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Telecommunications, Media And Technology (TMT) Law Update – Volume 34

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Telecommunications, Media And Technology (TMT) Law Update - Volume 34

European Court of Justice invalidates EU–US Privacy Shield

The European Court of Justice (ECJ) recently considered the validity of the European Commission’s 12 July 2016 decision to approve the so-called EU–US “Privacy Shield”: Facebook Ireland Ltd v Maximillian Schrems C-311/18. The Privacy Shield was approved by the European Commission as a mechanism to satisfy a requirement under Article 45 of the General Data Protection Regulation (GDPR), which provides that member states can only transfer personal data to a country outside the EU if that country “ensures an adequate level of protection”. Whilst the US lacks “adequate” data protection laws for EU purposes, the effect of the European Commission’s approval was that data transfers were permitted from the EU to US organisations which had self-certified that they had implemented adequate data protection measures. The ECJ invalidated the European Commission’s decision principally out of a concern that US law enforcement agencies continue to have wide-ranging access to personal data held by US organisations participating in the Privacy Shield scheme, and this was not equivalent to protections afforded to personal data under the GDPR. Specifically, access to personal data by US law enforcement agencies was not subject to the principle of proportionality. The Privacy Shield also lacked a suitable complaints mechanism regarding the processing of personal data. As a result of the ECJ decision, for the time being at least, US corporations (like Australian corporations) will have to commit to the more cumbersome GDPR Standard Contractual Clauses if seeking to receive personal information from Europe.

UK awaits GDPR “adequacy” decision

As part of facilitating the implementation of Brexit, the EU’s GDPR will continue to form part of United Kingdom domestic law until 31 December 2020. After that date, Article 45 of the GDPR will apply to data transfers between the EU and UK, and EU member states will only be able to transfer personal data to the UK if the UK “ensures an adequate level of protection”. As a result, to ensure that personal data exchanges from the EU to the UK will continue seamlessly after 31 December 2020, the UK is currently awaiting a ruling from the European Commission as to whether the UK’s Data Protection Act 1998 is “adequate” for GDPR purposes. On 17 March 2020, the UK submitted that it had a “world-class data protection regime”, which provides “comprehensive protections for data subjects equivalent to those in EU law”. However, on 15 June 2020, the European Data Protection Board wrote to the European Parliament outlining its concerns about an agreement between the UK and US Governments which facilitates access to electronic evidence in criminal investigations, which the Board noted may not be fully compatible with EU primary and secondary law. Concerns have also been expressed about British surveillance laws (e.g. the Investigatory Powers Act 2016) and the UK’s membership of the “Five Eyes” Intelligence alliance. If the UK does not secure an “adequacy decision” by the end of 2020, UK corporations will need to rely upon the existence of “appropriate safeguards”, as defined in Article 46 of the GDPR, in order to continue to freely receive personal data from the EU. This would mean, in effect, that UK corporations (like Australian corporations) would have to commit to the more cumbersome GDPR Standard Contractual Clauses if seeking to receive personal information from Europe.

Medical clinic breached privacy by sending information to wrong email address

The Australian Information Commissioner has ordered a medical clinic to pay compensation to two complainants after the clinic emailed sensitive information to an incorrect email address: SD and SE and Northside Clinic (Vic) Pty Ltd (2020) AICmr21. In a decision delivered on 12 June 2020, the Commissioner held that the clinic’s oversight amounted to a beach of Australian Privacy Principle 6 (Use or disclosure of personal information) because it involved the disclosure of sensitive information without consent and for a purpose not related to the reason for collection. The disclosure also amounted to a breach of APP 11.1 (Security of personal information) on the basis that the mistake was indicative of inadequate security measures to guard against unauthorised disclosure. The Commissioner found that the breach has caused distress and psychological damage to the first complainant, and had negatively impacted on the life of the second complainant. Compensation of $13,400 was awarded to the first complainant and $3,000 to the second complainant was awarded under section 52(1)(b)(iii) of the Privacy Act. The award took account of the fact that it was uncertain whether the email had been opened by the unknown recipient, the respondent had followed up the incorrect address seeking to have the email deleted, and the respondent had also engaged with Google to have the email destroyed.

Penalty for misleading website testimonials

On 22 July 2020, the Federal Court of Australia ruled that an online tasking platform, which helped connect businesses with potential customers, had engaged in false and misleading conduct in contravention of sections 18 and 29(1)(e) of the Australian Consumer Law by publishing what appeared to be (but were not) genuine customer reviews of the relevant businesses profiled on its website: Australian Competition and Consumer Commission v Service Seeking Pty Ltd (2020) FCA 1040. A person who accessed the site in search of a business would be presented with the business’s profile, purported reviews and star ratings. In fact, many of the reviews were created by the businesses themselves through a “fast feedback” feature on the website and which were published automatically by a “default publish mechanism”. The effect of the publications was to create the false impression as to the number of favourable reviews and overall star rating of a business. Jackson J considered that “it may be inferred that the extent of the harm caused to consumers and businesses was significant”. In addition to issuing an injunction and an order for the publication of a corrective notice, his Honour imposed a $600,000 pecuniary penalty pursuant to section 224(1) of the Australian Consumer Law.

