Telecommunications, Media And Technology (TMT) Law Update – Volume 23
Key recent developments in the area of Technology, Media and Telecommunications are summarised below.
Damages awarded for music synthesiser IP infringement
On 23 October 2018, the Federal Court handed down a decision on damages to be awarded in a case involving contract repudiation, copyright infringement and trade mark infringement: PKT Technologies Pty Ltd (formerly known as Fairlight.au Pty Ltd) v Peter Vogel Instruments Pty Ltd  FCA 1587. The subject matter was a music synthesiser developed by Vogel, and the parties’ legal relationship included a software and hardware development contract incorporating a copyright assignment and licence-back and a trade mark licence. The court had earlier held that Fairlight had not validly terminated the agreement when it withdrew the trade mark licence due to Vogel’s breach, but had a broader commercial purpose of facilitating the development of hardware and software by Fairlight for Vogel (Peter Vogel Instruments Pty Ltd v Fairlight.AU Pty Ltd  FCAFC 172). The Full Court determined that Vogel was entitled to damages for repudiation. When remitted by the Federal Court for assessment of damages, it was held that Vogel was not entitled to claim loss of profit damages because the Court was not satisfied the agreement would have been profitable if it had not been repudiated. The Court, however, awarded Vogel reliance damages for 30% of its wasted expenditure and a small amount of mitigation costs. A small award of compensatory damages was also made under the Copyright Act 1968 for copyright infringement, and a larger amount of additional damages were awarded for what the Court considered was Fairlight’s flagrant infringement of Vogel’s copyright; and an account of profits was awarded t Fairlight for Vogel’s infringement of Fairlight’s registered trade mark rights. We have reported in more detail on this decision here.
New South Wales Bill will facilitate optical surveillance in the course of law enforcement.
On 17 October 2018, the Surveillance Devices Amendment (Statutory Review) Bill 2018 was introduced into the New South Wales Legislative Assembly. The Surveillance Devices Act regulates the use in New South Wales of listening or optical devices, data surveillance devices and tracking devices. The Bill creates a Surveillance Devices Commissioner and, amongst other reforms, will permit the use of optical surveillance devices without a warrant if the use is part of a “controlled operation”. A “controlled operation”, as defined in the Law Enforcement (Controlled Operations) Act 1997, is essentially any law enforcement initiative authorised by law. The amendment in relation to optical surveillance devices is consistent with what is currently permitted in relation to listening devices.
The Federal Government has introduced a new Bill which will, if enacted, expand the Court’s powers to reduce online copyright infringement.
On 18 October 2019, the Federal Government tabled the Copyright Amendment (Online Infringement) Bill 2018 (Cth). The Bill proposes expanding the powers of the Court under section 115A of the Copyright Act to grant injunctions requiring ISPs to block access to overseas online locations (e.g., streaming websites) which infringe copyright. Under the Bill, the Court would be able to grant injunctions in respect of online locations which have the “primary effect” of infringing or facilitating the infringement of copyright, as well as in respect of online locations which have the “primary purpose” of doing so. The purpose of this change is said to be to ensure that the intent of the online location’s operator and/or its users are not conclusive factors in the assessment made by the Court as to whether or not to grant an injunction blocking access to the online location. Online locations which are primarily operated for a legitimate purpose are intended to be excluded. The Bill will introduce a rebuttable presumption that an online location is located overseas (which will reduce the evidentiary burden on copyright owners) and it will also give copyright owners the power to seek injunctions which require online search engines to take whatever steps the Court considers reasonable so as to not provide search results referring to online locations to which access has been blocked by the Court. The purpose of these additional powers is to reduce the visibility and availability to Australian users of online locations which provide access to infringing content.
Queensland Human Rights legislation will recognise privacy and other fundamental rights
On 31 October 2018, the Human Rights Bill 2018 was tabled in the Queensland Parliament. The Bill recognises a number of fundamental human rights, including a right of privacy (“a person’s privacy, family, home and correspondence must not be unlawfully or arbitrarily interfered with”) and, consistent with recent anti-modern slavery legislative initiatives in other Australian jurisdictions, a “right of freedom from forced work”. The legislation would be an ordinary Act of Parliament. It would not preclude Parliament enacting inconsistent laws, and it would not give courts the power to invalidate inconsistent legislation. It would, however, become part of a suite of administrative law considerations and oversight mechanisms to be considered by government when enacting legislation in the future. Similar human rights legislation operates in Victoria in the form of the Charter of Human Rights and Responsibilities 2006 (Vic) and in the Australian Capital Territory in the form of the Human Rights Act 2004 (ACT).
Additional Whistleblower Protection in South Australia
On 6 November 2018, the South Australian Parliament passed amendments to the Whistleblowers Protection Act 1993. Under the amendments, if a public servant advises a State authority of an issue which should be investigated and receives no response within 90 days, the whistleblower will be permitted to send the information to members of the media or a member of parliament with full immunity. The object of the amendments is to shield whistleblowers from liability in circumstances where it is in the public interest for confidential information to be passed on to members of parliament and to journalists in situations involving environmental or public health or public administration.
New APRA Security Standards
On 7 November 2018, the Australian Prudential Regulation Authority (APRA) released the final version of new Prudential Standard CPS 234 (Information Security). The new prudential standard had been released in draft form in March 2018 and has been finalised following feedback from stakeholders. The new CPS 234 will commence on 1 July 2019 and is designed to ensure that APRA-regulated entities have in place appropriate information security capabilities to be resilient against information security incidents. Key requirements are that an APRA regulated entity must clearly define the information security-related roles and responsibilities of management and individuals, must maintain an information security capability commensurate with the size and extent of threats to its information assets, must implement controls to protect its information assets commensurate with the criticality and sensitivity of that information, and must notify AHPRA of material information security incidents within 72 hours.
