Communications Law Bulletin – Issues 41 to 50

Edited by Ashleigh Fehrenbach and Eli Fisher

Editorial Assistants: Jeren Gul and Daniella Lambert

IN THIS ISSUE:

AI Sound-alikes, Voice Generation, Deepfakes, and the ELVIS Act: Safeguarding Voice and Likeness Rights in Australia

Siabon Seet (Partner), Peter Carstairs (Lawyer), Josephine Le (Lawyer) and Bodhi Morgan (Graduate), Gilbert + Tobin

Legal Penalty Shootout: Manchester City takes on the Premier League

Sylvia Alcarraz (Managing Associate) and Rhyann M’Gee (Associate), Dentons

A Cautionary Tale for Defamation Plaintiffs: Why Not to Go Back into the Lion’s Den to Retrieve Your Hat. Lehrmann v Network Ten Pty Limited & Lisa Wilkinson

Marlia Saunders (Partner) and Amelia CausleyTodd (Associate), Thomson Geer

Interview with Matilda Boseley

Gianluca Pecora, University of Technology

Federal Court Decides Scope of Exception to Copyright Infringement for Government Services

Daniella Lambert (Senior Associate), Jaquelin Cantarella (Lawyer) and Caitlin Rigby (Graduate), MinterEllison

Duncan v Australian Broadcasting Corporation and the Infringement of Copyright in Films and Television Programs

Sebastian Candido, Teaching Academic at Macquarie Law School

Selkirk v Wyatt and Other Recent Decisions on Serious Harm

Joel Parsons

Event Report: CAMLA Young Lawyers Committee Defamation Seminar

Alana Callus, Associate at the Federal Court of Australia and CAMLA YLC Member

Regulation of AI in the UK and EU – The Current Landscape

Caroline Tuck (Partner), Joshy Thomas (Knowledge Lawyer), Ricky Cella (Senior Associate), RPC

Interview with Daniel Doctor

Daniella Lambert (Senior Associate), MinterEllison

Absolute Privilege in Crime Reporting: Stage 2 Part B Defamation Law Reforms

Adam Cutri (Partner), David de Mestre (Senior Associate) and Isabelle Stillman (Associate), Bartier Perry

Event Report: Gen-AI: From Engine to Entertainment

Kristina Hewetson (Senior Associate), Baker McKenzie

The Fine Line Between Judicial Interpretation and Activism: Could the Victorian Charter Form the Basis for a Common Law Tort of Privacy?

Tom Carmody, University of Sydney

The Bare Recognition of Freedom of Expression in Australia

Laila Farouque, Australian National University

Event Report: CAMLA Young Lawyers Committee Young Lawyers Networking Event

Matthew Salgo, General Counsel for The Wiggles and CAMLA YLC Member

Interview with Nick Kraegen

Jeren Gul (Associate), Gadens

Australian Information Commissioner v Medibank: A Note on the Concise Statement Released by the OAIC

John Keeves (Partner) and Sophie Dawson (Partner), Johnson Winter Slattery

Media Release: Legal and Media Giants: Justice Michael Lee and Ita Buttrose AC OBE in Conversation at Women in Media Conference

9 August 2024

International Women’s Day – Special Edition of the Communications Law Bulletin

Edited by Ashleigh Fehrenbach and Eli Fisher

IN THIS ISSUE:

Cyber Security, Triple Zero, and Natural Disasters: What Does Australian Law Say About Telecoms Outages and Network Resilience?

Authors: Thomas Jones (Partner), Matthew Bovaird (Special Counsel) and Patrick Cordwell (Associate), Bird & Bird

President’s Report by Rebecca Dunn

Australia’s Blueprint for Privacy Reforms – What it Means for Media

Authors: Tim Brookes, Geoff McGrath, Rebecca Cope and Andrew Hilton (Ashurst), and Leon Franklin and Michael Turner (Ashurst Risk Advisory)

CAMLA Young Lawyers Committee – 2023 Wrap-up by Belyndy Rowe 

First Test of Defamation Public Interest Defence: Where to from Here for the Media?

