Other protection issues
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Material that vilifies or discriminates against a particular group of people may be prohibited under the RD Act. The Australian Human Rights Commission (AHRC) assesses this type of content. Publishers of online content have been found to have acted unlawfully where the content they publish is racially vilifying or discriminatory.
In Jones v Toben [2002] FCA 1150, the Federal Court upheld the AHRC’s decision that the respondent had engaged in unlawful conduct by publishing material that vilified Jewish people on a website.
This decision has been applied in other cases.
In Victoria, the RRT Act specifically covers electronic communications, including email. The key sections of the RRT Act are sections 7 and 8.
Section 7(1) provides that:
A person must not, on the ground of the race of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
Section 8(1) provides that:
A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
Complaints can be made to the Victorian Equal Opportunity and Human Rights Commission (see ‘Contacts’ at the end of this chapter).
For more information, see Chapter 11.1: Discrimination and human rights.
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The Commonwealth Government regulates internet gambling. Access by Australian-based customers to certain forms of interactive gambling is prohibited (e.g. online casino-style games and live sports wagering). It is also an offence to provide particular forms of Australian-based interactive gambling to customers in specific countries.
For more information about internet gambling, go to the Australian Communications Media Authority (ACMA) website (www.acma.gov.au).
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‘Domain names’ (also called URLs) are unique web addresses. To establish a domain name, the name must be registered with the Internet Corporation of Assigned Names and Numbers (ICANN). In Australia, ICANN contracts out its registration function to other corporations.
‘Cyber-squatting’ is where a person registers a domain name in which they have no legitimate interest, with a view to obtaining a profit from those with a genuine interest in the domain name. There is no specific anti-cyber-squatting legislation in Australia, but such actions may constitute trade mark infringement, ‘passing off’ (i.e. representing goods or services as your own, which are not), or may breach the Competition and Consumer Act 2010 (Cth). In Australia, cyber-squatting is usually dealt with under misleading or deceptive conduct, rather than trade mark infringement.
Under Australian law, domain names are a licence, held by the person who registered the name (the registrant), under a contract with the authority in charge of managing and registering domain names.
Because the registration of a domain name is an administrative action, the act of registration does not give the registrant any legal rights, other than the contractual right acquired by registration. This means that domain names are not owned but are contractual rights that are subject to terms and conditions as stipulated in the agreement for registration.
The relevant policy is the Domain Administration Rules: Licensing, June 2023, published by the Australian Domain Name Administrator (auDA) (the regulator of the .au domain administration), which states (s 1.3):
The objects of the auDA Rules are to ensure that a Licensing system is established which:
is transparent, responsive, accountable, accessible, and efficient;
improves the utility of the .au ccTLD for all Australians;
promotes consumer protection, fair trading and competition;
provides those protections necessary to maintain the integrity, stability, utility and public confidence in the .au ccTLD;
expresses licence terms and conditions in objective and not subjective terms;
implements clear, predictable and reliable complaint processes; and
preserves the fundamental principles of no proprietary rights in a domain name, first come, first served, and no hierarchy of rights.
Section 2.4.4 of the policy states as follows:
A Person applying for a licence in the com.au and net.au namespaces must be
a commercial entity; and
the domain name applied for must be:
(a) a match of the Person’s company, business, statutory or Personal name; or
(b) an acronym of the Person’s company, business, statutory or Personal name; or
(c) a match of the Person’s Australian Trade Mark; or
(d) a match to or an acronym of a name of a related body corporate or
(e) a match or an acronym of a name of:
(i) a partnership of which the Person is a partner;
(ii) a trust of which the Person is a trustee; or
(f) a match or synonym of the name of:
(i) a service that the Person provides;
(ii) goods that the Person sells (whether retail or wholesale);
(iii) an event that the Person registers or sponsors;
(iv) an activity that the Person facilitates, teaches or trains;
(v) premises which the Person operates
and which that Person is providing at the time of the application.
