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Privacy Law and Policy Reporter (PLPR)
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Greenleaf, Graham --- "Private parts" [2001] PrivLawPRpr 25; (2001) 8(1) Privacy Law and Policy Reporter 24

Private parts

Compiled by Graham Greenleaf

Victoria’s new Privacy Commissioner

Paul Chadwick, a lawyer and former journalist, has been appointed by Attorney General Rob Hulls as the first Privacy Commissioner under Victoria’s Information Privacy Act 2000 .

Mr Chadwick is an expert on freedom of information laws, and, as a journalist, used them extensively. In 1997 he won a Walkley Award for his work on freedom of information, media law and ethics. He was the Co-ordinator of the Commun-ications Law Centre’s Melbourne office for some years, and was a founding member of the Australian Privacy Charter Council from 1992. Victoria’s Privacy Commis-sioner is the first such position filled following an advertisement for applicants. The process seems to have worked well.

Telstra protects privacy against reverse directories

In Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd [2001] FCA 612 (29 June 2001), Finkelstein J of the Federal Court has held that the Copyright Act 1968 (Cth) does give Telstra copyright in the white pages directories, yellow pages directories and headings books (lists of headings used in the yellow pages), and that the defendants (DtMs) had infringed that copyright by making various CD-ROMs from the Telstra data. This decision is now on appeal to a full bench of the Federal Court.

In a very lengthy judgment reviewing the whole history of copyright in factual works, Finkelstein J concluded:

[109] In this case, the substance of the information that has been taken from Telstra’s works (the directory portion of the directories and the headings that appear in the yellow pages directories and headings books) has been reproduced in the CD-ROMs. It must be remembered that copyright is not claimed for each particular entry, because copyright does not subsist in each individual recorded fact. It is claimed in the whole of the collected data, ordered in a particular way. As regards the directories, the significant recorded facts (name, address, telephone number, and the relevant type of business) are the same, or substantially the same, as they appear in Telstra’s works. While there are differences, they are in the detail. For example, when displayed on a screen, the information from the CD-ROM does not appear as columns on a page. But the information can be retrieved in alphabetical order (by postcode rather than region) and can be examined in much the same way as one would read a column on a page. The fact that the alphabetical listings are by postcode and not region, is not a material difference. Nor is the fact that portions of the advertisements are not reproduced. As regards the headings, it is true that they appear once only in each yellow pages directory and that the heading appears with each business entry in the CD-ROMs. This difference is immaterial. All the headings have been taken, as have all the listings beneath those headings. The appearance of the headings and the listings in the CD-ROMs is sufficiently similar to constitute a reproduction.

The DtMs product called Phonedisk was a ‘reverse telephone directory’ in the sense that the data may be searched by telephone number to obtain the name and address of a subscriber. It is also possible to search for subscribers within a particular postcode, and by proximity to the post office.

Privacy issues did not play a part in the Court’s reasoning, but the indirect effect is that, since Telstra does not publish a reverse telephone directory, and it can now prevent anyone else doing so, reverse telephone directories based on Telstra data cannot be produced so long as Telstra does not licence their production.

In response to the Federal Court decision, the Blackpages website <> has terminated its reverse telephone directory, which provided a free reverse directory for some parts of Australia on the internet.

LEAN exhumed?

Longtime readers of PLPR will remember LEAN (the Law Enforcement Access Network), the death of which was reported in (1994) 1(2) PLPR 21 <> , though suspicions were held of its revival (see <>).

Could its death have been exaggerated? While LEAN in its original guise may never have emerged, a recent Federal Court FOI decision, Beesley v Australian Federal Police [2001] FCA 836 (15 June 2001) at <> confirms that the Federal Justice Office has established a database by the same name. It appears that there is a Memorandum of Understanding (MOU) governing the relationship between the ‘data provider’ agencies and the user agencies, and that the development of the system is overseen by a management committee with representatives from the Australian Tax Office, the Australian Federal Police, the Department of Social Security, Department of Defence and Department of Education, Training and Youth Affairs. The effect of the Court’s decision is that the Administrative Appeals Tribuneral will now have to take evidence about the MOU and the operation of LEAN, in order to determine whether or not the contents of LEAN are in the AFP’s constructive possession (and hence subject to an FOI request made to the AFP).

Source: Patrick Gunning.

Solicitor’s video privacy breach

A Sydney solicitor has been convicted and fined $1056 for secretly filming 10 female staff members going to the toilet at his law firm over some months in 2000. This is one of the first prosecutions under the Workplace Video Surveillance Act 1998 (NSW). The NSW Law Society is also considering disciplinary proceedings.

Source: Sydney Morning Herald, 17 May 2001.

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