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Australian Information Law Essay (Critical Writing)


Introduction

More frequently, informants, journalists, bloggers, and common citizens consider information sharing and dissemination as a simple task, where telecommunication tools can spread information with little restrictions. However, information sharing and dissemination can be a complex and sensitive issue when it comes to its association with the laws governing the distribution of data in public.1 In Australia, the national legal systems have placed several regulations and policies that often determine the public sharing of personal, business, and government information among the people.2

The Australian information laws govern communication, reception, and distribution of information through the print media and digital media. The Australian legal system has reinforced information sharing laws, intellectual property policies, consumer laws, defamation laws, online contract policies, and trademark regulations to curb information sharing disagreements.3 To cover the above Australian laws, this paper discusses several information law issues in the case of Alvin Glam and the famous pop singer Lady Kabuki.

Brief Overview of the Case

Alvin Glam is among the trusted confidants of a famous pop musician known as Lady Kabuki. On a verbal promise, Alvin holds confidential information concerning the mentally incapacitated twin sister of Lady Kabuki. Alvin operates a website christened as LadyK.com.au, where he shares photographs and information about Lady Kabuki. In the year 2010, Alvin managed to win an e-book publishing contract agreement with a local electric publisher who commissioned Alvin to write a life story of Lady Kabuki in a biography dubbed Angel Voice.

In the biography e-book, Alvin covers several life stories of the musician, including her musical journey from the local town Canberra to the international prominence. Alvin manages to obtain information about Lady Kabuki from the public internet, includes verses of her famous songs, details of her affair with her disabled twin sister, and photographs initially published on his website. Lady Kabuki wants to take legal action against Alvin concerning the book contents.

Legal Advice to Alvin Concerning the E-Book

Alvin used four information contents that raised questions in his relationship with the musician. The four elements that Alvin used in the printing of his e-book include information pertaining to the verses of the famous songs of Lady Kabuki, the name of the most famous Album of Lady Kabuki, information regarding exclusive interviews conducted with the musician, photographs of Lady Kabuki captured by Patrick De Salvatore, and the story of the incapacitated twin sister.

The authenticity of the e-book is subject to several policies and laws enshrined in the Australian constitution, concerning the sharing of confidential information of individuals. Before publishing the book, Alvin must understand the several acts, policies, and regulations governing the dissemination, reception, and distribution of confidential information of friends, businesses, contracts, and government.4 To avoid lawsuits against his intended e-book publication, Alvin must consider the following regulations that govern information law in the Australian national constitution.

The first Act that Alvin must consider is the Australian Privacy Act 1988.5 The Privacy Act 1998 outlines the Australian privacy principles that informants must consider while handling confidential information of their friends.6 To avoid lawsuits pertaining to the interference of personal privacy in information handling, the Privacy Act 1998 provides the Australian Privacy Principles, which discuss information privacy.7

While documenting the component story of the incapacitated sister, Alvin should consider reviewing the stipulations of the Australian privacy principles articulated in section 14 (16) of the Privacy Act 1998, which regulates interference with household, personal or family affairs.8 The permitted general situation to access and use personal information can only occur on certain legal conditions. One can only access and use personal information of individuals, when there is a suspicion about an unlawful activity when the information is useful to avert a health complication, a serious life threat, or to resolve a public safety matter.9

Additionally, a person will access and use personal information of somebody, when there is need to be suspicious about serious misconduct, to locate a person reported to be missing, to justify an equitable claim or legal claim, to resolve a serious dispute, and to engage in a consular or a diplomatic function.10 Moreover, one can only access personal information of individuals, when engaged in the process of peace enforcement, humanitarian assistance or civil aid, medical assistance, or emergency assistance.11

All the above Australian Privacy Principles govern the accession, the procession, the disclosure, and the dissemination of the personal private data of individuals regardless of whether the informant and the owner are friends, relatives, or workmates, or in a social relationship of any nature.12 Alvin should understand that disclosing of the personal information of Lady Kabuki concerning her relationship with the incapacitated sister, and her school background is also unlawful as per the Defamation Act 2005 unless there was a contract to justify the actions.13

Alvin intends to incorporate private photographs of Lady Kabuki that Patrick De Salvatore captured. Alvin also wants to disclose and use verses of the most popular songs of Lady Kabuki that would appear in the first chapter of the e-book. Without proper legal consultations on the desired content, Alvin will breach the regulations governing the intellectual property rights of individuals and businesses.