For more information about registering domain names, visit auDA’s website (www.auda.org.au).
Under common law, holding the registration of a domain name may not constitute having control over the website’s content. This is relevant, for example, when determining whether a party has power to publish corrective notices on a website.
Domain name disputes are commonly dealt with through dispute resolution, which is cheaper and simpler than court litigation. Australian domain name disputes are dealt with according to auDA’s dispute resolution policy.
Disputes are dealt with by independent arbitration services that have been accredited by ICANN (the World Intellectual Property Organisation and the Resolution Institute).
The dispute resolution process for situations in which the company challenging the domain name owns a business name or trade mark identical to the domain name is if the challenger owned the name prior to the domain name owner registering the name, the domain name is taken and disabled until the dispute is settled. This prevents the domain name owner from using their possession of the name to bargain with the challenger.
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The Privacy Act imposes Australian Privacy Principles (APPs) on the federal public sector and on private sector organisations. The APPs set the minimum standards for collecting and handling personal information by businesses and other private sector organisations. The APPs are relevant, for example, when collecting personal information from contributors to an online forum.
There are exemptions for small businesses and media organisations acting ‘in the course of journalism’.
The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) includes a set of harmonised privacy principles that regulate the collection, use, storage and disclosure of personal information by Australian Government agencies and some businesses. These apply to the collection and use of personal information, including online storage of personal information.
Providing a privacy policy for your website as well as terms and conditions of use are the mechanisms commonly used to manage the various legal risks associated with online publishing.
For more information on privacy laws, see Chapter 12.2: Privacy and your rights.
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Certain online communication practices, including giving a person unwanted attention or sending a person offensive material, may constitute harassment.
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Cyber-bullying is offensive, menacing or harassing behaviour that is conducted using technology.
Examples of cyber-bullying include:
posting hurtful messages, images or videos online;
repeatedly sending unwanted messages online;
sending abusive texts and emails;
excluding or intimidating others online;
creating fake social networking profiles or websites that are hurtful;
participating in nasty online gossip and chat; and
any other form of digital communication that is discriminatory, intimidating, intended to cause hurt or make someone fear for their safety.
Under section 474.17 of the Criminal Code, it is a criminal offence to use the internet, social media or a telephone to menace, harass or cause offence. The maximum penalty for this offence is five years’ imprisonment.
There are also stalking offences in each state and territory. In Victoria, stalking is defined at section 21A of the Crimes Act. Stalking involves a persistent course of conduct that is intended to make the victim feel fearful, uncomfortable, offended or harassed. When the conduct occurs online (e.g. by email or on social networking sites) or via text message, it is still a criminal offence. Stalking offences carry heavy maximum penalties.
For more information, see the Australian Cybercrime Online Reporting Network (ACORN) (www.cyber.gov.au/report-and-recover/report).
Victims of stalking can seek an intervention order against the stalker; see ‘Personal safety intervention orders for stalking’ in Chapter 4.4: Family violence.
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Revenge porn (also called ‘image-based abuse’) is the exploitative sharing of intimate or sexual material of a person without their consent, with the intention of causing that person harm.
Image-based abuse is the term preferred by academics and government agencies as not all perpetrators are motivated by revenge, and not all images are pornography.
There are specific laws in Victoria and South Australia that criminalise the distribution of an intimate or ‘invasive’ image without consent. In both Victoria and South Australia, it is also a criminal offence to threaten to distribute an intimate or invasive image (see ‘Sexting’, below).
Under Commonwealth law, section 474.17 of the Criminal Code – ‘using a carriage service to menace, harass or cause offence’ – has been used to respond to image-based abuse. The use of ‘private sexual material’ in such an offence constitutes an aggravated offence, increasing the maximum sentence from three to seven years’ imprisonment (s 474.17A).
However, if the perpetrator does not demonstrate a clear intention to menace, harass or cause offence, the law is vague.
