In the Victorian Government Gazette S314 Friday 24 June 2022 the Attorney General made a declaration under section 35(3) of the Defamation Act 2005 to increase the maximum non economic loss damages to $443,00.

The declaration states:

Defamation Act 2005
DECLARATION UNDER SECTION 35(3)

I, Jaclyn Symes, Attorney-General, being the Minister for the time being administering the Defamation Act 2005, hereby declare in accordance with section 35(3) of the Defamation Act 2005 that on and from 1 July 2022 the maximum damages amount that may be awarded for non-economic loss in defamation proceedings is four hundred and forty three thousand dollars ($443,000).

Dated 7 June 2022

JACLYN SYMES MP
Attorney-General

The use of closed circuit television has been a matter of concern in for privacy commissioners in Europe and the UK for some time.  Now the Privacy Commissioner in New Zealand has provided guidance on the use of the CCTV, responding to the concerns about the use of surveillance cameras.  Unfortunately in Australia at the Federal level the Information Commissioner has showed scant interest with one short page saying pretty much nothing about the issues.  That is a pity.   The potential of privacy intrusion through the misuse of cctv technology is significant. 

The media release provides:

From our experience, putting up a CCTV or surveillance camera can get a strong reaction from the public.

Our Privacy Concerns and Sharing Data 2020 survey found 41 percent of people over 18 years old were concerned about the use of surveillance cameras.

Because CCTV captures images of people, which can be used, stored, manipulated, and disseminated, those who operate the systems need to be aware of how to manage privacy issues.

Good management of personal information is essential to the effective running of CCTV systems. Businesses can only take advantage of the full benefits available from CCTV technology if they manage their system with privacy in mind.

All organisations considering using CCTV need to be mindful of their obligations under the Privacy Act 2020. Organisations must only collect personal information if it is for a lawful purpose connected with their functions or activities, and the information is necessary for that purpose. 

We always recommend that agencies minimise the amount of personal information they collect. Any information that is collected should also be securely disposed of once it’s no longer needed for the organisation’s purpose.

The guidelines provides, with Read the rest of this entry »

Justice John Dixon has provided a very valuable judgment in Agustin-Bunch v Smith (No 2) [2022] VSC 290 providing a very useful and detailed analysis of how to plead, and more particualrly how not to plead defences.  It ended up being a bad day at the office for the defendants.

FACTS

The plaintiffs by writ seeks:

• damages,
• a permanent injunction restraining the defendants from publishing certain material, and
• a mandatory injunction for the removal of certain publications from the internet that they allege are defamatory [1].

The second plaintiff seeks damages pursuant to s 236 of the Australian Consumer Law (‘ACL’), contending that the defendants had engaged in misleading or deceptive conduct in contravention of s 18 of the ACL [1].

On 12 April 2021,  the court refused the plaintiffs’ application for an interlocutory injunction restraining the defendants from publishing or causing to be published in any form, or maintaining online for download, or uploading so as to make available for publication online:

(a) 15 specific videos;
(b) hyperlinks to a Facebook group described by the plaintiffs as the ‘Dr Farrah Hate Page’;
(c) certain Facebook and Instagram posts;
(d) the imputations and representations set out in nominated paragraphs of the plaintiffs’ statement of claim; and
(e) any matter of and concerning the plaintiffs to the same purport or effect as any of the publications referred to.

The relevant publications alleged to convey defamatory imputations are videos [6] where Dr Smith speaks partly in Tagalog and partly in English to a Filipino audience [7].

The defendants pleaded the defences of:

• truth,
• contextual truth,
• honest opinion, and
• qualified privilege both at common law and relying on the relevant statutory provisions [8]

The plaintiffs allege about 70 imputations and the defendants plead a truth defence to approximately 60 imputations [10].The defences have been Read the rest of this entry »

The National Institute of Standards and Technology (“NIST”) has release Engineering Trustworthy Secure Systems for public comment.It is a very useful document for those interested in privacy and cyber security in that it provides a framework for analysis.

This guide has been produced pursuant to a Presidential Executive Order on 12 May 20212 titled Improving the National’s Cyber Security WO 14028.

The key elements of that executive order Read the rest of this entry »

The Federal Court, per Rares J, found for John Barilaro in Barilaro v Google LLC [2022] FCA 650 for defamation by means of posts on YouTube and awarded him $715,000.

FACTS

The publications complained of were two YouTube videos prepared by a Mr Shanks:

• bruz, first uploaded on 14 September 2020.  The contents are described in great detail at [33] – [63]; and
• Secret Dictatorship, first uploaded on 21 October 2020 [3].  It is described in great detail at [81] – [91]

The imputations pleaded in bruz video was that:

(a) Mr Barilaro is a corrupt conman;

(b) Mr Barilaro committed perjury nine times;

(c) Mr Barilaro has so conducted himself in committing perjury nine times that he should be gaoled;

(d) Mr Barilaro corruptly gave $3.3 million to a beef company; and

(e) Mr Barilaro corruptly voted against a Royal Commission into water theft [4].

The imputations pleaded in Secret Dictatorship video was that:

(a) Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors;

(b) Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors using taxpayer money; and

(c) Mr Barilaro has pocketed millions of dollars which have been stolen from the Narrandera Shire Council [5].

