September has been another busy month on social media, resulting in my biggest ever social media round-up.
It’s not just big. It’s yuuuge …
This month I start with a few interesting stories that defy categories, such as the recent Pew Research Center report on smartphone ownership and internet and social media usage, Saudi women rebelling on Twitter against male guardianship, Twitter being sued by an investor over failing to meet its key growth metrics while it is working hard trying to reinvigorate the platform and apparently it is also up for sale, an asylum seeker getting caught out by information on his social media profile inconsistent with his application for asylum, the man for whom Facebook created a cheery slide show of his car accident, and Facebook coming clean about issues with its video metrics.
Then I look at copyright and intellectual property, including a significant copyright ruling out of the Court of Justice of the European Union, with an Australian connection, which is likely to have wider implications for digital publishers, the details of the long-awaited proposed overhaul of copyright law in the European Union, the flow-on effects of the proposed Digital Single Market strategy to the telecommunications industry and messaging apps, and an upcoming decision from the Supreme Court of Canada over Google search results which allegedly promote a product that is the result of a breach of intellectual property rights.
I continue with crime (and punishment), as a teenager looking for a ‘slice of attention’ finds himself accused planning a terrorist act, a New York judge slams Facebook in a lawsuit by families of terror victims, Facebook threats lead to an arrests in Sydney, a Florida man threatening mass violence on Facebook, a Sydney woman on the lam, unhappy with her unflattering mug shot offers up her preferred photo on Facebook, in contrast a man in Florida appears to be much more happy with his mug shot, the NSW Government announces plans to criminalise ‘revenge porn,’ over 200 prosecutions revealed under recent ‘revenge porn’ legislation in the UK, and the story of four Italian men under police investigation following the suicide of an Italian woman who struggled for months to have a video of her having sex removed from the internet.
A failed defamation case against Facebook over an anonymous third-party post follows, before I look at free speech issues, with Facebook’s ‘Trending’ news becoming a doozy of a conundrum for the social media company lately, and so it would appear … art, historic war photography, and social and political activism?! YouTube had also ruffled a few feathers after it stepped up its campaign against content it deems ‘not advertiser friendly,’ as Google revealed details about the extent of videos being ‘flagged’ by users for YouTube’s review, as YouTube was accused of trying to censor a vlogger it invited to interview the President of the European Commission, Jean-Claude Juncker. Meanwhile Yelp pushes back against a court order, which it says potentially threatens our ability to leave critical reviews online, and Twitter also released its latest transparency report on removal requests.
I follow with tales of online abuse and harassment, such as the return of the pornographic photo-sharing website that featured naked photos of Australian schoolgirls, Facebook losing a legal bid to prevent a 14-year-old girl suing the social network over a naked picture of her being posted to a Facebook page in an act of ‘revenge porn,’ Germany’s Interior Minister urging Facebook to be more proactive in removing racist and violent materials, Facebook announcing it will work closer with Israel to monitor posts that incite violence, while in Australia an anti-Semitic post caused headache for Facebook, American neo-Nazis target female Jewish author, Norton releasing the results of its latest online harassment survey, Instagram offering a new tool to users designed to hide offensive comments, and the fine line between free speech and abusive or hate speech.
Then comes privacy, with WhatsApp announcing its intention to share user data with parent company Facebook, Facebook receiving some rare good news after a privacy class action attempt against the company has been refused class action status in the US, the upcoming hearing of an appeal by the Supreme Court of Canada in another privacy class action case against Facebook, while Max Schrems’ Austrian privacy class action case against Facebook heads to the Court of Justice of the European Union, an Austrian girl suing her parents over embarrassing childhood photos on Facebook, Italy’s highest court redefining the ‘right to be forgotten,’ and Yahoo admitting to a major security breach, which highlights the lack of legislative requirements to notify Australian customers of data breaches.
I also discuss employment related issues, such as the surprising decision of the Australian Fair Work Commission over the sacking of an airport baggage handler for a ‘sarcastic’ Facebook post supporting Daesh, a labour arbitration decision out of Canada which found that social media spaces can be part of the workplace, an Alice Springs teacher facing an investigation after posting an anti-LGBTI comment on Facebook, and a Tennessee law professor finding himself under investigation over a tweet.
Finally, a look at social media being used as evidence in litigation, the investigations into Google’s tax affairs in Indonesia, the warning by Australia’s corporate regulator to those marketing initial public offerings on social media, a UK TV presenter being pulled up over an undisclosed social media product promotion, the Australian Competition and Consumer Commission assessing the review policies of sharing economy platforms, and the tweet of the month is a tie between the US spy organisation, the Defense Intelligence Agency, and George Takei.
The Pew Research Center reports on smartphone ownership, and internet and social media usage
This latest report from the Pew Research Center shows that while advanced economies still lead in internet and technology usage rates, emerging economies are not just catching up, but interestingly have some of the highest rates of social media usage: 86% in the Middle East, 82% in Latin America, and 76% in Africa, compared to 71% in the United States and 65% in Europe.
The global average of social media use by those who access the internet across the 40 countries surveyed is 76%.
Saudi women rebel on Twitter
Now Twitter is being used again in the Middle East, this time by Saudi women to agitate for cultural, legal, and social change when it comes to their status. This is not a matter to be taken lightly, as making such demands in the conservative kingdom could have serious consequences.
Women in Saudi Arabia still require the permission of the relevant male relative or ‘guardian’ (husband, father, brother, or even a son) to be allowed to undertake a wide range of activities including work, or travel overseas, and to make decisions about healthcare or marriage.
A brave social media campaign has now been launched agitating for change to the institution of archaic male guardianship, which infantilises women, and exposes them to an increased chance of abuse.
I can only wish these brave Saudi women success, and sincerely hope their campaign won’t compromise their safety.
Twitter sued over failing to meet its key growth metrics
In an arguably inevitable lawsuit, in the age of class action suits, Doris Shenwick filed a case against Twitter in the District Court for the Northern District of California, alleging Twitter had misled investors on its growth prospects in November 2014 when it predicted breaking through the 550 million users mark in the ‘intermediate term,’ and the billion users mark ‘over the longer term.’
The lawsuit accuses Twitter of making false statements, and failing to disclose adverse facts known to them, and relies on the fraud-on-the-market doctrine.
As of June this year, there were 313 million active users on Twitter.
Ms Shenwick, clearly dissatisfied by that number, seeks class action status to represent all shareholders who bought Twitter stock between 6 February and 28 July 2015.
The lawsuit states that Twitter shares had ‘plummeted $5.30 per share’ in value on 29 July 2015, after the company’s second quarter 2015 financial results were issued, wiping 15% of their value, and that they have never recovered, trading under $20 a share at the time the suit was filed.
In the meantime Twitter is working hard on reinvigorating the platform, including recent changes to its oft-maligned characters limit, whereby photos, videos, GIFs and quoting other tweets no longer count toward the 140 characters limit:
Is Twitter up for sale?
While last month we were assured Twitter wasn’t going out of business, they didn’t say anything about not selling it.
Apparently, if you have a spare $15 billion Twitter could be yours. In the meantime rumouredly Alphabet and Salesforce are both have their eyes on Twitter.
Speculations on Wall Street are running wild, leading to a jump in Twitter’s share price.
When seeking asylum, don’t contradict your claim on your social media profile
A Bangladeshi man’s asylum claim was refused in Australia recently because while he claimed persecution over being a Christian, his Facebook profile listed his religion as … Muslim.
While the Administrative Appeals Tribunal (AAT) upheld the decision of the Department of Immigration and Border Protection, on appeal the Federal Circuit Court (FCC) set aside the decision of the AAT:
Accordingly, in my view, the Facebook page was “information” for the purposes of s.424A of the Act of which particulars needed to be given to the Applicant, but were not. Accordingly, having regard to the way this case has been conducted, the decision of the Tribunal, notwithstanding the strength of its other findings which led it not to be satisfied that the Applicant met the Refugee Convention Criterion in s.36(2)(a) or the complementary protection criterion obligations under s.36(2)(aa) were applicable, must be set aside.
