November has been another unrelenting and exciting month in the world of social media, making it next to impossible to distil down the plethora of court cases and related stories, mostly ranging from social media disasters to even bigger social media disasters.
These latest stories continue to highlight the need for public education on social media etiquette, and the potential legal consequences of social media use, especially the criminal aspects of certain online behaviours.
The common thread of these stories continues to be a lack of proper appreciation of the fact that social media is a global, public and viral broadcast medium, and saying or doing inappropriate or criminal things on social media doesn’t make it any more acceptable, tolerable or legal.
I’m gong to kick off with one my favourite social media stories that doesn’t neatly fit into any particular category, but which is certainly a cautionary tale about what you post to social media.
Perth woman, Chantelle, was having the time of her life on Melbourne Cup Day at Flemington, on the biggest Tuesday in Australia’s calendar. Her day was crowned by an $825 win, after she backed the winner of the race that stops the nation, Prince of Penzance. In her excitement she posted a picture of herself to her Facebook page, holding the winning ticket, ‘Winner, winner chicken dinner,’ she exclaimed.
However, when she tried to claim her prize, just 15 minutes later, someone else had already cashed in her prize, using the bar code she posted to social media. There is a lesson in that story for all of us eager social media beavers …
Even Kylie Jenner knows some moments are not meant for social media:
“We’ve grown up in front of the cameras, but we still try to keep as much privacy as possible. We’ll spend days together as a family, or plan special dinners with each other when the cameras aren’t rolling and none of us are posting on Instagram or Snapchat. It’s important and healthy to keep some moments to yourself.”
Kylie and Kendall Jenner tell what they don’t put on social media, The Sydney Morning Herald (22 November 2015)
In the workplace context, people getting fired from their jobs over conduct on social media is becoming a regular occurrence, which should serve as a warning to all.
Man ‘likes’ picture on Facebook, gets sacked
Perhaps one of the more sympathetic stories in this context comes from Norwich in England. Troy Garrod, once an aspiring model, had worked at Bertrams Books’ warehouse since 2011. One day, while at home relaxing, he noticed a colleague had uploaded a photo of a jumper with five wolves on the back laid over a chair, with the comment ‘OMG I’m f**king crying…. I’m sure there’s a wolf fleece appreciation page pahahaha.’
Along with several dozen other people Garrod ‘liked’ the picture and moved on with his day and thought nothing more of it.
A few days later, reportedly he received a text message informing him he was fired – apparently, his employer interpreted his ‘like’ of the jumper as bullying a colleague over their fashion-sense.
Man calls female journalist a ‘sl*t’ on Facebook, gets sacked
Closer to home, in a far more controversial and less sympathetic case, which caused me to come out as a feminist in support of journalist Clementine Ford, a man was fired from his job by Meriton Serviced Apartments after writing ‘sl*t’ in a comment on one her posts made on White Ribbon Day, designed to highlight abuse directed at women on social media.
Admittedly, a closer inspection of Michael Nolan’s Facebook account also revealed other questionable posts, and his employer publicly responded by noting that ‘Meriton Group does not condone this type of behaviour.’
Using a carriage service to menace, harass or cause offence
The bad run of SBS employees with social media continued in November.
Nicholas Hogan posted a publicly visible Facebook post where he threatened to kill police, just hours before the funeral of a NSW police employee tragically murdered by a radicalised young man: ‘I’m going to kill a police officer this morning in the name of Allah.’
Unsurprisingly, NSW Police did not take the post lightly, especially in an atmosphere of increased national security concerns in light of recent local and international events. Mr Hogan was promptly arrested and charged with using a carriage service to menace, harass or offend.
In Australia, using a carriage service to menace, harass or cause offence (s474.17), or to make a threat (s474.15) are criminal offences under the Commonwealth Criminal Code, and the internet is a carriage service for the purposes of the Code.
One can’t even begin to imagine why anyone would post such a statement on social media in this day and age. Mr Hogan’s explanations included that he had consumed 10 pints of beer prior to writing the post, he is a staunch atheist, and the post was intended purely as satire.
Magistrate Spence was not amused by the actions of Mr Hogan, nor swayed by his explanations, and told him that he is ‘going to have to wear a conviction’, as he sentenced Mr Hogan to a 24-month good behaviour bond.
It’s unclear what action, if any, SBS will take against Mr Hogan.
The one piece of solid advice that comes out of this sorry saga is, ‘don’t drink and social media’.
