September 2007 Archives

News.com.au reports that Burma's "State Peace and Development Council" (i.e. the socialist military junta which rules the country) appears to have shut down all public access to the Internet in the country.  Presumably this will let them put down their current pro-democracy protests without pesky stories and images of them shooting Buddhist monks being leaked to the overseas media.

The Internet, and blogs in particular, have been used to expose the current atrocities in Burma to the rest of the world.

Not that Internet access in Burma is that great the rest of the time -- they are apparently subject to mandatory ISP-based software filtering.  Sound familiar?  Truly this is a country that Australia should be emulating.

The legal issues breakout session at today's blogging conference was very popular.  Thanks to everyone who attended.  Because of the late start and the high degree of participation from the session participants, we didn't quite get to cover everything we wanted to cover.

One of those areas is "backdoor defamation", which is a significant issue, so in true blogging fashion, I'll discuss it here instead.

Backdoor defamation, as I and Nic Suzor define the term, is where a company who claims to have been defamed finds a way to sue, despite the uniform national defamation laws saying that corporations, generally speaking, cannot sue for defamation.  Some of these methods include:

• Suing for "injurious falsehood" - e.g. the Whirlpool lawsuit;
• Suing for misleading and deceptive conduct under the Trade Practices Act - e.g. the David Jones v Australia Institute action; and
• Individuals associated with the corporation suing for defamation.

This last point is perhaps the most concerning.  Just because the company can't sue for defamation, doesn't mean that the company's managers, owners, directors, etc can't sue for defamation.

E.g., if I publish a review of a restaurant which says that the food tasted bad, this may convey the imputation that the owners or managers of the restaurant were incompetent, because they employed a chef who made bad food.  This is what happened in Gacic v John Fairfax - the owners of a restaurant who received a bad review sued for defamation.

If uncomplimentary things which you blog about a company could reflect badly on the people who own or manage the company, be careful...

At 2:15pm in Canberra on Tuesday 2 October, Gyles J of the Federal Court of Australia will hand down his judgment in Silberberg v Builders Collective of Australia.

This case is one of four currently before the courts in Australia, in which the operators of an Internet forum have been sued because of what third parties have said or done in the forum.  The others are:

• A case before the NSW Land and Environment Court, in which a NSW local government authority sought to prosecute the owner, host, and moderator of an Internet forum because third parties were allegedly leaking confidential council information and documents on the forum.  The prosecution was under s 664 of the Local Government Act 1993 (NSW) and alleged that these persons had unlawfully 'disclosed' information 'obtained in connection with the administration or execution of this Act'.

• A case before the NSW Supreme Court, in which an religious school sued the moderator of a NineMSN-hosted forum over comments on the forum.  Although the school was incorporated as a company, it is not for profit, therefore can still sue for defamation.

• The Whirlpool case, which I've discussed earlier.

Silberberg involves allegations of unlawful racial discrimination under s 18C of the Racial Discrimination Act 1975 (Cth).  The material in question (which is alleged to convey anti-semitic imputations) was posted in the forums of the Builders Collective by a third party, who is the second respondent in the action.

Silberberg will be a significant judgment for a number of reasons.  It will be especially significant to me because I appeared in the Federal Court on behalf of the Builders Collective and argued their defence.  Fortunately for the collective (who could not afford legal representation), an obscure provision of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) gives a right of appearance in this type of case to people who aren't legal practitioners.

I won't comment on the merits of the case -- at least not until after the judgment is given.  But on a personal note, I'll observe that appearing in court and arguing the Collective's case against senior counsel who appeared for the applicant was equal parts terrifying and exhilarating.

Fingers crossed for Tuesday.

News.com.au carries the story that Centrelink, in the last financial year, had:

• 367 proven breaches of privacy regulations by it's staff;
• A further 239 breaches of the Australian Public Service code of conduct (eg staff accessing records of relatives with permission but in contravention of the code of conduct);
• 296 employees were given a written warning;
• 44 were fined or had their salary reduced;
• 13 were reprimanded (is there a substantive difference between a reprimand and a written warning?);
• 24 people resigned; and
• 2 people were sacked.

