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The Australian Law Reform Commission (ALRC) has published Discussion Paper 72, asking for feedback on “301 proposals for overhauling Australia’s complex and costly privacy laws and practices”.

As stated in the ALRC’s media release, key proposals arising from the public consultation process undertaken to date include the following:

–simplifying the current regulatory scheme for privacy law;
–providing for the protection of personal information stored or processed overseas;
–introducing a new system of data breach notification to individuals;
–introducing a new statutory cause of action where an individual’s reasonable expectation of privacy has been breached;
–abolishing the fee for unlisted telephone numbers;
–expanding the enforcement powers of the Privacy Commissioner;
–imposing civil penalties for serious breaches of the Privacy Act; and
–introducing a more comprehensive system of credit reporting.

Submissions in response to the discussion paper are due by 7 December 2007. The ALRC plans to release a final report and recommendations in March 2008.

I have not been able to review the ALRC’s proposals in depth, but they appear to be responding to the considerably complex nature of Australian privacy laws (which are addressed at the federal and state levels, sometimes with separate treatment for medical records), as well as attempting to bring current privacy principles in line with current information technology and its implications.

The Senate Legal and Constitutional Committee report on the Telecommunications (Interception and Access) Amendment Bill 2007 was tabled in parliament on 7 August. Get the report here. The legislation was intoduced into the Senate on 16 August 2007. Given the changes that this Bill introduces to the current arrangements for interception capability, and access to ‘telecommunications data’, the recommendations of the Senate Committee will have a relatively low impact on the shape of the final Bill. There was an interesting response put by the A-G’s Department in the committee inquiry in respect the nature of ‘telecommunications data’ (see page 10 fo the A-G response). If RFC 2822 is of interest to you, read on…

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The commercial FTA networks, through Free TV, are pushing for a change to the Commercial Television Code of Practice in advance of the imminent Federal election. The changes, which are the subject of public consultation, would allow the commercial FTAs to sell an additional minute of political advertising…

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The Australian Attorney-General Philip Ruddock has appointed Australian Federal Court judge Susan Kiefel to serve on the commonwealth’s highest court. Justice Kiefel, who will take up her new position on 3 September, replaces Justice Ian Callinan, who is required to retire once he turns 70 on 1 September. See here for some news coverage.

Justice Kiefel, who is based in Brisbane, has sat on the Federal Court of Australia since 1994. Before that, Justice Kieflel was a judge of the Supreme Court of Queensland.

She is the forty-sixth judge, and will be the third woman appointed to the High Court. The first female judge on the court was Justice Mary Gaudron, who sat from 1987 to 2003. The second female judge on the court, Justice Susan Crennan, was appointed in 2005.

Justice Kiefel is currently a part-time member of the Australian Law Reform Commission, as well as President of the Federal Police Disciplinary Tribunal.

I’ve said it again, and again – what is it about internet censorship that leads to the complete departure of reason (and yes, yes, yes, I know, it’s an election year). Sigh grumble grumble.

I nearly choked over my wheaties this morning when I saw this story on the front page of the newspaper, according to which:

INTERNET service providers will be forced to filter web content at the request of parents, under a $189 million Federal Government crackdown on online bad language, pornography and child sex predators.

Let me see, which countries use ISP or country level filtering? China … Saudi Arabia … Thailand … Kazakhstan … Georgia … Iran … Sudan … Malaysia … Tunisia … Uzbekistan… Belarus. Yes, there’s a set of countries I aspire to join.

Now, admittedly, the proposal seems to have ISP level filtering ‘on request’, rather than entirely imposed from above. Unlike the Chinese, Australians will have choice about whether to have their internet service filtered (at least to some extent – there’s plenty of laws in place to require Australian-hosted material to be taken down). The idea seems to be that parents have trouble installing PC-based filters (or at least installing them so their tech-savvy kids can’t get around them) – so ISPs should be forced to do that work for them.

But then that raises interesting issues of cost, doesn’t it? Let us see, what did DCITA itself conclude (note: big pdf) just a couple of years ago?