ACCC tackles Google on “misleading” consumer notification

On 27 July 2020, the Australian Competition and Consumer Commission (ACCC) announced that it had commenced proceedings against Google Inc. in the Federal Court of Australia, alleging that Google had misled consumers when obtaining their consent to expand the scope of personal information it collects and the use of that information for targeted advertising: Australian Competition and Consumer Commission v Google Inc NSD 816/2020. The issue arises out of a move by Google to combine personal information in consumers’ Google accounts with certain information about those consumers on non-Google sites which use Google’s ad-serving technology formerly known as DoubleClick. The ACCC alleges that a notification from Google to consumers in 2016, inviting them to click “I agree” in order to acquire new optional features, did not adequately disclose the extent of the proposed usage of personal information under the new arrangement. Among other things, the case will raise questions about the meaning of “consent” under the Privacy Act 1988 (which is simply defined as meaning “express or implied consent” but which the OAIC Australian Privacy Principles Guidelines state must be “adequately informed”); it may also raise questions about the effectiveness of the use of “I agree” clicking as a means of obtaining consent (an issue which has been intensely debated in the United States but which has received little judicial attention in Australia).

NSW Tribunal registrar not bound by privacy legislation

On 27 July 2020, the New South Wales Civil and Administrative Tribunal ruled that the Privacy and Personal Information Act 1998 (NSW) had no application to conduct undertaken by the Tribunal’s Registrar: Skiba v Department of Communities and Justice (2020) NSDWCATAD 191. The Applicant had initially sought the review of a decision by the Registrar in relation to an application to amend the name of a party in proceedings before the Tribunal. When that application failed, she applied under Part 5 of the Act for external review of the Registrar’s refusal. Section 6(1) of the Act provides that a court or tribunal is exempt from compliance with the Act’s Information Privacy Principles when exercising a judicial function. In the present case, the conduct under review was that of the Tribunal’s Registrar in circumstances where there were proceedings before the Tribunal that required determination. Senior Member Montgomery described the naming of parties bound by a determination as being “a central and important feature of any adjudicated decision” and, similarly, a refusal to amend the name of a party in proceedings before the Tribunal is related to those proceedings. On this basis, the Tribunal concluded that it had no jurisdiction to review the Department’s decision.

Mobile payment plan was not misleading

On 30 July 2020, the Full Federal Court rejected the ACCC’s appeal against the trial judge’s decision that TPG Internet (TPG), a retailer of mobile, internet and home telephone services, had not engaged in false and misleading conduct when advertising plans that required consumers to make a “prepayment” for excluded services (i.e., for any services the consumers wanted to use during the term of their plans that were not covered by their plans): Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) FCAFC 130. The ACCC’s case was effectively that by using the term “prepayment”, TPG had represented to consumers that they could use all prepaid amounts in full and they would not forfeit any prepaid amounts if they cancelled their contracts. The Full Court upheld the trial judge’s decision that TPG’s use of the word “prepayment” did not convey the meaning suggested by the ACCC, for reasons including that “the word prepayment is silent on how any balance of the prepayment would be treated at the end of the contract”. The Full Court was satisfied that the balance of the information provided by TPG to consumers, including a “Critical Information Summary”, made it clear that any remaining prepaid amounts at the end of the contract would be forfeited to TPG. The case turned largely on the application of familiar principles, but the Full Court took the opportunity to record its disagreement with the primary judge’s suggestion that one test of whether conduct is misleading or deceptive turns on whether a significant number of persons to whom the conduct was directed would be led into error. In the Full Court’s opinion, that test is “at best, superfluous … and, at worst, erroneous”. Where the relevant conduct is directed to the public generally or a section of the public (such as in this case), the appropriate test involves assessing the likely effect of the conduct on ordinary or reasonable members of the relevant class, disregarding reactions that might be regarded as extreme of fanciful.

Privacy Commissioner reminds video teleconference providers of privacy obligations

On 22 July 2020, the Australian Information Commissioner published an open letter to video teleconference providers, reminding them of their obligations to comply with the law and handle people’s information responsibly. The Commissioner noted that the COVID-19 pandemic had resulted in a sharp uptake in the use of video teleconferencing software, and that this had increased risks around the collection and use of personal information. Published in conjunction with six overseas data protection authorities, the letter targeted all video conferencing companies, but was also sent directly to Microsoft, Cisco, Zoom, House Party and Google. The letter was expressed as being a non-exhaustive list of the data protection and privacy issues associated with video teleconferencing, and specifically set out five principles under the headings: (1) Security, (2) Privacy-by-design and default, (3) Know your audience, (4) Transparency and fairness, and (5) End-user control. The letter concluded with the observation that “ease of staying in touch must not come at the expense of people’s data protection and privacy rights”. Our website article provides an overview of the Commissioner’s advice.

