Less than two weeks passed since my last social media update, but it is a medium that moves fast, and continues to fascinate from cultural, social and legal perspectives.
Workplace and social media
A little while ago I disagreed with the prediction there would be a ‘flood’ of defamation cases hitting the courts from social media use.
Another prediction this week relates to the rise of social media as the source of workplace issues. That’s a prediction I can get on board with. In my recent reports on social media there has been a consistent flow of cases in the workplace context.
• Social media round-up: September 2015
• A bad social media month for SBS
• Scott McIntyre v Special Broadcasting Service Corporation
• What’s new in social media: May 2015
• Social media meets the law: March 2015
The law firm Piper Alderman published the results of an employment matters survey recently, titled ‘What’s keeping you awake at night?‘
The survey involved 2,000 HR managers, general managers, COOs, CEOs and legal teams across the country. Among other things, the survey results showed:
- 80% have a social media policy in place, or offer guidance to employees about the use of social media, and 40% have had cause to caution or discipline an employee about their use of social media – a small, 4% increase from the previous year;
- 77% are not monitoring social media use outside work; and
- 60% were required to deal with at least one issue of alleged bullying.
Since 1 January 2014, Australia’s Fair Work Commission (FWC) have had the jurisdictional scope to hear workplace bullying claims under Part 6-4B of the Fair Work Act 2009 (Cth). The Act defines bullying as follows:
789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.
The quarterly reports issued by the FWC between 1 January 2014 and 31 March 2015 show 874 applications were made under the anti-bullying jurisdiction during that period, averaging 58 per month, with 72 complaints proceeding to decision, and only one of those resolved in favour of the complainant. Since then only two further orders were made to stop workplace bullying.
The most recent of those also involved social media.
Mrs Rachael Roberts v VIEW Launceston Pty Ltd as trustee for VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird  FWC 6556 (23 September 2015)
This is a case that will probably haunt the HR managers’ dreams Piper Alderman spoke to, but it doesn’t need to.
Mrs Roberts was employed as a real estate agent with the View Launceston franchise in Tasmania since November 2012. She has worked in the real estate industry for over 10 years. She alleged that in the course of her employment at View Mr James Bird, the principal and co-director, and his wife Mrs Lisa Bird, a sales administrator, had bullied her.
Mrs Roberts claimed that the behaviour she was subjected to at work ‘resulted in her being unable to sleep, being depressed and highly anxious, resulting in the prescription of medication by her general practitioner and treatment from a psychologist.’
There were 18 specific allegations of unreasonable behaviour, that were claimed to have created a pattern of bullying, with one of them involving the ‘unfriending’ of Mrs Roberts by Mrs Bird on Facebook. Eight of those allegations were made out, including the one which involved Facebook.
Allegation 17 arose from an impromptu one-on-one meeting called by Mrs Bird on 29 January 2015, after Mrs Roberts complained to Mrs Bird’s husband about her conduct. In the meeting, Mrs Bird allegedly acted in a belittling and aggressive way towards Mrs Roberts, and called her a ‘naughty little school girl running to the teacher,’ culminating in Mrs Bird deleting Mrs Roberts as a Facebook friend.
Deputy President Wells of the FWC was scathing of Mrs Bird’s behaviour, and in respect of her conduct on Facebook stated at :
This action by Mrs Bird evinces a lack of emotional maturity and is indicative of unreasonable behaviour, the likes of which I have already made findings on … I am of the view that Mrs Bird took the first opportunity to draw a line under the relationship with Ms Roberts on 29 January 2015, when she removed her as a friend on Facebook as she did not like Ms Roberts and would prefer not to have to deal with her. I am satisfied that the evidence of Ms Roberts, as to the incident on 29 January 2015, is to be preferred and that the allegation of unreasonable behaviour by Mrs Bird in Allegation 17 is made out.
In short, the FWC considered the ‘unfriending’ on Facebook part of a pattern of behaviour that constituted bullying.
The case is no reason to get overexcited from a social media perspective, as the Facebook ‘unfriending’ itself was a peripheral aspect of conduct which was found to be bullying. But, it illustrates that conduct on social media can serve as evidence of bullying, and can also be part of a pattern of conduct that could be found to constitute bullying.
