Hercules Constan Lawyers

25/01/2022

Check out my latest article on the recent Federal Court decision in AGL v Greenpeace a few months ago:

In a recent decision by Justice Burley in the case of AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625 on 8 June 2021, the Federal Court considered whether Greenpeace had infringed AGL’s copyright and registered trade mark for its logo. Environmental action group Greenpeace

20/01/2022

Check out my recent article on the copyright infringement decision by the Federal Court in the Universal Music v Palmer case a few months ago:

In a decision by Justice Anna Katzmann in Universal Music Publishing Pty Ltd v Palmer (No.2) [2021] FCA 434 on 30 April 2021, the Federal Court held that Clive Palmer had infringed copyright in the 1984 Twisted Sister song “We’re Not Gonna Take It” (WNGTI) by reproducing a substantial part of ...

19/04/2021

Google Held to have Misled Users
In what has been trumpeted by the chair of the Australian Competition & Consumer Commission (“ACCC”) as a “world-first” decision, the Federal Court last week ruled that Google partially misled some users, contravening sections 18, 29(1)(g) and 34 of the Australian Consumer Law (“ACL”), in the case of Australian Competition & Consumer Commission v Google LLC (No.2) [2021] FCA 367.
Justice Thomas Thawley ruled in the Australian Federal Court on Friday that, because Google had an unusual requirement on some Android and Pixel phones that required a user to check “No” or “Do Not Collect” to both the “Location History” and “Web & App Activity” settings, someone who ticked “No” to just one of those settings would still end up having their location tracked by Google, and that as a result, Google had then had at least partially misled some consumers.
Overview
The ACCC alleged that “particular users of mobile devices with Android operating systems (Android OS) were misled by reason of the content of various screens those users saw on their devices. Two settings were central to the ACCC’s case: “Web & App Activity” and “Location History”. When setting up a device relevant to the proceedings, Web & App Activity was defaulted to “on” and Location History was defaulted to “off”. These default settings meant that Google LLC could obtain, retain and use personal location data when a user was using various apps, including Google services such as Google Maps. At the core of the ACCC’s case was the contention that there were users who were misled or likely to have been misled by what was, and what was not, stated or shown on various relevant screens on the users’ devices; there were users who, acting reasonably, would have been led into thinking that, with Location History “off”, Google LLC would not obtain, retain and use personal data about a user’s location, and that this was not relevantly changed by the fact that Web & App Activity was “on”” (Australian Competition & Consumer Commission v Google LLC (No.2) [2021] FCA 367 @ paragraph 2).
The judge noted (@ paragraph 129 of the ACCC v Google (No.2) decision) that “it was accepted that there were approximately 6.3 million users who opened a Google Account on their Android phone during the period January 2017 to August 2019”.
Evidence showed that an article was published by Associated Press (“AP”) on 13 August 2018 (Australian Competition & Consumer Commission v Google LLC (No.2) [2021] FCA 367 @ paragraph 71) stating that:
“An Associated Press investigation found that many Google services on Android devices and iPhones store your location data even if you’ve used privacy settings that say they will prevent it from doing so...
Google’s support page on the subject states: “You can turn off Location History at any time. With Location History off, the places you go are no longer stored.”
That isn’t true. Even with Location History paused, some Google apps automatically store timestamped location data without asking...
To stop Google from saving these location markers, the company says, users can turn off another setting, one that does not specifically reference location information. Called “Web and App Activity” and enabled by default, that setting stores a variety of information from Google apps and websites to your Google account.
When paused, it will prevent activity on any device from being saved to your account. But leaving “Web & App Activity” on and turning “Location History” off only prevents Google from adding your movements to the “timeline,” its visualization of your daily travels. It does not stop Google’s collection of other location markers ...”
Internal Google documents showed that following the publication of the AP Article, there was at least a 500% increase in the number of users disabling Location History and Web & App Activity (Australian Competition & Consumer Commission v Google LLC (No.2) [2021] FCA 367 @ paragraph 75).
Australian Consumer Law
The relevant sections of the ACL provide that:
Section 18: “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”
Section 29(1)(g): “A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services … make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits”
Section 34: “A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services”
Court Decision
The Federal Court determined that Google continued to collect “Location History” on some Android and Pixel phones, even for customers who ticked “No” or “Do not collect” in the settings on their phones.