CDR expansion into energy sector gathers momentum

On 8 July 2020, the Australian Government released a consultation paper titled Energy Rules Framework in connection with the new Consumer Data Right (CDR), and more specifically in relation to the suitability of the Competition and Consumer (Consumer Data Right) Rules 2020 in their application to the energy sector. The CDR is a data portability mechanism for enabling individual and business consumers to access information about themselves and their service providers’ products, and to direct their existing service provider to share that information with other service providers. As reported in our last update, the CDR commenced in respect of the banking sector on 1 July 2020. The Consumer Data Right (Energy Sector) Determination 2020, made on 26 June 2020, established the scope of the expansion of the CDR into the energy sector. The intention is that the Rules will be regularly updated to reflect the requirements of this and other new sectors in the future. Against this background, the objective of the consultation paper is to seek stakeholder views on the preliminary positions taken by the government, as outlined in the paper, regarding the need for specific sectoral rules for CDR in energy and any necessary amendments to the Rules to accommodate the energy sector.

NSLM report on Telecommunications Interception and Access Act

On 9 July 2020, the Parliamentary Joint Committee on Intelligence and Security released a review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth), which was conducted by the National Security Legislation Monitor (NSLM). The Amendment Act, which as previously reported was passed by Parliament on 6 December 2018, provides police and intelligence agencies with new powers to agree or require significant industry assistance from communications providers, and ASIO is given significant new powers to seek and receive both voluntary and compulsory assistance. The NSLM’s review focussed on whether these expanded powers were proportionate to the threats they seek to meet. Recommendations in the NSLM’s report included the removal of the power of agency heads to issue Technical Assistance Notices (TANs) and of the Attorney-General to approve Technical Capability Notices (TCNs), and to vest these powers in the Administrative Appeals Tribunal. The review also contained a recommendation for the creation of a new statutory office – the Investigatory Powers Commissioner – to assist in approving the issue of TANs and TCNs while monitoring the operation of Schedule 1 and issuing guidelines.

Queensland government agencies urged to guard against re-identification of de-identified public sector data

On 16 July 2020, the Queensland Information Commissioner published a report relating to the risks of re-identification of de-identified public sector data: Office of the Information Commissioner, Queensland, Privacy and Public Data: Managing Re-identification Risk (Report No.1 to the Queensland Legislative Assembly for 2020-21). The report outlined how two Queensland government agencies manage privacy risks when releasing de-identified data. Stressing the need for a “methodical and robust risk management approach when releasing de-identified data on public platforms”, the report made four recommendations to all agencies that publish de-identified data: (1) assign a custodian to each published de-identified dataset; (2) implement and maintain policies or procedures that govern de-identified data releases; (3) regularly review existing de-identified datasets for changes in re-identification risk; and (4) when publishing de-identified data adequately capture, assess and treat re-identification risk.

Privacy risks associated with transport technology highlighted by Queensland committee

On 20 July 2020, the Queensland Parliament Transport and Public Works Committee published the report of its inquiry into transport technology. The inquiry reviewed the current state of Queensland transport technologies, and considered what might be needed in the future as these evolving technologies are introduced onto Australian roads and into Australian airspace. The report gave particular focus to technologies involving connected and automated vehicles and autonomous aircraft (including drones). It noted concerns about the vast amounts of personal information which would be generated by these technologies, and the need to address the security of data systems and privacy protections in general. It recommended that the State government work with the Federal government to develop and implement legal, policy and operational frameworks to deal with privacy breaches involving the tracking and location of individuals; the access by law enforcement agencies to transport data; the potential for privacy breaches involving conversations in vehicles; and generally, to strengthen State and Federal privacy legislation where necessary.

ABS considers privacy issues associated with 2021 census

On 21 July 2020, the Australian Bureau of statistics (ABS) released the findings of two independent Privacy Impact Assessments conducted in relation to the 2021 Census: 2021 Census Privacy Impact Assessment and 2021 Census Administrative Data Privacy Impact Assessment. The key findings are contained in the former document, which incorporated three major structural recommendations and 17 detailed recommendations. The detailed recommendations included suggestions for compliance with Australian Privacy Principles 1 (Openness and Transparency), 3 (Collection), 5 (Notification), 11 (Security) and 12 (Access), and also compliance with the Australian Government Agencies Privacy Code. Much attention was paid to the Census Time Capsule – the Capsule is a full copy of the Census forms which individuals agree may be held by the National Archives of Australia and only released after 99 years. An independent security risk assessment was recommended in relation to the Capsule, together with greater clarity regarding an individual’s access rights. It was also recommended that responses to a new long-term health question be excluded from the Capsule. Whilst accepting all other recommendations, the ABS has rejected the recommendation regarding the exclusion of the health question from the Capsule, on the basis that participation of individuals in the Capsule is voluntary.

