Questions about EFA
- I’m a student doing an assignment, can you help me/tell me…?
- I bought/tried to buy goods or services via a web site and now I have a problem/complaint about the seller. Can you help me?
- Can you give me legal advice about…?
- What is EFA’s copyright policy: do I need permission to copy or quote information on EFA’s web site?
- May I link to information on EFA’s site from my own site?
- Are donations to EFA tax deductible?
- I’d like to volunteer to help EFA, what can I do to help?
Consumer and Legal Issues
- What type of material is illegal to view, access, download, possess in Australia?
- What type of material is illegal to publish/host online in Australia?
- Do defamation laws apply to information published on the Internet?
- I’m concerned about inappropriate advertising on a website, what should I do?
- Someone is listening in or accessing my private communications or emails, what can I do?
- Someone has created a webpage which contains photos of me and untruthful statements about me, what can I do?
- Is the region coding of Blu-ray and DVDs legal in Australia?
- Is it legal to record television over the internet?
Questions about EFA
I’m a student doing an assignment, can you help me/tell me…?
EFA is a non-profit, primarily volunteer organisation funded by membership subscriptions and donations. Unfortunately, we rarely have sufficient human resources available to provide personalised responses to the many questions from the many students who email EFA. Many students ask for information that is readily available on EFA’s site (which includes a search engine). EFA does not respond to such questions, nor to requests that sound as though the person is in effect asking EFA to write their assignment, or sections of it, in order to save the person having to research the assignment topic for themself. If you have an inquiry that does not fall into the above categories, EFA may respond depending on time availability. You will be more likely to receive a response if you ask specific and clear questions and advise a date by which you need a response (and also if that date is at least a week into the future).
I bought/tried to buy goods or services via a web site and now I have a problem/complaint about the seller. Can you help me?
No. EFA does not provide a complaints handling or dispute resolution service. We are aware that the web site at http://www.consumersonline.gov.au/ provides a search facility which claims to enable consumers to find details of organisations that offer such services, and presents EFA’s name in response to some searches. However, as the page on that site about EFA states: “EFA does not provide complaints handling or dispute resolution services”. EFA contacted the providers of that site in October 2005 and asked them to make changes so that it does not provide EFA’s contact details in response to a search for complaints handling organisations. However, as at 21 December 2005, that had not been done.
Can you give me legal advice about…?
EFA is a non-profit, primarily volunteer organisation principally involved in advocacy and educational activities concerning online freedoms and rights. EFA’s work and activities are funded by membership subscriptions and donations. EFA is not a legal service or law firm and hence is not able to provide legal advice. However, EFA may provide information of an educational nature concerning laws affecting online users, publishers and content hosts and also may be able to assist in other ways relative to a particular case. Persons intending to contact EFA seeking general information on laws are requested to firstly refer to the following three questions which provide answers to the enquiries most frequently directed to EFA.
May I link to information on EFA’s site from my own site?
You do not need permission from EFA to link to any of EFA’s pages, provided that clicking on the link on your site does not result in the text/content on EFA’s page being framed/displayed on your site (e.g. under a banner heading) in a way that could give readers the impression the text/content is on your site rather than on EFA’s site. If you are intending to link in a manner that results in text/content on EFA’s page being framed/displayed under a banner or beside a side bar on your site, you should advise EFA of this intention and ask for permission to link which may or may not be granted depending on the purpose and circumstances.
Are donations to EFA tax deductible?
No. EFA is not able to obtain tax deductible gift recipient (“DGR”) status due to the provisions of Australian tax law which, among other things, does not permit organisations whose principal activities include political lobbying to be granted DGR status. To qualify as a DGR, an organisation must fall within one of the specific DGR categories set out in tax law. As it is generally known that one DGR category is “public benevolent institutions”, which includes some (not all) organisations with charitable purposes, some people assume that EFA would be able to obtain DGR status. However, that is not the case. In Australian tax law, the definition of “public benevolent institution” is narrow (as is the definition of “charitable purposes”). Briefly, “public benevolent institution” covers only non-profit institutions established to provide services directly to people needing relief from poverty, sickness, suffering, distress, misfortune, disability or helplessness. As stated on the ATO web site, it excludes “organisations for lobbying, advocacy, research and policy studies, and disseminating information” because such organisations lack the required direct benevolence, that is, although they may provide services of benefit to the general community they are not established to provide services to specific people in need.
