This month I look at the troubles of the Australian Christian Lobby before the Australian Advertising Standards Board, a few interesting criminal cases that arose from social media use across the world, including a French court decision that held an emoji constituted a death threat, and recent trends in online abuse, bullying, and harassment.
I also offer a personal experience in social media customer service gone wrong, and report on developments in European privacy regulation, and the settlement of the wrongful dismissal case against SBS by Scott McIntyre.
Marriage Alliance is Australia’s newest anti-marriage equality lobby group. They ruffled feathers earlier this year with a tasteless, arguably bordering on the offensive, social media campaign against marriage equality by depicting an office worker with a rainbow noose around her neck, in an attempt to illustrate the allegedly oppressive effects marriage equality would have on the workplace.
The Twitter campaign led to complaints being filed against Marriage Alliance with the Advertising Standards Bureau (ASB).
Anti-LGBTI organisations such as the Marriage Alliance are best left speaking out to their hearts’ content, so we can respond publicly, explaining why the opinions they feel so strongly entitled to are pure nonsense.
However, I suspect some members of the LGBTI community thought it was time to return fire after numerous, arguably hateful and misleading, anti-LGBTI messages by Marriage Alliance, and complaints lodged by members of the public against two television ads featuring same-sex kissing (incidentally, those ads were found to be within the bounds of prevailing community standards: Unilever Australasia, Case Number 0026/15, and Medibank Private Ltd, Case number 0062/16).
The complaints against the Marriage Equality tweet were lodged on the basis the image breached community standards and the Advertiser Code of Ethics by depicting suicide.
In response, Marriage Alliance argued the ASB had no jurisdiction over the matter because their ‘communications fall under the exclusion of “political advertising” …’ They also asserted the tweet in question was not ‘advertising’ because:
It is not promoting a product or a service, nor is it tendering for any business or commercial enterprise of any sort. No money has been paid for its publication and no revenue has been generated by its publication.
Marriage Alliance also submitted their communications were protected under the Constitution:
The Federal Constitution provides an implied protection over “communication on matters of government and politics” [Lang (1997) 189 CLR 520, 558-559]. Constitutionally protected political communication would also include “communication that influences attitudes towards public issues” such as, inter alia, “questions of appropriate parenting”, “use of reproductive technologies generally”, “questions of religion, moral philosophy, history, medical science and sociology” [Stone, A., (2001) No. 2 Melbourne Univ. Law R. 25 1, 18]. Furthermore, “political discussion […] refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about” [Theophanus (1994) 182 CLR 104, 124].
In their view, the rainbow noose ‘is the symbolic, metaphorical and analogous aspect of the Image. The “noose” represents the choking and stifling effect of PC thought and speech policing that employees have suffered, as described in 2.1. The “rainbow” texture represents the ideological current of that PC policing. The woman’s demeanour illustrates the effect that this has on her emotionally and psychologically.’
In response to the suggestion the image was alluding to suicide, Marriage Alliance noted:
There is no allusion to “suicide” in the imagery. The Complainant’s suggestion that the image showed or alluded to suicide by hanging is quite frankly absurd.
The alleged offence felt by the Complainant is based on an intentional and disingenuous misreading of the Image to supposedly ground a complaint under the Code; the complaint itself is but another attempt to silence an opinion on a political issue by way of a mendacious appeal to the provisions of the Code.
Noting Marriage Alliance had already withdrawn the communication, and taking into account the submissions made, the ASB held the social media campaign in question breached section 2.3 of the Code, which provides that ‘Advertising or Marketing Communications shall not present or portray violence unless it is justifiable in the context of the product or service advertised’.
The ASB acknowledged that the adjudication of complaints about political and election material falls outside its charter, noted that same-sex marriage is a current political concern for the Australian community, and concluded for those reasons that its consideration of the complaint should be limited to the image used, and not to the accompanying text or political message.
The ASB concluded that, regardless of whether the image is suggestive of suicide or not, the placement of a noose is a graphic depiction of an activity which leads to serious harm or death, and that the realistic image of a woman with a noose around her neck is a depiction of a consequence of bullying which is extreme and is a depiction of violence which is not justifiable in the context of the product or service advertised and therefore breached s2.3 of the Code.