Author: Marlia Saunders (Partner) and Natasya Currie (Law Graduate), Thomson Geer

Event Report: The 2023 CAMLA Oration

Author: Isabella Barrett (Lawyer, Corrs Chambers Westgarth)

Selkirk v Hocking: The Federal Court Provides Guidance on the Serious Harm Test

Authors: Lindsey Cregan, Dominic Keenan and Helen Park (Clayton Utz)

CAMLA Young Lawyer Committee Event Report: Live Performance Law 101

Author: Lucy Hughes (Senior Business Affairs Manager, Stan)

The Future of Generative AI Regulation

Author: Michael McCagh, Lawyer, KPMG Law

Interview with David Rolph

Interviewers: Alana Callus (Gilbert + Tobin) and Lewis Graham (Allens), both Communications Law Bulletin editorial assistants

Five Online Safety Act Common Misconceptions – Debunked

Author: Nadia Tymkiw, Senior Associate, RPC

Event Report: CAMLA’s Fireside Chat Illuminates Online Safety

Belyndy Rowe (Senior Associate), Bird & Bird and Chair of CAMLA Young Lawyers Committee

International Women’s Day – Special Edition of the Communications Law Bulletin

Editors: Ashleigh Fehrenbach and Eli Fisher

Editorial Assistants: Dominic Keenan and Jessica Norgard

Privacy Act Changes Raise the Bar
Michael Park (Partner), Isabelle Guyot (Managing Associate), Gavin Smith (Partner), Valeska Bloch (Partner), Allens comment on the recent changes to the Privacy Act, including the significant increase in penalties, that have just come into effect.

Serious Harm, Choice of Law and Federal Jurisdiction
Marlia Saunders (Partner) & Isabelle Gwinner (Graduate Lawyer), Thomson Geer discuss the developments in defamation law since the serious harm threshold was introduced, and the impact that this area of law reform is having on the jurisdiction of courts in Australia to hear certain defamation claims.

CAMLA President’s Report for 2022
By Rebecca Dunn, Partner, Gilbert + Tobin

Alexander (Sandy) Tamerlane Sinclair Dawson SC
A tribute by Lyndelle Barnett, Barrister, Level 22 Chambers

Reflections on Working With the Inimitable Sandy Dawson SC
Marina Olsen in conversation with Leanne Norman, Partners, Banki Haddock Fiora

Profile: Angela Heckman Senior Vice President, Streaming Distribution & Business Development at Paramount International
Angela sits down with Eli Fisher, co-editor, to discuss current trends in the global media industry, the future of content delivery and how the Australian market compares to other territories.

Event Report: The Inaugral CAMLA Oration Evening with Her Excellency the Honourable Margaret Beazley AC KC, Governor of New South Wales
By Calli Tsipidis (Legal Counsel, Foxtel Group) & Erin Mifsud (Lawyer, E-Safety Commissioner)

Select Aspects of Forum Shopping in Australian Defamation Litigation
Dr Michael Douglas comments on forum shopping in Australian defamation litigation and, in particular, the interplay between the new concerns notice regime and Federal Court defamation hearings.

Event Report: UK Media Law Developments
By Anna Glen (Lawyer, ABC and CAMLA Young Lawyers representative)

Event Report: CAMLA Young Lawyers Whistleblower Protection 101 seminar
By Justin Kardi (Lawyer, Clayton Utz and CAMLA Young Lawyer representative)

CAMLA Young Lawyers Committee 2022 Chair report
By Calli Tsipidis (Legal Counsel, Foxtel Group)

Profile: Bruce Burke, Media Law Partner at Banki Haddock Fiora and recipient of the 2022 Press Freedom Award
By Eli Fisher (Senior Legal Counsel, Paramount and CLB co-editor)

What the NFT?
Luke Dale (Partner), Daniel Kiley (Partner) and Annabel Bramley (Law Graduate), HWL Ebsworth Lawyers, discuss a range of legal issues surrounding non-fungible tokens.

