It is often said there is no rest for the wicked.
Well, social media must be very wicked, because there is certainly no rest when it comes to this fascinating medium.
Just as soon as I complete a round-up of social media news, there is a flood of new court cases and news reports that reflect its ubiquity and cultural, social and legal impact around the world.
• Social media round-up: October 2015
• 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
Privacy | Workplace | Free Speech | Copyright | Defamation | Harassment | Juries
In my last social media round-up I detailed Austrian privacy activist, Max Schrems’ complaint to Ireland’s Data Protection Commissioner, arguing the laws and practices of the United States offer no real protection against surveillance by US national security agencies of the data routinely transferred from Europe by Facebook, which creates a breach of European privacy laws.
Maximillian Schrems v Data Protection Commissioner, Case C‑362/14 (6 October 2015)
The matter ended up before the European Union’s highest court. On 6 October, in Maximillian Schrems v Data Protection Commissioner, Case C‑362/14, the Court of Justice of the European Union found the ‘safe harbour’ framework, put in place between the EU and the United States to facilitate the transfer of personal data, invalid.
The Court concluded that the framework failed to sufficiently protect the data privacy of EU citizens, due to a combination of American national security laws, public interest and law enforcement practices circumventing the privacy safeguards the framework was designed to achieve:
… legislation permitting the [American] public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life …
The new president of the Court of Justice of the European Union, Koen Lenaerts, was unapologetic about the Court’s decision to strike down the safe harbour framework in an interview with The Wall Street Journal. While he acknowledged that the decision risked disrupting businesses, he argued the court’s role is to stand up for fundamental human rights, including data privacy.
The Court’s decision will put significant pressure on the negotiations between the EU and the United States to trash out a new safe harbor deal, especially since those discussion have been ongoing since 2013, with both sides blaming each other for their inability to finalise a deal.
On 16 October, the Article 29 Working Party, the main advisory body of the EU on data protection, issued a statement in response to the judgment:
EU data protection authorities consider that it is absolutely essential to have a robust, collective and common position on the implementation of the judgment. Moreover, the Working Party will observe closely the developments of the pending procedures before the Irish High Court
First, the Working Party underlines that the question of massive and indiscriminate surveillance is a key element of the Court’s analysis. It recalls that it has consistently stated that such surveillance i incompatible with the EU legal framework and that existing transfer tools are not the solution to this issue. Furthermore, as already stated, transfers to third countries where the powers of state authorities to access information go beyond what is necessary in a democratic society will not be considered as safe destinations for transfers. In this regard, the Court’s judgment requires that an adequacy decision implies a broad analysis of the third country domestic laws and international commitments.
Therefore, the Working Party is urgently calling on the Member States and the European institutions to open discussions with US authorities in order to find political, legal and technical solutions enabling data transfers to the territory of the United States that respect fundamental rights.
If by the end of January 2016, no appropriate solution is found with the US authorities and depending on the assessment of the transfer tools by the Working Party, EU data protection authorities are committed to take all necessary and appropriate actions, which may include coordinated enforcement actions.
Unambiguous and scathing words from the Working Party, making it clear they don’t consider existing arrangements satisfactory, or in compliance with EU privacy laws, and indicating that, in the absence of satisfactory arrangements by early next year, EU data protection authorities may take appropriate and coordinated actions, which could include a halt to data transfers. The clock is ticking …
Weltimmo s. r. o. v Nemzeti Adatvédelmi és Információszabadság Hatóság, Case C‑230/14 (1 October 2015)
Given the publicity the Schrems case received, you could be forgiven to think nothing else of importance had occurred in respect of privacy protections in Europe. However, the Schrems case wasn’t the only significant data protection case before the Court in October.
A less publicised ruling on 1 October, in Weltimmo s. r. o. v Nemzeti Adatvédelmi és Információszabadság Hatóság, Case C‑230/14, could also have lasting impact on businesses operating in Europe.
This case was brought by the Hungarian data protection authority, the Nemzeti Adatvédelmi és Információszabadság Hatóság, against the Slovakia-based Weltimmo, which operates a real estate advertising business in Hungary.
Advertisers complained to the data protection authority after Weltimmo continued to charge service fees despite requests to stop the advertising services and, when payments were not made, Weltimmo passed advertisers’ personal data to a debt collection agency. This was in contravention of Hungary’s data protection laws, attracting a €32,000 fine. Weltimmo refused to pay the fine and the Hungarian data protection authority took the matter to the Court of Justice of the European Union.
Traditionally, EU laws allowed businesses with cross-border operations in the EU to be subject only to the data protection regime of the EU country in which they are based. Consequently, the question was whether the Slovakia-based company was required to comply with Hungarian data protection laws.
The Court ruled in favour of the Hungarian data protection authority, meaning that businesses that target consumers in various EU countries, may in the future be expected to comply with the regulations of each relevant country, not just their EU base of operations.
For example, Facebook has been long accused of disregarding the privacy regulations of the various EU jurisdictions, insisting it is subject only to the laws of Ireland, the headquarters of its European operations. The Weltimmo decision raises doubts about the long-term sustainability of that position.
