This month, just in time for the Easter long-weekend, I look at YouTube’s new copyright team, the proposed changes to prosecutorial guidelines in the United Kingdom in respect of the misuse of fake social media accounts, the dangers of online dating, and Facebook’s ongoing privacy troubles in Europe.
I go on to examine briefly the arrest of Facebook’s Vice President in Brazil, and the interaction of free speech and social media in Cambodia and Nigeria.
I also report on the recommendation of the NSW Standing Committee on Law and Justice for the introduction of a statutory cause of action for serious invasions of privacy.
I follow with Facebook’s latest nudity ‘fails’ in Australia and in the US. The Australian story is in the context of International Women’s Day and prominent Arrentre writer, intellectual, and feminist, Celeste Liddle, and the US tale followed the posting of a powerful birthing picture.
Finally, I wrap up with a fascinating employment case out of idyllic Hawaii, resulting from a Hertz employee making fun of a customer on Facebook, and wishing Twitter a happy 10th birthday.
• Social media round-up: February 2016
• 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
YouTube creates new copyright team
YouTube’s copyright adventures could probably fill a book by now, so the news the social media company is creating a new team to minimise the occurrence of copyright related takedown mistakes is not surprising:
The good news is that the feedback you’ve raised in comments and videos on YouTube and beyond is having an impact. It’s caused us to look closely at our policies and helped us identify areas where we can get better. It’s led us to create a team dedicated to minimizing mistakes and improving the quality of our actions. And it’s encouraged us to roll out some initiatives in the coming months that will help strengthen communications between creators and YouTube support.
Note from YouTube’s Policy Team, Spencer from YouTube’s Policy Team
Historically, YouTube’s takedown processes have been a bit of a dog’s breakfast, with materials taken down even where legitimate, legal copyright exemptions applied, leading to potentially unfair outcomes, and legally questionable account terminations.
It remains to be seen whether this new proactive approach will result in better outcomes.
Crime (and punishment)
When mum goes rogue
In a timely warning for all teenagers who publish their exploits on social media, a Sydney mother turned her teen son in to police after she saw a video of him uploaded to Facebook going viral, showing him throwing a chair out of a moving train.
The teen has now been charged with two counts of entering the crew compartment of train without permission, protruding part of the body from an open door or window on a train, throwing an item from a public passenger vehicle or train, and throwing rocks or other objects at vehicles and vessels. He’s now facing the possibility of a maximum jail term of five years …
Proposed new prosecutorial guidelines in the United Kingdom
Proposed new prosecutorial guidelines by The Crown Prosecution Service would allow charges to be laid against adults in the United Kingdom for using so-called ‘troll’ accounts on social media, where those accounts are used to cause anxiety or distress to another person, effectively criminalising the misuse of fake social media accounts.
The revised guidelines cover cases where offenders set up fake profiles in the names of others, as well as advising prosecutors on the use of social media in new offences, such as revenge pornography and controlling or coercive behaviour in an intimate or family relationship.
Advice has been added to the guidelines about the use of false online profiles and websites with false and damaging information. For example, it may be a criminal offence if a profile is created under the name of the victim with fake information uploaded which, if believed, could damage their reputation and humiliate them. In some cases the information could then be shared in such a way that it appears as though the victim has themselves made the statements This may amount to an offence, such as grossly offensive communication or harassment.
New guidelines published on the prosecution of those who abuse victims online, The Crown Prosecution Service (3 March 2016)
Ashley Madison users, their spouses, targeted by blackmail
If you thought the Ashley Madison privacy breach was yesterday’s news, you would be wrong.
It is now being reported that users, and their spouses, are receiving blackmail letters, demanding the payment of thousands of dollars to avoid their membership being made public. The messages demand payment in Bitcoin, which would make tracing the blackmailer more complicated.
Online dating and safety
While on the subject of online dating, the case of Jason Lawrance is worthy of notice. Mr Lawrence was sentenced this month in Derby Crown Court to serve at least 12 years and six months in jail for raping five women, attempting to rape a sixth, and sexually assaulting another, after meeting them through match.com.
In the course of delivering his sentence, Judge Gregory Dickinson urged a review of safety measure for online dating sites: ‘The seriousness of this case provides both the need and the opportunity to learn something and to take steps to increase protection for others in the future … It does seem to me consideration should be given to a system of automatic referral to the police or some other central agency of any complaint that is made.’
