UK Advertising Standards Authority's online remit extended
Posted by Siobhan Doherty
From 1 March 2011, the remit of the UK's Advertising Standards Authority (ASA) has been extended to apply both to paid-for and free online marketing communications. The use of social media platforms such as Facebook and Twitter now falls within the scope of the ASA's authority.
The UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) sets out rules which seek to ensure that advertisements do not mislead, harm or offend.
Prior to 1 March 2011, the CAP Code extended only to internet advertising that had been paid for (eg banner ads, pop-ups and paid search results), and the ASA had no ability to investigate complaints made in relation to 'non-paid-for' digital communications (such as those made via social networking sites) or to impose sanctions in relation to any such communications that were not compliant with the CAP Code.
Extended digital remit
The CAP Code now applies to all online marketing communications, including marketing on a company's or sole trader's own UK based website and in other 'non-paid' space it controls (including its official Facebook and Twitter pages) where the communications are intended to sell something.
Further, if a company or sole trader 'adopts and incorporates' user generated content within its own marketing communications (eg 'retweeting' customers' comments), that communication will now fall within the ASA's remit.
The following types of information (among others), which may appear on a company's website, are specifically excluded from the scope of the CAP Code:
• statutory reports;
• press releases and other public relations material;
• editorial content;
• natural listings on a search engine or a price comparison site;
• customer charters and codes of practice;
• investor relations material; and
• 'heritage advertising', provided it is not part of the company's current promotional strategy and is placed in an appropriate context.
The CAP Code also does not to apply to marketing communications in 'foreign media'.
If a marketing communication appears in media based in a country that has a self-regulatory organisation (SRO) which is a member of the European Advertising Standards Alliance (EASA), the EASA will coordinate any cross-border complaints so that the SRO in the country of origin of the communication will have jurisdiction, but consumers need complain only to their local SRO.
The Advertising Standards Bureau (ASB) in Australia is an SRO and a member of the EASA. Therefore, any UK consumer complaints received by the ASA regarding marketing communications that originate from Australia will be referred to the ASB.
In the online context, however, the origin of a marketing communication may not be clear (eg a 'tweet' to the world at large by a global company). The ASA has indicated to us that whether or not it will refer a complaint to a foreign SRO or consider the complaint to fall within its own remit will depend upon the circumstances of the marketing communication that is the subject of the complaint, including whether the relevant company has operations in the UK and whether the communication was directed, in whole or in part, to customers in the UK.
The lesson for Australian businesses?
Australian businesses, particularly those with operations or customers in the UK, should think carefully about their use of social media platforms and their own websites as marketing tools because these online communications may now be subject to the CAP Code.
Partner: Michael Whalley
18 March 2011
Posted by Kate Ballisrejected a challenge by Derryn Hinch as to the validity of section 42 of the Victorian Serious Sex Offenders Monitoring Act 2005.* The section permitted suppression orders to be made prohibiting publication of any information that might enable the identification of certain persons, convicted of sex offences, who were the subject of post-custodial extended supervision orders under the Act.
In September 2008, Derryn Hinch was charged in the Magistrates’ Court of Victoria with five counts of contravening suppression orders made under section 42. Mr Hinch’s offences were committed when he named two child sex offenders on his website and at a public victims of crime rally in Melbourne.
Hinch raised a constitutional challenge to the validity of section 42 based upon the propositions that the section:
- impermissibly confers on the courts a function which distorts their institutional integrity contrary to the implied requirements of Chapter III of the Constitution,
- is contrary to an implication in Chapter III of the Constitution that all State and federal courts must be open to the public and carry out their activities in the public, and
- infringes the implied freedom of political communication by inhibiting the ability to criticise legislation and its application in the courts and to seek legislative and constitutional changes and changes in court practice by public assembly and protest and the dissemination of factual data concerning court proceedings.
Open justice and suppression orders
The Court held that the requirement that justice must be administered publicly is not an absolute rule, and that the power under the Serious Sex Offenders Act to make suppression orders was not contrary to any implication arising from the Constitution.
Chief Justice French observed that it is essential that courts sit in public, as this subjects court proceedings to public and professional scrutiny, and helps maintain public confidence in the courts.
His Honour considered that there is, nevertheless, an ‘inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court’. The exercise of this power must, however, be 'justified by reference to the necessity of such orders in the interests of the administration of justice’.
The Chief Justice found that such an order may be made to bind various parties, including media representatives and any person to whom the order is specifically directed. He did not find it necessary to reach a concluded view on the full extent of the power in relation the general public.
