Although social media is fast changing, cases that arise from its use are handled by courts, tribunals and industry regulators in Australia as a matter of course, indicating that existing laws are, by-and-large, 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 future assistance from lawmakers).
With social media and the law intersecting with increasing frequency, below is a look at some interesting Australian examples of social media being considered in a legal context.
The cases below offer guidance to employers, employees and businesses on navigating social media and the issues that may arise from its use. Arguably, none of these lessons are groundbreaking but rather common sense:
- if you are an employer, make sure you have a social media policy in place and provide appropriate training to your employees on expected standards of behaviour in the workplace (including bullying, confidentiality, racism, sexual harassment, etc.) and have good processes in place to properly investigate and manage breaches and complaints by employees and, when you do so, treat them equally and fairly;
- also impress upon your employees that social media is a 24/7 medium without boundaries; it’s not the equivalent of a chat at the pub over a beer, and what you may post outside work hours from home, will very likely be accessed at home, or even at the workplace, by colleagues, customers and the public at large;
- if you are an employee, think before you hit post; use the common sense test: would you say what you are posting to that person if you were standing in front of them, or the world at large, and even if you think you would, consider whether it would be acceptable, appropriate or could it even be in breach of the law or your employment contract;
- you may have the strongest privacy settings on your social media, but on social media there is no such thing as absolute privacy: you may have ‘friended’ work colleagues or clients, posts can be shared or screen-captured, and the many ways social media can ‘go wrong’ are countless, so use discretion and common sense; and
- if you are a business, you need to monitor your social media closely to ensure that comments by customers do not breach laws and regulations and, if they do, act promptly to remedy the situation.
It’s also notable that the courts and even the judicial process are potentially being affected by social media:
- Judges, cyberspace and social media (The Australian Institute of Judicial Administration, 4 June 2014)
- Fears aired over social media’s impact on court proceedings (ABC News, 9 April 2014)
- Courts struggle to find solution to social media misuse (The Australian Financial Review, 19 November 2013)
- Social media friends without privileges (The Australian, 27 September 2013)
- Jurors and social media: is there a solution? (The Conversation, 1 July 2013)
- Should judges use social media? (The Australian Institute of Judicial Administration, 31 May 2013)
- Check your Facebook and Google at the door – courts deal with social media (Bond University, 29 April 2013)
- Guilty beyond a reasonable tweet – role of social media in the Australian courtroom (The University of Notre Dame Australia, 7 March 2013)
- Social media ‘investigators’ tainting court evidence (ABC News, 23 January 2013)
In this case, a District Court of NSW judge, having examined the Facebook activities of a juror in the course of a criminal trial, held that the social media comments in question did not compromise the proceedings and did not warrant further action against the juror.
Wilson v Ferguson  WASC 15 (16 January 2015)
In this judgment, the Supreme Court of Western Australia awarded $48,404 in equitable compensation to the plaintiff over sexually explicit images and videos uploaded to Facebook by her ex-partner after their relationship broke down.
The Court found that the images in question were confidential in nature and their publishing was a breach of confidence and a misuse. The Court further ordered the ex-partner not to publish further photos or videos of the plaintiff engaging in sexual activities or in which she appears naked or partially naked.
Police v Ravshan Usmanov  NSWLC 40 (9 November 2011)
In this Local Court of NSW judgment a man was sentenced for 6 months imprisonment for the posting of six nude images of his ex-girlfriend on his Facebook page.
On appeal, the District Court of NSW confirmed the sentence but suspended it on the condition of good behaviour for a period of six months: Usmanov v R  NSWDC 290 (15 February 2012).
Diageo Australia Ltd [Case Number 0272/12] (11 July 2012)
This is not a court decision, but an interesting determination by the Advertising Standards Bureau (ASB) in respect of a brand’s Facebook presence.
The matter concerned the Smirnoff Vodka Facebook page, which featured photographs uploaded by Diageo of young people at various events, some of whom were holding alcoholic drinks. The complaint was that the photos depicted excess consumption of alcohol by people under 25 years old, in breach of the Australian Association of National Advertisers Code of Ethics’s health and safety provisions.
