Publication of defamatory comments on websites and social media and business networking platforms such as Facebook, twitter, Instagram and LinkedIn are becoming increasingly common and are causing devastating harm to both personal and business reputation and business losses. This update provides a review of the damages awarded in recent defamation cases and some of the factors taken into account by courts in awarding damages.[read more]
The recent court decision in Hockey v Fairfax Media Publications Pty Ltd  FCA 652 demonstrates that Courts will award significant damages for defamatory tweets. As explained in this article, the Federal Court in Hockey v Fairfax made an award of $80,000.00 in compensatory damages for two tweets comprising three words each.[read more]
Although the Uniform Defamation Laws in Australia are now essentially uniform, the existence of the separate jurisdictions, the cross border publications, Internet and international publications and communications continue to make issues relating to choice of law and choice of jurisdiction important concerns for parties in a defamation dispute. [read more]
The franchising industry in Australia has been regulated under a mandatory industry code, the Australian Franchising Code of Conduct, since 1 July 1998. During this time the code has been amended twice, with amendments commencing on 1 March 2008 and 1 July 2010 (“the Old Franchising Code”) and a new code came into effect on 1 January 2015 (“the New Franchising Code”).
The New Franchising Code is a mandatory code prescribed under the Competition and Consumer Act 2010 (Cth). The Australian Competition and Consumer Commission is responsible for the administration and enforcement of the Franchising Code.[read more]
The Federal Court case of Corby v Allen & Unwin Pty Ltd
(“Corby case”) illustrates the risks associated with not taking adequate steps to ascertain the copyright ownership in photographs and not obtaining permission or licences from the copyright owner. [read more]
There is a common misconception by internet users that photographic images found on the internet, websites and social media sites such as Facebook, Twitter and Instagram can be freely copied and used for commercial purposes without the licence of the copyright owner. The recent decision of the Federal Court of Australia, in Tylor v Sevin  FCA 445 is a warning to all users of the internet that the courts will award substantial damages for unauthorised copying of photographs found on the internet. The court awarded damages and costs in excess of $20,000.00 for copyright infringement in respect of one photograph which had been copied by a travel agent from the internet and used in the marketing and advertising of the travel agent’s business without obtaining a licence from the copyright owner, Mr Taylor, a professional American photographer.
The Federal Court decision in Corby v Allen & Unwin Pty Ltd  FCA 370 provides a warning to individuals, publishers, producers, businesses and organisations that the court will award significant damages where parties do not obtain copyright clearances before using photographs. [read more about the case]
This update provides an overview of the copyright law as it relates to ownership and use of photographs and includes risk minimisation strategies to avoid copyright infringement. [read more]
Australian Consumer Law - ACCC action on Carbon Price claims - July 2013
The ACCC continues to target the energy sector for possible false or misleading representations made by businesses that relate price rises with the impact of the carbon price. This update provides an overview of the recent action taken by the ACCC in this area [read more].
Maintaining a strong reputation: Defamation of business - July 2013
Businesses can pursue damages for false and defamatory representations or publications made on the internet and elsewhere through a claim in Defamation, Injurious falsehood or under the Australian Consumer Law [read more].
Australian Consumer Law - Directors & Employees' Liabilities - January 2013
Company directors and individual employees can be personally liable to pay pecuniary penalties if they are found to be in breach of section 29 of the Australian Consumer Law for making false or misleading representations in respect of the supply or possible supply if goods and services. Recent court decisions indicate that the courts are willing to impose substantial penalties on companies (up to $1.1 million) and their CEO's and directors (up to $220,000) for each act or omission.[read more].
Australian Consumer Law Update: Do you "green wash"? Avoiding Green Marketing Legal Traps - March 2011
Under the Australian Consumer Law, the ACCC has wide enforcement powers to combat ‘green washing’ claims. The ACCC has stepped up prosecutions in this area. This legal update looks at recent ACCC court actions on ‘green washing’ claims relating to false, misleading and deceptive representations [read more].