Brazil arrests Facebook Vice President
In another skirmish in the encryption ‘wars’, and in a highly unusual move, police in Brazil arrested Argentine national Diego Dzodan, Vice President of Facebook in Latin America, after the social media company allegedly failed to comply with court orders to hand over data from a user’s WhatsApp messaging service account for use in a criminal investigation into drugs trafficking.
The police acted despite Facebook making it clear it has cooperated with authorities to the extent of its capabilities, and highlighting that its WhatsApp messaging service does not store content and it is encrypted in a manner that technologically prevents Facebook from complying with certain aspects of the court orders. Facebook characterised the arrest as an ‘extreme and disproportionate measure’.
Mr Dzodan has since been released, but no doubt this arrest wasn’t the last we heard of the increasing tension between privacy, encryption, law enforcement, and national security, especially as technology companies appear to be planning to strengthen encryption on their devices and services.
Freedom of speech
Social media raises a great variety of issues around the world. In some nations speaking up on social media, especially in a manner that’s considered critical of the government, can result in serious consequences.
Kong Raya, a 24 years old political science undergraduate university student, is the first to be jailed in Cambodia under tightened social media controls, over asking the public to join his ‘colour revolution’ and ‘inciting crimes’ in an anti-government post on Facebook.
Raya was arrested in August last year, soon after he posted the objectionable comment, and was subsequently charged and tried over his social media post, which reportedly said:
“Does anyone dare to make a colour revolution with me? One day, in the future, I will make a colour revolution to change the regime for Khmer society, and even if I’m jailed or killed, I will still make it.”
Raya was sentenced to 18 months jail earlier this month, sparking concerns from the United Nations Office of the High Commissioner for Human Rights:
“Freedom of expression is the right of all citizens, and an important feature of a genuine democracy. For someone to face criminal charges over exercising this right – particularly in what is essentially a personal area – is a clear indication of the diminishing democratic space in Cambodia. In Cambodia, there are domestic and international laws that protect the rights to freedom of opinion and expression. These rights are entrenched in Cambodia’s Constitution, and should be promoted and respected by law enforcement officials and the judiciary alike.”
The Prime Minister of Cambodia, Hun Sen, had said he was open to constructive criticism, however, at the same time, he warned online critics, especially those who dare to insult him, can easily be traced and arrested.
Cambodian opposition Senator Hong Sok Hour is also facing up to 17 years in jail, after he was charged over posting a disputed document to Facebook about the nation’s border with Vietnam. The Prime Minister accused him of treason over the affair. He was subsequently charged with ‘forging a public document’ and ‘incitement to cause social unrest’. The Senator’s most recent bail application was turned down by the Supreme Court on the basis his release from jail ‘could cause chaos to society.’
In the meantime, the Cambodian Prime Minister allegedly has been busy buying Facebook likes and filing a defamation lawsuit against opposition leader Sam Rainsy, who raised the issue after The Phnom Penh Post published an article analysing the questionable sources of the PM’s Facebook likes.
Nigeria’s legislature is intent on passing a bill titled ‘Frivolous Petitions Bill 2015 (SB. 143)‘, but widely known as the ‘anti-social media bill’.
The Bill, described as ‘An act to prohibit frivolous petitions; and other matters connected therewith,’ proposes a two-year jail term, or a 2 million Naira fine ($13,250), or both, for anybody who posts or broadcasts ‘abusive’, ‘false’ statements via messaging or social media services:
Where any person through text message, tweets, WhatsApp or through any social media post any abusive statement knowing same to be false with intent to set the public against any person and/or group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction shall be liable to an imprisonment for 2 years or a fine of N2,000,000 or both such fine and imprisonment.
The bill would also mandate petitioners to the government to have their petitions accompanied by an affidavit sworn in the High Court of a State, or the Federal High Court, confirming the content of the petition to be true and correct.
The latest public hearing on the Bill took place earlier this month. The Bill continues to attract heavy criticism on the basis it breaches the Constitution of Nigeria, and it is contrary to the principles of democracy and free speech.
Last month I had a very brief look at social media as evidence in courts.
