How to answer the typical problem-based/hypothetical questions
Most of the essay questions below are in the form of hypothetical problem scenarios, not traditional discursive essays. You are asked to provide advice, based on the material in the course, as if you were a legal advisor helping one of the parties (your client) to work out what legal principles applied to them in the particular circumstances described, what options they have, what they should do (how to choose between the options), and what the outcome is likely to be.
You do not have to get any precisely 'right' answer (indeed, there may not be one); it is more important to identify the issues, explore several alternatives, and explain your thinking. You do need to show you understand the range of issues involved, which items in the course materials are relevant to analysing how these issues would affect the specific situation described, and how your client could choose between alternative options.
You need to consider the following aspects. Remember to read the relevant parts of the course materials closely, including the documents linked from each section, consider the specific details of the fictional situation, and refer explicitly and accurately to specific aspects of the most relevant laws and/or cases.
- Which broad area(s) of law are involved? (such defamation, domain names, privacy etc.)
- What jurisdiction(s) are relevant? Where are each of the parties? Is there more than one jurisdiction involved? Are there different rules, or dispute resolution institutions, involved?
- What critical issues arise from the facts? (refer to the materials for the sorts of issues which are possible in this area)
- What specific laws apply to the situation - which Act(s) or Code(s), etc, and which sections or provisions of them?
- What cases (reported decisions of courts in a particular jurisdiction) might cover similar facts or legal principles?
- Is there any missing information you might need to seek, in order to form a complete view of their position?
- Which facts are most crucial and significant for our purposes (the place, the date or time, what was said??)
- What options does your client have for action to resolve the problem?
- How would they choose between the options (what criteria could be used to rank or choose between the options)?
- What is the preferred option, or options?
- Likely outcome of the preferred option? Cost and other implications?
It is helpful to structure your answer with headings and sub headings to show how you have dealt with issues in a logical order or structure, although the headings do not necessarily have to match these points above. Headings for problems might include:
- Factual background (should be very short summary of the key facts)
- Relevant legal issues [and how the facts apply to them]
- Options available to our client
- Recommended options, and why?
- Likely outcomes and implications of these options
The Essay Questions
Spam
(a) Jules is proposing to start up a marketing company to run entirely by the use of email, SMS messages to mobile phones, faxes, and instant messaging. She is planing to go into very high volume operation if it works out, on a continuous basis and turning over $100 million per year, but he might start out with just single messages and a turnover of $20,000 per year, to avoid trouble while she gets going.
-
She also knows an old friend Rose who now runs a bank. Rose is willing to engage her to send emails to all the banks existing and past customers, and everyone they have on their own marketing list. Jules is thinking of just borrowing this list to later send other messages to these people on behalf of other clients.
-
She thinks she could get away with sending a newsletter about email marketing to them all too, with no offer to do it, but a link back to her website which sets out her full range of services.
-
She knows a local company ScreenRipper that can supply her with a list of email addresses for domains all around the world, and also software which can 'scrape' email addresses off web sites, using sophisticated content testing tools if necessary to decide which addresses to take (with possible human intervention if preferred). If necessary they will just send her the addresses they find with this tool, used in automatic mode.
- Another old mate Tracy runs a political service company which sends messages to people on behalf of political parties and churches, some of them about political or religious issues, and some offering mugs and woks for sale for fund raising purposes. Jules wants her to help run these campaigns as a part time staff member.
She is worried about whether this is all OK.
Advise Jules in detail about the legal implications of each signficant element of all these specific options and proposals, and thus which ones are likely to be legal and which not, and the sorts of penalties which might apply. Which of the regulatory instruments listed in the next section will apply?
Be sure to consider the first item below and, if you think they are specifically relevant, any of the others:
- Spam Act 2003 (Cth)
- Australian Direct Marketing Association's Code of Conduct
- Internet Industry Association's Code of Conduct
- Privacy (Private Sector) Amendment Act 2000 (Cth)
- The US CAN-SPAM Act 2003
- An international agreement made since the Spam Act 2003
Domain Names
William Bilson was once a famous cricketer, and runs a very small business called BillyB's, which is not yet a registered business name or trademark, selling signed cricket bats. Some of his customers are from interstate, and others are based overseas. He is also mre recently a champion of workers rights, and has become well known as a union organiser for the Australian Employees Union (AEU). He wants to start providing his bats over the Internet, and is also running for national president of the AEU, but finds that:
-
the domain billybs.net.au is registered to a disrespectful female comedian who copied some of the artwork for his proposed domain, which she posted on a temporary site, and created an amusing but cruel parody site which pokes fun at his business and customers,
-
the domain williambilson.com is already registered to a well known cybersquatter based in the UK who has over five hundred other domains registered (the site contains nothing but a link to an email address)
-
the domain williambilson.com.au is registered to a rival unionist Jack White, also part of the union election but from a rival faction. He seems to have mischeivous intent.
-
the domain billbilson.biz is registered to a restaurateur, Bill Bilson, and the site redirects you immediately to his web site Bilsons.com.au. The Bilson company behind this have a trademark on 'BillB' and 'BillyBilson'.
Advise Bill on his legal options for registering a suitable domain name, including what he can do if it is already taken by one of the above. Be sure to consider:
-
What is the source of the rules about eligibility, and about the process for solving the potential disputes about each of the above?
-
How do the rules apply in practice to each example?
-
Are there different versions of these rules for different domains above? What difference does this make? Is it easier or harder to prove she is entitled to that domain compared to others?
-
Are there any other issues that might arise from these facts?
-
What further evidence, if any, might you need from her to give proper advice?
Cybercrime
Joe is a 3rd year computer science student in Brisbane. He is a big fan of Linux products and detests Microsoft products. In particular, he is critical of negative publicity and niggling complaints about a specific security problem in the new Linux UbiWare operating system, while Microsoft seems to get away with constant problems in its popular new BugHouse system. While he has no interest in theft or causing anyone harm, he thinks he needs to make a statement.
Joe writes a devious "rootkit" program which can penetrate Microsoft users' personal computers, and their recent anti-virus measures, and then replicates itself and spreads to other computers via network connections and email, while stealing their electronic banking passwords and emailing them to AusCERT the computer security agency, which can be considered a Commonwealth facility for the purposes of this question.
He spreads the virus in Australia to point out the weaknesses in Microsoft security, and describes what he has done (and why) in various online newsgroups. The virus also spreads quickly around the globe, crashing numerous systems and services, and leaving annoying messages on their screens.
In addition, some of the emails fall into the hands of the 'secret zombie bot net mafia', who promptly seed their own illicit networks with these bank login details which try to cause computers around the world to fraudulently transfer the hapless user's funds to their own accounts.
Advise Joe about how the Australian criminal law system might deal with him in this situation, the range of specific charges he might face for each action, where, and the defences he might try to use.
-
What laws and cases might be relevant, in what jurisdictions?
-
Are there any other legal issues raised here?
Defamation
A popular New York magazine, "Sports Goofs", carries an article about Sydney swimming star and media personality Julie Norman. The article claims that Julie's performances are questionable, and reports that she was once busted for using performance enhancing drugs at a State swimming competition, but that this was hushed up by Australian officials.
The article is published in hard copy in the United States (at newsstands) and also by mail order to subscribers in over 10 countries. The magazine sells ten million copies in the United States, but there are only about 50 subscribers in Australia.
"Sports Goofs" also has a website. Part of the web site is free and just carries promotional material for the magazine. However, for $10 US per annum you can subscribe to an online version of the magazine. There are about 5,000 online subscribers. The magazine does not keep a record of the address of online subscribers. However, about 100 of these subscribers paid for their access using Australian credit cards.
In Australia, the mainstream news website www.smh.com.au publishes a short article repeating the allegations, but carrying a denial from Julie's coach and Australian tennis officials.
Julie wants to sue the magazine, the US web site and the Australian web site for defamation. Advise her on her chances of success suing each opponent for defamation in Melbourne. Be sure to consider:
-
which aspects of the tort of defamation are most in doubt for her in each example
-
which cases are relevant (including which aspects of Dow Jones v Gutnick are most relevant)
-
what the jurisdictional issues are, and what this means for her chances of success in each example
-
how the possible defences in the 2005 Defamation Act (which one?) might be applicable or not to her factual situation
-
Also consider costs, risks and other options.
Content Regulation and Censorship
FleaBay Corp runs a web site called FleaBay.com. On this site, individuals can sell any item. Items are catalogued and bids can be made electronically. The site is hosted in Sydney by a separate company, FleaBay Holdings Aust. Pty Ltd, but it is popular among users around the globe.
One site visitor complains to their local MP that the site is filled with disgusting, offensive and filthy material. Specifically, the following items are for sale on the site:
-
A software program that helps create fraudulent credit card numbers
-
Children available for adoption from third world countries
-
X-rated videos and DVDs, sold out of a warehouse in Darwin
-
Access to online horse-race gambling services, also run by FleaBay
-
Nazi propaganda materials, denying the Holocaust and inciting violence against Gypsies, gays, leftists and Jews
-
A human liver from a willing organ donor in Point Piper, down on their luck in the share market
-
Hard core pornographic photographs (downloadable) of young boys, with the disclaimer "all models are over 18"
- Books containing detailed instructions for making truck bombs
How is each aspect of this complaint likely to be dealt with, by whom, and what are the implications for FleaBay Corp. and FleaBay Holdings?
How would they be classified or categorised by the relevant law or code etc, and what options would the two have to consider?
In particular, which of these items might be potentially likely to be caught in the proposed mandatory ISP-based web content filter, as it is understood on 1 July 2009, if it was introduced as planned? Why? Are they likely to be caught in practice? What are the implications for users of the service?
Wikipedia
This is a different task than the other questions, it is not a hypothetical but the creation of a high quality online resource page.
Pick a case or very specific topic in one part of the course, for which there is not already a Wikipedia Featured Article. Confirm this choice with the lecturer before proceeding, to ensure it is narrow and specific enough.
See http://en.wikipedia.org/wiki/Wikipedia:Featured_articles
(i) Provide a succinct but complete list of the requirements for 'Featured Article'. Explain the difference in reliability between this and an ordinary article. Explain how quality might be maintained in the face of nasty interventions by malicious editors.
(ii) Draft and submit a page for the topic to Wikipedia, complying with those requirements.
(iii) provide the URL for the published item.
(If it is granted Featured Article status, there will be a mark of HD!)
