: Tech + law update

Tech + law update

Leanne O'Donnell

Privacy and surveillance has been grabbing headlines in the past nine months with the ongoing revelations flowing from the documents provided by Edward Snowden. In Australia, the government last year announced a Senate Inquiry concerning a comprehensive revision of the Telecommunications (Interception and Access) Act 1979. The Committee is due to report at the end of June 2014.

Last year, the previous government gave terms of reference to the Australian Law Reform Commission (‘ALRC’) for an inquiry into the protection of privacy in the digital era. A second call for submissions will be made with the release of the Discussion Paper in first quarter of 2014, with the ALRC to provide its final report in 2014.

The handling of personal information will also be a topic of renewed focus for government agencies and businesses with the new Australian Privacy Principles (‘APPs’) having commenced on 12 March 2014. There are some significant changes in these new APPs from the previous regime, include APP 7 on direct marketing and APP 8 on overseas disclosure of personal information. The Privacy Commissioner has also been provided with enhanced powers including the ability to conduct assessments of privacy performance of government agencies and businesses and seeking penalties of up to $1.7 million for corporations in the case of a serious breach of privacy.

After an 18-month inquiry, copyright geeks eagerly pored over the long-anticipated tabling of the ALRC’s report on Copyright and the Digital Economy in mid-February this year. The ALRC’s major recommendation was to replace most specific copyright exceptions with a broad, flexible ‘fair use’ exception. In a speech at the Australian Digital Alliance’s annual Forum, the Attorney-General said he remains ‘to be persuaded that this is the best direction’ and noted he will ‘bring an open and inquiring mind to the debate.’ He also highlighted his concerns about online piracy, and suggested that in response, he would consider proposals such as ISPs issuing graduated warnings. There’s also a range of technology and legal issues that could be affected by the ongoing Trans Pacific Partnership trade negotiations which includes a lengthy chapter on intellectual property.

We’ve also seen the ACCC release guidelines for business on managing online reviews late last year providing tips on how to avoid misleading conduct, recommending disclosure of commercial relationships and setting out the circumstances when incentives can be properly offered in exchange for reviews.

The Fair Work Commission continues to consider cases concerning dismissal of employees relating to their use of social media. One recent case was Cameron Little v Credit Corp Group Ltd [2013] FWC 9642 (U2013/11522) where the dismissal over Facebook abuse was upheld. And in December, the Full Federal Court finally put an end to the long-running case concerning Linfox’s dismissal of an employee on the basis of Facebook comments. The Court found against Linfox holding that there was no jurisdictional error exposed in the reasoning of the Full Bench of Fair Work Australia which had dismissed the appeal of the finding that the dismissal was unfair.

LEANNE O’DONNELL is an Australian lawyer

(2014) 39(1) AltLJ 59
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