This is another jam-packed issue of my monthly social media musings.
I look at Google’s lingering French affair, Facebook’s editorial ‘scandal’ in the US, and their WhatsApp troubles in Brazil.
I report on the hate speech headache social media companies getting in France, no speech in Iran, limited speech for Australian Federal public servants, the public apology by the Jalal brothers over their YouTube prank video that ended in a counter-terrorism raid, and the ongoing Facebook defamation saga between Mr Mohareb and the Palmers.
I also examine briefly the problem of revenge porn, naughty jurors, the preservation of social media evidence in litigation, online abuse, including ‘cat fishing’ and the ongoing troubles with online privacy.
This month I finish off with the knock out tweet that cost a Bell Potter ‘legend’ his job, the NSW Police hitting the social media headlines again, and the latest Norfolk Island rebellion.
Crime (and punishment)
Hate speech, France and social media
Facebook, Twitter, and YouTube are the target of three French social justice associations, the Union des Etudiants Juifs de France, the Jewish Students Union, SOS Racisme and SOS Homophobie, who are fed up with hateful content being posted to social platforms with impunity.
The organisations filed a complaint against the social media operators under the French law which requires social media operators to remove racist, homophobic, and anti-semitic materials, and tell authorities about such posts.
YouTube prank videos and a raid by thirty counter-terrorism police officers
The saga of the Jalal brothers, Max, 20 and Arman, 18, charged with public nuisance, possessing a prohibited weapon, and behaving in an offensive manner in a public place over their infamous YouTube prank videos, ended with a filmed, public apology at court last week.
The charges were laid after a prank video the brothers had made, in which a man in a stereotypically Arabic dress fires a fake AK47 at a man and his young daughter, causing the man to flee, leaving her daughter behind, caused public outrage. The brothers were subsequently raided by counter-terrorism police.
The man and the young girl were later revealed to be relatives of the brothers and willing participants in the prank.
Given their apology was ordered by the court, it’s not entirely clear whether the brothers learned a lesson from their arrest ordeal, and whether their experience will discourage the burgeoning YouTube prank videos genre.
Revenge porn continues to be a serious issue
Sussex police in the United Kingdom is facing criticism after they failed to charge a man over complaints by five women accusing a man of posting their social media profile pictures to a pornography website accompanied by lurid messages, and contacting them directly with sexual comments. One of the victims is a 15-year-old girl.
Revenge porn has been an offence in the United Kingdom since April 2015.
The police’s decision to caution the man rather than charge him caused outrage in the community. The police is now reviewing the matter.
Facebook’s troubles continue in Brazil
You may recall my report in March about the arrest of Facebook’s Vice President for Latin America, over a dispute with a criminal court whether Facebook had complied with an order requiring it to hand over data from a user’s WhatsApp messaging service in respect of an ongoing criminal investigation.
That arrest followed an order for the suspension of WhatsApp’s services for 48 hours in December last year, after an unknown applicant was granted an injunction in a São Paolo criminal court. The application alleged WhatsApp failed to respond to an earlier court order requiring it to disclose user information. Although the suspension lasted only 12 hours, as it was lifted by an appeals court the following day, it set the scene for some ongoing troubles for Facebook in Brazil.
Matters appears to have escalated again, with another order earlier this month for the suspension of WhatsApp services for 72 hours, by the same judge in Lagarto, Judge Marcel Maia Montalvão, who ordered the arrest of Facebook’s Vice President in March. The next day an appeal court once again overturned this latest order, and restored the service to 100 million Brazilians.
Lawmakers in Brazil are now looking at passing legislation to prevent popular messaging applications from being blocked en masse by the courts.
Social media defamation has been an issue of growing interest over the past couple of years, given this new media had turned average citizens into publishers with a global reach practically overnight.
• Social media defamation on the rise? (27 August 2015)
One of the cases I mentioned briefly last year, involving the Palmers who were sued in the District Court of NSW over comments they made on Facebook about their neighbour, Mr Mohareb, and were subsequently left with $14,721 in legal costs, is back in the news.
Mr Mohareb returned to court seeking leave to prosecute Mr Palmer for alleged perjury, claiming he made a false statement in an affidavit, even though such prosecutions are traditionally brought by the Director of Public Prosecutions, the Attorney General, or a judge, given the restrictions contained in section 338 of the Crimes Act 1900 (NSW). Judge Gibson refused the application, finding Mr Palmer’s evidence was not perjured, but a correct statement of the facts.