AEN16 v Minister for Immigration & Anor  FCCA 2039 (23 August 2016)
Following the decision of the FCC, the AAT will now redetermine the case.
Facebook creates cheery slide show for user’s car crash
Josh Gibson was involved in a serious car accident as he travelled along a Utah road, and his Toyota 4Runner flipped after he was rear-ended by another car. Thankfully, everyone was largely okay. Mr Gibson took a few photos and videos of the aftermath of the accident and posted it to Facebook for friends to see.
We all know and love Facebook’s bubbly little slide shows which are created from time-to-time by the platform, but no one would expect this to happen:
Facebook auto-made a chipper slide show of my near-fatal car accident. I was in the green 4Runner. My iPhone and Apple Watch was fine.
Facebook comes clean about issues with its video metrics
Causing consternation among ad agencies worldwide, Facebook identified a serious error in how it calculated video viewing times on the platform for over two years.
The error apparently resulted in inflating Facebook’s metrics on the average time people spent watching videos by failing to count people who watched for less than 3 seconds.
Facebook admitted the error may have led to reported viewing times being inflated by 60-80%, raising significant questions for advertisers about the true value of Facebook videos, and leading to renewed calls for independent evaluation.
Recognising the significance issue Facebook has been in serious damage control mode over the past few days.
We sincerely apologize for the issues this has created for our clients. This error should not stand in the way of our ultimate goal, which is to do what’s in the best interest of our partners and their business growth. We can only be successful if we’re providing clients with the tools to drive their business forward, and we’ll continue to deliver on that promise.
GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Geertruida Dekker, Case C-160/15
This interesting copyright judgment handed down on 8 September held that the posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally.
However, where such linkages are created as part of a profit-making operation, steps must be taken to establish whether the content in question is being illegally distributed and in such circumstances the knowledge of the illegality of the publication on the other website will be presumed.
GS Media is the operator of ‘GeenStijl,’ which specialises in ‘news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense.’ It is one of the ten most visited news websites in the Netherlands.
In 2011, GS Media published an article which included a hyperlink directing viewers to an Australian website where photos of Ms Britt Dekker, a Dutch television personality, were made available. However, the photos on the Australian website were published without the consent of Sanoma, the editor of the monthly magazine Playboy, which holds the copyright to the photos in question.
Sanoma demanded that GS Media remove the hyperlink. GS Media refused.
When the Australian website in question removed the photos at Sanoma’s request, GeenStijl published a new article which contained a different hyperlink to another website where the photos in question could be seen. When that site complied with Sanoma’s request for the removal of the photos too, internet users visiting the GeenStijl forum posted new links to other websites where the photos could still be viewed.
Sanoma subsequently claimed that GS Media infringed its copyright.
The matter came before the Court of Justice of the European Union (CJEU) from the Hoge Raad der Nederlanden (the Supreme Court of the Netherlands) which, hearing the appeal, sought a preliminary ruling from the CJEU.
The CJEU recognised the inherent difficulties involved in balancing the interests of copyright holders and the interests and fundamental rights of users of copyrighted materials, in particular their freedom of expression and of information, as well as the general communal interest, especially in the context of the internet, and its particular importance to freedom of expression and of information, recognising that hyperlinks contribute to its sound operation and to the exchange of opinions and information. The CJEU accepted that it may be difficult, particularly for individuals, to ascertain whether particular works they are hyperlinking are protected by copyright or not and, if protected, whether the copyright holder consented to their publication on the internet.
The CJEU determined that the desired balance can be best achieved by applying a test of whether the person hyperlinking to copyrighted material is doing so in pursuit of profit or not.
… it should be noted that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information.
Furthermore, it may be difficult, in particular for individuals who wish to post such links, to ascertain whether website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet. Such ascertaining is all the more difficult where those rights have been the subject of sub-licenses. Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it.
For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.
Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention.
In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
… when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
The ruling is likely to have a significant impact on the business practices of commercial digital publishers in Europe, requiring them to put their mind to the copyright status of third-party materials they intend to hyperlink on their sites.
Proposed reforms to European copyright laws
The European Commission released its long-awaited proposal for the fundamental overhaul of European copyright law.
The reform proposals, released earlier this month, are highly contentious and centre around a pan-European approach to copyright by effectively abolishing geo-blocking within the European Union’s borders to create a ‘Digital Single Market‘.
Today, we propose a legal mechanism for broadcasters to obtain more easily the authorisations they need from right holders to transmit programmes online in other EU Member States. This is about programmes that broadcasters transmit online at the same time as their broadcast as well as their catch-up services that they wish to make available online in other Member States … Empowering broadcasters to make the vast majority of their content, such as news, cultural, political, documentary or entertainment programmes, shown also in other Member States will give more choice to consumers.
To help development of Video-on-Demand (VoD) offerings in Europe, we ask Member States to set up negotiation bodies to help reach licensing deals, including those for cross-border services, between audiovisual right holders and VoD platforms. A dialogue with the audiovisual industry on licensing issues and the use of innovative tools like licensing hubs will complement this mechanism.
The proposals would also force internet operators, such as Google and Reddit, to pay content publishers a licence fee when using extracts or snippets of content, and requiring video platforms, such as YouTube and Facebook, to use technology that can track copyright violations and shut them down.
The Copyright Directive aims to reinforce the position of right holders to negotiate and be remunerated for the online exploitation of their content on video-sharing platforms such as YouTube or Dailymotion. Such platforms will have an obligation to deploy effective means such as technology to automatically detect songs or audiovisual works which right holders have identified and agreed with the platforms either to authorise or remove.
Newspapers, magazines and other press publications have benefited from the shift from print to digital and online services like social media and news aggregators. It has led to broader audiences, but it has also impacted advertising revenue and made the licensing and enforcement of the rights in these publications increasingly difficult.The Commission proposes to introduce a new related right for publishers, similar to the right that already exists under EU law for film producers, record (phonogram) producers and other players in the creative industries like broadcasters.
This is an interesting approach given similar schemes have failed in Germany and Spain. For example, Google News ended up pulling out of Spain, while in Germany Google News simply stopped reproducing snippets of text, leading to a drop in traffic to publishers who then ended up granting free licences to Google.
Admittedly, taking a pan-European approach may leave Google at more of a disadvantage unless it is prepared to pull some service from the European Union entirely.
On the other hand, the proposals were welcomed by academic researchers and scientists, because it will allow them to harvest data from research papers by giving them certain copyright exemptions for algorithm-based data mining, thus enabling them to easier analyse large-scale scientific data-sets.
The flow-on effects of the proposed Digital Single Market strategy to the telecommunications industry and messaging apps
Last month I flagged the European Commission was considering the tightening of rules governing messaging apps, as part of a major telecommunications industry overhaul, which would likely affect the operations of popular messaging apps such as WhatsApp, Facebook Messenger, and Skype in the European Union.
As anticipated, and as part of the Digital Single Market strategy, the European Commission also released a proposed new European Electronic Communications Code, which sets EU-wide common rules for telecommunications operators.
The European Commission announced a revision of the EU’s telecoms rules that appears to contradict some of the previous goals of the Digital Single Market plan. The telecoms rules touch on issues as diverse as spectrum policy, access regulation and the rules for providing services. For the first time these rules cover next generation communications services provided online and not by telecoms companies. This may require these companies to connect to emergency services operators and possibly comply with future ePrivacy rules.
The following telecoms quotes may be attributed to James Waterworth, Vice President of CCIA Europe:
“Europeans benefit hugely from innovative online communications services giving consumers new ways to communicate for free or at low cost. Such services are also the embodiment of the digital single market. These services are often free so companies, especially smaller ones, may not be able to comply with these regulations in all markets, which would be a shame for companies and consumers.”