The ASB dismissed this particular complaint, finding that none of the images appeared to indicate an excessive consumption of alcohol and, further, all the images appeared to be taken in licensed premises, which restrict entry to those 18 years old and over. The ASB held that the Facebook page was not contrary to prevailing community standards on health and safety and did not breach the Code.
Nicholas Polias v Tobin Ryall  NSWSC 1692 (28 November 2014)
In this judgment, the Supreme Court of NSW awarded a total sum of $340,000 in damages, including aggravated damages, for defamation, to be paid by four defendants, over postings on Facebook which incorrectly alleged theft by Mr Polias, a poker player and member of a poker playing community.
This case involved imputations that the plaintiffs, a children’s home and its executive officers, were guilty of child abuse and neglect, including in seven separate posts on Facebook. The statements in question were found to be defamatory by the District Court of NSW and damages were awarded to the three plaintiffs in the total sum of $250,000.
Munsie v Dowling  NSWSC 598 (16 May 2014)
In this interlocutory decision, the Supreme Court of NSW issued an injunction to prevent the publication of certain materials on Twitter by the defendant, which were the subject of defamation proceedings before the Court.
Mickle v Farley  NSWDC 295 (29 November 2013)
In this case, the District Court of NSW awarded damages in the sum of $105,000 plus costs, over comments made by a young man on Facebook and Twitter about a colleague of his retiring father. The Court found that the comments were defamatory.
Banerji v Bowles  FCCA 1052 (9 August 2013)
This high-profile case before the Federal Circuit Court of Australia (FCCA) involved a public servant and her Twitter account ‘@LALegale’, which she used to regularly comment on her employer, the Department of Immigration and Citizenship. Her tweets, described as ‘sometimes mocking, sometimes critical’, came to the attention of the Department.
Following an internal investigation a recommendation was made to terminate Ms Banerji’s employment. Ms Banerji was invited to comment on that recommendation. However, before any further action could be taken, Ms Banerji filed a claim seeking declaratory orders and an interlocutory injunction.
Ms Banerji submitted that the tweets were posted on her own time and out of work and that any disciplinary action would infringe upon her constitutionally protected right to engage in political communication. The FCCA rejected this argument and found that even if there is a constitutional right of such nature ‘it does not provide a licence … to breach a contract of employment.’
Seafolly Pty Ltd v Madden  FCA 1346 (29 November 2012)
In this case, the Federal Court of Australia (FCA) was called upon to consider posts by designer Leah Madden on her Facebook page whereby, among other things, she posted:
- a photo album under the heading ‘The most sincere form of flattery?’ containing 7 photos of models wearing Seafolly garments under each of which she inserted the name of one of her garments followed by a question mark; and
- another photo album under the heading ‘The most sincere form of flattery?’ containing a further 8 photographs of models wearing her own White Sands garments alongside photos of models wearing Seafolly garments with each pair of photos bearing the captions ‘White Sands as seen at RAFW in May – Seafolly September 2010’ or ‘White Sands 2009 – Seafolly 2010’,
arguably suggesting that Seafolly had copied her designs.
The FCA awarded damages in the sum of $25,000 to Seafolly and held that Ms Madden had contravened sections 52 and 53(a) of the Trade Practices Act 1974 (Cth) (TPA) by making her impugned statements and dismissed her defamation cross-claim over statements published by Seafolly in response to Ms Madden’s allegations.
An appeal from this judgment to the Full Court by Ms Madden was largely unsuccessful, except for a reduction of the damages payable by her to the sum of $20,000: Madden v Seafolly Pty Ltd  FCAFC 30 (24 March 2014); Madden v Seafolly Pty Ltd (No 2)  FCAFC 49 (1 May 2014).
Fosters Australia, Asia & Pacific [Case Number 0271/12] (11 July 2012)
This is another interesting determination by the ASB which serves as a warning to businesses on the need to moderate comments left by customers on their social media sites.