Judge Gibson was so concerned by Mr Mohareb’s actions, she wrote to the Attorney General recommending that the right of a private person to seek a prosecution of his opponent for perjury be repealed or limited (see paragraph 86 of Judge Gibson’s judgment). Mr Mohareb was unperturbed and appealed to the NSW Court of Appeal – an appeal he subsequently lost.
Mr Mohareb proceeded to make an identical attempt to prosecute Mr Palmer for perjury, which was swiftly rejected by Judge Gibson. Mr Mohareb then filed a notice of intention to appeal again in the NSW Court of Appeal, with the matter scheduled to be heard in June.
In the meantime, the Palmers’ legal costs have reportedly blown out to over $80,000.
Now, Mr Mohareb finds himself the subject of an application by the NSW Attorney General to declare him a vexatious litigant. If the declaration is made, Mr Mohareb will be prohibited from filing fresh court proceedings without leave of the court, and all his current New South Wales court proceedings will be permanently stayed.
Iran cracks down on social media
In Iran freedom of expression is not a welcome concept and authorities arrested eight people for ‘un-Islamic’ activities over their social media posts, with another 21 people under criminal investigation. The arrests targeted women who posted photos of themselves to Instagram without the hijab, a covering that’s compulsory for women in public. They are facing charges of spreading prostitution and promoting corruption.
Court statements show the authorities identified 170 people with ‘suspect’ Instagram accounts, including 59 photographers and make up artists, 58 models, and 51 fashion salon managers and designers. They are being accused of ‘making and spreading immoral and un-Islamic culture and promiscuity’.
Social media can be a minefield for users at the best of times, but add living in a theocracy to your list of troubles, and you have serious problems.
Australia’s Federal public servants receive a warning
Our Federal public servants have been issued with a warning about their social media activities during the ongoing election campaign. While making it clear they are permitted to take part in political activities as private citizens, the statement sent to public service workers and managers by the Australian Public Service Commission spelled out what’s acceptable and what may be considered stepping over the mark on social media during the next month or so:
Employees should be sure that any comments they make on social media do not seriously call into question their impartiality. This includes ‘liking’ or ‘sharing’ material posted by other users, which will often be seen as an endorsement of the views expressed in those posts.
Admittedly, Federal public servants have been on notice about their social media conduct since 2013, following the high profile case of Banerji v Bowles  FCCA 1052.
Facebook’s editorial ‘scandal’
While discussing free speech, or lack thereof, in Iran, Facebook’s US editorial ‘scandal’ is worthy of mention.
Gizmodo reported that Facebook workers had allegedly routinely suppressed conservative news stories from the social network’s influential ‘trending’ news section, despite the fact they were organically trending among users.
Editorial control in media is not new – newsrooms had always exerted editorial control over what news stories they present.
The reason for concern here is claims by Facebook that its ‘trending’ news is produced by an algorithm that largely produces a list of recently popular topics on Facebook. The allegations would suggest that may not be the case. We also learned that human intervention in ‘trending’ news was largely sparked by criticisms of Facebook back in 2014 when its algorithm overlooked the Ferguson riots and prioritised Ice Bucket Challenge videos over the unfolding historical social justice event in Ferguson.
That a young, hip, intelligent, and socially aware company has concerns about the reliability and quality of articles produced by conservative American ‘news’ outlets such as Breitbart, the Washington Examiner, or Newsmax, is perhaps not surprising.
One could even argue that, like any other organisation that serves up mainstream news, Facebook has an obligation and responsibility to filter out the nutty, conspiracy theories from real news. Ensuring that news stories allowed into a ‘trending’ category are affirmed by newspapers of record, such as The New York Times or The Washington Post, and other distinguished news sources, such as the BBC or The Wall Street Journal, is a responsible course of action in a largely unregulated online environment where news stories are easily manufactured and then amplified in the echo chamber of social media.
Of course there are those who see the matter as an egregious breach of the right to the freedom of expression. Others counter by asserting that disallowing something from trending on a social media network is by no means denying the right to free speech by those who otherwise freely publish, and are accessible online.
Given the growing influence of Facebook on our media consumption, the current American political climate, and the upcoming highly contentious presidential election, this matter will no doubt continue to reverberate.
While we are on the subjects of crime (and punishment), and free speech, California’s proposed Assembly Bill 2101 would enable fining jurors up to $1,500 if they derail trials by Googling the matter, or posting inappropriate comments on social media, is a significant change in handling disobedient jurors.