On 25 November 2020 Barilaro’s chief of staff, McCormack, contacted Google Australia’s manager to complain about the racist and untrue content of friendlyjordies videos [129].  On 30 November 2020 Barilaro’s social media manager made a formal complaint to YouTube about the allegations Read the rest of this entry »

Artificial Intelligence (“AI”) is revolutionising the way we consume, the way work is done, the way things are built.  The productivity gains have been extraordinary.  It also poses significant public policy challenges.  The problems include a lack of transparency in decision making, the skewed results with potentially poor quality algorithms and the “black box” effect where the path of reasoning is obscured or completely unknown. And it can have a dystopian potential, skewing results against minorities for example.  That is a problem with facial recognition technology and predictive analytics in insurance and criminal investigations.  All of those matters concern the public.  There is a dearth of regulation for the good reason that legislatures are not sure how to properly regulate without harming the positive potential of AI. 

The Singapore Privacy Commissioner has launched AI Verify – An AI Governance Testing Framework and Toolkit.  It is ostensibly designed to allow companies to demonstrate responsible AI.  It is a voluntary scheme. It is certainly a step in the right direction.

The press release by the Infocomm Media Development Authority, Singapore launches world’s first AI testing framework and toolkit to promote transparency; Invites companies to pilot and contribute to international standards development provides Read the rest of this entry »

The UK Information Commissioner has imposed a significant fine of £7,552,800 on Clearview AI for illegally collecting personal data of UK residents. The facial images of UK residents were scraped from the internet and fed into Clearview’s database where, with the aide of artificial intelligence, it could use that data to identify those people and monitor them.

Clearview AI continues to maintain that it has done nothing wrong, saying that its technology and intentions have been “misinterpreted.” and claimed that Clearview AI is not subject to the ICO’s jurisdiction.

Clearview has already been the subject of act ion by other regulators. In March 2022 the Italian data protection agency fined Clearview €20 million penalty for breaches of EU law.  In December last year France’s data watchdog, CNIL,found that Clearview had committed two breaches of the the GDPR.    Similarly in February 2021 Canadian privacy commissioners stated that Clearview violated Canadian Privacy laws .  In the United States Cook County, effectively Chicago, and Clearview entered into agreement in settlement of a suit whereby Clearview has agreed to stop providing its technology to most private clients and doing business in Illinois. 

The use of facial recognition technology by police, is belatedly being scrutinised Read the rest of this entry »

In Re Australian Builders Group Pty Ltd [2022] VSC 254 the Supreme Court, per Hetyey AsJ, set aside a statutory demand based on a genuine dispute based on the construction of an agreement and default notice but also by a claim of duress.

FACTS

On or around 1 June 2017 Mind, a not-for-profit organisation providing community-managed specialist mental health services entered into an agreement with Australian Win Win Investment Pty Ltd (‘the landlord’) to lease a property located at 691 High Street, Thornbury, Victoria (‘the property’ and ‘the lease’ respectively) for an amount of $130,000 per annum (approximately $10,833.33 per calendar month) [1].

In early May 2018, Mind and ABG entered into a sublease agreement for the property (‘the sublease’). The parties to the sublease agreed that ABG would pay a reduced amount of rent of $121,000 per annum (approximately $10,083.33 per calendar month) [2].

From February 2019, ABG began to fall into arrears & by 15 April 2021, it owed Mind approximately eight months’ rent, totalling $82,279.92 (‘the arrears’). Pursuant to a repayment deed, ABG agreed to make regular payments of the arrears of $2,500 plus GST, together with interest, per week.

Regarding the repayment Read the rest of this entry »

In A & J Morphett Nominees Pty Ltd v JBT Lawyers Pty Ltd & Anor [2022] VSC 238 Justice Dixon in upholding an appeal made important statements for practitioners on the role of stakeholders.

FACTS

On 26 November 2018 the appellant and Chloe Estelle Pty Ltd entered into the contract with the appellant paying the deposit of $42,000 to the respondent on 6 December 2018 [4].

On 21 March 2019, the appellant by written notice terminated the contract and requested that the respondent repay the deposit to it [4].

The appellant, A & J Morphett Nominees Pty Ltd, commenced proceedings against Chloe Estelle Pty Ltd, as first defendant, and the respondent, JBT Lawyers Pty Ltd, as second defendant in the Magistrates Court.  In its defence the respondent admitted that it received the deposit sum as a stakeholder as alleged by the appellant [6].

On 24 June 2019, the appellant entered default judgment in the proceeding against Chloe Estelle Pty Ltd, which included an amount for interest and costs [7]. The appellant did not recover against Chloe Estelle Pty Ltd as it was and on 18 July 2019, an administrator was appointed and it was subsequently ordered to be wound up. The liquidators made no claim for the deposit.

It was never been in dispute that the respondent received that sum as a stakeholder for the appellant and Chloe Estelle Pty Ltd [3].

On 29 March 2019, the Federal Circuit Court, per Small J,made an order in a Family Law dispute between different parties.  It relevantly Read the rest of this entry »

The Federal Court, per Halley J, set aside a statutory demand in CBS Commercial Canberra Pty Ltd v Axis Commercial (ACT) Pty Ltd, in the matter of CBS Commercial Canberra Pty Ltd [2022] FCA 544 in finding that an offsetting claim constitutes a genuine dispute. It is a very good decision setting out the complications of offsetting claims arising from building contracts relied upon in setting aside a statutory demand which is based on a certificate and judgment obtained under the Security of Payments Act.

FACTS

CBS engaged Axis as a sub-contractor to undertake work at a building site located in Gungahlin in the Australian Capital Territory [12].

The chronological events Read the rest of this entry »