No I wouldn’t steal a CD, DVD or a Facebook photo – But can you ‘receive’ a digital photo as ‘tainted property’?

The arrest and ‘un-arrest’ of Ben Grubb, IT reporter with the Sydney Morning Herald, woke up the recent AusCert conference after the SMH published a story, illustrated with photos extracted from a Facebook page.

The person who extracted the photos from Facebook is at risk of being charged with a cybercrime. Peter Black, senior lecturer at Q.U.T., when interviewed by the Sydney Morning Herald, appropriately commented that security researcher who obtained the Facebook photos, potentially breached section 477 of the Commonwealth Cybercrime Act 2001,  if there was an 'unauthorised access' to the computer server on which the Facebook photos were located.

As to why Ben Grubb was arrested then ‘un-arrested’, Queensland police fraud squad head Brian Hay appeared on shaky ground when he was reported as equating receiving an unauthorised photograph from someone's Facebook account with receiving a stolen TV. Underlying this curiously arresting analogy is a question that has never been answered by Australian courts – can a digital work (such as a Facebook photo) be the subject of a theft charge? That is, can Facebook photos be stolen?

The English Court of Appeal once said that “that copyright is probably not a subject of theft”.[1]  The court did not have to give a more definite answer as the offence being considered in Lloyd’s case was a conspiracy to steal the master tape of a film in order to use it to create copies.  The important element in Lloyd’s case was that the master tape is a physical object, quite capable of being purloined by the copyright pirates that intended to use the master tape to create further copies of the film. 

If the copyright in a digital photo is not capable of being the subject of theft proceedings – the question for the Queensland police is how can Facebook photos be the subject of a charge of “receiv[ing] tainted property” under s. 433 Criminal Code 1899 (Qld)? If the digital photos cannot be stolen in the first place it cannot be ‘received’ by Ben Grubb.   It all depends on whether the digital photos are ‘property’.  The Queensland police have something to run with as the definition of ‘property’ in the Queensland Criminal Code includes “any other property real or personal, legal or equitable, including things in action and other intangible property”.

The Theft Act of the United Kingdom had a similar definition of property, however in the case of Oxford v Moss[2] the U.K. Court of Criminal Appeal rejecting that confidential information in an exam paper was capable of being stolen.   The Australian courts do not have to follow those English decisions. We will see if the Sydney Morning Herald want to have these questions answered. While Ben Grubb was ‘un-arrested’ the Queensland police retained his iPad to copy the hard drive – plenty of grounds there to challenge the arrest of Ben Grubb and the taking of Ben Grubb’s property by the Queensland police.

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[1] Lloyd & Anor, R. v [1985] QB 829; [1985] EWCA Crim 1.

[2] [1978] Cr App R 183. See also Grant v Procurator Fiscal [1988] RPC 41; 1987 SCCR 402 an attempt to sell a list of customers was not a crime known to Scots law.

Big tobacco and trademarks – “I’m going to fight for you John Player” – not

The Plain Tobacco Packaging Bill 2011 is on the agenda of the Australian Federal Parliament - the fight back from the big tobacco companies has begun with a series of Freedom of Information Act (FOI) applications which directed to the release of what big tobacco hope, as discussed by tobacco.org, are embarrassing statements and reports of the Department of Health, along the lines that not many people are expected to give up smoking as a result of the Plain Tobacco Packaging legislation that is currently before the Australian Federal Parliament.  That may very well be conclusions in reports that are released by the Department of Health, but I say – so what! 

If the current generation of smokers will not quit as a result of the current ad campaign with the man coughing blood – then no public policy directed to reducing tobacco smoking will have an effect.  But then policies like the Plain Tobacco Packaging legislation are directed to the younger generations, so as to destroy the glamour associated with cigarette branding with generic packaging across all brands of cigarettes. 

The importance of banding tobacco products was brought home to me in the 1990’s when I noticed that all my friends that were smokers purchased cigarettes that used purple in their branding. The ad campaign in the 1990’s used very sophisticated ads, in which the logo was removed, leaving the colour purple to sell the product - 98% of consumers surveyed associated the ads with the brand of cigarettes.[1]

This blog is not about the public health policy related to tobacco, which is covered by the Croaky website; the focus of this blog is controversy over the extent to which the Plain Tobacco Packaging Bill 2011 may limit the exercise of intellectual property rights in trademarks and designs if that is enacted.

