It has been a busy few months in cyberspace since my last social media update in May.
In this latest round-up I report on new local and international social media cases, and revisit a few old ones which are of renewed interest in the context of recent developments.
I recently responded to media reports talking about an upswing in social media defamation cases. While I concluded there is no ‘flood’ of new cases, the ubiquity of social media inevitably means there are always a few more cases that arise from social media use.
Zwambila v Wafawarova  ACTSC 171 (10 July 2015)
In July, the former Zimbabwean ambassador to Australia, Ms Zwambila, has won a defamation case in the Supreme Court of the Australian Capital Territory against a journalist who claimed the former ambassador had lost her temper, and stripped to her underwear in front of three embassy officials, allegedly because she was angry when the three denied leaking information to the Harare-based The Herald newspaper about her.
The journalist was ordered to pay Ms Zwambila $160,000 in general damages, and $20,000 in aggravated damages for the publication of the false claims in newspapers, including The Herald.
Gluyas v Canby  VSC 11 (27 January 2015)
In January, Philip Gluyas was awarded $50,000 in compensation, plus $6,900 in interest, by the Supreme Court of Victoria against a blogger in the United States.
The US blogger falsely asserted Mr Gluyas was faking his Asperger’s syndrome and accused him of being a ‘severely deranged mental case,’ a ‘sociopath,’ and a paedophile. At one point he called for Mr Gluyas to be murdered, and offered a $500 reward to any member of the public who killed him.
In awarding the damages, Justice Forrest held the posts defamatory, and described them as ‘utterly disgraceful’ and containing ‘vile accusations.’
Abu Bakar Alam and Fairfax Media
Although not a social media case, in March Fairfax Media reportedly paid out one of the largest defamation settlements in Australian media history, after accidentally labelling an innocent teenager a terrorist.
The payout was reportedly $500,000, and Fairfax Media also issued an apology.
The payout was the result of The Age newspaper erroneously publishing a photo of Abu on its front page in September 2014, wrongly identifying him as the ‘teenage terrorist’ who stabbed two police officers at Endeavour Hills in Victoria.
Crime and terrorism
While on the subject of terrorism and social media, The Sydney Morning Herald reported in May that an Australian Twitter user and Islamic State supporter, with the Twitter name ‘Australi Witness,’ appeared to be encouraging the terrorist attack on an anti-Islamic cartoon event in the US, and said his movement was ‘winning the minds of the young generation.’
The man later turned out to be a 20-year-old Jewish American troll, Joshua Ryne Goldberg, living in Jacksonville, Florida. He was arrested earlier this month following a joint operation between the Federal Bureau of Investigation and the Australian Federal Police.
He stands accused of distributing information about explosives and destructive devices to facilitate a possible terrorist act in the United States, and faces 20 years in jail if convicted. He is also accused of attempting to recruit and encourage terrorist acts in Australia.
In another US case, 33-year-old mother, Ebony Dickens, was arrested on terrorism charges for a Facebook rant that called for ‘death to all white cops nationwide.’ She posted the offending text in April, under an alias, as protests in Baltimore about the death of Freddie Gray descended into rioting.
Earlier this month she pleaded not guilty and sought to have the matter dismissed.
26-year-old Kristin Holmes was arrested in Chesterfield, Virginia, after police was alerted to a photo she posted to Facebook in which she smilingly points a gun, in response to other users’ ‘misdirected threats,’ with the caption: ‘I’ll post a few actual pics of me so you know the difference when you “come find me”.’ It was reported she allegedly uploaded the controversial image after she was mistaken for another woman during a Facebook feud between people she didn’t even know.
She was charged with harassment by computer and faces a Class 1 misdemeanour, punishable by one year in jail and a $2,500 fine. Although Ms Holmes is still of the view the charge is ridiculous:
It wasn’t a threat. I thought it was a funny picture, and then I realized later that it was a little bit intimidating. So I took it down. What happened to freedom of speech?
Anthony Elonis, a.k.a. Tone Dougie
The case of Anthony Elonis is particularly interesting, and troubling.
