Baker & McKenzie Presentation (E2.0)

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Information about Baker & McKenzie Presentation (E2.0)

Published on October 9, 2008

Author: guesta04b0

Source: slideshare.net

Legal Issues Web 2.0 / User Generated Content Identifying and minimising key legal risks Enterprise 2.0 - Wednesday 13 August 2008 Allison Manvell, Baker & McKenzie, Sydney

Overview Key differences to other online publications Main areas of risk: Potential protection from liability - intermediaries? Practical steps to mitigate risk Privacy UGC: potential content problems - copyright, defamation, illegal content, trade marks, misleading and deceptive conduct, contempt, obscenity, privacy

Key differences to other online publications

Main areas of risk:

Potential protection from liability - intermediaries?

Practical steps to mitigate risk

Key differences Publication mechanism Jurisdiction Control of content - User Generated Content

Publication mechanism

Jurisdiction

A. Identify key risks B. Identify (and allocate) responsibility Protection for intermediaries? “Safe Harbour”? “Innocent dissemination”?

Terms of Use Disclaiming responsibility? Accepting responsibility? Ownership of content Monitoring? Education / awareness C. Practical steps to mitigate risk

Terms of Use

Disclaiming responsibility? Accepting responsibility?

Ownership of content

Monitoring?

Education / awareness

1) Privacy Privacy Act 1988 (Cth) regulates organisations’ dealings with personal information Limited exceptions, for example: employee records media small business NPPs Enforcement

Privacy Act 1988 (Cth) regulates organisations’ dealings with personal information

Limited exceptions, for example:

employee records

media

small business

NPPs

Enforcement

1) Privacy Hot Topic: Draft Voluntary Information Security Breach Notification Guide ALRC review of Australian Privacy Law NSW Review Consider other relevant areas – eg Workplace Surveillance

Hot Topic:

Draft Voluntary Information Security Breach Notification Guide

ALRC review of Australian Privacy Law

NSW Review

Consider other relevant areas – eg Workplace Surveillance

2) Copyright Ownership of uploaded content Direct copyright infringement Authorisation of copyright infringement Applicability of “safe harbour” provisions (Part V, Division 2AA of the Copyright Act 1968 (Cth)) Carriage service providers / ISPs - not content providers

Ownership of uploaded content

Direct copyright infringement

Authorisation of copyright infringement

Applicability of “safe harbour” provisions (Part V, Division 2AA of the Copyright Act 1968 (Cth))

Carriage service providers / ISPs - not content providers

3) Defamation Each person who contributes to publication of defamatory material, or authorises it, is potentially liable for its publication Innocent dissemination - s32 Defamation Act 2005 (NSW) Defendant published the material in capacity as subordinate distributor Defendant did not know, nor ought reasonably have known, that the material was defamatory Lack of knowledge not due to negligence

Each person who contributes to publication of defamatory material, or authorises it, is potentially liable for its publication

Innocent dissemination - s32 Defamation Act 2005 (NSW)

Defendant published the material in capacity as subordinate distributor

Defendant did not know, nor ought reasonably have known, that the material was defamatory

Lack of knowledge not due to negligence

Subordinate distributor: Not the “first or primary distributor” Not the author or originator Did not have capacity to exercise editorial control over the content or its publication, before it was first published Effective control Generally strict application by courts in “traditional” media scenario 3) Defamation

Subordinate distributor:

Not the “first or primary distributor”

Not the author or originator

Did not have capacity to exercise editorial control over the content or its publication, before it was first published

Effective control

Generally strict application by courts in “traditional” media scenario

4) “Content” regulation / Classification Broadcasting Services Act 1992 (Cth) - Schedule 7: Content Services Exceptions? Commercial content service? Dealing with complaints / enforcement IIA Code

Broadcasting Services Act 1992 (Cth) - Schedule 7: Content Services

Exceptions?

Commercial content service?

Dealing with complaints / enforcement

IIA Code

5) Other risks Obscenity / offensive material Trade Marks Illegal material Misleading and deceptive conduct Contempt

Obscenity / offensive material

Trade Marks

Illegal material

Misleading and deceptive conduct

Contempt

Risk management Know your service / identify particular content risks Appropriately contract with suppliers Have your own terms dealing with what end users can and cannot do with content and giving you the right (not the obligation) to remove content and take appropriate action Prohibit upload of illegal/infringing content & obtain warranties from end users

Know your service / identify particular content risks

Appropriately contract with suppliers

Have your own terms dealing with what end users can and cannot do with content and giving you the right (not the obligation) to remove content and take appropriate action

Prohibit upload of illegal/infringing content & obtain warranties from end users

Risk management Ownership of content? Limiting availability / quantity of content available publicly Segregation of content Education Stay on top of new developments

Ownership of content?

Limiting availability / quantity of content available publicly

Segregation of content

Education

Stay on top of new developments

For further information Adrian Lawrence Ph: +61 2 8922 5204 E: adrian.lawrence@bakernet.com Allison Manvell Ph: +61 2 8922 5251 E: allison.manvell@bakernet.com ? ? ?

Adrian Lawrence

Ph: +61 2 8922 5204

E: adrian.lawrence@bakernet.com

Allison Manvell

Ph: +61 2 8922 5251

E: allison.manvell@bakernet.com

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