An Australian senator proposes a Digital Services Act relating to blockchain technology.
https://www.andrewbragg.com/post/address-at-blockchain-week-2022
A blog relating to Internet legal issues by Professor John Swinson, University of Queensland
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NY NFT Trademark Lawsuit by Hemmes regarding Birkin bag NFT art
A decision from Judge Rakoff from the SDNY regarding a motion to dismiss in a case involving NFTs. See https://images.law.com/contrib/content/uploads/documents/389/164932/Hermes-v.-Rotschild.Rakoff-order-on-MTD-1.pdf
The court denied the motion to dismiss.
Mr Rotschild, the defendant, created a digital image of the Hermes Birkin bag, with a baby fetus inside the bag. It sold for $23,500. He also created images of faux fur Birkin bags, and 100 numbered NFTs that sold for about the price of a real world Birkin bag.
Hemmes sued Rotschild for trademark infringement. Rotschild says the NFTs are art that have First Amendment protection. He also said that his use of MetaBirkin for the title of his art had First Amendment protection.
The court said that there were too many factual issues to determine (e.g. is the NFT art?) to dismiss the case against Rotschild without having a trial.
The Top Ten Developments in US Patent Law over the past 50 years
Professor Don Chisum is a leader in U.S. patent law. He has recently written this excellent article:
Fifty Years of Patent Law: The Top Ten Developments
https://chisum-patent-academy.com/wp-content/uploads/ChisumTop10in50Article6July2022.pdf
Well worth reading if you are interested in patent law and the business of patents.
Lawsuit in Victoria against Google over false reviews for artifical plant company
The Age newspaper has this story regarding false reviews of an artificial patents business, that alleged were posted when the business had a dispute with a moving company.
Interestingly, they are suing Google.
Similar story to the Titan Sheds dispute that ended up in the Federal Court in Brisbane a few years back. There are about 3 court decisions. One involved trying to get evidence from Google, but because Google was offshore, this was difficult. See Note
OSC enforcement against crypto asset trading platforms
The Ontario Securities Commission (OSC) announced this month the outcome of two successful enforcement actions against non-compliant crypto asset trading platforms.
ACCC to Review Facebook, Google and other large digital platforms
The ACCC is seeking views from consumers, businesses and other parties on options for legislative reform to address concerns about the dominance of digital platforms.
A discussion paper, released today, outlines options for addressing harms to competition, consumers, and business users in a range of areas dominated by large digital platforms, including social media, search, app marketplaces, general online retail marketplaces and ad tech.
Read moreFacebook Sued for $150 billion by Rohingya refugees
Rohingya refugees are suing Facebook over its own admitted failure to stop the spread of hate speech that contributed to violence in Myanmar.
A case has been filed in the USA. Because of s230 of the Communications Decency Act, the plaintiffs are asserting that Myanmar law should apply, not U.S. law.
Commentators have stated it is a difficult case for the refugees.
Chinese cyberattacks
As experts say the number of cyber attacks being directed at Australia have reached a disturbing level, it can now be revealed that Chinese hackers came within minutes of shutting down two Queensland power stations . Had the attack been successful it could have been lights out for some 3 million homes.
Australian Social Media Law proposed
The Australian Government has just released a proposed law to deal with defamation and social media comments.
See Social Media (Anti-Trolling) Bill.
https://www.ag.gov.au/legal-system/social-media-anti-trolling-bill
The AG's office provides the following information:
"The challenges of responding to anonymous online trolling became clear after the High Court's decision in Fairfax Media Publications v Voller [2021] HCA 27, handed down in September 2021. The Voller decision shows that Australians who maintain a social media page may be exposed to defamation liability for defamatory comments posted on the page by others – even if they are not aware of those defamatory comments.
To urgently address this situation the Australian Government has developed the Social Media (Anti-Trolling) Bill 2021. To address the implications of the Voller decision, the Bill will protect Australians from defamation liability that could arise if they allow users to comment on their social media page."
See my comments in The Australian blog: "Law professor supports anti-trolling proposals"
Crypto Regulation
In an interesting article about Crypto Exchange regulation in the WSJ.
"The world’s fastest-growing major financial exchange has no head office or formal address, lacks licenses in countries where it operates and has a chief executive who until recently wouldn’t answer questions about his location."
The biggest exchange is Binance, which has no fixed address it seems. Creates interesting internet jurisdiction issues.