WA Government releases draft blueprint on digital inclusion

On 28 July 2020, the Western Australian Office of Digital Government released a draft Digital Inclusion Blueprint on how to make Western Australia more digitally inclusive. Minister for Innovation and ICT Dave Kelly defined the objectives of digital inclusion as “giving people of all ages, cultural and linguistic backgrounds, abilities, income levels and locations, the skills and tools to access and engage with digital technology and online services”, noting further that 11.6% of Western Australian households and 26% of the state’s lowest income earners do not access the internet. The draft blueprint identifies four key priority areas for digital inclusion, namely, digital connectivity, affordability, digital skills, and the design of online government services. Connectivity is seen as a major issue, with many regional communities in the state having access only to costly, poor-quality and low bandwidth internet. Affordability becomes an issue if financial stress is caused to people who rely on government services and support which is only accessible online. A deficiency in digital skills renders individuals more vulnerable to cyber-attacks, online scams and bullying, and misleading news, whilst many technologies “are simply not designed for a diversity of users and skills in mind, and as a result do not empower all Western Australians”. The Government is seeking feedback by 18 September 2020.

Algorithm Charter for New Zealand government agencies

On 28 July 2020, the New Zealand government released a Charter, signed by 21 agencies, relating to the use of algorithms by government: Algorithm Charter for Aotearoa New Zealand. The Charter notes that government agencies use algorithms in a variety of ways, ranging from the simple standardisation of business processes to the complex analysis of large datasets in support of decision-making. Properly utilised, algorithms could help government improve efficiency and eliminate human biases; but improperly implemented, the process could also perpetuate or even amplify bias whilst obscuring transparency and accountability. The Charter is expressed as a commitment by government agencies to carefully manage how algorithms will be used to strike the right balance between privacy and transparency, prevent unintended bias and reflect the principles of the Treaty of Waitangi. Charter signatories agree to assess algorithm decisions, using a colour-coded risk matrix, by specifically considering risks associated with the categories “transparency”, “partnership”, “people”, “data”, “privacy, ethics and human rights” and “human oversight”. The Charter will be reviewed after 12 months to assess whether it is achieving its intended purpose.

Businesses need to take care when collecting COVID-19 data from visitors to their premises.

It has become commonplace during the COVID-19 restrictions for businesses to require contact tracing information from visitors to their premises. Information sought by businesses from visitors may involve just a name and contact details, or it might extend to temperature checks or particulars of symptoms which have become synonymous with the coronavirus. Our website article provides a 14-point checklist for businesses of issues of potential relevance to the collection and retention of such contact tracing information.

Businesses need to take care when collecting health information from their employees.

Many business owners are uncertain about their rights and responsibilities in relation to collecting and handling health information about employees and workplace visitors in the context of the coronavirus pandemic. Common questions include: (1) am I permitted to collect this information; (2) how much can I reveal to others about the information collected; and (3) in the case of employees, does the employee record exemption in the Privacy Act in some way alleviate my responsibilities as an employer. Our website article summarises the key issues.

Fashion

Fashion Briefing: Fashion’s emerging founder-investors are mega-influencers – Glossy

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Fashion Briefing: Fashion’s emerging founder-investors are mega-influencers – Glossy

Fashion’s OG Instagrammers are building empires and, at the same time, growing their influence beyond the industry.

After being schooled for years on the workings of the fashion industry, mega-influencers including Danielle Bernstein (2.7 million Instagram followers) and Rocky Barnes (2.5 million Instagram followers) are graduating to careers less reliant on brands. To take it to the next level, they’re leveraging their prowess and communities, driving deals with effective business partners, and evolving their focus, based on the industry’s direction and their own passions. The emerging results, for both Bernstein and Barnes, are personally-backed brands and investment portfolios set to expand based on early successes.

“The plan is to grow, in a big way,” said Bernstein. “I’m a serial entrepreneur, so I’ll always want to introduce new businesses and categories to my brand. And I’m angel investing and joining the board of advisors for so many companies. That’s the future of the creator economy: harnessing and creating community around your existing followers and then figuring out how to monetize that.”

In 2019, upon inking a licensing deal with New York-based clothing company Onia, Bernstein launched the Shop We Wore What e-commerce site, populated with her expanding We Wore What fashion collection. The collection has been at the center of much recent controversy, due to allegedly including copycat designs. According to Bernstein, she turns to vintage pieces, editorials and travel for inspiration. Bernstein’s also become an investor and advisor for hair supplement company Wellbel and CBD brand Highline Wellness. In May, she became active on Patreon, offering exclusive video content to paying members of her community.

