Welcome to the January edition of our quarterly Digital Media Update. This publication keeps you informed of the latest developments affecting the digital media industry both in Australia and globally.
The first quarter of 2012 looks to be an eventful one for the sector with a number of long running reviews and litigation reaching their respective conclusions.
On 15 December 2011 the Convergence Review Committee released the Interim Report in its review of the policy and regulatory frameworks that apply to the converged media and communications industry in Australia.
The Interim Report sets out recommendations that will shape the Committee's final report. Key recommendations include replacing the ACMA with a new regulator, introducing a new "public interest" test for media M&A transactions, the removal of the licensing structure for radio and television broadcast content, and the expansion of key regulatory polices beyond traditional broadcasters to online content providers. For more analysis of the Interim Report and information about the Convergence Review, please see our recent Convergence Review Update and our Convergence Review Site.
The final report will take other relevant reviews into consideration, in particular:
both reporting by 28 February 2012.
The final Convergence Review report is due to be delivered to the Government in March 2012. Please note that final submissions on the Interim Report are due by 10 February 2012.
A Privacy Cause of Action?
On 18 November 2011, submissions closed on the Federal Government's issues paper: A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy. A large number of submissions were received in response to the issues paper, reflecting the heated debate that has surrounded this topic. Submissions that have made public are available here.
The paper considered whether Australia should introduce a statutory cause of action for privacy, and if so, what elements it might include. It also discussed what test might be used for the cause of action, noting that the ALRC, VLRC and NSWLR all recommended that plaintiffs should be required to demonstrate that there was, in the circumstances, a reasonable expectation of privacy on their part. Finally, it outlines the ALRC's recommendations for defences including where the conduct is authorised by law, when relevant information is privileged under defamation law, and when the conduct is incidental to defending persons or property.
Click here to read our legal alert which examines the issues paper in the context of the present state of privacy law.
Intermediary Liability - Australia
The debate surrounding intermediary liability for copyright infringement in an online context continues, both in Australia and in many foreign jurisdictions. Recent Australian developments include the following.
High Court hears iiNet case
From 30 November until 2 December 2011, the High Court heard the appeal from the decision of the Full Court of the Federal Court in Roadshow Films Pty Ltd v iiNet  FCAFC 23. Transcripts and submissions from the case can be found here.
The appeal was based on five grounds being that:
- the Full Court erred in holding that iiNet had not authorised users' copyright infringements;
- the Full Court erred by failing to apply the principles stated in UNSW v Moorhouse (1975) 133 CLR 1;
- the Full Court erred in considering whether iiNet had sufficient knowledge of copyright infringement;
- Justice Emmett erred in his judgment that the film companies would have to provide iiNet with "unequivocal and cogent evidence" of copyright infringement before it could act on it; and
- Justice Nicholas erred in holding that iiNet's conduct did not constitute "countenancing" of copyright infringement in accordance with Moorhouse.
The Attorney-General's Review of Copyright
The government has largely avoided commenting on these issues whilst the iiNet proceedings have been on foot, instead encouraging industry-driven solutions. However, the Attorney-General's department recently held a roundtable discussion with ISPs to discuss potential industry solutions to this issue and the Attorney-General also recently endorsed an upcoming copyright review by the ALRC, which could also possibly consider issues relevant to this debate.
Communications Alliance proposal regarding ISP liability
On 25 November 2011, just prior to the iiNet appeal hearing, Communications Alliance and five of Australia's largest ISPs unveiled a proposal for a scheme to combat online copyright infringement. The scheme would require ISPs to forward education and warning notices to individuals whose accounts are detected as infringing. It would not provide for termination of customers' accounts or punitive sanctions. It is proposed to operate on a trial basis for 18 months with a review afterwards.
Intermediary Liability – Global
They have also been a number of overseas developments that are of interest from an Australian perspective given the ongoing debate surrounding the issue.
(Spain) Spain establishes new copyright infringement agency (January 2012)
The Spanish Parliament has passed a law establishing the Intellectual Property Commission, a government body given powers to take action against ISPs and sites providing links to infringing content. The Government aims to reduce high levels of illegal downloading through a fast-track system that follows up on content owners' complaints.
(Netherlands) Dutch courts block access to The Pirate Bay (January 2012)
On 11 January 2012, a Dutch court ordered two major ISPs to block access to the controversial bit-torrent website, The Pirate Bay in order to prevent illegal downloads. The case was brought by an association of major recording and film studios. The ISPs concerned have 10 days from the date of judgment to block the site or face a EUR 250,000 fine.
(USA) Veoh wins UMG copyright infringement case (December 2011)
A US Appeals Court affirmed a District Court ruling that Veoh, a publicly accessible website that allowed for easy video sharing, was protected by the DMCA's safe harbour in respect of its users' infringing acts. The court ruled that the plaintiff, UMG, a major record company, showed insufficient evidence that Veoh failed to act upon knowledge of copyright infringement. Further, it was made clear that the onus to identify infringing materials is on content owners, not service providers. A copy of the decision can be located here.
(USA) Controversial SOPA law introduced in USA (October 2011)
The Stop Online Privacy Act (SOPA) was introduced into the US House of Representatives on 26 October 2011 amid significant controversy. If passed, the US government, following court orders, may gain authority to shut down US-based websites that offer pirated content, even if the sites are unaware they are hosting the content in question. However, consideration of SOPA by the House Judiciary Committee and the vote on SOPA's counterpart, the Protect IP Act (PIPA), which was pending before the Senate, have both been postponed following internal disagreements and public outcry.