UK Cookies Case
An interesting case today from the UK: Lloyd v Google
See note here: https://www.mishcon.com/news/the-developing-law-on-data-protection-group-claims
"This is of course a landmark judgment for data protection claims, but also more generally for consumer actions brought on an "opt-out" basis. The claimant, Mr Lloyd, represented a group of more than 4 million iPhone users, and alleged, on their behalf, that Google's historic deployment of cookies on the Safari browser had been not just unlawful, but that it meant that Google should pay compensation to everyone who had received cookies on that basis."
The court found for Google.
How the FBI obtains access to telephone information
This is a good article. It provides insights on what exactly each carrier collects, a more recent run-down of how long each United States telecom retains certain types of data for, and images of the tool the FBI makes available to law enforcement agencies across the country to analyze cell phone tower data.
https://www.vice.com/en/article/m7vqkv/how-fbi-gets-phone-data-att-tmobile-verizon
Is cybersecurity insurance worth the risk?
A good source of information about cybersecurity risks is the Information Security Forum (ISF).
For example, ISF recently published an interesting report regarding cybersecurity insurance. Is cybersecurity insurance worth the risk? See Report.
Reverse Domain Name Hijacking Lawsuit Dismissed in USA
An interesting legal decision regarding the domain name pocketbook.com was handed down by a United States district judge this month. The case arose out of this NAF UDRP decision from 2019 that decided for the domain name owner: https://www.adrforum.com/DomainDecisions/1857174.htm
The court reviewed the Anticybersquatting Consumer Protection Act (ACPA) prohibits reverse
domain name hijacking, which occurs when “overreaching trademark owners” interfere with a
domain name registrant’s lawful use of a domain name.
The court decided that the requirement that the domain name “has been suspended, disabled, or transferred” does not include temporary suspension during the pendency of a UDRP case.
See decision here https://domainnamewire.com/wp-content/pocketbook.pdf and case note here.
Privacy Act Review in Australia
The Australian Attorney-General's Office has released the Privacy Act Review Discussion Paper and seeks comments before 10 January 2022. The discussion paper considers these matters:
- Scope, application & effectiveness of the Privacy Act
- Direct rights of action by individuals
- Statutory tort for invasion of privacy
- Notifiable data breach scheme effectiveness
- Enforcement power effectiveness
- Aspects of a certification scheme
https://consultations.ag.gov.au/rights-and-protections/privacy-act-review-discussion-paper/
Concurrently, the AG's Office is holding this consultation at the same time as a consultation on the exposure draft of the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 (Online Privacy Bill).
The Online Privacy Bill addresses the pressing privacy challenges posed by social media and certain other online platforms.
The Privacy Act Review seeks to build on the outcomes of the Online Privacy Bill to ensure that Australia's privacy law framework empowers consumers, protects their data and supports the Australian economy.
Non Specialist Lawyers Doing Domain Name Disputes - A big risk!
In my opinion, there is a big risk using a non-specialist lawyer to run a domain name dispute under the UDRP or auDRP. A recent example is the Brisbane law firm Dowd & Co running a domain name dispute under the UDRP for a complainant. Not only were they unsuccessful, there was a finding of Reverse Domain Name Hijacking (RDNH) against the Complainant, and resulting bad publicity.
The Panel stated:
"It is evident from the Complaint in this case that the Complainant has not fully appreciated the requirement to prove both registration and use in bad faith.... This Complaint was therefore doomed to fail at the outset as the Complainant could not prove registration in bad faith. The Complainant and/or its legal counsel should have appreciated this. A passing familiarity with Policy precedent on this issue (for example, as described in section 3.8 of the WIPO Overview 3.0) is something that the Panel is entitled to expect from parties represented by legal counsel, and it is lacking here. Such familiarity would have caused the Complainant to be aware of its difficulties in pursuing the Complaint. A modicum of additional research would also have indicated to the Complainant that the Respondent itself had created and run a business by the name of “Streamline Servers”, well before 2009, and it therefore had a bona fide basis for registration of the disputed domain name."
Not something good to have on the public record against you.
See GSL Networks Pty Ltd. v. Domains By Proxy, LLC / Alex Alvanos, Bobservers, WIPO Case No. D2021-2255
See Domain Wire
Cyber Insurance
An excellent paper on Cyber Insurance in Australia: "Underwritten or Oversold". Well worth reading.
From the CSCRC (the Cyber Security Cooperative Research Centre).
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.
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