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Ever wanted a copy of the Australian Constitution when not at your desk? If so, you may be interested to hear that the full text of the Australian Constitution is now available for your iPhone (or iPod Touch). It’s a free application, available internationally through iTunes (please note that this link will work only if you have iTunes installed).

It may interest readers to know that our own Ben wrote the application and uploaded it to the Apple App Store.

Thanks, Ben!

There is certainly a value to social networking websites. Some serve professional networking purposes (such as LinkedIn). And others, like Facebook, have proved to be an effective means of connecting with old friends (for me, including ones I’d lost touch with completely).

It’s not news that we use these websites at our own peril. But here’s a couple of more reasons to be wary, both legal and technical.

A new Facebook notification? “You’ve been served!”

In what seems to be a legal first, a judge of the Australian Capital Territory Supreme Court has upheld the right of lawyers to serve legally binding court documents and notices by posting them on defendants’ Facebook sites.

Plaintiff MKM Capital applied to Master David Harper of the Supreme Court to use Facebook to serve notice of a judgment on two borrowers who had defaulted on a loan. The defendants had failed to repay a loan of $150,000 they borrowed from MKM last year to refinance their mortgage. After being granted a default judgment for the loan amount and for possession of the house after the couple failed to appear in court to defend the action, MKM then had to locate the defendants and serve them with the papers.

After hiring private investigators and 11 failed attempts to find the couple, the lawyers identified the Facebook profiles of the defendants, convinced the court that those profiles did in fact belong to the couple, and satisfied the court that communication through their Facebook pages was a sufficient means of communicating with the defendants.

Wormholes

It was just a matter of time before social networking websites became infected with computer viruses. And now it’s happened: Koobface, a Trojan worm, has been making its way through Facebook and to other social networking websites. The worm generates profile comments that encourage users to click through to an external website that pretends to offer a video to view, but then says that an upgrade of Adobe Flash is necessary first. Users who click on the “install” button infect their computer with the virus. The result? Enabling identity theft and click fraud.

On 28 July, the Australian Communications and Media Authority released its report which sets out the findings of the closed environment testing of ISP-level filters conducted in 2008. The Closed Environment testing report followed hot on the heels of the Developments in Internet Filtering Technologies and Other Measures for Promoting Online Safety report released in February 2008. The latest report shows that the filtering technology has definitely improved in terms of the accuracy of what it blocks and the impact it has on network performance since the NetAlert Ltd trial conducted in 2005. The conclusion, though, is that the filtering technology has not developed sufficiently to be able to tell the difference between legal and illegal and/or inappropriate content carried via non-web protocols (such as peer-to-peer and instant messaging).

From a contributor:

So I was walking down Martin Place at 5pm on Monday night. A group of about 10-15 pilgrims were having their photos taken. Most were standing or sitting on top of the military memorial, happily shouting out and whooping it up. Normally I would politely ask people doing this to step off the memorial out of respect for the people it commemorates (soldiers who died in their service to the country).

But I didn’t, because I was worried I might be accused of “annoying” them and getting arrested.

Is this a chilling effect or what?

The relevant rule is in the World Youth Day Regulation 2008, specifically reg 7(1)(b):

7 Control of conduct within World Youth Day declared areas

(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:

• (a) is a risk to the safety of the person or others, or
• (b) causes annoyance or inconvenience to participants in a World Youth Day event, or
• (c) obstructs a World Youth Day event.

(2) A person must not, without reasonable excuse, fail to comply with a direction given to the person under subclause (1).

Maximum penalty: 50 penalty units.

(3) A person is not guilty of an offence under this clause unless it is established that the authorised person warned the person that a failure to comply with the direction is an offence.

(4) In this clause, authorised person means:

• (a) a police officer, or
• (b) a member of an SES unit (within the meaning of the State Emergency Service Act 1989) or a member of the NSW Rural Fire Service, but only if the member is authorised by the Authority in writing for the purposes of this clause.

So even assuming that the conduct can be classed as “annoying”, it first looks like they need to be “participants in a World Youth Day event”. This is defined in the principal act (World Youth Day Act 2006) as follows: “World Youth Day event means any event determined by the Authority to be an event associated with World Youth Day 2008.” A private lark looks like it might not qualify.

Next, you need to be directed to “cease” engaging in the conduct, by a police officer or authorised member, and they must “warn[ ]” you “that a failure to comply with the direction is an offence”.

Finally, you have to “fail to comply with” that direction “without reasonable excuse”. If you’ve already said your piece and moved on, then this might not apply.

But, once the section bites, it can bite hard: the maximum penalty is 50 penalty units, which is $5,500. (Note that a lower penalty may be awarded.)

