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13 February, 2014

 

Legal News & Analysis – Asia Pacific – Australia – TMT

 

Warning Issued For Telemarketing Calls To Numbers On The Do Not Call Register


ACMA has issued a formal warning to Telco Blue Pty Ltd for engaging third-party call centres to make telemarketing calls to numbers listed on the Do Not Call register. In its investigation, ACMA found that Telco Blue did not adequately oversee the conduct of the call centres to ensure compliance with the Do Not Call Register Act 2006 (Cth). ACMA issued the formal warning after taking into account Telco Blue’s decision to cease its telemarketing sales activities.

 

  • View the Press Release here.

Live Connected Receives Warning For Breach Of TCP Code


ACMA has issued a formal warning to Live Connected, a mobile phone service provider, for contravening certain billing and credit management provisions of the Telecommunications Consumer Protections Code (TCP Code). In its investigation, ACMA found that Live Connected failed to provide customers at least 10 days to review their bill before automatically direct debiting their account. It also found that Live Connected commenced credit management action on disputed bills before that dispute had been resolved. The formal warning was issued after Live Connected’s new owners and management committed to improving their processes to comply with the TCP Code.

 

  • View the Press Release here.

Royalty Payments Attract Tax Penalty


The Federal Court of Australia recently ruled that payments made by an Australian distributor to the Canadian owner of accounting software constituted “royalties” which were subject to withholding tax: Task Technology Pty Ltd v Commissioner of Taxation [2014] FCA 38. The Australian distributor paid an annual fee to the licensor in respect of the distribution of software which enabled accounting and financial data to be input into various templates. Pursuant to Article 12(3) of the Australia-Canada Double Tax Agreement, “royalties” include payments made for the right to use any copyright owned by the third party. Article 12(7) excludes payments from this definition if made in consideration for the supply of source code, provided that the right to use the source code is limited to such use as is necessary to enable effective operation of the program by the user.
The distributor contended that because the software was used to produce templates and to procure end user licences, this fell within Article 12(7). The Court accepted the respondent’s contention, however, that as the applicant was not supplied with the source code, nor given any right to use it, the payments fell outside Article 12(7). The Court considered the payments related to the distributor’s right to copy the software for sale to end users and the right to use the copyright in order to develop its own templates to sell in conjunction with the software, and hence they constituted “royalties” which should have been the subject of withholding tax. The distributor was held liable to pay an administrative penalty in respect of its failure to withhold 10% of each payment made to the Canadian entity.

 

  • View the judgment here.

Google Commits To Provide Comparable Prominence Of Search Results Offered By Specialised Search Competitors


The European Commission has accepted Google’s commitment to promote its specialised search services (such as for hotels, restaurants and products) on its website in a comparable and clearly visible way to which it promotes the services of its specialised search competitors. The commitment was made after the European Commission was concerned that Google would, in contravention of the European Union’s antitrust laws, abuse its dominant position in the online search market by promoting its own services above those of its competitors. In its investigation, the European Commission found that Google’s competitors’ search results were significantly less visible or not directly visible to users, which allowed Google to divert users away from its competitors’ specialised search services. The commitments apply to the European Economic Area for five years.

 

  • View the Press Release here.

Enforcement Of Net Neutrality Struck Down By US Court of Appeals


The United States Federal Court of Appeals has dismissed the US Federal Communications Commission’s (FCC) attempt to enforce “net neutrality” on internet service providers (ISP). In Verizon v Federal Communications Commission (Case No. 11-1356), the Court held that the FCC did not have the power to compel ISPs from treating all internet traffic equally regardless of the source (ie “net neutrality”). The FCC’s “anti-discrimination” and “anti-blocking” rules were introduced after it was concerned that ISPs were slowing internet delivery speeds (or blocking internet traffic) when their customers were accessing content from their competitors (eg utilising their competitor’s online video streaming services). The effect of this judgment is that ISPs could begin charging for access or to exclude services that compete with their own offerings.

 

  • View the judgment 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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