Matter of Policy?
A duty of care cannot arise in relation to acts and omissions that reflect the policy-making involved in the exercise of statutory discretions.106 Whilst the grounds of judicial review of administrative action have ebbed and flowed, there has been one constant—it is not the function of the judicial review court to determine the merits of the exercise of an administrative power.107 The court is limited to deciding whether that exercise was lawful, and it remains lawful even if the court thinks that it would have been better exercised in another way.108 Nevertheless, unlike budgetary allocations and the constraints which they entail in terms of the allocation of resources, the courts may be called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.109
Consequently, a public authority or governmental body which exercises statutory powers may place itself in a relationship to others which imports a common law duty to take care.110 For example, the decision whether or not to release certain information, in exercise of a statutory power, would be a policy decision, and cannot as such be subject to a duty of care. However, a duty of care may still arise where operational effect is given to the policy decisions by making information available to the public. Here, a duty of care requiring the government agency to take reasonable steps to ensure the reasonable accuracy of the information may be held to arise.
While a discretionary exercise of powers may involve a combination of policy and operational decisions, “when a duty of care is found to exist, a failure to exercise a statutory power said to be relevant to the cause of negligence in the operational sense is not to be excused merely because the ultimate decision to exercise the power may be classed as a policy one.”111 Therefore, the fact that information is released based on an initial policy decision does not preclude a duty of care from arising. However, the fact that information is released by government may have an impact on the applicable standard of care.112
10.5.1.5 Is There a Duty of Care?
In summary, where information is pro-actively released online to the public, a relationship of sufficient proximity, which warrants reliance on such information without proper consideration, is unlikely to exist between the government and the user. This is especially so where information is provided free of charge, without any implicit inducement or warranty as to the accuracy of the information.113 Accordingly, where information is made available online by government to the general public, without expectation of economic profit, a duty of care is not likely to exist.
Simply put, governments are releasing PSI for the benefit of the public. An individual who places undue reliance on the general information provided by a government without proper critical consideration or proper exercise of common sense, and consequently suffers a loss, has not acted reasonably. It should be the individual’s responsibility to obtain professional advice before relying heavily on such information. Likewise, where a professional or skilled individual, or a corporation experienced in the particular field is involved, a reasonable reliance on PSI will be even harder to prove.
10.5.1.6 Switching from Duty to Standard of Care and Breach
It must be kept in mind that the elements of reliance and assumption of responsibility are merely illustrations of principles as applicable to previous cases, which cannot be strictly adhered to and applied in every instance. In the present context, the courts may be reluctant to simply deny a duty of care, allowing the government free range to disseminate information without considering its accuracy. This is especially so in light the High Court’s decision in Brodie v Singleton Shire Council,114 described as signalling ‘a major shift in focus from a duty of care to breach’.115 In that case, factors which were previously relevant to negating the existence of a duty instead became criteria to be considered and evaluated against the court’s conception of reasonableness in the context of the standard of care and breach of that standard.116
Whilst the role of government is to maintain the public good,117 it may be difficult to determine which “public good” outweighs another, for example here, the dissemination of valuable information, or the avoidance of potential mishaps from the use of or reliance upon incorrect information. An appropriate balance has to be struck between the need to encourage the dissemination and reuse of data, and the protection of public users. An unnecessarily conservative approach which suppresses the innovative use and re-use of PSI is contrary to the characteristics of a modern democratic government which should be committed to stimulating economic growth and productivity.
