It never rains but it pours in the big bad world of social media, and June was the social media equivalent of the East Coast Low Australia had experienced earlier this month, making this monthly round-up the largest I have ever produced …
It was also the month which demonstrated the seemingly unstoppable growth of social media, with Instagram passing the illustrious 500 million users mark, with more than 80% of its users living outside the United States.
This month I begin with the stories of criminal allegations against a teacher on Facebook countered by an Australian school principal invoking the Inclosed Lands Protection Act 1901 (NSW), proposed changes to revenge porn laws in the UK, two Australian men pleading guilty under The Criminal Code over online abuse and harassment in potentially landmark cases, social media companies opposing a lawsuit by a rape victim, a US lawsuit accusing Facebook, Twitter, and Google permitting Islamic extremists to use their platforms to spread propaganda, raise funds, and attract recruits, how social media companies are trying to fight back against such propaganda, a lesson in why it is so important that you secure your social media accounts, and how Daesh was hacked.
I look at the issue of free speech, or a lack thereof, in Russia, the good, the bad and the ugly of social media responses to the Orlando massacre, examples of online harassment, including the ongoing racist taunting of Adam Goodes, the attempted fat-shaming of Meshel Laurie, and the anti-Semitic Google Chrome extension, and the unique case of a genuinely humorous, and arguably harmless, ‘trolling’ of Telstra by a customer on Facebook.
Then I briefly review a recent Facebook defamation judgment handed down in the sum of $10,000 in the Magistrates Court of Queensland, and revisit the Twitter saga involving Angus Aitken, formerly of Bell Potter, and Paul Edwards of ANZ, which quickly progressed from a workplace issue to a potential defamation matter, although now it looks like the case may turn into a claim of misleading and deceptive conduct causing economic loss.
I also report on the European Union’s latest attempts to deal with hate speech online, and a sobering global youth poll conducted by UNICEF on online abuse.
I follow with a quick overview of a research paper, to be presented next month, which will bring into question the reliability of the current method used to implement the ‘right to be forgotten’ in the European Union, the continuing privacy adventures of Max Schrems, the US technology industry’s ongoing battle with the FBI, and stories of ‘SJW’ academics in strife.
I finish with a brief look at social media evidence in litigation in light of a recent paper delivered by the Chief Justice of New South Wales, and a US judgment that offers some guidance to judges about their own use of social media.
• Social media round-up: May 2016
• Social media round-up: April 2016
• Social media round-up: March 2016
While it’s not strictly limited to social media issues, you might also like my brief overview of Mary Meeker’s 2016 internet trends report, published earlier this month.
Crime (and punishment) | Free Speech | Online abuse | Defamation | Privacy | Workplace | Litigation | Judges
Crime (and punishment)
Criminal allegations against a teacher on Facebook countered by the Inclosed Lands Protection Act 1901 (NSW)
Welcome to picturesque Lake Illawarra, where an outspoken parent accused a teacher of assaulting students, and the principal of covering it up. Police are now investigating the allegations but, in the meantime, said parent took to Facebook to make her allegations public.
As relations between the parent and the school deteriorated, the school principal reached for a last century statute, the Inclosed Lands Protection Act 1901 (NSW), to ban the parent from the school grounds for 12 months:
In accordance with my authority under the Act, you are directed not to come onto the school site again without my prior approval and then only for the purpose of seeing me. This directive is to remain in force for a period of 12 months.
Under the Act ‘any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty …’
‘Inclosed lands’ include schools, hospitals, and ‘any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure’.
1901 legislation: 1 – Parent with Facebook account: 0.
Revenge porn continues to plague the internet
In the UK calls are growing for criminalising the threat of circulating revenge porn, the lowering of the evidence threshold, and giving victims anonymity in England and Wales, to bring the law in line with Scotland.
• Revenge porn continues to be a serious issue (May 2016)
• Privacy in New South Wales (March 2016)
• Crime (and punishment) (February 2016)
• Chrissy Chambers (September 2015)
There has been a rapid increase in complaints arising from incidences of revenge porn over the past few years, and a BBC Freedom of Information request recently revealed that around 61% of those complaints result in no police action against the alleged perpetrator in the UK, despite revenge porn itself having been outlawed last year.
The proposed legislative changes appear to be entirely uncontroversial, but I can’t help but wonder how effective they are likely to be in circumstances where police is arguably failing to utilise laws already put in place to help with the prosecution of revenge porn offenders. It would appear that any law change should also be accompanied by extensive training for frontline police, and corresponding guidelines for prosecutors.
‘What law am I breaking? I’m not the one out of the f**king kitchen’
You may recall the case of Zane Alchin, who first came to my attention last November after taking part in the harassment and trolling of a young lady online, which resulted in a criminal charge against him.
When Mr Alchin appeared in Newtown Local Court on 12 January he pleaded not guilty, and indicated he would fight the charge of using a carriage service to menace, harass or offend.
He now pleaded guilty to the charge and expressed remorse, but told police he was drunk at the time and unaware that ‘trolling’ is a crime.
‘What law am I breaking? I’m not the one out of the f**king kitchen,’ he wrote in one of the fifty-odd ‘charming’ comments he posted. In another he talked about the ‘best thing about raping feminists’. Indeed, the application of section 474.17 of The Criminal Code, contained in the Schedule to the Criminal Code Act 1995 (Cth) which makes it a criminal offence to menace, harass or offend using a ‘carriage service’, which includes the internet, will come as a big surprise to a number of Australian men who feel ‘entitled’ to abusing and harassing women online. In more extreme cases section 474.15 is also available to police, which makes using a carriage service to make a threat a crime, punishable by up to seven or ten years in prison, depending on the severity of the threat.
Mr Alchin will be sentenced on 29 July, and he faces up to three years in prison under s474.17.
The case is seen as a potentially significant precedent in Australia when it comes to fighting back against online abuse and harassment, by setting a precedent on the application of the Commonwealth Criminal Code to such cases.