Franchising Update: Warranties to Consumers & the new Competition and Consumer Act - December 2010
The Minister for Small Business DR Craig Emerson has announced the creation of an expert panel on franchising and unconscious conduct, as part of the ongoing inquiry into reforming these areas of trade practices law. The proposed reforms aim at providing increased protections for small business from anti-competitive conduct by more powerful and unscrupulous business. The current Franchising Code of Conduct is a mandatory industry code, prescribed under the Trade Practices Act and is administrated by the ACCC [read more].
Trade Practices Update: New Consumer Laws commencing 1 January 2011 - December 2010
Under the Australian Consumer Reforms, the Trade Practices Act 1974 is being replaced by the Competition and Consumer Act 2010. Businesses must review and update their trade practices compliance procedures and manuals, existing contracts, warranties/guarantees to ensure compliance with the new regime. The Competition and Consumer Act involves a substantial restructure of the Trade Practices Act and includes various new provisions. In reviewing compliance systems, businesses should note the following key areas, which are substantially changed under the Competition and Consumer Act: consumer guarantees; specific types of unfair business practices; sales practices such as unsolicited consumer agreements and lay-by agreements; and product safety [read more].
Trade Practices Update: ACCC cracks down on Trade Practices Compliance - November 2010
The implied statutory warranties and conditions regime has now been replaced by a comprehensive new framework of statutory guarantees under the Competition and Consumer Act 2010. These new laws have important implications in the franchise industry. Any franchisors involved in the supply of goods and services to consumers will have to abide by the statutory guarantees when dealing with product defects or consumer complaints about products or services. Franchise businesses who offer warranties to consumers for the goods or services they provide, must consider whether they are compliant with the new consumer guarantees under the Competition and Consumer Act. Significantly, where a business offers an extended warranty, it is necessary to ensure that the extended warranty provides more protection to consumers than the rights they are entitled to under the statutory guarantees [read more].
Australian Consumer Law Update: Unfair Contract Provisions in force 1 July 2010, as more amendments pass Parliament - June 2010
The Council of Australian Governments has agreed to implement a new consumer policy framework, the Australian Consumer Law, which is designed to ensure nationally equivalent obligations for businesses and guarantee consumers rights, protections and expectations. This update provides an overview of the new law regulating unfair terms in standard form consumer contracts and implications for business arising out of the changes to consumer protection laws. The unfair contract provisions will affect any standard form consumer contracts which are entered into, renewed or varied. Businesses who supply goods or services to consumers must consider whether any terms in their current contracts may be considered unfair under the new laws [read more].
Franchising Update: Franchising reforms in force 1 July 2010: Franchisors face increased disclosure obligations - June 2010
As for shadowed in our March 2010 Newsletter, franchisors will face disclosure requirements under reforms to the Franchising Code of Conduct as announced by Small Business Minister Dr Craig Emerson. In addition to the amendments to the Franchising Code of Conduct, the ACCC has been given new powers to conduct random audits of franchisors. These audits will focus on ensuring franchisors comply with the law. The ACCC will have the power to name franchisors that do not comply. This is likely to have a significant impact on a franchisor’s ability to recruit new franchisees and reduce the value of existing franchises when franchisees seek to sell [read more].
Technology Update: Legal Traps: the Internet & the Office - Employer Liability for Employee Internet Misuse
In the modern workplace, employers are being held liable for a wider range of employee misconduct. In particular the potential for abuse of email and internet facilities provided at the workplace is virtually limitless and could have severe legal ramifications for employers. Furthermore, the rise of social networking sites such as Facebook and Twitter further exacerbates these problems. The employer’s obligation to provide a safe work environment free from discrimination, harassment, victimisation and bullying extends to the internet and email usage by staff. This update provides an overview of employers areas of risk in regards to employee internet and email usage relating to discrimination and harassment; copyright infringement; and defamation [read more].
Doing Business in China Update: Developments in Intellectual Property, Tax and Labour & Employment Law- April 2010
Australian companies seeking to do business in China should ensure that they obtain appropriate protection of their intellectual property through trade mark, copyright, design and/or patent registrations. Consideration also has been given to the most appropriate means of entering the Chinese market, including licensing, technology, transfer, distribution agreements, joint ventures, representative offices, or other corporate structures. It is also essential that Australian companies seek independent business and taxation advice prior to expanding operations into China. The Chinese government is implementing various taxation reforms, which include a tightening of the criteria that must be met before a foreign investor can establish a representative office in China. However, Chinese taxation also includes industry-based preferential tax policies, which may benefit Australian companies conducting business in one of the targeted industry areas [read more].