In addition, Bernstein heads up We Gave What, a charitable arm of her company. In 2019, she launched tech company Moe Assist with a project management tool for influencers, though its social accounts have been inactive for two-plus months. When asked for comment, a spokesperson said Moe Assist is in a new fundraising stage and “should have news to share shortly.”

Barnes, meanwhile, partnered with Reunited Clothing to come out with her apparel company, The Bright Side, in December. And she recently became a first-time investor-advisor, for 6-month-old SMS shopping platform Qatch. She announced the partnership in an Instagram post on Monday.

“I feel like a grown-up,” she told me, before confirming that she’s interested in investing in more companies. “Diversifying my business has been a really big [focus] for me. I interact with so many different brands and companies on a daily basis. Using my market knowledge in ways that can help other people is fulfilling and exciting for me. And I especially love when I can be involved with a company from the beginning.”

Building on their content creator role in fashion is a natural progression, both said. And it plays into many industry shifts: On its way out is fashion’s DTC era, largely fueled by Harvard Business School and Wharton graduates using a plug-and-play, marketing-heavy business model to launch brands. More consumers are prioritizing quality, differentiated products, making industry experience and style expertise greater virtues among insiders. At the same time, consumers are increasingly taking shopping cues from relatable, platform-native celebrities, moving on from authoritative editors and more closed-off celebrities.

The school of collaborations
The collaborator-to-founder shift isn’t the newest thing. Other longtime influencers that have made the pivot include Arielle Charnas, with Something Navy; Aimee Song, with Song of Style; Rumi Neely, with Are You Am I; the list goes on. Most often, the names behind these brands don’t have formal design and business training — for her part, Bernstein said she “went to FIT for two years, but didn’t study design and production.” But, for years, they’ve worked hand-in-hand with companies to bring their visions to life. And along the way, they’ve come to know what resonates best with their vast communities, from marketing to merchandising to product.

“My most successful collaborations have led to the largest share of my business,” said Bernstein.

Bernstein’s partnership with Onia came out of her swimwear collaboration with its Onia brand, in May 2019. On the collab’s launch day, it drove $2 million in sales, and an included style was the brand’s best-selling swimsuit of the summer. Also in 2019, Bernstein collaborated with Joe’s Jeans on multiple denim collections. The launch day of the first, in March 2019, marked Joe Jeans’ best sales day to date, said Jennifer Hawkins, the brand’s svp of marketing and innovation on a Glossy Podcast in October.

Both served as learning opportunities for Bernstein, who said — as with all of her collaborations — she took full advantage: “It was never just [uploading] a post, and then I went away,” she said. “I always wanted to know how the performance was, in terms of sales, and asked questions: ‘Can you share the analytics?’ ‘What did you see on your end?’ ‘What worked and what didn’t work?’”

She added, “They provided a ton of data, in terms of what I could sell and what the market was missing.”

Likewise, she said, she always followed and shared with partner brands the Instagram Insights and Google Analytics numbers around her corresponding posts. Doing so gave all parties a 360-degree view of a collaboration’s success.

“I’ve learned what works for brands so they get the largest return on their investment,” she said.

For example, she’s learned to lean on her audience’s tastes, versus rely on her own, by allowing them to offer feedback throughout the design process through Instagram. That’s included the selection of fabrics and colors and the fit sessions with models. She only spotlights her favorite styles and what she wears in her own social posts, as a play for authenticity.

According to Bernstein, the collaborations with brands allowing her to play an advisor role — by guiding them on influencer partnerships, marketing and messaging — are always more successful. And they often turn into longer-term investment or advising partnerships.

Bernstein chose to work with Onia on the We Wore What collection based on its prioritization of quality and fit, and ability to keep to affordable retail prices. Currently, prices on the We Wore What site range from $20, for a scrunchie, to $228, for a vegan leather jumpsuit.

Barnes was also ready to go out on her own after finding the right partners. Her Reunited Clothing partnership came after working with the company to create her Express product collaboration, in early 2019. On its first-quarter 2019 earnings call, interim CEO Matthew C. Moullering said the company had seen “a strong start to [the] collection both in-stores and online and [believed] it [was] helping to introduce the brand to a new audience.”

“Having your own brand is terrifying,” Barnes said. “But I like that I’m in control and not so dependent on doing the day-to-day posts promoting other companies.”

But, she added, “One of the huge benefits of working with all these different brands on all these different projects is that we’re constantly getting introduced to new people and seeing who we like working with.”

Barnes’ internal team consists of her husband, who’s the “business brains” of the company, she said, and an assistant.

Like Bernstein, Barnes stressed the need for outside support in the production process: “I love such quirky, crazy things, but I also understand what is realistic for a buyer and a normal girl buying clothes,” she said. “The experience of taking ideas and making them work for a bigger group of people was my learning curve going into a business. It’s important to have a good, diverse team around you who can make your idea something that’s marketable.”

