APRA is stepping up its focus on CPS234 in 2021. This is not a surprise. The Australian government has a strong focus on cybersecurity (and Defence, and foreign influence).
A blog relating to Internet legal issues by Professor John Swinson, University of Queensland
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AI and human rights
The Australian Human Rights Commission released a paper today on AI, bias and fairness. It is worth reading.
Fraudulent Invoice Scams
A Sydney hedge fund has collapsed after a cyber attack saw its trustee and administrator mistakenly approve $8.7 million in fraudulent invoices. Scammed by a fake Zoom invite.
The scam, the latest in a series of strikes by offshore criminal gangs against Australian fund managers, has also ensnared ANZ after the bank failed to stop almost $800,000 being withdrawn from an account linked to the cyber criminals.
Comparison Website that made money from Affiliate referrals was Misleading
Trivago, a price comparison, recent lost an appeal in Australia regarding how it ordered the listings on its affiliate program website. Trivago's conduct was held to be misleading, and therefore illegal, in Australia.
See ACCC media release: https://www.accc.gov.au/media-release/trivago-loses-appeal-after-misleading-consumers-over-hotel-ads
Judgment is here: Trivago N.V. v Australian Competition and Consumer Commission [2020] FCAFC 185
Sharing User IDs
Can you give your User ID to someone else to use your account? And what if that someone then uses your account for a purpose not allowed by the user agreement? Are you responsible? This is the subject of a possible lawsuit against CoreLogic in Australia.
See BCI Media Group Pty Ltd v Corelogic Australia Pty Ltd [2020] FCA 1556 https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1556
AI Action Plan for Australia
In addition to the privacy review, the government is conducting an AI review.
"The Australian Government recognises that accelerating the development, adoption and adaption of artificial intelligence (AI) will have profound social and economic outcomes for all Australians. We have an opportunity and a responsibility to strive for a better future. A future where Australians develop and use AI to solve national problems, build competitive businesses and increase our collective wellbeing.
To achieve this vision, the Australian Government will need a plan. To inform this plan, the Department of Industry, Science, Energy and Resources has released a discussion paper that seeks public input to an AI Action Plan for Australia."
You can read the discussion paper and have your say at: https://consult.industry.gov.au/digital-economy/ai-action-plan
Submissions close on Friday, 27th November 2020, two days before submissions close for the privacy law consultation.
Freedom from Lawsuits or Freedom of Speech?
Section 230 of the Communications Decency Act is supposedly being reviewed. From the NY Times:
Chief executives from Google, Facebook and Twitter appeared before a Senate hearing on a law that protects internet companies from liability for much of what their users post, and on how they moderate content. |
Democrats focused on misinformation and extremism. They also accused Republicans of holding the hearing to benefit President Trump. |
Republicans accused the executives of selective censorship, questioning Twitter’s Jack Dorsey, above, on how the company handled specific tweets. “Mr. Dorsey, who the hell elected you and put you in charge of what the media are allowed to report and what the American people are allowed to hear?” Senator Ted Cruz said. |
Australian Privacy Act - government review
The Australian Government is undertaking a complete review of The Australian Privacy Act.
Unfortunately, after a year of work, the government is only giving 4 weeks to make submissions in respect of a very detailed issues paper.
One topic for consideration is whether to legislate and create a privacy tort in Australia.
Further information available here.
Is your mobile safe from the police?
How Police Can Crack Locked Phones—and Extract Information
A report finds 50,000 cases where law enforcement agencies turned to outside firms to bypass the encryption on a mobile device.Read in WIRED: https://apple.news/Av8HKmpc-SIyx8vccKTIF2w
Fund Public Art!
Although off topic, I consider it worthwhile to fund public art. This is a great project:
https://australianculturalfund.org.au/projects/chrysalis-01
Using Covid registration data for marketing is alleged privacy breach
It was only a matter of time. The restaurant chain Wagamama has been reported to the UK Information Commissioner’s Office (ICO) for allegedly using contact details provided for Covid track and trace to send surveys to customers.
See The Times
Arrested for giving a bad review
An American who complained on TripAdvisor that a resort hotel in Thailand wanted to charge him a $15 corkage fee for bringing his own bottle of gin to the restaurant was arrested this month and spent a weekend in jail. If convicted of criminal defamation, he faces up to two years in prison. So don't write anything bad about the Sea View Koh Chang resort, which had the charges brought. |
After a backlash, the resort had some regrets. “We agree that using a defamation law may be viewed as excessive for this situation,” the hotel acknowledged. |
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.
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."
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.
Defamation By Liking
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!
Queensland Privacy Review and Law Reform Report
Facebook in Australia?
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 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
Electronic Signing of Agreements and Deeds for Companies in Australia
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
"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
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
"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....
Facebook in Court over Cambridge Analytics
Instagram can sublicense your photos
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
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
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
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
Some Lawyers Work Can be Automated!
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
https://www.whoishostingthis.com/blog/2019/12/05/domain-study
Jurisdiction over Google
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.
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.
Who owns the copyright and inventions produced by an AI machine?
- 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
Morality and AI Machines
http://moralmachine.mit.edu/
How do you prepare for the AI revolution?
Also, a similar book that is more general:
Another ACCC case regarding misleading consumer reviews
This is similar to the Meriton case, discussed in posts below, regarding misleading hotel reviews on TripAdvisor.
Copyright Act consultations
Patentable Subject Matter
The judge hearing the case is Justice Robertson. The oral argument went for 3 days, and finished on 20 July 2018. The judge is now writing a written decision.
See Australian Financial Review background story, and summary of Patent Office decision being appealed is here.
See blog post here.
Google may be liable for defamation for search engine results
See KWM article Google this: The High Court allows Google to be sued for defamation
See Sydney Morning Herald article
See HCA judgment Trkulja v Google LLC [2018] HCA 25
.au Domain Names - Policy Review
See https://www.auda.org.au/policies/panels-and-committees/2017-policy-review-panel/
I strongly urge you to review the issues papers and to provide feedback.
Direct registration will allow registration of domain names in Australia such as cyberspace.au.
There are other reforms being discussed. See the Issues Paper that was published at the end of January.
Liability of Intermediaries for copyright infringement
The judgment is here: Pokémon Company International, Inc. v Redbubble Ltd [2017] FCA 154
This is an important copyright and consumer protection law case. Redbubble recently appealed (and its seems that their appeal was lodged outside of the appeal window).
There is also a similar case pending, involving the Hell's Angels.
A good summary is located on the IP Whiteboard blog.
Canadian Update
https://www.canadiantechlawblog.com/2018/01/17/technology-law-highlights-2017-year-in-review/
Google Found Responsible for Defamation
Google's search results included defamatory material. Google was found to be a secondary publisher.
Case note here.
AirBNB Hell
Digital Watermarks on Printed Documents
See LA Times
Meriton found guilty of manipulating TripAdvisor Reviews
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:
Alleged Illegal Conduct by Apple
The latest judgment on a procedural motion is http://www.judgments.fedcourt
Regulation of Automated Vehicles in Australia
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...
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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...
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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...
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Finally, what is called direct registration of domain names is coming to Australia. See https://www.auda.org.au/statement/australias-interne...