1/06/2015Copyright, Dan Svantesson Law 105 Communication and the law

1/06/2015Copyright, Dan Svantesson Offensive publications: Obscenity and indecency

1/06/2015Copyright, Dan Svantesson Obscenity and indecency “Obscenity” denotes a higher degree of offensiveness than “indecency”

1/06/2015Copyright, Dan Svantesson Obscenity and indecency “Obscenity” denotes a higher degree of offensiveness than “indecency” Example: A picture of a nude woman/man might be “indecent” but not necessarily “obscene”.

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Under which circumstances is a person liable for an “obscene and indecent” publication? What material is deemed “obscene and indecent”? What defences should be available to the publisher?

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Publisher’s motives, objectives and intentions are irrelevant. But if it can objectively be said that there were reasonable literary, artistic or scientific purpose for the publication, the material might not be viewed as obscene and indecent.

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Contemporary Australian community standards.

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Contemporary Australian community standards. “ordinary decent-minded people, not the scrambled ideas of mindless morons or the extremely liberal views of the avant-garde”

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Contemporary Australian community standards. “ordinary decent-minded people, not the scrambled ideas of mindless morons or the extremely liberal views of the avant-garde” Mackinlay v. Wiley (textbook at page 324)

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Defenses: It is a defence that the person(s) to whom publication was made sought out the material while aware of its character

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Defenses: It is a defence that the person(s) to whom publication was made sought out the material while aware of its character OR the publication of the obscene and indecent material was a result of a honest and reasonable mistake

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Under which circumstances is a person liable for an “obscene and indecent” publication? What material is deemed “obscene and indecent”? What defences should be available to the publisher?

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Naughty stuff on-line: Online Services Act

1/06/2015Copyright, Dan Svantesson Obscenity and indecency Naughty stuff on-line: Convention on Cybercrime Created by: Council of Europe Signed by 33 States (mostly European but also Japan, US, South Africa & Canada)

1/06/2015Copyright, Dan Svantesson A possible summary: 1. A person is liable for the publication of obscene and/or indecent material if he/she is the publisher of the publication. The publisher’s motives, objectives and intentions are irrelevant in this context.

1/06/2015Copyright, Dan Svantesson A possible summary: 2. The publication is to be deemed obscene and/or indecent if ordinary, decent and fair- minded people of the group to whom publication was made, or is likely to have been made, would find the material obscene and/or indecent. In this context, regard should be had to contemporary community standards and account should be taken to any literary, artistic or scientific purpose of the publication.

1/06/2015Copyright, Dan Svantesson A possible summary: 3. The publisher should not be held liable if: (a) the publication of the obscene and indecent material was a result of a honest and reasonable mistake, or, (b) the person(s) to whom publication was made sought out the material while aware of its character.

1/06/2015Copyright, Dan Svantesson Cybercrime Convention: Article 9 – Offences related to child pornography 1. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct: Producing, offering, distributing, procuring, possessing – child pornography through the Internet.

1/06/2015Copyright, Dan Svantesson Cybercrime Convention: It will be supplemented by an Additional Protocol making any publication of racist and xenophobic propaganda via computer networks a criminal offence.

1/06/2015Copyright, Dan Svantesson Sedition: “Sedition” is actions or words which are intended to bring the Sovereign, the government or the Constitution into hatred or contempt or to excite disaffection against them, with an intention to incite to violence or to create public disturbance or disorder.

1/06/2015Copyright, Dan Svantesson Sedition: CRIMES ACT 1914 SECT 24A

1/06/2015Copyright, Dan Svantesson Sedition: CRIMES ACT 1914 SECT 24B (2) Seditious words are words expressive of a seditious intention.

1/06/2015Copyright, Dan Svantesson Sedition: CRIMES ACT 1914 SECT 24D (1) Any person who, with the intention of causing violence or creating public disorder or a public disturbance, writes, prints, utters or publishes any seditious words shall be guilty of an indictable offence. Penalty: Imprisonment for 3 years.

