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31 March, 2014

 

Legal News & Analysis – Asia Pacific – Australia – TMT

 

Damages Awarded For Copyright Infringement After Unlicensed Use Of Stock Photos For Website Advertising


The Federal Circuit Court of Australia has condemned the unlicensed use of stock photos on commercial websites: Tylor v Sevin [2014] FCCA 445. The plaintiff was an American photographer who ran a business of producing, selling and licensing stock photos. The defendant, a travel agent, published the plaintiff’s photograph on her website in breach of copyright. The Court noted the importance of this case, as although this kind of copyright infringement is a common problem for photographers, it was the first of its type to have been brought to court. The Court emphasised that there was a particular need to deter similar breaches of copyright, which are becoming increasingly common in the digital age.
The defendant was liable for damages under ss 115(2) and 115(4) of the Copyright Act 1968 (Cth). The plaintiff was entitled to his usual licence fee for use of such a photograph in the sum of $1,850. Additionally, the Court awarded additional damages to the plaintiff of AUD 12,500, taking particular notice of the defendant’s uncooperative behaviour in proceedings and the need to deter similar conduct, both of the public and the defendant.

 

  • To view the decision, click here.

 

Telstra Loses Fight To Prevent ACCC Jurisdiction Over Contract Disputes


The Federal Court has determined that the Australian Competition and Consumer Commission (ACCC) has jurisdiction to arbitrate disputes between Telstra and three other internet service providers regarding its financial contracts: Telstra Corporation Limited v Vocus Fibre Pty Ltd [2014] FCA 198. Telstra had attempted to raise the price charged to wholesale customers for access to its telephone exchanges and underground ducts. Vocus Communications and two iiNet subsidiaries separately filed claims with the ACCC to appeal the price rises. 


Telstra sought review of the ACCC’s decision that the regulator could arbitrate these disputes, on the basis that the regulator did not have the jurisdiction to arbitrate signed commercial contracts. Flick J rejected the judicial review application, finding that a dispute relating to the failure of parties to agree to the terms and conditions of a contract could be validly arbitrated by the ACCC. This decision clarifies the jurisdiction of the ACCC to arbitrate disputes.

 

  • To view the decision, click here.

 

ACMA Has No Power To Determine Criminal Offences


A recent Federal Court decision has clarified the powers of the ACMA. The Court ruled that the ACMA has no jurisdiction to determine whether a criminal offence has been committed for the purpose of deciding whether a licence condition has been breached: Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22. Today FM recorded and broadcasted a telephone conversation between two presenters posing as Queen Elizabeth II and Prince Charles and two members of staff at the hospital where the Duchess of Cambridge was being treated. The ACMA then notified the radio station that it was commencing an investigation under the Broadcast Services Act 1992 (Cth), in part to determine whether Today FM had breached its licence through using the broadcast in the commission of an offence. 


The Full Court stated that a finding that ACMA was empowered to make findings of criminal liability would contradict the principle that such a power is solely vested in the courts, and should not be exercised by an executive body. This ruling does not affect the ability of ACMA to continue to investigate whether the broadcast breached the commercial radio code of practice.

 

  • A link to the decision can be found here.
 

Providing A Link To A File Hosting Service Does Not Constitute Service 


The Queensland Supreme Court has held that uploading files to a file hosting service and providing a link to another party does not constitute service of those documents on the other party. In Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 20, a party made an adjudication application and sent an email to the other party and their solicitors which included a Dropbox link to the submissions and supporting documents. The recipients of the email read the email and the attached adjudication application forms, but did not access the link. The recipients only became aware of the contents of the linked document when the sender sent another email to the adjudicator and the recipient’s solicitors that included the admissions.


The Court held that, although service can be in electronic form, merely identifying the document and its location was not sufficient. The recipient was not served the document until they became aware of its contents.

 

  • A link to the decision can be found here.
 

United States Steps Back From Internet Domain Name Oversight Role


The United States Commerce Department’s National Telecommunications and Information Administration (NTIA) has announced that it will cede oversight of the Internet Corporation for Assigned Names and Numbers (ICANN), an international non-profit organisation that controls Internet domain name functions. This announcement has come at a time where the dominant role of the US in ICANN has come under increasing scrutiny, particularly after the revelations regarding the National Security Agency’s use of internet services to access personal data. NTIA indicated that the power of oversight should pass to an international multi-stakeholder model without political or government ties. NTIA will remain in control of ICANN until its contract expires in September 2015.

 

  • A link to the statement can be found here.
 

Regulators Remind Young Consumers Of Their Mobile Phone Rights


As part of World Consumer Rights day, the ACCC has joined with ASIC, MATA, TAO and ACMA to remind consumers about their rights in relation to mobile phone service providers. The regulatory entities have collaborated on a MoneySmart Teaching digital activity to assist young people to understand and exercise their Consumer Guarantee rights when purchasing a mobile phone. ASIC developed MoneySmart Teaching to increase young Australians’ knowledge of their consumer rights and their financial literacy.