The Bill requires cigarettes to be sold in ‘plain packaging’. Therefore to advance the public health policy of discouraging cigarette use the Bill prevents the tobacco companies from using trade marks and other branding on cigarette packaging. Conservative commentators responded to the previous plain packaging legislative proposal by asserting that as well as having the consequence that Australia will be in breach of obligations under international trade and IP treaties regarding the recognition of trademarks, the legislation would be unconstitutional in respect to the “acquisition of property on just terms” protection in s. 51(xxxi) of the Australian Constitution.  Wilson (2010)[2] argued that the enactment of Plain Tobacco Packaging legislation would expose the Commonwealth government to compensation claims from the tobacco companies.[3]

The short answer to the I.P. treaty point is the bill does not interfere with the registration of trade marks by tobacco companies, (that is, the ‘recognition’ of those marks under Australian law; and that while the bill prohibits a specific use of the marks on packaging for tobacco products, with the trade mark owners retaining the bundle of property rights including ability to use the trade marks in ways that are not prohibited by legislation; those uses of their trade marks may have no value to tobacco companies – but they are selling cancer sticks, so big tobacco is undeserving of sympathy.

A key part of big tobacco’s strategy is directed to the argument that the Plain Tobacco Packaging legislation breaches constitutional protections of property in the trade marks. The protection provided by s. 51(xxxi) can be argued not to be an absolute protection, as it acts as a protection of property interests and not as a protection of the general commercial and economic value of that property.[4]  An example of that difference can be seen in the treatment of legislation that limited the ability of owners of artworks of national significance to export those works without a permit. 

In the David Waterhouse case,[5] the Full Federal Court (which included Gummow J, now a member of the High Court of Australia) stated that “[m]erely to extinguish or diminish a proprietary right vested in a person does not necessarily result in the acquisition of that proprietary right by the Commonwealth or another.  There must be something in addition of a proprietary nature that has been acquired.”[6] The refusal to grant an export permit under the Protection of Movable Cultural Heritage Act 1986 (Cth) was argued in the David Waterhouse case to constitute an acquisition for the purposes of s. 51 (xxxi). The Full Federal Court rejected the claim and held that that limits on exporting the artwork did not result in any direct or indirect taking of any form of property interest in the artwork.[7]  What can be taken from this decision is that legislation that limits the exercise of property rights (including intellectual property rights) can be argued to breach the “acquisition of property on just terms” protection in s. 51 (xxxi) of the Australian Constitution.

In 2008 the High Court in Telstra v Commonwealth,[8] warned against use of descriptive and rhetorical arguments over what are property rights.  The David Waterhouse case would indicate that it is possible to attenuate the value of intellectual property, such as by prohibiting the use of a registered trade mark, without being an acquisition of a property right by the Commonwealth.[9] 

The Consultation Paper to the Plain Tobacco Packaging Bill 2011 notes the possible arguments under by s. 51(xxxi) of the Constitution; with clause 11(1) of the Exposure Draft genuflecting to the protection of property rights provided by s. 51(xxxi), by stating that the “Act does not apply to the extent (if any) that its operation would result in an acquisition of property from a person otherwise than on just terms.” There is an additional statement in s. 11 (2) that is directed to the use of trade marks in accordance with regulations (if there is a constitution problem with the Act). Also s.  15 (again for what appears to be an apparent abundance of caution) protects the trade marks against applications for non-use of a trade mark; with s. 16 being directed to preserving rights under the Designs Act 2003 in respect of cigarette packaging.

The message that can be taken from big tobaccos’ current P.R. campaign is a High Court challenge is inevitable.  It appears the parliamentary drafting is designed to avoid the sudden death of the legislation - if there is an adverse ruling on the s. 51(xxxi) claim - the plain packaging regime will linger on in the form of some, yet to be drafted, regulations. That abundance of caution may not be needed as it is my view that the government can successfully defend a s. 51(xxxi) challenge to the Plain Tobacco Packaging legislation.

