network), without consent and therefore
in breach of Australian copyright laws.
A single judge of the Federal Court
of Australia found that section 280 of the
TIAA authorized an SP to disclose the
identifying information by order of the
court. However, the court was reluctant
to permit the unconditional release of
the identifying information and stayed
the proceedings until Dallas Buyers
Club LLC could satisfy the court that the
contents of letters addressed to the IP
address holders was appropriate.
In a later hearing, Dallas Buyers
Club LLC subsequently failed to satisfy
the court that the demands in their draft
letter of demand were appropriate
not be lifted until Dallas Buyers Club
LLC provided an undertaking that the
identifying information would not be
used to demand payment of the cost of
a licence fee and punitive damages, as
set out in the draft letter, and provided a
bond of $600,000.
Although that litigation appears to
have been abandoned by Dallas Buyers
from engaging in speculative invoicing),
it shows that Australian courts
appreciate the ramifications of allowing
unrestricted access to vast quantities of
otherwise sensitive data.
Retained Data
SPs can be notoriously difficult. Early
this year, the Full Federal Court in the
case of Privacy Commissioner v Telstra
dismissed an appeal against a decision
that a journalist was not entitled to
obtain access to all metadata retained
by an SP from his mobile phone usage.
The court considered that the SP had no
obligations to provide such information
as it did not fall within the meaning of
the term "personal information" for the
purpose of the Privacy Act 1988 (Cth) at
the time.
While this case has a narrow appli-
cation to the newly amended TIAA, it
highlights the difficulty individuals face
when seeking to obtain an understanding
of and access to, data retained by SPs for
the purpose of litigation.
to retained data in future civil
litigation may allow aggressive
litigators of copyright infringement
to commence "fishing expeditions."
Other consequences include otherwise
confidential communications, such as
lawyer/client and journalist/source, being
compromised.
Given the significance of the proposal
to water down the prohibition of access
to retained data in civil litigation, a
longer period of consultation could be
beneficial, as the impact of widening
application of the TIAA as proposed will
likely only become apparent when the
regime is formally reviewed in 2019.
Telecommunications-Interception-and-Access-Act-
1979-Annual-Report-14-15.PDF
retained-data-in-civil-proceedings.pdf
of a network.