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11 December, 2014

 

Legal News & Analysis – Asia Pacific – Australia – TMT

 

Senate Committee Endorses Governments Plans To Disband OAIC

 
The Senate Legal and Constitutional Affairs Committee has tabled its report into the Government Freedom of Information Amendment (New Arrangements) Bill 2014. As reported in our Privacy Update dated 14 May 2014, the Bill proposes to abolish OAIC and merge its functions into the Australian Human Rights Commission, the Attorney-General’s Office and the Commonwealth Ombudsman.

 
After considering public submissions, the Committee recommended that the Bill be passed subject to two conditions being met, firstly, that minor administrative changes be made to the drafting of the Bill and secondly that the Government respond to the findings of the 2013 Hawke Review into Freedom of Information procedures as soon as possible. The two Labor members and one Green member of the six person Committee dissented from the recommendations contained in the Committee’s report.

 

 
The reforms contained in the Bill have been the subject of criticism from Government agencies and industry groups. Timothy Pilgrim, the Australian Privacy Commissioner, wrote in a letter to the Committee that while he was “committed to making administrative arrangements work”, in this opinion “[h]istorical experience indicates housing privacy within the AHRC is not the most effective model”. Gillian Triggs, the AHRC President, wrote in her submission to the Committee that placing the Australian Privacy Commission with the AHRC has potential to create “confusing lines of authority both in financial and staffing respects”.

 

 

 

UK High Court Refuses To Make Order For Specific Performance Of Audit Clause


The High Court of England and Wales has refused to make an order for specific performance of a fairly typical audit and inspection clause in a licence agreement: Data Resource Limited v IDS Data Services Limited & Ors [2014] EWHC 3629 (Ch). The agreement involved a licence of rights in a database of business contacts’ details. The parties were competitors. The licensor became aware that the licensee had breached the licence by sublicensing to a prohibited entity. The licensor applied for summary judgment for an order for specific performance to enable it to exercise its rights under an audit and inspection clause which allowed it to enter the licensee’s premises “for the purpose of ascertaining that the provisions of the [licence] are being complied with”. The Court refused to make the order on the basis that the audit clause lacked fundamental detail as to the scope and purpose of access, and how the inspection would proceed. This was particularly so given that the parties were competitors and there were obvious concerns about the licensor having access to the licensee’s sensitive commercial information. Although a decision on an application for summary judgment, the decision highlights the importance of drafting clear, fair and detailed audit and inspection clauses because a licensor will typically want to exercise its rights under audit clauses promptly, before evidence can be destroyed.

 

  • View the decision here

 
ACMA Launches AISI Online Portal In The Fight Against Malware


The Australian Communications and Media Authority (ACMA) has launched the latest iteration of its Australian Internet Security Initiative (AISI), as a response to the threat of malware. Computers can become compromised through the surreptitious installation of malicious software (generically referred to as “malware”) that enables the computer to be controlled remotely for illegal and harmful activities without the computer user’s knowledge. The AISI involves the collection of data from various sources on computers exhibiting “bot” behaviour on the Australian internet. Using the data collected, ACMA then provides daily reports to internet service providers identifying IP addresses on their networks that have generally been supplied to ACMA in the previous 24-hour period. The ISPs can then inform the customer associated with that IP address that their computer appears to be compromised. The AISI has been collecting data since 2005, and approximately 70,000 “observations” of malware are now being received and processed daily for access by the 139 participants through the AISI portal.

 

 
Federal Court Refuses To Grant Apple APP STORE Trade Mark

 
The Federal Court has refused Apple’s appeal against the Registrar of Trade Marks’ (the Registrar) decision to reject Apple’s trade mark application over APP STORE in classes 35, 38 and 42: Apple Inc v Registrar of Trade Marks [2014] FCA 1304. Apple applied for trade mark protection in July 2008, the application was then opposed by Microsoft and rejected by the Registrar. In his ruling, Judge David Yates wrote that “Apple has not established that, because of the extent to which it has used the mark before the filing date, it does distinguish the designated services as being Apple’s services”. It was argued by Apple that prior to it using the term, “app store” was not an expression commonly used in the English language, and that “app” was not even an ordinary or common English word. In dismissing Apple’s appeal and ordering it to reimburse costs to the Registrar, Yates J just wrote “the changing patterns of commerce and consumer preference both before and after 2008 do not mean that, at the time that Apple launched its app store service and, more particularly, at the time it applied for the mark, it had coined a new word “app” or had given that word a changed meaning.”

 

 

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For further information, please contact:

 

Gordon Hughes, Partner, Ashurst
gordon.hughes@ashurst.com

 

Ashurst TMT Practice Profile in Australia

 

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