Mr Elonis, who adopted the rap persona Tone Dougie, posted long, violent tirades aimed at his estranged wife, in the form of rap lyrics on Facebook. She obtained a restraining order but he persisted with his conduct, which led to a visit by FBI agent Denise Stevens, to which he responded with violent rap lyrics aimed at the agent.
Subsequently, he was charged with, and convicted of, making threats against his estranged wife, and the FBI agent, and was sentenced to 44 months in prison. He appealed to the Supreme Court of the United States.
On 1 June 2015, the Supreme Court reversed his conviction and remanded the matter, noting that while the First Amendment will not protect ‘true threats,’ in the circumstances of the case the prosecutors must do more than prove that reasonable people would view the posts as threats, and prove the posts were intended to be a threat by Mr Elonis.
Another fascinating case, this time out of the United Kingdom, involving ‘revenge porn,’ with the alleged perpetrator yet to be named by YouTube celebrity Chrissy Chambers. This case received strong media attention in the UK, which will likely persist if the matter moves forward.
It is alleged by Ms Chambers that her ex-boyfriend filmed her while intoxicated, then posted the pornographic footage to various pornography sites. She contacted the Metropolitan Police and now waiting to hear if criminal charges will be filed under the recent revenge porn law introduced in the UK in April.
It has been reported the Labor Party is proposing to introduce legislation into federal Parliament aimed at outlawing revenge porn in Australia, as currently there are no specific federal laws to prosecute the publication or distribution of private sexual images without the consent of the parties involved.
Earlier this year there was a case out of the Supreme Court of Western Australia in which sexually explicit images and videos were uploaded to Facebook by an ex-partner after a relationship broke down. The court awarded $48,404 in equitable compensation for breach of confidence and a misuse.
In a NSW case, police brought proceedings against a man in 2011 for the offence of publishing an indecent article, prosecuting him under section 578C of the Crimes Act 1900 (NSW), over the posting of six nude images of his ex-girlfriend on his Facebook page. He was sentenced to six months in jail, but on appeal the sentence was suspended on the condition of good behaviour for a period of six months.
By comparison, spare a thought for a poor Spanish man, Eduardo Díaz, who is facing a fine of up to €600 for calling the Spanish police a ‘class of slackers’ in a series of humorous Facebook posts, leading to a police visit later the same day and accusations of making comments on social media that showed a lack of respect and consideration for Güímar’s local police.
The 27-year-old became the first citizen to fall foul of a the new Spanish Citizens Security Law, which criminalises a range of conduct and was heavily criticised by the UN.
The interplay of social media and the workplace is another one to watch, and the last few months didn’t disappoint on that front either.
On 15 September, the internet security company Norton released the results of an Australian survey which found that ‘millennials, those under the age of 35, will gamble with their privacy and security for a life online, making them the generation most at risk of online threats.’
The survey polled 1,000 Australians, 500 of whom were aged under 35. The results revealed that almost one in three of the millennials surveyed received warnings from their employer about content they have posted online.
In that context, the story of Scottish teenager Hayley Neeson is not surprising. Ms Neeson was a trainee nursery employee at Motherwell’s Forgewood Nursery Centre. She was suspend after calling the children she cared for ‘w*****s’ in a Facebook post:
First day back at work. Been in the room for at least 10 minutes and already been bitten, spat on, head butted and told to f*** off. Lovely manners of three year old children, bunch of w*****s.
In response to a comment on the post Ms Neeson also called the children ‘a*******s, accompanied with the emoji of a … fist.
Naturally the parents were outraged by Ms Neeson’s post, not the alleged conduct of their little precious ones, leading to her suspension until an investigation is completed into the matter.
Ms Neeson’s story has shades of the troubles of Texas mum Kaitlyn Walls, who was told not to bother turning up at her brand new childcare centre job, because before her first day she posted a comment on Facebook about how much she hated being around kids.
The workplace can be a hotbed of social media faux pas and disputes. A few more recent examples include:
- the termination of a police sergeant, which was later found not to be a violation of her First Amendment right to free speech, in the City of Greenville, Mississippi, in the US, based on her Facebook comments criticising her police chief, using her home computer while off duty;
- the firing of a paramedic and volunteer firefighter in Sommerset, Kentucky, over a Facebook post criticising the mayor, which was reportedly settled by her reinstatement and paying her nearly $26,000 in damages and lost pay; and
- the expulsion of a Valdosta State University student in Georgia, over a Facebook post aimed at the President of the university, relating to a hotly disputed parking garage development on campus, built using $30 million of student fees, which led to a protracted legal fight culminating in a $900,000 settlement for the violation of the student’s First Amendment rights, and payments to his lawyers for their work in vindicating those rights.