1/06/2015Copyright, Dan Svantesson Sedition: CRIMES ACT 1914 SECT 24F - Defences Certain acts done in good faith are not unlawful

1/06/2015Copyright, Dan Svantesson Blasphemy: “Today blasphemy is said to embrace publications which contain any contemptuous, reviling, scurrilous or ludicrous matters relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established.”

1/06/2015Copyright, Dan Svantesson Racial vilification: ANTI-DISCRIMINATION ACT SECT 20C (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

1/06/2015Copyright, Dan Svantesson Racial vilification: ANTI-DISCRIMINATION ACT SECT 20B Definition of “public act” any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and gestures and the wearing or display of clothing, signs, flags, emblems and insignia

1/06/2015Copyright, Dan Svantesson Racial vilification: “an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views”

1/06/2015Copyright, Dan Svantesson Confidentiality: Prevents media from accessing information Protects media’s sources

1/06/2015Copyright, Dan Svantesson Confidentiality: There are three elements of an action to restrain a publication of confidential information: 1) The information must be of confidential nature; 2) The circumstances of the communication must have imposed confidentiality; and 3) There must be an actual (threat of) unauthorised use of the confidential information.

1/06/2015Copyright, Dan Svantesson Confidentiality: Disclosure to a limited group of people does not necessarily deprive the information of its confidential nature.

1/06/2015Copyright, Dan Svantesson Confidentiality: Disclosure to a limited group of people does not necessarily deprive the information of its confidential nature. TEST: Is the information in the public domain?

1/06/2015Copyright, Dan Svantesson Confidentiality: If the circumstances are such that any reasonable person standing in the shores of the recipient of the information would have realised on reasonable grounds that the information was given to him or her in confidence, that is sufficient to impose upon the recipient an obligation of confidence

1/06/2015Copyright, Dan Svantesson Confidentiality: People must accept the risks inherent in their chosen way of communication. REMEMBER: s are as private as a postcard!!!!

1/06/2015Copyright, Dan Svantesson Confidentiality: Do not publish information that it is obvious that was meant to be confidential, and it is “inconceivable” that the person who first communicated the information would allow third party use of it.

1/06/2015Copyright, Dan Svantesson Confidentiality: actual (threat of) unauthorised use of the confidential information

1/06/2015Copyright, Dan Svantesson Confidentiality: 1) The information was already in the public domain

1/06/2015Copyright, Dan Svantesson Confidentiality: 1) The information was already in the public domain 2) Justified disclosure

1/06/2015Copyright, Dan Svantesson Confidentiality: “just cause or excuse” i.e. the public interest in publication is greater than the public interest in maintaining the confidence.

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest”

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest” Media not always the best option

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest” Media not always the best option Mere allegations not always enough to justify disclosure

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest” Media not always the best option Mere allegations not always enough to justify disclosure Your source’s motives

1/06/2015Copyright, Dan Svantesson Confidentiality: 1) The information was already in the public domain 2) Justified disclosure 3) Whistleblower protection

1/06/2015Copyright, Dan Svantesson Confidentiality: Remedies: Interlocutory injunction (Lennon case)

1/06/2015Copyright, Dan Svantesson Confidentiality: Remedies: Interlocutory injunction (Lennon case) Permanent injunction

1/06/2015Copyright, Dan Svantesson Confidentiality: Remedies: Interlocutory injunction (Lennon case) Permanent injunction Account of profits

1/06/2015Copyright, Dan Svantesson Confidentiality: Remedies: Interlocutory injunction (Lennon case) Permanent injunction Account of profits Damages

1/06/2015Copyright, Dan Svantesson Confidentiality: “Professional confidential relationship privilege“: Balances the harm done to the confider, if information is disclosed, and the desirability of the evidence being given Evidence Act 1995 (NSW) s.126(a-f)

1/06/2015Copyright, Dan Svantesson Reading instructions: Before week 8 you should have read (and understood): AML pages 320 – 344 AML pages 225 – 253