Corporate information and the law

Description

Full Title Copyright Foreword Preface Table of Cases Table of Statutes Table of Contents Part 1 Overview Chapter 1 Introduction to Corporate Information and the Law Overview Exponential growth in information Value of information Information law as a discrete area of study The domain — ‘corporate information’ The structure Part 2 — Rights in corporate information Part 3 — Limits on information sovereignty Part 4 — Information security and management Conclusion Part 2 Rights in Corporate Information Chapter 2 Copyright in Corporate Information Copyright protection of corporate information Theoretical underpinnings of copyright law Criteria for copyright protection Literary works A ‘table’ as a literary work A ‘compilation’ as a literary work A ‘computer program’ as a literary work Material form Original works Originality in the context of subsistence Originality in the context of infringement Connecting factors Scope of copyright law protection for corporate information Evidence of authorship Reform Amending the author requirement A maker v author Duration Defences and remedies Conclusion Chapter 3 Alternative Approaches to Protecting Corporate Information Introduction The European Union’s Database Directive The purpose of the Database Directive The European Court of Justice’s interpretation of the database right British Horseracing Board case Interpreting the expression ‘obtaining’ Interpreting the expression ‘verification’ Interpreting the expression ‘presentation’ Interpreting the expressions ‘extraction’ and ‘re-utilization’ Summarising the impact of the ECJ approach to interpreting the Database Directive Applying the ECJ’s ruling in BHB to the facts of recent Australian cases Duration and remedies Conclusion Unjust enrichment Conclusion Chapter 4 Confidential Corporate Information Introduction The requirements Identifying the information in suit Standing Elements of the action for breach of confidence Element 1 — Necessary quality of confidence Element 2 — Circumstances importing an obligation of confidence Element 3 — Unauthorised use of that information to the detriment of the party communicating it Controlling the use and disclosure of information by employees Express confidentiality terms Defences Just cause or excuse Disclosures by whistleblowers Legal compulsion Liability and remedies Conclusion Part 3 Limits on Information Sovereignty Chapter 5 Disclosure and Investor Protection Introduction Periodic disclosure The financial report The directors’ report The auditor’s report Liability Liability of directors and officers Class action liability Conclusions — periodic disclosure laws Fundraising and disclosures Specific information General information — reasonable investor standard Case law concerning the reasonable investor test Defects in prospectuses Defences Due diligence defence for prospectuses General defence for all disclosure documents Conclusions — fundraising and disclosures Takeovers and disclosures Disclosure under a bidder’s statement Disclosure under a target’s statement Relationship between takeover disclosure laws and other information laws Defects in takeover documents Conclusion — takeover disclosures Product disclosure documents and disclosures Specific requirements General requirements Limitations on disclosure Liability for defective disclosure in a PDS Conclusion — product disclosure statements Continuous disclosure The Australian Securities Exchange (ASX) Listing Rules Listing Rule 3.1 Element 1 — Becomes aware of any information concerning it Element 2 — Reasonable person would expect to have a material effect on the price or value Element 3 — Entity must immediately tell ASX that information Exceptions under Listing Rule 3.1A Listing Rule 3.1A.1 — the five situations Listing Rule 3.1A.2 — The information is confidential and ASX has not formed the view that the information has ceased to be confidential Listing Rule 3.1A.3 — A reasonable person would not expect the information to be disclosed Listing Rule 3.1B — false markets The statutory rules Generally available information A person involved in a contravention Offences Due diligence defence Liability under other laws Conclusions — continuous disclosure Conclusion Chapter 6 Disclosure and Consumer Protection Introduction Misleading or deceptive conduct The statutory provisions Peculiar elements regarding the scope of s 1041H — the meaning of ‘in relation to’ Peculiar elements regarding the scope of s 12DA The ‘trade and commerce’ limit on the scope of s 12DA, ASIC Act and s 18, ACL Misleading or deceptive conduct — interpretation and application Meaning of ‘deceptive’ conduct Meaning of ‘likely to’ Objective test for assessing misleading or deceptive conduct Statements that are literally true State of mind Transitory effect and disclaimers Careless conduct Class of persons to whom conduct is directed A failure to disclose Opinions and forward-looking statements Advertising Social/digital media cases Contravention Conclusions regarding misleading conduct Specific consumer disclosure laws — regulating form and content Unfair contract terms Telecommunications Code Telecommunications Consumer Protections Code/ACMA Credit regulation Conclusion Chapter 7 Disclosure in the Context of Enforcement and Litigation Introduction Disclosure to regulators ASIC’s information-gathering powers ACCC’s information-gathering powers Disclosure in litigation Power to refuse disclosure The elements of the privilege Conclusion Chapter 8 Other Limits and Controls on the Use of Corporate Information Introduction Insider trading What prohibitions are contained in the law? Element 1 — Division 3 financial products Element 2 — What is information? Element 3 — What is ‘inside information’? Element 4 — Territorial connection Element 5 — Trading, procuring and tipping Exceptions Withdrawal from registered scheme — s 1043B Underwriter exception — s 1043C Legal requirement exception — s 1043D Communication pursuant to a legal requirement — s 1043E Chinese wall exception — s 1043F Own intentions/activities exception — ss 1043H, 1043I and 1043J Defences to criminal offences Defences to civil liability Penalties and other matters Directors and relevant interests — s 205G General law and statutory obligations concerning the use of corporate information Fiduciary duties Laws that prohibit the use of corporate information by directors, officers and employees Liability Market manipulation laws and other information offences Offences under Part 9.4, Corporations Act Market misconduct offences under Part 7.10, Corporations Act Price signalling laws Private disclosure prohibition General prohibition Penalties Conclusion Chapter 9 Collection, Use and Disclosure of Personal Information Introduction The collection, use and disclosure of personal information Who does the Privacy Act apply to? Australian Privacy Principles — APPs What is ‘personal information’? Information governance Collection of personal information Use and disclosure of personal information Direct marketing Cross-border disclosure Government identifiers Quality and security of personal information Access to and correction of personal information Privacy and credit information — the obligations of credit providers Who is a credit provider? Additional obligations Information governance Dealing with credit information Dealing with credit eligibility information Integrity of credit eligibility information Use or disclosure of false or misleading information Quality and security of information Access to and correction of information Enforcement Civil penalties Complaints and investigations Other powers of the Commissioner Conclusion Part 4 Information Security and Management Chapter 10 Digitising Corporate Records and the Law Introduction Converting paper documents to digital information — the main issues The principal document retention obligations Obligations under the Corporations Act The first ground — applying the plain meaning of the word ‘writing’ The second ground — the facilitative provisions contained in s 1306 of the Corporations Act The third ground — the facilitative provisions of the ETA Obligations under tax legislation Digitised documents and the laws of evidence Corporations Act — ss 1305, 1306 Uniform Evidence Acts What constitutes a document? What are the authentication requirements in relation to secondary evidence? Tendering/adducing documentary evidence Exclusionary rules Queensland, South Australian and Western Australian Evidence Acts Queensland — Evidence Act 1977 South Australia — Evidence Act 1929 Western Australia — Evidence Act 1906 Production and inspection of documents by regulators Redundant source documents Concealment, destruction, mutilation or alteration of books Conclusion Chapter 11 Cyber Security and the Law Introduction The threat environment within which corporations operate Cyber security and the law Privacy law The ‘reasonable steps’ test Consequence of a breach Directors’ duties Consequence of a breach Data breach laws Contract law Consumer protection laws Evidence Conclusion Bibliography Index