Internet Specific Issues
The aim of this paper is to give practitioners a brief overview of some of the more important recent developments in relation the internet, identifying only some of the main developments and trends.
E Commerce Patents
Following the Federal Circuit’s decision in State Street Bank & Trust Co v Signature Financial Group Inc (method of doing business, producing a “useful, concrete and tangible result” and practical utility and therefore patentable) the general approach in New Zealand has been that methods of doing business are regarded in the same light as other methods and subjected to the same rules.
As a result, IPONZ has been inundated with new business method patent applications. While the New Zealand courts have yet to decide whether software or business methods are patentable it is likely that they will follow the international approach.
In the digital copyright area, the main law reform proposals are contained in the position paper – “Digital Technology and the Copyright Act 1994 – Position Paper” Ministry Of Economic Development (December 2002). Issues discussed include:
a.Whether a broad distribution/communication right should be introduced;
b.Whether the existing definition of copying is broad enough to allow copyright owners to prohibit unauthorised copying of material in digital form and the conversion of print or analogue works to digital form;
c.Whether the definition of copying should be amended to address explicitly incidental and temporary copies;
d.Whether the fair dealing exceptions are adequate for digital technology and whether further exceptions are necessary; and
e.Whether time and format shifting should be allowed.
As at October, the Bill is still awaited. However, the timing of its introduction remains uncertain, given the election.
Intimate and often voyeuristic covert filming is a particular type of activity which seems to be on the rise in New Zealand. By comparison, the relatively recent case on Bondi where topless sunbathers were photographed on a mobile phone comes to mind. It occurs when one person makes a surreptitious visual record of another person in intimate circumstances without the person’s consent or knowledge and in circumstances that the person would reasonably expect to be private. It takes away a person’s freedom of choice to decide how they respond or conduct themselves, for example, to adjust their behaviour to minimise the intrusion and control how they are viewed.
The Law Commission’s report (Study Paper 15) on the topic of Intimate Covert Filming, recommended both the creation of new criminal liability and amendments to the Privacy Act to provide a civil remedy through the complaints process under that Act. On 12 April 2005 the Justice Minister introduced the Crimes (Intimate Covert Filming) Amendment Bill.
The aim of the legislation is to criminalise specific types of conduct. This Bill proposes amendments to the Crimes Act 1961 to create three new offence provisions, relating to the making, possession and the publishing, importing, exporting, or selling of an intimate visual recording. All offences have a penalty of imprisonment not exceeding three years, other than simple possession (possession without an intention to publish, export or sell the intimate visual recording) which has a penalty of imprisonment not exceeding one year.
The Bill was reported back to the House by the Government Administration Select Committee on 1 August 2005. A copy of the Select Committee’s report can be accessed at http://www.clerk.parliament.govt.nz/Content/SelectCommitteeReports/257bar2.pdf
Tracking and Monitoring
Internet technology has spawned a plethora of devices and software for identifying, tracking, collating and retrieving information, which often includes personal information. I deal with these various topics under the “privacy” head. One of the most common of these new practices is rather endearingly referred to as cookies, spiders and web bugs. Another more recent phenomenon is ‘phishing’, also called ‘brand spoofing’ or ‘carding’. This involves sending an email to customers of established legitimate enterprises attempting to deceive them into providing personal information that is then used for identity theft and fraud. The email normally directs the recipient to a mock website. The recipient is then asked to update personal information such as credit card details and account information. Even if only a small proportion of these attempts succeed the potential for online fraud is significant and anecdotal evidence suggests the problem is real and happening now.
Cookies are data files which reside on a user’s computer hard drive. They are deposited on the hard drive and retrieved when the user visits the same website again. The information stored is used to convey the user’s preferences and again his/her personal details. Cookies are however also used for legitimate purposes, including allowing the use of “shopping carts” when buying online.
Web bugs are similar. These are programming codes comprising tiny graphics files, undetectable to the human eye. They allow others to monitor who is accessing a website and to provide details of the Internet protocol address – the user’s unique identifier. There has not, to my knowledge, been any litigation in New Zealand in this area. However, it is only a matter of time before it occurs.
Scraping involves gathering information from websites and re-using it. The question then arises as to whether this places an unacceptable strain on a company’s computer system and/or breaches a service provider’s terms and conditions.
In New Zealand, the online auction organisation Trade Me took similar action and managed to get a competitor TradeWise to stop scraping auction information (called “screen scraping”) from its site. See article by Russell McVeagh in World eBusiness Law Report, 9 May 2003 at http://www.worldebusinesslawreport.com/index.cfm?action=login&c=17801&id=1925.
In terms of the threat to privacy, in Private Word, Issue No. 48, April-June 2003, the Privacy Commissioner notes that the 1980 OECD Guidelines on Privacy may well be ineffective with spiders and crawlers. This may well be correct as the guidelines were prepared before these devices were invented. It is also noted that these devices are capable of subjecting personal data to fresh surveillance against criteria different from those for which the data had originally been collected and possibly unknown or even non-existent at the time of collection.
