Newspaper head to High Court regarding liability for users' Facebook comments

The newspapers are appealing the decision of the NSW Court of Appeal that decided that media companies can be held responsible for defamatory comments under stories they post on Facebook.

Guardian Article, and discussion of appeal here.   The newspapers are appealing to the High Court.

The Court of Appeal decision is not surprising.  Compare prior cases:

http://www.cyberspac.com/2012/07/smirnoff-responsible-for-comments-of.html

https://www.accc.gov.au/media-release/firm-fined-for-testimonials-by-facebook-fans-and-tweeters

AI, cars, ethics, and the trolley problem

A good article from Harvard looking at autonomous vehicles, ethics and the trolley problem.

Putting Common Sense Back into the Driver's Seat

Is Facebook carrying on business in Australia

 A recent decision in Australia, concerning whether Facebook could be served in California, was decided by the Federal Court of Australia.  This case arises out of a privacy action brought against Facebook by ACMA in relation to the Cambridge Analytics issues.

"It might be added that the means by which entities carry on business are constantly evolving. Much of the case law in which the concept has been discussed was decided long before the technological advances which underpin many modern forms of commerce. Ultimately, the question whether a particular entity carries on business, and does so in a particular place, is determined by reference to the particular facts. 

The Commissioner submitted that she had established a prima facie case that Facebook Inc carried on business in Australia through a combination of two matters: first, through the agency of Facebook Ireland; and secondly, through certain activities for which Facebook Inc was directly responsible in Australia. ...

Rather, the evidence on this application suggests that, to the extent Facebook Ireland carried on business in Australia, it was carrying on its own business. The evidence adduced on this application and the inferences available to be drawn do not sufficiently allow for a possible conclusion that Facebook Ireland was also carrying on Facebook Inc’s business to warrant permitting service out of the jurisdiction.

However, for the reasons given next, the Commissioner has established a sufficient prima facie case to warrant exposing Facebook Inc to litigation in Australia on the basis that Facebook Inc directly carried on business in Australia. On its case, a part of Facebook Inc’s business was to provide services to Facebook Ireland, including the processing activities referred to earlier. I am satisfied that there is a prima facie case that Facebook Inc carried out sufficient activity in Australia in its business of providing services to Facebook Ireland for a conclusion to be available that Facebook Inc carried on business in Australia within the meaning of s 5B(3)(b) of the Privacy Act. ...

I am satisfied that the Commissioner has established a prima facie case, in the required sense, that Facebook Inc carried on business in Australia within the meaning of s 5B(3)(b). In summary, the Commissioner has established a sufficient prima facie case that Facebook Inc carried on business in Australia which included providing services to Facebook Ireland."

Australian Information Commissioner v Facebook Inc (No 2) [2020] FCA 1307

Customer does not have property in a telephone number

A recent dispute between two taxi companies confirms that a telephone number is not property and is not owned by the telco customer.

"Relevantly, the terms confirm that the customer does not own or have any legal interest or goodwill in any telephone number issued to the customer. The terms also permit the customer to “transfer” a telephone number to another person with the prior consent of Telstra."

Manly Warringah Cabs (Trading) Co-operative Limited v Sydney Taxis Pty Ltd, in the matter of Sydney Taxis Pty Ltd (No 2) [2020] FCA 1336

Compare this domain name decision:  Multi-National Concepts Pty Ltd v. 1300 Directory Pty Ltd

Data law released in Australia

The Office of the National Data Commissioner has released an exposure draft of the Data Availability and Transparency Bill for public comment. - https://www.abc.net.au/news/2020-09-16/government-draft-law-share-personal-data-between-agencies/12666792)

 More information and the draft bill is available here: https://www.datacommissioner.gov.au/exposure-draft/dat

 

The objects of this law are to:

(a)  promote better availability of public sector data; and

(b)  enable consistent safeguards for sharing public sector data; and

(c)  enhance integrity and transparency in sharing public sector data; and

(d)  build confidence in the use of public sector data; and

(e)  establish institutional arrangements for sharing public sector data.