“By including online communications services in the scope of these sort of telecoms rules, the Commission will fragment the market with 28 sets of rules to be followed rather than 1. This is the opposite of its stated objective. It may also drive some popular communications options out of the market, reducing competition and preventing the release of new features in Europe.”
Watch this space as no doubt months, if not years, of negotiations will unfold over the European proposals.
Supreme Court of Canada to rule over Google search results linked to the breach of intellectual property rights
The case arises from a lawsuit by a small Canadian technology company, Equustek Solutions Inc., against US company Datalink Technologies Gateways Inc., and former employees who allegedly stole a company secret and went on to manufacture a competing product and selling it online. Equustek subsequently obtained an interlocutory injunction against Google in the Supreme Court of British Columbia, ordering Google to stop displaying certain affected websites in its search results worldwide.
Google appealed arguing, among other things, that the extraterritorial reach of the injunction is inappropriate and a violation of the principles of comity, but the interlocutory injunction was upheld by the Court of Appeal for British Columbia.
The Supreme Court of Canada is now scheduled to hear a further appeal by Google, and the significance of the outcome of the case cannot be underappreciated, given it involves an injunction against Google requiring it to remove links from its search results globally, which are otherwise publicly and readily available online.
Crime (and punishment)
Teenager looking for a ‘slice of attention’ finds himself accused planning a terrorist act
People keep getting into serious trouble over inappropriate posts on social media, landing them on the radar of police, and making them the subject of terrorism investigations.
• Using a carriage service to menace, harass or cause offence (12 May 2015)
• Crime (and punishment) (27 January 2016)
• YouTube prank videos and a raid by thirty counter-terrorism police officers (30 May 2016)
• The internet ruined my life (25 July 2016)
This time a 17-year-old Sydney teenager thought it appropriate to post an ‘attack map’ to Facebook, highlighting four specific locations accompanied by a series of threatening messages, such as:
[I will] whip out my blade and start slashing every man and woman, even children, around me.
Unsurprisingly, police pounced on the young man, and he was arrested at his family home the following morning.
With his bail denied, and facing life in jail after being charged with one count of intentionally doing an act in preparation for, or planning, a terrorist act under section 101.6(1) of the Criminal Code Act 1995 (Cth), one count of using a telecommunications network with the intention to commit a serious offence (s474.14(2)), and one count of using a carriage service to threaten to kill (s474.15(1)), the teen finds himself in a tight spot.
Sadly, the young man has significant developmental disabilities, and has been diagnosed with Aspergers’ syndrome and depression. Hopefully this matter will be resolved in a manner that will protect the community, but will also deliver the mental health care and support this troubled young man needs.
New York judge slams Facebook in a lawsuit by families of terror victims
In July I reported on a lawsuit against Facebook filed in New York, seeking over $1 billion in damages, alleging that Facebook facilitates terror groups by offering them a social platform, and not doing enough to prevent their operations on the social network.
The matter came before the very unhappy US District Judge Nicholas Garaufis who lambasted Facebook’s lawyers for not treating the case seriously, after the firm sent a first year associate to the hearing.
Judge Garaufis ordered the top Manhattan law firm Kirkland & Ellis to send a more senior lawyer to the next hearing of the matter, noting he wanted to ‘talk to someone who talks to senior management at Facebook.’
Judge Garaufis accepted that similar lawsuits failed repeatedly due to US legislative protection enjoyed by social networks against liability for third-party content, but he put Facebook on notice demanding the social network still treat the matter seriously.
He highlighted how Facebook is ‘basically putting together people who’d like to be involved in terrorism with people who are terrorists,’ and questioned whether that places a moral obligation on Facebook to do more to curb terrorists recruiting and communicating on the social network.
The matter is due back before Judge Garaufis for a pre-motion conference tomorrow afternoon.
Facebook threat against NSW Deputy Premier leads to arrest
Over the past year I reported on a number of arrests and convictions arising from threats made on social media. It would appear those cases are not stopping people from making criminal threats online.
A Sydney man was arrested after he posted threats to Facebook over the New South Wales government’s ban on greyhound racing. Ben Campton posted threatening messages on the Facebook page of NSW Deputy Premier, Troy Grant:
I’m going to stab you, I hope you have personal security. We are stocking weapons for a civil war. You are first on the list.
Mr Campton pleaded guilty to one charge of using a carriage service to threaten serious harm and was given a seven-month suspended sentence on a good behaviour bond.
Florida man escapes local arrest, but later nabbed by the FBI over a threat of mass violence on Facebook
Meanwhile in the US, a Florida man had reportedly made serious Facebook threats of mass violence against the local LGBTI community.
Local police said the Facebook threats were no cause to arrest Mr Craig Jungwirth, however a few days later he was arrested by Florida Highway Patrol on an ‘unrelated charge’. Mr Jungwirth has a history of harassment and stalking.
Despite the assessment of local police, Mr Jungwirth was later arrested by the FBI on federal charges of sending ‘communication containing … any threat to injure the person of another.’
Sadly, this is likely to be a complex story, as Mr Jungwirth is himself gay, but it would appear he had a serious fallout with various section of his community over allegations of fraud against him.
Woman on the lam, unhappy with the media using her unflattering mug shots, offers up her preferred photo instead on Facebook
After 18-year-old Amy Sharp escaped from custody, police put out a statement requesting assistance from the public. Channel 7 News in Sydney picked up the story and published it to their Facebook page, together with the two mug shots provided by police.
Later that night Amy Sharp politely responded to the post, attaching a more flattering picture of herself, making international news:
can you use this photo, please and thank you 😇
Amy Sharp xx
The image conscious young criminal was captured the following day, and her Facebook comment went on to collect over 60,000 ‘Likes’.
Florida man more than happy with his mug shot
Meanwhile, 42-year-old Mack Yearwood, proudly used his mug shot as his Facebook profile picture, assisting police in tracking him down in relation to a new battery case against him.
The mug shot came from a ‘Wanted of the Week’ poster which related to two outstanding warrants, also on battery charges.
Perhaps using your mug shot when the police is looking for you is not the wisest course of action …
NSW Government announces plans to criminalise ‘revenge porn’
Over the past year I reported on the increasingly widespread and troubling issue of ‘revenge porn,’ whereby previous partners take revenge on women by releasing intimate images taken or exchanged in the course of their relationship, or even strangers and hackers obtaining and releasing intimate images of women they don’t even know to harass and intimidate, often for reasons unknown.
• Chrissy Chambers (22 September 2015)
• Crime (and punishment) (28 February 2016)
• Privacy in New South Wales (23 March 2016)
• Revenge porn continues to be a serious issue (30 May 2016)
• Revenge porn continues to plague the internet (27 June 2016)
• The ongoing fallout from the proliferation of revenge porn (25 July 2016)
• Another online pornographic scandal (29 August 2016)
Earlier this month the NSW Government announced that it intends to look into criminalising the growing practice.
The NSW Attorney General announced that the government is looking to respond to the concerns expressed by the Legislative Council Committee on Law and Justice in its report titled ‘Remedies for the serious invasion of privacy in New South Wales,’ in which the Committee recommended the introduction of a statutory cause of action for serious invasions of privacy.
No one has the right to share explicit photos without consent, and new laws will protect people and make it clear this kind of behaviour is totally unacceptable.
The use of mobile phones as recording devices has made it easier for people to share intimate images without consent on social media or websites, causing great distress for victims, and we need strong laws to protect them.
Gabrielle Upton, NSW Attorney General
Subject to addressing the potentially unintended consequences of such legislation, such as ensuring that teenagers partial to the modern social phenomenon of ‘sexting’ don’t end up with a life-destroying criminal record, this is a welcome and much-needed law reform development.
The NSW government has also released a Discussion Paper, and announced public consultation, on the proposal, including on the definition of ‘intimate’ images and ‘consent,’ the assessment of intent or motivation, penalties, and the application of the offence to children and young people. The consultation will end on 21 October.