The matter also sparked global interest, with a report appearing in The Washington Post.
Nova Peris targeted
Nova Peris, Olympic gold medalist, indigenous legend, Federal Labor Senator for the Northern Territory was targeted by online racial abuse following the announcement of her retirement from Parliament.
A Central Coast man took the online abuse to such an extreme level, the Liberal Party was forced to expel him, and police charged him with using a carriage service to cause offence, the same as Mr Alchin above.
Later he claimed his social media accounts were hacked: ‘I was clearly hacked. I’m the victim of really horrible and extremely vicious hacking.‘
Why anyone would hack a Central Coast chiropractor and osteopath, only to racially vilify Nova Peris, remained unexplained.
Ms Peris responded with the class and patience of a saint, but Mr Nelson wasn’t having any of that civility and kindness.
Mr Nelson’s social media presence had been deleted since.
Contrary to his initial claims of his social media accounts having been hacked, Mr Nelson now pleaded guilty to the charge and will be sentenced next week.
UK police takes no chances after latest Facebook threat to politician
Following the recent political assassination of Jo Cox, UK police moved swiftly to arrest a man who posted a threatening message to MP Craig Mackinlay’s Facebook page, which included gun and knife emojis.
Sadly, social media death-threats to politicians, and their families, are not an unusual occurrence …
Following the tragic events in West Yorkshire, the perpetrators of such ill-considered social media posts are much more likely to find themselves with the police on their doorsteps. And perhaps it’s about time to ensure that online behaviours that are criminal in nature are treated accordingly, and not dismissed as mere ‘online banter’, especially in an age when people are easily ‘self-radicalised’ online, and extreme views are often amplified by the social media echo-chamber.
Why are social media companies opposing a lawsuit by a rape victim?
Let’s call the tragic hero of this story ‘Naomi’.
Naomi was an aspiring model who turned to a website called ‘ModelMayhem.com’ for opportunities. The people she contacted, drugged and raped her, filmed the brutal assault and posted it online. It was later revealed she wasn’t the first victim of this horrendous, violent criminal enterprise.
Naomi is now looking to sue Internet Brands, Inc., the owner of ModelMayhem.com, for failing to warn users about rapists potentially stalking them via their website, despite allegedly becoming aware of the issue as early as 2010, several months prior to Naomi coming into contact with the perpetrators of the crime against her.
An appeal court ruling on 31 May permitted her case to move forward.
Interestingly, a number of online companies, such as Craigslist, eBay, Facebook, and Tumblr, and the Computer & Communications Industry Association filed an amici curiae brief in the matter, arguing that a ruling in her favour ‘would chill the creation, growth, and development of innovative and robust online services’.
While the brief said the companies involved in the submission ‘condemn the violent acts perpetrated against [Naomi] and applaud the criminal justice system for putting the perpetrators behind bars,’ they formed the strong view that the case should not be used to undermine the so-called section 230 immunity offered under the Communications Decency Act (CDA), which provides a shield for online intermediaries from being held responsible for harms arising from third-party content.
Judge Clifton, reversing the decision of the lower court which originally dismissed the action under the CDA, held that the s230 immunity has no application in the circumstances as Naomi is seeking to hold Internet Brands liable for ‘failing to warn her,’ not for being the ‘publisher or speaker’ of any information or for hosting any content.
In sum, Jane Doe’s negligent failure to warn claim does not seek to hold Internet Brands liable as the “publisher or speaker of any information provided by another information content provider.” Id. As a result, we conclude that the CDA does not bar this claim.
Judge Clifton made it clear that at this stage the court was not expressing an ‘opinion on the viability of the failure to warn allegations on the merits,’ but allowing the claim to proceed means those allegations by Naomi will now be tested in court.
It remains to be seen what practical effects a successful outcome for Naomi would have on the future operations of online companies.
US lawsuit accuses Facebook, Twitter, and Google permitting Islamic extremists to use their platforms to spread propaganda, raise funds, and attract recruits
The lawsuit was filed in the Northern District of California of the US District Court, by Reynaldo Gonzalez, the father of Nohemi Gonzalez, an American exchange student who was one of the victims of the deadly Paris terror attacks on 13 November last year.
The case is similar to that filed against Twitter in January, also in the Northern District of California, by the wife of a man killed in Jordan in a terrorist attack last November. Fields v. Twitter Inc., Case 3:16-cv-00213 argues that:
For years, Twitter has knowingly permitted the terrorist group ISIS to use its social network as a tool for spreading extremist propaganda, raising funds and attracting new recruits. This material support has been instrumental to the rise of ISIS and has enabled it to carry out numerous terrorist attacks, including the November 9, 2015 shooting attack in Amman, Jordan in which Lloyd “Carl” Fields, Jr. was killed.
The latest filing in Gonzalez et al v. Twitter, Inc. et al Case 4:16-cv-03282 similarly alleges that:
Without defendants Twitter, Facebook and Google (YouTube), the explosive growth of ISIS over the last few years into the most-feared terrorist group in the world would not have been possible.
This material support has been instrumental to the rise of ISIS and has enabled it to carry out numerous terrorist attacks, including the Nov. 13, 2015, attacks in Paris where more than 125 were killed, including Nohemi Gonzalez.
The companies are likely to try to rely upon the s230 immunity discussed above, arguing they can’t be treated as the publisher or speaker of any information posted by users of their social networks. However, it will be interesting to see how that immunity stacks up where the claim is not really about what the social media networks published, but what they ‘enabled’.
Facebook, YouTube reportedly deploy copyright protection technology in fight against Islamist propaganda
In related news, it has been revealed that video-sharing social networks are now deploying technology designed to protect copyright in their fight against Islamist propaganda.
The technology designed to identify copyrighted materials, video and sound, is now being deployed to block materials being uploaded that have already been identified as inappropriate, and removed.