Intellectual property rights are essential legal components of the Australian law that enable individuals, corporate organisations, and business partners to protect their unique ideas. Intellectual Property covers protection against theft of an individual’s business ideas, business logos, trade components, and product or service ideas. The legal Acts that Alvin should consider in his e-book contents and publication include the Patent Act 1990, the Patents Regulation 1991, the Design Act 2003, and the Trade Marks Act 1992. The acts reflect the legal stipulations acknowledged in the Australian constitution.

Alvin must understand the stipulations of the Patent Act 1990. The Act requires that a patent remains the exclusive property of the owner unless the patentee authorises another person to exploit a business invention, use a business logo, or use the business ideas.14 The patent authority from the patentee is valid only under three legally acceptable circumstances. A patentee only assigns exclusive property rights to another person, through a validly written agreement.15

Patent grant occurs to a legal representative of the inventor, when the inventor dies, or when the legal representative personally engaged in the development of the invention title.16 Alvin did not possess any legally signed agreement, or evidence to show his assistance in the development of the album name or the song contents. There was no co-ownership agreement or co-ownership direction.17 Reproduction and dissemination of the album name and the song contents would breach the stipulations of the Patent Act 1990.

Alvin should consider the legal contents of the Trade Mark Act 1995, the Trade Marks Regulations 1995, and the Design Act 2003. The revised Trade Mark Act 1995 defines trademark as a registered symbol of a business that represents a business idea or an invention of somebody.18 Angel Voice was a trade symbol for the album of the songs of Lady Kabuki and Alvin has no express jurisdiction over its reproduction or imitation. Section 146 of the Trade Mark Act 1995, describes trademarks offences that include the fraudulent use of someone’s trademark.19 Section 146 (i) and (ii) state that it is illegal to use a trademark of someone deceptively without a written consent from the owner, or from the registrar, or without a court order.20 Regulation 2.0 of the Registered Trademark Attorneys considers an issue to be a serious offence, when a person fraudulently obtains a property or information contrary to the Trade Marks Regulations 1995.21

The legitimacy of Kabuki’s Legal Actions

The situation is legally complex in the natural law sense as several issues mar the legal credence of the issues concerning the book contents. The lawsuit of Kabuki against Alvin may be authentic or illegitimate depending on certain circumstances. A complex issue in the Australian legal frameworks is the manner in which oral agreements remain perceived as contracts with limited substantiation.22 Lady Kabuki has limited evidence to file a lawsuit against Alvin considering the fact that most of her agreements with Alvin were in the form of verbal contracts.

Similar agreement circumstances posed legal dilemmas in the case of Pavey & Matthews Pty Ltd v Paul.23 Pavey, as a licensed contractor, reached an oral building contract with Paul, who paid a down payment and refuted to pay the remaining contract amount. Paul claimed the contract was not enforceable and cited section 45 of the Builders Licensing Act that requires building contracts to be enforceable, written, and signed by both parties.24

Lady Kabuki engaged in a verbal agreement with Alvin concerning the privacy of the incapacitated twin sister. Nonetheless, the Australian common law recognises oral contracts that are of parole nature, which means verbal contract that fit in the principles of the parole evidence. Parole evidence requires extrinsic evidence or collateral contract, which include previous negotiations that may connect with the debated case to provide legal justification.25

Lady Kabuki may not have any parole evidence concerning the website agreement, where her photos and private information reached the public through Alvin as her confidant. Similar concerns appeared in the case of Saleh v Romanous [2010] NSWCA 373, where two brothers failed to agree after the verbal contract showed no legal affirmation to confirm the case presented to the court.26 A genuine contract includes concluded agreements, formal requirements, legally binding intentions, clearly stated contract purposes, and an evidence of a genuine consent.