I’d like to volunteer to help EFA, what can I do to help?
Please visit the volunteer section of the More Ways to Help EFA page for information about volunteering to help EFA.
Consumer and Legal Issues
What type of material is illegal to view, access, download, possess in Australia?
The answer to this type of question depends on which Australian State or Territory you live in and the current law in that jurisdiction. EFA does not necessarily have time to keep track of the law in the eight Australian State/Territories and, in any case, answering the question is not something that can be done quickly or easily. Information on how to find out about a specific State/Territory’s Internet censorship laws for yourself is available on the State/Territory laws section of the libertus.net web site.
What type of material is illegal to publish or host online in Australia?
Internet Service Providers and Internet Content Hosts: Commonwealth Internet censorship legislation (the Broadcasting Services Amendment (Online Services) Act 1999) applies to content hosted by Internet Service Providers and Internet Content Hosts. For information, see the Internet Censorship in Australia section of EFA’s site and the Australian Net Censorship Laws section of the libertus.net web site which includes answers to Frequently Asked Questions about the Commonwealth law. Content creators/providers and Internet users: Censorship legislation applicable to content creators/providers and Internet users exists in some States and Territories and some other States may have proposed laws pending from time to time. For information, see the Internet Censorship in Australia section of EFA’s site and the State/Territory laws section of the libertus.net site which includes information on how to find out about a specific State/Territory’s Internet censorship laws. Other laws: Various States/Territories and the Commonwealth have laws of general application that are or may be applicable to making available/publishing information online (that is, in addition to laws specifically directed to “Internet censorship”). These include, but are not necessarily limited to, laws concerning “indecent or obscene” articles/publications, Crimes Acts/Criminal Codes, defamation laws, Fair Trading/Trade Practices Acts, Privacy Acts. These laws are beyond the scope of this section and are briefly mentioned here to avoid potential perceptions that no laws other than censorship/classification laws apply to content on the Internet.
Do defamation laws apply to information published on the Internet?
Yes. See EFA’s page: Defamation Laws & the Internet.
I’m concerned about inappropriate advertising on a web site, what should I do?
It is not uncommon for inappropriate advertising to appear on web sites. The obvious example is advertising for pornography or adult products appearing on sites aimed at children, but there are plenty of other ways products or services can be mismatched with news stories or other content. This is most often not the direct fault either of the advertiser or of the site running the ads. With much, perhaps most, online advertising, advertisers and publishers work through intermediary networks which connect advertising campaigns with locations for advertisements. If a web site you use has ads you think are inappropriate, however, it may still be useful — depending on the situation — to inform both the advertiser and the site manager. They may be able to control the “settings” on their advertising campaigns or sales. In some cases you may be able to see which advertising network is involved and let them know directly about the problem. If the ad has a link “Ads by Google”, for example, that will take you to a page which has an option to “Send Google your thoughts on the site or the ads you just saw”. If the web site is Australian and the content is “prohibited” or “potentially prohibited”, you can complain to ACMA about it. There is also freely available software that allows you to block ads, either generally or from particular advertising networks. A popular choice is the AdBlock Plus add-on for Firefox.
Someone is listening in or accessing my private communications or emails, what can I do?
Depending on the circumstances, intercepting or accessing private communications without your knowledge or consent may involve a number of criminal offences. Commonwealth computer crime legislation in Part 10.7 of the Commonwealth Criminal Code prohibits unauthorised access to ‘restricted data’, which means data (including emails) which are protected by some computerised access scheme. The Telecommunications (Interception and Access) Act 1979 (Cth) prohibits intercepting communications, including emails, which are either passing over a network or stored on an ISPs server. Intercepting communications could also amount to stalking, which isa crime in all Australian States.There are also civil remedies which may be available. The most useful one is generally ‘Breach of Confidence’, which can act to prevent or punish the communication of private information obtained in circumstances where it would be unconscionable to disclose it – including eavesdropping and interception.If you suspect that someone has been intercepting or accessing your private information, you should contact a solicitor for further legal advice.