It is curious also that s. 12 also acknowledges the “Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.” I can see the day when every cigarette package will contain the trade marked logo with a plea below that the laws must change to protect these valuable property rights ¡

On that day a rendition of “The Laws Must Change”  & “I'm Gonna Fight For You J.B.” by John Mayall & the Bluesbreakers  will be the theme music for the television ad campaign  - with the line “I’m going to fight for you J.B.” changed to be “I’m going to fight for you John Player” ¡

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[1] Underhill, Paco (2010). Buyology: Truth and Lies About Why We Buy. Broadway Business. pp. 85

[2] T. Wilson, 'Governing in ignorance: Australian governments legislating, without understanding, intellectual property,' (26 April 2010)  Institute of Public Affairs (occasional paper)  <http://www.ipa.org.au/publications/1795/governing-in-ignorance:-australian-governments-legislating,-without-understanding,-intellectual-property>.

[3] Ibid. In the range of $378m to $3,027m per year.

[4] Federal Council of the British Medical Association in Australia v The Commonwealth (1949) 79 CLR 1; [1949] HCA 38. Dixon J at 270-271. See also M. Heller, 'The boundaries of private property' (1999) 108(5) Yale L. J. 1163-1223.  Heller considers US cases on ‘taking’ by the government without just compensation.  Heller notes that the U.S. Supreme Court has held that “the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full 'bundle' of property rights, the destruction of one 'strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety”: Andrus v Allard, 444 US 51 (1979). 65-66.

[5] David Waterhouse v Minister for the Arts and Territories (1993) 119 ALR 89; 43 FCR 175 (FCAFC).

[6] Ibid. [36] per Black CJ & Gummow J.

[7] Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480; [1993] HCA 10. (Blank Tapes case) per Mason CJ, Brennan, Deane & Gaudron JJ at 58; Dawson & Toohey JJ at 79 (McHugh J agreeing at 80).

[8] 234 CLR 210; 82 ALJR 521; 243 ALR 1; [2008] HCA 7.

[9] David Waterhouse case, ibid. [36] per Black CJ & Gummow J., who comment that the word “property’ in s. 51 (xxxi) is to be construed liberally, however, they adopted the observation in the Blank Tapes case that “it must be possible to identify an acquisition of something of a proprietary nature”.” Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480; [1993] HCA 10. (Blank Tapes case) per Dawson & Toohey JJ at 79 (McHugh J agreeing at 80).

Anonymity order by English court refers to Twitter and Facebook

On 12 May 2011 the English Court of Protection referred to Twitter and Facebook in an order made to prevent publication of the name of a person who was the subject of proceedings.   The problem is - Twitter and Facebook are companies operating from the United States and are therefore removed from direct sanction by the English courts.

Kevin Rawlinson, on The Independent newspaper website, reported a Facebook spokesman as commenting that Facebook’s  lawyers were “reviewing” the order and a Twitter spokesman as declining to comment on the order but did note that the Twitter terms of use require users to comply with “all applicable local, state, national, and international laws, rules and regulations”.[1]

The circumstances in which the English court made the order in that an application was made to the U.K. Court of Protection to withdraw all life-sustaining treatment  for a woman  referred to as “M”, who contracted brain stem encephalitis, which had the effect that she is described as a being in a “minimally conscious state”.   The court proceedings followed family members reaching the view that “M” would not wish to continue living in her current state and that it is not in her interests to do so. The Court of Protection has powers to assist those who, for whatever reason, lack the capacity to make decisions themselves. While the court usually conducts proceedings in private, however applications for permission to withdraw nutrition and other cases involving issues of life and death are usually held in open court.  Mr Justice Baker issued orders, pursuant to rule 92(2) of the Court of Protection Rules 2007,  as to how the proceedings could be reported, with the orders prohibiting “the publishing or broadcasting, in any newspaper, magazine, public computer network, internet site, social network or media including Twitter or Facebook, sound or television broadcast or cable or satellite programme service, of any information (including any photograph) that is likely to lead to the identification” of “M” and other people involved in the application to the court.  Service of the notice was directed to be made:

(1) by service on such newspaper and sound or television broadcasting or cable or satellite or programme services or internet service providers as they think fit, in each case by fax or first class post or e-mail addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator or internet service provider (in the case of an internet service) or the administrator of any social network or media sites and/or to their respective legal departments; and/or

(2) on such other persons as the parties think fit, by personal service.

