Other Protection Issues
As well as intellectual property and defamation, other issues regarding online activities can affect legal rights. If we think of the internet as a community of people who do not meet face to face, but communicate through the written and digital media, we can see that many of the same issues that arise in communities can arise on the internet. However, there are also unique issues that arise with the internet, such as domain squatting, phishing, internet dumping and social networking site problems. Spam, however its form may have changed, is much like unwanted advertising in the mail box, albeit of an often saucy nature.
Harassment and discrimination
Certain online communication practices, including bestowing unwanted attention or offensive material on another, may constitute discrimination or harassment under discrimination and workplace relations law.
Repeated email contact, chat room messages or posting messages to social networking sites such as Facebook pages with the intention of causing psychological harm or arousing in the recipient a reasonable fear for their safety (or that of others) may constitute the offence of stalking, punishable by fine or imprisonment.
Other types of material – vilification, discrimination and gambling
Material that denigrates a particular group of people may be prohibited under the Racial Discrimination Act 1975 (Cth) The Australian Human Rights Commission (AHRC) assesses this type of content. Complaints of racial vilification have been upheld against the publishers of online content. In Jones v Toben [2002] FCA 1150 the Federal Court upheld a decision of the AHRC, which found that the Respondent had engaged in unlawful conduct by publishing on a website material that vilified Jews.
This decision has been applied in later cases, for instance Silberberg v The Builders Collective of Australia Inc. [2007] FCA 1512 Although the posters of the offensive content were found liable, the website host was found to be not liable, because the failure to remove offensive content, despite having knowledge of it, was not necessarily connected to race.
In Eatock v Bolt [2011] FCA 1103 the Federal Court found that section 18C of the Racial Discrimination Act had been contravened by the publication of articles (print and online) discussing the aboriginal identity of identified individuals. The offensive conduct was assessed from the point of view and circumstances of the identified persons and not general community standards. The publications were found to exhibit inflammatory and provocative language and the good faith exemptions for fair comment and genuine purpose in the public interest were not made out.
Case Example – Domain Names
WIPO determined a complaint brought by the Melbourne 2006 Commonwealth Games Corporation concerning an attempted sale to the State of Victoria of a collection of registered domain names, which included melbourne-2006.com, melbourne2006.com, melbourne2006.info, melb2006.com and melb2006.info. These domain names were found to be either identical or confusingly similar to at least one of the trademarks in which the complainant had rights.
It was found that the respondent had no rights or legitimate interests in the domain names. The relevant date for determining whether the respondent to a domain name dispute has registered the domain name in bad faith is generally the date on which the respondent first acquired the domain name. In this case the respondent’s offer to “rent” the various domain names to the complainant for a fee of $50,000 per month was found to be sufficient evidence that the respondent registered and used the disputed domain names in bad faith. WIPO ordered the domain names be transferred to the complainant.
For further information on the registration of domain names go to the auDA site at www.auda.org.au.
Privacy laws
The Privacy Act 1988 (Cth) imposes information privacy principles (IPPs) on the federal public sector and on private sector organisations. The principles set the minimum standards for the collection and handling of personal information by businesses and other private sector organisations. There is a current exemption for small business and for media organisations acting “in the course of journalism”. The IPPs are relevant, for example, when collecting personal information from contributors to an online forum.
Providing a privacy policy for your website as well as terms and conditions of use are the mechanisms commonly used to manage the various legal risks associated with online publishing.
Social Networking Sites and Personal Information
Social networking sites on the internet enable members to use a personal profile to interact with other people online. Examples of popular social networking sites include Twitter, Facebook and LinkedIn.
Most social networking sites have a privacy policy governing how they store and control access to the information that users upload on their profiles. In many instances these policies provide that such information can be viewed by other site users or anyone who has access to the internet. Social networking sites can give rise to privacy and safety concerns, as it can be difficult to confirm the identity of other social networking site members. Users should always exercise caution when sharing personal information online.
All existing publication laws apply on social networking sites – including defamation, copyright, vilification, contempt and other restrictions around publication such as identification of Children’s Court or Family Court matters and victims of sexual offences. Using a profile that identifies you as an employee or associate of a particular organisation will usually bring into effect social media and professional conduct guidelines of that organisation.
A common problem on social networking sites is the establishment of false or impersonation profiles that are designed to mislead users as to the identity of the person posting the information. An online reporting facility exists on Facebook and Twitter where requests can be made to remove or modify the “false” page or user.
Internet dumping
Internet dumping (also known as “modem jacking”) is the practice of switching a user from their current ISP to a premium rate telephone number without their knowledge or consent. Internet dumping can occur when certain websites are accessed. Such a practice is likely to breach the Australian Consumer Law or various state Fair Trading Acts, and may also be a breach of the customer’s ISP contract.
If the ISP cannot resolve a complaint concerning internet dumping or an aspect of the ISP service, complaints can be made to the Telecommunications Industry Ombudsman tel: 1800 062 058 (free call) or online at www.tio.com.au.
Spam
Spam is a generic term used to describe unsolicited commercial electronic messaging generally delivered by SMS or email (electronic junk mail). The Spam Act 2003 (Cth) came into effect on 10 April 2004 and requires that spam can only be sent with consent, although consent can be reasonably inferred from a business relationship. Subsequent commercial messages must include an “unsubscribe” facility.
Phishing
Phishing is a form of identity theft where fake emails and websites, designed to look like legitimate businesses, financial institutions and government agencies are used to deceive internet users into disclosing their bank and financial account information or other personal details. More information about spam, including making complaints about spam and phishing, can be obtained from the Australian Communications and Media Authority (ACMA) website at https://www.acma.gov.au/.
Page last updated 28/02/2024