For its part, We Wore What has seen “200x growth in the last year,” as it’s expanded to new categories, Bernstein said. Its ready-to-wear, swimwear, resort wear, and activewear are now sold in “dozens and dozens of retailers around the world,” many of which offer style exclusives; they include Revolve, Bloomingdale’s and Intermix.

“Launching my own brand was putting the proof in the pudding for the power of influencers, when it comes to selling product,” she said.

As with her Joe’s and Onia collaborations, Bernstein sees a rush-to-buy with We Wore What product drops. “The first 10 minutes is when we see the biggest portion of our sales for the entire collection,” she said.

To build buzz, Shop We Wore What’s Instagram account (213,000 followers) features in its Stories the line sheets of the soon-to-launch styles, allowing customers to thoughtfully plan their buy. Doing so has led to lower return rates, Bernstein said. The company’s marketing mix also includes text messages and emails, VIP discounts and user-generated content.

Bernstein has a staff of four people, which include a chief operating officer and a brand coordinator. She said she prioritizes establishing partners with skills and expertise she doesn’t have, so she can learn from them along the way. Ideally, she’d have learned about tech packs, fittings and production logistics in school, but she’s training as she goes.

Moving forward, Bernstein said she plans to extend the size range of We What What styles, which are currently available in sizes XS-XXL, and launch collections with collaborators to sell exclusively on her brand’s DTC site. In addition, she aims to eventually open “experimental” physical retail, starting with pop-ups.

As for her investment-advisor portfolio, she’s currently in talks with companies centered on the concepts of “being able to sell your closet and even rent your closet.”

As for Barnes’ Bright Side, she said it will hit “a bunch of new retailers this year.”

Moving beyond fashion
Up next for Shop We Wore What is a new product category that will hit before the holiday season. Considering her passion for home furnishings and decor — based on her @homeworewhat Instagram account (7,500 followers) and recent press coverage of her new SoHo loft — it’s a safe bet that a home-related category is in the cards.

Likewise, Barnes hinted at a future Bright Side home collection, following her recent, two-year home remodel, which she’s getting set to debut on social media.

Lifestyle brands are the clear goal.

“I would love to be a combination of Rachel Zoe and Martha Stewart, just having my hands in everything and creating this really beautiful lifestyle where you can entertain and be fashionable,” Barnes said. “That’s kind of the dream.”

She added, “Fashion is where my heart has always been, but I’m growing as a person and there’s so much more in my life right now: my family, my home — and I’m getting older, so beauty [and skin care] makes sense now. Sharing all of that with everyone seems so natural; it would be weird if I only did fashion.”

As for future investments, though Quatch fits perfectly into Barnes’ world, with its fashion-tech focus, she said she’s open to investing in any company where she sees opportunity.

What’s more, she has no plans to retire from social media, though she has yet to tackle TikTok.

“People’s need for content has only increased, so I’m posting and creating content more than ever,” Barnes said. “But I’ve learned to become more of a hard-ass with brands. The companies that are willing to work with me and [facilitate] the most like authentic relationship possible are the ones I move forward with.” Reunited can attest.

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South African bowler Tabraiz Shamsi: Amateur magician; professional tweaker-trickster

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wwe crown jewel results

Harry Potter fans would know this as the Room of Requirement; muggle cricketers dub it backend operations. Tabraiz Shamsi is an amateur magician. He is also a professional worrier of why some googlies don’t turn as much as he’d want, in cricket.

For the Proteas chinaman bowler, the room of requirement from where he could pull out any game data, used to be the dependable ‘P Dawgg’, former South Africa analyst Prasanna Agoram combining his ken and nous and fast processing laptop. Prasanna enviably would be privy to the trial (and error) runs of Magician Shamsi’s classical Tourniquet coin-drops with the cricket ball. Which was the unglamorous, quirk-in-progress of his left-arm leg spin.

At the stroke of 1 a.m, oftener than not, Shamsi would come looking for what he called ‘shit balls’, in what Prasanna reckoned were otherwise impressive, less-than-run-a-ball bowling spells. This was that one specific delivery that went for a six to sully Shamsi’s 4-0-22-3 T20 match figures. It was the bugs, not the features, that the 29-year-old would cussedly fixate on.

“I’d never point out that he’s missing his length or the back foot was collapsing, at 12.30 in the night. Because Shamo, you see, would then take me to the nets at 1 a.m! He’s capable of calling the manager and telling him at that hour that I have to practice NOW. You had to be careful about what you told him at 1 a.m,” Prasanna laughs, underlining ungrudging admiration for the Proteas spinner’s dedication.

A series of self-recriminations in staccato would follow the ‘Bhai, can you please put on the shit-ball that went for a six.’ “He’d curse himself watching replays: ‘no good, not international class, garbage ball.’ If you try telling him it is ‘well-played’ from Jos Butler and not exactly a poor ball, he’d be hard on himself and say, ‘This is nonsense from Shamo’,” Prasanna recalls of his exacting standards.

