Asic V Vizard Case Study: Business Data Privacy Violation and Prosecution Proceedings

Question

Task: What prosecution criteria were followed during the Asic V Vizard case study Data Privacy Violation Proceedings?

Answer

Introduction:In the ASIC v Vizard case study, ASIC announced that for the case formed against Stephen William Vizard on July 4th, 2005, community prosecution charges were put before the Tribunal. ASIC claimed that Vizard was responsible for a violation because he distributed sensitive business data as the firm's administrator, resulting in profit for anyone who could access it or himself.

While selling the stocks of 3 major publicly listed organizations which are: Sausage, Computer Share and Keycorp. ASIC has confirmed that Steve Vizard exploited Telstra's confidential data throughout the period from March to July 2000, ASIC asked for information and legal contracts and tenders in a media release relating to these 3 issues:

1. Admission of guilt that Vizard trampled the provisions of the Law on 3 separate occasions, through the use of content or facts of the company's management.
2. Penalties imposed onto him for abuse or violations of provisions and laws.
3. A suspension to be issued in his name which restricts him from to be a director in any organization for some time because of conscious disorderly conduct and insider trading.

Details of the case
In the case of ASIC v Vizard, The designation of Mr Vizard at Telstra Corporation Limited was a non-executive director. This designation gives him total authority over Creative Technology Investments Pty Limited (CTI) and the respective bookkeeper and the shareholders of this company. Brigham Pty Limited is a company to which Vizard was a shareholder along with his family which includes his wife and children. After this, Brigham Pty Limited gave a loan to CTI. This amount came from Mr Vizard or one of his associates with the motive of laundering money and duping the profits of CTI which came from their stocks. Brigham and CTI shared this profit among themselves in the ratio of 90% and 10% respectively. In the last month of 1999, a sum of $1 Million was presented from Mr Vizard to Brigham Pty Ltd along with the company owned by him. With the help of this money, Brigham Ltd was planning to buy a shared portfolio. This transfer of funds gave Vizard access to confidential information as Telstra's director and led him to believe that this type of transactions can help him further in the future [1].

Next, in Sausage Software Limited and Solution 6 Holdings Limited, Telstra kept a strategic holding of about 10 percent. A private conversation took place amongst Telstra, Solution 6 and Sausage on a conceivable alliance involving Solution 6, Sausage Software and Telstra's acquisition of major concern in the merged company (Solution 6 transaction). Following this conversation, messages were exchanged between BOD and Mr Vizard about the proposed Solution 6 transaction. It was certain that the stock value of the identified organization will rise once the merger became known to the general public. Mr Lay made in charge of buying the Sausage Software Ltd.’s shares by Steve Vizard. Sausage software's stock price went dramatically high and CTI had achieved a huge sum of approximately $140,000 which was an unrealized gain. After only 7 days since the release of the information, Mr Lay traded a small portion of the shares for a significant profit, as advised by Mr Steve Vizard. ?After that a loss of incurred by CIT which led to a significant drop in the stock value of Sausage Software LTD. As a result, CTI lost $150,720 on Sausage software trading which a promising software company. [1]

Next, CTI then purchased the stocks of Computer Share Ltd. Which granted them 15% ownership of the company. Justice Finkelstein confirmed that Telstra's CEO told the directors that they needed to finance the Solution 6 company's acquisition and that it will be doing this by auctioning Telstra's equity in Computer Share. Mr Vizard had thought that a drop in the value of the stock would naturally benefit from the selling of Computer Shares stocks, after which Lays was persuaded Stephen Vizard to sell the shares from which CTI could prosper. On July 13, 2000, Telstra announced that they were ready to divest their stocks in a public announcement. Telstra eventually declared regarding the disinvestment of its stock in Computer Share, and the market value of the stocks of Computershare plummeted, but then it managed to retain the very same amount.

In the following phase, Telstra purchased a concerned firm called Keycorp Limited. Justice Finklestein further stated that the CEO of Telstra told the board to buy a certain portion of Keycorp stocks, which would result in price increases, and then Mr Lay was instructed by Stephen Vizard to purchase a percentage of Keycorp stocks. This increased the price and they would succeed in their plan to eventually sell Mr Lay's shares and make a profit. In the pocket of CTI, the gross amount of profit was $38,364. They would still have about 15,937 of KC stocks which are worth just $1.68 [3].

Lawful Concerns
It was noted that after the situation that the director would share sensitive information to take advantage of any opportunities. Vizard owned Telstra's management and utilised his position for unlawful gains, he rendered ill-suited news and persuaded other individuals to buy and sell shares or speculated based on the data. This deceptive usage data gave CTI an edge and through the corporation. The other aspect Court concluded in the ASIC v Vizard case is that basic discouragement of behaviour must be calculated in regulating punishments. Another issue would be that the loss of profitability was owing to depreciation in the stock market valuation. If there was actual confirmation for fraud or cooperation with the supervisor, a' reduction' in fines would be acceptable. It was proposed by ASIC that a fine of $130,000 would be acceptable for each offence. The court-mandated Mr Stephen Vizard to pay a sum of $390,000 in fines, but it also concluded that the larger amount would still not change much. Judge Finkelstein's competence is very well established to have been in place for more than 13 years for the existing severe punishment amount of $200,000 for every conviction and might require Parliament's charge. Section 183(1) violations are statutory fines of up to $200,000 per infringement and an administrative suspension order as long as the court rules. The ASIC claimed also that there should be provisions for any damage that was inflicted; in case there was any deception or accusation for breach of 1317E, there would be criminal culpability [3].