The Schrems Facebook actions continue to reverberate
Last month I reported on Austrian privacy activist, Max Schrems’ regulatory case against Facebook, which culminated in a decision by the Court of Justice of the European Union that invalidated the ‘safe harbour’ framework in place between the EU and the United States which facilitated the transfer of personal data.
Consequently, the European Commission issued interim guidelines for transatlantic data transfers, and has promised a new deal on the issue with the US within three months.
Facebook’s European privacy troubles with Schrems continued in November, as he pursues his separate privacy class action against Facebook, claiming €500 in damages for each of the over 25,000 participants who signed up to the action. Austria’s Supreme Court is now set to decide whether to allow the matter to go ahead as a class action.
Belgium v Facebook
In the meantime, on 9 November a Belgian court gave Facebook just 48 hours to stop tracking internet users who do not have accounts with the social network or risk fines of up to €250,000 a day.
Facebook uses a special ‘cookie’ that stays on an internet user’s device for up to two years if they visit a Facebook page, such as the page of a friend, a band or a political party, even if they are not a member of Facebook.
Facebook is able to obtain data from that cookie when the internet user in question returns to a Facebook page, or to any page where they can like or recommend via a Facebook link.
The court held this was a breach of Belgian privacy laws, as Facebook is not entitled to use such personal data without the internet user’s express consent.
NSW Police illegally hacks private Facebook page
In a case that revealed a potentially serious breach of privacy by NSW Police, a NSW magistrate reportedly branded police action in hacking a Sydney man’s private Facebook account reprehensible and a ‘criminal offence’.
Rhys Liam Halvey was creating internet meme style images of NSW police officers in humorous, and admittedly unflattering, situations and posting them to his private account. NSW Police conducted a ‘surveillance’ of the closed Facebook page over several months before arresting Mr Halvey and charging him with three counts of using a carriage service to offend police, and a further three counts of publishing an indecent article.
Senior Constable Daniel Moss, who spied on the Facebook page using another person’s user name and password, was reportedly asked by Magistrate Brown: ‘You use the term “monitored” the Facebook account of Rhys Brown … you went into that account frequently?’
‘Yes, I did,’ replied Moss.
‘So … you didn’t obtain a Supreme Court warrant … you didn’t obtain any judicial authorisation to invade the privacy of Rhys Brown’s Facebook, did you?’ asked the Magistrate.
‘No,’ Moss responded.
It was also reported, somewhat worryingly, that the police prosecutor then sought an adjournment so the Crown could argue the ‘public immunity aspect’ of certain police ‘methodology’ used to ‘access data’. When that application was denied, a senior police officer intervened in the matter with two affidavits, one ‘confidential’, the other open, in which he supported the investigation, and requested the officer be excused from further cross-examination ‘about how certain Facebook posts were obtained’, adding it would be ‘injurious’ to the public interest if ‘those questions were to be answered’.
The case was eventually withdrawn and dismissed, with a $14,429 costs order against the police. NSW Police now apparently investigating the matter internally.
John Rashad Franklin also known as DJ Rashad Hayes v The Daily Holdings, Inc. etc., et al. 2015 NY Slip Op 08139
– 12 November 2015
News Corp. had run into defamation trouble in the US over a report about an alleged fight between rappers Chris Brown and Drake, and their entourages, which appeared in the now defunct iPad only publication, The Daily.
Among other things, The Daily quoted the first sentence of a tweet sent by John Franklin, a.k.a. DJ Rashad Hayes, in response to two of his friends tweeting him about the fight:
“I was gonna start shooting in the air but I decided against it. Too much violence in the hip hop community.” (emphasis added)
Franklin sued News Corp, arguing The Daily ‘purposely did not include the second sentence because many readers of the tweet would rightfully interpret the full tweet as being a social commentary made in jest.’
News Corp. responded by submitting that it was a direct quote from Franklin, and as such it’s not actionable because it isn’t false.
The court was having none of that and held that:
A reader could read the alleged defamatory statement in the context of the rest of the article and think that plaintiff was actually present in the club, prepared to shoot a firearm; whereas, a reader of plaintiff’s isolated statement on Twitter may not have the same impression. In this unique case, the context of the two versions of the same statement is crucial.
Even if we were to adopt the “own words” defense, we find that it would not apply here where a comparison of the two statements reveals the potential for them to have different effects on the mind of the reader.
Social media defamation cases rise in the UK
While the overall number of defamation cases dropped in the UK by 27%, to the lowest level since 2008/2009, social media related defamation cases increased slightly, revealed a report issued by Thomson Reuters on 16 November.
