The ban on excessive payment surcharges extends to Australian small business

From 1 September 2017, Australian small businesses will be prohibited from swiping customers with excessive surcharges who pay credit, debit or prepaid cards. These laws have applied to large businesses since 1 September 2016.

large business is one who (together with any related bodies corporate) meets any two of these three criteria:

  • Consolidated gross revenue of $25m or more
  • Consolidated gross assets of $12.5m or more
  • 50 or more employees

From this September, all surcharges for using electronic payments cannot exceed the ‘cost of acceptance’, being the costs of processing the payment (bank fees and terminal costs) but excluding internal costs such as labour and electricity.

The ACCC also has powers to enforce the ban. The ACCC can issue a surcharge information notice that compels a business to provide evidence of their costs of processing a payment. If the ACCC finds a business has breached the ban, it may issue an infringement notice or take court action and seek pecuniary penalties of up to $1.1m per contravention.

The ban does not affect the existing requirements for businesses to state the total price when presenting prices to consumers (refer to previous ‘drip pricing’ actions) and to not otherwise make misleading claims about prices.

More on the ACCC website here. An interesting transcript from the Reserve Bank of Australia website on Card Payments and the Retail Sector here.

Get in touch here


Photo credit: Nick Youngson under a Creative Commons 3 – CC BY-SA 3.0 licence.


The Australian Federal Court makes the first pirate site blocking decisions under the Copyright Act

On 15 December 2016, the Australian Federal Court handed down its judgment in Roadshow Films Pty Ltd & Ors v Telstra Corporation Ltd & Ors and Foxtel Management Pty Ltd v TPG Internet Pty Ltd & Ors.

These are the first decisions where an internet service provider (ISP) can be compelled to block access to overseas websites which facilitate copyright infringement. Section 115A provides that a copyright owner may apply to the court for an injunction against a carriage service provider to take reasonable steps to disable access to an online location outside Australia.

The section enables the Federal Court to grant an injunction requiring an ISP to block a website, provided that three conditions are satisfied:

  1. that the ISP provides access to an online location outside Australia;
  2. the online location infringes copyright, or facilitates an infringement of, copyright; and
  3. the primary purpose of the online location is to infringe or facilitate the infringement of copyright (whether or not in Australia).

Roadshow Films, along with a number of film companies such as Disney, Universal Studios, Twentieth Century Fox, and Warner Bros., applied to the Federal Court in early 2016 for a section 115A injunction against SolarMovie, an overseas website providing unauthorised online streaming of films and TV shows.

The case was filed against a number of Australian ISPs including Telstra, Optus, TPG, and iiNet.

Foxtel Management also filed its separate case against the same ISPs, applying for a section 115A injunction against websites The Pirate Bay, Torrentz, isoHunt, and TorrentHound.

The two cases were heard during 2016, with much of the discussion around the costs of implementing a block against the websites, and whether the costs should be borne by the ISPs or the applicants.

The Federal Court handed down a single judgment for the two matters, ordering that:

  • ISPs must take reasonable steps to disable access to the named websites, and reroute any connection attempts to a webpage explaining that access has been disabled by court order for facilitating copyright infringement;
  • the injunction be subject to court oversight, including allowing the operators of the blocked websites be permitted to apply to vary or stop the injunction if they so wish; and
  • the applicants pay a portion of the ISPs’ compliance costs, based on the estimation of Optus ($1,500) and TPG ($50 per domain name), rather than Telstra’s estimation of some $10,000 in set-up costs.

The injunctions are to last for three years, and may be extended upon application from the content-owners. The ISPs have 15 days from the date of decision to implement the site blocks.

A third section 115A case continues, filed by Australian music labels and APRA|AMCOS who seek to block access to the website KickAss Torrents.

Decision here.