The judge stated that “So far as concerns s 18 of the ACL, it is sufficient for the ACCC to establish that Google’s conduct was misleading or deceptive or likely to mislead or deceive ordinary or reasonable members of the relevant class, extreme or fanciful responses being disregarded” and “concluded that the ACCC’s case under s 18 of the ACL is partially made out in respect of each of the three scenarios. Google’s conduct would not have misled all reasonable users in the classes identified; but Google’s conduct misled or was likely to mislead some reasonable users within the particular classes identified. The number or proportion of reasonable users who were misled, or were likely to have been misled, does not matter for the purposes of establishing contraventions” and “also concluded that the ACCC’s case under ss 29(1)(g) and 34 of the ACL is partially made out in respect of each scenario” (Australian Competition & Consumer Commission v Google LLC (No.2) [2021] FCA 367 @ paragraphs 17 & 18).
The judge held that:
(a) “I am satisfied that the ACCC has established contraventions of s 18 to the extent indicated” (@ paragraph 224);
(b) “I am satisfied that Google’s conduct … was “liable to mislead the public” in that there is a probability that members within the class identified by the ACCC, acting reasonably, were misled “as to the nature, the characteristics, [or] the suitability for their purpose ... of ... services”. … I conclude that Google LLC breached s 34” (@ paragraph 225); and
(c) “Further, I would draw the inference that, within the class identified by the ACCC, there were users who, acting reasonably, were in fact misled by representations … which I find Google made through what it stated and what it did not state ... I therefore conclude that Google breached s 29(1)(g) of the ACL by representing that the services which Google provided had “performance characteristics”, “uses” or “benefits” which they did not have in breach of s 29(1)(g). Such representations were “false or misleading” within the meaning of s 29(1)(g)” (@ paragraph 226).
Key Takeaways
Because the decision only relates to Android users, and Google had by the time of the decision already updated the settings that formed the basis of the ACCC’s complaint, the decision may practically not make much difference to many consumers.
However, some consumers may feel better that the ACCC is taking action to keep big tech companies “honest” and help protect the privacy of consumers.
Many people are confused by their phone’s terms and settings, including their Google settings. As Peter Lewis of thinktank The Australia Institute said of this Federal Court case, “One would think selecting ‘no’ or ‘do not collect’ in a phone’s location history would stop the collection of data. But it just highlights the complexity of Big Tech terms & conditions, where in this case, data was still being collected due to a setting being switched on in another part of the phone’s settings.”
This case does highlight to phone users the importance of checking your phone settings for things like privacy, location and Bluetooth:
1. Check your account privacy settings under the “Settings” tab on your Android phone. From there:
(a) Find the “Accounts” section and select your Google account.
(b) Scroll to the “Manage your data & personalisation” tab and select it for a range of settings to review for various activities to prevent your location from being shared with Google.
2. Experts such as Australian cryptographer Vanessa Teague of the Australian National University have recommended that unless you are actively using Bluetooth to play music through wireless headphones or similar, you should turn off the Bluetooth function and shouldn’t let your phone automatically scan for Bluetooth connections, because that can be used to track you:
(a) Check the “Location” tab in the Settings section on an Android phone.
(b) Tap “Improve Accuracy” to give you the option to stop your phone from letting apps use wifi and Bluetooth scanning when you don’t want those to be used.
3. Third party apps and even things like Siri and Google Assistant can still track you, even if you have changed your Google settings to stop Google from tracking you. It is good practice not to download random apps unnecessarily, and always check the location and privacy settings for those apps in order to make sure in order to make sure that you are not giving those apps permissions they should not have:
(a) Under the “Privacy” tab in your phone’s settings you should have a “Permissions manager” tab, which will allow you to see which apps have what permissions.
(b) Tap on any app and you can change the settings for that app.
A spokesman for Google has said that Google “disagreed” with the Court’s decision, and was considering whether to appeal the decision.
© April 2021, Chris Bolden, Hercules Constan Lawyers

07/07/2020

23/06/2020

Announcing LodgeX Legals working partnership with SAI Global Property. The future of eSettlements is here

At LodgeX we are very excited to announce our working partnership with SAI Global Property.
This partnership brings together LodgeX’s agility and expertise in the property e-settlement space along with the scale and market reach of SAI Global Property.
This combination will shape the future of e-settlement services and improve efficiencies for the property and conveyancing industry.

