Highlights of 2019 and areas to watch in 2020

 

Looking back on 2019

First major fines under the GDPR

If the introduction of the EU General Data Protection Regulation (GDPR) was the talking point for the world of privacy of 2018, the first rounds of serious fines issued under the regulation were definitely the talk of 2019.

We saw a number of unprecedented fines being given in response to the biggest privacy breaches and data leaks of the year, including:

  • hotel giant Marriott was fined $197 million for an ongoing data breach that exposed 5 million unencrypted passwords, 8 million credit card records, and impacted 30 million EU residents.
  • British Airways faced a record fine of $328 million for cyber-attack on their website which resulted in about 500,000 customer records, including credit card details, names, addresses and email addresses being extracted by the attackers.
  • Google was fined $80 million by France’s data regulator, CNIL, for failing to comply with its GDPR obligations due to a lack of transparency and consent in relation to Google’s advertising personalisation.

The nature and scale of the penalties enforced in 2019 indicate that the risks of non-compliance for international businesses, including Australian businesses, with an EU presence, is only likely to increase in 2020.

Mandatory text for defect warranties

In June 2019, we saw changes to Australian Consumer Law as amendments to the  Competition and Consumer Regulations 2010 (Cth) introduced new mandatory wording to be used by suppliers providing warranties against defects for services (or goods and services together). This amendment expands the scope of defect warranties for consumers as the ACL previously only prescribed mandatory text for warranties relating to goods.

The new mandatory wording can be found on the Australian Competition & Consumer Commission (ACCC) website, here.

Amendments to Whistleblower Legislation

More than two years after its introduction to Parliament, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (the Act) came into effect on 1 July 2019.

The Act made significant amendments to the Corporations Act 2001 (Cth) and Taxation Administration Act 1953 (Cth), increasing both the protections afforded to whistleblowers and providing greater accountability companies to ensure compliance with whistleblowing obligations.

The key features of these amendments included:

  • widening the definitions of eligible whistleblowers’ and ‘eligible recipients’,
  • expanding the range of misconduct,
  • permitting anonymous disclosures,
  • implementing a whistleblower complaint policy for certain entities, and
  • increasing both civil and criminal penalties.

AI in Public Sector

Some significant implications of public sector use of AI and automation technologies were highlighted during the year.

In this case of Pintarich v Deputy Commissioner of Taxation, the Federal Court of Australia found that Mr. Pintarich remained liable for interest charges on a tax liability, even though he received a computer-generated letter remitting his liability from the Deputy Commissioner of Taxation.

Because of the automated nature of the computer-generated letter, the court ruled that there was no mental process involved in reaching the conclusion, and accordingly, Pintarich could not rely upon the letter.

As automation technologies become more widespread in the public sector, and automated programs begin to replace human mental processes in complex decision making, it will be interesting to see the implications of this case on administrative decision-making in 2020 and beyond. Recent developments include an issue, identified in January this year, with inaccurate ATO general interest charge notices.

Areas to watch this year

Government action in response to the ACCC’s Digital Platform Inquiry

In July, the ACCC released its final report for the Digital Platforms Inquiry, providing a number of recommendations concerning the market dominance of large digital platforms – namely, Google and Facebook. These recommendations included wide ranging regulatory changes to multiple areas, including competition and consumer law, privacy, copyright, and media regulation.

In light of the report, the Federal Government has provided its response, supporting 6 of the 23 recommendations made by the ACCC. The response outlines the government’s commitment to:

  • Allocating $26.9million over four years to establish a new special unit in the ACCC to monitor and report on the state of competition and consumer protection in digital platform markets.
  • Tasking the ACCC to facilitate the development of a voluntary code of conduct to address bargaining power concerns between digital platforms and media businesses.
  • Reforming media regulation to cover both online and offline delivery of media content to Australian consumers.
  • Further strengthening Privacy Act protections, subject to consultation and design of specific measures as well as conducting a review of the Privacy Act.

Introduction of the Consumer Data Right

In August 2019, the Federal Government passed the Treasury Laws Amendment (Consumer Data Right) Bill 2019 (CDR), amending the Competition and Consumer Act 2010 (Cth), Australian Information Commissioner Act 2010 (Cth) and Privacy Act 1988 (Cth).

The CDR will give consumers the right to safely access certain data about them held by businesses, allowing them to better access information on the products available to them, as well as being able to direct that this information be transferred to accredited, trusted third parties of their choice.