While this method will not automatically prevent extremists from uploading fresh materials, it could be a game-changing tool in assisting social media operators preventing the proliferation of extremists materials online, because once material has been identified as inappropriate, users won’t be able to reload it to social networks, in what often turns out to be an unwinnable game of cat-and-mouse.
Criminal hackers coming to get your social media account
I find it fascinating there are still people out there who haven’t yet activated two-step identification on all their social media accounts.
In an age when Mark Zuckerberg’s social media accounts are hacked, and our lives are laid bare online, the security of our information had become a very personal, and important responsibility.
Maria Longoria in the US learned the hard way how a variety of confidence tricks are also used these days to hack people’s social media accounts. After her Facebook account was hijacked by cyber confidence tricksters, and a ransom was demanded for its return, she simply chose to open a new account.
However, for many people the compromise of personal information contained on their social media accounts could be a significant loss, and exposure.
Now go and turn on two-step identification on all your social media accounts (and while you are at it, you should probably also delete social media accounts which you are no longer actually using) … then come back, and finish reading this article.
Even being a feared, murderous terrorist organisation won’t save your social media accounts from being hacked.
Following the tragic Orlando massacre earlier this month, hundreds of Daesh Twitter accounts were hacked by ‘Wauchula Ghost’, and their messages of terror and hate were replaced with messages of love, gay pride and … more:
The government really hasn’t been doing enough especially on social media. You see the beheading images everywhere. Kids get online and shouldn’t see these images.
I think we’re there to serve a purpose, at least I know I am. My goal waking up in the morning [is to] see messages from Daesh, telling me they’re going to kill me or cut my head off. The madder they get, the happier I get.
Oh to be a fly on the wall at that terrorist bunker when they checked their social media!
No jokes, we are Russians (and the Russian ‘information war’)
Many would argue that democracy and free speech have been slowly dying in Russia for some time now under Vladimir Putin’s increasingly draconian rule.
Recent events involving Russia and Vladimir Putin give further credence to such arguments.
Andrei Bubeyev imprisoned for his social media shares
Mr Bubeyev was sentenced to two years in prison for a range of social media ‘offences’, including sharing a picture of a toothpaste tube with the words ‘Squeeze Russia out of yourself’, with twelve friends on social media.
Mr Bubeyev is a construction worker, with a wife and a four-year-old son. Admittedly, he enjoyed sharing things with friends on Russia’s leading social media service, VKontakte.
Things that the Russian state does not like.
Mr Bubeyev is not alone. The Sova Center for Information and Analysis, based in Moscow, has been consistently reporting on the misuse of anti-extremist legislation to crack down on political dissidents, and the threat to freedom of conscience in Russia.
Many of the recent convictions in Russia related to people being critical of Russia’s involvement in the Ukraine crisis. Mr Bubeyev fell into that same trap, sharing articles and images critical of Russia’s interference in Ukraine.
The Finn journalist and the wrath of Russia’s ‘troll army’
In the meantime, Finn journalist Jessikka Aro, learned a brutal lesson in trying to take on Russia’s troll army.
The Russian government has long been accused of employing an army of trolls paid to flood forums and social networks to promote the official Russian narrative on current events, akin to the old Soviet propaganda machine waging its information war.
Ms Aro, a journalist with Finland’s national broadcaster, asked her audience to share their encounters with Russia’s troll army, but she got much more than what she bargained for – she herself became the target of Russia’s troll army.
Finland is in precarious position as the old Cold War rivalry between Russia and the West is revived by Vladimir Putin. A member of the European Union, Finland shares a 1,300 kilometres long land border with Russia, putting it on the frontline in the festering information war between Russia and the West and NATO.
I can empathise with Ms Aro, because when I wrote a long piece about Russia’s anti-LGBTI laws and state sponsored homophobia, the controversy surrounding the Sochi Olympics, and the invasion of Crimea and Eastern Ukraine, I also became the target of sustained and vicious online harassment by trolls supporting Russia – fortunately I have been around the internet and social media long enough to shake it all off like water off a duck’s back.
Twitter gets caught up in Russia’s lack of appreciation for satire
Even Twitter got caught up in Russia’s free speech shenanigans, when much-loved parody Twitter accounts fell victim, temporarily, to Russian sensitivities.
A number of highly popular anti-Kremlin, anti-Putin Twitter parody accounts, including @DarthPutinKGB, which is self-explanatory given its handle, and @SovietSergey, an account which lampoons Russia’s ambassador to the UK, were suspended by Twitter earlier this month, leading to speculations of censorship.
@DarthPutinKGB had over 60,000 followers at the time of suspension, so the suspension was never going to pass unnoticed. Now the account has over 68,000 followers, and they are treated to a daily serve of hilarious ‘high-treason’.
The accounts were restored a few days later, but not before a swell of outrage flooded Twitter HQ. The bio of Darth Putin KGB now reads:
146% of Russians didn’t elect me. @mfa_russia had me suspended as they sound more like a parody than I do.
It is widely believed, the suspension was a success for Russia’s troll army which is suspected to have repeatedly reported the accounts, causing the suspension. But, in the end, it was Darth Putin KGB who celebrated with the gusto of the real Vladimir Putin:
Online sensitivity training needed … for some
When tragedies strike social media goes into overdrive. I recently devoted an entire article to grieving individually, and collectively, on social media.
The gun massacre at the gay nightclub Pulse, in Orlando, Florida earlier this month brought the best and the worst out of people. The thing about social media is that it doesn’t make us better or worse, but it does hold up a mirror to our humanity …
There were those who thought deeply about the events and offered genuine condolences and thoughtful commentary:
And there were those who didn’t … and perhaps could do with some sensitivity training:
Meanwhile the gay community’s defiant social media response to the tragedy was the very aptly titled, and politically charged, global #TwoMenKissing Twitter campaign:
While we are talking free speech, let’s discuss hate speech and online abuse.