There will be a conference held between Mrs Roberts and the employer next, to discuss what the terms of the anti-bullying order should be.
Are criminals grooming your employees on social media?
The Independent Broad-Based Anti-Corruption Commission is Victoria’s agency responsible for identifying and preventing corruption and police misconduct across the public sector, including Members of Parliament, the judiciary and state and local governments.
On 24 September the Commission released a report titled ‘Organised crime group cultivation of public sector employees,‘ in which it warned ‘organised crime groups are grooming public servants to leak confidential information to help them break the law, with public sector agencies largely in the dark about the potential for corruption.’
The report goes on to highlight the role social media can play in this process:
Social media provides an additional environment in which organised criminals can engage with public sector employees. However unlike traditional ‘real world’ forums, social media allows crime groups to search for employment details, personal interests and characteristics that could allow the identification of personal vulnerabilities. Criminals use these details to initiate contact, which at first may appear to be innocent, but which may escalate as the target’s potential criminal use is assessed.
Social media allows large numbers of public sector employees to be identified. Some applications, such as LinkedIn, may also identify work units and position responsibilities. When combined with information from other social media platforms, it may be possible to identify a target’s name, date of birth, photographs, details of their friends and families, personal interests, where they spend their spare time, gambling behaviour, relationship status and emotional vulnerabilities.
Organised crime groups across Australia are already using social media platforms in innovative ways such as to recruit individuals to serve as couriers for illicit drugs and precursor chemicals. It is highly likely that Victorian crime groups will increasingly use social media to identify public sector employees and to cultivate relationships that facilitate corruption.
If public servants are being targeted by organised crime on social media, chances are employees of commercial organisations are also being targeted. In that context employees’ social media presence becomes a potential liability for employers.
Policies, guidelines and restrictions can only achieve so much when they are attempting to deal with something as ubiquitous as social media. The best option for employers to address this issue is prevention, by engaging with employees, raising awareness, offering training and disseminating timely alerts when they become aware of particular methods utilised by criminals.
Having crisis management policies in place that include provisions for data breaches and social media related issues, and exploring cyber insurance options, are also essential components of a complete policy for the social media age.
Recently three United Kingdom law firms, who were targeted by fraudsters, lost £2.5 million. Although the method used on this occasion was an old-fashioned phone scam, with the widespread use of social media and the free flow of personal information, it’s only a question of time before serious offences perpetrated via social media become a run of the mill events.
Another aspect of social media is increasing concerns over privacy. I recently wrote about the troubles of Google in Europe over privacy, in particular the ‘right to be forgotten,’ which continues to unfold. Google is not alone running into trouble, especially in Europe where privacy is taken very seriously.
Max Schrems’ privacy crusade
Max Schrems, an Austrian privacy activist, was behind a failed privacy class action on behalf of 25,000 European users against Facebook, which was dismissed by the Vienna Regional Court on jurisdictional grounds in July this year. It remains to be seen whether that action will be pursued in another court.
Schrems is also involved in another significant data privacy case against Facebook, which could have far-reaching consequences for social media companies operating in Europe.
Schrems has been a Facebook user since 2008. As is usual practice for Facebook in Europe, information he uploads to Facebook is transferred by Facebook’s Irish subsidiary to servers in the US, where it is stored. Following revelations made by Edward Snowden in 2013 relating to activities of US intelligence services, in particular the National Security Agency, Schrems filed a complaint with Ireland’s Data Protection Commissioner, arguing that the laws and practices of the US offer no real protection against surveillance by the US of the data transferred from Europe.
The Commissioner rejected the complaint, noting the European Commission considered that, under the so-called ‘safe harbour’ scheme, an adequate level of protection of personal data transferred is ensured – 2000/520/EC: Commission Decision of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce.
The ‘safe harbour’ scheme enables US companies to ‘self-certify’ that they provide adequate protections for personal data transferred from Europe to meet EU privacy requirements.
Schrems challenged the decision of the Irish privacy watchdog in the courts, and the High Court of Ireland referred the matter to the Court of Justice of the European Union to ascertain whether 2000/520/EC has the effect of preventing a national supervisory authority from investigating a complaint alleging that a third country does not ensure an adequate level of protection and, where appropriate, from suspending the contested transfer of data.