Event Report: “Media Law: Priorities for the New Government” A lunchtime seminar with The Hon. Michelle Rowland MP
By Belyndy Rowe (Senior Associate, Bird & Bird and CAMLA Young Lawyers representative)

Editors: Ashleigh Fehrenbach and Eli Fisher

USA SPECIAL EDITION

Regulating the Technology Giants – Trends in the United States and Implications for Australia
– Dr Martyn Taylor (Partner), Dietrich Marquardt (Senior Associate) and Maxine Richard (Lawyer), Norton Rose Fulbright 1

The Use of Juries in Defamation Proceedings in America and Australia
– Nathan Buck (Special Counsel) and Jeremy Marel (Senior Associate), Kennedys.

Fearless Girl Keeps Standing in Australia
– Zeina Milicevic (Partner) Jaimie Wolbers (Senior Associate) and Humyara Mahbub (Lawyer), MinterEllison

Interview: Mary Huang
– Belyndy Rowe, Senior Associate at Bird & Bird and CAMLA Young Lawyer Secretary, sits down with Mary Huang, Principal Corporate Counsel at Microsoft.
Currently based in Seattle, Mary is a product counsel for Microsoft Azure’s global expansion engineering team.

Johnny Depp v Amber Heard
– Sylvia Alcarraz (Managing Associate) and Kathryn Murray (Solicitor), Dentons

 Songbird or Magpie? What Stone v Carey Says About the Rising Wave of Copyright Claims in the Music Industry
– Laksha Prasad (Lawyer) and Emma Johnsen (Senior Associate), Marque Lawyers

Interview: Julian Keyzer
– Australian lawyer Julian Keyzer is a Senior Vice President, Business & Legal Affairs at Fox Entertainment, now based in New York City, after 10 years of living in Los Angeles. Marlia Saunders, Partner (Media) at Thomson Geer, who worked with Julian at Blake Dawson (now Ashurst) until he moved stateside in 2009, spoke with him on Zoom about his new role and his experiences working in the entertainment industry in the U.S.

A Battle of the Books: Penguin Random House and Simon & Schuster Litigation
– Jennifer Dean (Partner) and Benjamin O’Mara (Associate), Johnson, Winter & Slattery

Profile: Tom Griffin
– CAMLA Young Lawyer Anna Kretowicz recently interviewed Tom Griffin, Associate General Counsel at Meta, to discuss working in-house at the company that arguably defines the zeitgeist of the 21st century.
Anna Kretowicz is a Judge’s Associate and is reading for the Bachelor of Civil Law at Oxford University in 2022-23

The Future of NYT v Sullivan and the Enforceability of Australian Defamation Judgments Against US Publishers
– Dan Lunniss (Lawyer), McCullough Robertson

In a World of Unlimited Imagination… How to Protect Your IP Rights in the Metaverse
– Richard Hoad (Partner), Jones Day and Emina Besirevic (Lawyer), Clayton Utz

Edited by Ashleigh Fehrenbach and Eli Fisher

A New ‘Single Up-to-date’ Online Safety Act Regime
Alex Hutchens, Partner, McCullough Roberston, discusses the Online Safety Act coming into effect earlier this year.

First Consideration of the ‘Serious Harm’ Test in Australian Defamation Action
The Supreme Court of New South Wales became the first Australian court to consider the serious harm test for a defamation action in Newman v Whittington [2002] NSWSC 249 (Newman). Georgie Austin, Zoë Burchill, Blake Pappas and Richard Leder, (Corrs Chambers Westgarth) discuss its implications.

Profile: Timothy Webb, Partner, Clayton Utz
Ashleigh Fehrenbach, co-editor sits down with Tim to discuss his career and insights.