The ASB found VB responsible for abusive comments about gays and women posted on its Facebook page and therefore in breach of the industry’s self-regulatory codes on taste, decency and ethics. Because the comments in question were in response to a question that VB’s marketing team had posted (how to make a great Australia Day barbecue), the board ruled they constituted advertising.
This is a case which is slightly outside the box. It involved no posts per say, but rather the mere act of a teacher ‘friending’ students on Facebook, contrary to Department policy.
Arguments by her that she wasn’t friends with students or that someone hacked her account were rejected and the Department’s decision to reduce the teacher’s salary as a punishment for breaching the policy in question was upheld.
In 2009 Allergy was found to have contravened sections 52, 53(aa), 53(c) and 55A of the TPA by falsely representing that it could test for allergens and safely cure and treat all allergies. Allergy and its sole director gave undertakings to the court that they would not publish statements making such representations.
In 2011, the Australian Competition and Consumer Commission (ACCC) alleged that Allergy was in contempt of court by breaching the undertakings through various publications, including testimonials written and posted by clients on Allergy’s Facebook, Twitter and YouTube pages.
The FCA found that while Allergy was not responsible for the initial publication of the testimonials (the original publisher was the third party who posted the testimonials), it was appropriate to conclude that Allergy ‘accepted responsibility for the publications when it knew of the publications and decided not to remove them. Hence it became the publisher of the testimonials.’
Subsequently, the ACCC confirmed in a guidance that the regulator expects large organisations to act on third-party posts considered misleading and deceptive promptly, usually within 24 hours.
This is a significant development in 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 and the potential number of active participants.
Google warrants a specific mention in the social media context. Given its size and prevalence, Google has been the repeated target of court proceedings relating to information posted on the internet and its availability through Google searches.
In Bleyer v Google Inc.  NSWSC 897, on 12 August 2014 the Supreme Court of NSW permanently stayed a defamation proceeding against Google Inc. arising from its search engine results in circumstances where the court found that the plaintiff, even if successful, would be unable to enforce any award of damages in the US and the interest at stake, being the vindication of the plaintiff’s reputation in the eyes of only one person, means that the resources of the court and the parties that would be expended to determine the claim are out of all proportion to that interest.
In Ghosh v Google Australia Pty Ltd  NSWDC 146 (20 August 2013), the District Court of NSW found that Google Australia was not responsible for allegedly defamatory material published by its American parent company, Google Inc.
In Rana v Google Australia Pty Ltd  FCA 60 (7 February 2013), the applicant alleged that Google’s failure to remove racist and defamatory materials posted on certain websites was in breach of the Racial Discrimination Act 1975 (Cth). The FCA held that Google Australia did not control or direct the conduct of Google Inc. and that Google Australia’s role in Australia was limited to that of a sales support and marketing role. It was Google Inc. in the US that carried out the web hosting service of which the applicant complained. Justice Mansfield noted that the law regarding responsibility as a publisher for internet based publications where the website host maintains a passive role in the dissemination of defamatory material, is not settled. The court considered international case law, including the decision in Trkulja (below) and concluded that it was at least arguable that Google Inc. may be liable for the allegedly defamatory material, however declined to find so for the applicant.
In Trkulja v Google Inc LLC & Anor (No 5)  VSC 533, on 12 November 2012 the Victorian Supreme Court has found Google Inc. liable for online defamatory publication through the automated mechanism by which its search function produced material that associated Mr Trkulja’s name along with the names and images of high-profile criminal figures and awarded Mr Trkulja $200,000 in damages. The court specifically noted the role of Google’s failure to respond after having been made aware of the issue:
The question is whether, after relevant notice, the failure of an entity with the power to stop publication and which fails to stop publication after a reasonable time, is capable of leading to an inference that that entity consents to the publication. Such an inference is clearly capable of being drawn in the right circumstances (including the circumstances of this case). Further, if that inference is drawn then the trier of fact is entitled (but not bound) to conclude that the relevant entity is a publisher.
