iiNet has argued the Telecommunications Act 1997 was not used as a convenient defence against the copyright case brought on by the Australian Federation Against Copyright Theft (AFACT).
AFACT represents a number of movie studios to take legal action against the Perth-based ISP for authorising “rampant” film piracy by its customers. In February, the Federal Court found iiNet did not authorise the copyright infringements. Appeal hearings commenced in the Full Federal Court this month.
Throughout all the proceedings the ISP has maintained the privacy obligations stipulated in the Telco Act prohibits the disclosure or use of customer information. This prevented iiNet from acting on the infringement notices issued by AFACT as it would have broken the law, the ISP claimed.
The initial ruling also found this to be true, although the presiding judge, Justice Cowdroy, recognised some exceptions applied and the Telco Act was not considered for his final decision.
On day four of the appeal hearing, iiNet legal representative, Richard Lancaster SC, said iiNet CEO genuinely believed the Telco Act prevented the company from acting on AFACT’s infringement notifications and information on which iiNet IP addresses were recorded as having committed alleged film piracy.
iiNet chief regulatory officer, Steve Dalby, was found not to have had the Telco Act in his mind at the time of responding to AFACT notices.
Lancaster addressed suggestions iiNet did not have the Telco Act in mind when it decided to disregard AFACT’s request to suspend or terminate infringing customer accounts since early 2008.
“[Prohibition of disclosing or using customer information] was an issue that had been in and around the industry for many years,” he said.
He pointed to a submission made by AFACT to the Attorney-General’s office in August 2006.
The submission concerned the impediments of accessing and releasing customer details of ISPs due to their obligations under the Telco Act.
Lancaster has gone on to argue against Justice Cowdroy’s ruling that had the Telco Act been applied to the case, exceptions would have applied to allow disclosure or use of customer information.
The hearing continues.