Day 21: iiNet tackles the Telecommunications Act

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Day 21: iiNet tackles the Telecommunications Act

ISP claims the Act favours its defence.

Barristers for ISP iiNet have sought to dispel inferences by the film industry that the ISP’s Telecommunications Act defence is a recent invention - insisting that it was something iiNet staff had in mind when the internet service provider refused to take action on infringement notices.

Senior counsel for iiNet Richard Lancaster referred to two submissions made to the Government by Village Roadshow and the Australian Federation Against Copyright Theft (AFACT) respectively, which purportedly demonstrate the Act and its limitations were a legitimate concern for ISPs before the current copyright case commenced.

The submissions were obtained by iiNet under discovery.

Lancaster alleged that in the Village Roadshow submission there was “no indication” that the Telecommunications Act concerns were “a cheap technicality.”

He claimed the submission “cast various legal doubts” over how ISPs would be limited on acting on or investigating notifications by their obligations under the Act.

Of the second submission, Lancaster said “the reason I take Your Honour to it is that from the applicant’s own representatives, the application of the Telecommunications Act was known to be a serious concern for ISPs.

“It was dealt with in submissions to the Government as a serious matter.”

The ISP has consistently argued that investigating allegations of copyright infringement would put it at odds with its data privacy obligations under the Telecommunications Act. That interpretation is to be tested in the case.

Even if it were able to investigate the allegations, that would require costly IT systems that would disadvantage iiNet against other players not subjected to the same requirements, the ISP has argued.

“If iiNet were to do what AFACT have suggested, it would have to undertake a matching or searching exercise on two databases - one for the technical reporting of IP address allocations and then the accounting database which has all the relevant information identifying the customer [account holder],” Lancaster said.

“The moment it did that it would fall foul of [section] 276 [of the Telecommunications Act].”

There also remains some contention in the case as to what iiNet users have consented to in their customer relationship agreement (CRA) with the ISP, particularly in terms of information sharing.

Lancaster said the film industry had put forward “a number” of clauses in iiNet's CRA that the studios claimed as evidence that the account holder had consented to iiNet using account information in the way the studios wanted - to match against allegations of infringement.

The definition of consent was taken from section 289 of the Telecommunications Act, which the film industry has allegedly used in part to counter iiNet’s use of section 276 of the Act in its defence.

Lancaster raised a potential complication with this reading of section 289, relating to whether users of the iiNet internet service, other than the account holder, could be deemed to have consented to the terms of the CRA when they used the service.

Such users could be family members, friends or employees of a business.

“There’s no reason to believe those individuals are aware themselves of any terms of the customer relationship agreement [signed by the account holder] when they are using the service,” Lancaster alleged.

“It’s our submission that it’s almost impossible to say they are aware of or consent to the use or disclosure of personal information. Common sense would dictate the conclusion that the other users aren’t sat down and run through all the terms before they use [the account holder’s] internet service.”

iiNet’s closing submissions were expected to wrap up later this afternoon.

The case continues. You can follow the case in-full here. For a background on the case, click here.

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