Following the favourable determination and damages awarded in Trkulja, some anticipated a rush of defamation cases against Google. However, this prediction failed to materialise. Google has also taken steps to enable people to easily give notice of material which is objectionable, including defamatory. Provided that in the future Google acts on such requests within a reasonable time, it is unlikely that we will see a flood of successful defamation cases against Google.
In Europe, in contrast to Australia, a specific ‘right to be forgotten’ is developing, granting the right to individuals to have information which has been collected on them to be destroyed or removed. Most notably, in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González (C-131-12), on 13 May 2014 the Court of Justice of the European Union held that Mr González was entitled to request that Google ensure that the results of Google searches no longer link his name to certain materials on the internet. It was reported that Google received 12,000 request from people seeking to be ‘forgotten’ on the first day it made the service available following this decision.
In this decision, the District Court of NSW allowed substituted service on an overseas defendant, who proved difficult to reach by conventional means, by the posting of a message to the defendant’s Facebook page and email.
However, the Court of Appeal of NSW found this order for substituted service invalid, including on the ground that the District Court of NSW does not have the jurisdictional power to order substituted service of an originating process on an overseas party: Flo Rida v Mothership Music Pty Ltd  NSWCA 268 (20 August 2013).
Byrne & Howard  FMCAfam 509 (21 April 2010)
In this case, the Federal Magistrates Court of Australia was satisfied that the service of an application relating to a family law matter was validly executed where it was emailed and also publicly posted to the defendant’s Facebook page, in circumstances where attempts at all other traditional methods of service have failed.
MKM Capital Pty Ltd v Corbo & Poyser (Unreported, ACT Supreme Court, Master Harper, 12 December 2008)
This case is one of the earliest known example of service being permitted via social media in Australia. Ms Corbo and Mr Poyser failed to keep up with repayments on a loan from the plaintiff and did not appear in court to defend the action.
Consequently, MKM obtained a default judgment and possession of the defendants’ house. MKM made numerous attempts to personally serve the default judgment on the defendants, each unsuccessful.
MKM then applied to the court for an order for substituted service and the Supreme Court of the ACT granted the application and ordered that service may be affected by a private message to the defendant’s Facebook page.
Citigroup Pty Ltd v Weerakoon  QDC 174 (16 April 2008)
This case is one of the earliest known applications for substituted service via social media in Australia. The application was rejected due to the ‘uncertainty’ of the true ownership of the Facebook page in question.
This case involved a range of allegations, including workplace bullying via Facebook comments made by employees who were also union members and officials.
At the hearing of a strike-out application in the matter, the Fair Work Commission (FWC) noted that the ‘use of social media affecting work colleagues, in or outside the workplace, is conduct which is exposed to employer direction and over which employers are expected to have policies and exercise control’. The FWC went on to say that ‘the relevant behaviour is not limited to the point in time when the comments are first posted on Facebook. The behaviour continues for as long as the comments remain on Facebook. It follows that the worker need not be “at work” at the time the comments are posted, it would suffice if they accessed the comments later while “at work”.’
This case arose from the dismissal of an employee for the inappropriate use of his personal Facebook account, namely criticising an organisation with which his employer had professional dealings and making sexually suggestive comments about a new fellow employee. Mr Little submitted that he believed his Facebook page to be private and that he had not identified his employer.
In the course of its deliberations the FWC noted that ‘[i]t was inevitable with the seismic shift to the phenomenon of social media as a means of widespread instantaneous communication, that it would lead to new issues in the workplace. These include the extent of the use of social media while at work, the content of such communications and whether they be work or non-work related.’
The FWC also observed that the employer had a ‘Code of Conduct dealing with the applicant’s actions. Moreover, the applicant was aware of, and acknowledged the Code and participated, on two occasions, in training on appropriate behaviour in the workplace.’
