Intellectual Property, Technology & Media Newsletter – September 2022

12 September 2022

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

Back to the drawing board for Banksy? Pest Control Office v Full Colour Black

We all (don’t know) who Banksy is: the elusive street artist behind the likes of ‘Balloon Girl’ and ‘Flower Thrower’. Banksy is well known for encouraging the use of their works by making high-resolution images publicly available for download, and otherwise making a name for themselves through their anti-authoritarian, anti-capitalist social commentary. Despite having previously stated that ‘copyright is for losers’, Banksy (via their London-based company Pest Control Office Limited), has recently been engaging with Australia’s Intellectual Property regimes.

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What China’s Personal Information Protection Law could mean for Australian businesses

The People’s Republic of China’s Personal Information Protection Law (PIP Law) came into force November last year. It is the first piece of legislation that sets up China’s privacy framework.

The PIP Law has extraterritorial application that may capture foreign entities which conduct business in China or deal with Chinese residents, regardless of whether these foreign entities have a physical presence in China or not.

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Research data – navigating the Data Availability and Transparency Act

The shifting data landscape and the Australian government’s whole-of-economy vision for data is set to propel Australia to be a data-driven society by 2030. In light of this, data has never been more valuable. But a survey conducted by McKinsey in 2021 showed that only 7% of Australian organisations rated themselves as ‘very effective’ at meeting their data and analytics objectives.

This article discusses how the DAT Act applies to a project or research output of entities who could be captured as a data custodian or eligible credited user under the scheme.

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High Court divided over the patentability of computer-implemented inventions: Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29

On 17 August 2022, the High Court handed down its decision in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29 which concerned the patentability of computer-implemented inventions.

The High Court was ultimately divided on its decision which resulted in Aristocrat’s appeal being dismissed and the revocation of Aristocrat’s patent applications. The split High Court decision means that those seeking clarification on the patentability of computer-implemented inventions in Australia will have to wait a while longer.

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In case you missed it, the following articles were recently written and published by our team:

A guide to social media marketing regulation for businesses and influencers

Over the past decade, social media influencers have emerged as a common form of advertising for businesses. Brands increasingly engage influencers to promote their goods and services through online platforms, with the intent of persuading consumer purchasing decisions in their favour.

In this article, we provide an overview of the current regulatory position governing influencer marketing and offer some suggestions for influencers and businesses to assist them in navigating the laws and regulations that apply.

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Reminder: 18 days to go to secure your .au direct

From 24 March 2022, Registrants of third level .au domain names such as and have been given first access to reserve their second level .au direct domain name equivalent, ie The priority allocation window is closing soon, on 20 September 2022. After this time, .au direct domain names will be available for registration by the general public.

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Games and interactive entertainment: The Australian legal environment

The Australian games and interactive entertainment industry is undergoing a renaissance. Local developers are experiencing international success with award-winning games. Government recognition and support is growing, including substantial tax incentives, funding and active promotion of the industry at international events such as Gamescom 2022.

HWL Ebsworth’s Games and Interactive Entertainment: The Australian Legal Environment provides an overview of some of the key legal issues likely to be of relevance to international games and interactive entertainment industry companies operating in the Australian market.

Click here to register your interest.

The defamation risk of limiting the use of NDAs in resolving workplace sexual harassment claims

In the aftermath of Australia’s #MeToo moment, the laws regarding sexual harassment and defamation have received increased scrutiny and law reform intervention.

The current state of Australia’s defamation laws give rise to a risk that both individual complainants and employers could be held liable for defamation when complainants are permitted to speak publicly about workplace sexual harassment matters in Australia.

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High Court creates new uncertainties in defamation law

On Wednesday 17 August 2022, the High Court of Australia handed down its decision on Google LLC v Defteros. Overturning the previous decision of the Supreme Court of Victoria Court of Appeal, a 5 – 2 majority of the High Court found that Google, in facilitating through its search engine a hyperlink to a news article containing defamatory material, did not itself publish defamatory material.

However, the 4 written judgements delivered by the majority provide varied views on why Google was not a publisher and dismissing widely held common law precedent.

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Sixty million reasons to be mindful of privacy as Federal Court agrees to consumer law penalties

On 12 August, The Federal Court agreed to impose penalties on Google totalling $60 million, after last year finding that it had engaged in misleading or deceptive conduct by virtue of statements made to users about collection of location data.

Users of mobile phones running Google’s Android operating system were given separate options as to whether to allow Google to collect ‘Location History’ and ‘Web & App Activity’ in connection with their Google user account. However, even if ‘Location History’ was disabled, Google would continue to collect, store and use personally identifiable location data if ‘Web & App Activity’ was enabled.

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Mandatory cyber-incident reporting and other obligations: here’s what you need to know if you manage critical infrastructure

As of 8 July 2022, entities with responsibility for certain critical infrastructure assets are now under an obligation to notify the Commonwealth Government’s Australian Cyber Security Centre of cyber security incidents. These notification obligations carry strict timeframes, being as little as 12 hours for the most critical incidents.

Amendments to the Security of Critical Infrastructure Act 2018 (Cth) (SoCI Act) late in the term of the last Parliament have significantly expanded the scope of this legislation. These changes bring a much wider range of infrastructure and sectors within the scope of the SoCI Act, and introduce new powers and obligations, especially with respect to cyber security and foreign investment.

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