The introduction of the national broadband network (NBN) and online content are about to change the legislative landscape of media law, according to experts who spoke to Lawyers Weekly.
Patrick Fair, a partner at Baker & McKenzie who is a part of the firm's NBN group, said current media regulation was not technology-neutral and that a significant overhaul will be required due to the introduction of the NBN.
"We are still waiting for the Government to attack the question of how you might manage a transition of the existing media licensing regime to something which is up to date when everybody has optic fibre broadband in their homes ... [considering] the relatively unregulated nature of streamed services on the internet versus the regimes that are imposed on subscription television and free to air television," he said.
Currently, a commercial television broadcaster cannot have an audience reach of more than 75 per cent of the Australian population.
Mary Still, a partner at Clayton Utz who specialises in litigation relating to infringement of trademark and copyright, agreed that the law would need to catch up with the way people are viewing content online, which will be enhanced with the introduction of the NBN.
"At the moment, the Broadcasting Services Act only deals with free-to-air television and subscripted television and the national broadcaster and merely ignores the internet and ignores the contribution the internet makes in the way we live our lives and the way we make use of it. I think that is going to have to change," she said.
Khai Dang, a partner at Blake Dawson who works on the content and regulatory side of telecommunications and broadcasting, added that media organisations were still struggling to find successful business models for the internet.
"While there are some wildly successful companies out there - such as Google who actually reported a profit in the last quarter - there are many organisations who are still posting content for free, basically, or generally at some sort of a loss and the struggle for them is how to recoup the cost of that and create a new business model for online content," he said.
"They have to compete with content that people post through social networking sites - such as the Kevin and Jill's wedding video and that is now rating through the internet at this moment - and that's a homemade video of someone's wedding and ... it's attracting eyeballs."
Sophie Dawson, also a partner at Blake Dawson who specalises in defamation and copyright litigation, said that the question of whether a cause of action exists for privacy and in what circumstances is also a big issue facing the courts and regulators.
"That affects two categories of people, firstly, the traditional media and, secondly, all of us with our Facebook sites. We're putting up photos of friends and doing other things which potentially contain their private information," she said.
"There is mixed case law about whether there is a cause of action for breach of privacy in Australia - it could be a common law or equitable cause of action and the ALRC [Australian Law Reform Commission] has recommended that there be a statutory cause of action."
- Sarah Sharples
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