Software licences held to be “goods” under ACL

Software licences have been held to be “goods” under the Australian Consumer Law (ACL) by the Federal Court of Australia in Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196.  The case also clarified the position of “choice of law” clauses and highlighted the difficulties of contracting out of ACL consumer guarantees. [Read more…]

Are software developers liable for defects in their software?

The question of whether software developers are (or ought to be) legally liable for bugs, errors, security vulnerabilities, or other defects in the software which they develop, and the extent to which they are (or ought to be) liable for the loss flowing from those defects, is not a new one and has been the subject of significant legal and academic debate since at least the 1980s.  This article considers the liability of software developers in negligence and under the Australian Consumer Law (ACL), and also discusses whether insurance is available to offset these risks for the developer. [Read more…]

ACCC guidance for platform operators

With the advent of sharing economy platforms such as Uber and Airbnb no longer the exclusive realm of millennials, the Australian Competition and Consumer Commission (ACCC) has published a guide for Platform Operators in the Sharing Economy (Guide) to advise of their obligations in complying with Australian competition and consumer protection laws.

The Guide is aimed at operators who run online platforms that facilitate the connection of suppliers of goods and services with consumers who need short-term use of those goods or services. [Read more…]

Legal issues for data loss

It’s horrible for any organisation to contemplate the possibility of data loss.   Organisations collect and create a variety of data that includes personal, confidential and proprietary information (Intellectual Property).  In many instances, loss of this data can be terminal for the organisation.  Losses can be economic and reputational and can be thought of coming from two (2) distinct sources, external or internal.

[Read more…]

Data Breach Bill 2016 – considerations for data security

In recent times, high profile data breaches such as the 2015 Ashley Madison scandal, which saw the names of up to 900,000 Australian users published online, have shown the type of detriment that can be caused when personal information is compromised by a data breach.  Even icons of the Australian retail sector such as Kmart and David Jones have had customer data lost to hackers in 2015.  One year prior, Optus reported three (3) separate data breaches, with the security of the personal information of over 300,000 of its customers being compromised.  These are just a few instances which highlight the magnitude of the issue in Australia. [Read more…]

What is a Software Development Agreement?

A software development agreement (Software Development Agreement) is a contract where one party (Developer) agrees to develop a software application for another party (Client).  Concise drafting is key in Software Development Agreements to ensure that the resulting software meets the Client’s requirements and also does not allow for scope to the detriment of the Developer. [Read more…]

Is your confidential information really confidential?

The term confidential information is often bandied about in commercial transactions, however it is often inaccurately described.  Because of this, we are often asked to consider whether information that a party is considering disclosing as part of a commercial transaction is actually capable of being kept confidential. [Read more…]

Legal risks inherent in the In-App Purchase business model

In the post smart phone environment, software developers and publishers are increasingly providing end users (Users) with the opportunity to make micro-transactions (In-App Purchases) within their software (App). Under this business model, the publisher or developer offers their App, or at least a limited version of it, to consumers at no upfront cost. Users then may have the opportunity to make In-App Purchases using real world currency, such as:

  • a one off fee to access an advertisement free version of the App;
  • access to additional content within the App;
  • a digital currency for use within the App; or
  • consumable items such as extra lives or turns in games.

The In-App Purchase model has proven successful for many publishers, but as with all business models, it comes with its fair share of legal risk. [Read more…]

App developers must take care with Apple Developer’s License

Software Developers (Developers) who build iOS Applications (Apps) for use on Apple devices must adhere to strict requirements set by Apple.

[Read more…]

The increasing burden of data security

The consequences for an Australian business victim for a breach of cyber security are forecast to exponentially increase. In February 2015 the Parliamentary Joint Committee on Intelligence and Security (Committee) recommended the introduction of mandatory data breach notification scheme (Scheme) by the end of 2015.[1] Whilst the details of the incoming Scheme are currently scant, it is understood that the enacting legislation will have bi-partisan support in federal parliament. [Read more…]

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