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GST Tax obligations for non-Australian offshore sellers

Recently, the Australian Taxation Office released a draft GST ruling (GSTR 2016/D1) to assist foreign suppliers of digital and other intangible products to determine when they will be liable to Australian GST (an indirect tax like VAT) on supplies they make to Australian consumers.
The draft GST ruling explains what steps suppliers should take to collect evidence to establish whether or not the recipient of a supply is an Australian consumer.

Assaults on Privacy in the USA

A good article in Harvard Magazine titled "How surveillance changes people's behaviour: assaults on privacy in America."  See article here.

EU ePrivacy

On 10 January 2017, the European Commission published a Proposal for a Regulation could have significant implications for Internet-based services and technologies.
The Proposal seeks to revise the current EU ePrivacy Directive.  It creates strict new rules regarding confidentiality of electronic communications, including content and metadata. In addition, the Proposal amends the current rules on the use of cookies and similar technologies, and direct marketing. The rules apply to EU and non-EU companies providing services in the EU, and are backed up by significant enforcement powers—fines of up to four percent of a company's global turnover.
The Proposal is the next major step in the EU's review of its data protection legal framework and follows the adoption of the General Data Protection Regulation (GDPR) in April 2016.

United States Copyright Office Releases Report on Software-Enabled Consumer Products

Yesterday, the U.S. Copyright Office released a report titled "Software-Enabled Consumer Products."

The report follows a year-long process, during which the Office studied how copyright law interacts with software-enabled consumer products, from cars, to refrigerators, to mobile phones, to thermostats and the like. 

The report explores the various legal doctrines that apply to this subset of software, which is increasingly present in everyday life, including important copyright doctrines such as fair use, merger, scènes à faire, first sale, and the section 117 exemptions. The report focuses on specific issues raised in the public comments and hearings, including how copyright law affects licensing, resale, repair and tinkering, security research and interoperability.

The Copyright Office's report found that current legal doctrines support a wide range of legitimate uses of the embedded software in consumer products while also recognizing the importance of copyright protection to the creation and distribution of innovative products. The report does not recommend legislative changes at this time.

The full report and executive summary are available on the Copyright Office's website at http://copyright.gov/policy/software/.

Apple Store Privacy Issues

Do you trust Apple Store employees when they take away your phone to fix it?

Staff in a Brisbane Apple Store reportedly lifted photos from some Apple customers' iPhones and took more than 100 close-up and explicit photos of female customers and staff without their knowledge.

This raises both privacy and copyright issues.  It is also creepy.

See Brisbane Times

Swipes per minute

In one minute, there are 4,166,667 Facebook likes, 347,222 tweets, 590,279 Tinder swipes and 284,722 Snapchat snaps.  See BRG

Revenge Porn

A story in the NY Times about a revenge porn civil case, and whether the decision by prosecutors to drop a corresponding criminal case will have any impact on the civil case.

"In recent years, federal prosecutors in Los Angeles have earned a reputation for being particularly aggressive in pursuing cases against both former boyfriends and hackers selling unauthorized sexually explicit videos to websites. One notable case was the successful prosecution of Hunter Moore, who ran a now-defunct website that specialized in posting revenge porn videos that were stolen from people’s computers and posted without their permission.

The decision to drop the charges against Mr. Elam may illustrate the difficulties in pursuing such cases because they require a jury not to hold the victim partly responsible for creating the sexually explicit images in the first place and either sharing them with a former partner or storing them on a cellphone."

See NY Times

Consequential Loss After Hacking Decision from the USA

An interesting decision from the United States (11th Circuit appeals court) in Silvertop Systems -- decision here.

There is an interesting discussion of consequential loss, that starts at the heading "LMT's Counterclaim for Breach of Contract"

Facts were these:

·         Supplier (Silverpop) provided an email marketing service.  Customers loaded up email addresses and Supplier would send out mass emails in a form specified by the customer to addresses on the list.
·         Hackers got into the Supplier’s system and got access to several customer’s marketing lists, including LMT’s list.
·         The contract between Silverpop and LMT had a confidentiality clause (obligation to protect the list against unauthorised disclosure to third parties) and an exclusion of consequential loss.
·         Amongst the claims and counterclaims, was a claim from LMT that Silverpop had breached the confidentiality obligation and that the damage suffered by LMT was the sale value of the marketing list, which they said was now worthless.

This is what the court decided – assuming it was correct that the value of the marketing list was now zero, that was a consequential loss.  The court discussed the difference between general damages and consequential damages (which is remarkably similar to the old English decision of Hadley v Baxendale).  The direct loss which would have been recoverable by LMT if there had been a breach of the confidentiality obligation was the loss of the value of the service (but that is not what LMT claimed).

How should damages be assessed for privacy and cybersecurity breaches

Listen to this podcast where I discuss how damages should be assessed in privacy and cybersecurity lawsuits. The Lawyers Weekly Show host J...