Barristers for ISP iiNet and Hollwood film studios clashed today in the Federal Court on whether the Telecommunications Act could be relied on by ISPs as a reason not to action infringement notices issued by rights holders.
The issue was one of two raised in iiNet's notice of contention filed with the Federal Court for the appeal.
The ISP was appealing a finding by Justice Cowdroy (part E2, section 555 of the initial Federal Court judgement) on the Telco Act defence, in an attempt to strengthen its case and provide clarity on the issue to the wider telecommunications and ISP industry.
At issue was the reading of Part 13 of the Telecommunications Act, which deals with confidential information. Provisions included that "people and organisations that are permitted to receive disclosures are prohibited from using the information or documents they have received for purposes other than those for which the information was given".
Both sides in the copyright appeal - iiNet's barrister Richard Lancaster SC and the studios' barrister Christian Dimitriadis - submitted different "constructions" of the various elements of the Act.
Lancaster SC referred the full bench to iiNet chief executive Michael Malone's belief that the Act prevented iiNet from taking action on the Australian Federation Against Copyright Theft (AFACT) notices.
He said there was other evidence that "this was an issue that was known to and addressed by industry players", pointing to a letter sent by AFACT to the Attorney-General's Department that discussed, among other things, the "current impediments to accessing customer details" in cases where infringement had been alleged.
Lancaster SC submitted that other laws - including the Copyright Act - did not impose a "requirement or authority to disclose otherwise protected communications under the Telecommunications Act."
He noted that Commonwealth criminal laws could "require or authorise... iiNet's staff to hand information over to the police" outside of the Telco Act, but said such matters were not determined in evidence in the case.
Considerable time was allocated to the wording of iiNet's customer relationship agreement (CRA) and whether it handed iiNet "consent" (as determined by Part 13) to use personal information for the purpose demanded by the film industry - to match to allegations of copyright infringement and enforce what the studios viewed as relevant terms of the agreement, such as the ISP's ability to suspend or terminate a subscriber's account.
Lancaster SC submitted that the "consent in the CRA does not speak to the circumstances concerned [in this case]."
The ISP has maintained it has the right to take action against subscribers who, for example, fail to pay their bills or whose credit cards expire, but these actions can't be re-applied in a situation where it is faced with an allegation of infringement by rights holders. Such actions might include warning, suspension or termination of the account.
Lancaster SC submitted that the CRA wording "doesn't provide a consent for the affairs of customers generally to be used and disclosed, and doesn't provide a consent for the revelation of the substance of a communication".
He also submitted that there was a need for "specificity" around the way consent was apportioned to users of an account other than the known account holder - for example, where an internet service was shared in a household.
Justice Emmett queried Lancaster on whether or not there was an "implied consent" that anyone using a connection did so in abidance with iiNet's terms and other laws. But Lancaster sought clarity from the full bench on that point.
"In our submission, the construction of consent in the circumstances concerned needs to have this specificity," he said.
The opposite perspective
Counsel for the film studios, Christian Dimitriadis, urged the full bench to accept the studios' perspective.
"The construction iiNet contends is a highly improbable result in our submissions," he said.
"The Telco Act is the legislative framework by which iiNet provides carriage services and has entered into a CRA with its subscribers.
"The effect of the construction our friends put forward is that iiNet would be hamstrung from enforcing the terms of its own contract in cases where it's aware of infringement and has the information [to prove it].
"We'd submit that the Court wouldn't provide that reading."
Dimitriadis submitted that the prohibition on disclosure described in the Telco Act did not prevent iiNet from acting on AFACT's notices.
And he also argued against the need for "specificity" around what was meant by the word "consent" in the current circumstances. He argued that the "words simply require the consent to be a consent in the circumstances, not a specific consent".
The case continues. Readers can register for iTnews' complete coverage.