The latest appallingly offensive Adam Goodes memes on Facebook
Defying common sense, decency, and countless warnings, some people continue to racially taunt Adam Goodes at every opportunity they get.
The latest incident occurred after the tragic shooting of Harambe, a lowland silverback gorilla, at an American zoo. The appallingly racist memes were posted to the ‘AFL Memes‘ Facebook page.
I won’t reproduce the offensive images here.
It will suffice to say the memes drew a comparison between our highly respected indigenous sports star and … You can fill in the blank.
Pleading ignorance shouldn’t save those responsible from accountability, because we have been here before, and the community at large already made it abundantly clear that this type of extreme racism is utterly unacceptable.
• #RacismItStopsWithMe (20 October 2015)
• Growing tired of our racism (29 July 2015)
What added further insult to injury was Facebook’s response to those who initially reported the posts, telling them the images did not violate the social network’s community standards and did not qualify as ‘hate speech’?!
The images were not deleted from Facebook until the AFL itself intervened, and that’s just not good enough.
Adam Goodes subsequently quit social media, and deleted his Twitter account – I can’t blame him. The people responsible for his ongoing racist taunting should be ashamed of themselves, and should have to answer for racial vilification.
Sadly, even after the memes were eventually deleted, and community outrage grew, the administrators of AFL Memes still weren’t getting the message that the memes weren’t funny, and racism is ‘not just a joke at all’.
Meshel Laurie trolled
As usual, women had another tough month on social media, with media personality Meshel Laurie also targeted this month, over her appearance and weight.
However, this story doesn’t quite end the way you may have expected.
Following her appearance on Channel 10’s The Project, she was subjected to abuse by two men who proceeded to fat-shame her online in incredibly abusive messages:
‘I hate to burst your bubble but fair dinkum, you are a very, very unattractive and talentless woman…yuk…!’
‘Try cutting back on the KFC, the chocolate and the fizzy drinks Meshel and instead of spending endless hours watching the tell (sic) and slouched on the sofa like a beached whale get up and go for a walk!’
Unfortunately, they picked on the wrong woman. And, fortunately, the right woman.
She was the wrong woman, because she is a strong woman with a media profile, and she proceeded to publicly name and shame the men on her radio program.
She was the right woman, because after she spoke to one of the man, and to the daughters of the other, Meshel Laurie chose to forgive the men, and in the process she gave us all something to think about:
I launched an attack against strangers who attacked me. I did it to prove I wasn’t disempowered by their abuse, but in so doing, wielded power over them. They were abused by thousands of strangers, they were scorned by friends and family, which was my hope when I made their messages public. Having achieved my aim though, and having had the opportunity to hear how successful I’d been in causing these men humiliation and scorn, I’m just left feeling like I missed the point.
No doubt many of you think they ‘deserved’ everything they got. I totally felt that way at the start, but as the balance of power swung my way, which lets face it, wasn’t far for it to swing, I felt more and more like the bully. If I’d only done what my Buddhist training has taught me, and searched inside myself for resolution, I’d have come to the obvious conclusion, happy people with great lives don’t fat shame strangers on social media. Sad, lonely, isolated people do.
Whenever I encounter sad, lonely, isolated people in any other context I do my best to show them kindness. It’s what I should’ve done in this instance and what I will endeavour to do from now on. I’m disappointed in myself, but tomorrow’s another day.
Trust Meshel Laurie to turn such an awful personal experience into a learning experience for all.
The anti-Semitic Google Chrome extension
Earlier this month a Google Chrome extension came to light called the ‘Coincidence Detector,’ in reference to a popular right-wing conspiracy theory whereby ‘Jewish people secretly control the media, banks and governments’.
In the Google Store the extension was described as designed to ‘help you detect total coincidences about who has been involved in certain political movements and media empires.’
Once installed, the extension used an online database of Jewish people compiled and maintained by American far-right, Neo-Nazi extremists, also known as ‘alt-right’, to place a triple parentheses, a so-called echo symbol ‘(((Echoes)))’, around their name if it appeared in the user’s Google Chrome browser.
Predictably, as the hateful extension started to spread in extremist circles and became the tool of an anti-Semitic troll army overnight, the online abuse of Jewish people had significantly increased.
It was reported that, prior to Google pulling the plug on the extension, its database grew to more than 8,000 names, had 2,473 users, and a five-star rating.
Facebook, Twitter, YouTube and Microsoft sign up to EU Code of Conduct
In a significant European development, the European Commission announced that it has secured commitments from a number of social media and technology companies to combat hate speech by signing up to a Code of Conduct.
The recently launched lawsuit against Facebook, Twitter, and YouTube by three French social justice associations, accusing the online operators of failing to comply with French law which requires social media operators to remove racist, homophobic, and anti-semitic materials, was the latest in a long line of skirmishes between American social media and technology companies and European individuals, associations, and regulatory bodies, which is likely to have contributed to social media and technology companies seeing the light.
… the Commission and the IT Companies recognise that the spread of illegal hate speech online not only negatively affects the groups or individuals that it targets, it also negatively impacts those who speak out for freedom, tolerance and non-discrimination in our open societies and has a chilling effect on the democratic discourse on online platforms.
Under the Code, among other things, the companies have agreed to take the lead on countering the spread of illegal hate speech online by:
- putting in place clear and effective processes to review notifications of illegal hate speech on their services so they can remove or disable access to such content;
- upon receiving a valid removal notification, reviewing such requests against their rules and community guidelines, and where necessary national laws transposing the Framework Decision 2008/913/JHA which deals with combating racism and xenophobia, using dedicated teams for such requests; and
- reviewing the majority of valid notifications for removal of illegal hate speech in less than 24 hours and remove or disable access to such content, if necessary.
UNICEF/Ipsos global poll shows young people are concerned about online abuse
UNICEF released the results of a global survey, based on an international opinion poll of more than 10,000 18-year-olds from 25 countries, which shows that 80% of them are of the view that young people are in danger of online sexual abuse, or being taken advantage of online.
