Lifehacker reports that  iiNet, Internode, Primus, Optus and Telstra have released a proposal for dealing with online piracy. It’s an education-based scheme that doesn’t force ISPs to cut off customers accused of piracy by movie studios.

The Communications Alliance has released a discussion paper here.

In a related development the ECJ ruled  in Scarlet Extended SA that Courts cannot force ISPs into broad filtering and monitoring for copyright-infringing traffic.

The ECJ ruling means national courts cannot force ISPs to use filter systems, installed at ISPs’ own expense and used for an unlimited period, to monitor all its customers’ electronic communications to prevent illegal file-sharing. It said that such an order would breach ISPs’ rights to freely conduct business and individuals’ rights to privacy, free speech and the protection of their personal data.

The ECJ assessed EU laws on copyright, intellectual property rights enforcement, data protection, privacy and electronic communications and the free movement of information when making its ruling. It also considered rights contained in the EU’s Charter of Fundamental Rights.

Out-law.com reports 1000 breaches of personal data in the last 3 years.

It provides:

The publication of submissions into the Commonwealth Statutory cause of action are being placed on line here.

The supporters overwhelm the naysayers though the level of resistance is quite small. There are some quite extraordinary submissions, namely that of Jessie Porteus.  An impressive tome found here.

The privacy implications of facial recognition techonology have been highlighted from the outset.  That doesn’t mean the law has developed a satisfactory framework to deal with the obvious potential for abuse.  Far from it.  On privacy the legislature has been quite timid.

On Tuesday the Age ran an interesting piece identifying the pros and cons regarding facial recognition technology.

It provides:

??FOR

• identify criminals using grainy CCTV or mobile footage
• automatically pick people on terror watchlist
• proactive crime fighting and monitoring
• quicker and better Customs checks at airports
• check multiple identities simultaneously
• richer online services (Facebook, Google)

AGAINST

• false positives
• risk for total surveillance
• potential for abuse
• people don’t necessarily know they’re being watched
• the evidence on its own won’t hold up in court
• can’t change face if “hacked”

Is it the most significant policing technology since DNA testing or the next privacy disaster waiting to happen, setting us on the path towards, as The Guardian’s editor puts it, “total surveillance”?

The battle lines have been drawn Read the rest of this entry »

Yesterday the Minister for Home Affairs introduced the Access to Justice (Federal Jurisdiction) Amendment Bill 2011.

For those in the civil litigation field it will be a significant piece of legislation on the issue of discovery, suppression orders and vexatious litigants.

The Second Reading speech provides:

This government has a proud history of reforms that facilitate access to justice. This bill marks the latest tranche of those reforms.

Discovery

The bill will implement legislative reforms regarding discovery during Federal Court litigation that were recommended in the Australian Law Reform Commission’s Managing discovery report, tabled in parliament in May 2011.

The Attorney-General initiated that inquiry in May 2010, following the 2009 report by the Attorney-General’s Department’s Access to Justice Taskforce entitled A strategic framework for access to justice in the federal civil justice system. The task force identified the high and sometimes disproportionate costs of discovery as a specific barrier to justice.

The Australian Law Reform Commission made practical recommendations aimed at the Federal Court taking greater control over the discovery process, many of which have already been implemented by the court in its new rules, or are under active consideration by the court. I acknowledge the effort the Federal Court continues to put into refining its case management processes, including those relating to discovery.

The government also welcomes Read the rest of this entry »

I have made submissions to the Commonwealth Governments’ consideration of a statutory right to privacy.  I have set it out below:

Read the rest of this entry »

Today the Victorian Privacy Commissioner has released the latest update of the Guidelines to the Information Privacy Principles in the Information Privacy Act 2000.  The guidelines are found here.

The media release provides:

The Victorian Privacy Commissioner, Helen Versey, today released the third edition of the Guidelines to the Information Privacy Principles in the Victorian Information Privacy Act 2000.

Writing in the introduction, Ms Versey says “Five years has passed since the second edition of the Guidelines was published. Technology has continued to Read the rest of this entry »

In “Where the Bloody Hell Are You?”: Lara Bingle in Search of a Cause of Action the Fortnightly review has used the controversy involving a photograph of Lara Bingle in 2010 in the context of a cause of action in defamation, breach of privacy and misuse of her image.

It provides:

On March 1, 2010, Woman’s Day published a nude picture of Lara Bingle which was allegedly taken in 2006 while she had a “secret” affair with AFL star Brendon Fevola (who was and still is married to Alex Fevola).

The image shows Bingle Read the rest of this entry »

In today’s Age there is a depressingly familiar story about financial and personal records being taken by an employee of Computershare by the simple use of downloading data onto a USB stick.

The person breaching the security was an ex employee of Computershare.  The motives for the action are not clear.  Breach of confidence actions against ex employees who use information belonging to the previous employers to set up in competition is based on  long standing and well established equitable principles.

Where the law faces more challenges in dealing with this type of action is when not only are commercial sensitive documents removed but also masses of personal information.  That is where the privacy of individuals becomes a factor.  Unfortunately the common law and equity has been tentative in dealing with this issue.

In Radiomio Pty Ltd v Kendell; SISS Business Systems Limited v Kendell [2011] VSC 511 Gardiner AsJ set aside statutory demands under 459J of the Act, where there is some other reason, in addition to the claim there was a genuine dispute and offsetting claim, section 459G and H.

FACTS

The Defendant, Kendell, issued three statutory demands for $28,477.04 (182 demand) and $18,694.97 (184 demand) for fees and $93,349 (953 demand) pursuant to an incentive plan.

The factual matrix is quite complex and involved (see [17] – [23]). In short compass, prior to the service of the 182 and 184 demands Kendall served unsigned statutory demands and unsigned draft affidavits.  On 14 December 2010 Kendell served statutory demands claiming $54,868.94 and $46,741.10.  After these demands were served  a payment of $30,000 was made by the plaintiff.  On 25 December 2010 Kendell wrote to the plaintiff’s solicitor confirming that he had withdrawn previous statutory demands and that he had independently reviewed his invoices, arriving at different figures. On 30 December 2010 the 182 and 184 demands were served.  The plaintiff submitted that it was not safe for the Court to rely on Kendall’s affidavits because, inter alia, no explanation was given as to why the demands varied so much as to the amount demanded and that Kendall had previously sworn there was no genuine dispute as to the debt but had varied the sums demanded under subsequently sworn affidavits.

DECISION

Set aside for some other reason – Section 459J

Gardiner AsJ stated that because of the serious consequences associated with the service of statutory demands the accompanying affidavits have a real purpose in providing safeguards to the person serving the statutory demands which are potentially controversial.  He quoted Four Seasons Construction v Eastern Metropolitan Council regarding the purpose of affidavits, providing:

First, the corporation is advised Read the rest of this entry »