The Court of Justice of the European Union recently released the legal opinion of its Advocate General Yves Bot, which concludes that the Commission’s decision finding that the protection of personal data in the US is adequate, does not prevent national authorities from suspending the transfer of the data of European Facebook subscribers to servers in the US, and noting:
… where systemic deficiencies are found in the third country to which the personal data is transferred, the Member States must be able to take the measures necessary to safeguard the fundamental rights protected by the Charter of Fundamental Rights of the EU, which include the right to respect for private and family life and the right to the protection of personal data.
In the course of the opinion the Advocate General is critical of the data access available to US intelligence services and considers it an ‘interference with the right to respect for private life and the right to protection of personal data.’
Of course, this is only a legal opinion and the judges involved are yet to issue a conclusive ruling on the matter, but the EU’s highest court tends to follow the opinions of its legal adviser.
So watch this space on this latest privacy showdown in Europe.
Levitt v Felton, or the case of the ‘BadAss Lawyer’
An interesting case is working its way through the US court system relating to a parody Twitter account. This is a particularly curious case given freedom of speech is protected in the US by the First Amendment.
He took offence when Zach Felton a student at CMU, and the son of another CMU professor, created a Twitter account, ‘Todd Levitt 2.0‘, which parodies his marketing ‘strategy.’ The Twitter account is described as ‘[a] badass parody on our favorite lawyer.’
Despite the US constitutional protection for parodies, Levitt sued Felton for defamation, libel, false light, and intentional infliction of emotional distress, among other things.
On 19 February this year, the Isabella County Trial Court threw the case out in the first instance on a summary disposition, holding that the account ‘is a parody that is protected under the First Amendment,’ noting:
The fact that this account is titled “Todd Levitt 2.0″ is an initial indication that this is not an original and genuine Todd Levitt Twitter account. Further, defendant included a disclaimer on the account’s main page, which stated, “A badass parody of our favorite lawyer most likely seen on Main Street.” Additionally, defendant included three separate Tweets reminding any readers that the account was parody or satire. On April 15, 2014, defendant tweeted, “Remember kiddoes, parody accounts are #badass and #lawful.” On April 16, 2014, defendant tweeted, “Word of the day for @twebbsays is satire. Three syllables. Once you get a grasp of the concept a lot of things will start making sense.” Finally, on April 22, 2014, defendant tweeted, “A gentle reminder to potential seekers of Todd Levitt: This is not him. This is a parody account. You can find the real Todd(ler) @levittlaw.” When Todd Levitt 2.0 is considered in the context of these multiple disclaimers, this court finds that the account cannot reasonably be interpreted as stating actual facts about the plaintiff.
Levitt decided to file an appeal arguing that Twitter allows individuals to retweet messages posted by other accounts, which means it is not always immediately clear to readers whether a message is a parody or not, therefore the trial court erred in concluding the parody account could not reasonably be interpreted as anything other than a parody.
The Electronic Frontier Foundation (EFF) filed an amicus curiae brief in the matter, arguing Twitter is a common medium for parody, and there is no precedent for treating Twitter parodies differently from any other type of parody. Even when a tweet is retweeted by a user who is not associated with the parody account, all it takes is a click to access the account of the original tweeter and view the tweet in context. The fact of retweeting should therefore in no way impact the court’s analysis.
I see an interesting connection between the argument made by the EFF in the US case and the recent defamation fight between Joe Hockey and Fairfax Media.
In the Australian case, the court found that a tweet in question, which included:
- a headline which was found defamatory; and
- a link to a related article which wasn’t defamatory, and put the headline in sufficient context to nullify the defamatory imputations of the headline,
was still defamatory as a whole, because many people may look at the tweet ‘without going further,’ never clicking on the link to read the article and thus would be left with the impression made by the headline, without the context offered by the linked article.
This is an interesting conclusion by the Australian court in context of the argument made by EFF in the US case about the ease with which Twitter users could click to ascertain the parody nature of the Twitter account in question.
The appeal court’s decision is eagerly awaited.