Accordingly, the courts may seek to retain judicial flexibility by imposing a duty of care, but provide the government with some leeway by applying a suitably lower standard of care in the circumstances. This way, the courts are able to respond to novel situations in a way that accords with public policy concerns as to whether the state should compensate certain classes of loss.118
10.5.2 Standard of Care and Breach
Having discussed factors relevant to the existence of a duty of care, this chapter will now move on to consider the standard of care applicable should a duty of care be held to exist. Arguably, shifting the debate away from duty may lead into a highly policy-oriented discussion of the content and standard of care in the particular context.119 For instance, where information is provided by government without fee for the benefit of the public, the courts may impose a relatively low standard of care. This way, the government’s implementation of PSI re-use and open access policy is encouraged, yet the government is not free to release information without consideration of its accuracy. Similarly, where there is no inducement for the user to rely on the information, the standard of care applicable will be relatively low. This lower standard may be compared to the standard of care which may be expected from a commercial information provider. Thus, the fact that information is provided for free, without expectation of profit, is likely to have a very strong impact on the applicable standard of care.
10.5.2.1 Civil Liability Legislation
Section 9 of the Civil Liability Act 2003 (Qld)120 is relevant to establishing whether a person has breached their duty of care. Section 9(1) states that a person does not breach a duty to take precautions against a risk of harm unless:
the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
the risk was not insignificant; and
in the circumstances, a reasonable person in the position of the person would have taken the precautions.
Further, section 9(2) specifies that in deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things):
the probability that the harm would occur if care was not taken;
the likely seriousness of the harm;
the burden of taking precautions to avoid the risk of harm;
the social utility of the activity that creates the risk of harm.
Although users of PSI may expect a government to ensure the information provided is substantially accurate and that reasonable attempts are made to use error-free procedure,121 it should be emphasized that the obligation is no more than to use reasonable care in the circumstances. 122 Certain information, such as geographic information, is inherently inaccurate.123 Often, they are the end products of a complex accretion of data from a number of different sources.124 It is possible for loss or damage to be caused by inherent inaccuracy which would have gone undetected even if the task was carried out competently. As such, a government is not required to ensure that their information is free of error, but rather free of errors which a reasonable public or governmental authority exercising reasonable care in the circumstances would have detected and corrected. Therefore, even if damage is caused by a data error attributable to the government, the action may still fail without the element of fault (i.e. the error was not due to a failure by government to exercise reasonable care). The test is not one of strict liability. In other words, a government is not in breach merely because it releases incorrect information which causes loss to others.
In addition, the courts will take into account the social utility of the activity, i.e. of making PSI openly accessible to the public. If the overall benefit to the community outweighs the harm caused to the individual, it is possible that the injured claimant will not be compensated.125 However, this principle is unlikely to be extended as far as to allow the incompetent handling and dissemination of PSI. Again, it comes down to whether the defendant government information provider has exercised reasonable care in the circumstances.
10.5.2.2 A Standard of Care Particular to Government
Governments are often in a factually different position to private defendants. The reasonable person, placed in the position of a government would be subject to the statutory and financial constraints which might inhibit its conduct.126 Thus the standard applicable to government is what ought a reasonable public or governmental authority to have done in the circumstances.127 Courts have accepted that budgetary, political and other constraints are factors to be taken into account in determining the standard of care and whether it has been breached.128 This is reflected in s 35 of the Civil Liability Act 2003 (Qld),129 which requires consideration of financial and political constrains in determining whether a public authority has breached its duty of care. Thus, if the government lacks the resources necessary to avoid an error, the consequences may be that the failure to do so will not constitute a failure to take reasonable care and therefore no breach will arise.130
These statutory and budgetary constraints, combined with the considerations already canvassed in relation to a duty of care—i.e. the information is made available online to the general public “as is” in an unpackaged form by government without expectation of economic profit—means that even if a duty of care is held to exist in the circumstances, the government will be held to a relatively low standard of care. Arguably, the relevant act or omission would be a breach of a duty of care only if no reasonable authority in the defendant government’s position would have behaved in the same way.131
Provided the government and its agencies or departments, without gross negligence or disregard of the PSI’s accuracy, take reasonable steps and precautions in creating, collecting, analyzing, and disseminating the various and voluminous PSI that is created or held by government departments and agencies, the government is not likely to be in breach of the applicable standard of care.