ASIC v Vizard: Verdict made by the Court
Justice Finklestein submitted his verdict on the repercussions to be enforced on Mr Stephen Vizard on 28 July. Section 183(1) of the Act states that any individual who receives information because he or she is a director or an associate of a company, shall not exploit the facts to:

• For a potential self-gain.
• Helping any other individual
• Have weakness of the company

It states that any individual, who gets some data because they were in any of the firm's senior positions, shall not utilise it to exploit any individual or the organization. The data mustn’t ultimately be published. As in this particular case, Mr Vizard received confidential information while operating as Telstra's boss. In heart of the matter, it can be concluded that Stephen Vizard accessed confidential information by using his designation as Telstra's director, which he exploited to purchase stocks in 3 different IT firms in which Telstra had also shown interest. Steve Vizard eventually plead guilty on all accounts of his breach. A statutory fine amounting to $3,90,000 was issued, $130,000 for every infringement. According to Section 283 and 183, any conduct which not challenging or extreme is forbidden. Subsequently, he was barred from holding any directorial position in any firm for the next decade. Compensation would also have been provided for any damage that was suffered. Furthermore, there could be a criminal cause of action if any deception had prevailed. Whereas the judge determined that in a situation wherein an accused acknowledges any wrongdoing and cooperates, it will lead to a reduction in the penalties incurred. The judge looked at ACIS v Vizard's proceedings in great detail and was quite descriptive of Vizard's conduct. Both Vizard and ASIC seemed manipulative and a serious breach in faith had incurred. Also, Vizard understood what he had been undertaking and he realized that his actions were improper. We conclude that Vizard was not charged with criminal felony charges. In summary, we can agree that Vizard exploited confidential information that he acquired from his role as Telstra's director to purchase stocks in 3 IT firms that Telstra was also interested in. The maximum fine for each violation of the 3 contracts could have been $600,000, which is $20000 per infringement. Justice Finklestein went through the ASIC proposal, but he also made an arbitrary decision as a judge to double the recommended sanction of the ASIC for a 5-year prohibition order and placed a 10-year prohibition order in its place [4]

Conclusion
Ultimately, we notice that in ASIC v Vizard the reputation of ASIC has manifested harm given the wide variability and condemnation of their practices. There are more lessons to learn about ASIC than the lessons we can grasp from the case of Vizard. Two blunders had been made in their press statement announced on July 4, 2005. The information is scarce in regards to the facts not revealed. Also, there was no comment on the DPP's crucial role. It was the DPP, that made an effective assessment of the findings of Australian Securities and Investments Commission’s investigation of Stephen William Vizard's holdings of transactions and expressed the view that there had been a shortage of evidence to showcase illegal actions and activity carried by an insider throughout transactions. This data had not been issued to the press. Furthermore, news outlets were stripped of any details about the legal avenues given to ASIC as well as the DPP for taking measures regarding Vizard. On July 28, DPP and the ASIC had strong public and media pressure to concentrate and emphasize their decision-making on the Vizard dispute. The DPP released a media statement. A lot of inaccurate information was published in the press, which was dismissive of ASIC's views, and they were generally disesteemed. ASIC v Vizard's scenario was widely considered to be a case of trading inside information, and Vizard was amenable for action, however, the press published the contrary. Finally, it could be concluded that ASIC could have avoided condemnation if accurate information had been released since its inception. The DPP conducted an effective analysis about the amplification of Australian Securities and Investments Commission's investigation of Stephen Vizard's portion of transactions and shifted the perception that there had been a lack of evidence to take an illegal insider trading suit. Justice Finklestein increased the restriction to double the previous number demanded by the ASIC, which brought into light the clemency took by ASIC in the case. After evaluating the facts and evidence, the court ruled that the actions of Mr Stephen Vizard were in fact "dishonest". Nonetheless, the facts used would show us the answer if it is a matter of criminal proceedings or civil proceedings. The DPP indicated that Vizard's case wasn't a matter of litigation where it had been had to be restructured by statute. It was a case of leaking inside information that was so preventable by digging into the situation. The court then noted that perhaps the punishment levied is not valid and unsatisfactory to the gravity of the crimes and that Parliament should also have complete authority to extend this, and Justice Finklestein was certain that the government might recognize the very same thing. The court and the community have put forth some important arguments regarding the Asic V Vizard case, which was assigned to the Australian Securities and Investments Commission, and therefore must not be submitted to any of the courts for evaluation [5].

References
[1] J. Mayanja, "Enhancing private enforcement of Australia's corporate continuous disclosure regime: why unshackling litigation funders makes eminent sense," Australian Journal of Corporate Law, vol. (1), no. 25, pp. 48-69, 2010.

[2] L. teacher, "Director Duties," 2005. [Online]. Available: https://www.lawteacher.net/free-law-essays/business-law/director-duties-in-asic-v-adler-business-law-essay.php. [Accessed 27 November 2016].

[3] ASIC v Vizard (2005)145 FCR 57, 2005.

[4] H. Smith, " Australia's Company Law Watchdog," ASIC and Corporate Regulation, 2015.

[5] ASIC v Stephen William Vizard [2005] FCA 1037, 2005.

[6] I. Ramsay, "Melbourne Law Masters," 2000. [Online]. Available: https://law.unimelb.edu.au/__data/assets/pdf_file/0004/1709905/90-Steve_Vizard__insider_trading_and_directors__duties1.pdf. [Accessed 27 November 2016].

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