In this month’s social media round-up I revisit the infamous ‘dancing baby’ copyright case, and take a brief look at preserving social media evidence for litigation.
Then, I explore the latest privacy developments in the European Union, including Facebook’s troubles in France with both the data privacy regulator and the government’s competition, consumer protection and anti-fraud agency, and in the courts.
I finish off with a few recent Australian workplace related cases that touch on social media, and a recent ASIC investigation into potentially misleading representations on social media.
• Social media round-up: January 2016
• Social media round-up: December 2015
• Social media round-up: November 2015
• Social media round-up: October 2015
• Social media round-up: September 2015
The toddler from the infamous YouTube ‘dancing baby’ video turned 10 years old in January, but the subsequent copyright case that engulfed YouTube, Prince, Universal Music and the dancing baby’s mom, continues unabated in the courts.
Last September I reported on Stephanie Lenz’s significant interlocutory victory, with the US Court of Appeals for the Ninth Circuit clearing the way for her case to go to trial, and holding copyright holders must consider the fair use provision of the Digital Millennium Copyright Act (DMCA) before sending takedown notices to online services, such as YouTube.
However, Universal Music is not backing down – in October they filed a petition for a rehearing of the matter, before the full court. So has the Electronic Frontier Foundation (EFF), on behalf of Ms Lenz.
The EFF petition asks the court to decide whether the DMCA ‘intended to grant private parties the practical power to censor speech based on an unreasonable belief that a copyright has been infringed, as long as that belief is (like all beliefs) subjectively held’. The Universal Music petition asks the court to dismiss Ms Lenz’s claim for damages.
Amicus briefs have also been filed in the matter by Automattic (the company behind WordPress), Google, Twitter and Tumblr supporting the rehearing applications on the basis of their significant business interest in the statutory features of the DMCA intended to deter unfounded takedown notices.
At the rate this case is progressing, the dancing baby is likely to be in college by the time it concludes, so watch this space …
Crime (and punishment)
I discussed the troubling subject of ‘revenge porn‘, and the concerning lack of law enforcement options to deal with the issue, in context of previous social media round-ups.
In a hopefully significant new development, on 25 February the Senate Standing Committees on Legal and Constitutional Affairs issued a report titled “Phenomenon colloquially referred to as ‘revenge porn’“.
In its report, among other things, the Committee recommends making the reckless or knowing ‘non-consensual sharing of intimate images’ a federal and state criminal offence, and the empowerment of a Commonwealth agency to issue take down notices for such images.
As social media is ubiquitous, it’s inevitable the medium would have an evidentiary effect on litigation, a risk I first addressed in May 2009.
One of the first cases reported back in 2011 in the United States resulted in legal sanctions in excess of US $700,000 in Lester v. Allied Concrete Company and William Donald Sprouse, over an ‘extensive pattern of deceptive and obstructionist conduct’, involving a lawyer instructing his client to ‘clean up’ his Facebook page because ‘we don’t want blowups of this stuff at trial’.
In 2013, a court in the District of New Jersey found in Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar. 25, 2013) that the plaintiff, who had claimed an inability to work on the ground of a workplace injury, had destroyed and/or failed to preserve, potentially relevant electronic information by deactivating his Facebook account.
Also in 2013, an American attorney was suspended for 5 years after advising a plaintiff suing over the death of his wife to clean up his Facebook photos.
In an Australian context the preservation and discovery of evidence is a critical matter for consideration by lawyers and litigants. While the practice relating to evidence in legal proceedings in Australia is complex, and varies from jurisdiction to jurisdiction, the preservation of relevant evidence is a critical uniform requirement, which will include any relevant social media evidence. Social media evidence will be admissible in litigation if it meets the usual requirements for admissibility: relevancy and authenticity.
The EU-US Privacy Shield
Hot on the heels of the new privacy regulations agreed by the European Union last month, came the announcement in early February that the EU and the United States agreed on a new framework for transatlantic data flows, the so-called ‘EU-US Privacy Shield‘.