Over 200 prosecutions revealed under recent ‘revenge porn’ legislation in the UK
In the UK ‘revenge porn’ has been outlawed since April 2015. A crime report issued by the Crown Prosecution Service on Violence Against Women and Girls for 2015-2016 revealed 206 prosecutions under the law criminalising the disclosure of private sexual photographs and films with intent to cause distress.
While the report does not specify the number of cases referred to prosecutors, an investigation by the BBC earlier this year indicated that there were at least 1,160 reported incidents of revenge porn between April and December 2015, indicating that a majority of the complaints does not proceed to prosecution.
There are already calls in the UK for making existing ‘revenge porn’ laws stricter, by criminalising the threat of circulating revenge porn, lowering the evidence threshold, and giving victims anonymity.
Italian criminal investigation follows suicide over online sex video
The appalling consequences of revenge porn played out to a horrific conclusion in Italy with the suicide of a young woman recently.
About a year ago, 31-year-old Tiziana Cantone sent a video of herself having sex to three friends, and her ex-boyfriend in an attempt to make him jealous.
The video promptly made its way onto the internet where it went viral, resulting in the merciless national mocking of Ms Cantone. Her words from the video ended up being quoted online, and printed on t-shirts and smartphone cases.
Ms Cantone’s battle recently resulted in a successful ‘right to be forgotten’ ruling which ordered the removal of the video from websites and search engines. However, that fight left her with a crippling €20,000 legal bill.
Prosecutors in Naples have now opened an investigation into the actions of the four men involved on charges of ‘incitement to suicide,’ although it remains to be seen whether such a charge will be able to be made out in the circumstances.
Defamation case against Facebook fails in the High Court of Ireland
The High Court of Ireland refused to grant an order requested by a Ugandan solicitor for the removal of posts by Facebook, which the solicitor alleged to be defamatory.
However, Justice Binchy did order the social media company to disclose the identity and location of the person operating the page in question.
Mr Muwema is a partner in the Ugandan firm of Muwema & Co., Advocates and Solicitors.
Mr Muwema commenced proceedings against Facebook after the social media company refused to comply with his request to remove what Mr Muwema described as three ‘highly offensive and defamatory publications’ posted to Facebook, by a person identified only as ‘TVO.’
According to Mr Muwema, the posts falsely accuse him of accepting bribes, staging a break in at his own law firm to jeopardise a presidential election and petition, and being constantly guarded by armed forces.
Mr Muwema didn’t seek damages. Instead, he sought orders under the Defamation Act 2009 for the deletion of the posts, the prohibition of further posts by ‘TVO,’ and for Facebook to provide any details it has about the identity and location of those responsible for the posts.
Justice Binchy accepted that ‘there can hardly be any doubt’ that the posts were defamatory, however, Facebook was protected by the statutory defence of innocent publication under s27(2)(c) of the Defamation Act, and the information was also otherwise available on the internet, making an injunctive relief superfluous.
Despite the substance of the judgment, Justice Binchy expressed some unease about the case and the state of Ireland’s defamation laws, indicating a need for legislative reforms:
I have come to the first of the conclusions above with some unease. It is clear that the Regulations, while protecting ISPs from actions for damages in circumstances such as arise in this case, at the same time envisage the granting of appropriate injunctive relief to safeguard the legal rights of those whose rights might otherwise be infringed by the activities of the customers of ISPs. Similarly, the Act of 2009 protects ISPs from actions for defamation where they are innocent of the publication of the defamatory material. However, the Act of 2009 does not permit of the granting of injunctive relief against an ISP in circumstances where the ISP is likely to have a defence to the proceedings. It is true that this broadly reflects the law prior to Act of 2009. But the principles governing applications for prior restraint orders prior to 2009 were based upon the proposition that damages were the appropriate remedy in cases of defamation. The Act of 2009 now provides a shield against damages (as indeed do the Regulations) to defendants meeting its requirements, and the same shield also prevents the Court from granting injunctive relief to persons claiming to be defamed. Thus, it appears, a person who has been defamed by an internet posting may be left without any remedy at all, unless the author is identified and amenable to the jurisdiction of the Court. Moreover, because of the all encompassing nature of the defence afforded by s.27 of the Act of 2009, a person subjected to a defamatory posting to which the defence applies cannot succeed in any manner in the proceedings, and the problem is not therefore confined to interlocutory applications; the victim, it appears, can never obtain relief as against the ISP. This begs the question as to whether the Court has jurisdiction to grant takedown or prior restraint orders in proceedings for defamation otherwise than in the circumstances prescribed by the Act of 2009. The Court had such jurisdiction prior to the Act of 2009, but now that the Oireachtas has legislated in the area, it seems to me to be strongly arguable that such orders may only be made within the strictures of the Act.
Facebook’s latest ‘Trending’ news dramas
You may recall the recent ‘free speech’ furore around the alleged anti-conservative bias by human Facebook operators in moderating items for its ‘Trending’ news.
In my view those concerns were nonsensical and highly divorced from reality, because editorial oversight has always been not just a hallmark, but also a professional responsibility, of media organisations.
Today, we’re making some changes to the Trending feature on Facebook that will make the product more automated and will no longer require people to write descriptions for trending topics.
And did it go spectacularly wrong? Yes it did …
Just three days after the removal of its human editors, in a humiliating failure of the new algorithm-controlled automated system, a controversial fake story started trending on Facebook about Fox News anchor Megan Kelly, courtesy of a seriously weird far-right conservative conspiracy website, ‘EndingTheFeed.com.’ The story claimed Ms Kelly has been exposed as a ‘traitor’ to the conservative cause and the nation, over backing Hillary Clinton in her bid for the White House.
The rise of questionable digital media operators such as EndingTheFeed.com creates a minefield for algorithm-based news feeds because they still lack the sophistication to identify hoaxes and satire.
Facebook intervened a few hours later and removed the item from its ‘Trending’ section. However, under human editorship this story would never have slipped through, as its source would have been immediately identified as untrustworthy.
There were some suggestions Ms Kelly could take action against Facebook for widely disseminating this false and highly defamatory material, although she indicated she has no plans to do so.
Just as that scandal settled, leading up to the 15th anniversary of the 9/11 terrorist attacks, Facebook’s ‘Trending’ section promoted a tabloid article which claimed ‘experts’ had footage proving that ‘bombs were planted in Twin Towers’ … Sadly, there are countless conspiracy theories circulating on the internet in relation to just about any recent tragedy, each crazier than the other, but for Facebook to promote an article regurgitating such a baseless conspiracy theory is simply unacceptable.
Soon after the matter was brought to Facebook’s attention they acted fast, and removed the link.
The repetitive nature of these ‘Trending’ incidents indicate Facebook may have been premature to do away with its editorial staff and trust an algorithm instead.
As Facebook continues to struggle with the growing perception that it has effectively become a media company, the company’s Vice President of Product Management, John Hegeman was at pains to point out at a media briefing that Facebook does not consider itself to be a media company and that its users should not rely on the social media site for all their news.
Facebook and art struggle it out again …
You may recall my incredulous account of Facebook censoring the 1866 Gustave Courbet masterpiece ‘The Origin of the World’.
The silliness of Facebook’s art censorship has now progressed to the surreal, after the social media company claimed that the drawing ‘Study of Right Hand of Erasmus’ by Hans Holbein the Younger breached its community standards.
This one they can’t even blame on an algorithm, the judgment call apparently involved a real human being, resulting in a 30-day suspension for Stephen Ellcock, an online art curator with over 100,000 followers.
Although Facebook had subsequently blamed ‘human error’ and apologised, the original decision continues to baffle, to say the least, and clearly requires a review of the practical application of Facebook’s community standards.
Facebook slammed over the outrageous censorship of historic Vietnam war image
In the latest Facebook censorship scandal the social media company, and Mark Zuckerberg himself, have been on the receving end of growing criticism after Facebook deleted the historic photo featuring a naked 9-year-old Kim Phúc as she is running away from a napalm attack during the Vietnam war. The photograph is one of the most iconic war images of all time.