The report titled ‘Perils and Possibilities: Growing up online‘ indicates only a third of young people strongly believe that bullying or other online abuse could never happen to them, yet a staggering 90% thinks they have the skills to avoid dangers online.
I fear that by failing to appropriately respond to incidents of online abuse, and deal with the individuals who engage in abusive, bullying, homophobic, misogynist, and racist conduct online through the justice system, despite the growing concerns of young people about the issue, in the long-term we risk creating a generation more amenable to the introduction of varying shades of censorship.
The one tweet to rule them all …
There was one poignant tweet this month that ruled them all, which put online abuse in context, and sent apologists from all around the world to the doghouse.
Following the horrendous murder of Jo Cox by a Neo-Nazi extremist in the main street of a sleepy English village, this simple, self-explanatory message was tweeted:
‘Trolling’ of the genuinely humorous variety
Yes, there can be such a thing as humorous trolling (but be careful, there is a very, very fine line).
Laura Carrie bought a snazzy new TV and switched to Telstra for high-speed cable internet, so she could stream Netflix in high-definition. Telstra appears to have dropped the ball on connecting Ms Carrie up properly, and she took to Facebook to ‘troll’ the telco over their failure to get her internet connection sorted.
Over the next two weeks she posted a series of increasingly hilarious cat pictures to Telstra’s Facebook page with snappy commentary, humorously shaming Telstra’s service delivery, and delighting the ‘internets’ in the process with the antics of Kittie Smalls:
On Day 16 there was a happy ending to the adventures of Laura Carrie, and Kittie Smalls …
This is the kind of social media ‘trolling’ we can all get on board with.
Defamation (or not?)
Kelly v Levick  QMC 11
On 14 June, Magistrate Young awarded June Kelly $10,000 plus interest in damages over a Facebook post by David Levick.
June turned out to be a thieving, lying, money crazed bitch who screwed me out of nearly 3 million rand – may she rot in Hell.
The Facebook post was visible on Mr Levick’s Facebook page for about 16 hours, before he deleted it.
Magistrate Young found that the Facebook post was defamatory, and it identified Ms Kelly sufficiently for many of their common Facebook friends to know who Mr Levick was talking about:
 The imputations of the words “…thieving, lying, money crazed bitch who screwed me out of nearly 3 million rand…” are that the person is a thief, dishonest and of bad character in relation to issues of money and therefore are within the ordinary meaning of the words used by the Defendant.
 The imputation of the words “…money crazed bitch…” is not sufficient to establish that the person suffered from a mental disorder; it would ordinarily be considered an adverse reference to the character of that person in colloquial terms rather than an imputation about their mental health.
 It is entirely within the natural and ordinary meaning of the words used and their imputations to conclude that the Defendant has made defamatory remarks about the person “June” …
I consider that the Plaintiff was explicitly identified in the Post.
It didn’t help Mr Levick’s case that the Facebook post was made in the context of years of acrimonious divorce and property settlement proceedings, and having ‘stated some 2 ½ weeks earlier in an email to the Plaintiff that he would not shy away from publishing defamatory material about the Plaintiff’.
Angus Aitken, Michelle Jablko, Paul Edwards and that tweet
This is a tweet that went from a workplace issue to a defamation matter in days, although the latest leaks indicate the case is now being framed as misleading and deceptive conduct causing economic loss.
Michelle Jablko is ANZ’s new Chief Financial Officer. Her appointment by the bank was promptly followed by a ‘vintage’ Angus Aitken note to investors, scathing of ANZ’s choice. Paul Edwards, ANZ’s Head of Corporate Communications, responded to the note with the tweet above. A few days later, in the midst of a growing controversy, Mr Aitken unexpectedly ‘departed’ Bell Potter.
To further complicate matters, the Australian Financial review revealed that Bell Potter has a $100 million facility (drawn down $61 million as at December 31, 2015) with ANZ, making the bank a significant creditor of the investment house.
• Social media defamation on the rise? (27 August 2015)
Bell Potter reportedly settled with Mr Aitken over his dismissal promptly, on terms apparently agreeable to Mr Aitken. Given the high-profile attained by this saga in a very short time, this was arguably a wise move by Bell Potter.
However, this still leaves ANZ in the firing line, and it has been suggested that Mr Aitken has a strong defamation case against the bank and Mr Edwards. Mr Aitken has already hired defamation powerhouse Mark O’Brien to represent him, and he is reportedly also supported in the background by several prominent Australians.
In a letter of demand sent by Mr Aitken to Mr Edwards, he sought the deletion of the tweet, a public apology, and substantial monetary compensation for damage to his reputation.
Initially the bank rejected the claims and indicated it would strongly defend the case, however later reports suggested the bank was planning to offer an apology and ‘limited’ compensation for its role in the matter. However, the same passive-aggressive article also noted that ANZ considers Mr Aitken to be in the wrong, but would not pursue a legal remedy against him.
The Australian Financial Review then revealed that Mr Aitken may not be planning to frame his action as a defamation claim, but a claim of misleading and deceptive conduct causing economic loss.
It remains to be seen what this all means for Mr Edwards’ position with the bank.
When all is said and done, this matter will certainly be a leading illustration of the pitfalls of social media, and the complex consequences that can arise from a single tweet.
A blow for the European ‘right to be forgotten’?
The latest issue of Proceedings on Privacy Enhancing Technologies includes a research paper which indicates that the European ‘right to be forgotten’ may not be as easily protected and upheld as previously thought. The paper will be presented next month at the annual Privacy Enhancing Technologies Symposium in Minneapolis.
The paper titled ‘The right to be forgotten in the media: a data-driven study‘ reveals that ‘rediscovering’ URLs delisted under a right to be forgotten request is easier than one might have suspected, potentially leading to the identification of people who filed such requests. The academic researchers concluded that by applying a moderate level of effort, and using some basic coding techniques, 30-40% of people who requested that a URL be delisted can be identified.