The FWC found that ‘the kind of sexual comments made about the new employee were grossly offensive and disgusting and were more than likely to cause hurt and humiliation’ and that the comments he made about the organisation with which his employer had professional dealings ‘were likely to adversely impact on the respondent’s relationship with that organisation and damage the respondent’s wider reputation’, and held that the dismissal for the conduct involved was not ‘harsh, unjust or unreasonable’ and dismissed the employee’s application for a remedy.
Malcolm Pearson v Linfox Australia Pty Ltd  FWC 446 (17 January 2013)
This matter revolved around Mr Pearson’s dismissal by Linfox on various grounds, including breaches of Linfox’s social media policy by virtue of his refusal to acknowledge and sign the policy, arguing that the policy sought to constrain him whilst not at work.
The FWC noted that ‘in an employment context the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business’ and held that ‘in all the circumstances that what Linfox was asking of Mr Pearson in terms of his acknowledgement of its social media policy was neither unlawful or unreasonable. It was accordingly entitled to take the action it did in response to his refusal to do so.’
The matter proceeded to appeal which was dismissed by the Full Bench: Malcolm Pearson v Linfox Australia Pty Ltd  FWCFB 1870 (19 March 2014).
Miss Kelly McDonald v Il Migliore Pty Ltd t/a Il Migliore  FWA 10828 (21 December 2012)
This case involved the dismissal of Kelly McDonald, who was employed as a pastry worker at a small biscuit shop, Il Migliore, and a subsequent unfair dismissal application. Although the dismissal was unrelated to social media activity, the final decision was informed by social media posts that were considered indicative of Ms McDonald’s frame of mind regarding her employment.
On 22 December 2011, the last day of work for the year before the business had a compulsory shutdown, Ms McDonald informed the business owner, Ms Lindsey, that she was leaving, that this would be her last day, and that she was confident of getting a job in veterinary nursing, her preferred career. Ms Lindsey then offered Ms McDonald to take on casual shifts until she found work as a veterinary nurse. Ms McDonald did not find a veterinary nursing position and consequently she returned to work doing some casual shifts when the business reopened next year. On 3 February 2012, Ms Lindsey sought a commitment from Ms McDonald that she would work there for several months as the business wanted to secure staffing levels and plan future recruiting requirements. It appears that such a commitment was not forthcoming. Five days later Ms McDonald handed Ms Lindsey a Centrelink separation certificate which she had completed saying that Ms McDonald was ‘leaving voluntarily due to a career change’. The form required a leaving date which Ms McDonald nominated as 17 February. When asked by Ms Lindsey if she was sure, Ms McDonald replied ‘yes’. Ms McDonald subsequently lodged an unfair dismissal application.
At first instance Ms McDonald was successful and the FWC ordered reinstatement and compensation in the sum of $15,851.
On appeal the Full Bench, having considered relevant contemporaneous social media postings made by Ms McDonald, overturned the first instance decision. The Full Bench found that the Facebook posts in question supported the employer’s case and were ‘fundamentally inconsistent’ with Ms McDonald’s evidence that she was dismissed and in fact showed that she considered herself jobless at that time and needing to find another job in her new chosen career: Il Migliore Pty Ltd t/a Il Migliore v Miss Kelly McDonald  FWCFB 5759 (14 August 2013).
Glen Stutsel v Linfox Australia Pty Ltd  FWA 8444 (19 December 2011)
In this case Mr Stutsel was summarily dismissed by Linfox after 22 years as a truck driver, with an unblemished record, over posting racially derogatory, sexually harassing and threatening comments about two of his managers on Facebook.
Mr Stutsel claimed that as far as he knew his Facebook page, which he said was set up by members of his family, had the maximum privacy settings and his posts were private.
Fair Work Australia (FWA), as the FWC was known at the time, held that although the content was ‘distasteful’, the dismissal was unfair, taking into account a range of factors including, the fact that Linfox did not have a policy about the use of social media at the time, the different treatment of other employees who made similarly inappropriate comments on Facebook, and Mr Stutsel’s limited understanding of Facebook privacy and content management, unblemished record, age and future employment prospects, and ordered that he be reinstated.