The ASB further found that the depiction of ‘suicide’ in the communication also breached s2.6 of the Code which states ‘Advertising or Marketing Communications shall not depict material contrary to Prevailing Community Standards on health and safety’.
Crime (and punishment)
Don’t ‘tag’ yourself in Facebook riot pics … actually, please do!
Last month I reported on the teenager who was handed over to police by his own mother, after she saw footage of him on Facebook throwing a chair out of a moving train.
This month I have the story of a 21 years old in Belfast, who diligently covered his face, and pulled a hoodie over his head, before partaking in a riot, but then decided to tag himself in pictures of the riot on Facebook?! It took police no time to identify him as they trawled through social media after the riot.
He subsequently pleaded guilty to rioting, and was sentenced to two years in jail, with one year suspended.
Matthew Doyle – arrested, charged, then ‘un-charged’
Arguably Matthew Doyle got very lucky, although his social media experience doest not appear to have mellowed him:
Following the recent Brussels terror attacks, the London man tweeted about a ‘confrontation’ he allegedly had with ‘a Muslim women’ (sic).
The Metropolitan Police promptly arrested him and charged him under section 19 of the Public Order Act 1986 (UK), for publishing or distributing written material which is threatening, abusive or insulting, and is likely or intended to stir up racial hatred.
Fortunately for Mr Doyle, the Crown Prosecution Service (CPS) informed the Metropolitan Police that it does not have a charging discretion in respect of offences under s19, which resulted in the charges against him being promptly dropped.
Under the prosecution policy of the CPS relating to racist and religious crime, s19 can only be prosecuted with consent of the Attorney General and must be referred to the CPS Counter Terrorism Division to be dealt with by specialist prosecutor.
Ironically, Mr Doyle is a partner in a London PR and talent agency, which makes one wonder whether this was a PR blunder or a PR stunt …
Mohammed Moshin Ameen
In the meantime in east London, Mr Ameen was busy sending out thousands of tweets supporting ISIS, and encouraging terrorism, using numerous Twitter accounts.
Mr Ameen pleaded guilty at the Old Bailey to a range of terrorism related offences. He was remanded in custody, and will face sentencing on 28 April.
In France, Bilal Azougagh was jailed for three months, and fined €1,000, over a threatening gun emoji text message to his ex-girlfriend.
In a first in France, the court in Valence held the emoji text message constituted a ‘death threat in the form of an image’.
Mr Azougagh was very fortunate given offences under article 222-17 of the Criminal Code of the French Republic, which deals with death threats, carry a maximum sentence of three years in prison, and a €45,000 fine.
Online abuse and harassment
It is becoming clear authorities are losing the war against online abuse, bullying, harassment, so-called ‘online lynch mobs’ and, in particular, sexually explicit and violent abuse aimed at women.
Reports from the UK indicate the volume of online abuse is overwhelming law enforcement agencies, and the patchwork of legislation they are forced to rely on to prosecute offenders is not helping them either.
As part of its series on online harassment The Guardian newspaper recently commissioned research into the 70 million comments left on its website since 2006 and made the disturbing discovery that of the 10 most abused writers on its site eight are female, and the two men are black. This finding gives credence to the assertions that much of the online abuse and harassment is driven by an undercurrent of misogyny and racism.
As The Washington Post reports, online harassment is becoming more ‘professional’ and sophisticated. An example of this trend is the recent firing of Alison Rapp, a former product marketing specialist for Nintendo, and an outspoken feminist.
Ms Rapp was targeted by an online lynch mob affiliated with the insidious GamerGate collective, after Nintendo America made several female characters less sexual in its games, and she was wrongly assumed to be behind that decision.
The cyber-savvy mob launched an investigation into every aspect of her life, and made those details public, from her Amazon wish-list to her undergraduate thesis. During the process her thesis was maliciously misinterpreted, and it was also revealed she held a second job, which according to Nintendo was in ‘conflict with Nintendo’s corporate culture‘, resulting in her dismissal.
Arguably, a company such as Nintendo firing a female employee subjected to sustained online harassment sends a very wrong message, and will only make cyber trolls more rabid.
Online abuse and the NSW Police
Of course when you are trying to stamp out online abuse, it is also unhelpful when your own police force is caught out trolling a female member of parliament with racist and misogynist online abuse …
Sadly the NSW Police has been allegedly caught out doing just that. It has been reported by Fairfax Media that serving NSW police officers have been caught out trolling the Greens member for Newtown, MP Jenny Leong on social media.