The interaction of social media and juries has been an increasing concern to the judicial system. While the fine would provide for tangible consequences for jurors who jeopardise trials, its practical usefulness remains to be seen in a society where social media is ubiquitous. It will also be interesting to see what effect such legislation may have on the interactions of jurors with the judiciary, and the justice system generally.
An interesting case out of the United States offers some general judicial guidance when it comes to submitting a social media presence into evidence. In Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar.31, 2016) a proceeding under the Fair Housing Act it was alleged that a prospective landlord declined to rent an apartment after learning that the prospective tenant’s two children would be living with her, causing her emotional harm.
Later it was alleged that certain social media posts had disappeared from the plaintiff’s account that were relevant to her claims of emotional distress.
She responded by asserting that nothing was deleted from her account, but she merely double-checked her privacy settings after a preservation motion was filed in respect of her social media presence by the landlord’s lawyers and, having realised her privacy settings were not set to private as she had always presumed they were, she merely changed the privacy settings on the account. Her lawyers also offered a printed copy of her entire Facebook account.
The judge found that the privacy setting change made by the plaintiff was a breach of the preservation order made by the court, and while the only immediate sanction for her action was a few stern words because there was no loss of the evidence, and the other side was still able to obtain access to the posts in question, there could still be further consequences to her action which compromised her credibility:
By altering her Facebook account, Thurmond violated the Court’s May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants’ counsel’s view. Of course, it does not appear that the postings were deleted, and they remain available for defendants’ use, and defendants have not shown that they were prejudiced by Thurmond’s conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts. Also troubling is Thurmond’s execution of an affidavit that contained a statement she knew to be inaccurate. Although the false statement was ultimately immaterial to the issues in the pending motions, Thurmond’s willingness to sign the affidavit knowing or having reason to know that it included a false statement threatens the integrity of the judicial process. Thurmond’s conduct in both respects is certainly a fair subject for cross-examination at trial and could result in the impeachment of her credibility.
The case is a timely reminder for people involved in litigation, first of the public accessibility of much of their social media presence and, second, their duty to preserve evidence, including social media evidence, although the preservation of social media evidence does raise complex questions:
Despite defendants’ contentions that Thurmond engaged in widespread deletion of posts from her Facebook account, the evidence adduced during the evidentiary hearing demonstrates that the majority of Thurmond’s posts remain accessible on her account, have not been deleted, but were simply hidden from defendants’ view due to an apparent modification of Thurmond’s security settings. The reasonable conclusion from the evidence adduced at the hearing is that Thurmond’s Facebook account was publically accessible until approximately May 15, 2015 when Thurmond adjusted the privacy settings to make the account accessible only to her Facebook “friends,” an adjustment that removed postings from public view but did not delete them. Thurmond has now produced hundreds of postings from her Facebook account that were posted between October 2012 and June 2013. That period of production spans a few months prior to the alleged discrimination through six months after the incident. Although [defense counsel] testified generally that she believes that Thurmond’s printed posts for a few of the months during that period contain substantially fewer posts than she saw in December 2014, she was able to identify only three particular posts described supra.
Twitter’s next stand against online bullying
While law enforcement agencies, and society, continue to struggle to get a handle on online abuse, social media companies are also trying to address the growing concern about the proliferation of socially unacceptable online behaviours which are often particularly targeting women, racial minorities, and the LGBTI community.
The latest initiative announced by Twitter is aimed at making the reporting of social media lynch mobs easier, by enabling users to report multiple abusive tweets at the same time, enabling the victims of online abuse to better demonstrate the context of the attack against them to Twitter.
The tragedy of firefighter Nicole Mittendorff
While talking online abuse, the case of Fairfax County firefighter Nicole Mittendorff in the United States is a tragic case in point …
Ms Mittendorff killed herself after having been subjected to sustained and vicious online harassment. To demonstrate the depths of human depravity, her death appears to have further inspired her cyber bullies, who allegedly were her colleagues … fellow firefighters. If that’s truly the case, this report could equally appear under the ‘Workplace’ heading in this update.
Google’s French affair lingers
Last year I reported on Google’s unforgettable French affair with France’s data privacy regulator, Commission nationale de l’informatique et des libertés (CNIL), which issued it with a notice requiring the company to remove relevant items from its search results not just in the European Union, but worldwide, when a request for removal is submitted to Google under the so-called ‘right to be forgotten’.
As I noted at the time, the notice issued by CNIL could only be appealed to the French supreme court for administrative justice, the Conseil d’État.
I can now report that following a 10-month struggle between Google and CNIL, Google had announced that it filed an appeal against the notice in the Conseil d’État:
The CNIL’s latest order, however, requires us to go even further, applying the CNIL’s interpretation of French law to every version of Google Search globally. This would mean removing links to content – which may be perfectly legal locally – from Australia (google.com.au) to Zambia (google.co.zm) and everywhere in between, including google.com.
As a matter of both law and principle, we disagree with this demand. We comply with the laws of the countries in which we operate. But if French law applies globally, how long will it be until other countries – perhaps less open and democratic – start demanding that their laws regulating information likewise have global reach? This order could lead to a global race to the bottom, harming access to information that is perfectly lawful to view in one’s own country. For example, this could prevent French citizens from seeing content that is perfectly legal in France. This is not just a hypothetical concern. We have received demands from governments to remove content globally on various grounds — and we have resisted, even if that has sometimes led to the blocking of our services.
In defence of this foundational principle of international law, we today filed our appeal of the CNIL’s order with France’s Supreme Administrative Court, the Conseil d’Etat. We look forward to the Court’s review of this case, which we hope will maintain the rights of citizens around the world to access legal information.
A principle that should not be forgotten, by Kent Walker, Senior Vice President and General Counsel (Google Europe Blog, 19 May 2016)
In March CNIL published and infographic designed to illustrate its position about the ‘right to be forgotten,’ and why a global approach was essential for the enforcement of that right.
In fact Google already applies one particular law globally, across all its domains, the American Digital Millennium Copyright Act. Admittedly, copyright protections have a more uniform global acceptance than the very European ‘right to be forgotten’.
Italy’s Garante per la protezione dei dati personali takes on a troll
While we are discussing online abuse, the Italian data protection authority’s order requiring Facebook to hand over all the available details of an Italian user who had set up a fake account in someone else’s name, and to preserve the fake account’s data as evidence, is worth a mention.
The matter appears to have arisen from a personal relationship whereby the creator of the fake Facebook account first created a friendship with the victim, followed by demands for money. When the demands for money were refused, the perpetrator created a fake Facebook account impersonating the victim, and proceeded to post materials damaging to the victim.
The victim approached Facebook, but did not receive a satisfactory response from Facebook. Subsequently a formal complaint was lodged with Italy’s data protection authority, which resulted in the order, and the finding that Italy’s privacy laws had been breached, even though the data in question had been processed by Facebook in Ireland.
The case continues a line of European case law which indicates that companies operating in Europe must comply with the privacy laws of each jurisdiction in which they operate.
Vincent Gallo v Facebook
In another case of classic catfishing, and fake social media profiles wrecking havoc, provocative filmmaker Vincent Gallo filed a lawsuit against Facebook in California over a profile pretending to be him, friending his real-life acquaintances on the social network, including his ex-girlfriend who was then enticed to send compromising picture of herself to the fake account holder.
Gallo had made repeated attempts to get Facebook to delete the fake account, unsuccessfully, highlighting again a well-known problem with Facebook’s takedown processes, despite repeated policy updates and public undertakings.
New ‘catfishing’ laws
‘Catfishing’ is the term for a practice by internet predators who fabricate fake online identities and entire social network circles to trick people into emotional and romantic relationships.
Oklahoma in the United States had just passed a groundbreaking new law, the Catfishing Liability Act of 2016, enabling people to obtain injunctions against people who engage in such practices.
In the past, perpetrators have proved to be difficult to prosecute, even though catfishing can have devastating consequences on the victims, and their loved ones. It is hoped the new Oklahoma legislation will enable victims armed with injunctions to get faster and more meaningful responses from social media operators.
If the law proves to be successful, hopefully lawmakers around the world will consider enacting similar provisions to protect social media users.
Facebook sued over ‘harassing text messages’
In the meantime Facebook is also being sued over an alleged violation of the federal Telephone Consumer Protection Act which prohibits companies from using so-called autodiallers to send text messages to people without their consent. The problem arose after Christine Holt was given a reassigned mobile number which was registered by the previous owner to their Facebook account.
Ms Holt, who is not a Facebook user, soon started receiving a series of text messages from Facebook, intended for the previous owner of the mobile number, suggesting she post status updates, despite Ms Holt contacting Facebook and requesting they stop sending her text messages. This continued over a four-week period.
A June 2015 ruling by the US Federal Communications Commission stated that companies are allowed to send a single text message to reassigned numbers before they face a $1,500 fine per text message.
Another Facebook privacy lawsuit
Suing Facebook is so widely practiced these days, it may one day qualify as an Olympic event … Facebook is facing another privacy class action lawsuit in Campbell et al v Facebook Inc., filed back in 2013 in the Ninth Circuit of the California Northern District Court, over private messages sent and received on the social network which contained a link.
The allegation is that Facebook used information from such messages for targeted advertising by scanning messages for links to boost its social plug-in functionality which connects to ‘Like’ counters on third-party sites, triggering the delivery of targeted advertising to users.
Earlier this month the judge hearing the matter partially certified the class, which of course is not a ruling on the merit of the claim, but only on whether a class-wide approach to resolve the dispute may be appropriate. The plaintiffs were also directed to amend their complaint to reflect changes in the pleading of the case, which is due on 8 June.
FindFace and the Pandora’s Box of facial recognition technology
A facial recognition application released in Russia in February is causing serious privacy concerns as it is being misused already, just a few months after its release.
The creators of FindFace say they designed the service, which can match photographs to people’s social media pages on Russia’s Vkontakte social network, to help people make new friends. The service exploded in popularity after Andrey Mima, a software engineer, wrote a post about using FindFace to identify two women who asked him to take a picture of them six years earlier, but forgot to give him their contact info so he could share the picture with them.
Fast forwards just a couple of months, and the service is being used to identify, shame, and harass Russian women who appear in pornography, with their friends and families being informed of their identity by users of a Russian imageboard called ‘Dvach‘. The perpetrators explain their actions claiming ‘moral outrage’.
Russian cybersecurity firm Kaspersky recently analysed the service and concluded it operates legally because it does not cache data to show any information.
While its use is currently limited to the Russian VK social network, arguably it’s only a matter of time before such technologies will be available to identify Facebook, Twitter, Google or Instagram users.
Angus Aitken, Michelle Jablko, Paul Edwards and that tweet
This story illustrates one the most skilled, surgical, and brutally effective use of social media I have seen in some time.
It all started with Michelle Jablko’s appointment by ANZ as its Chief Financial Officer, followed by a scathing note to investors about the appointment by Angus Aitken of Bell Potter, culminating in a single tweet by Paul Edwards, ANZ’s Head of Corporate Communications.
A few days after that tweet, Mr Aitken, a highly prized and effective salesman, unexpectedly ‘departed’ Bell Potter, creating quite a fizz in banking and investment circles.
Whether you think the note to investors was sexist or not, is practically irrelevant now – what’s fascinating is the outcome a single, well-targeted tweet achieved. It was a risky move by Mr Edwards, but it will surely go straight into the Twitter Hall of Fame of effective social media ‘engagement’.
Perhaps Mr Aitken’s brash style had already made him a few enemies in high places, after all who could forget his ‘What the f**k is wrong with these morons?’ and ‘a case of big-d**k syndrome’ references to Rio Tinto in January last year? His comments about Ms Jablko, and Mr Edwards’ subsequent tweet, could have been the proverbial last straw.
Either way, this unfortunate scenario illustrates the power of social media, reminding us again to always try to use that power for good …
NSW Police in the firing line
The last few weeks had also seen some troubling allegations being made against NSW Police … again.
This time it has been alleged that the Facebook page, ‘The Forgotten 300,’ set up to provide support to police officers with mental health issues, and their families, had been shut down by Facebook after a complaint by NSW Police.
In an age when people have come to appreciate the importance of mental health, and support for those who suffer from mental illness, the allegations are deeply troubling and reflect poorly on both NSW Police and Facebook.
The spirit of rebellion lives on, on Norfolk Island
The rebellious spirit of Norfolk’s settlers from Pitcairn Islands appears to live on, including in one of their public servants, but not without 21st century consequences.
Tensions have been running high on the Island since March 2015, when the Commonwealth government announced Norfolk Island’s self-government would come to an end from 1 July this year.
In the tense climate that resulted, allegations were made last August against the Island’s government appointed administrator, that while discussing repairs to Emily Bay bridge, he had quipped that ‘perhaps they should compact it with a few Norfolk Islanders’. He denied having made those comments.
Nevertheless, in a Facebook discussion Ms Kim Edwards made references to those allegations and called the administrator an ‘a**ehole’.
As a consequence of her social media comments, despite contrition and exemplary service over 30 years, her public service pay was cut by 2%, and she was informed that from 1 July she would lose her job as she is ‘surplus to requirements’ in the new regional council.
Ms Edwards appealed the decision in November, but six months later the matter remains unresolved.