An excellent paper on Cyber Insurance in Australia: "Underwritten or Oversold". Well worth reading.
From the CSCRC (the Cyber Security Cooperative Research Centre).
A blog relating to Internet legal issues by Professor John Swinson, University of Queensland
Adsense HTML
Affiliate Program Advertisers Must Take Care Not to be Misleading
Many businesses run affiliate programs. That is, a publisher or blogger will receive a commission for referring people to the website of the business.
For example, The Circle is a good novel that considers the future of social media, and I will receive a small commission if you buy The Circle from Amazon via this link: https://amzn.to/3pawSJK Or better still, buy my book! https://amzn.to/3vl85Dy
There are even affiliate programs for bitcoin purchases https://app.bitcoinlatinum.com/invite?ref=UD03527
Amazon recently emailed the following to their affiliate program members (which they call an Associates Program), to ensure that the affiliate is not acting in a misleading way (which is not uncommon):
This is a recurring reminder that any time you share an associate link, it’s important to disclose that to your audience. They will trust you more if you are transparent about where you are directing them and why. To meet the Associate Program’s requirements, you must (1) include a legally compliant disclosure with your links and (2) identify yourself on your Site as an Amazon Associate with the language required by the Operating Agreement.
To comply with Federal Trade Commission (FTC) regulations, your link-level disclosure must be:
1. Clear. A clear disclosure could be as simple as “(paid link)”, “#ad” or “#CommissionsEarned”.
2. Conspicuous. It should be placed near any associate link or product review in a location that customers will notice easily. They shouldn’t have to hunt for it.
In addition, the Operating Agreement requires that the following statement clearly and conspicuously appears on your Site: “As an Amazon Associate I earn from qualifying purchases.” For social media user-generated content, this statement must be associated with your account.
To read more about the FTC Endorsement Guides, visit: https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking#affiliate.
Visit this page on AC to bookmark this information about disclosures.
LinkedIn to Pull Out of China
LinkedIn said it would end service in China after the platform censored posts to keep operating but still came under government scrutiny.
"The operating environment in China has also become more difficult. Since President Xi Jinping took the reins of the Communist Party in 2012, he has repeatedly cracked down on what can be said online. Presiding over the rising power of the Cyberspace Administration of China, the country’s internet regulator, Mr. Xi turned China’s internet from a place where some sensitive topics were censored to one where critics face arrests for a constantly shifting set of infractions, like jokes at Mr. Xi’s expense.
See NYTimes and South China Morning Post
7-Eleven Stores in Australia breached privacy through facial recognition software
A recent decision of the Privacy Commission found that 7-Eleven Stores breached the privacy of Australians by photographing customers who completed in store surveys, and then used facial recognition software to determine characteristics of the customers.
See Decision
The store was in breach because it
collected individuals’ sensitive information without consent, and where that
information was not reasonably necessary for the store’s functions and
activities, andfailed to take reasonable steps to notify individuals about the fact and circumstances
of collection and the purposes of collection of that information.See story in The Guardian
Ring Doorbell and Privacy
Amazon's Ring Doorbell collects data that can be used for other purposes, such as sold to law enforcement. In light of the recent 7-Eleven case, if Amazon does this, it would be problematic.
“I think about what the effect is of law enforcement having easy access to cameras from everyone’s porch,” Gilliard said. “It makes nuisance crimes” — from stolen Amazon packages to an egged car — “available for escalation in a way that they weren’t previously.”
Free Speech on Campus
A recent storm at Yale Law School regarding a party invitation.
"Every first-year law student learns in torts class about the plaintiff with the “eggshell skull” — someone who suffers a greater injury than normal and must be compensated accordingly. But in the modern world, it seems, everyone’s skulls are susceptible to cracking at the slightest provocation. “Taking the worst possible reading and then twisting it to make it worse is a practice that is all too common,” Colbert told me."
See Washington Post
Laws to regulate Facebook's algorithm?
From the Washington Post:
On Facebook, you decide whom to befriend, which pages to follow, which groups to join. But once you’ve done that, it’s Facebook that decides which of their posts you see each time you open your feed — and which you don’t.