The impact of AI on IP

The UK Intellectual Property Office has announced a call for views on artificial intelligence and intellectual property. In particular, the UK IPO wants to hear about the implications that AI might have for IP policy, and, likewise, what impact IP might have on AI. 

See the full consultation: https://www.gov.uk/government/consultations/artificial-intelligence-and-intellectual-property-call-for-views

The consultation closes on 11 November 2020.

Targeting Social Media Users

On Monday September 7, 2020, the European Data Protection Board (EDPB) issued draft Guidelines 8/2020 on the targeting of social media users.

The Draft Guidelines have far-reaching implications for social media platforms, advertisers, and adtech companies, as they will result in a clarification of the roles and responsibilities of the key stakeholders, and establish rules for consent.

Article here.

Australian Cyber Security Seminar

 Watch Seminar Here.

Defamation By Liking

STOLTENBERG V BOLTON; LODER V BOLTON [2020] NSWCA 45 (20 MARCH 2020) (MACFARLAN JA AT [1], GLEESON JA AT [2], BRERETON JA AT [250])

The New South Wales Court of Appeal dismissed an appeal in respect of a first instance decision of the Supreme Court that found a series of posts and comments about the former Mayor of the Narrabri Shire Council made on a Facebook page were defamatory. 

The trial judge found that a comment endorsing a defamatory post was sufficient to attract liability as a secondary publisher of the defamatory post. 

On Appeal, the court agreed that the principles of secondary publication are well established, and refused leave to appeal.

Fake Reviews!

Online odd jobs platform Service Seeking has been fined $600,000 for falsely representing that reviews on its platform were written by customers when in fact they were written by the businesses themselves.

See ACCC release:  https://www.accc.gov.au/media-release/service-seeking-to-pay-penalty-for-misleading-online-‘customer’-reviews

Queensland Privacy Review and Law Reform Report

Today, the Queensland Law Reform Commission published a final report, Report No 77, Review of Queensland’s laws relating to civil surveillance and the protection of privacy in the context of current and emerging technologies.

https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0003/653322/QLRC-Report-77-online.pdf

The Report includes a draft bill:  DRAFT SURVEILLANCE DEVICES BILL 2020

Facebook in Australia?

Facebook claims it can’t be sued by Aussie privacy watchdog

In a court hearing on Friday, 26 June 202, US-based Facebook has argued that it does not carry on business in Australia despite users in Australia accessing its website, calling for the dismissal of action brought by the Australian Information Commissioner over alleged privacy breaches and Cambridge Analytics.

French High Court Overrules Takedown Law

The French Constitutional Council struck down critical provisions of a law passed by France’s parliament last month to combat online hate speech.

The law had put the onus for analysing content solely on tech platforms such as Facebook without the involvement of a judge, within a very short time frame, and with the threat of hefty penalties.

Decision (in French of course)

NY Times article

Software Applications Hard to Patent in Australia

The decision today of the Full Court in Commissioner of Patents v Rokt  further clarifies the position in relation to whether a computer implemented method can be patentable in Australia.  

The decision follows a series of decisions considering similar issues, which each focus on whether particular software can be the subject of a patent.  In summary, the Full Court finds that the software in question in this case, which related to a method of presenting targeted advertising to a consumer, was not a patentable invention, as it was merely a method for using the well known and understood functions of a computer.

The decision reinforces the fact that a method which gets a computer to do something it has not done before is not patentable – to be patentable the method would have to enable the computer to do something which it was previously unable to do. 

The law of patentable subject matter in Australia is illogical and discriminates against inventors who implement their inventions in software.

See https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2020/2020fcafc0086

Electronic Signing of Agreements and Deeds for Companies in Australia

This article highlights the changes to the law in Australia regarding electronic signing of documents by companies.  COVID-19 brought about these changes, that will stay in place once the Covid is gone.

https://www.kwm.com/en/au/knowledge/insights/signing-contracts-electronically-just-got-easier-for-companies-20200506

UK Financial Regulator Publishes Insights from the Cyber Coordination Groups

A UK financial regulator has published a report regarding cybersecurity risks.

