‘Social Media and the Law’ – a self-indulgent book review

SocialMediaWhen I was informed about the existence of this book, my ears pricked up given my deep interest in social media. That interest is no secret, and a complimentary copy of the book soon landed in my in-tray courtesy of Callidus PR.

I noticed that this book is also available in digital format from LexisNexis, but even though I’m very digital, I still love an old-school, hard copy book. There is something about the scent of a book my iPad is yet to be able to replicate, even though it is very handy in holding an incredible amount of literature at my fingertips 24/7. That’s enough of me carrying on about my iPad and the scent of books in general; it’s time to discuss this book. I should also note that I decided to make this discussion more than just a review of the book and, where appropriate, I also included some of my observations about the subject matter of the various chapters.

… a general introduction is followed by seven distinct social media focused discussions …

When I picked up the book, I immediately flipped it around to look at the back cover. ‘A definitive reference guide to social media and the law,’ the bold text stated. ‘A little boastful,’ I thought to myself, but let’s see …

The book is divided into eight chapters: a general overview is followed by seven distinct social media focused discussions on employment, privacy, defamation, matters falling within the jurisdiction of the Australian Competition and Consumer Commission (ACCC), copyright, litigation and the criminal law, each written by a specialist.

It’s rare when the introductory chapter to a legal textbook is not just informative, but also entertaining. In this case the fascinating subject matter certainly helps. The writer of the Social Media and the Law chapter, Joseph Collins, makes a valiant effort to introduce the dauntingly complex history of social media, outline where it’s currently at, and explore its effects and the issues it poses legally, and socially, in … twenty-five pages.

… social media socialised mass communications and brought the ‘common person’ face-to-face with far-reaching legal considerations and consequences …

The writer highlights that even though social media is fast changing and agile, at its core it is in fact ‘capable of dissection and discussion in the context of existing law’. The concept of applying existing legal principles to this new medium arches across the book and shows that the law is indeed agile and flexible enough to deal with most of the issues that are likely to arise in this context, with perhaps a little informed and targeted assistance from lawmakers.

The introduction helps the reader in crystallising the significant realisation that social media socialised mass communications and brought the ‘common person’ face-to-face with far-reaching legal considerations and consequences, previously only faced by large corporate entities with legal departments ready and qualified to address such issues.

… the Social Media and Employment Law … chapter should be compulsory reading for all employees …

I particularly enjoyed the Social Media and Employment Law chapter of the book (Chapter 2), by James B Mattson. In my view, this chapter should be compulsory reading for all employees, so they can understand the far-reaching implications of social media in the employment relationship.

And there are also nuggets of wisdom for employers on how to manage the subject of social media in the employment context, through considered strategy, appropriately worded employment contracts and social media policy, and training.

This chapter also highlights the difficulty of writing a legal textbook in an environment where the law is subject to constant evolution. For example, paragraph 2.19 of the book notes that the implied term of mutual trust and confidence in employment contracts may soon become a part of Australian law, and that a High Court appeal was on foot at the time of writing. As many of my readers would probably be aware, the High Court of Australia handed down its judgment in Commonwealth Bank of Australia v Barker [2014] HCA 32 on 10 September 2014 and rejected that such a term is implied into employment contracts in Australia.

One of the most illuminating section of the chapter is the thorough collection and brief, easily digestible summary of unfair dismissal cases in the social media context. They are not just fascinating reading, given their subject matter, but provide an excellent oversight of this area of the law, as it currently stands.

The chapter also does an excellent job in analysing the issue of ownership of LinkedIn and other social media accounts and connections in the business and professional context, which does give rise to disputes from time to time.

… the proliferation of social media and its pervasive effect on privacy …

In the chapter dealing with Social Media and Privacy (Chapter 3), by Gabriella Rubagotti, the lack of dedicated protection of ‘privacy’ per say in Australia is highlighted. ‘Privacy’ is indeed an elusive concept. It represents an interesting conundrum, especially in the age of social media where privacy is appearing to go the way of the dinosaurs … In my personal experience, some young people who grew up with social media don’t even understand the concept of privacy as we ‘oldies’ know it.

We do have a federal Privacy Act and various state-based statutes dealing with the protection of personal information, but those legislative provision are concerned with ‘information’ privacy.

There are also fascinating discussions here about the unjustified invasion of privacy, as that legal concept is traced through Australian case law from Church of Scientology v Woodward (1982) 154 CLR 25 to Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, and the international judicial approach of managing privacy in the social media context.

Given the proliferation of social media and its pervasive effect on privacy, I’m confident that the tort of privacy will be a significant area of judicial consideration and development in the coming decade and beyond, unless the very concept of privacy fades into obscurity. After all, as The New York Times put it recently, we want privacy, but we can’t stop sharing.

While this chapter raises more questions than it can answer, this is to be expected given the evolving nature of social media, it does set out the fundamental issues as they currently stand.

The book also devotes some time to discussing the various explorations of the subject by the Australian Law Reform Commission (ALRC), including their latest work on the protection of privacy in the digital era. It’s worth noting again that in this fast paced environment paragraph 3.110 notes that this latest report was yet to be tabled at the time the book went to print. However that report is now available and, among other things, it recommends that a statutory cause of action for serious invasion of privacy to be enacted by the Commonwealth.