Franchising Update: Franchising reforms expand franchisor disclosure obligations - March 2010
Franchisors will face disclosure requirements under the comprehensive reforms to the Franchising Code of Conduct announced by Small Business Minister Dr Craig Emerson. The proposed amendments will result in expanded disclosure requirements for the franchisor and will address the following five areas of problematic franchising behaviour considered by an expert panel convened by the government: unilateral contract variation; unforeseen capital expenditure; franchisor-initiated changes when a franchisee is trying to sell their business; attribution of legal costs; and confidentiality agreements. The expansion of the disclosure requirements will increase franchisors disclosure obligations and compliance costs but will provide greater protection to franchisees from unscrupulous operators [read more].
Intellectual Property Update: New Government Grants Support Innovators of Intellectual Property - February 2010
The Commonwealth Government’s new grants program Commercialisation Australia which came into effect on 1 January 2013, provides new opportunities for innovators, businesses and researches to receive financial assistance to support and protect their intellectual property development and commercialisation. Under the program, companies or individuals can access between $250,000 to $2 million in repayable grants [read more].
Trade Practices Update: Franchising Code of Conduct and Unconscionable Conduct Review - December 2009
Under the Australian Consumer Reforms, the Trade Practices Act 1974 is being replaced by the Competition and Consumer Act 2010. Businesses must review and update their trade practices compliance procedures and manuals, existing contracts, warranties and guarantees to ensure compliance with the new regime. The Competition and Consumer Act involves a substantial restructure of the Trade Practices Act and includes various new provisions. In reviewing compliance systems, businesses should note the following key areas, which are substantially changed under the Competition and Consumer Act: consumer guarantees; specific types of unfair business practices; sales practices such as unsolicited consumer agreements and lay-by agreements; and product safety [read more].
Green Marketing and Other Industry Codes - November 2009
Industry codes play an important role in the regulation of business practices by setting standards of conduct for industry members, the consequences of non-compliance with an industry code may result in contravention of the Trade Practices Act 1974. This legal update examines recent developments in the following industry codes: Green Marketing Code; Franchising Code of Conduct; and Medicines Australia Code of Conduct [read more].
Intellectual Property Update: Full Federal Court Confirms that Researchers Own their Inventions - October 2009
Ownership of intellectual property is an important corporate governance issue for companies, universities, research institutes and businesses. As intellectual property represents one of the most valuable assets on the balance sheet of many organisations, adequate and effective processes and procedures for ensuring the organisation’s ownership of intellectual property on creation, protection and ongoing management are critical. This legal update examines the decision on University of Western Australian v Gray  FCAFC 116, which highlights what happens when contracts of employment or engagement do not adequately deal with intellectual property ownership, especially in respect of inventions made in the course of research [read more].
Patent Update: Innovation Patents Provide Protections Against Imitators - August 2009
The innovation patent system became part of the Australian patent framework in 2001 and was aimed at stimulating small and medium business innovation by providing a quick, efficient and cost effective means of obtaining protection for new or improved products, methods or processes. This legal update examines the Dura-Post Pty Ltd v Delnorth Pty Ltd  FCAFC 81 decision which defined the threshold test that must be established for a valid innovation patent and confirmed that the ‘innovation step’ requirement is a less onerous test than the requisite ‘inventive step’ for standard patents [read more].
Therapeutic Goods Regulatory Reforms target false and misleading industry practices - August 2009
The Federal Government is currently implementing a three-stage reform program to update the therapeutic goods regulatory framework in Australia. This legal update provides an overview of the amendments to the Therapeutic Goods Act 1989 and how they will have significant consequences for the pharmaceutical industry, particularly in relation to penalties for providing false or misleading patent certificates and stricter advertising regulations [read more].