• Filtering technologies have not developed to the point where they can feasibly filter R-rated content hosted overseas that is not subject to a restricted access system.
• Complex analysis filtering technologies are not practical in a national proxy filtering system. However, due to developments in search algorithms and server power, Uniform Resource Locator (URL) or Internet Protocol (IP) addressed-based filtering does appear technically feasible at the ISP or server level.
• There are a number of practical difficulties in mandating URL/IP based filtering at the ISP level, including accuracy rates and, according to the Internet industry, impact on broadband. Ovum has estimated that URL/IP based filtering would involve implementation costs of approximately $45 million and ongoing costs of more than $33 million per annum. Such costs could significantly impact on the financial viability of smaller ISPs, in particular. Given the limited benefits of an ISP-level filtering system, the costs of a mandated requirement to filter do not appear justified.

So. Show me the report that says something has changed. Oh, no, that’s right, this is another one of those back of the envelope ‘it’s important and it’s an election year’ things. Sigh, grumble, grumble.

And it does seem like a lot of money in order to make it a bit harder for a few kids to access inappropriate material, and to save those kids’ parents the trouble of installing filters on their home computers. cost effective? methinks not. Oh, yes, right – that’s not the issue, it’s an election year.

The much anticipated judgment in the C7 matter has been handed down today…it’s a wopping 1230 pages/7MB. Get it here. In a very small nutshell, Channel 7 did not prove its pleaded case and was thus unsuccessful. The issue of costs is still to be worked out. His Honour Justice Sackville estimates costs in excess of $200million. The obiter on ‘mega-litigation’ will be especially useful to the readers of this blog who teach litigation and legal professional ethics.

The ‘war on terror’ has created the conditions for a new era of content regulation in the form of censorship of film and literature, broadcasting content standards and restrictions on the media in respect of national security matters. This week David Marr commented on the Attorney-General’s recent daubing (sorry I am sticking with the “unifinished canvas” metaphor) – the Material that Advocates Terrorism Discussion Paper released in May 2007 and the upcoming meeting with the States in Hobart at the end of this week. The Discussion Paper attracted many submissions from a diverse group of interested parties. See the submissions. The comments of Maureen Shelley from the Office of Film and Literature Classification Board echo the sentiments in many of the submissions made to the Attorney-General on the terrorism materials paper – that the new regulatory framework is “a significant departure from current practice”. The thrust of many of the submissions and the gist of Marr’s piece is that the changes sought by the A-G will have far reaching, potentially absurd, possibly discriminatory, unintended negative effects on the creation of and access to a broad range of films and literature which “might” fall within the new classification category. Led Zepplin comes to mind “oohh…it makes me wonder”…

[Update: I found this op-ed by Julian Burnside pretty compelling.]

The way that the imprisonment, interrogation, bail release then immigration detention of Dr Haneef is playing out is really making me feel physically ill, and deeply ashamed of my country. And while this is a tech law blog, and I’m not a terrorism or criminal law or immigration expert, I just feel like I need to put my 2c out there, if only for the sake of my own sanity.

Over the fold, I’ve commented on four aspects of these developments that have shocked me to the core: the fact that the legislation seems to allow for unlimited periods of detention without charge; the breadth of the terrorism provisions, the territorial reach of Australian law in this area, and finally, the complete disregard of the rule of law displayed by government ministers, in particular, Kevin Andrews. The whole thing makes me wish I were citizen of a country whose government actually thought civil liberties, democracy, and the rule of law were important.
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Australia’s competition regulator, the ACCC, is taking Google to court, alleging that the search engine company has engaged in “misleading and deceptive conduct in relation to sponsored links that appeared on the Google website”, in contravention of section 52 of the Trade Practices Act 1974 (Cth).

Section 52(1) provides that a “corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

The ACCC has alleged that Google has engaged in misleading and deceptive conduct in breach of section 52 by:

–in 2005, providing sponsored links to online classified advertisement provider Trading Post‘s website, in the guise of hypertext links to two of Trading Post’s competitors (but associating the text with the Trading Post’s URL); and
–on a continuing basis, “failing to adequately distinguish sponsored links from “organic” search results”.

The ACCC has also alleged that Trading Post contravened sections 52 and 53(d) of the Act in 2005 when the names of their business competitors (car dealerships) appeared in the title of Google sponsored links to Trading Post’s website. (Section 53(d) prohibits a corporation from representing that it “has a sponsorship, approval or affiliation it does not have”.) (more…)

Can’t happen quick enough in my view.