Facebook to notify users of ‘state-sponsored’ cyber attacks
In an interesting move Facebook announced it will join Google in notifying users when it appears they are targeted by state-sponsored cyber attacks.
Starting today, we will notify you if we believe your account has been targeted or compromised by an attacker suspected of working on behalf of a nation-state.
To protect the integrity of our methods and processes, we often won’t be able to explain how we attribute certain attacks to suspected attackers. That said, we plan to use this warning only in situations where the evidence strongly supports our conclusion. We hope that these warnings will assist those people in need of protection, and we will continue to improve our ability to prevent and detect attacks of all kinds against people on Facebook.
Google had a policy in place for notifying users of such attacks since June 2012.
I wrote in some detail about the troubles of Scott McIntyre, ex-SBS sports journalist. McIntyre was fired by the broadcaster over some ill-timed, and controversial, ANZAC Day tweets.
• What’s new in social media: May 2015
• Scott McIntyre v Special Broadcasting Service Corporation
The dispute had failed to settle at conciliation and a Statement of Claim was filed in the Federal Court of Australia on 12 October by Maurice Blackburn. The filing indicates they will argue McIntyre’s termination was unlawful and occurred only after, then Communications Minister, now Prime Minister Malcolm Turnbull had personally intervened in the matter after various influential conservative figures brought the matter to his attention.
The first case management hearing is set down for 6 November, so watch this space.
The case of Turkey’s Sedef Kabas
While we are talking about Twitter and expressing oneself, the story of Sedef Kabas, a Turkish broadcast journalist and anchorwoman on the CNN-Turk channel, is worth a brief mention.
Kabas was detained earlier this year by Turkish police over a tweet suggesting a cover-up in a corruption scandal that shook the Turkish government last year. She was referring to a major corruption probe launched against the Turkish government in December 2013, which was effectively circumvented by President Erdogan reassigning and sacking thousands of police and numerous judges, while pushing new laws through Parliament tightening state control over the judiciary and the internet. A prosecutor eventually dismissed the entire matter in December 2014.
In response, Kabas tweeted ‘Do not forget the name of the prosecutor who dismissed the December 17 case,’ and included the name and picture of the prosecutor in question.
She was facing five years in jail on the charge of ‘targeting a public servant tasked with fighting against terrorism,’ but an Istanbul court acquitted her, finding her conduct did not constitute a crime.
Is hate speech free speech?
Closer to home, anti-Islam activist Gary Young is suing Facebook in the Federal Court of Australia, claiming his freedom of political speech has been breached by Facebook after it blocked his access over three days to the ‘patriot’ group, Common Cause, he co-administers on Facebook, under the alias ‘Gee Young’.
He’s now seeking $1 million in exemplary damages.
Facebook has hit the headlines as it has taken an increasingly strong stand on enforcing its controversial ‘real name’ policy, designed to curb abuse and other uncivilised online behaviour on Facebook.
After Facebook blocked Mr Young’s access it sent him a message stating his administrator status would not be reinstated until he proved his identity. Mr Young claims he then sent a copy of his driver’s licence and a copy of the Statement of Claim he later filed in the Federal Court, after which he was reinstated as administrator. He referred to the actions of Facebook as ‘arbitrary, capricious, malicious, obnoxious and vindictive and intended to, and did cause major damage to the applicant.’
The case will return before Justice Jagot on 23 November.
Social media also keeps intellectual property lawyers busy, and off the streets.
The Deadspin and SBNation Twitter suspension
In the United States, the temporary suspension of the Twitter accounts of Deadspin and SBNation over alleged violation of copyright was big news.
With 897,000 and 220,000 followers respectively, these are two respected American sports media accounts, one owned by Gawker Media, and the other by Vox Media.
The suspension was apparently over the posting of college football highlights GIFs, after the copyright owners, including the NFL, issued over a dozen take down notices to Twitter under the Digital Millennium Copyright Act.
• The dancing baby, YouTube, Prince and Universal Music
The accounts were eventually restored, but the copyright owners certainly made a spectacularly public point.
Lorna Jane’s Instagram trouble
Closer to home, Lorna Jane got itself into trouble by lifting a photo from the Instagram account of 19-year-old Queenslander Lydia Jahnke, a keen customer of the activewear company, and proceeding to put it on a range of t-shirts.
Jahnke is now taking steps over the alleged copyright infringement, but Lorna Jane is reportedly keen to settle the matter.
James Wood v The Anonymous Tweeter
In July, American actor James Wood filed a $10 million defamation suit in California against an anonymous Twitter user who called him a ‘cocaine addict,’ among other things.
However, the discovery of the identity of the anonymous tweeter must take a back seat to that pesky little First Amendment, with the court holding Wood must first show he has a likelihood of winning his case before the matter can move forward.
McEloney v Massey  WADC 126 (26 October 2015)
This is an Australian case which involved Facebook postings on a page for British expats living in Western Australia, in which Stephanie Massey called a Perth accountant, Barry McEloney, a ‘clown’ and ‘rude and obnoxious.’