The most amazing part of the above is what's not in the article - prosecutions.  Presumably because there weren't any.  This from the agency that tells us to "trust them" with the Access Card database.  Who say that their staff won't snoop through people's records because it will be a criminal offence to do so.

Despite the fact that, unlike the offences which are likely to apply to everyday people, the snooping-by-government-staff offences:

• Carry a maximum penalty of 2 years jail, as opposed to 10 years for the ordinary-people type offences;
• Do not have offences of strict liability, as opposed to many of the ordinary-people type offences; and
• Are highly unlikely to ever be used, because as the above figures indicate, Centrelink will warn their employees, or reprimand them, or fine them, or allow them to resign, or very occasionally fine them, but never prosecute them.

Trust them with the Access Card database?  Sure -- about as far as I could spit them.

CNN have an interview with the plaintiff's attorney here.

This Friday the 28th of September, the QUT Faculty of Law and the ARC Centre of Excellence for Creative Industries & Innovation will host the Australian Blogging Conference, to be held in the Creative Industries Precinct at QUT's Kelvin Grove campus in scenic Brisbane, Australia.

Wearing my EFA hat, I will be one of the discussion leaders of the "legal issues" breakout session.  The recent Whirlpool lawsuit illustrates some of the legal issues involved in blogging or running forum websites; we should have a lot to talk about, and I'd love to see you there.

See Peter Black's blog for more information.

The Register reports that the 802.11n wireless standard is at risk because the Commonwealth Scientific and Industrial Research Organisation (CSIRO) hasn't, and apparently won't, guarantee not to sue anyone who implements the standard.

The CSIRO has previously been very active in demanding licensing fees from companies implementing the 802.11a and 802.11g wireless standards.  So much so, that Apple, Dell, Hewlett Packard, Intel, Microsoft and Netgear joined forces to try and invalidate the patents.  I don't know enough about the patent and the technology in issue to know whether this is something that the CSIRO genuinely invented, or whether some avaricious patent attorneys decided that part of the 802.11a/g standards overlapped with a very broad patent.  Certainly the latter is immensely popular in the US in recent times - patent trolling has become big business.

I won't start laying into the state of the US patent system, because I'd be here all night, and I need to go infringe a patent with Jinx and Poppy.

Telstra just don't know when to quit...  News.com.au reports that:

TELSTRA has warned the expert panel assessing bids for the Federal Government's national broadband build that it must follow "best practice tender procedures" or "be vulnerable" to a challenge.

Literal translation: run the tender the way we say it should be run, or we sue.  Another manifestation of Telstra's current "give us the money and nobody gets hurt" philosophy.

News.com.au reports that Virgin Mobile is being sued in the United States for invasion of privacy, because they used a Creative Commons-licensed photograph in their advertising, without permission from the subject of the photograph.  Photographs of a young woman were captioned with "dump your pen friend" and "free virgin to virgin", which have allegedly caused grief and humiliation to Alison Chang and her church-going family.

This is an example of the advertisements in issue:

This dispute has been brewing for a while now.  Looks like it has well and truly hit the proverbial fan, and the results could be quite damaging to the Creative Commons movement.  News reports indicate that Creative Commons are also named as defendants.

Yesterday morning, on what will (probably) be the last sitting day before the federal election, Coonan, out of the blue, introduced the Communications Legislation Amendment (Crime or Terrorism Related Internet Content) Bill 2007 into the Senate.

The Bill, as it currently stands, will give the commissioner of the keystone cops Australian Federal Police, or senior members of the AFP (to whom the commissioner's powers can be delegated) the power to ban Australians from accessing Internet content, whether it is in Australia or overseas.

The commissioner (or delegate), if they have "reason to believe" that Internet content is "crime or terrorism related content", may give a notice to that effect to the ACMA, who are required to notify all ISPs under the registered code for general-purpose Internet censorship, or otherwise give all ISPs a standard access-prevention notice which requires them to "take all reasonable steps to prevent end-users from accessing the content" - i.e. block it.