 

  • To view the ACCC press release click here.
 

Privacy Act amendments commenced 12 March 2014


On 12 March 2014, the amendments to the Privacy Act 1988 (Cth) commenced operation.
The amendments introduce a unified set of principles, called the Australian Privacy Principles (APPS), which is an amalgamation and refinement of the Information Privacy Principles and National Privacy Principles. The APPS apply to both Commonwealth government agencies and private sector organisations in their dealings with personal data and information. The amendments also include more comprehensive credit reporting provisions and a revised regime for privacy codes and credit reporting codes. It also introduces civil penalty provisions, which enable the Privacy Commissioner to apply to a court for a pecuniary penalty order against an entity that has allegedly contravened certain provisions of the Privacy Act 1988. The amendments do not affect the various existing exemptions, such as the employee records exemption and the small business exemptions.
Entities are advised to update their privacy policies and procedures to ensure compliance with the new amendments.

 

  • View the Ashurst publication on the privacy amendment legislation here.
 

ACCC Commences Proceedings Against Zen Telecom In Relation To Its Unsolicited Telemarketing Practices

 

The Australian Competition and Consumer Commission (ACCC) has commenced proceedings in the Federal Court of Australia against Zen Telecom Pty Ltd (Zen Telecom) alleging that the telecommunications provider contravened the Australian Consumer Law in its unsolicited telemarketing calls. The ACCC alleges that Zen Telecom (through marketing companies contracted to telemarket Zen Telecom’s services) engaged in misleading or deceptive conduct by misrepresenting to consumers that it was acting on behalf of Telstra or a business associated with Telstra. The ACCC also claims that Zen Telecom, in breach of the unsolicited consumer agreement provisions of the ACL, failed to provide consumers with a contract within 5 business days, failed to provide notice to customers when cancelling their contract and failed to adhere to the 10-day cooling off period by supplying services during that period. The matter is listed for a directions hearing on 28 March 2014.

 

  • View the ACCC press release here.
 

ACCC Accepts Undertaking For “Unlimited” Mobile Phone Plan Representations


The Australian Competition and Consumer Commission has accepted a court enforceable undertaking by Medion Australia Pty Ltd (Medion) after the Commission was concerned that Medion was likely to mislead consumers by representing that its ALDImobile “Unlimited Pack” provided “unlimited” voice calls, voicemail, SMS and MMS. The ALDImobile “Unlimited Pack” was subject to usage restrictions detailed in the Acceptable Use Policy, which effectively restricted customers to daily, 3-day and 30-day limits on voice calls, SMS and MMS. Medion has removed the “unlimited” representation from the ALDImobile website and in-store advertising, and has undertook to refrain from same or similar conduct for 3 years.

 

  • View the ACCC press release here.

 

Federal Court Of Canada Orders ISP To Disclose Alleged Copyright Infringers


The Federal Court of Canada has ordered an internet service provider to disclose a list of its customers who had downloaded films in breach of copyright. In Voltage Pictures, LLC v Doe, 2014 FC 161, Voltage Pictures LLC (Voltage), a film production company, identified the internet protocol addresses of people who had downloaded films over peer-to-peer networks, which was in breach of the copyright that Voltage held in the films. Some of those people were subscribers of TekSavvy Solutions Inc. (TekSavvy), an internet service provider. Voltage sought to obtain the names and addresses of those TekSavvy subscribers in order to commence proceedings against them for copyright infringement. The Court held that Voltage had a bona fide claim against the subscribers, and that the enforcement of Voltage’s intellectual property rights outweighed the privacy interests of the alleged copyright infringers. The Court therefore ordered TekSavvy to disclose a list of the alleged infringers on the condition that it would approve all communication from Voltage to TekSavvy’s subscribers, and that Voltage’s letters of demand would clearly state that a court has not yet ruled whether the subscriber has infringed copyright or is liable to pay damages.

 

  • View the judgment here.

 

European Commission Cracks Down On “In-App” Purchases


The European Commission has announced that it will consider introducing new guidelines to tackle “in-app” purchases featured in online games. The Commission has been concerned that games on tablets and mobile phones are often advertised as “free”, which can be misleading because they may be “free to download” but not “free to play”, resulting in consumers’ credit cards being automatically charged by default. Most of these games are targeted at children and teenagers, who are often being charged fees without being aware or without parental approval. The Commission will meet with industry and national consumer protection enforcement authorities in the European Union to discuss proposals that require games to be advertised with no hidden costs, and for purchases requiring explicit consumer consent before being debited through default settings.

The European Commission’s announcement comes after the Australian Competition and Consumer Commission raised its concerns in September 2013 about “in-app” purchases and noted that it would be engaging with platform operators to protect consumers.

 

  • View the European Commission’s press release here.

 

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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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