Hate Speech on Facebook

If someone posts something hateful, and possibly illegal, on your Facebook page, what should you do?

See Smart Company article about Anzac biscuits.

Paying for Popularity

An article on paying to get higher search engine rankings.

Negligence and pure economic loss

Australian High Court decision on concurrent liability in contract and negligence for pure economic loss.

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 (8 October 2014): http://www.austlii.edu.au/au/cases/cth/HCA/2014/36.html


A unanimous decision against finding concurrent liability in negligence to a contractual counterparty who had the opportunity to negotiate non-price terms with a builder.  Would a software or IT enterprise customer be in any different position when dealing with a technology or telco provider?

Reloadable Cards

There appears to be a market for reloadable payment cards.  Part of the growth in this market is driven by online sales of goods and services.  See article on eMerchants.

New Zealand AdWords Case

Trade mark infringement found when competitor purchased Google AdWords that were trademarks of the other.

InterCity Group (NZ) Ltd v Nakedbus NZ Ltd [2013] NZHC 379 

See also comment.

Use of a competitor's mark in advertising could amount to an infringement of their trade mark unless it is clearly for descriptive or comparative purposes only e.g. if the advertisement includes sufficient text to differentiate the product or service that of the competitor. 

Legal Lessons from the Ice Bucket Challenge

See this article:  Legal Lessons from the Ice Bucket Challenge.

"Viral cause marketing is an enticing way to build attention for a brand. Before you embark on a strategy that seeks to copy the summer phenomenon of the ALS Ice Bucket Challenge, consider the legal ramifications."

Serious Invasions of Privacy in the Digital Era

ALRC report on serious invasions of privacy in the digital era.

See this note.

Defamation and the liability of search engine providers

The following Supreme Court of NSW decision was delivered last week by McCallum J: Bleyer v Google Inc [2014] NSWSC 897 http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172529.

Her Honour expressly declined to follow Beach J in Trkulja v Google, and preferred the English line of cases. This was not a final decision on the merits (consideration was in the context of a permanent stay application, given low prospects of success), however the reasoning in this case is likely to be given significant weight in any future consideration of these issues. Her Honour does leave open the question, however, of whether liability may arise once notification of a complaint is received by the search engine provider.

An extract:

[83]  The evidence before me establishes that there is no human input in the application of the Google search engine apart from the creation of the algorithm. I would respectfully disagree with the conclusion reached by Beach J in Trkulja that the performance of the function of the algorithm in that circumstance is capable of establishing liability as a publisher at common law. I would adopt the English line of authority to the effect that, at least prior to notification of a complaint (and on the strength of the evidence before me), Google Inc cannot be liable as a publisher of the results produced by its search engine.

The Master Switch

I have just finished reading an excellent book, called "The Master Switch" by Tim Wu.  It is not a legal book, but more of an economic history.  It has a number of references to patent law.  Well worth reading.

Privacy

The Australian Privacy Commissioner has released a revised guide to "reasonable steps" to protect personal information.

Comments due 27 August.

"Effective ICT security requires protecting both computer hardware (the physical devices that make up a computer system) as well as the data (including personal information) that the computer hardware holds from misuse, interference, loss, unauthorised access, modification and disclosure. However, ICT security measures should also ensure that the hardware and the information stored on it remain accessible and useful to legitimate users."

http://www.oaic.gov.au/privacy/privacy-engaging-with-you/current-privacy-consultations/revised-guide-to-information-security-reasonable-steps-to-protect-personal-information/

However, absolute security is not only impossible but undesirable.  See for example, here and here

Letter from Amazon

Amazon wrote a detailed letter to authors, regarding e-book pricing.  See full text of letter here.

The letter asks authors to email Hachette's CEO directly.

WSJ article about the letter.

Online Copyright Infringement

The Australian Government has today released the Online Copyright Infringement Discussion Paper and is seeking public submissions on the draft proposals designed to address online piracy.

Australia has one of the highest rates of online copyright piracy in the world. This has a significant impact on Australia’s creative industries, including music, television, cinema, software, broadcast and publishing industries, which employ more than 900,000 people and generates more than $90 billion in economic value each year.

The ease with which copyrighted content can be digitised and distributed online means there is no easy solution to preventing online copyright infringement.  International experience has shown that a range of measures are necessary to reduce piracy and ensure that we can continue to take full advantage of the legitimate opportunities to create, provide and enjoy content in a digital environment. 

Everyone has a role to play in reducing online copyright infringement. Rights holders need to ensure that content can be accessed easily and at a reasonable price. Internet service providers (ISPs) can take reasonable steps to ensure their systems are not used to infringe copyright. Consumers can do the right thing and access content lawfully.

The Government’s preference is to create a legal framework that will facilitate industry cooperation to develop flexible and effective measures to combat online piracy. This Discussion Paper seeks the views of the public and stakeholders on proposals to establish such a legal framework.

Importantly, the Government expects that consumer interests will be taken into account in the development of any industry scheme or commercial arrangements.

The Discussion Paper is available on the Online copyright infringement—public consultation page of the Attorney-General’s Department website. Submissions are sought by end of 1 September 2014 and can be emailed to copyrightconsultation@ag.gov.au.

From King & Wood Mallesons:

The proposals are of most interest to copyright owners, to ISPs and to online intermediaries, although the proposed authorisation amendment to the Copyright Act 1968 (Cth) may have a broader application.

In this alert we look at the three proposals outlined in the Discussion Paper, and further questions raised within it.

Read more