South Australia addresses internet child exploitation
On 8 November 2018, legislation was tabled in the South Australian House of Assembly with the intention of combatting child exploitation on the internet. The Statutes Amendment (Child Exploitation and Encrypted Material) Bill 2018 introduces amendments to the Child Sex Offenders Registration Act 2006, the Criminal Law Consolidation Act 1935, the Evidence Act 1929 and the Summary Offences Act 1953. A key amendment is the introduction of a new section 63AB into the Criminal Law Consolidation Act which makes it a criminal offence to host or assist the hosting or administration of a website used by another person with the intention of dealing with child exploitation material. A new Part 16A of the Summary Offences Act gives magistrate the power to order a person to co-operate with police or investigators in accessing electronically stored data, copying data held on a data storage device and reproducing or converting data from electronic into documentary form – the order can be made if the magistrate is satisfied that there are reasonable grounds to suspect that the data may provide evidence of a serious offence and that the person against whom the order is made is reasonably suspected of having committed the offence and having relevant knowledge of measures applied to protect data held on the relevant computer or data storage device. A new section 74BX of the Summary Offences Act would also make it a criminal offence to alter, conceal or destroy data held on a computer or data storage device in respect of which an order has or is to be made under Part 16A.
Queensland supports a GDPR-style “right to be forgotten”
On 15 October 2018, the Queensland government released its response to recommendations made in September 2018 by the Queensland Anti-Cyberbullying Taskforce. The government accepted, or accepted in principle, all 29 recommendations, including those dealing with the need for a more stringent approach to legal regulation and enforcement. The recommendations of the taskforce included a greater focus on the collection and reporting of cyberbullying incidents, a review of the Queensland Police Service Manual to ensure reports of cyberbullying incidents were properly investigated, and the provision of greater guidance to schools regarding reporting requirements. Significantly, the taskforce also recommended that Queensland lobby the Commonwealth Government to amend the Privacy Act 1988 to introduce a “right to be forgotten” and a “right to erasure”, similar to the equivalent rights contained in Europe’s General Data Protection Regulation.
Unauthorised drone surveillance in New South Wales
On 25 October 2018, a New South Wales Legislative Council Select Committee published a report on the impact of drone surveillance of landowners, specifically by animal welfare activists: Landowner Protection from Unauthorised Filming or Surveillance (October 2018, NSW Legislative Council). Whilst acknowledging the importance of preventing animal mistreatment, the report also concluded that greater privacy protection was required for farmers and their families. The Committee considered that a whole-of-government working group should review the current legislative framework around unauthorised filming and surveillance of private landowners, with a particular emphasis on any barriers to enforcement and successful prosecution. At the same time, in the interests of animal welfare, the government should review the Surveillance Devices Act 2007 (NSW) to consider a new defence of surveillance used in the public interest, such as to expose animal cruelty.
South Australian Privacy Commission Tables Annual Report
On 6 November 2018, the South Australian Privacy Commission tabled its annual report in the House of Assembly. South Australia does not have State privacy legislation but its Information Privacy Principles Instruction, introduced in 1989 by means of Cabinet Administrative Instruction 1/89, includes a set of 10 Information Privacy Principles. The proclamation establishing the Privacy Committee provided that the Committee could exempt any person or body from one or more of the IPPs, subject to details of any exemption being included in its Annual Report. The 2017-18 Annual Report notes that during the course of the year, exemptions were granted to the South Australia Police, the Department for Correctional Services, the Department for Communities and Social Inclusion, the Attorney General’s Department, the Department of State Development and TAFE SA from compliance with certain IPPs so as to enable the sharing of case file information of serious offenders as part of the State’s Offender Management Plan Program. An exemption was also granted to the Department for Education and Child Development allowing the Department to disclose identifying information from its pre-school enrolment census data from non-government and private schools to SA-NT DataLink for the purposes of data linkage. In addition, an exemption was granted to the Department of Planning, Transport and Infrastructure for the purpose of enabling the disclosure of sanitary drain drawings to the public.
My Health Record #1: My Health Record adjustments continue
We have previously reported here on the introduction of the My Health Records Amendment (Strengthening Privacy) Bill 2018 which was tabled in the House of Representatives on 22 August 2018 and subsequently referred to the Senate Community Affairs Legislation Committee. The Committee handed down its report on 12 October 2018 with a recommendation that the Bill be passed, and the Bill was ultimately passed by the Senate on 14 November 2018. Changes include a prohibition on access to the My Health Record by insurers and employers, a strengthening of protections for people at risk of domestic violence, greater privacy for teenagers 14 years and over, and a right of individuals to permanently delete their record and backups at any time. The Bill also restricts access to records to the Australian Digital Health Agency, the Department of Health and the Chief Executive of Medicare, and makes it clear that the system cannot be privatised.
My Health Record #2: My health record opt-out period extended
We have previously reported here on the extension of the My Health Record opt-out arrangement which was due to expire on 14 November 2018. On 14 November 2018, the opt-out period was again extended, this time until 31 January 2019, pursuant to the My Health Records (National Application) Amendment (Extension of Opt-out Period No.2) Rules 2018. The Rule was made under section 109 of the My Health Records Act 2012 in response to public concern about the timeframe available to opt-out which, between July 2012 and July 2018, had operated on an opt-in basis. According to the Explanatory Statement accompanying the new Rule, the extension of time would allow “more time for consumers to develop a well-informed decision” and thereby “increase uptake and meaningful use of the My Health Record system”.