Contents
Outlines for cyber exam potential questions ... 3 The internet ... Error! Bookmark not defined.
Internet governance and regulation ... Error! Bookmark not defined.
Jurisdiction and conflict of laws ... Error! Bookmark not defined.
Copyright ... Error! Bookmark not defined.
Overview ... Error! Bookmark not defined.
What does copyright law protect? ... Error! Bookmark not defined.
Part III Works... Error! Bookmark not defined.
Subject matter other than works ... Error! Bookmark not defined.
Ownership of copyright ... Error! Bookmark not defined.
Rights conferred by copyright ... Error! Bookmark not defined.
Infringement of copyright ... Error! Bookmark not defined.
Defences to copyright ... Error! Bookmark not defined.
Cyber issues and shifting ... Error! Bookmark not defined.
Remedies ... Error! Bookmark not defined.
Authorisation infringement of copyright ... Error! Bookmark not defined.
Authorisation liability and website hyperlinking ... Error! Bookmark not defined.
Authorisation liability and website and peer to peer software providers ... Error! Bookmark not defined.
Authorisation liability and internet service providers ... Error! Bookmark not defined.
Discovery orders and website blocking injunctions ... Error! Bookmark not defined.
Trademark ... Error! Bookmark not defined.
Introduction ... Error! Bookmark not defined.
What is a trademark? ... Error! Bookmark not defined.
Obtainment ... Error! Bookmark not defined.
Infringement ... Error! Bookmark not defined.
Substantially identical or deceptively similar ... Error! Bookmark not defined.
Foreign websites ... Error! Bookmark not defined.
Passing off and s 18 of the ACL ... Error! Bookmark not defined.
S 18 basic concepts ... Error! Bookmark not defined.
Passing off v s 18 ... Error! Bookmark not defined.
Misrepresentation ... Error! Bookmark not defined.
Character merchandising ... Error! Bookmark not defined.
Tort of unfair competition ... Error! Bookmark not defined.
Disclaimers ... Error! Bookmark not defined.
Damages and remedies ... Error! Bookmark not defined.
Data protection and information Privacy ... Error! Bookmark not defined.
What is information privacy and data protection? ... Error! Bookmark not defined.
What is personal information ... Error! Bookmark not defined.
The right to be forgotten ... Error! Bookmark not defined.
Interception ... Error! Bookmark not defined.
Regulation of interception ... Error! Bookmark not defined.
Surveillance ... Error! Bookmark not defined.
Dealing with protected information ... Error! Bookmark not defined.
Recent initiatives ... Error! Bookmark not defined.
Topic 4: Privacy ... Error! Bookmark not defined.
What is privacy? ... Error! Bookmark not defined.
Traditional approach: no common law right to privacy ... Error! Bookmark not defined.
Towards a common law right? ... Error! Bookmark not defined.
Breach in confidence... Error! Bookmark not defined.
Element 1: quality of confidence ... Error! Bookmark not defined.
Element two: obligation of confidence ... 4
Element three: unauthorised use to the detriment to the party ... 4
Defences ... 4
Remedies for breach ... 5
Outlines for cyber exam potential questions
Step 1: identify which area the issue is: trademark, copyright, privacy or jurisdiction?
Step 2: follow the process outlined for the issue identified (if multiple do each separate)
If it is to do with the use of a trademark:
Initial determination: is the issue in question to do with a registered trademark?
• If yes: follow trademark infringement guide
• If no: follow common law passing off/s 18 guide
• Note: domain names have own principles to follow (rough guide below)
For registered trademark infringement (s 120):
Step 1: are they using the trade mark? (s 7)
• Must be used as a badge of origin to distinguish their good from others (s27,17, shell v Esso)
• For internet: does the webpage show the mark? (cti v green energy)
• metatags not likely seen as “use” as invisible to consumers (green energy, vega) Step 2: is the mark deceptively similar or substantial identical to the registered mark?
• Substantially identical = side by side comparison
• Deceptively similar = likely to deceive or cause confusion
o Is the impression left enough to cause confusion when recollecting? (shell v Esso) o Is there real tangible danger a consumer would get confused and think the two
products could be related or from the same maker? (southern cross) Step 3: are the goods and services the two marks are used for related or the same?
