Intellectual property, technology and media newsletter – July 2018

26 July 2018

Welcome to our Newsletter, bringing you the latest in Intellectual Property, Technology and Media Law news.

IP legislation amendments one step closer

The Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018 (Cth), presently before the Senate, proposes to introduce changes to intellectual property legislation. The Bill includes changes to the process of opposing trade mark registrations under the Trade Marks Act 1995 (Cth) and reduces the time period before a trade mark can be challenged for non-use. The Bill also includes changes to the registration processes for trade marks, patents, designs and plant breeder’s rights under intellectual property legislation.

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Country of Origin food labelling

The Country of Origin Food Labelling Information Standard 2016 (Standard) involves displaying more detailed information regarding the product’s origin. The Standards will require growers/processors, retails and importers to be aware of where their foods are sourced. Each stage of the supply chain will require specific and different labelling to provide consumers with more information regarding where their food was grown, produced and made.

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General Data Protection Regulation privacy changes

The European Union GDPR came into effect on 25 May 2018 replacing existing data protection rules set out in the 1995 European Directive 95/46/EC. The regulations may impact Australian businesses who have offices inside the EU, offer goods and services to the EU or monitor the behaviour of individuals inside the EU. Significant penalties apply for contravention of the GDPR, even outside the EU. Global companies including Google, Apple and Twitter have updated their privacy policies, IT systems and user controls in order to comply with the new regulations. Companies who may be affected by the regulations should review their data protection practices to ensure they are GDPR compliant.

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‘Loot boxes’: a new form of gambling?

Micro transactions (payments of real money within a game for items, benefits, downloadable content, etc) are a popular feature of mobile app games and triple-A games. There is legal concern regarding the use of micro transactions and ‘loot boxes’. Loot boxes are virtual containers holding content or a prize. There is legal debate internationally regarding whether games with micro transactions that involve loot boxes constitute gambling. This is a particular area of debate given the accessibility of digital and mobile games by minors.

While overseas some forms of loot boxes have been banned, in Australia there has been discussion at a Queensland state level regarding whether loot boxes are considered ‘gambling machines’ or ‘interactive games’ pursuant to gaming and gambling legislation.

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ACMA bans bookies ads in broadcasts of live sport

The Broadcasting Services Act 1992 (Cth) and Australian Communications Media Authority codes of conduct have been amended to restrict the promotion of gambling during live sporting event. The amendments prohibit promotion of betting odds and commercial gambling services during live sports. The amendments have sparked discussion regarding what is considered a ‘sporting event’ and when sport is considered ‘live’.

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Consultation on draft rules for gambling ads in online live sport

In an effort to restrict promotion content of gambling and betting during live sports, the Australian Communications Media Authority (ACMA) has been given the power to regulate online content as well as broadcast content.

ACMA has issued draft Broadcasting Services Online Content Service Provider Rules 2018 (Online Rules) and a consultation paper regarding those Online Rules (Consultation Paper). The proposed Online Rules will regulate online service providers delivering live sporting events, including eSports, via the internet to the public. The Online Rules include restrictions on promoting live odds and commercials during sporting events.

ACMA has asked for submissions regarding the draft Online Rules due 10 May 2018.

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Review of aviation and safety regulation of remotely piloted aircraft systems May 2018 CASA Paper

There are currently around 150,000 Remotely Piloted Aircraft (RPA) in Australia. In May 2018, the Australian Civil Aviation Authority (CASA) released its paper entitled ‘Review of Aviation Safety Regulation of Remotely Piloted Aircraft Systems’. The paper identified several major findings regarding the regulation of RPAs. These included mandatory registration for RPAs of a certain size to ensure accountability and safety, education for licensed and non licensed RPA operators and improved data and geo-fencing technology in the Australian airspace.

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Recent developments in dealing with your digital estate after incapacity or death

In the digital age, important documents and information are stored, transferred and received electronically. In the context of wills and powers of attorney, executors and attorneys will need to access ‘digital assets’ in administrating the affairs of a deceased estate or incapacitated person. In drafting wills and powers of attorney where digital assets are involved, the documents should include powers allowing attorneys and executors to access and manage digital assets, including digital devices and accounts. Containing a list of passwords in a will or power of attorney for digital financial affairs may also be essential in enabling an executor or attorney to trace or control assets.

This area is currently under review by the NSW Law Reform Commission, by request from the NSW Attorney-General. The Commission will review and prepare a report regarding laws that affect access to a person’s digital assets after they die or become incapacitated and whether NSW should enact legislation to address the issues this area.

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Geoffrey Rush v Nationwide News Pty Ltd and J Moran

HWL Ebsworth is representing Geoffrey Rush in defamation proceedings against Nationwide News and Jonathon Moran. In highly publicised interlocutory applications and judgments, these proceedings have delivered a wealth of valuable judicial observations and decisions in what has become a highly contentious defamation action. The decisions have provided clarity regarding the pleading of a truth defence as well as covering the qualified privilege defence under section 30 of the Uniform Defamation Act and the notion of ‘fishing’ for a defence by issuing subpoenas.

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Bauer Media Pty Ltd & Anor v Rebel Wilson

Legal history was created when the actress Rebel Wilson was awarded a record $4.75 million in damages in her defamation proceedings against Bauer Media. However, the Victorian Court of Appeal did not agree with how damages were assessed and reduced Wilson’s awarded damages to a relatively low $600,000. This case note explores the important process of how damages are assessed in defamation actions and the relevant considerations for general, aggravated and special damages.

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