Online legal issues discussed with leading lawyer

Cybercrime legislation has partly caught up with identity theft and unauthorised transactions in recent years, but Australian banks also have a strong interest in moving transactions online as far as possible. Banks up to now have thus been willing to protect customers from such losses. But when and in what circumstances will banks’ patience with overwhelming phishing attack losses run thin? When will the consumer rubber really hit the road as banks decide to cease shoring up consumer confidence in the area?

In this interview, senior partner at leading Sydney law firm, Gilbert & Tobin, Peter Leonard, expresses his opinions about the area. Leonard says the day will come when banks decide to point to the customers’ terms and conditions and tell them they simply weren’t careful enough in giving out their information to the phishers.

The law is also trying to cover the increasing uptake of online chat forums, both on the Web and, nowadays, on 3G mobile networks where user-to-user contact (even in video form). There is a danger that mobile phones will be used by paedophiles and others for illegal activities involving children, but balanced against that is the desire to facilitate the public’s passion for chat and ingenuity in developing the area. The net result is that it is virtually impossible for the mobile operators to monitor the profusion of chat networks, so operators are resorting to self-regulation.

Peter Leonard explains that preventive techniques include facilitating “single button” exit from chatrooms, quick reporting based on referral to a human monitor after electronic monitoring for particular words flags a problem, and better verification procedures before users are admitted to adult chat rooms. He warns that if there is not quick and effective self-regulation, the Government may legislate to restrict the operation of chatrooms – which will cut against the revenue projections in today’s mobile service business plans.

Peter Leonard also talks about the issue of the digital divide in Australia and how to ensure adequate broadband access in remote areas. He analyses a recent spectrum swap deal between wireless broadband operator Unwired and pay-TV satellite operator Austar, explaining the deal’s advantages as a win for both the city and the bush. He says the deal was possible due to the ability of companies to freely trade spectrum in Australia, without regulatory approvals or Radio and Telecommunications Licences necessarily being a hindrance.

However, Leonard points that in the future it will be interesting to watch situations where, by contrast, regulatory assistance is required to make them commercially possible. For example, he surmises that Austar might roll out wireless broadband services in particular country towns and Telstra might elect to reduce its pricing in those country towns but leave its pricing for DSL wireline broadband in other country towns at relatively high levels. Leonard points out the regulatory question of whether there should be a restriction on such selective discounting by the wireline provider, in order to ensure wireless competition.

Peter Leonard says this will become particularly complicated as companies such as Austar, in future, seek to create innovative bundles of pay-TV services and wireless broadband access to compete against wireline-only service vendors. A similar tension will exist in cities, Leonard says, between bundlers of cable TV services and wired broadband services. The question is: how far and how often should our competition regulator intervene to assist new entrants to the marketplace?..

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