Thomson Reuters found the number of defamation cases which were linked to social media was one of the only categories in which an increase was recorded, up 38%, although that increase still only contributed to a total of 11 such cases in 2014/2015.
Judges and juries
Judges and social media
Above the Law, reported on a cautionary tale of social media involving a US federal judge in California, and a case he presided over, which is now the subject of an appeal.
One of the grounds of appeal is that the judge’s Twitter account followed one of the parties to the case on Twitter, and the judge sent out a tweet connected with the case which was allegedly in breach of his judicial conduct obligations:
Judge Shubb issued his order denying Defendants’ motion on April 17, 2015, at 2:45 p.m. Over the next two hours, the Sacramento AUSAs used their “@EDCAnews” Twitter account to broadcast eight congratulatory Tweets concerning Judge Shubb’s order and the case’s merits to their office’s Twitter followers. Defendants have since confirmed that, through his then-public Twitter account, titled “@nostalgist1,” Judge Shubb “followed” @EDCAnews and thus received those Tweets. The mere existence of social network relationships between a judge and one of the parties appearing before him creates an appearance of bias and raises “significant concern” regarding the risk of ex parte communications. Those concerns materialize when a “followed” party posts Tweets regarding the case’s merits and the judge’s reasoning, which are then directed to the judge in his capacity as a follower.
Additionally, that evening at 9:51 p.m., Judge Shubb completed the feedback loop by posting on his @nostalgist1 public Twitter account: “Sierra Pacific still liable for Moonlight Fire damages.” Just beneath this post, Judge Shubb linked to an article with the same title from the Central Valley Business Times. Contrary to Judge Shubb’s imprimatur, the title was false. Sierra Pacific was never found liable and has paid no damages. Indeed, [retired Superior Court] Judge [Leslie C.] Nichols, the only neutral to evaluate the merits of this joint prosecution, found the government’s partner unable to make a prima facie case against Defendants. In the federal settlement, Defendants expressly disclaimed liability and have never paid a cent in damages.
Judge Shubb’s inaccurate public post violates Canon of Judicial Conduct 3A(6) and only increases the appearance of bias. It also prejudices Sierra Pacific and all Defendants in the pending state court appeal regarding the Moonlight Fire. When a judge selectively posts third-party communications pertaining to his or her cases, it necessarily creates the appearance of bias, especially with respect to articles that are inaccurate and prejudicial. The act of picking and choosing one article of many reveals a willingness to step out of the role of a neutral. By assenting to and posting a particular article, the court entangles itself with the message and slant of that article, thereby creating the appearance of having picked sides or of favoring one spin over another.
Appellant’s Opening Brief, United States of America vs Sierra Pacific Industries, et al, Appeal No. 15-15799 in the United States Court of Appeals for the Ninth Circuit
This will be an interesting appeal case to watch.
Meanwhile, the Louisville Courier-Journal reports that Jefferson Circuit Court Judge Olu Stevens in Kentucky is facing action to remove him from hearing all criminal cases because of comments he made on his personal Facebook page in response to criticism of one of his decisions. The local prosecutor’s office alleges the judge’s Facebook comments call his impartiality into question.
Further complicating this particular case is the racial undertone of the events, which arose from the judge’s dismissal of a jury panel at the request of an African-American defendant’s public defender because 40 of the 41 potential jurors were white.
The Kentucky Commonwealth’s Attorney Tom Wine subsequently asked the Kentucky Supreme Court to clarify, among other things, if the judge had the authority to dismiss the jury based on its racial composition.
In his Facebook comments the judge then defended himself by saying that ‘[g]ranting a defense motion to dismiss a jury panel of 40 whites and 1 black does not make me a racist. And calling people on racist language doesn’t make me a racist either’. The judge also alleged that Wine ‘set the media on (him) to deceive the people while he does his deeds,’ and further said that ‘[g]oing to the Kentucky Supreme Court to protect the right to impanel all-white juries is not where we need to be in 2015. Do not sit silently. Stand up. Speak up.’
Queens juror fined $1,000
In Queens, New York a juror in a criminal trial fell victim to her boredom. While on a jury in a robbery case, she started posting to Facebook details about the trial and jury deliberations because she was ‘dying from boredom’, resulting in a mistrial.
Unfortunately, one of her Facebook friends was a former federal and Brooklyn District Attorney’s Office prosecutor, and she promptly blew the whistle on her over-sharing ‘friend’.
The social juror admitted she was warned at the outset of the trial not to make posts to social media. Consequently, she was found in contempt and slapped with a $1,000 fine.