The laid back Australian attitude has seen your average Joe turn a blind eye to the illegality of online piracy. However, as many have nervously anticipated, the Dallas Buyers Club LLC v iiNet Limited  FCA 317 decision was handed down by the Federal Court a fortnight ago and it isn’t good news for the ‘Pirates of the Web’.
Last year, the owners of Dallas Buyers Club took six Australian internet service providers (ISPs) to court to hunt down over 4,700 customers who allegedly pirated or shared the film before it was released in Australia. The landmark decision requires the ISPs (including iiNET and Dodo) to hand over their customers’ private details to the owners.
This is the first time an Australian judge has had to tackle the concept of rights holders pursuing people believed to have infringed their copyright by pirating movies online. This process is already underway in the US, UK and Canada, where rights holders are able to obtain the details of customers alleged to have infringed their copyright and, based on this information, send the pirates letters of demand requesting exorbitant amounts of compensation.
How does this decision impact on your workplace?
The decision provides a timely reminder for employers that out-of-hours illegal piracy is not to be taken lightly and, in some contexts, it may be so connected to the working relationship to warrant dismissal.
In deciding cases involving out-of-work online conduct, the Fair Work Commission has consistently applied the principles in Rose v Telstra Corporation  AIRC 1592 (which did not relate to online piracy). This case highlighted that an employer can terminate an employee for out-of-work conduct that:
- viewed objectively, is likely to cause damage to the employment relationship;
- damages the employer’s interests; and
- is incompatible with the employee’s duties as an employee.
Applying the first and second principles to the piracy context, this means that, if an employee is charged for illegal piracy conducted out-of-hours and the employment relationship involves the protection of intellectual property, it may be enough to have damage either the working relationship or the employer’s interests.
The third circumstance is related to the nature of the employee’s employment and requires a consideration of whether there are particular standards or expectations of behaviour that apply. For example, online piracy could be regarded as incompatible with the duties of a police officer or a copyright lawyer, but may not be incompatible with the duties of a truck driver.
The ultimate multi-tasker: piracy at the workplace
This brings us to the second scenario where a multi-tasking pirate, while diligently performing their employment duties, also downloads Game of Thrones Season 5 using the employer’s wifi. The rightful owner (having identified the IP address) then comes knocking on the employer’s door – what can be done?
In these circumstances, the next steps available to an employer will depend on whether their internet usage policies:
- prohibit piracy at the workplace;
- permit the inspection of the employee’s work computer to monitor online activities; and
- specify appropriate disciplinary actions that may be utilised following a pirate attack.
Accordingly, it is important that employers are prepared and ensure their internet usage policies are up to date with the changing face of Australian privacy laws.