Mr McEloney lost his case when Judge Schoombee found that ‘the defence of honest opinion is made out in respect of all the statements made and conclusions offered by Ms Massey on the Facebook page of Poms in Perth.’
Ms Massey employed colourful language using words such as ‘clown’ and ‘shark’ which were perhaps over the top and exaggerated, but an ordinary reasonable reader of the Facebook page Poms in Perth would have understood that she was expressing her opinion about her specific dealings with Mr McEloney. The usual manner of communicating on a Facebook page is also relevant. The court can take judicial notice that people who exchange comments on a Facebook page or similar blog on the internet often write in half sentences, with abbreviations, keep their comments brief and use colloquial language. It is a different manner of communicating than writing a letter or a report in a newspaper.
The use of words such as ‘in my view’ or in my opinion’ are not decisive in determining whether a statement is the expression of an opinion, but their use indicates that the statement is more likely to have been the expression of an opinion rather than the provision of a statement of fact …
It would have been obvious to a reasonable reader of the Poms in Perth Facebook page that Ms Massey was expressing her opinion about a particular service that she had received when she said that Mr McEloney was rude and unprofessional and displayed poor interpersonal skills.
Mr McEloney was ordered to pay Ms Massey’s costs.
Duffy v Google Inc  SASC 170 (27 October 2015)
This is another Australian case, which arose from six articles published on the Ripoff Report website about Dr Janice Duffy between December 2007 and January 2009, which were then reported on by various other websites.
In September 2009, Dr Duffy notified Google that searches for her name resulted in defamatory results being displayed, caused by the six defamatory articles on the Ripoff Report and the other websites. She requested the removal of the offending paragraphs and hyperlinks. Google didn’t act on the request until 2011, when it removed the materials relating to the six articles on the Ripoff Report, but not the other websites.
In July 2011, Dr Duffy sent another notification to Google noting that searches for her name resulted in the display by the autocomplete function of the defamatory alternative search term ‘Janice Duffy Psychic Stalker,’ and requested its removal. Google failed to act on this request.
Google denied publication and relied on defences of innocent dissemination, qualified privilege, justification and contextual truth.
In a judgment spanning over 144 pages, the court largely held for Dr Duffy, with Justice Blue striking out several of the defences presented by Google, and holding that Google did publish defamatory material about Dr Duffy, clearing the way for another trial to determine the outstanding issues, including causation and damages.
Google was the sole operator and controller of the Google website. The paragraphs resided on Google’s website. The paragraphs were communicated by Google to the user conducting a search. Google played a critical role in communicating the paragraphs to the user. The physical element of publication is present. Google did not play the passive role of a mere conduit such as an internet service provider who merely provides access to the internet or a telecommunications carrier who merely provides access to the telephone network. Google played an active role in generating the paragraphs and communicating them to the user. The mere fact that the words are programmed to be generated because they appear on third party webpages makes no difference to the physical element. It makes no difference to the physical element whether a person directly composes the words in question or programs a machine which does so as a result of the program. I agree with the analysis of Beach J in Trkulja v Google Inc LLC (No 5)  in this respect.
The mere fact that the paragraphs were generated automatically by Google’s software programs does not prevent Google being a publisher of them after notification by Dr Duffy. If Google personnel were made aware of the existence of the paragraphs generated by Google’s own software programs and failed to remove them, their continuing existence thereafter was the direct result of human action or inaction rather than merely the result of machine operation.
Approaching the question from first principles, Google was a secondary publisher of the paragraphs after notification and lapse of a reasonable time to allow for their removal (if that occurred).
… I conclude that Google was a publisher of the paragraphs relating to Dr Duffy if and to the extent that Google failed to remove them after a reasonable time elapsed after effective notification by Dr Duffy.
The case returned to Court yesterday for a directions hearing.
Harassment and threats
In a timely warning over the general standards of online behaviour, a 25-year-old Sydney man has been charged by NSW Police after he allegedly sent rape threats to women defending their friend from a so-called ‘slut-shaming‘ attack on social media.
This incident started with an attack on a Sydney woman after a screen shot of her Tinder profile was shared by strangers on Facebook. Her Tinder profile included a line from Nicki Minaj’s ‘Only,’ from the verse contributed by Drake. The quote attracted offensive and derogatory comments by people not familiar with the song and taking the quote out of context.
Type [of girl] to wanna suck you dry and then eat some lunch with you …
Drake, ‘Only,’ by Nicki Minaj
When a friend noticed what was going on, and intervened, she and her friends allegedly began receiving rape and death threats online.
Mr Zane Alchin appeared before Newtown Local Court last Thursday, charged with using a carriage service to menace, harass or offend. His lawyer indicated he’s likely to plead guilty. He will return to court on 8 December.
The women involved noted the police struggled with the complaint initially, and could have acted faster and with more resolve.
In Scotland a juror failed in her appeal against a finding of contempt of court after she used social media to check the identity of a witness in the case.
Together with the other jurors, she was warned by the sheriff clerk not to make any enquiries on Facebook or other social media about the case.
Many thanks for a great article, it was very interesting and informative.