The short version is that the Federal police will be able to ban access to Internet material by decree, based merely on what they "believe" about the material.

The important part of the definition of "crime or terrorism related content" is that:

• the Internet content (when considered in isolation or in conjunction with any other Internet content that is accessed, or available for access, from that Internet site or that part of the Internet site) encourages, incites or induces the commission of a Commonwealth offence; or
  
• the purpose, or one of the purposes, of the Internet content (when considered in isolation or in conjunction with any other Internet content that is accessed, or available for access, from that Internet site or that part of the Internet site) is to facilitate the commission of a Commonwealth offence; or
  
• the Internet content (when considered in isolation or in conjunction with any other Internet content that is accessed, or available for access, from that Internet site or that part of the Internet site) has, or is likely to have, the effect of facilitating the commission of a Commonwealth offence.

Despite the continued references to "terrorism", this Bill has nothing to do with terrorism.  Its provisions apply to any offence against a law of the Commonwealth - even something relatively insignificant such as copyright infringement.  The government are simply playing the terrorism card to deter criticism of the Bill.

This is the type of legislation that you would expect to see in a police state.  The Bill contains no mechanisms for review or appeal of a decision to give one of these notices.  It puts the police in the position of judge, jury, and executioner of Internet content, and it will almost certainly be used as a tool of political censorship.

EFA have issued a media release about the Bill.  The Bill is typical of the contempt with which the coalition treats the Internet and the civil liberties of all Australians.  Remember this on election day.

Although the paperwork has yet to be filed, 2Clix has told various media outlets that they are abandoning their injurious falsehood lawsuit against the owner of Whirlpool.  2Clix's solicitors have told Whirlpool they have been instructed to discontinue the action.  EFA press release here.

Some of the media coverage of this latest development has been less than accurate and less than fair to Whirlpool.  2Clix, in apparent fit of pique, leaked news of their intent to discontinue the action to several media outlets, before they even confirmed it to Whirlpool.

Initial coverage by one media outlet in particular said that the action had been discontinued (which it had not, and still has not), and implied that Whirlpool was acting dishonestly by not announcing this development (despite the fact 2Clix and their solicitors had ignored Whirlpool's attempts to confirm it) while they allegedly continued to accept donations from the public (despite the fact that Whirlpool had never solicited donations, had actively discouraged people from donating until they knew what their legal bills were likely to be, and most importantly, they removed the donation links off their website when they got an unconfirmed email indicating that 2Clix might discontinue).

Whirlpool published a response to this media speculation.

I don't know what 2Clix's motivation was for this course of action, but it seems consistent with a puerile attempt to smear Whirlpool in the press, which was at least partially successful.

Hat tip to Peter Black for blogging about the Family Guy clip that featured at the recent Emmy awards:



It bears some striking similarities to a much earlier Family Guy gag, this time aimed at the FCC:



I'm slightly disappointed they didn't do something a bit more original for the Emmys, but its still great work.

On Saturday I wrote that SCO had filed for Chapter 11 bankruptcy protection.  Today brings news that SCO are asking the bankruptcy court for permission to hire temps because approximately half their finance and accounting department have quit or been fired, including the resignations of two senior staff with over 10 years at the firm each.

It looks like my previous comparison to the Titanic was more accurate than I initially thought!

The ACCC are bringing proceedings against Telstra, alleging contraventions of ss 52 and 53 of the TPA in Telstra's promotion of their "NextG" network.  Specifically, it is alleged that Telstra have engaged in misleading or deceptive conduct by representing that the NextG network "covers the entire country" and "has coverage everywhere you need it".  The ACCC are seeking interim injunctions against the advertising.

Telstra, true to form, have accused the ACCC of conspiring against them, saying that:

The ACCC is clearly hand in glove with the Government in doing everything it possibly can to undermine the interests of Telstra shareholders.

and that

This is anti-consumer, anti-investment, petty, regulatory garbage when Telstra is building a world's best mobile network with speeds as fast as any equivalent network in the world.