Beyond the common law, His Honour held that it is within the power of parliaments, by statute, to authorise courts to restrict publication of parts of a proceeding or the evidence at a proceeding. If the statute leaves it to the court’s discretion to determine whether or not to make an order restricting the publication of evidence or the names of parties or witnesses, those provisions of the statute most likely do not deprive the court of an essential characteristic of their function.
In a separate judgment, Justices Gummow, Hayne, Heydon, Crennan, Kiefel and Bell applied Gibbs J’s principles laid down in Russell v Russell. In that case, Gibbs J stated that there are established exceptions to the general rule that judicial proceedings should be conducted in public, and the category of these exceptions is not closed to Parliament. He said that the issues of secrecy, confidentiality, privacy or delicacy may in some cases be thought to make it preferable for the matter to be held in a closed court (although Parliament cannot require a closed court in all cases of a particular type).
The extent of the freedom of political communication
The Court held that the power under the Serious Sex Offenders Monitoring Act to order suppression orders did burden the freedom of communication about government or political matters, but the law operated in support of the protection of the community by the effective monitoring of released sex offenders.
The test of the implied freedom of political communication involves asking the question: ‘Does the law effectively burden freedom of communication about government or political matters in its terms, operations or effect?’
Chief Justice French considered that the range of matters that may be characterised as 'governmental and political matters' for the purpose of the implied freedom is very broad, and are not limited to matters concerning the current functioning of government. He held that they arguably include social and economic features of Australian society as they are matters potentially within the purview of government.
His Honour found that there may be occasions on which the use of a sex offender’s identity is directly relevant to a point to be made about public administration in relation to serious sex offenders generally, and on that basis, it may be accepted that section 42 has the capacity to burden political communication. However, the object of section 42 is the protection of the community and the rehabilitation of serious sex offenders who are at risk of re-offending after they have completed their sentences. The making of orders under section 42 require the court to consider the public interest in light of the purposes of the Act; on this basis, His Honour concluded that section 42 is reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
Justices Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ found that section 42 does not display a 'direct' (as opposed to 'incidental') burden on the freedom of political communication. Their Honours held that situations where the law in question involved no significant burden on the freedom of political communication were cases such as where the law prohibits or regulates a particular type of communication or discussion which is neither inherently political in its nature nor a necessary ingredient of political communication or discussion. Section 42 fell within this 'incidental' category, and therefore was not invalid.
Defences Hinch could have relied on
The Court held that the phrase in section 42(3) 'publish or cause to be published ... in contravention of an order' indicates a requirement of knowledge of that order in contravention of which the publication is made. The Court found that the word 'contravention' is used in the sense of disputation or denial rather than mere failure to comply with an unknown requirement.
Hinch could have therefore argued that he did not know about the suppression order and that he merely failed to comply with an unknown requirement - not that he declined to comply with it or disputed it.
A defence of honest and reasonable mistake of fact may therefore be permitted under section 42(3) of the Act.
Did the type of suppression order affect the decision?
Hinch was charged with contravention of suppression orders made under section 42 after he named two child sex offenders on his website and at a public rally in
. The principles of open justice and freedom of communication that the Court used to determine that section 42 could apply to other types of suppression orders, however, the decision would be dependant on the nature of the suppression order in question. Melbourne
The Court found that the requirement that justice must be administered publicly is not an absolute rule, and in particular circumstances, a suppression order may be made to bind various parties, including media representatives and any person to whom the order is specifically directed. The Court applied a two limb test to determine whether section 42 was constitutional. This test can be applied to many different laws.
The Court found that the nature of the case required the prohibition of the names of the persons convicted of the sex offences being disclosed. It observed that section 42 could burden freedom of communication about government and political matters, by preventing or restricting public discussion of the supervision or treatment by government agencies or a particular offender whose identity is relevant to discussion.
However, the objects of section 42 were the protection of the community and the rehabilitation of serious sex offenders who are at risk of re-offending after they have completed their sentences - and having regard to the safeguards and limits on the application of section 42, it was a reasonable means of achieving those objects. The section was therefore not unconstitutional.
Partner: Peter Bartlett
* The Serious Sex Offenders Monitoring Act 2005 (Vic) was repealed with effect from 1 January 2010 and has been replaced by the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).
11 March 2011
Posted by Scott Kent-Collins
Telstra recently announced plans to upgrade their wireless network to 4G using a technology called LTE (Long Term Evolution). This post will not to descend into the "wireless v fibre" debate, but rather will introduce you to LTE and some of its benefits. In fact, it's more instructive to consider LTE in light of existing wireless services (such as Telstra's Next G network) than to compare it with fibre.
What is LTE?