"CCG members also noted the development of cloud security as an emerging risk area, and that data held in cloud environments should be encrypted and protected by appropriate intrusion detection/prevention controls. In some cases, it may be advisable to include “kill switch” technology, which allows for immediate disconnection to manage the risk of a cyber attack having a more widespread impact."

See
https://www.ropesgray.com/en/newsroom/alerts/2020/03/UK-Financial-Conduct-Authority-Publishes-Insights-from-the-Cyber-Coordination-Groups

May The Fourth Be With Disney

When Disney asked “Star Wars” fans to share their favorite memories of the franchise using the hashtag #MayThe4th, it said responses would fall under its terms of use agreement. Social media users were scathing.

See NY Times Article: https://www.nytimes.com/2020/04/28/business/star-wars-may-the-fourth-disney.html

Google liable for defamation based on search results

A recent Australian case concerning defamation and Google:

Defteros v Google LLC [2020] VSC 219 (30 April 2020)

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC//2020/219.html

"Google submitted that it could not be liable as a secondary publisher, because its search engine is fully automated and does not intend the communication of any particular words or images, including any third party webpage to which a user might navigate. I do not accept this submission....

As the law stands in Australia, the common law casts the publication net wide. The liability of publishers is then limited by a range of common law and statutory defences. In particular, the common law ‘defence’ of innocent dissemination operates to limit the potential liability of search engine providers. Later in this judgment, I also consider the application of the statutory defence of qualified privilege to Google search results."

Facebook in Court over Cambridge Analytics

This recent Australian judgment concerns substituted service on Facebook.  It relates to Cambridge Analytics breach.  Interestingly, it discusses COVID-19.  Facebook did not appear in court.

Australian Information Commission v Facebook Inc [2020] FCA 531

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0531

Instagram can sublicense your photos

When you make a public post on Instagram, you allow Instagram to sublicense you photo to anyone using the Instagram API.

One professional photographer found out about this the hard way.

"Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made."

See Sinclair v. Ziff Davis and Mashable

Google sued again for identity of users

Melbourne brothel wants order compelling Google to release info on anonymous reviewers
Google has been served with a third preliminary discovery lawsuit in Australia seeking the identity of online reviewers, this time by a Melbourne brothel and escort service seeking to eliminate 11 one-star reviews from the search engine.

Facebook in Court

In a surprising move, the Australian Information Commissioner has sued Facebook in Australia over giving access to personal information of thousands of Australians to Cambridge Analytica.

https://www.abc.net.au/news/2020-03-09/facebook-privacy-oaic-information-commissioner/12039642

https://www.businessnewsaus.com.au/articles/australian-information-commissioner-takes-facebook-to-court.html

"We consider the design of the Facebook platform meant that users were unable to exercise reasonable choice and control about how their personal information was disclosed," says Australian Information Commissioner and Privacy Commissioner Angelene Falk.

Musicians Create Every Melody in Existence to Avoid Copyright Infringement

Two programmers who are musicians have supposedly created every possible MIDI melody in existence, saved this to a hard drive, copyrighted the whole thing, and then released it all to the public in an attempt to stop musicians from getting sued for copyright infringement.

Vice Article

Whether this actually accomplishes what they want to do is uncertain.

Using small snippets of public available music (or computer code) to create a work, that is the same as a well-known larger work, may still be copyright infringement.  It depends on whether the creator knew of and had access to the well-known larger work.

See Dais Studios case, where Ben Petro copied public Java script to create a larger computer program.  See also AFR Article

This also has relevance to AI programs and how they are trained.

US-China spat ramps up over key UN post

The United Nations intellectual property agency (WIPO) is the latest front in the US-China trade war.

http://www.theage.com.au/world/sad-ambassador-slams-us-attack-on-chinese-bid-for-wipo-20200226-p544tg.html?btis

Australian Francis Gurry is the outgoing head of the UN World Intellectual Property Organisation.