• Note: if dealing with foreign, must be marketing to Australia (ward v brodie) Step 4: does the offending mark’s owner have a defence to its use?
Step 5: what remedies should be issued to the registered mark’s owner?
For a passing off/s18 claim:
Step 1: has the owner of the mark established a reputation or goodwill using that mark?
• This can include gimmick style packaging (jif lemon case)
• Common words that gain secondary meaning due to long time use (reddaway v banham)
• Descriptive advertising slogans (Cadbury v pub squash)
Step 2: is the defendant misrepresenting their g/s to be the plaintiffs, causing confusion/deception?
• Would a reasonable person be deceived into thinking the products are the same? (parkdale) o Metatags are invisible, if website clearly different, not misrepresentation (veda, lift
shop)
• Would a person be deceived into believing endorsement was real, not parody? (Hogan, duff) Step 3: is this misrepresentation damaging the plaintiff’s reputation?
• Once misrepresentation shown, likely damage assumed
Element two: obligation of confidence Confidential relationships
• Marriage, De facto, Same-sex couple; Doctor-patient; Priest – penitent
• Coco v AN Clark (Engineers) Ltd [1969] RPC 41
o If reasonable person would have realised the information was given to him in confidence = equitable obligation of confidence imposed
Agreement of confidentiality
• either express or implied (unspoken but mutually assumed between the parties)
• Did not cover media intrusions where reporters surreptitiously acquire information Relaxation of the obligation?
• Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109
o When a reasonable stranger receives information in circumstances where it’s obvious that it’s confidential information, duty can be imposed upon them - Campbell v MGN Ltd
• Hosking v Runting [2005] 1 NZLR 1
o Privacy and confidence are different concepts.
o Expansion of breach of confidentiality was to change the circumstances in which confidentiality is imposed, not what is to be considered confidential
o If no relationship = obviousness must be looked into o If relationship = information was imparted in confidence
Element three: unauthorised use to the detriment to the party
Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39
• Facts: Gov docs disclosing the role of Aus & foreign powers in the “East Timor Crisis”
• Held: not detrimental to national security, relations with foreign countries or the ordinary business of the government would be prejudiced = no injunction
o P must show that info is confidential, imparted in confidence AND that there will be "an unauthorised use of that information to the detriment of the party communicating it"
o Detriment = disclosure exposes P’s actions to public discussion and criticism.
Defences
Australian Football League (AFL) v Age Co Ltd (2006) 15 VR 419
• Facts: after 3rd positive drug test, player’s would be submitted for review to the football tribunal, meaning media could report on the player’s name as it was public information
o AFL wanted permanent injunction to stop media printing player’s names and test results
• Defences: Age conceded the information was confidential BUT
▪ Public domain; Iniquity; Public interest
• Held: Public Domain = failed
o TEST: If the confidential information has received sufficient publicity to effectively destroy the purpose of confidentiality, making an injunction pointless
o Publication in widely-circulated print media would place info in the public domain.
o General rule is everything which is accessible through internet is also public domain.
o However, forums of opinions, gossip and speculation by anonymous people will not put confidential information in the public domain as not backed by evidence
o TEST: What is the veracity of what is being posted on the internet?
• Held: Iniquity = failed
o Cannot make iniquity confidential, confidence does not exist in fraud and criminal activities - Gartside v Outram (1856) 26 LJ Ch 113 per Woods VC
o To establish defence of Iniquity must:
1) Iniquity is a crime, civil wrong, serious misdeed of public importance 2) Public importance – affects public
3) Disclosure to a TP with a real interest in redressing the crime, wrong, misdeed
• Held: Public Interest = failed
o To be in the interest of the public must have to do with public safety o Cannot be more that pure “curiosity” or public prurience
Remedies for breach
• Account of profits against the person who discloses the confidential information
• Damages for distress
• Aggravated damages
• Interlocutory injunction to restrain potential breach by confidant or a third party
• Wilson v Ferguson [2015] WASC 15. (nudes on fb case)
o Monetary relief is also available to breaches of confidence, not just injections as in many cases an injunction would be ineffective as the information has already been published
o Remedies must fit the nature of the case and particular facts, equity is flexible and will accommodate for the extent of electronic communication in today’s society