On appeal the Full Bench upheld the first instance decision: Linfox Australia Pty Ltd v Glen Stutsel  FWAFB 7097 (3 October 2012).
The matter was then appealed to the Full Court of the FCA which dismissed the appeal: Linfox Australia Pty Ltd v Fair Work Commission  FCAFC 157 (13 December 2013).
This claim came before FWA after the dismissal of Mr O’Keefe over the posting of a message to his Facebook page as follows: ‘f…ing work still haven’t managed to f…ing pay me correctly. C…s are going down tomorrow.’ The post was directed at his employer’s Operations Manager, Ms Taylor.
Mr O’Keefe submitted that his Facebook page was set to the maximum privacy setting and only his select group of friends (about 70 people) could have seen what he had written. He also stated that nowhere on his Facebook page is the Good Guys mentioned, but admitted that there were probably 11 co-workers in his select group of friends.
FWA held that in the circumstances ‘ [a] valid reason existed for the termination of the applicant’s employment’ and in handing down its decision made the following comments:
The fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before Ms Taylor was advised of what had occurred. The respondent has rightfully submitted, in my view, that the separation between home and work is now less pronounced than it once used to be.
Prima facie, threatening another work employee is a serious issue and one which would not be tolerated in any workplace. The manner in which the threat was made and the words used provided sufficient reason for the respondent’s dismissal of the applicant on the grounds of serious misconduct.
This unfair dismissal claim brought a happier ending for the employee in question. This case arose from a picture posted to Facebook in which the ‘applicant, partly dressed up as a cardboard car. The applicant had used certain items from the Subway shop to make up the cardboard car. There was a cardboard box with two paper cups attached to one end (being headlights). The applicant had fitted herself into the cardboard box and worn it around her waist area. Another Subway item used to mimic a car look was a plastic salad bowl which she held with both hands (above the cardboard box) and the bowl represented a steering wheel.’ The photograph was taken in the Subway store, behind the counter area.
In this case FWA observed that ‘[d]espite the photo appearing on Facebook, there was no direct evidence produced to support the claim that the applicant had defamed the respondent’s business by causing irreparable damage to the company name. There was no direct evidence of damage to the company’s name, let alone irreparable damage.’
FWA held that the conduct in question by the employee did not give rise to valid reasons for dismissal and would be ground only for a formal warning.
Tamicka Louise Dover-Ray v Real Insurance Pty Ltd  FWA 8544 (5 November 2010)
This case followed an employee’s dismissal after the publication of comments via MySpace that had the potential to damage the reputation of the employer (and arguably may have actually done so). The social media comments criticised the employer’s investigations into sexual harassment allegations made by Ms Dover-Ray against a manager and also alleged corruption at the employer.
FWA noted that the ‘blog is, in effect, an attack on the integrity of the management of Real. The criticism of corruption is of such a nature and degree that it cannot be brushed aside …’ and held that ‘after considering all of the circumstances, the conduct of Ms Dover-Ray in publishing the blog and refusing to modify or remove it within a reasonable period are … a valid reason for the termination of her employment.’
Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design  FWA 7358 (24 September 2010)
In this case Miss Fitzgerald was dismissed by her employer after a year on the job for a number of reasons, including a Facebook post accessible to Miss Fitzgerald’s friends on the following terms: ‘Xmas ‘bonus’ along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!’. In the context of that comment FWA observed that:
Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.
It is well accepted that behaviour outside working hours may have an impact on employment ‘to the extent that it can be said to breach an express term of [an employee’s] contract of employment’.
A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. A Facebook posting comes within the scope of a Rose v Telstra consideration but may go further. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.
FWA held that in the circumstances the Facebook comments did not give a valid reason for dismissal.
On appeal the Full Bench agreed with this aspect of the first instance decision: Smith T/A Escape Hair Design v Miss Sally-Anne Fitzgerald  FWAFB 1422 (15 March 2011).