iiNet says it's saved by false Telco Act belief
On day four of the Australian Federation Against Copyright Theft (AFACT) appeal against the iiNet copyright trial verdict, iiNet barrister Richard Lancaster has argued that the internet service provider's (ISP's) CEO Michael Malone may have wrongly believed that disclosing information about users who might have infringed copyright would be unlawful.
Lancaster stated that when AFACT began sending notices advising iiNet of its users' alleged copyright infringement in 2008, Malone believed that the Telecommunications Act prevented the ISP from disclosing customer information provided from AFACT notices.
"I understand Mr Malone thought something was in the way [of acting on AFACT notices]," Lancaster told the court.
Lancaster said the law may have been misinterpreted by Malone and confusion surrounding the exceptions in the Telco Act was industry-wide.
"There was a suggestion below that the Telecommunications Act response from iiNet was a late response to authorisation of infringement. In fact, it was an issue that had been around the industry for many years."
He said that should iiNet be found to have authorised infringement, it may be that iiNet's authorisation was lessened by the misreading of the law.
Justice Arthur Emmett joked that iiNet was arguing that "walking around with your eyes shut is better than keeping them open".
AFACT counsel Christian Dimitriadis said that Malone had initially ignored the AFACT notices, and therefore didn't have a belief about how the Telecommunications Act applied to iiNet at the time.
"The finding was that there was no evidence that the Telecommunications Act exceptions were in his mind when receiving the notices from AFACT," he said. "We submit that it wasn't until months later in December that Malone gave consideration to the AFACT notices."
"There was no legal advice provided, there was no view held at the time when the AFACT notices arrived."
Lancaster also said that although iiNet's customer relationship agreement made reference to "monitoring" customer's internet usage, it did not specify handing over information relating to copyright breaches.
"It doesn't deal with how the ISP gets to the point of being able to act on information by sending out warnings, suspension and termination," he said.
Dimitriadis said the provisions in the agreement relating to customer information and not infringing on copyright would allow iiNet to follow up on AFACT notices in the same manner the company would use customer information to follow up on non-paid bills.
He said that the information AFACT was providing about movie downloads and IP addresses was all publicly available information, meaning iiNet was not bound by privacy rules to act on it.