Currently, there is an interesting dispute unfolding in Louisiana, in the United States, about the level of authentication required for social media evidence before it becomes admissible in a criminal trial. The evidence in question involves social media threats allegedly made by Demontre Smith, a New Orleans man, charged with aggravated assault with a firearm. The trial judge held the prosecution had satisfied the authentication burden at the preliminary hearing, and could introduce the social media threats as evidence at trial.
That determination is now the subject of an appeal before a three-judge panel of the 4th Circuit Court of Appeal.
While the appeal is relatively limited in its scope, the real underlying question is whether higher authentication standards should apply to social media evidence, given social media websites are vulnerable to being compromised by hackers, shared passwords and accounts, and various methods of digital tampering.
Facebook’s German troubles
Facebook has had a tough time in Europe when it comes to privacy issues.
A privacy lawsuit against the social media company resulted in the invalidation of the EU-US ‘Safe Harbour’ framework by the Court of Justice of the European Union in October last year, leading to sweeping reforms of EU privacy laws, and a new set of EU-US ‘Privacy Shield’ arrangements.
In November last year, a Belgian court gave Facebook 48 hours to stop tracking internet users who are not members of Facebook.
Last month France also gave Facebook three months to stop tracking internet users who are not members of Facebook, and issued a formal notice accusing the social media company of removing users’ content without consultation.
Now, the German federal competition authority, the Federal Cartel Office, Bundeskartellamt, is investigating Facebook over its data collection practices in conjunction with its dominant market position, exploring whether the company is using unlawful terms and conditions relating to the collection and use of consumer data in the context of its market dominance.
Subject to the result of further market investigations, the Bundeskartellamt has indications that Facebook has a dominant market position in the separate market for social networks. Facebook collects a large amount of personal user data from various sources. By creating user profiles the company enables its advertising customers to better target their advertising activities. In order to access the social network, users must first agree to the company’s collection and use of their data by accepting the terms of service. It is difficult for users to understand and assess the scope of the agreement accepted by them. There is considerable doubt as to the admissibility of this procedure, in particular under applicable national data protection law. If there is a connection between such an infringement and market dominance, this could also constitute an abusive practice under competition law.
Bundeskartellamt initiates proceeding against Facebook on suspicion of having abused its market power by infringing data protection rules, Bundeskartellamt (2 March 2016)
On the upside, it has been reported that prosecutors in Hamburg decided to drop an investigation into Facebook sparked by the filing of a lawsuit by Cologne-based lawyer Christian Solmecke and Bavaria-based lawyer Chan Jo-Jun against Mark Zuckerberg over the alleged violation of Germany’s laws against inciting hatred and displaying Nazi symbols, by not removing, or not removing fast enough, such posts from the social network.
Online hate speech had become a focus for German authorities in recent months, after a large number of refugees had entered the country resulting in a growing backlash against migrants.
Late last year a number of social media companies, including Facebook, agreed to work with German authorities in an attempt to crack down on online hate speech.
French parenting gets a new twist
French police is actively warning parents to be mindful of the photos of their children they are posting to social media:
Meanwhile, experts in France are warning parents that posting intimate pictures of their children could be in breach of strict French privacy laws, potentially resulting in heavy fines of up to €45,000, or even a year in jail, if their children later make a complaint.
This of course presumes the kind of relationship with your child where they would be inclined to sue you … or see you in prison.
Privacy in New South Wales
Last month I noted the report issued by the Australian Commonwealth Senate Standing Committees on Legal and Constitutional Affairs, recommending the criminalisation of ‘revenge porn’.
In related news, this month the NSW Standing Committee on Law and Justice issued a report titled ‘Remedies for the serious invasion of privacy in New South Wales,’ in which the Committee recommends the introduction of a statutory cause of action for serious invasions of privacy, based on the model proposed by the Australian Law Reform Commission in its 2014 report ‘Serious Invasions of Privacy in the Digital Era‘.
Under the proposal a person could sue for damages if their privacy has been recklessly or intentionally breached. Law reform, and other, bodies have long called for the introduction of laws dealing with the serious invasions of privacy, but in the past governments had lacked the appetite to take action.
The rapidly changing social media and technology landscape will perhaps provide a new impetus for action. However, state-based legislation, unless implemented uniformly across all States and Territories, could be a nightmare compliance scenario for businesses.
Your images and social media
In the privacy context I also recommend a fantastic article published on The Conversation by
Associate Professor of Intellectual Property Law at Drake University, Shontavia Johnson, titled ‘Can you sue if someone posts an unflattering photo of you on social media?‘.