Members of the Twitterati who defy the court anonymity orders face contempt of court proceedings. What is less certain is the liability of the administrators (one assumes that is intended to describe the managers and operators of the social network sites) in respect of  informing users of the existence of the court order or in respect of the deleting of any post to social networking sites by users that breach the orders; or closing the accounts of users that defy court anonymity orders.

Roy Greenslade, of The Guardian newspaper, noted “that a Twitter spokesman told The Guardian that it does remove "illegal tweets and spam." So it has the technology to do the job.”[2] While it is also open to for administrators of any social network sites to close accounts of any person defying court orders that will be as the saying goes - after the horse has bolted.

This court order can be seen as a response the controversy over Twitter accounts being used to name (apparently incorrectly) celebrities that had obtained injunctions that included anonymity orders or orders that prohibited publication that an injunction had been granted (the so-called ‘super-injunction’).   The conflict of interests as between the right to privacy of individuals and freedom of communication of media organisations is discussed in my recent blog on the decision of Mosley v United Kingdom.

Dan Sabbagh, on The Guardian newspaper blog, in considering the potential liability of Twitter and Facebook for content posted by users, refers to the 2009 decision in Metropolitan International Schools v Designtechnica and Google, in which Mr Justice Eady commented that “[o]bviously Google has no control over the search terms entered by users of the search engine or of the material which is placed on the web by its users.”[3]  Dan Sabbagh summarised the conclusion as to the liability of Google as being it “could not be held liable when it came to defamation because it had not published the material that appeared on its website.”[4]  Search engines operate with search algorithms that automatically produce results.  That case can be argued as not providing a close analogy to the situation facing Twitter and Facebook in that social media websites are publishing media rather than technologies that search for information published elsewhere on the web. 

The question is what is the responsibility of the operator of the social media technology for information posted by account holders?  The purpose of a court order directing anonymity of a person is exposed to the risk that a posting on Twitter and Facebook can be automatically posted elsewhere on those sites, with the possibility of the posts being further linked to other sites including blogs.

To the extent that defamation law may provide assistance in determining the liability of social media sites, the common law defence of innocent dissemination suggest that a social media site should be responsible for content posted by account holders, that is until notice is given of the existence of the defamatory material, whereupon a duty to remove the material will exist.[5]

However the enforcement issue remains, Twitter or Facebook may choose to voluntarily comply with court orders made in ‘foreign’ jurisdictions; otherwise those who seek the protection of anonymity orders face the loss of protection of anonymity orders due to the viral spread of the information on social networking sites.

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[1] Kevin Rawlinson, Social networking sites consider UK court ruling (13 May 2011) http://www.independent.co.uk/news/media/online/social-networking-sites-consider-uk-court-ruling-2283766.html

[2] Roy Greenslade, Can Twitter gag tweeters without giving the game away? (9 May 2011) http://www.guardian.co.uk/media/greenslade/2011/may/09/medialaw-twitter

[3] Metropolitan International Schools Ltd. (t/a Skillstrain and/or Train2game) v Designtechnica Corp (t/a Digital Trends) [2009] EWHC 1765 (QB) (16 July 2009) [13]; see also [64] “I believe it is unrealistic to attribute responsibility for publication to [Google], whether on the basis of authorship or acquiescence. There is no doubt room for debate as to what further blocking steps it would be open for it to take, or how effective they might be, but that does not seem to me to affect my overall conclusion on liability.”

[4] Dan Sabbagh, Injunctions, Twitter and the law (9 May 2011) http://www.guardian.co.uk/media/organgrinder/2011/may/09/injunctions-twitter-law?intcmp=239

[5] Morris Averill, Defamation – The Internet & the World-Wide Web, (Internet Law Anthology) Prospect Publishing (1997).  In the United Kingdom the ‘innocent dissemination’ defence has been “superseded” by s.1 of the Defamation Act 1996 (UK).

