Duty and Control in Intermediary Copyright Liability: An Australian Perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This chapter argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Defamation proceedings - Limitation of Actions Act 1974

In Noonan v MacLennan [2010] QCA 50 the Queensland Court of Appeal considered for the first time the provision permitting extension of the limitation period for a defamation action under s32A of the Limitation of Actions Act 1974.

Conclaves and concurrent expert evidence: A positive development in Australian legal practice?

Many Australian courts now prefer pre-hearing meetings of experts (conclaves) being convened to prepare joint reports to identify areas of agreement and disagreement, followed by concurrent expert evidence at trial. This contrasts to the traditional approach where experts did not meet before trial and did not give evidence together. Most judges, lawyers and expert witnesses favour this as a positive development in Australian legal practice, at least for civil disputes. This new approach impacts medical practitioners who are called upon to give expert evidence, or who are parties to disputes before the courts. Arguably, it is too soon to tell whether the relative lack of transparency at the conclave stage will give rise to difficulties in the coronial, disciplinary and criminal arenas.

Internet privatization, WikiLeaks, and free expression

In late 2010, the online nonprofit media organization WikiLeaks published classified documents detailing correspondence between the U.S. State Department and its diplomatic missions around the world, numbering around 250,000 cables. These diplomatic cables contained classified information with comments on world leaders, foreign states, and various international and domestic issues. Negative reactions to the publication of these cables came from both the U.S. political class (which was generally condemnatory of WikiLeaks, invoking national security concerns and the jeopardizing of U.S. interests abroad) and the corporate world, with various companies ceasing to continue to provide services to WikiLeaks despite no legal measure (e.g., a court injunction) forcing them to do so. This article focuses on the legal remedies available to WikiLeaks against this corporate suppression of its speech in the U.S. and Europe since these are the two principle arenas in which the actors concerned are operating. The transatlantic legal protection of free expression will be considered, yet, as will be explained in greater detail, the legal conception of this constitutional and fundamental right comes from a time when the state posed the greater threat to freedom. As a result, it is not generally enforceable against private, non-state entities interfering with speech and expression which is the case here. Other areas of law, namely antitrust/competition, contract and tort will then be examined to determine whether WikiLeaks and its partners can attempt to enforce their right indirectly through these other means. Finally, there will be some concluding thoughts about the implications of the corporate response to the WikiLeaks embassy cables leak for freedom of expression online.