The image was published to Facebook as part of a piece by writer Tom Egeland discussing ‘seven photographs that changed the history of warfare.’
To make matters worse, in a move that has become a questionable standard practice for Facebook, after Egeland publicly criticised Facebook’s reaction to the image, he was swiftly suspended from the social media network.
• Facebook continues to struggle with its media role (29 August 2016)
• Nudity, censorship and Facebook (23 March 2016)
Aftenposten reported on Egeland’s suspension and used the same photo in its article, which was then shared to the newspaper’s Facebook page. Facebook promptly contacted the newspaper asking it to remove or pixelate the image, noting that ‘[a]ny photographs of people displaying fully nude genitalia or buttocks, or fully nude female breast, will be removed.’
Before Aftenposten could respond, Facebook deleted the article and image from the newspaper’s Facebook page, recounted Espen Egil Hansen, the Editor-in-Chief and CEO of Aftenposten, in an open letter to Mark Zuckerberg, sharply crticising Facebook over its conduct.
Dear Mark Zuckerberg.
I follow you on Facebook, but you don’t know me. I am editor-in-chief of the Norwegian daily newspaper Aftenposten. I am writing this letter to inform you that I shall not comply with your requirement to remove a documentary photography from the Vietnam war made by Nick Ut.
Not today, and not in the future.
Listen, Mark, this is serious. First you create rules that don’t distinguish between child pornography and famous war photographs. Then you practice these rules without allowing space for good judgement. Finally you even censor criticism against and a discussion about the decision – and you punish the person who dares to voice criticism.
However, even though I am editor-in-chief of Norway’s largest newspaper, I have to realize that you are restricting my room for exercising my editorial responsibility. This is what you and your subordinates are doing in this case.
I think you are abusing your power, and I find it hard to believe that you have thought it through thoroughly.
The media have a responsibility to consider publication in every single case. This may be a heavy responsibility. Each editor must weigh the pros and cons.
This right and duty, which all editors in the world have, should not be undermined by algorithms encoded in your office in California.
The matter escalated further when the Prime Minister of Norway, Erna Solberg reposted the image on her Facebook page, and was promptly censored by Facebook.
Initially, Facebook was steadfast in its resolution, but in face of an avalance of condemnation it crumbled, and backed away from its ban on this iconic image:
After hearing from our community, we looked again at how our Community Standards were applied in this case. An image of a naked child would normally be presumed to violate our Community Standards, and in some countries might even qualify as child pornography.
In this case, we recognize the history and global importance of this image in documenting a particular moment in time. Because of its status as an iconic image of historical importance, the value of permitting sharing outweighs the value of protecting the community by removal, so we have decided to reinstate the image on Facebook where we are aware it has been removed.
We will also adjust our review mechanisms to permit sharing of the image going forward. It will take some time to adjust these systems but the photo should be available for sharing in the coming days. We are always looking to improve our policies to make sure they both promote free expression and keep our community safe, and we will be engaging with publishers and other members of our global community on these important questions going forward.
The matter grew into such a global scandal, Facebook’s COO Sheryl Sandberg felt forced to step in and reassure the Prime Minister of Norway personally:
These are difficult decisions and we don’t always get it right … Even with clear standards, screening millions of posts on a case-by-case basis every week is challenging. Nonetheless, we intend to do better. We are committed to listening to our community and evolving. Thank you for helping us get this right … sometimes … the global and historical importance of a photo like ‘Terror of War’ outweighs the importance of keeping nudity off Facebook.
Facebook is not off the hook just yet with Mr Hansen. The outraged editor had challenged Mark Zuckerberg to publicly face up to his responsibility as one of the world’s most powerful people, and called upon him to personally engage in the issues surrounding editorialship and censorship.
Roy Greenslade Professor of Journalism at City University in the UK, went as far recently as saying that the ‘Facebookisation of news has the potential to destabilise democracy by, first, controlling what we read and, second, by destroying the outlets that provide that material.’ (‘Why Facebook is public enemy number of for newspapers, and journalism‘, The Guardian, 20 September 2016)
Facebook ‘accidently’ suspends Shaun King, journalist, and prominent Black Lives Matter activist
Shaun King’s run in with Facebook further highlights the significant issues faced by the social media network when it comes to applying its community standards in a reasonable and sane manner.
The (temporary) banning of Shaun King was made particularly ironic by the fact he was a guest speaker at the Facebook campus earlier this year, talking about the very work that got him suspended.
As part of is social and political activism, and fight against racism, Mr King posted to his Facebook page the screenshot of an email he received in which he was repeatedly referred to by a highly derogatory term related to his race. For this he received a suspension for violating Facebook’s community standards …
Although Facebook reversed its decision a short time later, and apologised to Mr King, this incident further highlights the serious problems Facebook is facing when it comes to monitoring its network and applying its community standards.
YouTube steps up campaign against content it deems ‘not advertiser friendly’
Earlier this month reports started to emerge from YouTube content creators about YouTube issuing mass warnings to a range of YouTube ‘celebrities,’ deeming their language and subject matters ‘not advertiser friendly,’ and withholding advertising, thus revenue, from the videos in question.
YouTube’s ‘Advertiser-friendly content guidelines‘ haven’t changed, but the practical enforcement of the guidelines appears to have been ramped up by the social media operator.
The reinvigorated policy enforcement, and its questionable practical outcomes, resulted in a backlash from both content creators and users.
It remains to be seen whether YouTube will continue to enforce the guidelines with such zeal in face of this growing opposition.
Google reveals details about the extent of YouTube videos being ‘flagged’ by users for review
The extent to which users ‘flag’ what they consider inappropriate content on YouTube has been revealed earlier this month.
YouTube reported that since 2006 it received flags from over 90 million users across 196 countries, with a third flagging more than one video – on average, that’s at least 173,000 flags per week.
Those numbers illustrate the difficult balance social media operators must find between free speech, consumer and legal pressures, and potentially harmful content.
The report goes on to highlight that in 2015 alone, YouTube removed 92 million videos over the violation of its community guidelines through a mix of user flagging, and their automated ‘spam-detection technology’.
Every minute 400 hours of video is uploaded to YouTube, making the monitoring, and determining the appropriateness of flagged items, a mammoth task.
We have trained teams, fluent in multiple languages, who carefully evaluate your flags 24 hours a day, seven days a week, 365 days a year in time zones around the world. They remove content that violates our terms, age-restrict content that may not be appropriate for all audiences, and are careful to leave content up if it hasn’t crossed the line. As YouTube grows, we continue to scale our policy enforcement resources to meet your needs as a community.
YouTube also noted that flagged content is not removed automatically. Because YouTube is an ‘important global platform for information and news,’ YouTube teams ‘evaluate videos before taking action in order to protect content that has an educational, documentary, scientific or artistic purpose.’
YouTube accused of trying to censor vlogger it invited to interview the President of the European Commission, Jean-Claude Juncker
Earlier this month YouTube invited a number of young social media celebrities to interview Jean-Claude Juncker, including French vlogger Laetitia Birbes, as part of a public relations effort to improve the stuffy image of Brussels’ bureaucrats.
It didn’t go well. Birbes accused a YouTube employee of threatening her future with YouTube if she asked difficult questions:
You are putting very difficult questions to Mr Juncker. You are talking about corporate lobbies. You don’t want to get on the wrong side of YouTube and the European Commission, or the people who trust you. Well, except if you don’t care about having a long career on YouTube.
Looking at what was said, it is difficult to argue with her interpretation of the events, although YouTube explained the interaction noting that the YouTube employee was simply responding to Ms Birbes’ inquiry about how she should phrase her questions and she was advised to be respectful rather than confrontational.
In the end Ms Birbes did get in a tough question, asking Mr Juncker why he thought he was the right person to fight tax evasion having been the finance minister of Europe’s biggest tax haven, Luxembourg, for over 18 years, noting doing so felt like naming a robber as the police chief.
