Cyber Law in Australia - Assignment Example

Faculty of Law MID SEMESTER ASSIGNMENT Semester 2 2014 UNIT NAME: Law of Communication (UG) UNIT NUMBER: 9424 DUE DATE AND TIME: 9am, Wednesday 1 October 2014 EXAMINER’S NAME: Kate Chetty CONTACT EMAIL: kate.chetty@canberra.edu.au 1. In the article, ‘The cat that swallowed the cream-Public servants taking kickbacks wasting or money’ shows that Sam has not defamed Larry due to a number of defenses he can use to prove his position in respect to the defamation claims. For instance, he can defend himself by the fact that he did not compel Tom to provide him with the information about Larry’s involvement in getting bribes for the upcoming tenders such as the coffee contract for the Department’s upcoming coffee run. He can also defend himself by saying that he did not compel Tom to provide him with the information and the fact that Tom provided the information shows that it was allowed to be published. Another reason that Sam can use to defend himself from the claim of Larry’s defamation is that he might have used other methods to obtain the information about obtaining bribes by Larry and Tom could not ascertain that he obtained the information from him. The main jurisdictional issues that arise in relation to ‘Female Fortnightly’ include the responsibility that Sam had in disclosing Larry’s involvement in bribery during the process of initiating the contracts. This is because; he does not work for any anti-corruption agency in the country and his involvement in corruption matters is a sign of being too inquisitive about people’s roles in the office. Another jurisdiction matter that relates to this case is that Sam did not take the right steps to investigate further the process of Larry’s involvement in corrupt activities. He only used the information he recorded during the private conversation to publish his article. This results into lack of reliability of the information he published in his article ‘Female’s Fortnightly’ (Strowel, 2009). Another jurisdiction matter that arises from the publication of Larry’s involvement in the bribery during the contracting process is that Sam did not use the right channel to report the act. Rather than reporting the act to the right government body that deals with corruption cases, he decides to use the information for his personal benefits by publishing it in his article. Thus, he can be accused of being selfish in his effort to report corruption acts by ensuring he benefits from them rather than assisting in the fight against the act. 2. According to the manner in which Sam obtained the information from Tom and publicized it, he can be accused of having breached Tom’s confidentiality. This is because, as a friend, Tom considered him to be a person to whom he could rely by sharing personal information. Furthermore, Tom was not aware of the manner in which Sam was going to use the information and they did not agree with Sam that he is free to publicize the information. Thus he disclosed the information to him but did not expect him to use it for his online article. This is because, as a journalist, he is required to use formal methods of collecting information but not using his friends to get confidential information. This is a sign of unfaithfulness in friendship where Sam used Tom as an avenue for reaching confidential information that he published in his article (Grant & Communications Law Centre, 2004). 3. According to ‘Listening Devices Act 1992 (ACT)’, Sam committed an offence. Section 2 of the Act states that a person must not use listening devices with the purpose of listening or recording private conversation to which the parson is a party (Gillooly, 2004). This section was breached by Sam because he recorded his conversation with Sam yet he was also involved in the conversation. Section 5 subsection 1 of this Act states that a person who is party to a private conversation commits an offence if the person communicates a record of the conversation and also if the person knows that the record was made directly using the device (Freegard, 2006). According to this subsection, Sam committed an offence because he knowingly set his device so that he could record his conversation with Tom for the purpose of using the information to publish his article without the knowledge of Tom. Section 6 subsection (1) of this Act states that a person who is party to a private conversation commits an offence is the person divulges or communicates a private conversation and the person has the knowledge that because of the listening device, it results into contravention of the use of the listening devices such as using them to record private conversations to which the parson is party (Doyle & Bagaric, 2005). Sam can be considered to have contravened this section of ‘Listening Devices Act 1992 (ACT)’ by publishing the information he obtained during his conversation with Sam in his article ‘Female fortnightly’ that resulted into disclosure of Larry’s involvement in bribery activities that caused his defamation. Section 7 subsection 1 also prohibits the possession of unlawfully recorded private conversation with the knowledge that