The software that makes those decisions for each user, based on a secret ranking formula devised by Facebook that includes more than 10,000 factors, is commonly referred to as “the news feed algorithm,” or sometimes just “the algorithm.” ...
Amid a broader backlash against Big Tech, Haugen’s testimony and disclosures have brought fresh urgency to debates over how to rein in social media and Facebook in particular. And as lawmakers and advocates cast about for solutions, there’s growing interest in an approach that’s relatively new on the policy scene: regulating algorithms themselves, or at least making companies more responsible for their effects. The big question is whether that can be accomplished without ruining what people still like about social media — or running afoul of the First Amendment. ...
One way to regulate algorithms without directly regulating online speech would be to amend Section 230 of the Communications Decency Act, which shields websites and apps from being sued for hosting or moderating content posted by users. Several bills propose removing that protection for certain categories of harmful content that platforms promote via their algorithms, while keeping it in place for content they merely host without amplifying.
See also Opinion in NY Times from former Facebooker
Facebook post leads to claim for defamation
From the NY Times: The case of the (potentially costly) missing apostrophe. |
In a Facebook post last year, Anthony Zadravic of Australia seemed to accuse his former employer of not paying “his employees” pensions. Court documents suggest that he meant to add an apostrophe; writing “his employee’s” would have implied that it was only his own pension that was missing. |
In deciding to proceed with the employer’s defamation case against Zadravic, the NSW judge in the case wrote: “To fail to pay one employee’s superannuation entitlement might be seen as unfortunate; to fail to pay some or all of them looks deliberate.” |
Facebook a Threat to Democracy, says Nobel Peace Prize winner from Manila
Nobel Peace Prize winner Maria Ressa used her new prominence to criticise Facebook as a threat to democracy, saying the social media giant fails to protect against the spread of hate and disinformation and is "biased against facts".
I guess we should realize that social media is not really media, just like oat milk is not milk.
From the Washington Post:
"The first time I heard Ressa speak, she told how she had once tried to
explain to Mark Zuckerberg that the company’s dominance in her country
brought with it a huge social responsibility. Ressa told Zuckerberg that
97 percent of Filipinos used Facebook, and she invited him to the
Philippines to get a better understanding of the problems that result.
Zuckerberg seemed to ignore the invitation, concentrating instead on how
Facebook could increase its domination in the country. “What are the
other 3 percent doing, Maria?” he allegedly asked."
Vermont Law School sued as it wants to cover up slave mural
Vermont Law School is being sued to prevent it covering up a painting, depicting the Underground Railway and slaves. The Law School commissioned with work in 1994. The artist is fighting for the integrity of the art work. The case concerns moral rights.
The centre of the case is the Visual Artists Rights Act. Or is the case really about changing community standards?
A local paper has this story about the case. An earlier newspaper article. It is hard to determine who is morally right.
Internet Law cases - top 10?
A United States digital contracting company (Ironclad) has listed what it considers to be the top 10 major internet law cases since 2000. Being U.S. centric, they have only listed U.S. decisions. Strange, as one key feature of the Internet is that it is global, and is helping break down borders. My guess is that Ironclad is not interested in expanding its business outside of the U.S.
In any event, here is their U.S. centric list.
Internet Privacy
Good articles from the NY Times regarding Internet and privacy:
The Battle for Internet Privacy is Reshaping the Internet
and
Privacy and Opt-Out
Many people are aware of the use of cookies for tracking purposes. But that is old technology. Many advertisers use more sophisticated techniques for targeting advertisements, such as tracking pixels or audience matching or audience matched advertising.
In Australia, some advertising systems allow consumers to opt-out of audience matching targeting. This is not well-known or promoted. To opt-out, go here.
Responsibility for User Comments Posted on Facebook
The High Court of Australia decided today that a newspaper with a Facebook page is responsible for defamatory comments posted by Facebook users on the newspaper's Facebook page.
"The appellants' attempt to portray themselves as passive and unwitting victims of Facebook's functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences."