First Mr Juncker responded in good humour saying ‘it is often said that robbers and poachers make the best cops,’ but then called the question superficial, and a sign of French condescencion towards Luxembourg.
Yelp says court order is a potential threat to our ability to leave critical reviews online
Yelp is fighting back against an order requiring it to delete critical comments posted to the customer review site about a law firm by a former client:
well, here is another business that doesn’t even deserve one star. basically, dawn hassell made a bad situation much worse for me. she told me she could help with my personal injury case from falling through a floor, then reneged on the case because her mom had a broken leg, or something like that, and that the insurance company was too much for her to handle. and all of this after i met with her office (not her personally, she was nowhere to be found) signed paperwork to ‘hire’ them and gained confidence in her office (due mostly to yelp reviews) so, in all fairness, i have to share my experience so others can be forewarned. she will probably not do anything for you, except make your situation worse. in fact, after signing all the paperwork with her office, like a broken record, they repeated ‘DO NOT TALK TO THE INSURANCE COMPANY’ over and over and over. and over and over. so i honored that and did not speak to them. but, the hassell law group didnt ever speak with the insurance company either, neglecting their said responsibilities and not living up to their own legal contract! nor did they bother to communicate with me, the client or the insurance company AT ALL. then, she dropped the case because of her mother and seeming lack of work ethic. (a good attorney wont do this, in fact, they arent supposed to) to save your case, STEER CLEAR OF THIS LAW FIRM! and research around to find a law firm with a proven track record of success, a good work ethic, competence and long term client satisfaction. there are many in the bay area and with some diligent smart interviewing, you can find a competent attorney, but this wont be one of them.
Lawyer Dawn Hassell fought back against Ava Bird, whom she briefly represented in a personal injury case, rejecting Ms Bird’s assertions:
The statements in this review are simply not TRUE. My law firm ONLY represented this client for 25 days! During our brief 25 day representation, the law firm’s attorneys DID communicate with this client at least 15 times! There were 12 emails, 1 in person meeting, and multiple phone calls to this client. While there was an initial short delay in our contacting the responsible insurance company during the brief 25 day period we handled the case, the law firm DID have at least 2 communications with the responsible insurance company. We withdrew from this case on September 13, 2012 because the client failed to show for a scheduled phone conference that she agreed to with the law firm’s attorneys, among other reasons. Her review was written a number of months later in retaliation after she was unable to obtain any other lawyer to represent her in her case. My law firm did not prejudice any rights of this former client. At the time we withdrew from her case, she still had approximately 1 year and 9 months left to pursue her claim and to either settle it or file a lawsuit on it, and all case deadlines were put in writing to her. The fee agreement signed by this client made clear that she would be represented by a firm of attorneys and staff, and not a particular individual. I had 2 trials coming up by the time she got her paperwork in, and in my August 15th email to her I also advised her I would have an associate attorney assisting me, to which she did not object and responded by email that she was mailing her paperwork in. As with most law firms, cases are supervised by a Managing Attorney and associate attorneys assist the lead attorney on many aspects of a client’s file. She initially contacted the law firm online on June 22, 2012. It was not until 64 days later that she returned the signed case paperwork on August 20, 2012 which we needed to proceed with her case. If she was repeatedly contacted by the insurance company during this time, it was because of her own delay. All communication to her by the law firm during the 25 days was from licensed attorneys of the law firm. In my August 15th email to her, I asked her when she was available to meet with me the following week, but she never provided any date she could meet with me in her response. I welcome constructive criticism from my clients. But we did not deserve her malicious and untruthful review.
Ms Bird posted an update to her review once Ms Hassell commenced proceedings against her:
here is an update on this review:
dawn hassell has filed a lawsuit against me over this review i posted on yelp! she has tried to threaten, bully, intimidate, harrass me into removing the review! she actually hired another bad attorney to fight this. lol! well, looks like my original review has turned out to be truer than ever! avoid this business like the plague folks! and the staff at YELP has stepped up and is defending my right to post a review. once again, thanks YELP! and i have reported her actions to the Better Business Bureau as well, so they have a record of how she handles business. another good resource is the BBB, by the way.
Other than the updated review on Yelp, Ms Bird did not respond to the lawsuit, and a default judgment was entered in favour of Ms Hassell, finding the comments defamatory. Judge Sullivan of the San Francisco Superior Court awarded Ms Hassell over $500,000 in damages, and ordered the comments to be removed. Although Yelp was not a party to the proceedings, among other things, the order stated: ‘Yelp.com is ordered to remove all reviews posted by AVA BIRD …’
After Ms Bird failed to comply with the order, Ms Hassell approached Yelp and asked them to remove the posts in question in accordance with the order.
Yelp refused her request, and challenged the portion of the order requiring it to remove the posts in question. Yelp made the motion as an ‘aggrieved party,’ since it was not a party to the underlying proceedings. The court denied the motion, and California’s First District Court of Appeal confirmed the denial earlier this year.
The matter is now heading to the California Supreme Court, with Yelp continuing to argue that the order violates the Communications Decency Act (CDA) which provides a shield for online companies for being held responsible for harms arising from third-party content, under the so-called ‘section 230 immunity.’
Technology and social media giants Facebook, Twitter, and Microsoft made a submission to the Supreme Court backing Yelp, arguing that the lower court’s ruling ‘radically departs from a large, unanimous and settled body of federal and state court precedent’ and couuld have the undesired effect of silencing ‘a vast quantity of protected and important speech.’
So, watch this space … but my reasonably confident prediction is a victory for s230 of the CDA, and Yelp.
Twitter releases latest transparency report on removal requests
Twitter also released their latest transparency reports for the period of January to June 2016, including the details of removal requests they received, showing a 13% increase in takedown requests from the previous period.
Globally, Twitter received 761 court orders and 4,434 requests from government agencies, including police.
The requests came from 37 countries and affected 20,594 accounts. 2,600 of those account had some content removed for violating Twitter’s Terms of Service, 2,799 accounts had some content withheld from access in a particular country, such as a tweet by Senator Nick Xenophon sent on 23 June, for the first time in Australia, but no action was taken on the remaining 15,195 accounts.
Twitter noted that removal requests generally related to ‘content that may be illegal in a specific jurisdiction,’ or court orders.
The pornographic photo-sharing website that featured Australian schoolgirls makes a return
As much as I hate to say ‘I told you so,’ well … I told you so.
Last month I reported on the latest pornographic scandal, a website designed to target Australian schoolgirls by swapping pictures of the naked teenagers without their consent or knowledge. Although the site was promptly shut down after the intervention of the Office of the Children’s eSafety Commissioner, I predicted ‘the site will probably be up and running again in no time.’
Well, the site is back up and running and the Children’s eSafety Commissioner is back on the case, although it appears to be playing a practically unwinnable game of cat and mouse …
Facebook loses legal bid to prevent girl suing over revenge porn naked picture
A Belfast judge in the United Kingdom refused to strike out an action by a 14-year-old girl over a naked picture of her posted to a Facebook revenge porn page repeatedly between November 2014 and January 2016.
The girl is seeking damages for the misuse of private information, negligence, and the breach of the Data Protection Act 1998 (UK).
The girl’s lawyers argue Facebook has the image tracking technology capable of identifying offending images and block their republication.
Germany’s Interior Minister urges Facebook to be more proactive in removing racist and violent materials
Thomas de Maizière, visiting Facebook’s Berlin office, called on the social media company to do more to combat racist and violent posts, and suggested Facebook should take proactive steps on such materials, rather than wait to receive complaints before acting.
Facebook, born in the land of free speech, has been reminded by Germany from time-to-time that it must abide by German laws prohibiting racist sentiments. ‘Volksverhetzung’ (incitement of popular hatred) is punishable under section 130 of the Strafgesetzbuch (the German criminal code) by up to five years imprisonment.