If Telstra dig the hole they're in any deeper, they'll be swimming in magma.

A few months ago, Nine Inch Nails frontman Trent Reznor blogged as follows:

As the climate grows more and more desperate for record labels, their answer to their mostly self-inflicted wounds seems to be to screw the consumer over even more. A couple of examples that quickly come to mind:

The ABSURD retail pricing of Year Zero in Australia. Shame on you, UMG. Year Zero is selling for $34.99 Australian dollars ($29.10 US). No wonder people steal music. Avril Lavigne's record in the same store was $21.99 ($18.21 US).

By the way, when I asked a label rep about this his response was: "It's because we know you have a real core audience that will pay whatever it costs when you put something out - you know, true fans. It's the pop stuff we have to discount to get people to buy."

So... I guess as a reward for being a "true fan" you get ripped off.

This got a lot of media attention, including from Rolling Stone Magazine.

At a live concert in Sydney on 16 September, Reznor had this to say (I've sanitised the not-safe-for-work language):

Last time I was here, I was doing a lot of complaining about the ridiculous prices of CDs down here. And that story got picked up and got carried all around the world and now my record label all around the world hates me, because I yelled at them, I called them out for being greedy [verb]ing [noun]holes.

I didn't get a chance to check, has the price come down at all?

[Chorus of "no!"'s from the crowd]

I see a no, a no, a no... Has anyone seen the price come down?

[Another chorus of "no!"'s from the crowd]

Okay, well, you know what that means - STEAL IT. Steal away. Steal and steal and steal some more and give it to all your friends and keep on stealing. Because one way or another these [noun]s will get it through their head that they're ripping people off and that that's not right.

[Cheers from the crowd]

I probably didn't make any friends by saying that...

Another nail in the coffin of "we're protecting the artists" / "we're acting in the artist's best interests"?  Authorisation of infringement?  Yes on both counts.

A bootleg video from the concert, posted on youtube, is available below.  To the extent that me embedding it constitutes "stealing", Trent Reznor told me to do it.

Groklaw reports that SCO (i.e. "we own linux!  you pay now!") has filed for Chapter 11 bankruptcy protection, ahead of an inevitable crushing defeat in their ill-fated litigation against Novell.  The trial, which was due to continue on Monday, is now suspended.  Rearranging the deck chairs on the Titanic?  Time will tell.

This just gets weirder and weirder...  After reporting three days ago that Telstra were suing Senator Coonan for the second time, Telstra has accused Coonan of having "misled members of the public to believe they are unable to acquire services from Telstra and that they can only acquire those services from Telstra's competitors."  Telstra have reportedly asked the ACCC to investigate.  Good luck establishing that Coonan's statements were made "in trade or commerce."

Whirlpool.net.au, one of Australia's largest online discussion forums, has been sued by a software publisher whose products and services received negative commentary on the site.  Becuase the publisher is a corporation, and can no longer sue in defamation, they've dusted off the less-known tort of "Injurious Falsehood".  This has already attracted media attention at The Age, news.com.au, itnews.com.au, itwire.com, The Register, Australian PC World, and of course Slashdot.

EFA issued the following press release tonight:

EFA condemns Whirlpool lawsuit

Electronic Frontiers Australia (EFA) today condemned a lawsuit filed against the operator of whirlpool.net.au, one of Australia's largest online discussion forums.

Some messages posted in the Whirlpool forums have criticised the products and services offered by software company 2Clix Australia Pty Ltd (2Clix).  The lawsuit alleges that the operator of Whirlpool has maliciously published those comments, with the intention of damaging 2Clix's business.  2Clix claims that these comments have caused a "severe downturn in monthly sales" of approximately $150,000 per month.

"This action is an attack on freedom of speech and the ability of consumers to engage in legitimate online criticism," said EFA Chairperson Dale Clapperton.  "One of the great benefits of the Internet is that it allows consumers to become better informed, by searching for information about products or services.  If negative comments about poor quality goods or services can't be published for fear of a lawsuit, consumers will be unable to properly inform themselves."

