Telecommunications, Media And Technology (TMT) Law Update ' Volume 45

• Published date: 02 March 2022
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Privacy, Mobile & Cable Communications, Privacy Protection, Patent, Social Media
• Law Firm: Davies Collison Cave
• Author: Mr Gordon Hughes, Thomas Dysart and Darci Bucheli

JUDGMENTS

AFP's use of facial recognition service provider found to be a privacy breach

On 26 November 2021, the Privacy Commissioner determined that the Australian Federal Police (AFP) interfered with the privacy of individuals whose personal information was disclosed to a third party facial recognition service provider: Commissioner Initiated Investigation into the Australian Federal Police (Privacy) [2021] AICmr 74. As we have previously reported, in an earlier decision the Commissioner found that Clearview AI had infringed a range of Australian Privacy Principles (APPs) by scraping individuals' biometric information from the internet and disclosing it through a facial recognition tool. Relatedly, Clearview AI provided free trials of the facial recognition tool to several members of the Australian Centre to Counter Child Exploitation (ACCCE), an organisation led by the AFP, after ACCCE members became aware that other law enforcement agencies had used the facial recognition tool to successfully identify several individuals. Following this, the trial participants uploaded various images to the facial recognition tool, including images of possible persons of interest, an alleged offender, victims, members of the public and members of the AFP. The Commissioner was satisfied that images uploaded to and disclosed by that tool, were "personal information" as defined in the Privacy Act. Given the AFP's use of the tool was a high privacy risk project under the Australian Government Agencies Privacy Code (the Code), the AFP's failure to conduct a Privacy Impact Assessment (PIA) resulted in a breach of clause 12 of the Code. Additionally, the Commissioner was satisfied that, by failing to implement a centralised system to accurately record its use of the tool, provide appropriate training, possess written policies specifically identifying the privacy risks of using new technologies to handle personal information, and conduct a PIA, the AFP breached APP 1.2 by failing to take reasonable steps to implement practices, procedures and systems relating to its use of the tool that would ensure it complied with clause 12 of the Code. The Commissioner ordered that an independent review of the changes made to the AFP's relevant practices, procedures and systems since the trial period be conducted.

ACCC seeks higher penalty for company's misleading Google ads

On 17 January 2022, the Australian Competition and Consumer Commission (ACCC) filed an appeal against the adequacy of a penalty ordered by the Federal Court against a company found to have made misleading representations in Google ads that it had a government affiliation. We have previously reported on the decision by the Full Court of the Federal Court which found that the company's advertisements had infringed sections 18, 29(1)(b) and 29(1)(h) of the Australian Consumer Law: Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142. The matter was remitted to the primary judge to determine pecuniary penalties, and Griffiths J subsequently imposed a penalty of $1m: Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCA 1488. The ACCC described the $1m penalty as "manifestly inadequate", having initially sought a $5m penalty at trial. A hearing of the appeal before the Full Court will be fixed at a later date.

Meta loses right to arbitrate in Dialogue case

On 4 February 2022, the Full Court of the Federal Court dismissed an appeal by Facebook (now Meta, and owner of Instagram) against various findings of the primary judge, principally that Meta had waived its right to arbitrate a dispute as to whether Dialogue was in breach of Instagram's Terms of Use by "screen-scraping" data from the Instagram platform: Instagram Inc v Dialogue Consulting Pty Ltd [2022] FCAFC 7. We have previously reported on the decision at first instance: Dialogue Consulting Pty Ltd v Instagram, Inc [2020] FCA 1846. A key finding by the trial judge was that, under applicable US law, it was not necessary for a party opposing arbitration (in this case, Dialogue) to show that it would suffer prejudice in order to establish waiver. The Full Court determined that the primary judge had not erred on this point and that, regardless, relevant prejudice was established in any event. The court found that prejudice was established on the premise of a delay which "affected, misled or prejudiced" Dialogue, specifically as evidenced by the Meta parties' litigation conduct which was inconsistent with reliance on the right to arbitrate. This conduct included the filing of defences that failed to rely on the arbitration agreement, a delay of almost one year in asserting the right to arbitrate, various notices to produce, a request for further and better particulars, and extensive correspondence on...