In December, the ACCC announced an updated timeline for the launch of the CDR. The launch has now been pushed back from February to July 2020 for the banking sector.  

The ACCC also announced that it would amend the CDR rules to reflect the revised timetables and consult other phases of the CDR, including its introduction into the energy and telecommunication sectors.

Reforming Australia’s designs system

Australia’s current design system has not been reviewed since the introduction of the Designs Act 2003 (Cth) in 2004. In response to recent concerns regarding its effectiveness and suitability, IP Australia has now commenced a two-phase approach to provide reforms to the system.

The first phase involves progressing and implementing the accepted recommendations from the former Advisory Council on Intellectual Property’s (ACIP) review of the Designs Act. IP Australia is aiming to introduce changes based on these recommendations in 2020.

The proposed changes fall into three topics:

  • examining the scope of design protection,
  • providing early flexibility for designers, and
  • simplifying and clarifying the designs system.

IP Australia aims to introduce changes based on these recommendations this year. 

In the second phase, as part of its ‘Designs Review Project’, IP Australia has also begun a more holistic review considering broad and longer-term reforms to Australia’s designs system. IP Australia will continue its research and consultation with stakeholders throughout 2020, with the aim to further understand and improve design innovation, commercialisation, and the overall designs economy in Australia.

Author: Blake Motbey, Associate

 

ACCC announces 2019 enforcement priorities

Earlier this week, the ACCC announced its enforcement priorities for 2019.

As well as the enduring priorities of:

  • cartel conduct;
  • anti-competitive conduct;
  • product safety;
  • conduct affected vulnerable and disadvantaged consumers; and
  • conduct affecting Indigenous consumers,

this year’s focus areas include:

  • consumer guarantees on high value electrical products and whitegoods;
  • anti-competitive conduct and competition issues in the

financial services sector, including foreign exchange services where fees “seem to remain stubbornly high“;

  • opaque pricing of essential services, including telecoms and energy;
  • protection for small business, including under franchising and unfair contract requirements; and
  • customer loyalty schemes.

A new focus is on emerging issues in advertising and subscriptions on social medial platforms, especially for younger consumers.

In announcing the 2o19 priorities, Chair Rod Sims stated that the ACCC expects 3 significant cartel investigations to be referred to the Commonwealth DPP. The ACCC will also be occupied with the Consumer Data Right, where pilots and generic data sharing are expected to be in place in July, with consumer data to be shared by February next year.

Highlights of 2018 and areas to watch in 2019

2018 came and went in a flash. France celebrated glory in the FIFA World Cup in Russia; Banksy sold his ‘Girl With Balloon’ painting for $1.86 million before the artwork shredded itself seconds after the gavel dropped; and the online world was captivated by the World Record Egg. And as we say goodbye to summer and settle into the working year, why not take the chance to reminisce on some of the more important developments of 2018, and look forward to those that 2019 has in store?

Looking back on 2018

  • New obligations were enforced under the European Union General Data Protection Regulation (the GDPR). While the GDPR is an EU regulation, the obligations have a wide reach, applying to all Australian businesses who have an establishment in the EU, offer goods & services to the EU, or monitor the behaviour of individuals in the EU.
  • As part of the government’s safe harbour and insolvency reforms, we saw the introduction of the ipso facto insolvency reforms by way of the Treasury Laws Amendment (2017 Enterprise Incentives No.2) Act 2017. The reforms apply to contracts entered into on or after 1 July 2018, affecting the ability of contracting parties to exercise termination, enforcement or other rights that are triggered by a company restructuring or insolvency.
  • The European Parliament voted in favour of introducing the controversial EU Copyright Directive, a legislation designed to better meet the needs of copyright protection in the internet age. The proposed directive caused significant global debate around the detrimental effects of Articles 11 (the Link Tax) and 13 (the Meme Ban), headlined as the ‘death of the Internet’.
  • The ACCC highlighted its hard stance against franchises attempting to contract out of their obligations under the Franchising Code of Conduct and the Competition and Consumer Act. The ACCC’s case against Husqvarna Australia highlighted the importance of all companies that appoint dealers, distributors, licensees or similar, to confirm whether their contracts are in fact franchise agreements.
  • A Victorian Supreme Court cast some doubt over the enforceability of contractual provisions that attempt to limit the period in which parties can claim for misleading or deceptive conduct. This arose in the case of Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246, where the court considered the enforceability of a contractual provision requiring claims (including for misleading or deceptive conduct) to be made within 7 days.Justice Riordan, deciding in contradiction to a number of NSW decisions, ruled in favour of the “no exclusion principle”, stating that allowing the enforceability of such time limitations on claims would be against the public policy underpinning the provisions of the Australian Consumer Law (ACL).