None of this is surprising. There are many prior cases in different areas that reach the same result. There was an Advertising Standards Board decision against VB that came to a similar conclusion in a different area of law, and also the ACCC v. Allergy Pathways case from about 10 years ago.
The next question is whether Facebook could be liable for defamation for user content.
Fairfax Media Publications v Voller [2021] HCA 27
And see Social Media Best Practice Guide from the ACA and the Diageo case from ASB.
What is interesting about the High Court decision is that it focuses on cases and texts from over 100 years ago, and looks at very few cases concerning the Internet or social media.
Privacy and Streaming Services
A recent report from the USA found that most of America’s popular streaming services and TV streaming gadgets such as Netflix, Roku and Disney+ failed to meet minimum requirements for privacy and security practices. The lone exception was Apple.
See Common Sense Media report
US Court says AI machine cannot be inventor
Reaching a different conclusion to an Australian Federal Court decision, a US District Court looking at the same facts decided that an AI machine cannot be an inventor on a patent.
See Bloomberg story: “The unequivocal statements from the Federal Circuit that ‘inventors much be natural persons’ and ‘only natural persons can be inventors’ supports the plain meaning of ‘individual’ in the Patent Act,” the judge ruled.
Real Estate Photographs Online
A recent Federal Court appeal considered the scope of the right to use photographs taken when marketing a house for sale. This decision is relevant to anyone who wishes to commercialise data that they obtain for one purpose for a different purpose.
The real estate agent engages a photographer to photograph a house that is for sale, with the intent to upload the photographs onto a real estate sales portal such a RealEstate.com.au or Domain.com.au to advertise the property for sale. The REA portal has terms that bind the real estate agent. These terms include the right to sublicense the photographs and the listing information to CoreLogic RP Data for their property information database.
The court found, in a 2-1 split judgment, that merely because the photographer allowed the photos to be uploaded to REA did not mean that the photographer agreed to REA's terms or agreed to allow the photographs to be sublicensed to CoreLogic RP Data.
In effect, the real estate agent is in breach of the REA contract by uploading the photos in these circumstances. The license from the photographer to the real estate agent to allow the upload to REA is, in effect, useless unless the agent also obtains terms from the photographer that match the REA license.
CoreLogic RP Data is now in breach of the photographer's copyright.
A strange result.
Direct Registration of Domain Names in Australia
Finally, what is called direct registration of domain names is coming to Australia.
See https://www.auda.org.au/statement/australias-internet-domain-growing-get-ready-getyourau
This will allow registrations such as swinson.au and telstra.au, without the .com part of the domain name.
This arose out of the work of the 2017 Policy Review Panel, of which I chaired. See Paper and website.
Tweets not Journalism
The Federal Court of Australia has decided that a person who published allegedly defamatory tweets on Twitter does not receive the benefit of the journalists' privilege under the Evidence Act.
See Kumova v Davison [2021] FCA 753
This does not mean that a person who tweets can never be considered to be a journalist. In this case, looking at the Twitter feed as a whole, the defendant was not considered to be a journalist.
See this helpful note from Clayton Utz. Also Bennett & Co. Story in the AFR and The Age.
Automonous Vechicles
“The real problem is going to be, at what point is it still ethical to let the human drive,” Lunn said. “But before that, AI has to continue to learn from human drivers. Autonomy will have to make sure that we never have a trolley problem.”
Washington Post, 6 August 2021
Liability for anonymous online reviews
The Federal Court handed down a judgment yesterday regarding defamation for anonymous online reviews of a dentist.
Nettle v Cruse [2021] FCA 935
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0935
"The publications in question here were excessive, scandalous and totally unjustified and unjustifiable. I have no hesitation in finding that they were malicious and calculated to cause maximum damage to Dr Nettle. The fact that Ms Cruse chose to publish such baseless and scandalous material about Dr Nettle either anonymously or in false names supports the inference that she well knew that it was false and misleading. That is perhaps confirmed by the fact that, when Dr Nettle eventually commenced this proceeding, Ms Cruse chose to disappear rather than front-up and defend her indefensible actions. Ms Cruse’s conduct towards Dr Nettle was, in all the circumstances, contumelious and disgraceful."
