The Internet Does Not Forget

06 Apr The Internet Does Not Forget

Internet usage has grown exponentially since it was fully commercialized in 1995 with an estimated 4.3 billion internet users in the world. The internet has permitted the growth in social networking sites, such as Facebook, Twitter and Instagram. The ease at which users of social media can publish material and the ease at which that material can be disseminated can give rise to significant legal consequences which no one considers before they press the “Post” button. As a result, there is a growth in defamation actions arising from Facebook posts and “tweets”.

It has also permitted the explosion of electronic commerce with Amazon and eBay, which are rapidly putting pressure on brick and mortar businesses. This has made it easier to source counterfeit, unlicensed and infringing material from online e-stores.

With the transitory nature of the internet, many people think that by pressing “delete” all traces of any incriminating material would cease to exist. Unfortunately, this is not true and once material has been published on the internet, it can be found if you look hard enough for it.

The recent case of Pinnacle Runway Pty Ltd v Triangl Limited [2019] FCA 1662 (Pinnacle), the Federal Court of Australia considered the admissibility of screenshots of webpages advertising the sale of women’s apparel obtained from the “Wayback Machine” in a trade mark action.

The “Wayback Machine” is a digital library of the Internet Archive, a not-for-profit organisation, which created and operates the website at http://web.archive.org and purports to archive pages of the internet such that they can later be accessed through a search functionality. The “Wayback Machine” functions by downloading all publicly accessible websites and archiving them to permit users to see archived versions of websites at specific points in time.

Whilst parties have previously sought to use historical versions of webpages sourced from the “Wayback Machine” in proceedings, such as in E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934 and  Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474, that evidence was ruled to be inadmissible hearsay.

However, in Pinnacle [104], Murphy J observed that in each of those cases that evidence was ruled as inadmissible hearsay because none of the parties in those proceedings adduced any admissible evidence as to how the “Wayback Machine” functioned.

In Pinnacle, the applicant adduced evidence from the office manager of the Internet Archive, which permitted the Court to find that the archived websites found on the “Wayback Machine” were automatically populated without any human intervention and was not inadmissible hearsay under section 59 of the Evidence Act 1995 (Cth) (Act). In other words, the archived websites are not previous representations made by a person and not inadmissible hearsay.

Further, in Pinnacle at [99] to [100], Murphy J held that the archived websites from the “Wayback Machine” can fall within the business records exception in section 69 of the Act:-

99. [99] Selling goods or services online is now one of the most common methods by which retail commerce is undertaken, and the terms of the transaction are those set out on the website of the business. The part of a business website which offers a particular product for sale under a product name, with a product description and at a specified price is more than “a flyer or a media advertisement or a website publication extolling the virtues of the business”, to use Sperling J’s expression.  It sets out the essential terms of the proposed transaction, which will be completed if the consumer clicks on another button on the website and provides his or her credit card details.  If there is any dispute between the trader and a consumer in relation to the product sold through the website or its price, that part of the website will be central in the determination of that dispute.  In my view it is appropriate to treat the content of a webpage that sets out the product name, description and price as a business record.  Except perhaps in circumstances of fraud or misleading or deceptive conduct, of which there is no suggestion in the present case, it is hard to see why a business website would offer a product for sale under a product description and name and at a specified price unless that was actually the position.  Such material is likely to be reliable
100. [100] In my view the type of screenshots in issue in the present application fall within the “business records” exception to the hearsay rule in s 69. They either are or form part of the records belonging to or kept by the relevant fashion house or online retailer in the course of or for the purposes of its business, or at any time was or formed part of such a record.  They contain a previous representation as to the product name, description and price made or recorded on the webpage in the course of or for the purposes of that business, and it is appropriate to infer that information was put on the website by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or was made on the basis of information directly or indirectly supplied by such a person.

The importance of the decision in Pinnacle is that evidence of infringement of intellectual property rights in Australia which have been archived by the “Wayback Machine” can be used as admissible evidence in any enforcement proceedings against a respondent who had infringed your intellectual property rights.

For example, in matters relating to the sale of items or goods which infringe a parties intellectual property rights, an applicant will usually only have a test purchase and limited information about the commencement of the infringing conduct. The Court’s findings in Pinnacle will now permit an applicant to use the “Wayback Machine” to identify prior infringing sales from archived copies of a respondent’s website. That evidence will be admissible as an exception to the hearsay rule as a business record.

It goes to show that once material has been published on the internet it will never truly disappear. The Court’s findings in Pinnacle adds an important tool to an owner of intellectual property rights to police and enforce their rights.

Harris & Company are experienced in the enforcement of intellectual property rights in Australia, including copyright, trade mark and patents and act for a number of software developers in Australia and New Zealand.

For further information or queries relating to this article, please contact Grant Hansen or Alvin Ng on +61 2 9261 8533.

This article is intended to provide general information on the identified legal topics and does not constitute legal advice and should not be relied upon as such.