Fancy new name, but on first inspection arguably it appears to offer little by way of real privacy protections for citizens of the EU, so its faith remains to be seen.
According to the announcement, the US gave the EU ‘written assurances that the access of public authorities for law enforcement and national security will be subject to clear limitations, safeguards and oversight mechanisms’. Given this subject played a significant role in the Court of Justice of the European Union throwing out the old ‘safe harbour’ arrangements, the details around the restrictions to be imposed on US law enforcement and national security agencies will be of particular importance.
Facebook’s French troubles
Similarly to Facebook’s troubles in Belgium, France’s data privacy regulator, Commission nationale de l’informatique et des libertés (CNIL), recently found Facebook is in breach of the French Data Protection Act over tracking non-members, and using their personal data. CNIL gave Facebook three months to end the practice, or face sanctions.
The French government’s competition, consumer protection and anti-fraud agency, La Direction générale de la concurrence, de la consommation et de la répression des fraudes (DGCCRF), also issued a formal notice accusing Facebook, among other things, of removing content or information posted by users without consultation. The DGCCRF gave Facebook 60 days to comply with French data protection laws, or risk sanctions.
Nudity, art, censorship and the French
France has been delightfully troublesome for social media companies with its acute penchant for privacy …
But the bitter icing on Facebook’s French cake was provided courtesy of France’s love of the arts. Once again, I’m in awe of the French: fiercely protecting privacy and adoring the arts.
Confused? Here is the background to this artistically titillating legal stoush: in 2011 Frederic Durand-Baissas, a 57-year-old Parisian teacher and art lover, posted an image of a well-known nude painting by 19th century painter Gustave Courbet, called ‘L’Origine du Monde’ (The Origin of the World), to his Facebook account. Facebook responded by suspending his account without warning. Frederic responded by suing Facebook in France, demanding they restore his account and pay him €20,000 in compensation.
Subsequently, in March of 2015, Facebook updated its Community Standards page to give more detail and clarity about its policy on nudity. The updated standards now read:
“People sometimes share content containing nudity for reasons such as awareness campaigns or artistic projects. We restrict the display of nudity because some audiences within our global community may be sensitive to this type of content – particularly because of their cultural background or age. In order to treat people fairly and respond to reports quickly, it is essential that we have policies in place that our global teams can apply uniformly and easily when reviewing content. As a result, our policies can sometimes be more blunt than we would like and restrict content shared for legitimate purposes. We are always working to get better at evaluating this content and enforcing our standards.
We also allow photographs of paintings, sculptures and other art that depicts nude figures.”
Facebook argued the case should be determined in a court in California, where it is headquartered, due to the provision in Facebook’s terms of service relating to disputes, and that French consumer rights law cannot apply to users in France because its worldwide service is free.
Last year a court in Paris ruled the case should be heard in France, and last week a French appeals court upheld the decision noting the relevant disputes clause is ‘unfair’ and excessive.
The matter will now move forward in the French courts.
“If (Facebook) can’t see the difference between an artistic masterpiece and a pornographic image, we in France (can).”
Frederic Durand-Baissas, plaintiff
Mary-Jane Anders v The Hutchins School  FWC 241, 19 January 2016
One of the latest social media cases in a workplace context considered whether an employer had valid reasons to terminate an employee who had, in addition to other alleged misconduct, posted derogatory comments on Facebook about her employer, and an unresolved workplace dispute.
Although her privacy settings were restricted to her friends, and the employer was not listed on her profile, nor named in her posts, a number of colleagues who were Facebook friends of Mrs Anders would have understood the comments in question were in relation to her employer.
Following a subsequent critical illness by her husband, and other related workplace issues, Mrs Anders was dismissed on the basis her employer lost trust and confidence in her.