The Social Media and Defamation Law chapter … highlights … to … bloggers, tweeters and social media posters – their incredible potential exposure to action for defamation.

The Social Media and Defamation Law chapter (Chapter 4), written by Patrick George, is an interesting read and highlights what I suspect would come as a great surprise to most bloggers, tweeters and social media posters – their incredible potential exposure to action for defamation.

Anyone who ever retweeted or shared a post on Facebook and other social media platforms would be well advised to read this thorough analysis of the application of defamation law to social media, especially as illustrated at paragraph 4.65 and, later, at paragraphs 4.119 to 4.146 with the ‘twibel’ case of Lord McAlpine v Bercow [2013] EWHC 1342:

‘Leaping to conclusions is an everyday event. We typically form conclusions without having all the facts and reach unwarranted conclusions when reading the news or observing others’ conduct. One make inferences and assumptions in forming such conclusions, but when expressing a conclusion on social media, it must be understood that it is a risk with potentially serious consequences. If the conclusion is wrong, a mistake has been made and there is likely to be no defence to the defamatory imputation published.’

The discussion of these matters has also reminded me of an article that was published some time ago by The Conversation, but I find relevant in this context: ‘No, you’re not entitled to your opinion‘.

This chapter also brings forth one of the most troubling issues with social media: anonymity and the highly corrosive effect it appears to have on the common decency of some social media participants … ‘trolls’. In my view, there has been a lack of serious leadership in addressing, dealing with, and managing the issue of online trolling, even in circumstances where the behaviour in question has arguably crossed over to conduct that’s criminal in nature. But more on that later.

There is also a particularly valuable lesson contained in paragraphs 4.70 to 4.74, for those who are forced to take action over social media commentary about them, to consider applying for a protection order of anonymity, otherwise their case can end up splashed all over the regular media as well, amplifying the damage.

The chapter also contains an excellent discussion of the role and potential liability of social media platform providers, through the cases of Google Inc v ACCC [2013] HCA 1, Trkulja v Google Inc LLC (No 5) [2012] VSC 533, and the UK case of Tamiz v Google Inc [2013] All ER (D) 163 (Feb).

… the intersection of Social Media and the ACCC …

I presume in-house counsel will love the chapter dealing with the intersection of Social Media and the ACCC (Chapter 5), penned by Stefanie Benson, and may even share selected highlights with their marketing, sales and social media teams in order to hammer home certain aspects of the applicable law in a straightforward manner.

This chapter also reflects the fact that social media is no longer for just gossip, baby photos and bragging about how fantastic your life is, but it has also become a serious business tool. And just as individuals are learning of the many pitfalls of social media use, businesses are also on a steep learning curve. Over the years many have stumbled on that learning curve and not just from a strictly legal perspective

Perhaps one of the most significant developments in this sphere is the emerging legal recognition of the responsibility of businesses for user-generated comments appearing on their social media pages, at least in circumstances where they have a reasonable degree of control over the platform, including Facebook. Quite a task, considering the 24/7 nature of social media, the potential number of active participants, and the indications from the ACCC that large organisations are expected to act on third-party posts considered misleading and deceptive promptly. Enough to keep any in-house counsel up at night …

Not surprisingly, the case of Google Inc v ACCC [2013] HCA 1 is subject of further detailed discussion in this context.

I have no doubt that the interaction of social media and our competition and consumer law will explode into the courtrooms in the coming decade.

Given that the very foundation of social media is user-generated content which is copied and shared … the copyright status of that content is of significance.

I don’t envy the writer, Justine Munsie, of the chapter that deals with Social Media and Copyright (Chapter 6). Given that the very foundation of social media is user-generated content, which is then copied and shared, often thousands of times in just minutes, the copyright status of that content is of significance. Although, at least in the context of ‘everyday’ social media users, it’s arguable that the terms and conditions of social media platforms enable such users to link, share or retweet materials posted by other users or, even if such a license were not available, there is likely to be an implied license to do so, given the inherent nature of social media platforms.

Copyright law applies to social media; thus every copyright question in respect of social media is to be answered by the application of existing copyright law, in conjunction with the respective terms and conditions of each relevant social media platform, which usually include very broad non-exclusive licenses in favour of the platforms to do just about anything they want with content posted by a user.

Despite the Wild West nature of social media, the writer reminds us that ‘[a]uthors of social media content do not lose or assign their copyright merely by posting their content online.’ A reassuring reminder for all social media participants.

Interestingly, a discussion of the Federal Court of Australia’s decision in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984 indicates that under Australian law it may be difficult to establish copyright in Twitter posts. However, given that case dealt with newspaper article headlines and that each such matter will turn on a factual evaluation of the subject matter of the claim before the court, it’s difficult to state with certainty that there would be no circumstances in which a tweet could be found to have a literary character and meet the threshold of originality. The writer does in fact note the Australian Copyright Council’s ‘micropoetry’ concept as one potential exception.