Spam is a major problem in New Zealand, just as it is in Australia.
In May 2004 the Ministry of Economic Development produced a discussion paper. It received a large number of submissions in response. It is understood that respondents virtually all agreed that spam has markedly eroded confidence in the reliability of email and that legislation is necessary. As at July 2005, a draft bill, the Unsolicited Electronic Messages Bill, is awaited. The law is expected to deal with text and instant messaging services and emails. It will target New Zealand-based spammers. It is reported that the Bill will adopt the opt-in model, concentrating on multiple marketing messages, as legislation in some other countries has done. Non-commercial promotional messages will also apply where the recipient has opted out of receiving these messages. Stiff penalties are expected to be put in place.
According to George Wardle of the MED, the Bill was introduced into the House on 28 July 2005. This was just prior to the House dissolving. It did not receive a first reading before the House dissolved and as a result was not referred to a Select Committee for consideration.
In addition, arguably, certain types of spam can now be caught by s250 of the Crimes Amendment Act (No 6), which covers a situation where someone intentionally or recklessly and without authorization:
“Damages, deletes, modifies, or otherwise interferes with or impairs any data or software in a computer system”.
The word “adds” was deleted from the provision because it would probably have caught “cookies”. Even so, denial of service (DOS) attacks would clearly be caught by the provision as would spam and crawlers that materially impair or erode a computer system/service through a sudden or sustained attack of sufficient magnitude.
Other Privacy Related Case Law Developments
In Television New Zealand Ltd v Mafart, (High Court – Auckland, S89/85; S90/85, 23 May 2005, Simon France J, unreported) TVNZ applied for leave to access to closed-circuit television footage and documents relating to the infamous sinking of the Rainbow Warrior by French agents. TVNZ planned to run a documentary for the 20th anniversary of the incident and sought from the Court access to trial material for purposes of making a documentary marking the anniversary. While previously unsuccessful the broadcaster was this time able to gain access to material (other than administrative files and sentencing material). In doing so the Court considered whether the law had changed since previous applications and whether privacy interests remained paramount.
Simon France J concluded that TVNZ should be able to gain access on the basis that the French agents had themselves chosen to write on the topic and intended to control coverage rather than remove it from public domain. In the result, the his Honour found that the privacy expectation was inherently low and in effect that the public interest outweighed the privacy interest.
In Attorney-General v Television New Zealand Ltd (2004) 17 PRNZ 360, (Supreme Court, Gault J, Keith J) in a very high profile case, the Attorney General applied successfully for leave to appeal against a Court of Appeal decision relating to TVNZ’s efforts to interview Mr Zaoui, a person alleged to be a security risk and subject to a security certificate. In doing so, the Supreme Court assessed the competing interests involved in values in the integrity of statutory processes, freedom of expression and national security
These cases show that the conflict between freedom of expression and a right to, inter alia, privacy will continue to shape our jurisprudence. It is also clear that rights in content, access to information, privacy, and freedom of expression are all concepts that play an increasingly important role in our modern “information society”.
13.MATTERS OF GENERAL INTEREST
Developments at IPONZ
Registered users of the IPONZ website are now able to send non-fee bearing trade mark correspondence electronically. Users can use this new online correspondence facility by attaching correspondence through a browser feature. Up to 10 letters can be lodged at a time. IPONZ is currently developing software that will allow registered users to submit patent and design correspondence online, including the ability to include payments. This is being done as part of the ECLIPSE project – a project to enhance and redevelop IPONZ’s present database (IPOL). It is hoped that this new functionality will be available early in 2006.
Internet Code of Practice
The New Zealand Internet Society, known as InternetNZ, has for some time now being working on an Internet Code of Practice. Its purpose is to serve as a guiding document for users, providers and businesses that use the Internet. It is designed to encourage responsible self-regulation.
In January this year it released its Internet Code of Practice Working Paper, so as to engender discussion and consultation. While adoption of the Code will be voluntary, ISPs that sign up may be liable for failing to comply with its provisions. Some of the principles include the rights of the public to:
a.clear and honest terms and conditions;
b.change service providers without unreasonable difficulty; and
c.information regarding blocking adult content and how to protect the security of their computer equipment.
ISP rights and obligations are also dealt with, including that they should not provide services that are illegal and certainly not knowingly host services that breach laws relating to offensive material, privacy, copyright and defamation. Likewise, the need to comply with New Zealand’s privacy laws is also dealt with as is the requirement to cooperate and deal responsibly with issues such as spam and hacking. A dispute resolution mechanism is also proposed.
It is apparent that there have been a number of developments in New Zealand over the past eighteen or so months.