The team has arrived at this conclusion by creating a simple algorithm that cross referenced names that occurred in every article headline on Google’s British domain, with article headlines on a European Google domain. If an article that was in the British list failed to show up in the European list, the likely cause for that discrepancy was that the article had been delisted in Europe due to a ‘right to be forgotten’ request.
It remains to be seen what effect the research paper will have on the practical application of the ‘right to be forgotten’.
The amazing privacy adventures of Max Schrems continue
You may recall the ongoing efforts of European privacy campaigner Max Schrems to protect the citizens of the European Union from prying eyes.
• Max Schrems’ privacy crusade (2 October 2015)
• Maximillian Schrems v Data Protection Commissioner, Case C‑362/14 (3 November 2015)
• The Schrems Facebook actions continue to reverberate (5 December 2015)
• Digital privacy continues to evolve in Europe (27 January 2016)
• The EU-US Privacy Shield (28 February 2016)
Mr Schrems challenged Facebook’s privacy practices in Europe, and single-handedly brought down the so-called ‘Safe Harbour Scheme’ that enabled the transfer of digital data between the European Union and the United States.
The decision of the Court of Justice of the European Union (CJEU) which invalidated the Safe Harbour Scheme led to the emergency implementation of interim guidelines to facilitate the uninterrupted cross-Atlantic operation of technology companies, and extended wrangling between Europe and the United States about the terms of a new ‘EU-US Privacy Shield’. Mr Schrems already criticised the new approach, and flagged there could be a similar privacy challenge against the new scheme.
Following his legal victory before the CJEU, Mr Schrems filed a number of fresh complaints about Facebook and the US National Security Agency’s PRISM program, which is allegedly accessing data from a range of online providers, including Facebook.
The Irish Data Protection Commissioner subsequently announced that it would seek a declaratory relief in the Irish High Court, and would make a referral to the CJEU to determine the legal status of the data transfers in question.
Recently it has been also revealed that the US government asked the Irish High Court to allow it to make an amicus curiae submission in the matter. It says it wishes to explain the US surveillance laws in question, which will likely consist of a denial of the existence of mass surveillance by US security agencies, and an assertion that European courts had misinterpreted its intelligence practices. As amicus curiae, the US government will be required to make any such statements under oath …
The US technology industry’s latest battle with the FBI
Meanwhile, on the other side of the Atlantic, technology companies continue their battle with the FBI over the law enforcement agency’s efforts to have US surveillance laws rewritten so that the FBI could access web browsing history, location data, and some email history in the same way it can access telephone records, without judicial oversight, using a so-called ‘national security letter’ (NSL).
NSLs are issued under 18 U.S.C. §2709, the Electronic Communications Privacy Act, as modified by section 505 of the USA Patriot Act. The NSLs are served on communications service providers such as a telephone company or ISP, and allow the FBI to secretly demand users’ data, arguably without meaningful judicial oversight. The recipients of NSLs are also subject to a gag order that forbids them from revealing the existence of an NSL even to their colleagues, let alone the public, or an affected user. It has been alleged in the past that the FBI systematically abuses this power. A panel advising Barack Obama on surveillance revealed in 2014 that the FBI alone issues an average of 60 NSLs each day.
In 2008 the Justice Department’s Office of Legal Counsel (OLC) issued an opinion which made it clear that under the Electronic Communications Privacy Act the FBI can only obtain four types of user information from ISPs using an NSL: name, address, length of service, and telephone bill records. There is no reference in the law to browser history, and the opinion was clear that the four existing categories were ‘exhaustive.’ Opinions issued by the OLC are generally considered conclusive and binding by the executive branch.
A number of tech companies, including Google, Facebook and Yahoo, and privacy advocacy groups published a joint letter opposing this latest move.
While the FBI insists the proposed changes are a mere ‘clarification’ of the existing law, opponents say ‘it would dramatically expand the ability of the FBI to get sensitive information about users’ online activities without court oversight,’ and their position appears to be correct.
A similar effort was made six years ago, but was dropped after serious concerns were raised by privacy advocates and the tech industry.
Watch this space for this ongoing US fight between law enforcement agencies on the one side, and technology companies and privacy advocates on the other.
‘SJW’ academics in strife
Academics. Some love ’em, some hate ’em. The one thing is certain that, by large, they are a lively bunch. Especially the ‘SJW’ variety.
‘What the heck is ‘SJW’?’ I hear you wondering.
Well, welcome to the world of social media abbreviations. ‘SJW’ stands for ‘Social Justice Warrior’ which is meant to be a derogatory reference to people who fight for causes considered ‘politically correct,’ or ‘socially progressive,’ such as the rights of indigenous Australians, asylum seekers, LGBTI people, women, and disabled people …
Roz Ward and La Trobe University
My report of Roz Ward’s troubles will be unashamedly editorial in nature, as I have very strong feelings about the matter, both as an ex-political refugee from communism and a gay man. Ms Ward is a legend of the LGBTI community, and a respected academic at La Trobe University.
Ms Ward co-founded the Safe Schools program, designed to educate school children about gender identity and sexual orientation in an effort to reduce and eliminate the bullying of LGBTI school children. The program’s mere existence is a thorn in the side of Australia’s religious conservatives, and News Limited publications, such as The Australian and The Daily Telegraph, which have been running a concerted campaign against the Safe Schools program, Ms Ward, and the LGBTI community in general, for some time now.
Ms Ward is also a proud Marxist, which is relevant to the events that transpired, and also puts another rather large target on her back.
The latest attack on her centred around a private Facebook post following the historic formal apology by the Premier of Victoria, Daniel Andrews for past laws that criminalised homosexuality, and the conduct of law enforcement agencies and successive governments under those unjust laws.
The apology was accompanied by the State government flying the rainbow flag over the Parliament of Victoria.