Some Lawyers Work Can be Automated!

Experts say 23% of lawyers' work can be automated.  Law schools are trying to stay ahead of the curve.

See https://www.cnbc.com/amp/2020/02/06/technology-is-changing-the-legal-profession-and-law-schools.html

Domain Name Study - Which Domain Names don't get renewed

Research uncovered some interesting results, such as:

·     Only 29.79% of all domains are renewed after one year

·     New GTLDs (like .XYZ) have far higher churn rates than .COM, .NET, .ORG etc

https://www.whoishostingthis.com/blog/2019/12/05/domain-study

Jurisdiction over Google

In Canada, on June 13, 2014, a Canadian court issued an injunction requiring Google to remove certain websites from its internet search results worldwide. Those websites were operating in violation of previous court orders and were being used to market a product that the plaintiffs say was developed through theft of their trade secrets.  The injunction granted was on a worldwide basis.

The injunction was upheld by both the Court of Appeal and the Supreme Court of Canada, but Google then obtained an order from a California court making it unenforceable in the United States. Google now applies to set aside or vary the injunction.  Google was unsuccessful.

See Equustek Solutions Inc. v. Jack, 2018 BCSC 610 https://www.bccourts.ca/jdb-txt/sc/18/06/2018BCSC0610.htm

Comments in this Canadian Blog

X v. Twitter

A case in NSW requiring Twitter to remove posts on a worldwide basis that contained confidential information.

X v Twitter Inc [2017] NSWSC 1300

Comment in this blog post.

Who owns the copyright and inventions produced by an AI machine?

These articles are some of the interesting articles dealing with ownership of copyright and patentable inventions produced by an AI machine or robot.

Machine learning to machine owning: Redefining the copyright ownership from the perspective of Australian, US, UK and EU Law. European Intellectual Property Review, (2018) 40 (11), pp. 722-728.  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3293518

Artificial Intelligence, Copyright and Accountability in the 3A Era: The Human-like Authors Are Already Here: A New Model, 2017 M. L. R<. 659   https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1199&context=lr

When Artificial Intelligence Systems Produce Inventions: The 3A Era and an Alternative Model for Patent Law (March 1, 2017). Cardozo Law Review, http://cardozolawreview.com/wp-content/uploads/2018/08/RAVID.LIU_.39.6.5-1.pdf

Recognizing Artificial Intelligence (AI) as Authors and Investors under U.S. Intellectual Property Law, 24 Rich. J.L. & Tech. i (2018), https://jolt.richmond.edu/files/2018/04/Pearlman_Recognizing-Artificial-Intelligence-AI-as-Authors-and-Inventors-Under-U.S.-Intellectual-Property-Law.pdf

Also, have a look at these videos about machine generated art:

• Harold Cohen – The Age of Intelligence Machines (1987) - https://www.youtube.com/watch?v=IPczQgCuOOc&feature=youtu.be
• Is it art? Portrait created by algorithm on sale at Christie’s – https://www.youtube.com/watch?v=yeshFQZCD7E

When are AI systems legally liable

Here are some good readings if you are interested in the legal responsibility of AI systems:

Machines without Principals: Liability Rules and Artificial Intelligence, 89 Wash. L. Rev. 117 (2014)  http://euro.ecom.cmu.edu/program/law/08-732/AI/Vladeck.pdf

Regulating Artificial Intelligence Systems: Risks, Challenges, Competencies, and Strategies (May 30, 2015). Harvard Journal of Law & Technology, Vol. 29, No. 2, Spring 2016.  http://jolt.law.harvard.edu/articles/pdf/v29/29HarvJLTech353.pdf

Servers and Waiters: What Matters in the Law of A.I. 21 Stan. Tech. L. Rev. 167 (2018), https://law.stanford.edu/publications/servers-and-waiters-what-matters-in-the-law-of-a-i/

Accountable Algorithms, 165 U. Pa. L. Rev. 633 (2017) https://scholarship.law.upenn.edu/penn_law_review/vol165/iss3/3