Commercial Franchising in China - May 2009
China remains an increasingly important market for Australian companies considering international business expansion, whether through franchising, licencing, setting up foreign investment enterprises or other business structures. Amongst these market entry options, franchising enables rapid market expansion and penetrates using a combination of intellectual property of the franchisor and the capital and enthusiasm of a network of franchisees. This legal update provides a summary of information on the new Chinese franchise regulations and intellectual property protection to Australian companies aiming at entering China’s market place through franchising [read more].
Protecting Your Business Interests - Update December 2008
Confidentiality agreements and restraint of trade clauses are commonly used to prevent former employees or franchisees from engaging in activities that compete with business, including franchises. Recent decisions have indicated that inadequate confidentiality agreements and unreasonable restraint of trade clauses in employment contracts or franchise agreements, may fail to adequately protect legitimate business interests. In this update Stephens Lawyers & Consultants addresses development in the following areas of law: confidentiality agreements; fiduciary duties; and restraint of trade clauses post-employment [read more].
Recent Developments in Trade Practices - January 2008
Recent high profile cases initiated by the ACCC have demonstrated the importance and value of businesses maintaining an effective trade practices compliance program. The promotion of a culture of compliance within the business is also essential for reducing the damage of a potential trade practices breach. In this update Stephens Lawyers & Consultants provides an overview of recent trade practices decisions and provides summaries on amendments to the following areas: misuse of market power and predatory pricing provisions; closer cooperation between Australian and NZ regulatory bodies; and amendments to the Franchising Code of Conduct [read more].
Trade Mark Cases 2007
Summaries of the following trade mark decisions from 2007: Brother Industries Ltd v Dynamix Supplies Pty Ltd  FCA 1490; Pierre Fabre Dermo-Cosmetique v Senator Automation Pty Ltd  FCA 1391; Merck KGaA v Generic Health Pty Ltd  ATMO 1; (2007) 71 IPR 387; Starr Partners Pty Limited v Dev Prem Pty Ltd  FCAFC 42; (2007) 71 IPR 459; Honest Tea Inc v Teavolution  ATMO 10; 72 IPR 431; Cat Media Pty Ltd v Apex marketing Group LLC  ATMO 13; (2007) 72 IPR 442; Cadbury Schwepps Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No. 4)  FCAFC 70 (2007) 159 397; (2007) 72 IPR 261; (2007) 42-161 [read more].
Recent Developments in Trade Practices - March 2007
Business need to be aware of recent developments in trade practices law as failure to implement adequate compliance programs exposes companies, directors, employees and others involved in the contravention to significant penalties of up to $10 million for a company and $500,000 for individuals. In this update Stephens Lawyers & Consultants provides an overview of recent trade practices decisions and provides summaries on amendments to the following areas: third line forcing; joint ventures; collective bargaining arrangement for small businesses; and new procedure for company mergers clearances and authorisations [read more].
Trade Marks Cases 2006
Summaries of the following trade mark decisions from 2006: McDougall v Deckers Outdoor Corporation (2006) 68 IPR 322; Hope v Reme Pty Ltd (2006) 68 IPR 189; Colorado Group Ltd v Strandbags Pty Ltd (2006) 67 IPR 628; Colorado Group Ltd v Strandbags Pty Ltd (No. 2) (2006) 69 IPR 281; Ferrari Furniture & Cabinet Makers Pty Ltd v Ferrari Furniture Pty Ltd  WASC 139; Cadbury Schwepps Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No. 4)  FCA 446; 69 IPR 23; Starr Partners Pty Ltd v Dem Prem Pty Ltd (No. 2) FCA 1269; Louis Vuitton Malletier SA v Toea Pty Ltd  FCA 1443 [read more].
Update to Australian Trade Mark Law - October 2006
Australian Trade Mark law is expected to undergo important changes brought by the Intellectual Property Law Amendment Act 2006 and Trade Mark Amendment Act 2006. The IP Law This article reviews the following keys amendments to the Trade Marks Act 1995 introduced by both the IP Laws Amendment Act and the Trade Mark Amendment Act: registrar of trade marks revocation powers; public access to document held by IP Australia; requirement for legal personality in regards to trade mark applications; introduction of ownership ground of opposition to trade mark applications; abolishing requirement for substantially identical and deceptively similar; introduction of bad faith ground of opposition to trade mark applications; and reduction of grace period for renewal after registration expires [read more].