Some areas to watch in 2019

  • Discussions over the EU Copyright Directive continue, with negotiators for the European Parliament aiming to finalise the directive shortly. However, negotiations have broken down, with the three-way discussion between Council, Parliament and member states  derailed over the exact wording over Article 11 and Article 13. Consequently, the “trialogue” discussion that was set to take place on  23 January was cancelled. With upcoming EU elections in May, there likelihood of any closure on this matter in the near future is low, with a final vote likely to take place under the next parliament.
  • The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, commonly referred to as the AA Bill, was passed in December of last year. The Bill’s aim is to compel various companies, especially those in communications industries, to assist Australian security and law enforcement agencies by allowing access to encrypted communications they believe may contain plans for illegal or terrorist activity. The implications of the Bill will be an interesting area to watch throughout the year, with a number of people, especially those within the tech and start-up communities expressing their concerns.
  • On 10 December 2018, the ACCC released its Digital Platforms Inquiry Preliminary Report. The ACCC’s report is founded on questioning the role and accountability of the global digital platforms (such as Facebook and Google) in the supply of advertising, news and journalism in Australia. The final report addressing these issues will be due on 3 June of this year.
  • There has been some debate globally and in Australia regarding the “hipster antitrust” laws, questioning the standards of competition law. The current foundation of competition law in Australia is focused on consumer welfare. However, concerns have been raised that this standard is too narrow and does not allow for prosecution of some types of conduct that some commentators believe competition law should cover.While this debate is likely to continue throughout the year, ACCC Chairman Rod Sims has reinforced Australia’s consumer welfare position, expressing their opposition to the introduction of broader interest considerations of public policy into competition law enforcement.

Author: Blake Motbey, Paralegal.

Know your customers’ rights

In a previous post we looked at the issue of written terms and conditions so dense that it was practically impossible for consumers to understand them.

This issue was highlighted last month when Purple WiFi revealed that it had hidden community service requirements for free WiFi users inside its clickwrap terms.  Only one person claimed the prize that was also concealed in the terms, while 22,000 agreed to clean toilets, hug stray animals and paint snail shells “to brighten up their existence”.


Screenshot – Lululemon website

What about when terms and conditions don’t actually match your customers’ rights at law?

The recent Lululemon issue provides a great example. Lululemon has agreed to pay $32,400 in penalties after the ACCC issued infringement notices relating to misleading representations about consumer rights.

The Australian Consumer Law provides guarantees for faulty consumer goods and services.

Lululemon listed sale items on its website under the heading “We Made Too Much” with the statement “We made a little extra – don’t be shy, help yourself. It’s yours for keeps so no returns and no exchanges”.

Lululemon’s return policy also said “Final sale items like underwear, water bottles + We Made Too Much gear are yours for keeps”.

In addition, staff were alleged to have stated that there was no refund right for faulty products.

The ACCC alleged that these statements were representations that customers were not entitled to a refund or replacement for faulty goods, which is not the case under the Australian Consumer Law.  The consumer guarantee rights provide for refunds in the case of a major failure of goods or services.  This applies equally to full price and sale price products.

Importantly, these guarantees cannot be excluded in consumer transactions, and it’s a contravention of consumer law to attempt to exclude them in your terms and conditions.  However, they can be limited.  Check your terms and conditions to see if they include an up to date statement of your customers’ rights under the Australian Consumer Law as well as any permissible limitations.

If you would like us to review your terms and conditions, contact us.

What does the Universal v TPG decision mean?

At the end of last month, the Federal Court made orders in the Universal v TPG litigation. The results were not unexpected and the key areas of dispute related to costs of complying with the orders and costs of the litigation.

From wikiHow “How to download torrents (with pictures)”

Background

Universal and other copyright owners took action under section 115A of the Copyright Act against 20 ISPs, including TPG, to block access to a torrenting website, and associated clones, mirrors and proxy sites. The website was found to have the main purpose of allowing wide-scale downloading of copyright works, including music, movies and books.

Section 115A was added to the Copyright Act in 2015 and allows copyright owners to apply for an injunction requiring a carriage service provider to take reasonable steps to disable access to an online location – in Australia or overseas – which has the primary purpose of infringing, or facilitating the infringement of, copyright. There doesn’t need to be any fault on the part of the ISP for orders to be made.