Ms Ward privately posted an image of the rainbow flag flying over Parliament House for her friends, with the tongue-in-cheek comment, ‘Now we just need to get rid of the racist Australian flag on top of state parliament and get a red one up there and my work is done.’
That private comment was later leaked to The Australian, which prompted News Limited to commence a public campaign demanding the sacking of Ms Ward … and an immediate review of the Safe Schools program of course.
Ms Ward was promptly ‘suspended’ by La Trobe, with the university claiming she engaged in ‘misconduct’.
If you don’t know me, you wouldn’t be aware that I’m a dissident and political refugee from then communist Hungary. Consequently, you won’t see me standing up to defend Marxism, communism, or socialism. Never have, never will. In fact I fought against it in the past, at great personal cost.
However, the treatment of Ms Ward is starting to feel like a bit of an old-fashioned witch hunt … the ‘reds under the bed’ variety. A university responding in this manner to a biased, political campaign, borders on intellectual capitulation.
What I’m supporting, and will always defend, is the freedom of expression by an academic in a liberal, progressive and secular society, at an institution of higher learning and thought.
It would appear the academic support, public outrage, and legal threats that followed made La Trobe see the light, and the university withdrew all allegations against Ms Ward, although it still insists that it had not acted unlawfully.
Upon her return to work, Ms Ward was welcomed back with an honour guard of colleagues and students.
This is about more than me and my experiences.
Homophobia and transphobia are very much alive in young people’s lives.
We are trying to do something about it, but there are a lot of people that are trying to stop us from doing that work.
Ms Roz Ward
Prior to La Trobe withdrawing the allegations against Ms Ward, the National Tertiary Education Union was reportedly considering an action against the university under the section 351 general discrimination protection provisions of the Fair Work Act 2009 (Cth), arguing Ms Ward’s suspension constituted ‘adverse action’ on the prohibited ground of her ‘political belief or activity’.
You may recall, Scott McIntyre’s claim against the Special Broadcasting Service Corporation, SBS, was originally framed on essentially the same basis last year. At the time I wondered whether that could work because ‘political opinion’ is not a protected attribute under NSW discrimination legislation. I understand the s351 claim was later dropped, and the case settled.
However, in Victoria ‘political belief or activity’ is a protected attribute under s6(k) of the Equal Opportunity Act 2010 (Vic), arguably making Ms Ward’s Marxist political belief, and the expression of that belief, and her statement about the flag, protected attributes.
If the claim proceeded, another consideration would have been the breach of any relevant obligations by Ms Ward under her employment contract with La Trobe. Such a breach could have been difficult for the university to prove, because the current La Trobe University Collective Agreement specifically entitles its academics to express ‘unpopular or controversial views,’ in the name of intellectual and academic freedom, provided that expression does not ‘harass, vilify or intimidate another person or … demean alternative points of view,’ in clause 9.2(b)(v).
Martin Hirst and Deakin University
The saga of Martin Hirst and Deakin University has been dragging on since March, and it all started with a tweet from Dr Craig Considine, a Sociologist at Rice University in Houston, Texas:
News Limited journalist, Rita Panahi felt compelled to let Dr Considine know what she thought of his opinion:
Enter Mr Hirst, Associate Professor in Journalism at Deakin University, who chimed in with his own tweet:
Ms Pahini was not impressed with her SJW detractor:
Nor was a commerce student at Deakin, Lachlan McDougall:
Arguably unwisely Mr Hirst engaged with Mr McDougall:
Mr McDougall did not like Mr Hirst’s tone:
Mr Hirst tried to douse down the inference drawn by Mr McDougall:
But it was too late:
Arguably Ms Panahi’s above tweet was disingenuous. First, it is arguably clear that at this stage Mr Hirst is not even aware Mr McDougall is a student at Deakin. Second, if Ms Panahi genuinely believes an Associate Professor in Journalism can fail a commerce student, clearly she doesn’t understand how universities work.
Mr Hirst and Ms Panahi went on to have a few more words:
Subsequently a complaint was made against Mr Hirst based on the above exchange, and Mr Hirst was suspended by Deakin on 19 April.
Deakin is now accusing Mr Hirst of serious misconduct.
This is not the first time Mr Hirst had a public run in with News Limited journalists. Mr Hirst is also a Marxist, which is relevant to the events.
In 2014 The Daily Telegraph columnist Tim Blair sarcastically publicised a photo of Mr Hirst which he had taken of himself at Karl Marx’s grave in London. Mr Blair’s condescending blog entry led to a bit of an argy-bargy between the two men.
The matter also attracted Andrew Bolt’s attention and ire. While on the topic of Andrew Bolt, a Facebook fan page set up by his supporters is quite a treat, but I digress …
Mr Hirst apologised at the time, and survived that encounter.
Mr Hirst once again finds himself suspended following his latest interaction with News Limited, and Mr McDougall. The accusations include being threatening towards Mr McDougall.
Your comments are inappropriate, unprofessional and involved an implied threat to compromise this students’ academic progression …
Having looked at the tweet in question repeatedly, that is arguably one interpretation. Another, equally valid, interpretation is that Mr Hirst asserts that without the benefit of his learned academic ‘stewardship’ Mr McDougall is destined to fail – perhaps a boastful view, but not a threat.
Deakin also trawled through Mr Hirst’s Twitter account, and identified two further tweets they take issue with:
Deakin considers these tweets inappropriate, unprofessional, and offensive and/or disrespectful, with the potential to ‘damage the reputation of the university.’
One can’t help but observe that, similarly to the case of Ms Ward and La Trobe, an argument could be made that the university’s reputation was imperilled more by the university’s own actions and the implications of those actions, than Mr Hirst’s original comments.
Mr Hirst and Deakin are located in Victoria, and are also subject to the Equal Opportunity Act 2010 (Vic), protecting ‘political belief or activity.’ This means one of the questions that may arise if Mr Hirst is dismissed is whether the various tweets by Mr Hirst objected to by the university fall within that protection. Unfortunately for Mr Hirst, the application of that protection is not clear cut in respect of the contested tweets.
