Technology, media and telecommunications law update – April 2016

Technology, media and telecommunications law update – April 2016

Technology, media and telecommunications law update – April 2016

Key developments during April 2016 in the areas of Technology, Media and Telecommunications are summarised as follows.

Copyright in Russian television broadcasts infringed by a party which facilitated online access for Australian viewers
In Connect TV Pty Ltd v All Rounder Pty Ltd (No 5) [2016] FCA 338, Russian broadcasters established that they owned copyright subsisting under Australian law in broadcasts of television channels which originated in the Russian Federation.  All Rounder was found to have infringed that copyright by facilitating online access to the broadcasts by viewers in Australia by providing set-top boxes and various access codes in exchange for a fee.  Connect TV also claimed copyright infringement against All Rounder on the basis that it had exclusive rights to the broadcasts in Australia.  However, Connect TV failed to establish the subsistence of that copyright or that it was the broadcasters’ exclusive licensee in Australia.  The licence agreements under which Connect TV was the licensee were not conclusive of the question.  Those agreements were not with the Russian broadcasters themselves and Connect TV failed to establish that the licensors under the agreements (which were in effect the sub-licensees of the broadcasters) were in fact authorised to grant the exclusive rights which Connect TV claimed it held in the broadcasts in Australia.  A series of letters which Connect TV sought to rely on as evidence of its rights in Australia were held to be inadmissible.

Public interest and privacy in restraining publication of criminal interview recordings in the media
An application under section 464JB of the Crimes Act 1958 (Vic) by Nine Network Australia for permission to publish an audio-visual recording of an interview between police and “Russell Street bomber” Craig Minogue in 2012 has been rejected by the Supreme Court of Victoria: An Application by Nine Network Australia Pty Ltd [2016] VSC 158.  Whilst Forrest J accepted that public interest in the case remained high, this would not be enhanced by the release of an interview which Dr Minogue said he would not have given if he had known it would be published.  His Honour observed that it was in the public interest that “those being interviewed about criminal offences feel that they can answer questions freely”, adding that “what might make for good Sunday night entertainment does not necessarily serve the public interest”.

Opposition dismissed to the BBC’s patent application covering a system for restricting access to downloaded broadcast content
Foxtel unsuccessfully opposed a patent application filed by the BBC for an invention which involves making broadcast audio-visual content available for download to users on a scheduled basis before a scheduled broadcast time.  The invention prevents individual users from accessing the downloaded content before that scheduled time: FOXTEL Management Pty Ltd v British Broadcasting Corporation [2016] APO 19.  The claims were held to involve an inventive step even though the common general knowledge included selecting and downloading electronic files over the internet, the use DRM (including “can’t play before” restrictions) in relation to the online delivery of music and video and the playback or display of downloaded content.  The claims were also held to satisfy the manner of manufacture requirement of patentability on the basis that the substance of the invention involved a technological solution (DRM, a personal computer and the internet) to a technological problem in the context of the delivery of broadcast content to users in the manner claimed.

Contentious contract with website advertiser
The Victorian Civil and Administrative Tribunal has ruled that a company entered into a contract with a website advertiser as a result of misleading and deceptive conduct by a business broker: Triple A Events Pty Ltd v Macquarie Commercial and Business Sales Pty Ltd [Civil Claims] [2016] VCAT 486.  The Applicant’s allegations revolved around representations that its business could be sold in 6 weeks of signing the contract.  The Tribunal found that there were no reasonable grounds for making the representation and that the Applicant had relied upon the representation when deciding to enter in to the contract. 

Constraints on media industry employee
On 19 April 2016, the Supreme Court of New South Wales issued a restraint preventing a senior technology staff member at SBS from entering into a contract to provide his services to the ABC, together with a restraint on the disclosure by the employee of SBS’s confidential information: Special Broadcasting Services Corporation v Andrew Corbett [2016] NSWSC 461.  The dispute arose as a result of the employee’s decision to resign from SBS prior to the expiry of a fixed term employment contract, and his subsequent decision to provide services to the ABC through a corporate entity which he controlled. 

Public interest immunity and tribunal evidence
On 20 April 2016, the Federal Court of Australia ruled that common law public interest immunity applies in respect of oral evidence presented before the Administrative Appeals Tribunal: Commissioner of Police, New South Wales v Guo [2016] FCAFC 62.  A detective had declined to answer certain questions put to him in the course of proceedings on the grounds of public interest immunity.  The Court concluded that common law public interest immunity had not been displaced by the provisions of the Administrative Appeals Tribunal Act relating to oral evidence and that the common law doctrine applied to bodies other than courts, including tribunals.

Whistleblowers in the Australian Capital Territory
The Supreme Court of the Australian Capital Territory dismissed an application to dissolve an injunction previously granted which prevented the Plaintiff being stood down from his employment as CEO of a rugby club after he had raised concerns about the legality of a contractual arrangement between the club and the University of Canberra: Jones v University of Canberra and Ors [2016] ACTSC 78.  The Court accepted that the Plaintiff’s disclosures to the University, which caused the University to threaten the club with legal action for non-compliance with the contract, were made under the Public Interest Disclosure Act 2012 (ACT) which enables persons to make disclosures of conduct that is improper (sometimes known as “whistleblowers” legislation).  Specifically, the Court found that the Plaintiff had reasonable grounds for believing that “disclosable conduct” had occurred, based on an independent KPMG report, and it further accepted that there was a causal connection between the disclosure and the subsequent detrimental action taken against the Plaintiff.

Misleading conduct by digital advertising service
On 27 April 2016, the Australian Competition and Consumer Commission accepted a court enforceable undertaking by a digital advertising service to refrain from entering into contracts with potential advertisers containing certain rollover provisions.  Multimedia International Services Pty Ltd (trading as The Community Network) sells digital advertising to small businesses.  The ACCC was concerned that it had failed to adequately disclose to some of its customers the fine print which qualified the roll-over clause in its standard contract, and that this had the potential to be misleading or deceptive to potential advertisers.  Specifically, the front page of the contract stated that the contract term was two years, but the fine print on the back stated that it would automatically roll over beyond that period unless the advertiser provided 12 months’ notice of discontinuance.  The company undertook to refrain for a period of 5 years from entering into any contract with advertisers which contained an automatic rollover clause unless certain conditions were met, such as the requirement to bring the notice qualification to the attention of the advertiser and the inclusion of a provision permitting termination by the advertiser up to 2 months prior to the renewal period.

Overseas supplier of software bound by the Australian Consumer Law
The Federal Court recently found that the Australian Consumer Law applied to an overseas online supplier of software, even though the supplier supplied the software under contracts governed by foreign laws: Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196.  Our full report concerning this decision can be seen here.

Legislation covering trials of automated vehicles in SA
Further to our recent article concerning the privacy and other regulatory challenges posed by the introduction of automated vehicles in Australia, the Motor Vehicles (Trials of Automotive Technologies) Amendment Act 2016 has come into force in South Australia.  This Act amends the Motor Vehicles Act 1959 (SA) to permit trials of automotive technologies, sometimes referred to as “driverless cars”.  The legislation gives the Minister the power to authorise trials, subject to being satisfied as to public liability insurance arrangements and subject to the Minister publishing details of the trial on a website at least one month beforehand.  The amendments make it an offence for a person to interfere with a trial, including any interference with an electronic signal being sent to or from the equipment or device which is the subject of the trial.  This is the first scheme in Australia providing for such on-road automated testing.

Workplace privacy in Australian Capital Territory
On 7 April 2016, the ACT Legislative Assembly passed the Workplace Privacy Amendment Act 2016.  The legislation amended the  Workplace Privacy Act 2011, as well as the Magistrates’ Court Act 1930 and the Work Health and Safety Act 2011.  The legislation permits a Magistrate to authorise limited surveillance of an employee outside of the workplace where there is a suspicion of unlawful activity involving the use of the employer’s resources for non-work related activity.  The legislation requires the Magistrate to consider whether it would be more appropriate for the activity to be investigated by a law enforcement officer, and to appoint a suitably qualified “surveillance supervisor”.  Authorised surveillance is restricted to activities conducted in public areas. 

TPP impact on the telecoms, IT industries
Details – On 11 April 2016, the Department of Foreign Affairs and Trade published an analysis of the regulatory impact of the Trans-Pacific Partnership on Australia: Trans-Pacific Partnership: Analysis of Regulatory Impact – Department of Foreign Affairs and Trade
Outcome/recommendations – Amongst various key services sector outcomes, it was identified that telecommunications services stood to benefit from the phasing out of foreign equity limits in Vietnam’s telecommunications sector, and also from the ability to apply to wholly-own telecommunications ventures in Malaysia.  New opportunities were also identified for Australian businesses to bid for government procurement services contracts in the computer and telecommunications sectors in a range of countries, including Brunei Darussalam, Canada, Malaysia and Peru.

Modernisation of consumer protection laws – OECD
– The OECD has issued a Recommendation on Consumer Protection in eCommerce
Outcome/recommendations –The OECD’s Recommendation urges member nations to modernise their consumer protection laws to address new risks posed by online commerce and it emphasises that people buying online are entitled to the same level of protection as with conventional transactions.  It was suggested that particular attention be given to the adequacy of consumer protection laws in addressing online apps and services offered for free in exchange for gaining access to a user’s personal data.

Review of Australian Consumer Law – CAANZ
– Consumer Affairs Australia New Zealand (CAANZ) is undertaking a review of the Australian Consumer Law.  It is intended that an interim report will be released in the second half of 2016, and a final report will be provided to the Legislative and Governance Forum on Consumer Affairs by March 2017.
Outcome/recommendations – The Australian Consumer Law underpins a range of TMT transactions.  The review is of particular significance as it is the first review of the Australian Consumer Law since the law commenced on 1 January 2011.  Public feedback is presently being sought on a range of different aspects, including whether the law is meeting the objectives of the National Consumer Policy Framework, whether the legal framework is adequate and effective, whether the administration enforcement provisions require revision and whether the law is adequate to deal with emerging consumer policy issues including telemarketing, online shopping and consumer rights is respect of data access and disclosure.  Other proposed changes to the Australian Consumer Law are discussed below.

Review of Australian Consumer Law – Productivity Commission
Details – The Australian Government has commissioned the Productivity Commission to undertake a study of the enforcement and administration arrangements underpinning the Australian Consumer Law.
Outcome/recommendations – On 29 April 2016, the Australian Government commissioned the Productivity Commission to undertake a study of the enforcement and administration arrangements underpinning the Australian Consumer Law.  The enquiry will focus on the effectiveness of the “multiple regulator” model in supporting a single national consumer policy framework and will make findings on how this model can be strengthened drawing from the experience of regulators in the period since the ACL commenced in 2011.  The Commission has been asked to consult widely with Commonwealth State and Territory governments, consumer representatives and the business community, and to provide a final report by March 2017.

Review of Use of Big Data
– On 18 April 2016, the Productivity Commission released an issues paper entitled Data Availability and Use.
Outcome/recommendations – In response to terms of reference issued by the Treasurer on 21 March 2016, the Issues Paper raises questions regarding the  benefits and costs involved in increasing the availability of public sector data to other public sector agencies, increasing the availability of private sector data for other private sector firms, improving individuals’ access to public and private sector data about themselves and standardising the collection, sharing and release of private sector data, whilst maintaining a balance between commercial interests and privacy protection.  A final report is anticipated within 12 months. 

Compliance with Queensland information legislation
Details –
On 21 April 2016, the Office of the Information Commissioner (Queensland) provided a progress report to the Queensland Legislative Assembly on the adoption by the Department of Education and Training of recommendations tabled in 2013/2014 regarding compliance by the Department with the Right to Information Act 2009 (Qld) and the Information Privacy Act 2009 (Qld).
Outcome/recommendations – The report concluded that all 19 recommendations had been fully implemented in relation to governance, management and monitoring of the right to information and information privacy, including the establishment of policies and procedures, the implementation of strategies, enhancement of the website, improved general procedures and the implementation of ongoing strategies to ensure the inclusion of privacy principles in new and revised policies, procedures and forms.

Cyber Security Strategy Report
Details –
On 21 April 2016, the Prime Minister announced the Federal Government’s Cyber Security Strategy, designed to enhance Australia’s ability to protect itself and to be more resilient to malicious cyber activity.
Outcome/recommendations – The strategy incorporated 33 separate initiatives including the establishment of a “national cyber partnership” between government, researchers and business; the development of “strong cyber defences” to better detect, deter and respond to threats and to anticipate risks; the creation of a “cyber ambassador” to work with international partners; and the creation of more Australian cyber security professionals through the establishment of Academic Centres of Cyber Security Excellence in Universities.

Guidelines for disrupting online services
Details –
In April 2016, the Commonwealth adopted whole-of government guidelines relating to the Government’s power to interrupt or disrupt access to online services.
Outcome/recommendations – The guidelines relate to the Government’s ability to invoke section 313(3) of the Telecommunications Act 1997 to require carriers and carriage service providers to provide assistance in the enforcement of criminal law and in the safeguarding of national security.  The new guidelines set out “good practice” for agencies to follow in making a section 313(3) request and are designed to strike a balance between transparency and accountability on the one hand, and operational needs on the other.

Privacy Compliance by General Practitioners
On 28 April, the Office of the Australian Information Commissioner published an assessment of the compliance by 40 randomly selected general practitioner clinics with the requirements of Australian Privacy Principle 1: General Practice Clinics: APP 1 Privacy Policy Assessment.  APP 1 deals with the requirement to have a clearly expressed privacy policy. The assessment concluded that whilst 36 of the 40 clinics had a privacy policy, numerous deficiencies were revealed in those policies.  Deficiencies included a lack of information about how to make privacy enquiries or to pursue a complaint; how to request a correction; and widespread failure to advise on matters such as how information is collected, how it is held, the purposes for which it may be used and whether it might be disclosed overseas.  Australia’s peak medical bodies subsequently issued a joint announcement that they would work with their members at a practical level to improve compliance.

Updating intellectual property laws
On 29 April 2016, the Productivity Commission published a draft report entitled Intellectual Property Arrangements.  The draft report will be finalised following further public consultation and input.  The draft report recommends improvements to Australia’s copyright and patent arrangements.  The report complains that the Australian patent system grants protection too easily, allowing a proliferation of low quality patents and frustrating the efforts of follow-on innovators.  It also states that Australia’s copyright system has progressively expanded and protects works longer than is necessary to encourage creative endeavour.  The report acknowledged, nevertheless, that many of Australia’s IP arrangements are locked in by trade agreements, thus frustrating “much needed change”.

Document storage giants unite
Two of the biggest names in document storage and information management are Recall Holdings and Iron Mountain Inc. The Australian Competition and Consumer Commission inevitably had concerns when it was announced that Iron Mountain proposed to acquire Recall, thus lessening competition for physical document management services.  Ultimately, however, the ACCC decided not to oppose the acquisition after Iron Mountain provided a court enforceable undertaking to sell most of its Australian business.  Iron Mountain will retain only its local records management customers in the Northern Territory and its data protection business.  The implications of the acquisition remain under consideration by competition authorities in the United States, the United Kingdom and Canada.

Progress of data breach reporting legislation
Obstacles appear to be emerging in relation to the introduction of legislation requiring mandatory data breach reporting, notwithstanding the circulation in December 2015 of a draft bill to amend the Privacy Act 1988.  On 21 April 2016, Shadow Attorney-General Mark Dreyfus QC expressed dismay that, as a consequence of the looming double dissolution of Parliament, the legislation would not be tabled in the current session.  Meanwhile the Australian Bankers’ Association, among others, has criticised elements of the draft bill, including the vagueness of when the reporting obligation would be triggered, the narrow window for reporting a breach (30 days) and the risk of “notification fatigue” amongst customers, concluding that the legislation could dampen public confidence in the digital economy.

Guide to Data Breach Response Planning
Significant in view of the stalled mandatory data breach reporting legislation, the Office of the Australian Information Commissioner released on 11 April 2016 a Guide to Developing a Data Breach Response Plan.  The Guide, which is not legally binding, outlines the steps which should typically be undertaken in the event of a suspected data breach.  The Guide refers to the strategic content of a response plan; the establishment of a response team; and the various actions to be undertaken by the response team.  The Guide includes a “data breach response plan quick checklist”.

Development of Internet Standards
On 27 April 2016, the Prime Minister announced the establishment of an Industry 4.0 Taskforce to work with the Australian Advanced Manufacturing Council to facilitate Australian involvement in deliberations over the establishment of global standards for the industrial internet.  This followed the announcement in March 2016 that the German Platform Industry 4.0 Group and the US Industrial Internet Consortium would collaborate in the setting of global standards for the “Internet of Things” and the development of a digitalised economy for international businesses.

Privacy and Anti-Money Laundering legislation
On 28 April 2016, the Australian Transaction Reports and Analysis Centre (AUSTRAC) finalised and published a Privacy Impact Assessment on draft amendments to chapter 4 of the Anti-Money Laundering and Counter-Terrorism Financing Rules.  The AML/CTF Rules allow reporting entities to collect customer information from sources other than the customer, and the office of the Australian Information Commissioner had recommended that an Assessment be undertaken to ensure that the privacy of individuals was not disproportionately compromised.  AUSTRAC concluded that “information collected from other sources” would generally be managed under the existing privacy practices, proceedings and systems of the reporting entities.  AUSTRAC also noted that collection by reporting agencies might be subject to the exception set out in Australian Privacy Principals 3.6(b) which permits collection from third parties where it would be unreasonable or impracticable to collect the information from the individual.