Lady Kabuki may have genuine intention to file a lawsuit against Alvin on the basis of the incidence of using her album title, song verses, and the photographs in the e-book. The authenticity of the lawsuit of Lady Kabuki lies on the infringement of the intellectual property rights pertaining to the album title, the photographs, and the verses of the popular songs that Alvin incorporated in the book. Being a valuable business asset for the produced music, the title of the Album carries an indispensable legal condition that Alvin may have contravened.

The Optical 88 Ltd v Optical 88 Pty Ltd [2010] case is substantial in the case of Lady Kabuki and Alvin. Optical 88 Ltd as the applicant sued Optical 88 Pty Ltd for deceptively using its name to run a similar business.27 The court agreed with the sentiments of the applicant and prosecuted the defendant for infringing a trademark symbol and name. Same issues applied in the case of Symbion Pharmacy Services P/L v Idameneo.28

The Australian law forbids the disclosure of private information of someone without a proper enforceable agreement.29 By reusing the photographs commissioned only for the website purposes, Lady Kabuki could sue Alvin for breaching the principles of the Copyright Act 1968 of Australia.30 Section 132AC, subsection B of the Copyright Act 1968 claims that persons would commit an indictable felony, when they engage in the infringement of copyright in a different work agreement, when the infringement seem to have a considerable prejudicial influence on the owner, or when the infringement happens on a commercial scale.31

The Electric Publishers and Alvin may also face infringement claims when the jury considers the Design Act 2003. This Act prohibits the reproduction of a musical work, photograph, literary document, and an artistic work of someone else without a legal permission.32 Lady Kabuki can also sue Alvin for defamation concerning the revealed privacy of the incapacitated twin sister. The offence in the Defamation Act 2005 is punishable without any significant proof of a special damaged reputation.33

Possible Remedies for a successful litigant

For the lawsuit to be successful against Alvin, Lady Kabuki must consider reviewing several sections of the slaw that govern information privacy, intellectual property rights, trademark regulations, defamation principles and the copyright policies.34 Successful litigation against Alvin would happen when Lady Kabuki provides parole evidence to reinforce her case concerning the breached verbal agreement with Alvin about the incapacitated twin sister.

Since there was no written agreement to endorse the promise that Alvin made concerning the disclosure of the information of the physically disabled twin sister, Lady Kabuki should consider presenting a legitimate witness to the court.35 Lady Kabuki will be a successful complainant, only if she presents the agreed obligations concerning the content of the website, the terms of information spread in the website, and the terms covering the type of information that Alvin could only display.36 The musician should provide third party terms governing her privacy, to file a successful lawsuit against Alvin.

Being a litigant in person or simply appearing in court personally is challenging for many complainants.37 The musician may have a limited knowledge about the evidential requirements or may be incapable of providing legally relevant facts that the court may need to prosecute Alvin. To be a successful litigant against Alvin, the musician should consider hiring a professional law advisor such as a lawyer, a legal counsellor. All business names come from almost similar alphabets, and for the musician to be successful in the lawsuit, she must consider providing all the evidentiary support from the marketed song album, a digital camera to reveal the primary capture of the photos, and the published verses of the songs. Court appearance is another key issue that would make the musician a successful litigant against Alvin. Cases of unrepresented litigants are challenging for the courts, and the juries often dismiss them for lack of credibility.

Conclusion

Receiving, reproducing, reusing, and redistributing personal information about someone is legally unacceptable in the Australian constitution. By reproducing the personal information of Lady Kabuki in a third-party deal with a publishing company, Alvin breached several regulations stipulated in the Australian legal Acts. Alvin contravened the Privacy Act 1998, the Patent Act 1990, the Patents Regulation 1991, the Design Act 2003, the Trade Marks Act 1992, Copyright Act 1968, and the Defamation Act 2005. All these Acts forbid the redistribution of private information of another person without following a legally acceptable framework. Lady Kabuki can be a successful litigant, when she produces written agreements, witnesses, lawyers, and other tangible evidence about her engagement with Alvin in any form of contract.