Ransomware and class action lawsuits
A good article on class action lawsuits in the United States that come after a ransomware attack:
"“Companies with good security sometimes have lapses,” Solove said. There isn’t a unified legal standard laying out what sort of security a company needs to have to protect it from liability if it loses its customers’ information or suffers a ransomware attack.
“It really isn’t clear what the standard of care is,” he said. “It’s tricky. All you have to do is fail on one thing.”
That means the potential for lawsuits will keep growing as ransomware attacks do. And if lawyers can reasonably show that a company made some kind of mistake in protecting its system, victims will have an avenue to sue."
I wrote a short article on the topic of cybersecurity lawsuits at the beginning of this year. See
AI machine can be an inventor, says Australian judge
A single judge of the Federal Court of Australia, Justice Beech, has overruled the Commissioner of Patents and decided that a computer program (an artificial intelligence system) can be an "inventor" for the purposes of the Australian Patents Act in respect of a PCT patent application.
In summary, the judge found:
- An AI system is not a legal person.
- An AI system cannot own a patent.
- An AI system cannot assign a patent.
- But an AI system can be an inventor of an invention that is the subject of a patent application.
- Ownership of the invention goes to a legal person -- in this case, the person who owned the copyright in the AI system and operated the AI system.
Justice Beech said:
"167 Dr Thaler is the owner, programmer and operator of DABUS, the artificial intelligence system that made the invention; in that sense the invention was made for him. On established principles of property law, he is the owner of the invention. In that respect, the ownership of the work of the artificial intelligence system is analogous to ownership of the progeny of animals or the treatment of fruit or crops produced by the labour and expense of the occupier of the land (fructus industrialis), which are treated as chattels with separate existence to the land. ...
189 In my view, Dr Thaler, as the owner and controller of DABUS, would own any inventions made by DABUS, when they came into his possession. In this case, Dr Thaler apparently obtained possession of the invention through and from DABUS. And as a consequence of his possession of the invention, combined with his ownership and control of DABUS, he prima facie obtained title to the invention. By deriving possession of the invention from DABUS, Dr Thaler prima facie derived
title. In this respect, title can be derived from the inventor
notwithstanding that it vests ab initio other than in the inventor.
That is, there is no need for the inventor ever to have owned the
invention, and there is no need for title to be derived by an
assignment. ...
194 Now more generally there are various possibilities for patent ownership of the output of an artificial intelligence system. First, one might have the software programmer or developer of the artificial intelligence system, who no doubt may directly or via an employer own copyright in the program in any event. Second, one might have the person who selected and provided the input data or training data for and trained the artificial intelligence system. Indeed, the person who provided the input data may be different from the trainer. Third, one might have the owner of the artificial intelligence system who invested, and potentially may have lost, their capital to produce the output. Fourth, one might have the operator of the artificial intelligence system. But in the present case it would seem that Dr Thaler is the owner."
In short, title to the invention derives from an inventor who does not own the invention.
This case is not particularly helpful in determining who is the owner of the invention if there is more than one person involved -- for example, if Microsoft owns the copyright in the AI program running in the cloud, 20 people collect the training and input data over many years, I design the problem, and you and a team of people operate the AI system.
Does this case also mean that a corporation or a monkey could be an inventor?
The Patents Act requires that the inventor's name and address be provided to the Patents Office. Does an AI system have a legal name or an address? The case did not consider this. Dr Thaler named his AI system as DABUS, so I guess that is the name of the inventor. It is not really a name in the legal sense.
The judge spent little time considering the basis of the patent system - to incentivize people to make inventions. A computer does not need an incentive. The judgment briefly mentions this, and appears to suggest that creating an incentive to create an AI machine that invents is sufficient. On that basis, patent patent system should reward parents for having sex to create a child and teaching the child to invent.
The judgment is artificial and shows little real intelligence.