(UK) BT forced to implement technical measures to block offshore-hosted website (October 2011)
In the first legal action of its kind in the UK, the Motion Picture Association (MPA) obtained an injunction forcing BT, a major ISP, to cut off its customers' access to Newzbin, an offshore-hosted website with links to copyright infringing music and films. The injunction was granted on the basis that BT had actual knowledge of customers infringing copyright while using its service. On 26 October 2011, the court required BT to implement certain technical measures to block access to the Newzbin site. Full text of the decision here.
(USA) MP3tunes granted safe harbour protection for some activities (August 2011)
MP3tunes was sued by EMI Group and others for allowing users to copy songs without permission from the relevant copyright owners. MP3tunes is a cloud music service that lets users store their music in online lockers. Whilst MP3tunes was found liable for infringement in a number of specific instances, the court found that MP3tunes generally had the benefit of the safe harbour provisions in the DMCA provided it properly met relevant criteria, including by complying with takedown notices.
(India) MySpace in India held liable for user uploads (July 2011)
MySpace was held indirectly liable for users' uploads to its site, despite the fact that Indian law has a safe harbour for online intermediaries. The court held that it did not matter that MySpace followed the procedures required in the US DMCA to obtain safe harbour, including taking steps to remove the content after they became aware that it was infringing material. The intermediary safe harbour provisions in Indian law were not a bar to the copyright claim.
ACMA Privacy Guidelines
On 23 December 2011, the ACMA released its Privacy Guidelines for Broadcasters. The Guidelines were released by the ACMA to promote its view of the privacy obligations set out in various broadcasting codes of practice and outline how the ACMA assesses complaints by listeners or viewers.
There is a focus in the Guidelines on how broadcast material can invade peoples' privacy by way of intrusion during their seclusion, as well as privacy issues relating to the disclosure of personal information. Intrusions on a person's seclusion might occur where a person has a reasonable expectation that his or her activities would not be observed or overheard by others, and a person of ordinary sensibilities would consider the broadcast of those activities to be highly offensive.
The Guidelines also clarify when consent might constitute a waiver to a person's right to privacy protection. In the ACMA's view while a parent or guardian's express consent must be obtained before using material that invades a child's privacy the ACMA considers that this will not always be sufficient to comply with code obligations. Eight case studies based on recent investigations into privacy-related complaints provide further guidance on consent, as well as on obtaining footage via hidden camera, reporting on the personal affairs of public figures, and the use of material in the public domain (including on social media websites).
ACMA considers privacy implications of material sourced from Facebook
On 19 December 2011, the ACMA conducted an investigation into the use of Facebook content by a major free-to-air television provider during a local news broadcast.
The AMCA decided that the use of photos, posts and names from a Facebook 'RIP tribute' page did not constitute a breach of privacy under the Commercial Television Industry Code of Practice 2010 in the circumstances. The ACMA took into consideration the open nature of the Facebook page, the fact that the photographs were not sensitive and the absence of any privacy settings. Importantly, the case did not involve information relating to the child's health or criminal investigations.
The ACMA has indicated that despite its findings, the use of privacy settings, while an important consideration, will not be a determining factor in all circumstances. Each case will be considered against the obligations in the Code of Practice.
Interactive Gambling Review
Submissions to the Interactive Gambling Review have now closed. All submissions made can be viewed here.
The Review began when Senator Stephen Conroy released a discussion paper on the Interactive Gambling Act 2001 (IGA). The IGA was introduced in 2001 and created offences concerning the provision of certain interactive gambling services, such as online poker or roulette, to people physically located in Australia. However, the IGA did not make it an offence for Australian customers to use interactive gambling services, nor did it prohibit telephone betting or wagering on sporting events.
The Review seeks to promote discussion of the issues relevant to the regulation of interactive gambling in Australia, including the issues identified by the Productivity Commission in its July 2010 Report, how device convergence impacts how consumers gamble, and enforcement of prohibitions on advertising, taxation and enforcement through the use of financial restrictions. The Review is expected to be completed by mid-2012.
Mobile premium services updates
A revised draft of the Mobile Premium Services Code was published in December 2011. Once registered by the ACMA, the Code will replace the previous 2009 MPS Code. The ACMA is also reviewing rules that protect SMS and MMS customers from rogue operators, such as bills that may cause significant financial harm, via the release of a recent consultation paper.
New EU privacy developments
The implementation period for EU countries subject to a May 2011 E-Privacy directive that requires stricter controls on cookies has ended. Please see our client alert on the current state of cookies law. The EU is also in the process of reviewing the general framework on the protection of personal data. Following a consultation process, draft legislation is expected to be published by the end of January 2012.
New regulation of online advertising of financial products
On 30 August 2011, ASIC released a consultation paper and draft regulatory guide containing best practice guidance for advertising financial products, seeking to clearly outline advertisers' obligations and promote balanced decision-making. Comments on the paper and guide are now closed. The final regulatory guide is expected to be released in late January 2012.
Developments in UK copyright law
The UK-IPO recently launched a "Consultation to change the UK's copyright system", with the intention of making proposals for legislation in Spring 2012. Following the Hargreaves Review, which examined how the UK could better promote innovation and growth through its IP framework, the UK Government accepted certain recommendations on copyright, including plans to create a Digital Copyright Exchange, an orphan works scheme, minimum standards for voluntary codes for copyright licensing, improving enforcement of IP claims, and introducing limited copyright exceptions for private use.