To give some context, this is the same maximum penalty as:

• * impersonating, or falsely representing to be an authorised building inspector: sec 86 of the Building Professionals Act 2005
• * a casino operating free liquor as an inducement to gamble in the casino: reg 23, Casino Control Regulation 2001
• * advertising that you are a chiropractor when you are not registered: sec 7, Chiropractors Act 2001
• * failing to notify the Commissioner of Police in writing within 14 days if your genuine or legitimate reason for owning a firearm is no longer valid: reg 14, Firearms Regulation 2006

UPDATED:

The Full Federal Court has just declared reg 7(1)(b) “invalid to the extent that it seeks to prevent merely annoying conduct”: see Evans v State of New South Wales.

The key passages are:

83 In our opinion the conduct regulated by cl 7(1)(b) so far as it relates to “annoyance” may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive in the sense traditionally used in State criminal statutes. Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed. Moreover there is no intelligible boundary within which the “causes annoyance” limb of s 7 can be read down to save it as a valid expression of the regulating power.

and

88 For the preceding reasons, the Court will make a declaration that cl 7(1)(b) is invalid to the extent to which it is applied to conduct which causes annoyance to participants in World Youth Day events. There is otherwise in cl 7 a substantial measure of protection against disruptive behaviour, behaviour which causes inconvenience to participants and behaviour which may give rise to a risk to public safety. Over and above these provisions the general criminal laws of the State relating to disorderly and offensive conduct and the like are able to be invoked should that be necessary.

Note that, to the extent the regulation prohibits causing “inconvenience”, it remains valid:

84 … While the term is broad it does not depend upon the subjective reactions of participants in World Youth Day events to the conduct in question. It requires a judgment by the authorised person of objective inconvenience. Such inconvenience may arise, for example, where protestors by their locations or actions hinder or obstruct the movement of participants or are so loud in their protest as to impair communications between groups of participants and officials. The term “inconvenience” may be criticised as conferring wide powers of uncertain ambit upon authorised persons but it is, in our opinion, a term which can reasonably be construed as limited to matters susceptible of objective judgment. The term does not reach so far as to impair expression of opinions with which people might disagree or which they might find troubling. In our opinion that aspect of cl 7(1)(b) does not spell invalidity.

Today we had the pleasure of a staff seminar up here at the University of Queensland Law School – by David Lindsay, an old colleague of mine from my melbourne days. David these days is at Monash University Law School.

David’s recently published a book with Hart called International Domain Name Law.

Now, I remember back when I first started teaching ‘cyberlaw’ type subjects at Sydney University back in around 2001-2002, domain names was one of those standard things you did. But people seemed to move on, lose interest; stopped talking about domain names much. But today’s talk was something of a revelation to me: David outlined something of the strange, quasi-common-lawish nature of the domain name decisions, with the gradual development of views on issues of interpretation, the areas of controversy, the splits, the absence of clear principles upfront leading to a gradual ‘feeling around’ – all at internet speed due to the number of decisions being issued. He also revealed some of the more outlandish aspects of this rough-and-ready systems: the application of random bits of national law; the lottery that is panellist appointment. And he elucidated how many of the areas of controversy could be fixed with some clear understanding of the objectives of the system.

It was very clear that david’s really done the hard yards in this book: he really has read the decisions – lots and lots and lots of them – and he’s done the heavy intellectual lifting of trying to make sense of it all. I couldn’t be more enthusiastic in recommending it should you ever need to worry about domain name disputes.

This morning, one of the authors of the iPhone paper I mentioned earlier this week defends his views against Gans’ comments. One thing about Dale’s defence struck me as interesting, and that was this:

Professor Gans correctly makes the point that Apple could try and obtain permission (technically, an exclusive dealing notification) from the ACCC. Actually obtaining that permission is not a given. I think that the ACCC might well object, which they can do if they are not satisfied that the public benefits of the third-line forcing would outweigh the public detriment, and I think that balance would be weighing against Apple.

Hmmm. Firstly, I’m not sure it’s correct to characterise notification as meaning the ACCC gives ‘permission’. In fact, my reading of the Act suggests that lodging a notification provides automatic immunity from the date it is lodged with the ACCC (or soon after in the case of third line forcing conduct) and remains in force unless revoked by the ACCC.

Secondly, while it is technically true that non-revocation by the ACCC is not a ‘given’, they’re not exactly in the business of revoking these things. The statistics to some extent speak for themselves. According to the ACCC’s 2006-2007 Annual Report, page 92:

1. In 2006-2007, the ACCC received 694 new notifications, and revoked 2 (that’s a revocation rate of 0.3%). 9 were withdrawn by the notifier.
2. In 2006-2006, the ACCC received 1099 new notifications, and revoked NONE (that’s a revocation rate of zero %). 6 were withdrawn by the notifier.