The Fair Work Commission (FWC) found there were no valid reasons to terminate Mrs Anders’ employment, and that the allegations against her were not properly investigated. Given her personal circumstances and long service, the FWC concluded the dismissal was harsh and disproportionate. Nevertheless, the FWC refused Mrs Anders’ application for reinstatement as impractical, and awarded her compensation instead:
In my view reinstatement is impracticable and would affect the continued functioning and harmony of the enterprise and seriously affect productivity and outcomes for students. I am satisfied there is no ability to re-establish a collegial working relationship in the maths faculty and, due to the nature of the business, there are no other palliatives to be availed of. Considering all the circumstances of the case, an order for compensation in lieu of reinstatement is appropriate.
Marroun v State Transit Authority  NSWIRComm 1003, 4 February 2016
In this case Mr Marroun was dismissed over the removal of lost property from the revenue room at Kingsgrove bus depot.
A disgruntled Mr Marroun posted two comments on his Facebook page calling his employer a ‘bastart’ (sic) and ‘really criminal with stars’, two months after his dismissal. The comments remained visible on his Facebook page for several months.
Mr Marroun appealed against his dismissal. In this case, the Commission rejected the appeal and found the termination was warranted. The Commission also noted that even if the appeal was allowed, reinstatement would not have been an appropriate remedy in light of his social media posts.
These cases illustrate that inappropriate social media posts, beyond being a potential ground for disciplinary action and dismissal as illustrated by a growing number of cases, can also affect the subsequent remedy available to a terminated employee.
The QUT incident – the workplace and racial discrimination
There is an interesting matter unfolding at the Queensland University of Technology, involving QUT’s indigenous Oodgeroo Unit, a number of student Facebook posts after three students wanting to use the computers at the unit were asked to leave, and section 18C of the Racial Discrimination Act 1975 (Cth).
The Oodgeroo Unit was established at QUT to provide support for indigenous students attending the university. The unit offers computer labs, quiet places to study, and places to meet with other indigenous students.
According to reports, the matter dates back to 2013, when three non-indigenous students seeking to use the computer lab at the unit were asked to leave when it was established they were not indigenous.
The students involved appear to have taken offence to being asked about their racial identity prior to being asked to leave, and are alleged to have subsequently posted a number of messages on Facebook in relation to the matter, sparking comments from other students:
“Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation.”
“I wonder where the white supremacist computer lab is.”
“My Student and Amenity fees are going to furbish rooms in the university where inequality reigns supreme?
I believe if we have to pay to support these sorts of places, there should at least be more created for general purpose use, but again, how do these sorts of facilities support interaction and community within QUT? All this does is encourage separation and inequality.”
It is further alleged that, after reading the comments, the Equity Director of QUT told the indigenous employee involved that it was just ‘students being nasty’, and that ‘they’re not going to come into your office with a baseball bat’.
The employee is alleged to have gone home feeling sick and stressed, and fearing for her safety, after reading the comments. She is now suing a number of students and staff, on the basis she had suffered ‘offence, embarrassment, humiliation and psychiatric injury’ over their comments and actions.
The matter had failed to settle in the Australian Human Rights Commission and will now be heard in the Federal Circuit Court.
ASIC and corporate social media
On 23 February, Australia’s corporate regulator, the Australian Securities and Investments Commission (ASIC), announced it had raised concerns with several organisations over what ASIC considered to be potentially misleading representations about Self Managed Super Funds (SMSF) in social media advertising.
ASIC’s concerns resulted in the companies involved taking steps to remove or amend their marketing messages on Facebook and YouTube.
The SMSF Taskforce established by ASIC to monitor misleading advertising of SMSFs, has specifically expanded its work since 2014 to include a review of online SMSF advertising through social media platforms such as Twitter, Facebook and Youtube.
This is another timely reminder for Australian companies engaging clients and customers on social media, that they must always comply with the applicable laws and regulations when advertising or otherwise promoting their products and services on social media.
This regulatory interest in social media compliance shouldn’t come as a great surprise to businesses, as the Australian Competition and Consumer Commission (ACCC) issued strong guidelines on social media posts considered misleading and deceptive as far back as 2011, and has actively pursued offenders in the courts.