Highlights of 2016 and areas to watch in 2017

Influence Legal ParliamentHere is a round-up of some key developments in 2016:

  • The Telecommunications Sector Security Reforms went through 2 rounds of public consultation and have now been referred to the Parliamentary Joint Committee for Intelligence and Security. These reforms will impose obligations on carriers and carriage service providers to take steps to ensure the security of networks and notify breaches, and provide powers to the Attorney-General to issue directions relating to security risks.
  • The Masters Bendigo case saw developments in relation to agreements to agree and good faith.
  • There were several key cases in the credit reporting area, including the Veda trade mark and SEO case, and the OAIC determination requiring Veda to improve accessibility of free credit reporting.
  • The Productivity Commission released its report on IP arrangements, prompting public debate in relation to fair use and the rights of copyright holders.
  • The OAIC consulted on its draft Big Data guide.
  • An exposure draft of the Harper review bill was released.
  • The unfair contracts rules for small business came into effect from 12 November.
  • The ACCC took landmark consent proceedings relating to attempted cartel conduct in the financial services industry.
  • The Federal Court found that Woolworths’ “Mind the Gap” payments were not unconscionable.

Areas to watch this year:

  • Data protection remains a key focus area with significant developments continuing in Australia (including the Notifiable Data Breaches Bill), the EU (the European Union General Data Protection Regulation will take effect in May 2018 and will significantly affect data relating to employees) and across the globe.
  • Trade secrets have become another focus area.  In 2016 the European Council approved the Trade Secrets Directive to harmonise European trade secrets protection. Member states will need to implement the directive by mid 2018. The US Defend Trade Secrets Act 2016 has created a federal jurisdiction for misappropriation of trade secrets including significant whistleblower protection which will need to be reflected in US employment and confidentiality agreements.
  • Ahead of the release of its 2017 priorities, we can anticipate that the ACCC will continue to focus on unfair contracts in business, cartel conduct (following the significant financial services case) and optional extra preselection in the airline industry. The ACCC is seeking submissions on a proposed FIFO airline alliance (due on 27 January) and on its draft decision for the declared superfast broadband access service (SBAS) and the local bitstream access service (LBAS) (due on 17 February).
  • CAANZ will report on the first Australian Consumer Law review by March.
  • Further legal and regulatory attention is likely in the problematic commercial VET sector, with reforms promised to address the significant consumer protection issues that were highlighted during 2016.
  • On the IP front, submissions are due by 22 January on the proposed IP Laws Amendment Bill.
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