Australians are early adopters of technology and the development and use of the internet is widespread. This usage is steadily increasing. The proportion of internet commerce transactions is expected to continue to increase rapidly over the next few years, especially as broadband speeds and uptake increase. Governments at all levels have recognised Australia's move towards an informationbased economy and strongly support the development and use of information and communication technologies.
Completing transactions online and developing an online business presence raises legal issues including protection of intellectual property rights, trade practices issues, censorship regulations, privacy and spam obligations and contractual issues.
LEGISLATION
Electronic transactions
The Electronic Transactions Act 1999 (Cth) (the Electronic Transactions Act) provides for electronic signature recognition and confirms the validity of electronic communications in commercial and legal documents. Reflecting the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce, the Electronic Transactions Act addresses the changed legal and business environment brought about by e-commerce, promoting and encouraging e-commerce due to the recognition of electronic signatures.
The Electronic Transactions Act primarily relates to dealings between a person and Federal Government agencies. State and territory legislation that substantially mirrors the federal legislation addresses concerns about electronic communications under state laws, both in the context of data transmitted and information provided to government authorities. The relevant state and territory legislation should be consulted in this situation when operating in a particular jurisdiction. An amendment to the Electronic Transactions Act was passed on 25 May 2011 in order to align with the UN Convention on the Use of Electronic Communications in International Contracts, with a view to acceding to the Convention once all Australian jurisdictions enact model amendment provisions.
Spam
The Spam Act 2003 (Cth) regulates commercial electronic messages, including emails. It prohibits the sending of commercial electronic messages, except with consent and where the messages contain an unsubscribe facility and contain information about the individual or organisation sending the message.
Separate legislation (the Do Not Call Register Act 2006 (Cth)) regulates telemarketing and commercial communications to fax numbers.
Broadcasting
Internet content that is hosted or provided from Australia is regulated by Schedule 7 of the Broadcasting Services Act 1992 (Cth). The legislation provides that content that is prohibited under the Australian classification regime, or that is not classified but would be classed as prohibited if it was classified, must not be hosted or provided from Australia. The Australian Communications and Media Authority has power to require that prohibited content be taken down. Australian legislation provides for Internet Service Provider (ISP) liability safe harbours, provided that ISPs comply with the safe harbour regime.
Please see the Business Practices chapter for more on privacy law matters.
DOMAIN NAMES
.au domain names
Businesses operating in Australia often have an online presence. In addition to generic domain names (such as .com, .net and .org), many Australian businesses choose to operate websites with domain names ending with the country code .au. A registration system for domain names exists, separate to those for company names, business names and trade marks. There are almost 2.3 million .au domains registered.
Registration costs vary depending on the type of domain chosen (eg .com.au or .net.au) and the term of the registration. Domain names are licensed to business operators, not sold. Once a licence has been granted, an exclusive right to use that domain name is given for the period of the licence, which is usually renewable.
auDA
auDA is an independent non-profit Australian company responsible for formulating and administering policy relating to the .au name space. Endorsed by the Federal Government, auDA is recognised by the Internet Corporation for Assigned Names and Numbers (ICANN) and has authorised 28 organisations to provide services for new domain name registration, domain name renewals and domain name record changes.
Domain names are licensed on a "firstcome, first-served" basis but must meet Australian eligibility requirements. Registration of a trade mark or a business name does not, in itself, secure the right to the domain name. Several people may each have legitimate rights to the same domain name, or a person may register a domain name and use it in a manner that infringes another person's intellectual property rights.
There are several avenues available to resolve disputes about the registration and use of .au domain names, including recourse to the courts or auDA's Dispute Resolution Procedure (auDRP). auDRP is a modified form of ICANN's Universal Dispute Resolution Procedure (UDRP). Like UDRP, auDRP applies to domain names registered in bad faith. All registrants of .au domain names must consent to the auDRP as a condition of the licence to use the domain name. auDRP has contractual, not legislative effect. auDRP's and UDRP's differences reflect the different prerequisites for registration that apply at the .au domain name level (in particular, the need to have a connection to Australia in order to register a .au domain name).
SOCIAL MEDIA
The number of social media users is increasing and many businesses now have accounts with social media outlets. DLA Piper's research study Social Media - New Laws for New Attitudes reports that almost 70% of people used social media in 2011. However, only 18% of social media users claim to have read the terms and conditions for posting comments on social media websites.
Social media users are subject to privacy, defamation, competition, consumer protection and intellectual property laws. The courts treat advertisements on social media websites like other online advertising when considering claims of misleading and deceptive conduct.
Businesses that choose to establish and operate accounts on social media outlets need to ensure that they are aware of the terms and conditions of use for the sites and take steps to ensure that their use of social media (like their other operations) complies with privacy, defamation, competition, consumer protection, employment and intellectual property laws. This may include training staff on appropriate use and checking the terms of any licence to use materials posted on social media websites, and ensuring that advertisements on social media outlets are reviewed for legal compliance prior to posting.
Businesses with a social media presence also need to consider the potential impacts of social media use on their branding and reputation, such as the level of control over posts (including redistribution of posts), third-party comments and any potential impacts on confidentiality.
If businesses permit or expect their employees to establish and maintain social media accounts as part of or incidental to their employment, it is advisable to implement and enforce clear policies about whether the business or the individual owns and controls the account and its "followers" or "members". In addition to rules about who owns the account and followers, social media policies should also include details about what forms of social media use are permissible, whether (and how) employees can refer to themselves as employees of the business, and what content can be posted.
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This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.
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