Germany is not the first country to make this type of complaint to Facebook, In July I reported on Israel’s Public Security Minister Gilad Erdan publicly linking Facebook, and Mark Zuckerberg, to recent terrorist attacks, alleging that the social network facilitates such violence by failing to remove posts inciting hatred and criminal activities.
Facebook announces cooperation with Israel to monitor posts that incite violence
The Israeli criticism appears to have been received loud and clear at Facebook HQ, with Facebook dispatching a delegation to Israel as the government there was pushing for a legislative response to force the social network to take steps to address content officials considered to be inciting violence.
Following a meeting between the Facebook delegation and government ministers, Facebook announced it agreed to work with Israel to respond to hatred and incitement on the social media network, causing concerns not just internationally, but also in Israel for a range of reasons. Some saw this ‘collaboration’ as unacceptable censorship, others saw Facebook receiving preferential treatment over other types of media.
Anti-Semitic post causes headache for Facebook in Australia
Meanwhile in Australia an anti-Semitic image posted by a Queensland user caused outrage. The highly offensive image depicting human remains on a shovel with the tagline ‘How to pick up Jewish chicks,’ defies belief.
Unfortunately, when initial complaints were made to Facebook, the post was found not to be in breach of its community standards?!
The image was eventually removed, but not before being shared over 2,000 times, and thousands of anti-Semitic comments sparked by the post remained visible for some time.
At the time of writing, the post has been cleared from Facebook. Judging by his posts, the user sees himself a bit of a joker, but a line has been clearly crossed here, and Facebook’s initial response was unhelpful to say the least, further highlighting the issues surrounding the application of its community standards.
American neo-Nazis target female Jewish author
Author Laura Silverman has been using her Twitter account to comment on US presidential candidate Donald Trump, bringing upon her the wrath of American white supremacists. Given she is Jewish, much of the abuse had taken an ugly, anti-Semitic tone.
Their latest mob effort targeted her yet to be released book, ‘Girl Out of Water,’ with negative reviews on Goodreads.
Although Goodreads has cleared up the book’s page now, the issue of organised harassment online continues to be a festering, unresolved issue.
Norton releases the results of its latest online harassment survey
Following its survey of over 1,000 Australian women in March, which found that 76% of Australian women under 30, and 47% of all Australian women, experience online harassment, Norton released the results of its latest survey of just over 1,000 Australian men.
The follow-up survey found that 78% of Australian men under 30, and 54% of all Australian men, experience some form of online harassment.
The online harassment ranged from abuse and insults (34%), to trolling and malicious gossip (29%), and rumour-mongering (27%).
Some subgroups of men appear more vulnerable to online abuse than others. Compared to 7% of heterosexual men experiencing online abuse, 31% of men from minority religious groups were attacked because of their faith, 23% of gay, bisexual, and transgender men were targeted due to their sexual orientation, and 14% of men with disabilities were attacked because of their physical or intellectual disabilities.
The survey indicates that 41% of the men simply ignore online abuse, while 33% block, and 21% un-friend the perpetrators. Only 10% of the men reported the abuse to police, and a mere 7% sought legal advice.
Other responses included changing social media privacy settings (20%), losing friends (14%), changing the nature of relationships with some friends (13%), closing social media accounts (11%), moving house (5%), and changing jobs (3%).
Norton hopes this research will encourage Australian men to speak up about their online experiences, report serious harassment and threats when they occur and take reasonable security and privacy precautions while online.
Mark Gorrie, Director, Norton Business Unit, Pacific region, Symantec
Instagram offers new tool to users designed to hide offensive comments
Instagram announced a new tool for users which will enable them to compile a list of words they consider offensive, and will result in comments containing any such words being hidden from sight. Users can also select to activate a generic filter instead, based on ‘words and phrases often reported as offensive’.
The beauty of the Instagram community is the diversity of its members. All different types of people — from diverse backgrounds, races, genders, sexual orientations, abilities and more — call Instagram home, but sometimes the comments on their posts can be unkind. To empower each individual, we need to promote a culture where everyone feels safe to be themselves without criticism or harassment. It’s not only my personal wish to do this, I believe it’s also our responsibility as a company. So, today, we’re taking the next step to ensure Instagram remains a positive place to express yourself.
The fine line between free speech and abusive or hate speech
The case of US police chief Skylar Dore, from the small southern town of Jonesville, Louisiana, yet again highlights the difficult conflict between free speech and abusive or hate speech.
On the day of the tragic deliberate killings of three police officers in Baton Rouge by a crazed assailant, Mr Dore posted what later became a highly controversial comment to Facebook:
Hey Mr. Bulls**t president. When are you going to grow a f**king pair. And tell it like it is. These are terrorist. That have declared f**king war on my brother. (White police officers) enough is enough.
Jonesville’s black residents, who make up 70% of the population, saw it as a racist rant from their white chief of police. Some white residents defended Dore’s comments as free speech.
However two days later, the town council fired the young chief of police. The post polarised the town, although understandably so.
This case is another timely reminder that what we post to social media does not exist in a vacuum, but always seen through the prism of the cultural, political and social context in which it is made, and the status of the person making the comment.
Privacy (and security)
WhatsApp starts sharing user data with Facebook
We joined the Facebook family of companies in 2014. As part of the Facebook family of companies, WhatsApp receives information from, and shares information with, this family of companies. We may use the information we receive from them, and they may use the information we share with them, to help operate, provide, improve, understand, customize, support, and market our Services and their offerings. This includes helping improve infrastructure and delivery systems, understanding how our Services or theirs are used, securing systems, and fighting spam, abuse, or infringement activities. Facebook and the other companies in the Facebook family also may use information from us to improve your experiences within their services such as making product suggestions (for example, of friends or connections, or of interesting content) and showing relevant offers and ads. However, your WhatsApp messages will not be shared onto Facebook for others to see. In fact, Facebook will not use your WhatsApp messages for any purpose other than to assist us in operating and providing our Services.
WhatsApp was at pains to point out however that some things were off-limits, such as users’ phone numbers, and their encrypted messages:
Even as we coordinate more with Facebook in the months ahead, your encrypted messages stay private and no one else can read them. Not WhatsApp, not Facebook, nor anyone else. We won’t post or share your WhatsApp number with others, including on Facebook, and we still won’t sell, share, or give your phone number to advertisers.
Despite the various assurances of WhatsApp the UK Information Commissioner promptly issued a statement noting that it would monitor the implementation and practicalities of the data-sharing arrangement between WhatsApp and Facebook.
Our role is to pull back the curtain on things like this, ensuring that companies are being transparent with the public about how their personal data is being shared, and protecting consumers by making sure the law is being followed.
Elizabeth Denham, Information Commissioner
The concerns about the changes are global, as illustrated by the public-interest litigation launched in the Delhi High Court by two Indian students, Karmanya Singh Sareen and Shreya Sethi, designed to force WhatsApp to rollback the changes to its policy.
Privacy class action attempt against Facebook refused class action status in the US
A class action bid against Facebook, accusing the company of violating its own policies and promises by disclosing ‘sensitive personally identifiable information’ of its users, has been quashed by Justice Whyte in a US District Court.
In Re. Facebook Privacy Litigation, Case No. 10-cv-02389, has been a thorn in Facebook’s side since 2011, when it was first dismissed by Justice Whyte. The dismissal was later overturned by an Appeals Court, and the case returned to the lower court to proceed as a breach of contract and fraud claim.
Earlier this month Justice Whyte published a redacted version of his ruling issued back in June, in which he held that because ‘individualized questions will predominate with respect to Facebook’s alleged breach and misrepresentation, the court denies plaintiffs’ motion for class certification.’
The Supreme Court of Canada to hear an appeal in a privacy class action case against Facebook
Meanwhile, in Canada a privacy class action case against Facebook is about to be examined by the highest court of Canada. The Supreme Court of Canada granted leave to appeal to a woman who claims damages over Facebook’s use of the names and photos of users in ads to endorse products after they ‘like’ a website. She alleges that Facebook ‘harvested and sold’ the names and images of around 1.8 million residents of British Columbia for advertising on its platform, but without appropriate consent from users, violating the Freedom of Information and Protection of Privacy Act [RSBC 1996].