While criminal and civil laws exist in some states and territories to provide compensation to victims of image-based abuse, there is no national consistency.
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‘Sexting’ is:
the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices (Law Reform Committee, Parliament of Victoria, Inquiry into Sexting (Parliamentary Paper No. 230, p. ix, 2013)).
The Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 (Vic) (which passed on 15 October 2014) amended the Summary Offences Act 1966 (Vic) (‘SO Act’) and the Crimes Act. The Bill created the offences of distributing an intimate image (s 41DA) and threatening to distribute an intimate image (s 41DB) under the SO Act. There is a defence to the offence of distributing an intimate image where the image is of a person 18 years or older and that person has expressly or impliedly consented to its distribution.
Under the Crimes Act, it is an offence to produce, distribute, possess or access ‘child abuse material’. This includes material where a person who is or appears to be a child is engaged in (or apparently engaged in) a sexual pose or activity (see ss 51A–51H). This definition covers peer-to-peer sexting by minors.
However, there is a defence under section 51N for minors where the material is an image that does not depict an imprisonable offence (or that the minor reasonably believes does not depict an imprisonable offence) and where the youngest child in the image is no more than two years younger than the minor.
There is also a defence for adults aged 18 or 19 years old under section 51P. This defence applies where:
the person is no more than two years older than the person in the image (who must be 16 or 17 years old and not in the care of the other person); and
the image does not depict an imprisonable offence; and
the person has dealt with the image with the consent of the person in the image; and
the person does not distribute the image to anyone other than the person in the image.
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Social networking sites, such as Facebook and LinkedIn, enable members to use a personal profile to interact with other people online.
Privacy policies
Most social networking sites have a privacy policy that governs how they store and control access to the information that users upload to their profiles. Under many of these policies, information can be viewed by other users of the particular social networking site, or by anyone who has access to the internet.
Privacy and safety
Social networking sites can give rise to privacy and safety concerns, as it can be difficult to confirm the identity of other social networking site members.
A common problem on social networking sites is the establishment of false profiles, designed to mislead users as to the identity of the person posting the information. An online reporting facility exists on Facebook and X (formerly known as Twitter) where requests can be made to remove or modify the false page or user.
Publication laws apply online
All publication laws (including defamation, copyright, vilification and contempt) apply to social networking sites. Other publication restrictions apply (e.g. not identifying victims of sexual offences, or discussing Children’s Court and Family Court matters).
Employees
If you use a profile that identifies you as an employee or associate of a particular organisation, you are usually subject to the social media and professional conduct guidelines of that organisation.
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Internet dumping (also known as ‘modem jacking’) is the practice of switching a user from their current ISP to a premium-rate telephone number without their knowledge or consent. Internet dumping can occur when certain websites are accessed.
Internet dumping is likely to breach the Competition and Consumer Act 2010 (Cth), and various state Fair Trading Acts, and may also be a breach of the customer’s ISP contract.
If the ISP cannot resolve a complaint concerning internet dumping or an aspect of the ISP’s service, complaints can be made to the Telecommunications Industry Ombudsman (see ‘Contacts’, below).
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Spam is unsolicited commercial electronic messages (i.e. electronic junk mail) that is generally delivered by SMS or email.
Under the Spam Act 2003 (Cth), spam can only be sent with the consent of the person receiving the message. However, consent can be reasonably inferred if there is a business relationship between the sender and the receiver of the message.
Commercial messages must include an unsubscribe facility.
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Phishing is a form of identity theft where fake emails and websites that are designed to look like legitimate businesses, financial institutions and government agencies are used to deceive internet users into disclosing financial account information or other personal details. For more information, including how to complain about spam and phishing, contact ACMA (see ‘Contacts’ at the end of this chapter).
Other protection issues
Chapter: 7.5: The internet and the law
Contributor: Nicholas Bird, Barrister
Current as of: 1 September 2024
Law Handbook Page: 659
Next Section: e-commerce: Online shopping
