15 June, 2015
Parliamentary Report On Internet Blocking
On 1 June 2015, the Standing Committee on Infrastructure and Communications published its report, Balancing Freedom and Protection, on the use of s 313(3) of the Telecommunications Act 1997 (Cth) by government agencies seeking to disrupt the operation of illegal online services. Section 313 enables government agencies to request ISPs, without a warrant or court order, to block access to illegal online services. The inquiry arose out of an incident in March 2013 when the Australian Securities and Investments Commission used s 313 to disrupt websites which were being used in connection with financial fraud, resulting in the disruption of a number of legitimate online services at the same time. This raised questions regarding transparency and accountability in the use of the disruption power by agencies, given that exercise of the power essentially turned on the internal policies of requesting agencies and ISPs respectively. The Committee recommended the adoption of whole-ofgovernment guidelines in relation to the use of s 313, and further recommended that agencies seeking to use the disruption power ensure they have the requisite level of internal technical expertise or else an established procedure for drawing on the expertise of other agencies.
- View the report here
Federal Court Orders Preliminary Discovery Against Operator Of Hot Copper
In the recent decision of McCrae v Reynolds  FCA 529, the Federal Court of Australia ordered preliminary discovery against the operator of Hot Copper (an Australian stock market internet chat forum), Report Card Pty Ltd (Report Card), to disclose details of one of its users who has allegedly made defamatory and false posts. The applicant, Wayne McCrae, holds the position of Chairman and Chief Executive Officer of CuDeco and believes that such posts have been made about him for six years since early 2008 by an Edwin Reynolds under the username "zzedzz". The orders of preliminary discovery require Report Card to give the applicant all documents relevant to identifying the user "zzedzz" and documents relating to posts made by "zzedzz", including those "moderated", within a period of 30 days.
- View the decision here
Australian Communications And Media Authority Accepts Club Retail Pty Ltd's Undertaking
On 28 May 2015, the Australian Communications and Media Authority (ACMA) announced that it has accepted an enforceable undertaking from the online retailer, Club Retail Pty Ltd (CRPL). The undertaking follows an investigation that revealed that CRPL had sent marketing emails without the recipients' consent and in doing so,had breached the Spam Act 2003 (Cth) (Spam Act). The undertaking requires CPRL to undertake a "double optin" process for new subscribers whereby they will only be added to a mailing list after they have responded to a confirmation message. The Spam Act regulates commercial electronic messages in Australia. It proscribes sending of such messages without the recipient's consent, it requires that the message contain clear and accurate information regarding the identity and contact details of the person or organisation that authorised the message and that the message contains an "unsubscribe" facility. The Spam Act provides a range of enforcement options to ACMA, which decides the course of action to pursue on a case by case basis. These options include formal warnings, accepting enforceable undertakings and commencement of proceedings in the Federal Court of Australia. The penalties for repeat corporate offenders may be up to AUD 1.7m a day.
- View the undertaking here
For further information, please contact:
Gordon Hughes, Ashurst