The lawsuit by 2Clix is for the common-law tort of "injurious falsehood", which is distinct from the more common and better-known tort of defamation.  "2Clix have sued for 'injurious falsehood' to sidestep recent national changes to defamation laws, which removed the right of most companies to sue for defamation.  Those changes were designed to ensure that individuals could engage in robust debate and criticism of companies, without the threat of a lawsuit hanging over their head," continued Clapperton.

"This case has echoes of the notorious 'McLibel' action in the United Kingdom, and the lawsuit by David Jones against the Australia Institute over allegations of 'corporate pedophilia'.  Corporations are increasingly using the courts to silence and intimidate people who criticise the corporation."

The Statement of Claim filed by 2Clix includes the allegation that Whirlpool "did not require proper verification of identity" before it allowed people to become registered users.

"Forum operators are not required by law to verify the identity of their users, nor is there any reasonable way for them to do so," Clapperton continued.  "Plaintiffs have, in the past, argued that forum operators were 'reckless' for not verifying the identity of their users.  Forum operators are not the identity police, and the fact that they do not verify users' identity does not make them liable for what their users say or do."

EFA is concerned that an adverse decision in this case could impose significant burdens and legal liability on the operators of Internet forums and discussion sites.  Such a result could cause many such sites to close down.

EFA understands that Whirlpool engages in moderation of obviously inappropriate content, a practice which EFA endorses.  However, forum operators are not equipped, and should not be required, to verify the truth or falsity of criticism posted by third parties.  The ultimate responsibility for content posted by third parties lies with the person who posted it.

When Telstra took the federal government and ACCC to the High Court, arguing that the telecommunications access regime in Part XIC of the Trade Practices Act was unconstitutional, it signalled a new low point in the historically rocky relationship between the incumbent monopoly telco and the federal government.

When Telstra sued the federal communications minister, Helen Coonan, over her decision to award funding to a competitor to deliver rural broadband infrastructure and services, it was hard to imagine that things could get any worse.

Today brings news that Telstra is suing Coonan again, this time over her decision to amend the conditions of their carrier license to prevent the impending shut-down of Telstra's rural CDMA network, until such time as the replacement "NextG" network was an adequate replacement.

Telstra are sending an unmistakable message to the federal government - do anything to us that we don't like and we'll haul you into court.  Especially if it involves giving money or business to our competitors.

Telstra CEO Sol Trujillo has said that things could not be worse for Telstra under a Labor government.  I'm sure Telstra are praying for a change of government, because they have well and truly burned their bridges with the coalition.

APEC has ended, but the fallout has just begun.

Events of note, in no particular order:

• Dozens of riot police removed their name tags, apparently in defiance of police policy, ensuring that they could not be identified by potential complainants or in media coverage.  Not a single name-tag in sight in this photo, only the velcro where they should have been.  Ironic that the police were given expanded powers to demand that members of the public produce identification, when the police go to such lengths to avoid being identified themselves;
• A single-seat Cessna aircraft, piloted by a Sydney lawyer, with a filed flight-plan, was intercepted by two F/A-18 fighters and escorted to a landing at Bankstown airport;
• The NSW Police obtained injunctions against the organisers of a protest march, preventing them from even approaching the fenced-off areas;
• Of course, the infamous crew from "The Chaser" organised a fake motorcade and made an utter mockery of the APEC security arrangements.  They were waved through two police checkpoints, reaching as far as the Intercontinental Hotel (where George W Bush was staying) before being sprung - and only then because one of the crew, dressed as Osama Bin-Laden got out of a vehicle and approached police;
• The police said that the Chaser crew were lucky they were not shot by snipers.  I think that the police are lucky the Chaser crew were not shot by snipers!  I want to know what the snipers' rules of engagement were, if they were permitted to shoot unarmed people on the street!
• The Chaser said that police were lucky that they weren't Al Quaeda, and I whole-heartedly agree.  Those vehicles could quite easily have been loaded with explosives instead of comedians, and the police allowed them to drive right up to the front of the most secured hotel in Sydney!
• Police snipers were on rooftops in the city, pointing firearms at people.  The last time I checked, that was a crime, even for police;
  