The article offers a useful, but somewhat depressing, exploration of your rights (in an American legal context) in circumstances where someone else posts pictures of you on social media.
Nudity, censorship and Facebook
Last month I wrote about Facebook’s troubles in France, over its suspension of a Parisian teacher after he posted a picture of ‘L’Origine du Monde’ by Gustave Courbet, a well-known 19th century classic. That case is still working its way through the French courts.
This month Facebook stepped in it again in Australia, over the image of two Aboriginal women in traditional attire, accompanying the transcript of a 6000-word speech delivered by prominent Arrentre writer, intellectual and feminist, Celeste Liddle, marking International Women’s Day. The image was added by the publisher of the transcript, New Matilda, but saw Liddle suspended for 24 hours, and anyone else who shared the article.
In response, Liddle launched a change.org petition protesting Facebook’s action, which had resulted in her being suspended for a further three days. If you sign the petition, be careful not to share it to Facebook because, you guessed it, Facebook will suspend you!
Facebook’s other ‘nudity’ furore comes from the Big Apple, in the United States, after a new mother, Francie, had posted a birthing image to a private Facebook group called ‘NYC Birth’. The group is dedicated to ‘pregnant people, people trying to conceive, those who have birthed their children in NYC, and adoptive parents.’ The group has 836 members, and it would appear at least one of them didn’t appreciate the birthing photo posted to a private group dedicated to … birthing, and reported the image to Facebook.
Facebook sprung into action and removed the photo within an hour of it being posted, and Francie was promptly blocked. The owner of the ‘NYC Birth’ group, Nora Painten, was perplexed by Facebook’s actions:
“These are not sex acts. This is not pornography. Hopefully, mothers posting their birth photos (which are often among their most treasured possessions) will bring attention to this issue and free others to share their joyful and life-affirming images without fear of being shamed or censored.”
An utterly ridiculous and confused state of affairs at Facebook …
In an interesting case out of Hawaii in Howard v Hertz Global Holdings, Inc., the court decided Hertz could not be held responsible for its employee’s comments on his own Facebook page about a customer, Maurice Howard, in which Shawn Akina made fun of Mr Howard’s race, sexual orientation, and announced that his credit card has been declined. Mr Akina’s employment was subsequently terminated by Hertz, after the matter was brought to his supervisor, Ms Rose Fernandez’s attention.
The customer responded by suing Hertz for negligent retention, supervision and training, with all three claims requiring the standard proofs for negligence: (1) the existence of a duty; (2) breach of that duty; (3) causation; and (4) damages.
The court acknowledged the seriousness of Akina’s actions, but held that, in the particular factual circumstances of the case, the plaintiff failed to establish the duty element for any of his claims, thus Hertz cannot be found negligent and liable for the actions of its employee:
Akina’s post, and many of the follow-up comments, were indisputably despicable. The statements on Facebook included confidential financial information, made light of violence, used a racist term, and ridiculed Howard’s sexual orientation. None of this was lost on Fernandez and Hertz, who responded by disciplining those involved.
That said, Howard has not demonstrated the existence of a genuine issue of material fact that Fernandez or Hertz foresaw or should have foreseen the danger posed by Akina and should have been more closely supervising his Facebook use earlier or should have fired him earlier.
Hertz did have a handbook that addressed safeguarding customer information … The handbook included a discussion of employment practices of nondiscrimination and a lack of tolerance for violence … While Hertz therefore could be said to have recognized these dangers, the law does not impose strict liability on an employer every time an employee steps out of line.
For Howard to establish a tort duty under Hawaii law, it is not enough to point to the handbook as evidence that Hertz foresaw the danger of disclosing private customer information. Hawaii’s courts have made clear, “The concept of ‘duty,’ however, involves more than mere foreseeability of harm.”
Happy 10th birthday Twitter!
Before signing off for March, I would be remiss if I didn’t wish Twitter a happy 10th birthday.
Twitter was founded on 21 March 2006, although it wasn’t launched to the public until 15 July.
Today Twitter has over 332 million active users, and revenue of $2.21 billion.
In those ten short years Twitter had become a tool of revolutions. A forum for public celebration and grief. The place where the world goes for breaking news. It helped creating countless new global connections. And it has given us more scandals and moral panics than any other medium in human history …