Of course social media cases arising in the United States are decided under a legal framework significantly different from Australia’s legal system, including the First Amendment.
Stacey Mattocks v Black Entertainment Television LLC, 13-61582-CIV-COHN/SELTZER (20 August 2014)
Beyond the dismissal context, other issues may arise in the workplace from social media use.
For example, last year a Florida District Court was called upon to decide who owned the ‘Likes’ of a Facebook fan-page for a television programme, and an appeal in the case is due to be heard on 6 October.
Stacey Mattocks, a fan of a television show called ‘The Game,’ created a Facebook fan-page for the show in 2008. The Game was cancelled in 2009, but Ms Mattocks continued to promote the show in the hope another network would pick it up, as is often done by fans of cancelled TV shows. Ms Mattocks’ efforts were successful. After gaining over 750,000 ‘Likes,’ the Black Entertainment Network (BET) picked up the show.
In light of the popularity of Ms Mattocks’ Facebook fan-page, BET hired her as a social media freelancer. Subsequently, following ongoing disputes over the fan-page, BET and Ms Mattocks entered into a ‘letter agreement,’ with Ms Mattocks agreeing to grant BET administrative access to the fan-page. In return, BET gave an undertaking not to exclude Ms Mattocks.
A year later, as disputes continued to rage between the parties about Ms Mattocks’ employment, she revoked BET’s administrative access to the fan-page. BET responded by asking Facebook to ‘migrate fans’ of Ms Mattocks’ fan-page to BET’s official fan-page. Facebook granted BET’s request.
Ms Mattocks commenced proceedings against BET for tortiously interfering with her contractual relationship with Facebook, converting the business interest she held in the Facebook page, breaching the ‘letter agreement’, and breaching a duty of good faith and fair dealing.
Ms Mattock was unsuccessful on all claims, with the Court holding she failed to establish she owned a property interest in the disputed ‘Likes.’
As she is preparing for her appeal to be heard by the 11th Circuit Court of Appeals on 6 October, a magistrate judge recommended BET be awarded its attorney’s fees in the amount of $415,288 and $4,751 in costs. If she fails on appeal, this case could become a very expensive exercise in vanity.
Contempt of court
It’s advisable to avoid upsetting the courts and judges, because they have a wide range of powers to respond to unbecoming conduct. Especially when the conduct in question is designed to influence the outcome of a court case. That’s a big no-no!
Mr Santo Bonacci learned this the hard way when Justice Stephen Kaye of the Supreme Court of Victoria found he sought to interfere with a County Court criminal case by using inflammatory radio broadcasts, emails and social media posts.
Mr Bonacci runs something called the Universal Truth School, promoting so-called ‘Syncretism,’ which he says brings ‘together all the fields of knowledge and wisdom and showing the interrelatedness of all things.’
In an ill-advised move, Mr Bonacci called upon people to put pressure on Judge Geoffrey Chettle while he was presiding over a drug trial in 2013.
As part of his campaign, he published to his Facebook page the email addresses for the judge, his associate, and five members of staff of the Chief Judge of the County Court, urging his followers to ‘make a fuss about this,’ resulting in 24 emails being sent to County Court staff in relation to the matter.
Mr Bonacci also sent emails to County Court staff calling them ‘criminals’ and warning they would ‘be found guilty of aiding and abetting a live human being to commit fraud.’
Justice Kaye found Mr Bonacci in contempt: The Queen v Bonacci  VSC 121 (1 April 2015)
I think there are a few handy and glaringly obvious takeaways from the social media cases noted above, but they can all be boiled down to one overarching home-truth: don’t say or do anything on social media you wouldn’t say or do to someone’s face and, even if you would, don’t get caught up in your emotions – do pause, and give some consideration to the potential consequences of your words, whether personal, legal or otherwise, before hitting the ‘post’ button.