The High Court Considers: Does Google Search Publish Every Website on the Internet? Looking Forward to Google LLC v Defteros
Alex Tharby, Fabienne Sharbanee and Mhairi Stewart, media lawyers at Bennett + Co, consider the Google LLC v Defteros defamation litigation.

Massive Defamation Payout Awarded Over YouTube Videos –
Will Google Appeal?
Marlia Saunders, Partner, Thomson Geer summarises the recent Federal Court decision in Barilaro v Google LLC [2022] FCA 650 (6 June 2022)

A New ‘Marker’ for Cyber Security Practices
Implications of the RI Advice Group Decision
Alec Christie (Partner), Avryl Lattin (Partner), Raeshell Staltare (Special Counsel), Christian Hofman (Associate), Alexia Psaltis (Associate), Clyde & Co, comment on ASIC v RI Advice, the first case to address whether failing to manage cyber risk is a breach of financial services obligations and, possibly, directors’ duties.

All Eyes on the Anti-Trolling Bill, But What About the Online Safety Act?
David Kim, Banki Haddock Fiora, comments on why the eSafety Commissioner’s expanded remit is on a collision course with the world of defamation.

Therapeutic Goods Advertising Code Gets a Makeover
Jaimie Wolbers, Simone Mitchell, Jonathan Kelp (MinterEllison) discuss what the new Therapeutic Goods Advertising Code 2021 will mean for advertisers.

To Be or Not to Be. Who Can Be an Inventor?
Helen Macpherson (Baker McKenzie Sydney), Tanvi Shah (Baker McKenzie, London) and Avi Toltzis (Baker McKenzie, Chicago) discuss the Thaler litigation, and the questions it raises about the recognition of AI as an inventor under patent law.

Out of Sight But Not Out of Jurisdiction –
Application of the Privacy Act 1988 (Cth) to Extra-Territorial Companies
Marlia Saunders & Jessie Nygh, Thomson Geer, discuss the recent findings of the Full Federal Court in Facebook Inc v the Australian Information Commissioner & what it means to ‘carry on business’ in Australia in the digital age.

Digital Platform Services Inquiry – March 2022 Interim Report
By Tara Taylor, McCullough Robertson

How to Treat an Angry Tweet – the Dutton v Bazzi Appeal
Kevin Lynch and Jade Tyrrell, Johnson Winter & Slattery, consider the Full Federal Court’s decision in Peter Dutton’s defamation proceedings

Source Confidentiality Under Siege:
How Law Enforcement Powers Threaten Journalists’ Ethical Obligations
Adam Lukacs, University of Queensland, in his CAMLA Essay Competition winning piece, comments on the legislative framework protecting the confidentiality of journalists’ sources.

FIRST, DO NO HARM: The Serious Harm Threshold in Defamation Cases involving Physician-Review websites
Nadine Mattini, University of Sydney, in her piece that won the second prize in CAMLA’s Essay Competition, writes about defamation cases involving physician-review websites and the harm that a negative review can have on a physician’s reputation in light of the serious harm threshold.

International Women’s Day Edition

After the success of our inaugural IWD special edition last year, we are pleased to again be sharing an edition of the CLB that celebrates the many illustrious and diverse contributions of some of our industry’s leading women. This edition contains a series of short interviews with around 40 leaders from a range of backgrounds and experiences across media, communications, IP, advertising, government, privacy, entertainment and tech.
You will hear brilliant stories from the bench, the bar, government, private practice, in house, and executive roles.

The CAMLA industries in Australia are driven by the intelligence, advocacy, warmth, leadership and persistence of many incredible women – and we are pleased to be able to share a sample of that in this bulletin.

Thank you to everyone who gave their time to be featured, and to the CAMLA Young Lawyers who conducted the interviews. This could not have gone ahead without all of you.

Enjoy the read!

Editors:

Ashleigh Fehrenbach and Eli Fisher