LodgeX remains an independent e-settlement solution.
If we can help you please email
[email protected] or call 1300LODGEX

05/06/2020

Check out my article on the recent Full Federal Court decision in Kraft Foods v Bega Cheese in relation to the trade mark battle for peanut butter.
https://www.linkedin.com/pulse/peanut-butter-crunch-chris-bolden

01/06/2020

Media companies now liable for defamatory comments posted on their pages by readers
1 June 2020
A decision of the NSW Court of Appeal in the case of Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 has today upheld a decision of the NSW Supreme Court in Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 in June last year, holding that a number of Australian media companies can be liable for defamatory comments posted on their pages by readers in response to news articles published by the media companies.
The case concerned Dylan Voller, an indigenous Australian youth who, as a teenager in 2015 and 2016, was detained in Don Dale Juvenile Detention Centre, Alice Springs Juvenile Detention Centre and Alice Springs (Adult) Correctional Centre in the Northern Territory for car theft, robbery and assault.
In July 2016, footage of the then 17 year old youth shirtless, shackled to a restraining chair and with his head covered by a mask in Alice Springs (Adult) Correctional Centre in March 2015 was featured in the “Australia’s Shame” episode of Four Corners broadcast on ABC television, reporting on the mistreatment of a number of indigenous Australian boys in custody in the Northern Territory. It resulted in widespread public outrage, and prompted then Prime Minister Malcolm Turnbull to announce a Royal Commission into the treatment of youths in the Northern Territory child protection and juvenile detention system.
Dylan Voller was released from prison in 2017, and subsequently sued the Sydney Morning Herald, The Australian, The Centralian Advocate, Sky News Australia and The Bolt Report for defamation over 10 comments posted by readers in response to news articles published on the media companies’ pages in 2016 and 2017.
In 2019, the judge in the NSW Supreme Court, at first instance, held that the media companies could be considered to be publishers of the third party comments.
The Court of Appeal today upheld that decision and held that the media companies did have enough control over comments posted on their pages by members of the public in response to news articles, and were considered to be publishers of those third party comments.
The Honourable John Basten JA said (at paragraph 47) that “They facilitated the posting of comments on articles published in their newspapers and had sufficient control over the platform to be able to delete postings when they became aware that they were defamatory”.
The Court has not yet ruled on whether the comments published on their pages are defamatory, or whether Dylan Voller should be entitled to any compensation for those comments.
However, the case will have much broader implications on how media companies use social media, because it may not be possible or practicable for publishers to moderate comments posted by members of the public before those comments are published, and if some comments are to be allowed it is impossible to delete in advance all comments to a particular article. The Court acknowledged that “It is impossible … to edit or delete a comment by a third party user, prior to its placement on the public page, except by hiding it and un-hiding acceptable comments”, but suggested that media companies could use a word filter specifying common words to effectively “pre-filter” those comments so that they are only visible to the owner of the page and the user (being the person posting the comment) and their friends.
Whatever happens, it will be interesting to see how media companies react and how they modify their social media practices, in order to seek to limit their liability for comments made by their readers.

16/12/2019

"Fearless Girl" fight in Melbourne

A replica of the well known “Fearless Girl” statue (the original of which has been standing in New York facing off against the iconic “Charging Bull” statue in New York’s Wall Street district since March 2017) has been standing in Melbourne’s Federation Square since February 2019.

The original 130 cm bronze sculpture in New York was created by US based artist Kristen Visbal, apparently commissioned by State Street Global Advisors. Maurice Blackburn Lawyers together with Industry super funds HESTA and CBUS commissioned Visbal to create the replica in Melbourne to promote the fight for gender equality, but before the replica was unveiled in Federation Square, State Street sued Maurice Blackburn, HESTA and CBUS in the Federal Court.