Also, in determining whether a notification should be revoked, the ACCC has to take into account whether the detriment caused by the arrangement outweighs the benefit. The ACCC’s guide to exclusive dealing notifications on page 8 records the ACCC’s view that “[t]he detriment will be more limited when potential buyers of [the iPhone] have alternative sources of supply for [the iPhone] or substitute products.” Surely, except to the most ardent Apple fanboy, there are numerous economic substitutes for the iPhone (as indeed Gans pointed out).

Again, IANACL (I am not a competition lawyer). But I’m not yet convinced of this one.

Update: Gans responds. And the discussion is ongoing over on CoreEcon in the comments to that thread.
Further update: Clapperton is also getting into the discussion.

All over the press today that QUT people Dale Clapperton (of Defending Scoundrels) and Stephen Coroneos have published a paper arguing that a deal that saw the iPhone locked to a single telephone network could breach competition laws.

I’m not a competition lawyer, so I’m not really in a position to assess the validity of the argument from a legal point of view. Nor am I an economist, so I’m not able to tell you whether a deal like the iPhone one would actually pose a danger for competition. But Joshua Gans is, so head on over there for his views. In a word, not impressed. Ouch.

[Image by Hawken King, licensed under CC-BY]

A report into Freedom of Information Laws and (media) free speech in Australia, commissioned by the Right to Know Coalition, has been released. Called the Report of the Independent Audit into the State of Free Speech in Australia, you can download it here (beware: big (336 page) pdf).

The media are breathlessly reporting that ‘more than 500 separate legal provisions in 335 different state and federal acts of Parliament are denying Australians access to a vast amount of information they should be able to see’. Numbers aside, I’ll be interested to see what kinds of information are limited, what grounds can be used to limit availability of information, and how the procedures for getting information are set up (are they complicated? simple?).

Obviously, I’ve not read it yet. Maybe more commentary when I have.

I’ve become more interested in copyright bureaucracies, and patent and trade mark offices: how they operate; how transparent they are; who they are; how powers are divided between them; how they interact; how they characterise their role, their ‘customers’, and their ’stakeholders’. How we make them accountable for the decisions they make – or how we fail to do so. Regular readers may have noticed this flavour seeping into some of my more recent posts and papers.

Today, my little obsession is the growth of cooperation between Patent Offices around the world. While there’s long been cooperation (Trilateral Cooperation, for example, between the US, Japan and Europe was set up as early as 1983) I’ve been detecting an increase in the number of press releases in this area, and the number of mooted pilots and activities. So, being the obsessive that I am, I thought I’d collect together what’s been going on – at least as published, that I can find – and offer a few thoughts and questions that these developments raise. (more…)

Here’s the latest activity regarding communications related national security legislation brought to you courtesy of the Senate Bills List dated 15 October…

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I read in the SMH that Premier Iemma is planning to reform the law to allow police to issue on-the-spot fines for minor criminal offences such as shoplifting, offensive language and minor fraud.

Can I just say that I think this is a really interesting, as well as a potentially troubling, development. I’m not aware of other situations in which conduct we might consider ‘truly criminal’, albeit only in a minor way, has been the subject of on the spot fines. And it seems to me that this approach, while having all the attraction of ‘efficiency’ in the allocation of policing forces, runs the serious risk of muddying the civil-criminal waters in undesirable ways. (more…)

Australia’s Patent Office, known as IP Australia, has launched its “Strategic Statement” for the period 2007-2012. Like all these things, it’s a bit boring and all motherhood-statement-y – as, indeed, one would expect.

But a couple of things about the Strategic Statement are notable. In particular, it explicitly states its ‘vision’: basically, it sees itself as a branch office, competing for business and trying to make its services more attractive to ‘customers’. But that raises some really interesting issues. Just think about the kind of business IP Australia is ‘competing’ in. On one view, it’s ‘competing’ in the business of granting monopolies. Can anyone see a problem? (more…)

Further to my previous posts, the Telecommunications (Interception and Access) Amendment Bill 2007 was passed by the Senate on 20 September 2007. It went through without a definition of ‘telecommunications data’. The Democrats and the Greens expressed their concerns about the bill generally and its impact on privacy and the vagueness of the term ‘telecommunications data’ but their suggested amendments were negatived. See Natasha Stott-Despoja’s speech and Kerry Nettle’s speech for details.

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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