LTE is a technology developed by the 3rd Generation Partnership Project (3GPP), a consortium of telecommunication standards bodies. 3GPP's goals for LTE were rather simple:
- better speeds via efficient spectrum utilisation
- reduced latency
- an "all IP" network
- integration with existing technologies
- lower costs and improved services
So how fast is it?
Telstra's Next G network has a "peak" download speed of about 21Mbps (except for a few areas which have been boosted up to 42Mbps). That "peak" speed is shared amongst wireless users, so end users like you and me see "real" speeds of around 1Mbps to 3Mbps. LTE networks are scaleable and so are their "peak" download speeds (anywhere from 80Mbps to 320Mbps), but the proposed LTE network will have a "peak" download speed of about 100Mbps. If that were divided amongst the users they would each see "real" speeds of around 5Mbps to 15Mbps. On this basis LTE should be about 5 times faster than Next G.   
What about latency?
Latency is how long it takes something to respond. It's like seeing the delay during a satellite interview on TV. The latency on the Next G network is often around 250ms - 400ms, but on an LTE network that would likely drop to between 5ms to 80ms and average around 20ms to 30ms. That makes LTE latency similar to fixed line broadband (copper and fibre) - which should allow the viewing of streaming video and the use of real time applications with no appreciable stuttering or delay.    
What is an "all IP" network?
Internet protocol (or "IP") was originally designed by the US Department of Defence to create secure and robust network communications. By utilising the IP standard, LTE adopts a direct and robust method for connecting to the internet. This is by contrast with existing 3G wireless networks, which use different standards that require translation into IP before they are able to connect to the internet.  
Does LTE integrate with existing technologies?
LTE is designed to be backwardly compatible with GSM (2G) and WCDMA/HSPA (3G) wireless networks. This means that companies should be able to install or upgrade to LTE with little disruption to existing 2G/3G services and should also be able to support future LTE-based solutions.  
What are some of the advantages of LTE?
LTE is designed to carry more data, be faster, and require less power to operate (resulting in lower running costs). LTE networks are also smarter. They can determine if a mobile tower is overloaded or inoperative and re-route traffic to nearby towers or other IP based networks (like Wi-Fi). Most importantly, though, they can optimise data traffic by preventing unused data from being sent or received, which in turn increases data capacity. 
What will LTE mean for me?
As the LTE network settles, expect to see speeds to be about 5 times what you currently receive on 3G, as well as more reliable and responsive connections.
Will my current 2G/3G phone still work?
LTE is designed to be backwardly compatible, so all mobile devices that currently use 2G/3G should work on LTE. 
Who currently uses LTE?
The main networks are TeliaSonera (Sweden and Norway) who were the first to the market in late 2009, and Verizon in the USA who installed the largest LTE network in late 2010. Both are using special LTE-designed USB modems. Mobile phone makers are now racing to produce the first LTE devices.  
When can I buy an LTE mobile device?
Verizon are poised to release the first LTE smartphone designed by HTC (known as the Thunderbolt). Rumours are also circulating that Apple's next iPhone will be released mid-year and will cater for LTE. By the time Telstra's LTE network is up and running (planned for late 2011) there should be a number of LTE devices to choose from.   
You've heard about LTE ... now for LTE-Advanced!
LTE is a foundation step for LTE-A (Advanced) - the "true" 4G technology (4G in marketing speak isn't the same as 4G as defined by the International Telecommunications Union). LTE-Advanced requires a more dedicated wireless spectrum, so it will most likely only eventuate once the analog TV spectrum becomes available in 2014. LTE-Advanced can increase "peak" download speeds to more than 1Gbps (yes, that's 1 gigabyte per second) - which means that it will be about 10 times faster than LTE, with "real" end user speeds of around 50Mbps to 150Mbps.  
... it's an exciting time for broadband. Faster and more stable internet via fixed-line and wireless connections are coming, giving us significantly improved access to the vast, interconnected, ever increasing store of human knowledge we call the internet.
Partner: Paul Kallenbach
01 March 2011
There's blogging. And then there's blogging about your work. Both are fine, without more.
Then there's blogging in a way which is incompatible with your work.
Or, as recently occurred in
, there's blogging about your work in a way that's entirely incompatible with your work. Doylestown, Pennsylvania
An English Teacher in the
, Natalie Munroe, was probably not wise to blog about her students on her personal blog page for over a year. Certainly, she was not wise to refer to them, amongst other things, as 'frightfully dim', 'rat-like' and 'smarter than she actually is'. Central Bucks School District
Unsurprisingly, after parent complaints, the teacher in question was suspended, and her blog shut down.
Partner: Michael Tehan