Someone has posted photos of me and untruthful statements about me, what can I do?
It is not easy to have a page removed from the web. One avenue isdefamation law, which applies where a person has made statements whichwould tend to lower your reputation. If someone has published statements which make others think less of you, you may be able toeither have those comments removed or to receive a monetary payment (the first option, an injunction, is usually more popular). Note, however, that there are several defences for defamation, includingtruth and fair comment. If the statements are either true or are phrased in the terms where it appears that the maker is giving an opinion rather than a statement of truth, then the maker is unlikely to be liable for defamation.
Australia has no general right of privacy or publicity, so it is very difficult to have pictures which others have taken removed from the web. Once again, if a picture casts you in a poor light and makes others think less of you (and is not truthful), then you may have a remedy in defamation. Otherwise, unless you’re a celebrity who trades off his or her reputation, Australian law generally does not protect your image.
An exception to this general rule is if the pictures were obtained in circumstances which would give rise to an obligation of confidence. This means, for example, if someone stole some secret photos or otherwise came across clearly confidential photos, then they may be prevented from disclosing them. The problem with an action for breach of confidence, however, is that if you do not catch the person in time, the photos may lose their confidential quality and it will then be difficult to have them removed.
If the photos were taken by you (or a third party), posting them on the internet may infringe the copyright in the photos. As a general rule, copyright vests in the photographer, and only the photographer has the right to reproduce or communicate the photo to the public. Without permission, putting a photo on a web page generally infringes both of these rights. The main defences to copyright infringement in Australia involve criticism and review, research and study, news reporting, and parody or satire. If none of these defences apply, it is likely that the copyright owner can obtain an order either for monetary damages or an injunction to have the material removed. If, however, the photographs were taken by the person who posted them, there will usually not be any infringement.
Finally, Australian states have quite broad stalking legislation which may be applicable, depending on the circumstances. If the web site in question is designed with the intention to cause physical or mental harm to a person, or to cause the victim to fear for his or her safety, the creator may be committing a crime (depending on the particular state – stalking provisions vary from state to state). If this is case, you should contact the police directly.
Is the region coding of Blu-ray and DVDs legal in Australia?
The 2005 High Court ruling in Stevens v Sony held that the region code in the PlayStation is not a ‘technological protection measure’, and that therefore a modchip for the PlayStation is not a ‘circumvention device’. This means that Sony were not entitled to sue makes and distributors of modchips. It did not, however, mean that region codes were illegal – Sony are still entitled to use region coding (subject to any applicable restrictions of anti-competitive conduct) in their machines.
The law has changed somewhat from 2001, when Stevens v Sony was first argued. As part of the Australia – US Free Trade Agreement, there is now an argument that even region coding may constitute a ‘technological protection measure’ – because it prevents the copying, in RAM, of a disc while it is being played, if the disc is not licensed. The law is still unclear on this point.
What this means is that makers of Blu-ray and DVD players are still using region coding, and they’re not actually prevented from doing that. However, if someone were to create, distribute, or use modchips for Blu-ray players, they might be able to rely on the precedent in Stevens v Sony and argue that their actions do not infringe Australia’s anti-circumvention laws.
We are concerned that there is still a great deal of uncertainty in this area. We have lodged a number of submissions arguing that Australia’s anti-circumvention laws often have the effect of protecting conduct which is designed to restrict the legitimate rights or users and restrict competition. We are watching very closely to see how the technology and the law develops. Some of the anti-circumvention provisions are subject to continuing review, and we will continue to participate in the review process. We welcome any comments from users who have been adversely affected by the region coding in these devices.
Is it legal to record television over the internet, using devices such as Slingbox?
Devices like Slingbox appear to work by copying and transmitting a television broadcast from one place to another, which would ordinarily infringe copyright, unless an exception exists. Australian exceptions to copyright infringement for time-shifting television are quite narrowly drawn – they generally permit only recording to a particular medium, and don’t allow people to make further copies or
communications of the recording. Without providing detailed legal advice, it would appear that this technology does not fit within Australia’s narrow exceptions, and would probably not be legal to use here. See the Australian Copyright Council’s fact sheet on time-shifting for more information.
