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29 May, 2014

 

Legal News & Analysis – Asia Pacific – Australia – TMT

 

Indiscreet Talk Amongst Staff Leads To Privacy Damages

 
Australian Privacy Principle (APP) 11.1 requires reasonable steps to be taken in order to ensure that personal information is protected from, amongst other things, unauthorised disclosure. Most of the attention given to this principle revolves around the importance of maintaining secure IT systems but the implications of APP 11 are far broader, and organisations need to be aware that even loose or indiscreet talk amongst employees may amount to an infringement if personal information is disclosed to third parties as a consequence.

 
In BO and AeroCare Pty Ltd [2014] AlCmr 32 (8 April 2014), the Privacy Commissioner awarded damages to the complainant after he had been questioned about his medical condition by the respondent’s staff in an airport departure lounge within the hearing of other passengers. The Privacy Commissioner concluded that the incident constituted a breach of National Privacy Principle 4.1 (the equivalent of APP 11.1) on the basis that the public questioning amounted to an unreasonable disclosure of the complainant’s sensitive personal information. The Commissioner imposed a fine of AUD 8,500 for non-economic loss pursuant to section 52 of the Privacy Act 1988 (Cth).


  • To view the decision, click here.

 

ACCC Approves NBN Migration Program

 
The Australian Competition and Consumer Commission (ACCC) has approved Telstra’s proposals regarding the migration of customers onto the National Broadband Network (NBN). Under these proposals, the NBN Co must follow a specific process to connect premises to the NBN in situations where the company must use an existing copper or HFC line to pull the NBN fibre through the path that connects the premises to the NBN. This process results in a temporary outage to the communication services, however these measures will minimise the disruption in service.

 

  • The ACCC’s media release can be found here.

 
Undertaking To Adopt “Double-Opt In” Process After Breach Of Spam Act

 
The Australian Communications and Media Authority (ACMA) has accepted an enforceable undertaking from Mr Alex Shehata, trading as the Australian Advertising & Marketing Network, after he was found to have breached the Spam Act by sending unsolicited marketing emails to promote his online printing business. As part of this undertaking, Shehata must stop sending marketing messages until he adopts a two stage “double-opt in” process, where a consumer must consent to receiving emails and then separately confirm that they wish to receive marketing messages.

 

  • The ACMA’s media release can be found here.

 
Telecommunications Industry Bodies Release Financial Hardship Guide

 
A working group composed of telecommunications industry and financial counselling representatives with the assistance of the Telecommunications Industry Ombudsman have released a guide aiming to assist telecommunications and internet service providers with dealing with customers in financial hardship. This guide Responding to Customers in Financial Hardship, Principles and Practices for Telecommunications Service Providers, provides clear principles and proven practices that telecommunications and internet service providers and consumer representatives may use when dealing with consumers in financial hardship. This comes after the ACMA reported in 2012 that 14% of customers had experienced difficulty in paying their telecommunications bill in the previous year.

 
The purpose of this guide is to allow customers who are in financial hardship to stay connected to essential telecommunications and internet services while being assisted in meeting their financial obligations. The guide outlines the six critical principles of an effective response to customers in financial hardship: accountability, accessibility, fairness, flexibility, mutuality and proportionality. The guide provides examples of good practice in areas such as identifying and accessing customers in financial hardship, making prompt and informed decisions and promoting an effort to respond effectively and compassionately to the circumstances of customers in financial hardship.

 

  • A link to the Telecommunications Industry Ombudsman’s media release can be found here.

 
DOMAIN SHIELD Trade Mark Lacks Distinctiveness

 
The Australian Trade Marks Office has rejected an application to register the mark DOMAIN SHIELD as a trade mark: Domain Shield Pty Ltd [2014] ATMO 30 (7 April 2014). The Applicant, Domain Shield Pty Ltd (Domain Shield), had applied to register the mark under class 35, which relates to retailing and presentation services, and class 45, which relates to the registration of domain names. After the initial application had been rejected by the Trade Mark Examiner on the basis that the expression “domain shield” was not distinctive, Domain Shield appealed to the Registrar, who upheld the Examiner’s decision. This expression was used in the trade to refer to a domain name administration product that conceals or shields the personal data of a domain name registrant which is usually publicly available with a registered domain name. The Registrar did not find the fact that traders referred to the same product using alternative expressions, such as “ID Protect”, as relevant to distinctiveness, as these words could be used interchangeably.

 

  • The decision can be viewed here.

 
Source Code Not Discoverable In Patent Infringement Action

 
The Federal Court has held that ordering the discovery of the source code of a range of products to determine whether an applicant’s patent rights have been infringed would be inappropriate: Vringo Infrastructure, Inc v ZTE (Australia) Pty Ltd (No 2) [2014] FCA 525. In the principal proceeding, ZTE (Australia) Pty Ltd (ZTE), the Australian sales arm of a provider of telecommunications equipment, was being sued for patent infringement by Vringo Infrastructure (Vringo), a telecommunications infrastructure developer. There were two patents in issue: one for methods of controlling radio resources in a wireless telecommunications system and another for a method and apparatus for synchronizing a first and a second communication end point. Vringo had previously obtained a court order for discovery of a number of documents by ZTE, including documents relating to software and firmware architecture design and the headers of source code files. ZTE responded that these documents were in the possession of its parent company, ZTE Corporation. Vringo then sought a Sabre order from the court to compel ZTE to obtain these documents and source code for the software and firmware used in a range of products.

 
The Court rejected ZTE’s primary argument that the order should not be made on the basis that its parent company had previously rejected its request for information in its possession, as an informal request from a subsidiary was different from a court-ordered subpoena. However, Yates J limited the scope of the discovery. His Honour rejected Vringo’s request for the source codes of a broad range of products, finding that it was inappropriate to make such an order where it was plainly obvious that the entire source code would not be necessary, even though it would expedite Vringo’s ability to determine its case on infringement. Discovery was allowed of all the documents relating to the functional and architectural design of the products, as this would assist Vringo in determining the elements of the source code that it required.

 

  • The decision can be viewed 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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