Bibliography

Case Laws

  • Burge v Swarbrick [2007] HCA 17.
  • Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70.
  • Optical 88 Ltd v Optical 88 Pty Ltd [2010] FCA 1380 [2011] FCAFC 130.
  • Pavey & Matthews Pty Ltd v Paul [1987] 162 CLR 221.
  • Saleh v Romanous [2010] NSWCA 373.
  • Symbion Pharmacy Services P/L v Idameneo [No 789] Ltd [2011] FCA 389.
  • The Grain Pool of WA v The Commonwealth [2000] HCA 14.

Legislation

  • Copyright Act 1968 (Cth).
  • Copyright Amendment Act 2006 (Cth).
  • Defamation Act 2005 (Cth).
  • Design Act 2003 (Cth).
  • Patents Act 1990 (Cth).
  • Privacy Act 1988 (Cth).
  • Trade Marks Act 1995 (Cth).
  • Trade Marks Regulations 1995 (Cth).

Footnotes

  1. Copyright Act 1968 (Cth).
  2. Copyright Act 1968 (Cth).
  3. Copyright Act 1968 (Cth).
  4. Copyright Amendment Act 2006 (Cth).
  5. Privacy Act 1988 (Cth).
  6. Privacy Act 1988 (Cth).
  7. Privacy Act 1988 (Cth).
  8. Privacy Act 1988 (Cth).
  9. Privacy Act 1988 (Cth).
  10. Privacy Act 1988 (Cth).
  11. Privacy Act 1988 (Cth).
  12. Privacy Act 1988 (Cth).
  13. Defamation Act 2005 (Cth).
  14. Patents Act 1990 (Cth).
  15. Patents Act 1990 (Cth).
  16. Patents Act 1990 (Cth).
  17. Patents Act 1990 (Cth).
  18. Trade Marks Act 1995 (Cth).
  19. Trade Marks Act 1995 (Cth).
  20. Trade Marks Act 1995 (Cth).
  21. Trade Marks Regulations 1995 (Cth).
  22. Pavey & Matthews Pty Ltd v Paul [1987] 162 CLR 221.
  23. Pavey & Matthews Pty Ltd v Paul [1987] 162 CLR 221.
  24. Pavey & Matthews Pty Ltd v Paul [1987] 162 CLR 221.
  25. Copyright Amendment Act 2006 (Cth).
  26. Saleh v Romanous [2010] NSWCA 373.
  27. Optical 88 Ltd v Optical 88 Pty Ltd [2010] FCA 1380 [2011] FCAFC 130.
  28. Symbion Pharmacy Services P/L v Idameneo [No 789] Ltd [2011] FCA 389
  29. Copyright Act 1968 (Cth).
  30. Copyright Act 1968 (Cth).
  31. Copyright Act 1968 (Cth).
  32. Design Act 2003 (Cth).
  33. Defamation Act 2005 (Cth).
  34. Burge v Swarbrick [2007] HCA 17.
  35. The Grain Pool of WA v The Commonwealth [2000] HCA 14.
  36. Defamation Act 2005 (Cth).
  37. Saleh v Romanous [2010] NSWCA 373.
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IvyPanda. (2020, July 7). Australian Information Law. Retrieved from https://ivypanda.com/essays/australian-information-law/

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"Australian Information Law." IvyPanda, 7 July 2020, ivypanda.com/essays/australian-information-law/.

1. IvyPanda. "Australian Information Law." July 7, 2020. https://ivypanda.com/essays/australian-information-law/.


Bibliography


IvyPanda. "Australian Information Law." July 7, 2020. https://ivypanda.com/essays/australian-information-law/.

References

IvyPanda. 2020. "Australian Information Law." July 7, 2020. https://ivypanda.com/essays/australian-information-law/.

References

IvyPanda. (2020) 'Australian Information Law'. 7 July.

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