Hew Griffiths was sentenced to over 4 years in gaol on Friday for criminal copyright infringement (the US court has recognised time served already in Australia challenging extradition; this means he will spend about 15 months in prison in reality). Hew Griffiths was extradited to the US from Australia in February to face a US court – even though he had never previously set foot in the country.

Earlier commentary on the case can be found at Larvatus Prodeo, Catallaxy, Legal Soapbox (here and here), Inchoate, and IPWars – and even the IPKat, as well as the mainstream media (here and here). Malik and the House of Commons have commented on the endgame, as has Club Troppo. It’s interesting to read the commentary: a lot of people really are quite torn over this one. Griffiths did some pretty serious stuff in terms of copyright infringement – about as serious as you can imagine it getting. Nevertheless, is extradition appropriate/proportionate?

Today, I have a short comment in Crikey. More over the fold. (more…)

Just prior to the last election campaign, there was a big debate about patent evergreening, in which IP academics and patent lawyers around the country nearly had heart attacks as Opposition leader Latham and PM Howard debated the finer points of patent law in the heated atmosphere of Parliament. Too much excitement!

Part of the debate was about whether provisions in AUSFTA, requiring linking of marketing approval mechanisms for drugs (ie, the Therapeutic Goods Administration processes) and patents would cause or contribute to or enable ‘evergreening’. Latham coined the immortal phrasing ‘bodgy patents’ to explain this.

Well, I know this is all water under the bridge now. But I think it’s worth point out that now that the US has a democrat-dominated Congress, there are some changes happening in trade policy. Specifically, for the agreements still awaiting Congressional approval (Peru, Colombia, Panama, Korea), there’s been an agreement reached between USTR and the Democrats in Congress to change the FTA text – specifically, to introduce more flexibility in the patent provisions (as well as some labor/environmental stuff).

You mean all that angst was for nothing? (more…)

Readers of my old blog, Weatherall’s Law, or LawFont from last year may recall that I engaged in a little personal crusade against the re-writing of the criminal provisions that occurred via the Copyright Amendment Bill (see here, here, here, here and here for starters, or have a look at my submission and supplementary submission to the Senate Committee).

At the time, of course, I knew I wasn’t spouting a new line – commentators of all stripes have expressed scepticism about the use of criminal enforcement in relation to IP. So I thought I would just point you all here, where William Patry comments on criminalisation of copyright, quoting Sir Hugh Laddie to similar effect.

By the way, it’s notable that despite the fact that the new criminal provisions in the Australian copyright law, and the capacity to issue on the spot infringement notices, have been around now for nearly 6 months, the government does not appear, so far as I can ascertain, to have yet drafted or publicly consulted on guidelines for their use. So much for the (government-led) Senate Committee’s Recommendation Number 3.

Well, well, well: those of us who, in the fine tradition of lawyers everywhere thinking their own area is sexy, had decided that the High Court would take any old IP case that sounded vaguely interesting, will have to revise their views.

Not only did the High Court refuse special leave in the BP colour trade mark case, but now they’ve refused special leave in the Cooper case on authorisation liability (transcript not yet available).

This one, I have to admit, surprised me. I was very critical of the Full Court judgment when it came out late last year. Now we are stuck with it. Despite the fact that it is arguable that Australian authorisation liability for copyright infringement is now more restrictive (ie, more copyright-owner protective) than elsewhere. Certainly Canada is less restrictive – there, our caselaw was explicitly rejected. Arguably things are less restrictive in the UK, too. Interestingly, our law is more copyright owner protective even than the US: and it’s not just me who thinks so: see this paper by acknowledged experts Sam Ricketson and Jane Ginsburg).

The Fairfax press reported a couple of weeks ago that TiVo, the “time-shifting digital video recorder” is coming to Australia in early 2008 courtesy of a deal struck with Channel 7. On the surface, this seems like a good thing for everyone – that is, everyone who cares about TV- competition between service providers, choice, flexibility and further integration with on-line media services and sources. These digital TV services are evolutionary and it’s good that they seek to move their audiences beyond the one-way flatscreen TV experience. Still, I’ll be interested to see how it pans out, given that the wrangle over the electronic programme guide (EPG) has been foreshadowed, including the “one EPG to rule them all” argument being raised yet again…now the EPG debate has been around for a while, both here and abroad, in respect of access to the subscription tv EPG…hmmm, interesting times ahead…