State Street claim that Maurice Blackburn, HESTA and CBUS by unveiling and promoting the Melbourne replica of the statue are:
(a) infringing trade marks registered by State Street in Australia (and the US) for the words “FEARLESS GIRL”;
(b) infringing copyright allegedly licensed to State Street;
(c) “passing off” State Street's name and reputation;
(d) making false representations and engaging in misleading or deceptive conduct; and
(e) inducing the artist to breach her contract with State Street under the tort of interference with contractual relations.

They also commenced legal proceedings against the artist in the United States claiming that Visbal is infringing their copyright licences and their trade marks, and that the artist is breaching the terms of their agreement with her. State Street alleges that Visbal gave limited licences to State Street for copyright and certain trade marks with regard to the phrase “FEARLESS GIRL” under a Master Services Agreement, Copyright Licence Agreement and Trademark Licence Agreement, and that those contracts prevented Visbal from selling, licensing or distributing copies of the statue to any third party “to use in connection with gender diversity issues in corporate governance or the financial services sector”. The artist denies those claims, and claims that she owns copyright in the “Fearless Girl” statue, not State Street.

State Street have one trade mark registered in Australia for the words “FEARLESS GIRL” for publicity services etc in class 35 and financial investment advisory services etc in class 36 with a convention priority date of 16 March 2017, and a further trade mark pending for the same words in relation to a wider range of services in classes 35, 36, 41, 42, 43 and 45. They do not appear to have applied to register any logo or image of the statue as a trade mark.

Justice Beach in the Federal Court granted an initial temporary injunction in February 2019 blocking Maurice Blackburn from going ahead with their plans for the unveiling and launch of the statue in Melbourne, and that injunction was subsequently lifted to allow the unveiling of the statue in February 2019 on the basis that Maurice Blackburn included a disclaimer saying that the statue was a “limited edition reproduction” of the original statue, and stated that they had no affiliation with State Street. Maurice Blackburn have since agreed to cancel all planned promotions involving the statue, including an AFLW event, and have taken down website and social media posts promoting the statue and launch, although the legal proceedings are continuing in the Federal Court in Melbourne.

In the meantime, the replica of the “Fearless Girl” statue remains in Federation Square.

Whether Maurice Blackburn and the industry super funds are infringing any copyright in the statue, or have induced the artist to breach her contracts with State Street, will clearly depend on the terms of the various agreements between State Street and the artist.

It will be interesting to see what decision is ultimately made by the Federal Court in this matter, however, in the absence of any further “FEARLESS GIRL” promotions or website or social media posts, it is difficult to see how State Street could succeed in their trade mark infringement claims, and it seems clear that mere placement and retention of the replica of the statue in Federation Square does not infringe State Street’s “FEARLESS GIRL” word trade marks. In order to prove trade mark infringement, State Street would have to show use of the words “FEARLESS GIRL” (or words substantially identical with or deceptively similar to those words) AS A TRADE MARK in relation to services of the same description as that of services in respect of which the State Street FEARLESS GIRL trade marks are registered.

Mere placement and retention of the replica of the Fearless Girl statue is not use “as a trade mark”, and State Street does not have any trade mark for the image of that statue. Merely referring to the statue as the “Fearless Girl” would also probably be regarded as merely describing the statue (not use “as a trade mark”), and probably does not infringe the FEARLESS GIRL word trade marks either.

Maurice Blackburn, HESTA and CBUS may be at some risk in relation to promotion of events around the replica of the statue, but arguably their promotions and statements may not have been use of the FEARLESS GIRL words “as a trade mark” either, and if they continue to state that the Melbourne replica of the statue is a “limited edition reproduction” of the original statue, and that they had no affiliation with State Street, then they are more likely to be able to establish that any use of those words were not “likely to deceive or cause confusion” and did not infringe the State Street “FEARLESS GIRL” trade marks in Australia.

We expect that the replica of the “Fearless Girl” statue in Melbourne will remain there for some time yet!