For, the South African World No 1 spinner – who lends mystery to the Saffer bowling attack if not entirely upstaging their thunderbolt battery of pacers – knows that all sleights of hand, can come with uncontrollable twists of fate. Both in magic, and cricket.

A young boy of 15 at Paarl who tried to bowl quick like Wasim Akram and Chaminda Vaas, had wound up as a left arm leg spin all-sorts, after years of compulsive fine-tuning. And taken failures and omissions into his run-up’s five-strides.

***
Born in Johannesburg, Shamsi wanted to be a super quick in the land of bolting pacers. His progress though didn’t follow the regular route of being identified early for First teams at schools and playing age-groups. Also, he was told he wasn’t quick enough.

Speaking to the podcast ‘Pavilion conversations with C.S’ recently, Shamsi recalls his earliest break at age 15, bowling alone in the school nets, with the cricket coach’s office nearby. The coach would stop by and ask him what he was upto. “I said, ‘Sir, the U15 trials are coming up. I want to make the Paarl team wanna progress’. He told me – you are not gonna make it. But even there I thought he realised the type of character I am. That was just his way to push me even harder. He said ‘Don’t waste your time practicing coz you won’t get selected. And i was even more driven,” he told the host Mr. Chiwanza.

Shamsi would end up with most wickets that tournament, make the B team (“Still not A”), followed by U17 and U19s for the local side. “I didn’t get selected for SA U19s or invited to camps. My past was little different. In fact I got my opportunity at semi-pro cricket because one player got selected for U19s and went to the World Cup. A spot opened up because of him. I just knew that was my chance I had to make it work. And fortunately I performed. When he came back from the World Cup, he couldn’t get into the team,” Shamsi recalled.

It was around 2015-6 after he had zeroed in on Chinaman as his chosen bag of assorted tricks in franchise, provincial cricket, that he first sought out Prasanna, while closely following senior leggie and his ‘bruv’ Imran Tahir. Prasanna promised to compile a list of outstanding T20 spinners of that year for comparison, when Shamsi asked him: ‘Why just T20? I want to play all formats.’

Prasanna promised to revert after two days on Friday, and on Monday, he had a message from the hotel lobby at 10.30 am that Shamsi was waiting. “Normally, cricketers will turn up at 11.30, if the analyst time is 10.30. This guy made me abandon my breakfast and was ready with a list of questions. I’d prepared a presentation earlier on bowlers like Warne, Ajmal and Herath and how they bowled on unhelpful tracks, what lengths to bowl at what stage, and offered to email it to him. He tells me: “No. I’ll write it down in my own words. I don’t want shortcuts.”

Shamsi would sit and plan for every batsman – his notes diary in tow, even on matchdays when he wasn’t in Playing XI. And once he would spill the beans on why brainwaves struck him at 1 a.m – his preferred time to brainstorm with the analyst. “He once told me he eats my brain at that hour, so that he gets dreams of how to get a Kohli or Sharma out, so he can wake up next day he can execute the training plans.”

Once he came angsty about his googlies not spinning as much as Kuldeep Yadav or Brad Hogg. “When he said it’s not spinning, I told him Shamo’ you didn’t bowl any googly. That’s it. He hit the nets and bowled 1000 googlies non-stop and then said, he’s now hitting the groove.”

But nothing had prepared Prasanna for Shamsi’s mic-drop in the pink ball Test against Australia where the Chinaman was fancied as it’s tougher to spot the wrist in the Adelaidian twilight. Shamsi was instructed to block for 20 balls and support Faf as Proteas were hanging on at 210-9. Shamsi would announce he would score a 50 – against Pat Cummins, Hazlewood and Starc. Finally he was unbeaten on 18. “He came back and blustered ‘If someone had suported me, I’d have hit that 50’.”

***

This constant state of ‘upbeat’ – talking up his own abilities to score a 50 coming at No 11 against Cummins & Starc – might well be the sort of swag and sizzle that the staid South African teams need at ICC tournaments. For a large part of the last 30 years, the Proteas have entered tournaments with burdensome tags of ‘talented’ and ‘favourites’ and come up short. The tasteless mocking glee of choke-jokes has run its course, and being light-weights might well prove liberating.

For all their botched run chases in 50 overs, South Africa can stake claim to the historic highest run-rally to 438. And the innings-interval remark of Jacques Kallis, the most expensive bowler in Australia’s 434, who had quipped “Guys, I think we’ve done a good job. They’re 15 runs short.”

Shamsi likes his boisterous one-liners too. And his showboating and noisy over-the-top pantomime aggression.

After starring in a T20 win against Ireland earlier, he would tell South African journalist Telford Vice, “In my young age, I started as a seamer but was told I’m not quick enough to be a fast bowler so became a spinner. Grew up watching Andre Nel, Dayle Steyn, Allan Donald, that’s where aggression comes from.”