The chapter also highlights that even though you retain copyright in posts capable of attracting copyright, the fair dealing exception in our copyright law will still enable the media to use that compromising photo you posted to Facebook, to accompany a news report.

The chapter goes on to set out a handy summary of the reform recommendations of the ALRC to Australia’s copyright law and, in this context, the issue of ‘orphan works’ is worth a specific mention. ‘Orphan works’ are copyright materials where a copyright owner can’t be identified by someone who would like to use the work, usually in a commercial context. As the writer of the chapter notes, this has been seen by many as a problem, and a failure of the current copyright system. Law reforms currently proposed are designed to facilitate the easier use of such materials both in Australia and the UK.

While I empathise with the frustrations caused by orphan works, I would urge both caution and strict conditions on the exploitation on such works, including the full and fair compensation of copyright owners if and when they are eventually identified in such circumstances.

Social media in a litigation context presents a myriad of issues, from the identity of users to preserving evidence, and from the ability to gather, to the authentication and admissibility of, evidence.

The next chapter deals with Social Media and Litigation (Chapter 7). The writers, Gavin Stuart and Monica Allen, note that probably ‘few users give any thought to the fact that their social media posts may one day be used in a court of law.’ While I agree with this statement, I am also shocked by the complacency and ignorance it implies. I still remember one of the first few articles I read on this very subject, back in … 2009, warning users of the inherent litigation risks in social networking. It is also of significance, and perhaps overlooked by social media users, that privacy settings, no matter how strict, will not necessarily prevent a court from making an order for the disclosure of information posted to social media.

It was refreshing to read in this chapter a relatively straightforward, yet informative, explanation of the domain names system, IP addresses and proxy servers. Often these concepts are put forward either too simplistically, which renders the information meaningless, or in an overly technical language, making them inaccessible to lawyers. The writers strike an excellent balance with this difficult subject matter and I assert that every litigator should have a baseline understanding of these concepts, as a matter of basic professional competence in 21st century legal practice.

Social media in a litigation context presents a myriad of issues, from the identity of users to preserving evidence, and from the ability to gather, to the authentication and admissibility of, evidence. The use of evidence obtained from social media is likely to become more pervasive as lawyers discover a treasure trove of information posted by users, who later find themselves party to court proceedings. However, as the writers warn, the ‘dynamic and ever-changing nature of social media sites, the often anonymous nature of profiles and posts and the relative ease in which they can be compromised or hijacked can make authentication more challenging than other forms of documentary evidence.’

The writers highlight an added layer of difficulty facing Australian lawyers, whereby most, if not all, major social media platforms are located in foreign jurisdictions, which means that obtaining information from them may come with an added layer of cross-jurisdictional complexities, including the application of foreign laws.

This chapter also contains one of the best summaries I have seen on the subject of substituted service via social media, although to date the occurrence of service by this method has been limited, and the preservation, sourcing, authentication and admissibility of social media evidence. These are areas of litigation practice which are likely to grow in significance over the coming years and decades.

Sadly, social media, being representative of the whole spectrum of human nature, has had its fair share of controversies, including criminal conduct.

The final chapter of the book looks at Social Media and Criminal Law (Chapter 8). Sadly, social media, being representative of the whole spectrum of human nature, has had its fair share of controversies, including criminal conduct.

The writer, Patrick George once again, lists many disturbing social media stories that involve appalling verbal abuse, threats of rape and violence and even suicides linked to online harassment. Arguably, anonymity plays a big role in this kind of behaviour and these stories are a graphic illustration of the ugly underbelly of social media. Incredibly, some people seem to operate under the very mistaken or ignorant assumption that social media is beyond the rule of law or the belief that anonymity will protect them from the consequences of their actions.

As the writer points out ‘[o]nline behaviour is subject to state and federal criminal laws,’ even if that appears to be a surprise to some social media participants.

This chapter provides and excellent summary of the various punishable offences that may occur online, from internet specific and general computer related offences under the Cybercrime Act 2001 (Cth) and Criminal Code Act 1995 (Cth), to menacing, harassing, causing offence, threatening or blackmailing under the Criminal Code Act, and a range of other offences that are subject to prosecution under various state and federal statutes, including criminal defamation, cyber stalking and phishing.

The writer also highlights that even careless jokes and hoaxes could fall foul of criminal statutes with serious consequences for social media users, and illustrates the point with the now infamous UK case of Chambers v DPP [2012] EWHC 2157 in which Mr Chambers ‘threatened’ to blow ‘the airport sky high.’ Eventually, Mr Chambers was ‘let off the hook’, but not before being arrested, charged and the case going all the way to the High Court of Justice.

… every employee, employer, tweeter, blogger, and social media poster should have on their bookshelves

This book is more than a legal textbook. It’s a common sense, easily digestible, yet thorough practical legal guide to social media that every employee, employer, tweeter, blogger, and social media poster should have on their bookshelves … just in case.

In conclusion, the back cover was not at all boastful; this book is truly a ‘definitive reference guide to social media and the law’ … at least until the next edition comes out. Congratulations to all the writers and Patrick George in particular, who was also the general editor of this wonderful book.

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