Good articles from the NY Times regarding Internet and privacy:
Good articles from the NY Times regarding Internet and privacy:
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.
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.
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.
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
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.
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.
Finally, what is called direct registration of domain names is coming to Australia.
This will allow registrations such as swinson.au and telstra.au, without the .com part of the domain name.
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.
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.
“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
The Federal Court handed down a judgment yesterday regarding defamation for anonymous online reviews of a dentist.
Nettle v Cruse  FCA 935
"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."
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
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:
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
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?
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.
Swiss Hacktivist was raided at the request of U.S. authorities for data theft and then publishing what was hacked.
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.
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!
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.
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  FCA 294 (25 March 2021) (Greenwood J)
Who really runs the Internet? A lot of companies you rarely hear about. A good article about the Internet and hate speech in the Washington Post.
A lawyer who is trying to track down the person who posted a bad review of her lost an application against Google, seemingly on the basis that she did not follow court proper procedures.
From The Age: Gangland lawyer Zarah Garde-Wilson says she will take a court fight directly to Google after the Federal Court dismissed her bid to force the search engine giant to reveal who was behind negative online reviews.
The Australian Privacy Commission made an award compensating individuals for non-economic loss for a privacy law breach. This was a first in Australia.
See https://www.oaic.gov.au/assets/privacy/privacy-decisions/privacy-determinations/WP-and-Secretary-to-the-Department-of-Home-Affairs-Privacy-2021-AICmr-2-11-January-2021.pdf and https://www.kwm.com/en/au/knowledge/insights/privacy-commissioner-hands-down-first-representative-award-20210203
The decision requires the Department of Home Affairs to compensate over 1,200 asylum seekers for inadvertently publishing their personal information online in 2014.
It is somewhat amazing that this case took seven years to reach this stage.
In response to the proliferation of ransomware attacks over the last five years, a series of United States Executive Orders and statutes have come to include cyberterrorists amongst the list of banned individuals with whom U.S. persons cannot conduct financial transactions. This impacts payments to cybercriminals for ransomware attacks.
There is a detailed article from a U.S. law firm here, that sets out when payment of a ransom could lead to breach of U.S. law. See https://www.friedfrank.com/siteFiles/Publications/NYLJ_03.05.21_Kleinman.pdf
Justice Keane of the High Court of Australia gave a speech at the end of 2020 that discussed privacy.
It was titled; "Too Much Information: civilisation and the problems of privacy" and argued that relying upon judicial development of the law to solve the problem of privacy "has been, at best, a hit and miss affair".
Justice Keane said it "would not be surprising were the High Court now to accept a tort of invasion of privacy" along U.S. lines.
"But such a cause of action would probably be confined to cases of intentional intrusion, physically or otherwise, upon the solitude or seclusion of an individual or his or her private affairs.
"In the case of the publicising of a matter concerning the private life of an individual, the conduct would be actionable if the matter publicised is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public."
He noted that in the recent High Court case involving the Australian Federal Police raid on the home of journalist Annika Smethurst the media "carefully eschewed any attempt to press forward . . . towards a broader protection of privacy". (I suspect that the media did not want to expand the right of privacy in Australia even though it may have been helpful in this case - because the media since at least 1890 has been the subject of negative criticism regarding the media's lack of respect of privacy rights.)
Text of Keene J's Speech: https://cdn.hcourt.gov.au/assets/publications/speeches/current-justices/keanej/keanej27Aug2020.pdf
The Australian Government is implementing "Critical Infrastructure reforms". The consultation process for the new laws is being managed by the Critical Infrastructure Centre which is part of the Department of Home Affairs.
The CIC is currently assessing implementation of the governance rules to accompany the to-be-amended Security of Critical Infrastructure Act 2018 (Cth) at a broad, industry-neutral level. The CIC is intending these rules to provide an overview of the role industry will play in self-assessment and self-reporting, with the specific rules and obligations around assessment standards to come from later consultations.
At a high-level, materials made available by CIC set out CIC’s intention for the governance rules including a breakdown of the intention behind specific provisions in the draft Bill.
Virginia in the USA recently passed a new privacy law.
A US law firm note is here: https://communications.willkie.com/103/1291/uploads-(icalendars-pdf-documents)/virginia-is-the-new-privacy-leader-what-s-next-after-virginia-passes-comprehensive-privacy-law.pdf and another is here: https://www.jdsupra.com/legalnews/virginia-legislature-sends-novel-2533245/
The most recent issue of the Journal of the Australian Society for Computers and the Law is available here: http://classic.austlii.edu.au/au/journals/ANZCompuLawJl/recent.html
This journal includes articles on privacy law and cybersecurity law.
In January, the NY Times published a long article on Tech predictions for 2021. There was a section on privacy laws, that was U.S. focused but interesting reading. An extract:
Lawmakers will take on comprehensive federal privacy legislation. (Hopefully.)
Greg Bensinger, member of the New York Times editorial board:
Lawmakers on both sides of the aisle have indicated that they suddenly care about Americans’ privacy rights online. I am looking forward to them putting their money where their mouth is in 2021 by rolling out comprehensive federal privacy legislation.
