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Google Found Responsible for Defamation

The South Australian Full Court decided against Google Inc. in the recent case of Google v. Duffy.  See http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASCFC/2017/130.html

Google's search results included defamatory material.  Google was found to be a secondary publisher.

Case note here.

AirBNB Hell

An interesting website that points out the risks of using AirBNB for both hosts and guests, www.airbnbhell.com

Digital Watermarks on Printed Documents

"The question is how the government identified her so quickly, and the answer may be that she was inadvertently outed by the Intercept itself. That’s because the website posted an image of the leaked document containing an almost-invisible code applied by the printer that produced the document sent to the Intercept. The digital watermark identified the printer model and serial number, along with the time and date then document was printed out."

See LA Times

Meriton found guilty of manipulating TripAdvisor Reviews

Serviced apartment and hotel operator Meriton was found to have engaged in illegal conduct by manipulating TripAdvisor reviews.  The ACCC sued Meriton and won.  The ACCC brought actions under s18 and the little used s34 of the Australian Consumer Law.

See judgment at:  http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1305

According to the judgment, Meriton manipulated TripAdvisor in two ways:

"The respondent (Meriton) conducts a business of offering serviced apartment accommodation at (at least) 13 properties in Queensland and New South Wales. These properties appear on the TripAdvisor website. During the period November 2014 to October 2015 (the relevant period), Meriton participated in the Review Express service offered by TripAdvisor.  On a weekly basis, Meriton provided TripAdvisor with the email addresses of guests who had stayed at its properties and TripAdvisor sent email invitations to these guests to post a review. However, rather than sending TripAdvisor the email addresses of all guests who had stayed at its properties (other than those who had requested that their details not be provided), Meriton adopted the following two practices:
(a)    The first practice was to add the letters MSA” (which stand for Meriton Serviced Apartments) to the front of the email addresses of certain guests. This rendered the email address invalid. This practice was applied to guests who had made a complaint or were otherwise considered likely to have had a negative experience at a Meriton property.  I will refer to this practice as the MSA-masking practice.
(b)    The second practice was to withhold from TripAdvisor the email addresses of all the guests who had stayed at a property during a period of time when there had been major service disruption (such as the lifts not working, no hot water, etc). I will refer to this practice as the bulk withholding practice."

Alleged Illegal Conduct by Apple

Apple is being sued in Australia by the ACCC in relation to the Error 53 software fault in iPhones.  When this fault bricked iPhones and iPads, Apple refused to fix the problem where third parties had done prior repairs. 

The latest judgment on a procedural motion is http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1329

Regulation of Automated Vehicles in Australia

The Australian National Transport Commission has released a discussion paper Regulatory options to assure automated vehicle safety in Australia.  The paper identifies 4 regulatory options for a safety assurance system for automated vehicle technology.

Submissions for this discussion paper are open until 4pm, Friday, 28 July 2017.

The NTC expects to present it preferred regulatory option to the Minister in November 2017.

Metatags and Google advertisements found to be trademark infringements

In an appeal decision handed down on Friday, the Full Court of the Federal Court of Australia has affirmed a trial judge's decision that metatags and Google advertisements were trademark infringements.

The case is Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56.

The case concerned a real estate agent advertising short term accommodation, using the name of a nearby Accor hotel (which was a registered trademark) to attract Internet users to the real estate agent's booking website.

The court confirmed findings of the trial judge that the following were trademark uses and trademark infringements:  use of of the trademark in the domain name, use in metatags for the website, use in headings for the website, use in email addresses, and use in Google advertisements.

First Amendment and Social Media

Social media and First Amendment issues were debated in oral argument before the US Supreme Court in Packingham v. North Carolina.

See:  http://www.scotusblog.com/case-files/cases/packingham-v-north-carolina/

Issue:  Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

In oral argument on 27 February 2017, Justice Kennedy drew an analogy between social media and the public square.  Justice Ginsburg said restricting access to social media would mean being cut off from a very large part of the marketplace of ideas.  The First Amendment includes not only the right to speak, but the right to receive information.

It is hard to control where your ads will appear online

Advertisers are leaving YouTube, because their advertisements are being placed in close proximity to hate speech and other offensive material.

See NY Times story, Perils of Online Ads

Book - The Last Days of Night

An interesting book, a novel, about a new lawyer in New York, Paul Cravath, who founded one of NY's best law firms, and his representation of Westinghouse against Edison in patent disputes.  The Last Days of Night.  It shows that patent disputes have been going on for 100 years whenever new technology suddenly blossoms.

GST Tax obligations for non-Australian offshore sellers

Recently, the Australian Taxation Office released a draft GST ruling (GSTR 2016/D1) to assist foreign suppliers of digital and other intangible products to determine when they will be liable to Australian GST (an indirect tax like VAT) on supplies they make to Australian consumers.
The draft GST ruling explains what steps suppliers should take to collect evidence to establish whether or not the recipient of a supply is an Australian consumer.

Assaults on Privacy in the USA

A good article in Harvard Magazine titled "How surveillance changes people's behaviour: assaults on privacy in America."  See article here.

EU ePrivacy

On 10 January 2017, the European Commission published a Proposal for a Regulation could have significant implications for Internet-based services and technologies.
The Proposal seeks to revise the current EU ePrivacy Directive.  It creates strict new rules regarding confidentiality of electronic communications, including content and metadata. In addition, the Proposal amends the current rules on the use of cookies and similar technologies, and direct marketing. The rules apply to EU and non-EU companies providing services in the EU, and are backed up by significant enforcement powers—fines of up to four percent of a company's global turnover.
The Proposal is the next major step in the EU's review of its data protection legal framework and follows the adoption of the General Data Protection Regulation (GDPR) in April 2016.

How should damages be assessed for privacy and cybersecurity breaches

Listen to this podcast where I discuss how damages should be assessed in privacy and cybersecurity lawsuits. The Lawyers Weekly Show host J...