The current Deakin University Enterprise Agreement also contains an intellectual freedom clause (71.2), which permits the ‘expression of unpopular or controversial views, provided that they do not harass, vilify, defame or intimidate’. However, as this case involved some choice language, Mr Hirst’s case is arguable not entirely straight forward on this point either.
For now, Mr Hirst remains in limbo while he awaits Deakin’s decision about his future with the university.
At least, judging by his Twitter account, @ethicalmartini, Mr Hirst hasn’t lost his sense of humour and fighting spirit …
On some days it just feels like News Limited papers should have a weekly column titled ‘Which SJW academic should be fired this week‘.
I first reported on social media’s role as evidence in May 2009, after a Lawyers Weekly article warned about the potential evidentiary risks associated with social media posts. Since then a number of cases around the globe raised the issue from time to time.
In February this year I revisited the question in light of recent court disputes in the United States, and concluded that:
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.
In March I reported on an interesting evidentiary dispute out of Louisiana, which revolves around the level of authentication required for social media evidence before it could become admissible in a criminal trial and, in May, another US case looked at the preservation of social media evidence.
In a sign of growing judicial interest in the subject matter, last week, the Chief Justice of New South Wales, The Honourable Thomas Frederick Bathurst delivered a paper titled ‘Tweeters, poster and grammers beware: Discovery and social media evidence,’ at the 10th Information Governance & eDiscovery Summit.
The paper offers an excellent overview of social media generally, and relevant local and international case law, in the context of evidentiary and discovery rules in the New South Wales and Australian Federal jurisdictions.
Chief Justice Bathurst observes in his paper that for social media evidence to be admissible in those jurisdictions, first it must be ‘relevant to the specific issues in dispute’ . However, importantly he also notes that:
[24.] It is clear … that social media records have the potential to be relevant to a number of different types of disputes. However, it ought to be kept in mind that even if documents are relevant, courts can nonetheless use their discretion to refuse to make an order for discovery if such an order is not necessary or proportionate. Both the New South Wales and Federal Court rules make it clear that orders for discovery will only be made in limited circumstances. A court will balance the time, cost and burden of providing discovery against the theoretical possibility that the order will yield relevant information. Electronically stored information, such as that contained on social media sites, will not be discoverable if it is unlikely to contain information beyond that which is “merely formal or insignificant”. Moreover, where compliance with an order for discovery would be overly burdensome, there is some authority in New South Wales that discovery must be necessary to prove a particular fact.
[25.] The potentially voluminous nature of social media records makes it important for courts to exercise their case management powers to limit the scope of discovery. This is particularly the case if lawyers attempt to engage in fishing expeditions by seeking orders for discovery of all of the information contained in a party’s social media account.
These are common sense observations in light of the relevant rules, but useful to keep in mind in the heat of litigation, when perspective sometimes can be a casualty.
The Chief Justice goes on to discuss whether social media evidence can be considered to be within a party’s possession, custody, power or control, another crucial requirement for it to be discoverable, and concludes that:
… the obligation to provide discovery extends to documents over which a party has ‘custody’ or ‘power’, even in absence of a legal right to possession of documents. For the purposes of discovery, ‘custody’ means the mere actual physical or corporeal holding of a document, regardless of who has legal possession. ‘Power’ means an enforceable right to inspect or obtain possession or control of a document from the person with custody over it.
[36.] Individuals have an actual and immediate ability to examine the information contained on their own social media pages and have the power to obtain information stored on their own social media accounts, even if they do not have ownership of this information.
Chief Justice Bathurst also considers preservation issues, and notes that:
Under the common law, if a party destroys discoverable material, this can constitute contempt, particularly if litigation is already on foot. In Australia, courts have the power to stay and or dismiss proceedings, in whole or in part, where a party has deliberately destroyed discoverable material.
[42.] While there seems to be a dearth of cases dealing with the destruction of social media evidence, there have been cases on the destruction of other electronically stored evidence. It should be assumed that as social media evidence can be relevant and discoverable, it should be treated the same as other electronically stored information.
Interestingly, His Honour also found it necessary to remind that ‘solicitors should never advise clients to ‘clean up’ their social media accounts in preparation for litigation.’
While considering the views of the Chief Justice of NSW on social media as evidence, let’s have a quick look at a US case that offers some guidance to judges about their own use of the medium.
The judgment in State v. Truett Thomas from the Supreme Court of the State of New Mexico reversed a conviction in a criminal trial on the ground that admitting a Skype testimony denied the defendant his constitutional right to confront an adverse witness.
In the course of the appeal, the use of social media by the District Court Judge was brought to the attention of the Supreme Court. While the Supreme Court was not required to determine whether the social media posts in question would also have been a ground for reversal, the judgment cautioned judges ‘to avoid both impropriety and its appearance in their use of social media.’
Chief Justice Daniels made his subsequent comments in the context of two posts published to a Facebook page used for the unsuccessful election campaign of the District Court Judge, which touched on the defendant’s case. The first mentioned he was presiding over the case:
I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.
The second, after the conclusion of the trial, but before sentencing stated:
In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.
Although Chief Justice Daniels wasn’t required to make a determination, he took the opportunity to send a clear message to the judiciary regarding their use of social media:
While we make no bright-line ban prohibiting judicial use of social media, we caution that “friending,” online postings, and other activity can easily be misconstrued and create an appearance of impropriety. Online comments are public comments, and a connection via an online social network is a visible relationship, regardless of the strength of the personal connection.
Judges should make use of privacy settings to protect their online presence but should also consider any statement posted online to be a public statement and take care to limit such actions accordingly.
Tweet of the month
Congratulations, you made it to the end of the longest social media round-up I have ever prepared!
You earned yourself a treat …
This tweet from Mark Hamill, Luke Skywalker, son of Darth Vader, to a female fan put a big smile on my face: