Data Retention by ISPs
A highly controversial data retention law was enacted in Australia in 2015. According to the
Retention Act (ADRA), large amounts of telecommunications metadata must now be kept for two
years by Australian
telecommunications companies. The Act covers data with regard to who called or texted whom and
for how long, as well
as the location, volume of data exchanged, information about the device used and any and all
email IP data. It also
makes it far easier for Australian authorities to access these records.
The government argued that said
legislation would be “critical” for security agencies and law enforcement in order to combat
domestic terrorism. The
legislation does have some strict stipulations worth noting: for example, only metadata is
included and not the
content of calls and messages themselves. The law also doesn’t require firms to retain the
browsing history of
users. Also, whilst Australian ISPs are required to keep detailed records of almost everything
about an email or
chat conversation (apart from their actual content), foreign messaging platforms such as Gmail,
and Skype are exempt. Internal email and telephone networks, such as those operated within
universities, are also exempt.
However, ADRA remains very divisive in
Australia, with accusations that the
Act provides excessive room for law enforcement agencies to abuse their access to and viewing of
There is also reported to be confusion amongst telecommunications companies and ISPs with regard
to them being
confused about their responsibilities under the Act.
The law is in quite
stark contrast to the former legal regime
in Australia, whereby ISPs were not compelled by any laws to retain personal data. They were
only obliged to give
“necessary assistance” to any federal, state or territorial law enforcement agency as part of a
investigation – and only with an appropriate court order to do so.
certainly changed all of that for
Australians online or using their phones.
Digital Copyright Laws
Like most English-speaking common law countries, Australia has strong copyright laws in place.
Copyright is fully
embodied in the applicable provisions of the Copyright Act of 1968. The Act applies to certain
literary works, dramatic works, musical works, artistic works and other subject matter such as
recordings, broadcasts and published editions. The Act does not require the completion of
formalities (such as
publication or registration for a given copyright) in order to obtain protection in Australia.
is conferred outright and without prejudice to its owner.
At time of
this writing, Australia was still
assessing how to make changes to its copyright laws to accommodate the digital age, with this
being done at the
behest of the Australian Law Reform Commission (ALRC).
An important case
was that of Roadshow Films Pty Ltd v iiNet
Limited (2012) which concerned the liability of an ISP (iiNet) for the alleged copyright
infringements by its
customers with regard to using peer-to-peer file-sharing technology to upload and download films
copyrighted by the
plaintiff (Roadshow Films). The High Court found that the ISP was not liable, as it had not
expressly authorised the
copyright infringement of its users. Other cases have
been indecisive in
this regard. Greater clarity with regard to
digital copyright law is clearly overdue in Australia’s legal system.
Freedom of Speech and Censorship
Unlike many other countries, Australian does not have a Bill of Rights which guarantees the right
of free speech.
However, the Australian High Court has ruled that freedom of expression is implied in
given that the country was established as a democracy and that freedom of speech is therefore a
constituent part of
this form of government and was implied with its establishment.
the country has very strong, even
crippling, defamation laws, which can hinder freedom of speech. It has also shown a
preponderance to enact
censorship laws regarding issues of morality.
Australia seems poised to continue the curtailing of online privacy. Government actions and
legislation seem to lend weight to this concern. Equally concerning is that Australia still has
protected rights to privacy and freedom of speech.
Australia is not in a good place with regard to online privacy, as such, Australians cannot
afford to be complacent about their privacy in the digital realm.
Interested in other countries?
See our Comparison of Internet Privacy Laws