Telecommunications, Media And Technology (TMT) Law Update ' Volume 32

• Published date: 22 May 2020
• Author: Mr Andrew Sutherland and Gordon Hughes
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Privacy, Coronavirus (COVID-19), Data Protection, Copyright, Media & Entertainment Law, Advertising, Marketing & Branding, Broadcasting: Film, TV & Radio, Social Media
• Law Firm: Davies Collison Cave

JUDGMENTS

Online defamation principles considered by NSW Supreme Court

On 20 March 2020, a judgment of the New South Wales Court of Appeal observed a range of principles relevant to online defamation in a case involving defamatory Facebook posts: Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45. The parties accepted the trial judge's statement of principles concerning proof of publication, including his reliance upon Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 in support of the proposition that in an action for defamation involving online material, publication is established though evidence that a third party downloaded and read the material. Specifically, Gutnick also stands for the proposition that publication is a bilateral act in which material is not made available in a comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. The parties also accepted the trial judge's reliance upon Sims v Jooste (No 2) [2016] WASCA 83 in support of the proposition that whilst publication, in a legal sense, may be established by pleading and proving a platform of facts from which an inference that material has been downloaded can properly be drawn, the mere fact of posting material online does not lead to an inference that it has been downloaded.

Roadshow Films obtains Federal Court site blocking orders against ISPs

On 20 April 2020, the Federal Court handed down another site blocking a decision pursuant to section 115A of Copyright Act 1968 (Cth), ordering a group of ISPs to block access to various target online locations: Roadshow Films Pty Ltd v Telstra Corporation Limited [2020] FCA 507. There have been a number of injunctions of this kind granted since section 115A was introduced in December 2018. An interesting aspect to this decision was one of the orders which Burley J made. His Honour referred to Paul Fletcher MP's comments during the second reading speech for the bill which introduced these laws that the Federal Court would have "the power to issue responsive and adaptive injunctions, without the need for the copyright owner to go back to court" by allowing the copyright owner and ISP to agree "to apply the injunction to other pathways that start to provide access to an infringing site". Burley J made an order providing for the copyright owners to notify the ISPs if they believed a different domain name, IP address or URL was providing access to the same (previously blocked) infringing site. The ISPs will then be required to notify the copyright owners and the Federal Court if they agree to take steps consistent with the blocking order to also disable access to the new relevant domain name, IP address or URL. If the ISPs do not agree, or the court otherwise considers it appropriate, the proceeding will be relisted for further directions.

Information Commissioner granted leave to serve Facebook entities

On 22 April 2020, pursuant to an ex parte interlocutory application, the Federal Court granted the Australian Information Commissioner leave to serve the respondents Facebook Inc. and Facebook Ireland Limited outside Australia: Australian Information Commissioner v Facebook Inc. [2020] FCA 531. Facebook Inc. is located in the United States, and Facebook Ireland is located in Ireland. In the proceedings, the Commissioner alleges that the respondents were repeatedly involved over a 12 month period in the interference with the privacy of approximately 311,127 Australian Facebook users. The court was satisfied that the Commissioner had a prima facie case for the purposes of Rule 10.43(4) of the Federal Court Rules 2011, that the respondents were "organisations" as defined in section 6C of the Act and that the respondents had an "Australian link" for the purposes of section 5B(3) of the Act. In the latter regard, the evidence established that the respondents "carried on business in Australia" in the relevant sense and there was a prima facie case (albeit subject to argument) that the respondents collected personal information in Australia.

Digital media company misled a purchaser of shares.

On 24 April 2020, the Supreme Court of New South Wales held that an investor (the cross-claimant) had been induced to acquire shares in a digital media managed services company...