Mosley v United Kingdom – self-regulation of the press & litigation is preferred to pre-publication notification to the subject of "kiss & tell” stories

The European Court of Human Rights (ECHR) delivered the decision in Mosley v United Kingdom on Tuesday 10 May 2011.  The central question was whether the United Kingdom had a positive obligation to protect Mr Mosley’s privacy by providing for a legal duty for media publishers to inform him that a story was being written so as to give him an opportunity to seek an injunction to prevent publication of the story.  The ECHR rejected Mr Mosley’s application with the court noting that such as requirement of pre-notification of stories would have a “chilling effect” on the press.[1] 

Now the back story.  On 30 March 2008 the ‘News of the World’ published an article under the headline “F1 boss has sick Nazi orgy with 5 hookers”.  While Mr Mosley (the former head of Federation Internationale de l'Automobile that organises Formula One motorsport) had no warning of the publication of the story, the contents of the story included still photos extracted from a video taken clandestinely by one of the participants. Later that day Mr Mosley attempted to injunct the publication of an extract of that video on the ‘News of the World’ website, Eady J refused an injunction as the video had been extensively viewed during the hours the video was accessible on the Web before it was voluntarily removed by the newspaper;[2] Eady J commenting that the grant of the order in the terms sought would make very little practical difference and that, “[t]he Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures.”[3] The video was subsequently reinstated on the newspaper’s website.

Later in 2008, Max Mosley obtained a judgment for breach of his right to privacy and damages of £60,000 against the publishers of the ‘News of the World’.[4] Eady J held that the clandestine video taken by one of the participants was a breach of confidence and a violation of the Article 8 rights of all those involved;  publication could only be justified if it were in the public interest. Eady J held that the publication of the video was not a matter of genuine public interest that justified interference in Mr Mosley’s private life. The allegation of adultery did not place the story in the public interest and the ‘News of the World’ were unable to produce evidence that whatever was taking place had a Nazi theme – Eady J commented on the absence of any specifically Nazi indicia in the video - so there was no basis for the newspaper story being the public interest on that basis. [5] 

Privacy and media freedom arguments in Europe are conducted in an environment in which privacy and freedom of communication arguments address the relevant articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  The Convention contains a right to a private life in Article 8 in that “[e]veryone has the right to respect for his private and family life, his home and his correspondence”.[6] The European courts must balance this privacy interest with the freedom of communication in Article 10 of the Convention.[7]  The obligations in the Convention are reflected in the Human Rights Act 1998 (UK). 

In Mosley v United Kingdom the ECHR consider the now extensive case law concerned with balancing privacy interests with media freedom. The ECHR commented “that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest”.[8]  The ECHR noted the system of self-regulation of the press that operated in the United Kingdom, with guidance provided in the Editors’ Code and Codebook and oversight of journalists’ and editors’ conduct by the Press Complaints Commission (PCC).[9]  

The conclusion of the ECHR was that “[h]owever meritorious the applicant’s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism.”[10]  The role and effectiveness of the PCC is questioned by some lawyers who represent celebrities that are the focus of the tabloid press.[11]

In commencing the ECHR action, Mr Mosley set out to persuade the European court that media organisation should have a legal duty to give prior notice to the subjects of stories when the media organisation intend to publish a story that relates of their private life.  The argument being tabloid editors may choose to ignore the Human Rights Act protections of privacy; with the tabloid editors being assumed to believe the subjects will not incur the costs of added publicity of proceeding with breach of privacy litigation.  What Mr Mosley seeks to achieve in the ECHR is opposed by media organisations that anticipate that if prior notice is a legal requirement then the subjects of the “kiss and tell” and other embarrassing stories will proceed to seek injunctions; with media organisations submissions t0 the ECHR addressing media freedom and the considerable legal costs and disruption to editorial departments that could flow from an obligation to give pre-publication notification.

The House of Commons Culture Media and Sport Committee, in their Report issued on 9 February 2010, did not support requiring pre-publication notification with the Committee concluded that “a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a “public interest” exception”.[12]

It is possible for Mr Mosley to proceed to appeal and argue the matter in a “Grand Chamber” hearing, indeed a media release from his lawyers indicates that is being considered.  However the ECHR decision of 10 May 2011 leave little scope argument that the U.K. government have failed to comply with any European or international obligation in allowing the tabloid media to operate under the system of self-regulation – backed up by the PCC and the availability of legal remedies. The ECHR noted that Mr Mosley “has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned.”[13]  The decision will not end the privacy debate in the U.K.  It is possible that statutory press regulation could be introduced to include a pre-publication requirement in a statutory code. 

The impact of ECHR decisions on the other common law jurisdictions is less direct given that the Convention is part of European law, and is not a global human rights convention, such as the Universal Declaration of Human Rights (UDHR).[14] Mosley v United Kingdom will not have a direct impact on Australian law, although it may reignite the privacy debate and return attention to the Australian Law Reform Commission’s 2008 report on privacy.[15]  In Australia[16] and New Zealand,[17] the boundaries of privacy interests and the existence, or not, of an action for invasion of privacy is a matter of continuing debate, with privacy law at different stages of evolution in each jurisdiction.   The decision of the High Court of Australian in Australian Broadcasting Corporation v Lenah Game Meats[18] re-open the privacy debate; with decision of the Victorian Supreme Court in Giller v Procopets[19] and the Queensland District Court in Grosse v Purvis[20]   providing support for a privacy tort in the courts of first instance.

A further strand in this privacy debate is the prevalence of courts issuing injunctions in which even the existence of the grant of the injunction is prohibited, together with reporting of the subject matter that is private or confidential information. My earlier blog commented on the so-called super-injunctions.  Sometime later in 2011 a committee of judges headed by Lord Neuberger, the Master of the Rolls, is to publish the report of an inquiry into super-injunctions, and the U.K. Government is expected to consider the report in a Bill on defamation and libel law.  The report of the inquiry should also be of interest in Australia to the extent it provides guidance as to the exercise of common law judicial powers to grant suppression orders.

Around the time the decision in Mosley v United Kingdom was being delivered the other media story concerned how Twitter was being used to get around the super-injunctions, with the ‘viral effect’ of postings on social media websites having the potential to subvert any super-injunctions issued against the ‘traditional’ media.  However on investigation the BBC concluded that the information being disseminated was incorrect – so that the use of Twitter only served to confuse rather than inform.

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[1] 48009/08 [2011] ECHR 774 (10 May 2011) [132].

[2] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) (9 April 2008). The video was accessible for about 24 hours before being was removed; the on-line version of the article was visited approximately 435,000 times, whereas the edited footage itself was viewed about 1,424,959 times over the same period.

[3] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) (9 April 2008) [34].

[4] Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (24 July 2008).

[5] Eady J also held that exemplary damages were not available in a claim for infringement of privacy: a claim for compensatory damages could reflect an element of aggravation.

[6] Article 8. 2. of the Convention states: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[7] Article 10 of the Convention states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

[8] 48009/08 [2011] ECHR 774 (10 May 2011) [117].

[9] 48009/08 [2011] ECHR 774 (10 May 2011) [119].

[10] 48009/08 [2011] ECHR 774 (10 May 2011) [121].

[11] “This house believes English libel laws are fit for purpose” – a Queen Mary/City University Seminar – Judith Townend (6 May 2011) http://inforrm.wordpress.com/2011/05/06/news-%E2%80%9Cthis-house-believes-english-libel-laws-are-fit-for-purpose%E2%80%9D-%E2%80%93-a-queen-marycity-university-seminar-%E2%80%93-judith-townend/

[12]2nd Report of Session 2009-10, HC 362. [93] http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/36205.htm#a8

[13] 48009/08 [2011] ECHR 774 (10 May 2011) [124].

[14] Universal Declaration of Human Rights (UDHR) Article 12 “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence …”; Article 19 “Everyone has the right to the freedom of opinion and expression …”. The UDHR is a declaration adopted by the United Nations General Assembly (A/RES/217, December 10, 1948), http://www.un.org/Overview/rights.html

[15] Australian Law Reform Commission, ALRC Report 108, For Your Information: Australian Privacy Law and Practice, (May 2008) Volumes 1-3.

[16] Privacy interests have been considered in the context of access to pleadings by non-parties in Llewellyn v Nine Network Australia [2006] FCA 836; and freedom of the media in the context of injunctions to prevent publication of allegedly defamatory material in Heartcheck Australia v Channel 7 Sydney [2007] NSWSC 555.

[17] New Zealand has enacted the Bill of Rights Act 1990 (BORA), in which s. 14 provides that “[e]veryone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”.  However BORA does not create a guaranteed right of privacy.  Privacy interests are recognised in the context of the extended understanding of breach of confidence; with the NZ courts also recognising privacy values in s. 5 BORA. While Hosking v Pacific Magazines [2004] NZCA 24, rejected the privacy claims of the applicants, the court gave some support for the evolution of an action for breach of privacy.

[18] Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63; (2001) 208 CLR 199; (High Court of Australia).

[19] Alla Giller v Boris Procopets [2004] VSC 113 (Victorian Supreme Court).

[20] Alison Robyn Grosse v Robert James Purvis [2003] QDC 151; Aust Tort Report 81-706 (Queensland District Court).  

Who’s making what? The potential of do-it-your-self 3D printing technology

Have you ever wanted a rare Lego or Star Wars figure? Or a Royal Doulton and Lladró figurine? The ABC ‘Future Tense’ program recently featured 3D printing as the next disruptive technology; that will challenge IP owners control over the reproduction of 3D objects.

3D printers may not have the same instant and total disruptive impact on existing business models – such as experienced by the music and film industries with P2P technology.  However there are some niche products like Lego (of course a giant in its field of business) that should be wary of the potential for 3D printers have an impact where home users of 3D printers can ‘contour craft’ rare figurines.  Indeed the technology as wide applications such as creating any spare part for any product that can be made out of the materials used in 3D printers.

 

3D printers are not new technology, they have existed since the 1970’s as machines “that can turn a blue print into a physical object”.[1]   Rather than being a reductive technology, like a lathe cutting away at a block, a 3D printer builds the object up layer by layer.  3D printing was once titled “rapid prototyping”, with “additive manufacturing” now being used to describe what others call 3D printing.[2]  The 3D object emerges when layers of metallic powder or plastic, about tenth of a millimetre thick, are sprayed by a printing devices that then is melted with a laser or a resin is added to bind the powder.[3]

 

What has changed in recent years is that 3D printers have stopped being high priced equipment used for prototyping 3D objects, with prices ranging from $15,000 for a low-end model to $450,000 for a high-end 3D printer. Now those enthusiastic enough to want to build their own 3D printer can construct one from components costing from as little as $600 to $1,300.

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3D printing is now a low cost, do-it-your-self technology, with the plans and source code for programming a ‘RepRap’ or a ‘MakerBot’ 3D printer being available  under an open source licence,  with the 3D model file, the code needed to  program a 3D printer, being made available under Creative Commons licences at websites, such as at Thingiverse.

 

3D printing is becoming a disruptive technology as it has the potential to allow individuals and commercial enterprises to replicate 3D objects that may be subject to intellectual property rights that may exist in copyrighted CAD (Computer Assisted Design) plans or the intellectual property rights that exist in the 3D object that is a registered design or a copyrighted artistic work in a 3D object such as a sculpture or work of artistic craftsmanship.

 

In the near future, do-it-your-self 3D printing technology is likely to have low impact on existing business due to the technology not achieving the fidelity of replication that can be achieved with high-end 3D printers, however Bradshaw, Bowyer and Hauf comment that  “as its ease-of-use, fidelity and range of materials increases, so will its attractiveness and range of applications.”[4]

3D printing challenges the whole range of intellectual property rights with 3 objects potentially being a registered design or covered by copyright, patent protection or protected by trade marks.  With Creative Commons and open source licences for 3D printer plans and 3D model files needed to program the 3D printers there can be a new world of 3D objects being produced using this technology. It is when people are tempted to replicate Lego and Star Wars figures, spare parts and other 3D objects that are protected by intellectual property rights – then the disruptive nature of 3D printing technology will emerge.

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[1] Michael Weinberg, It Will Be Awesome If They Don’t Screw It Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology, November 2010 Public Knowledge (Washington D.C.) http://www.publicknowledge.org/it-will-be-awesome-if-they-dont-screw-it-up

[2] “The 3-D Printer”, ABC ‘Future Tense’ program with Antony Funnell, broadcast 28 April 2011, at 8.30 am http://www.abc.net.au/rn/futuretense/stories/2011/3194762.htm

[3] “The 3-D Printer”, ABC ‘Future Tense’ program.

[4] Simon Bradshaw, Adrian Bowyer and Patrick Hauf, The Intellectual Property Implications of Low-Cost 3D Printing, 7:1 (2010) SCRIPTed http://www.law.ed.ac.uk/ahrc/script-ed/vol7-1/bradshaw.asp