Is this a pipe dream? Yes. But if anything good comes from backlash against technology companies, I hope it’s that consumers have more control over the rights to their own data.
About two years ago, Landmark White (a property valuation firm in Australia) was subject to a number of cyber security incidents. Justice moves slowly.
Landmark White’s cyber security standards will come under the spotlight this week, as the trial kicks off of an IT contractor accused of stealing customer data from the firm and putting it on the dark web.
The Federal Court of Australia has sided with the Patents Office and upheld a rejection of a patent application for an invention that improves the timeliness and accuracy of risk information. It was decided by the judge that the claimed invention was merely a business method or scheme for sharing and completing work place health and safety documents, and was thus unpatentable.
See Repipe Pty Ltd v Commissioner of Patents (No 3)  FCA 31 https://jade.io/article/783336
Amazon was refused a patent in Australia on the grounds that the invention was not patentable subject matter.
See Amazon Technologies, Inc.  APO 7 https://jade.io/article/785911
The patent application was directed to the field of computer resource virtualization. Providers, such as Amazon, manage large-scale computing resources that can be accessed on demand by their many customers via virtual machines. This allows various computing resources to be efficiently and securely shared by multiple customers.
The European Data Protection Board (EDPB) has recently published guidelines with examples for data breach notification under the GDPR.
The Guidelines set out common types of data breaches, such as ransomware, lost or stolen devices, social engineering attacks and the like, and set out case studies to clarify notification and remediation obligations.
The Australian Patents Office has decided that an AI machine cannot be an inventor for the purposes of granting a patent.
"Section 15(1) is inconsistent with an artificial intelligence machine being treated as an inventor, since it is not possible to identify a person who can be granted a patent."
Further, the person who operated the AI machine was also not an inventor:
"I have considered the alternative option that Dr Thaler is the inventor. It seems clear that Dr Thaler asserts that he did not devise the invention but merely acquired knowledge of the invention from the artificial intelligence machine. In the light of JMVB Dr Thaler would not be the inventor."
U.S. law firm Wilson Sonsini has a good summary of likely FTC priorities.
Potential key priorities:
Read in The Wall Street Journal: https://apple.news/AykpuzRwHQJeQWQoc3GPxyg
Flight Centre organised a hack-a-phon in 2017, and gave those participating access to real customer data. This resulted in a breach of the Privacy Act.
On U.S. Election Day, 3 November 2020, voters in the State of California overwhelmingly voted in favour of Proposition 24—a ballot measure that creates the California Privacy Rights Act (CPRA). The CPRA revises and expands the California Consumer Privacy Act (CCPA), creating new industry requirements, consumer privacy rights and enforcement mechanisms.
The CPRA's new obligations for businesses will come into effect on 1 January 2023. At that time, the CPRA will effectively replace the CCPA. In the meantime, the CPRA requires that a new California privacy agency be established and that it adopts implementing regulations.
Posting anonymous reviews to defame someone is risky.
Telstra has been ordered to provide documents to a doctor so that the doctor can assist identify someone who supposedly defamed him.
Telstra did not appear at this court hearing.
This is similar to this case against Google: http://www.cyberspac.com/2020/03/google-sued-again-for-identity-of-users.html and also these cases:
Titan Enterprises (Qld) Pty Ltd v Cross  FCA 1241 (patent attorney ordered to hand over file)
Titan Enterprises (Qld) Pty Ltd v Cross  FCA 890 (written by Justice Edelman, now on the High Court)
A wedding planner has won a 'landmark' court case against consumers who made defamatory comments about her business on social media.
But she suffered 'hurt and humiliation' when two Australian women began posting salacious comments about her and her business on Facebook in 2017.
They included accusations Ms Moy was unprofessional, bullied her clients and would try ruin her client's weddings.
See also this old Fordham article
See this article regarding the recent Seiko case in the High Court of Australia
A new set of rules for .au domain names will come into effect on 12 April 2021.auDA, the domain name regulator, states: "This new licensing framework helps maintain trust in the .au ccTLD, offers clearer guidance for registrants and registrars, and enhances auDA’s role as the guardian of a key piece of Australia’s digital infrastructure."
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).
The Australian Human Rights Commission released a paper today on AI, bias and fairness. It is worth reading.
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, after the bank failed to stop almost $800,000 being withdrawn from an account linked to the cyber criminals.
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.
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.
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.
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.
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.
How Police Can Crack Locked Phones—and Extract InformationA report finds 50,000 cases where law enforcement agencies turned to outside firms to bypass the encryption on a mobile device.
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
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.
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.
The Court of Appeal decision is not surprising. Compare prior cases:
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.
A recent dispute between two taxi companies confirms that a telephone number is not property and is not owned by the telco customer.
Compare this domain name decision: Multi-National Concepts Pty Ltd v. 1300 Directory Pty Ltd
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.
Listen to this podcast where I discuss how damages should be assessed in privacy and cybersecurity lawsuits. The Lawyers Weekly Show host J...