The NSW Police Integrity Commission is now investigating the matter after a referral by Ms Leong.
Not a good look for a law enforcement agency tasked with apprehending such offenders.
For some time now I have been advocating social media as a business tool, including a tool for providing efficient and real-time customer service. I have been also highly critical of the insufficient resources devoted, and paltry efforts made, by some organisations that have adopted social media for business uses.
A recent article in The Economist highlighted that a number of airlines now take social media increasingly seriously, warning at the same time that ‘Tweeting is not always an effective way to get a business’s attention.’
A study into social media use by airlines shows that Volaris, a Mexican budget carrier, JetBlue, Etihad Airways, Kenya Airways and Virgin Atlantic are the fastest responders on Twitter, all under 20 minutes.
I had my own lacklustre experience in this regard with an airline recently. The airline’s Twitter profile indicates its social media account is monitored until 9pm on weekdays. I was experiencing an issue with online check-in, which I considered to be a fairly urgent matter relating to a flight next day. First, I tried to call the airline only to be informed by a recording that wait times were well over an hour …
Subsequently I decided to tweet the airline instead at 7.05pm, almost two hours before their active social media monitoring for the day was supposed to end. I tweeted them twice more, and also sent a direct message, before 8.30pm. I didn’t receive a reply until the next morning, on the day of travel.
I can only presume from this experience that the airline in question has no dedicated social media team to respond to customer service queries submitted on Twitter. My guess is that the same people who answer their telephone queries are also expected to handle social media and, on an evening when their phone lines were clearly at a breaking point, social media queries received scant attention from the customer service team.
This experience did remind me of my old advice about corporate social media: ‘Don’t do social media if you can’t be bothered …‘
The European Parliament passed its long-awaited tough new data protection rules aimed at boosting privacy and giving authorities increased powers to pursue action against companies that breach the privacy of EU citizens. The new rules crystallise the so-called ‘right to be forgotten’, and will replace a patchwork of outdated, and often largely ineffective, national privacy rules.
• Facebook’s German troubles
• The EU-US Privacy Shield and Facebook’s French troubles
• Digital privacy continues to evolve in Europe
• The Schrems Facebook actions continue to reverberate and Belgium v Facebook
• Maximillian Schrems v Data Protection Commissioner, Case C‑362/14 and Weltimmo s. r. o. v Nemzeti Adatvédelmi és Információszabadság Hatóság, Case C‑230/14
• Max Schrems’ privacy crusade
• Google’s French affair becomes unforgettable
The new General Data Protection Regulation (GDPR) will enable data regulators to pursue companies for breaches with substantial fines, up to 4% of the annual worldwide turnover for global companies.
I have written extensively about the Scott McIntyre Twitter saga that arose from a number of unfortunately timed and controversial ANZAC Day tweets by Mr McIntyre, that led to his sacking by SBS.
In a highly cryptic joint statement issued by SBS and Mr McIntyre, just an hour before a three-day hearing into the matter was due to begin before the Federal Court of Australia, Maurice Blackburn announced the matter had been settled.
While it would have been interesting to see such a case go to judgment, it was arguably in the best interest of both parties to settle the dispute, although Mr Josh Bornstein of Maurice Blackburn had delivered a poignant parting shot:
“The vigilantes and hypocrites who sought to have Scott sacked and his freedom of speech suppressed after the event included (then Communications Minister) Malcolm Turnbull, (News Corp columnist) Chris Kenny and (Australia’s Human Rights Commissioner) Tim Wilson.
These are people who speak loftily about freedom of speech and when it is inconvenient to them ditch it and try and crush someone whose views they disagree with. They should be ashamed of themselves.”
Mr Josh Bornstein quoted in ‘SBS and Scott McIntyre announce confidential settlement over ANZAC Day tweet sacking‘ (mUmBRELLA, 11 April 2016)
The terms of the settlement have not been disclosed, although SBS did remove a statement issued at the time of the incident, which was critical of Mr McIntyre.
The ordeal clearly didn’t tire Scott McIntyre, evidenced by the dispatch of a new batch of tweets yesterday aimed squarely at ANZAC Day … (I chose not to reproduce these latest tweets, so you will have to visit Mr McIntyre’s Twitter account if you wish to see them).