He knows it’s a double-edged sword and a bowler can be packed off, but it can disrupt batters too. “Whatever it takes to win. I’m in charge of making our presence felt on the ground and ensure the team never backs down from opponents,” he added.

Shamsi recently responded to Darren Sammy’s tweet on who would win the T20 World: “Come on skipper, you know the answer to this already…. South Africa of course.” Scroll down the thread, and some mocker mangles his grammar: “are you comedy me”. A good laugh was had by all. Pressure punctured.

“He’ll say things like ‘I’ll single-handedly win this,” Prasanna says, “Whether it happens or not, it gives confidence to people close to you – your team.”

***

Shamsi’s made it to the top of rankings, taking 49 wickets from 42 T20Is, at a strike-rate of 14.8 and averaging 6.6. There’s been a bucketful of wickets in franchise cricket and The Hundred. He’s 31 and has bidden his time to make it to the national team, and another 4 years into the Playing XI. The Wicket then, is an ocassion to celebrate, he reckons.

“I’m a human being and not a robot and want to make long-lasting happy memories that will live with me forever long after my career is done and that is the reason behind my celebrations,” he wrote in a social media post once. “My celebrations mean no disrespect to the opponents. They help me enjoy myself, switch on and off during the game to release some pressure, and put some smiles on people’s faces too.”

There’s the “Shoe” that got going in the West Indies, where within seconds of a wicket, he’d shrug his ankle open from the left shoe and pretend to speak on a landline receiver. Then there’s the bus driver-celebration with Carlos Braithwaite and something about a birdie’s chirp. A flying kiss to the wife and a mock punch to a fielder like a streets hip hopper. Though the untold back-stories raise anticipation of what he’ll whip up next.

Prasanna says there can be new hairdos before every game, sometimes “thrice a week”, and that magic tricks and celebrations are practiced as diligently as the googlies and top-spinners. “Not only will he say, ‘Tomorrow I’ll get Ben Stokes out.’ He’ll also ask you to watch the celebration.”

Amongst his most famous on-field triumph-trumpetings after snaring a batter is pulling a wand out of a hankey – a magician’s staple. But never in cricket, where magic’s glossary is slathered on the slow bowlers and their guiles.

T20 commentators love his name, lending it a South American football match caller’s vroom: “Shaaa-mzzziii”. But it’s the celebrations that can befuddle the most trained of raconteurs. When Shamsi got Wihan Lubbe in the Mzansi Super League, the commentator would build up to the expected celebration. “Is the shoe coming off? No. Look at that…it’s magic,” he would chortle. Cricket was momentarily put to the side, before he resumed confused: “That was a legspinner…… Beg your pardon… Offspinner… That did the trick..” Shamsi’s delivery had jagged away from the leftie and the post-celebration left the commentator’s mind in knots.

Appearing on the Dan Nicholl Show in SA, Shamsi had pulled one of those ‘I can guess the card pulled out of the deck after being shuffled’ tricks. It was ace of spades.

Magic had been his fallback option till age 16, he’d say. “So if cricket doesn’t work out… I ll practice magic for 10 years… But naa… It’s gonna work out.. I’ll bamboozle you all,” he would say, charming the audience.

At the start of the magic gig, Shamsi had handed a sealed envelope to the host. “Sealed with Proteas saliva” Nicholl had joked with whispered reverence. The distracting envelope had briefly become the centrepiece, and Shamsi would explain later:
“You satisfied you made me stop shuffling when u wanted me to? Funny thing is…You thought you were in charge of the trick… Telling me when to stop. Even though it’s your show, I’m running this party… I was controlling you and I actually made you stop at a specific point. …And to prove that I had written down something in this envelope before starting the trick..” It read Ace of Spades.

Shamsi’s assortment of Chinaman, is a bit like that: planned spontaneity. Allan Donald in a video while introducing him to RCB few seasons ago, said: “Left arm, tweaks it this way, tweaks it that way, then tweaks it the other way.” Offering attacking options in the middle overs, with his ability to turn ball both ways, and variations of top spinner, the side spinner and googly, makes him effective against both lefties and righties. The constant explosion of activity – before, right after when appealing (he once did a spot of bhangra jumps, then sat down altogether while pleading a decision) and when celebrating, is in fact the sealed envelope distraction.

Yet, bad days are not unfamiliar to Shamsi, and his role can be flexible like the magician’s wand, like in the West Indies, to keep things quiet, contain against the big power hitters. “There’s two ways to skin a cat… Not really fussed about not getting wickets in WI. That was a different role,” he told the media later.

Sometimes the magic is in not believing the flimflam and sleight. Like rankings. “I don’t lose sleep over being No 1. Obviously it’s a nice feeling to be on top. But I’ve said it before and I truly mean it. I don’t even think I’m the best bowler in our team. We have some great bowlers in the unit. Rankings don’t mean anything if a batsman gets hold of you. I don’t even know how those rankings work honestly.”

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Five great Twenty20 World Cup upsets

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