the listening device was used to record private conversation without the knowledge of the other party. This section was also contravened by Sam because he possessed the conversation he recorded using the listening device without the consent of Tom. Tom can use section 9 subsection 1 of this act as evidence that Sam contravened this Act. This subsection states that if a private conversation has resulted into the knowledge of a person as a result of the use of the listening device as a result of direct conversation with the other party by the principal party, then the principal party is considered to have contravened this Act (Clough, 2010). This section can be used by Sam to support the fact that Sam should be accused of having used listening device to record their conversation that resulted into his knowledge about the involvement of Larry in bribery activities during the contracts. If Sam had not recorded the information using the listening device, he would not have been able to publish the information in his online article ‘Female Fortnightly’. Tom can also accuse Sam of having used his state of mind during the private conversation at the restaurant to record the information about Larry’s involvement in bribery activities that resulted into defamation of Larry. This is because, if Tom had not expressed his state of mind, Sam would not have obtained the information. 4. Public interest should not be available as evidence for Sam’s conduct. This is because; there have not been any complaints from the public about the involvement of the secretary of the Department of Community Well-Being in bribery activities that have resulted into their displeasure. Thus, the evidence provided by Sam would not bring any benefits to the public. The elements of such a defense should include cases of allegation that the department has been involved in corrupt activities during organization of contracts but there has not been any proof to show that they are actually involved in bribery. Another element can be that attempts have been made to ensure the officials of the Department of Community Well-Being are held accountable for their alleged involvement in corrupt activities but there has not been any evidence to support his claims, thus the need for a private investigator (Clark, 2010). Sam’s conduct would not satisfy these elements because there has not been any public outcry about the involvement of officials of the Department of Community Well-being in bribery activities. Another reason why Sam’s conduct would not satisfy these elements is that officials of the Department of Community Well-being have not been accused of major scandals of involvement in bribery and the need to investigate them was not necessary. Thus, the action taken by Sam was not a major concern but was mainly aimed at accomplishing his personal interest of improving the sales of his online article ‘Female’s Fortnightly’. This is because he hoped that if he talked about an issue that concerned the government, people would be attracted to the article and he would improve the sales of his article. 5. Which of the following entities referred to in the scenario is not bound by the Privacy Act 1988 (Cth)? Ans. d. Clandestine. 6. If Sam had have submitted an application for documents under the Freedom of Information Act 1982 (Cth) which of the following is not a valid reason for the Department of Community Wellbeing to decide that access is exempt? Ans e. Disclosure of the documents would involve the unreasonable disclosure of personal information about a person and it is not in the public interest to disclose them. 7. If Larry were to bring legal action for defamation against Sam, which of the following statements is not correct regarding the law relating to the disclosure of sources?Ans b. ACT evidence legislation could protect Sam from being compelled to reveal Tom as his source. References Clark, E. E. (2010). Cyber law in Australia. Alphen aan den Rijn, The Netherlands: Kluwer Law International. Clough, J. (2010). Principles of cybercrime. Cambridge, UK: Cambridge University Press. Doyle, C., & Bagaric, M. (2005). Privacy law in Australia. Sydney: Federation Press. Duncan, W. D. (2012). Joint ventures law in Australia. Annandale, N.S.W: Federation Press. Freegard, H. (2006). Ethical practice for health professionals. South Melbourne, Vic., Australia: Thomson. Gillooly, M. (2004). The third man: Reform of the Australasian defamation defences. Annandale, NSW: Federation Press. Grant, A., & Communications Law Centre. (2004). Australian telecommunications regulation: The Communications Law Centre guide. Sydney: University of N.S.W. Press. Groves, M. (2005). Law and government in Australia. Sydney: Federation Press. Lyon, G., & Du, P. J. J. (2005). The law of insider trading in Australia. Annandale, N.S.W: Federation Press. Robinson, S. (2008). Homophobia: An Australian history. Annandale, NSW: Federation Press. Strowel, A. (2009). Peer-to-peer file sharing and secondary liability in copyright law. Cheltenham, UK: Edward Elgar. Van, C. W. (2010). Intellectual property law in Australia. Alphen aan den Rijn: Kluwer Law International. Read More