And see about this South African patent: https://www.cyberspac.com/2021/08/ai-machine-can-be-inventor-says.html Did it go through a full examination?
How reliable is AI in criminal evidence
A good article about how an AI system produces evidence used by police. But humans changed the output of the AI algorithm, calling the evidence into question.
Uber Interfered With Privacy of Australians
The Australian Privacy Commissioner has determined that Uber interfered with the privacy of an estimated 1.2 million Australians.
The Uber companies failed to appropriately protect the personal data of Australian customers and drivers, which was accessed in a cyber attack starting in October 2016.
Rather than disclosing the breach responsibly, Uber paid the attackers a reward through a bug bounty program for identifying a security vulnerability. Uber did not conduct a full assessment of the personal information that may have been accessed until almost a year after the data breach and did not publicly disclose the data breach until November 2017.
See Decision
Hacktivist raided
Swiss Hacktivist was raided at the request of U.S. authorities for data theft and then publishing what was hacked.
https://amp.9news.com.au/article/be36b5d5-883b-49a4-a0da-d9a5ce07d852
The Impact of Amazon
Amazon has a special website that sets out its impact. The focus is on the impact of Amazon in the U.S. It is hard to find out what positive impact Amazon is having in Australia.
See https://www.aboutamazon.com/impact
If you contract with AWS on their standard terms, unless you are located in one of a few listed countries, you are agreeing to U.S. law for the contract, and having to go to the U.S. for any disputes.
"Governing Laws" and “Governing Courts” mean, for each AWS Contracting Party, the laws and courts set forth in the following table: see https://aws.amazon.com/agreement/. I guess that provides jobs for U.S. lawyers!
Giving the Government Power to Disrupt
The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 has been subject to criticism It allows the government to hack into computers of people they think are bad people. Could innocent bystanders be impacted, just like when Microsoft did protective hacking about 8 years ago? See https://www.csoonline.com/article/2449572/microsoft-hammers-no-ip-collateral-damage-includes-hacking-teams-legal-malware.html
Details of the Bill are here:
The Law Council has released a 150 page criticism of the Bill.
Section 230
Has Section 230 of the Communications Decency Act gone too far? Some think it does:
Judge Robert Katzmann in a recent case wrote a 35-page dissent to part of the ruling, arguing that Facebook’s algorithmic recommendations shouldn’t be covered by the legal protections of Section 230.
Late last year, the U.S. Supreme Court rejected a call to hear a different case that would have tested the Section 230 shield. In a statement attached to the court’s decision, Justice Clarence Thomas called for the court to consider whether Section 230’s protections had been expanded too far, citing Judge Katzmann’s opinion.
Justice Thomas said the court didn’t need to decide in the moment whether to rein in the legal protections. “But in an appropriate case, it behooves us to do so,” he said.
See NY Times article.
Many U.S. Internet businesses think that Section 230 has international application. It does not. It may provide protection in respect of U.S. lawsuits, but not lawsuits in other countries.
Blocking Bad Websites at the ISP
It is hard to have a bad website taken down. In Australia, if the bad website is involved in copyright infringement, it is possible to have all Australian ISPs block the bad website, in effect making it disappear from the Internet as far as Australians are concerned.
That happened in recent Federal Court case, brought against Telstra and every other ISP in Australia, by a company that appears to operate a website for escort services. Someone hacked their website and made copies of it. The Federal Court blocked the copycat websites, using Section 115A of the Copyright Act.
See Gardner Industries Pty Ltd as trustee for the S M Gardner Family Trust v Telstra Corporation Limited [2021] FCA 294 (25 March 2021) (Greenwood J)
Subscribe to:
Posts (Atom)
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...
-
The issue of content regulation in China was mentioned in this blog last year . In the last few weeks, this issue has once again pushed into...
-
The United Nations intellectual property agency (WIPO) is the latest front in the US-China trade war. http://www.theage.com.au/world/sad-am...
-
Google LLC v Defteros [2022] HCA 27 , decided 17 August 2022 by High Court of Australia. The High Court decided that for the purposes of ...