Section 115A had already been used in the Roadshow v Telstra, Foxtel v TPG decision last year, with similar results.

The offending website in this case, KickassTorrents (KAT) had previously been blocked in Britain, Ireland, Denmark, Italy, Finland and Belgium and had then been shut down in July 2016 following the arrest of the alleged owner, but the case went ahead.

The ISPs had indicated even before that date that they were prepared to block access to the offending sites, but the key question remained as to who should bear the cost of implementing and maintaining the site blocking.

The copyright owners argued that the ISPs should bear the costs because they are subject to the regulatory framework. The ISPs argued that they are innocent parties in the infringement, that section 115A creates a no-fault regime, and that the orders under section 115A benefit the rights holders.

Orders

The Court ordered that the ISPs must:

– disable access by users of their service, to the infringing website, by DNS blocking or equivalent.

– redirect users to a page with a prominent message that the Court has determined the site infringes copyright, or facilitates infringement.

– block additional domain names if the copyright owners apply to extend the injunction.  These orders may be made without further hearing if the ISPs do not object.

The copyright owners will be required to pay the ISPs’ compliance costs, set at $50 per domain name. The Court, noting that the submissions on costs were similar to the submissions made in the Roadshow v Telstra, Foxtel v TPG case last year, supported a uniform approach to compliance costs. If costs exceed this amount, the ISPs will have to bear the additional amount.

The ISPs had also sought orders for costs of the litigation. The Court determined that the copyright owners should pay the ISPs’ costs for the limited area of evidence and submissions on compliance costs, but not the ISPs’ other costs.

Further developments

In February, Village Roadshow commenced a new action to block access to 41 websites including WatchSeries, Putlocker and MegaShare.

There have been reports that Village Roadshow and Foxtel will apply to block additional websites shortly.

There have also been reports that KAT has been revived in a new form by original staff members, with new domain names and a streamlined database, and a revised DMCA takedown procedure. The orders allow copyright owners to apply to block new domain names but this can only be reactive. With torrenting websites potentially able to use a huge number of domain names and structures, it will be interesting to see how much practical protection section 115A will provide to rights holders as cases develop over the coming months – especially when Gizmodo reports that “It’s laughably easy to circumvent Australia’s torrent site blocking”.

“Terms and conditions apply”

Photo: CHOICE

CHOICE has made a compelling case for readability of contract terms and conditions, having hired Sydney actor Laurence Rosier Staines to read the 73,198 words of the Amazon Kindle terms and conditions – aloud.

Laurence starts out with enthusiastic professionalism …


Eight hours and 59 minutes later, he’s lost the will to live.

CHOICE head of media, Tom Godfrey, said, “Right now, the law protects us from unfair legal terms. But we think the practice of expecting a customer to spend hours of their lives reading a contract for a simple product is unfair. Companies need to do better and they should be explaining any conditions in a way that’s simple and easy to read.”

It’s not just a question of overly lengthy terms being unattractive for consumers to read. Unreadably long terms and conditions:

  • are often based on an approach of throwing in everything the drafter can think of, without working through what’s applicable for your individual business and tailoring accordingly.
  • can be less effective than clear, readable terms – for example, if disclaimers are not reasonably prominent, courts may decide that your terms are misleading or deceptive.
  • can be inconsistent with the Australian Consumer Law if they purport to limit consumers’ rights in a way that is not permitted, for example if you exclude refund rights for faulty goods.
  • can actually create more potential for complaints and disputes, if consumers have found them so difficult to read, they don’t end up understanding your product or service offering – wasting your time and money to resolve.

If you would like a review of your terms and conditions to check whether they work for your business and Australian law, contact us.

Private vocational training provider admits consumer law contraventions

Careers Australia Group Limited has provided enforceable undertakings to the ACCC after admitting false or misleading conduct and unconscionable conduct in contravention of the Australian Consumer Law.

The ACCC confirmed this week that Careers Australia will repay Commonwealth funds, cancel enrolments and invite students to have their VET FEE-HELP debts cancelled.

Careers Australia admitted to conduct including:

  • misrepresenting that courses were free;
  • misrepresenting that courses would increase students’ employment prospects; and
  • offering iPads and laptops with claims that they were free if the student signed up to the course.

This conduct included signing up 80 students from the same remote Indigenous community, who were offered inducements and not informed of the debts they would incur.

The admissions highlight troubling issues in the private vocational training sector, with the ACCC and other Commonwealth and State agencies reviewing the activities of several other providers.