• A 52-year old accountant was manhandled to the ground by four police officers and arrested for jaywalking, and allegedly assaulting a police officer, then jailed for 22 hours and not permitted access to a lawyer [video of the arrest];
• Two people on the police blacklist were drinking lattes in Hyde Park, when they were arrested by riot police for being in a declared area.  Except Hyde Park isn't actually a declared area.  Oops;
• A media FOI request revealed that police have been spying on "interest-motivated groups" within universities, and seeking the cooperation of the university administration with such spying.  An email from the police reads "[g]iven that next year holds numerous events including state/federal elections, APEC and the ongoing war in Iraq, there is a strong possibility that IMGs will become more active throughout 2007."  The objective of the police was to "monitor these IMG's and identify the current key members."  I'm sure that had absolutely nothing to do with the police blacklist;
  
• Fifteen protesters driving from Melbourne to Sydney were pulled over by police in rural NSW, searched for drugs with a sniffer dog, had their vehicles searched and given roadworthy inspections, and generally subject to harassment and intimidation;
• Police demanded that German tourists delete digital photographs of the security fence.

About the only good thing that can be said about APEC is that nobody died or, so far as I know, was seriously injured.  Although that doesn't seem to be for lack of trying on the part of the police.  Maybe next time, they'll shoot the Chaser team on sight.

The judgment of the Full Court of the Federal Court of Australia in ACCC v Dataline.net.au Pty Ltd will be handed down this afternoon in the Federal Court in Brisbane, at 2:15pm, in courtroom 2 on level 7.

This is an appeal from the judgment of Kiefel J in ACCC v Dataline.net.au Pty Ltd [2006] FCA 1427.  I'll post an update on the judgment later tonight.

[UPDATE: The appeal was dismissed.  Greenwood J gave no reasons in court, and I'm still waiting for the judgment to appear on Austlii.]

[Further update: As of 5pm Friday, the judgment is not yet on Austlii.  It seems unlikely that it will appear before Monday, so commentary on the judgment itself will be delayed.  If I'm feeling particularly inspired over the weekend, I may post something about the ACCC's statement of claim, and the judgment at first instance.]

For your viewing pleasure, I present to you three utterly hilarious parodies of those insanely annoying "you wouldn't steal a car"-type "piracy" warnings that invariably appear on DVDs and in cinemas.  The parodies were produced by /for the University of Sydney law revue 2007, and a big hat-tip to Abi Paramaguru from the UNSW Cyberspace Law and Policy Centre for bringing them to my notice on their House of Commons blog.

[Update: I originally misidentified the clips as being from the University of NSW law review, instead of University of Sydney.  Apologies to the people at University of Sydney who put them together, and props for their fantastic work.]

Parody 1: You wouldn't deprecate your friend's chose in action



Parody 2: Over-the-top examples -- they're a crime



Parody 3: Finally, some real pirates.

How is the Public Notices section of a newspaper like an End User Licence Agreement?

1. Nobody reads them
2. They're full of legalese
3. Sometimes they descend into mumbo-jumbo
4. Occasionally they're amusing
5. They can both be associated with someone getting royally scammed.

Today, while stuck on public transport and bored out of my skull, I read through the public notices section of an abandoned copy of the Brisbane Courier Mail.  On page 63, there was a notice which I reproduce verbatim below, with the exception of the phone number:

COPYRIGHT: All rights reserved re common-law copyright of tradename / trademark, MARGARET ALTHEA MORRIS, as well as any and all derivatives and variations in the spelling of said tradename / trademark - Common Law Copyright 1975-3000 by Margaret-Althea :Morris.  For terms and conditions of use, call [phone number redacted] and ask for: Margaret-Althea :Morris.

Rrrrrrrrrrrright.

Happy Riverfire, one and all.  Not my best work, and not the best location I've been in, but still a pretty good result.  They haven't (yet) had any significant post-processing, as I've only just gotten home.  Click for larger images.