The matter is now in the hands of the Supreme Court of Canada, so watch this space …
Max Schrems’ privacy class action against Facebook heads to the Court of Justice of the European Union
Over in Europe, Max Schrems has been a privacy thorn in Facebook’s side for years now.
The privacy class action playing out in Austria is different from the Irish privacy case by Mr Schrems against Facebook which led to the Court of Justice of the European Union (CJEU) invalidating the ‘safe harbour’ framework, put in place between the European Union and the United States to regulate the transfer of data.
The privacy class action pursued in the Austrian courts is a claim on behalf of over 25,000 users against Facebook. It accuses the social media network of ‘unjust enrichment’ by illegally handling the personal data of users to deliver targeted advertising.
• 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)
• The amazing privacy adventures of Max Schrems continue (27 June 2016)
• The latest development in the Schrems privacy case against Facebook in Ireland (25 July 2016)
However, in its latest submissions Facebook argued that Mr Schrems is not eligible to sue as a consumer in the Austrian courts because he had become a professional litigant, evidenced by the fact that he has been paid to write books and give lectures as a result of his privacy lawsuits against the social media company.
The Supreme Court agreed that European Council Regulation (EC) No 44/2001 of 22 December 2000 on ‘jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’ may apply to the class action. Article 16 of the Regulation entitles a ‘consumer’ to bring ‘proceedings against the other party to a contract,’ while Article 15 provides that a person is considered to be a ‘consumer’ only if he entered into a contract ‘for a purpose which can be regarded as being outside his trade or profession.’
The Supreme Court of Austria subsequently referred the case to the CJEU for the determination of this preliminary issue, and to advise whether Mr Schrems can be considered a ‘consumer’ under the Regulation.
The Supreme Court of Austria stayed the matter, pending the ruling by the CJEU.
Austrian girl sues her parents over embarrassing childhood photos on Facebook
While we are discussing Austrians fighting for privacy, you may recall my report in March on French police warning parents to be cautious about posting images of their children to social media, and French experts warning parents that posting intimate pictures of their children could be in breach of strict French privacy laws, potentially resulting in heavy fines of up to €45,000, or even a year in jail, if their children later complaint.
Well, the French may have been right … about Austrian children.
An 18-year-old girl from the Carinthia region of Austria is suing her parents over more than 500 photos they shared to Facebook over seven years, without her permission.
The photos, shared with their 700 friends, include images of her having her nappy changed, and being potty trained. She claims the pictures have made her life a misery, and that her parents refused to delete the images despite her requests.
Italy’s highest court redefines the ‘right to be forgotten’
The news of this interesting decision by the Corte Suprema di Cassation, handed down on 24 June, has been hiding in Italian language newspapers, but was recently brought to my attention by an Italian reader of The Vue Post.
While the case is not strictly social media related, it is of significant interest because the potential consequences of the final decision are far reaching, as it’s one thing to ask a search provider to de-index links to stories, but it’s quite another to require news organisations to delete stories …
The case involved an Italian news website Prima Da Noi, which in 2006 published an article about a stabbing incident related to the owner of a restaurant. There have been no suggestions that the article was untrue, or defamatory, in any way.
However, the restaurant owner didn’t like that each time he, or his restaurant, was Googled the story published by Prima Da Noi was returned in the search results.
A couple of years after it was published, the restaurant owner asked Prima Da Noi to remove the article. The newsite refused to do so and was subsequently sued for infringment of privacy, reputational damage, and a violation of the ‘right to be forgotten.’
Six months later Prima Da Noi capitulated and removed the article. However, the displeased owner pursued Prima Da Noi for the delay and demanded compensation.
The Court of Chieti at Ortona awarded the owner and the restaurant €5,000 each, and effectively established a two and a half years expiration period on news articles, arguing that after that time period the public interest in an article had expired, and the individual’s right to privacy should prevail again.
Prima Da Noi appealed that judgment, and lost.
The matter proceeded to the Supreme Court of Italy in Rome, where the court agreed with the decision of the lower courts, attaching significant importance to the fact that although the article was archived, it remained available via Google Search.
The Court failed to consider whether the better remedy would have been to de-index the article from internet searches as decided in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González (C-131-12), the case which created the concept of the ‘right to be forgotten,’ rather than deleting it altogether from the publisher’s site.
The outcome of the case is that, in Italy, the ‘right to be forgotten’ now effectively means that people can demand the deletion of news stories after two and a half years, effectively putting an ‘expiration date’ on the freedom of the press.
A curious decision, sparking intense debate in Italy.
Yahoo admits to a major security breach, hihglighting the lack of legislative requirements to notify Australian customers of data breaches
Yahoo admitted last week that the details of 500 million users had been seriously compromised in … 2014. Yahoo believes the attack was carried out by a ‘state-sponsored actor,’ but fails to explain why it took the company almost two years to warn users.
The account information may have included names, email addresses, telephone numbers, dates of birth, hashed passwords (the vast majority with bcrypt) and, in some cases, encrypted or unencrypted security questions and answers.
This latest significant data breach highlights the need for legislation requiring companies to notify customers of data breaches as soon as possible.
Late last year I complained about the delays in introducing such legislative protections, and almost a year later we are still waiting on Parliament to pass the draft amendments to the Privacy Act 1988 (Cth) that would force such notifications.
In the meantime, if you have a Yahoo account, you should take some practical steps to protect your privacy. If you still use your Yahoo account, change your password. If you no longer use your Yahoo account, it would probably be wise to log in and delete it.
This is a fascinating case, for the fact alone that someone who worked as a baggage handler for Virgin Australia at Perth Airport thought it was a reasonable idea to post ‘sarcastic’ support for Daesh on social media.
Mr Singh was an avid user of Facebook and he shared five posts between August and October 2015 which later became points of contention, including one from a Facebook group called ‘HT Australia’ titled ‘Pictures from today’s demonstration held in Lakemba against the American/Russian led aggression against the revolution of Syria. Views of the speeches shall be available in due course,’ adding his own comment:
‘We all support ISIS’
The Facebook posts were brought to his employer’s attention on 4 October 2015. The employer suspended him with full pay on the same day, and notified the Australian Federal Police (AFP).
An internal investigation followed, which included formal meetings with Mr Singh on 6 and 8 October.
On 7 October officers of the AFP visited the employer to conduct their own investigations.
Mr Singh was formally terminated on 8 October, at the conclusion of the second meeting, for breach of the employer’s social media policy.
7.82 Web “blogging” and Social Network sites
An employee’s online presence reflects the company. Employees should be aware that their actions captured via images, posts, or comments can reflect that of our company. Employees must be respectful to the company, other employees, customers, partners, and competitors and are discouraged from publishing weblogs or other publications that are intended to, or may have the result of, causing harm to Aerocare. In all cases, it is not permitted to publish any information regarding a client or airport operations. Use of images depicting Aerocare or client employees, particularly involving employees in company uniform, operations or equipment are not permitted to be posted on external internet sites or social network sites, forwarded as email attachments or otherwise published, without the express permission of the Company. Aerocare employees must also refrain from mis-representing they are employed by our client/s on external internet sites.
A disclaimer stating that the individual views expressed by the author do not necessarily depict or reflect the views or opinions of Aerocare or our clients must accompany any comments that are published by individuals to external internet sites. Personal blogs should have clear disclaimers that the views expressed by the author in the blog is the author’s alone and do not represent the views of the company. Information published on employee’s blog(s) should comply with the company’s confidentiality and disclosure of proprietary data policies. This also applies to comments posted on other blogs, forums, and social networking sites.
Company logos and trademarks may not be used without written consent.
Mr Singh subsequently applied to the Fair Work Commission (FWC) for an unfair dismissal remedy.
While finding that the ISIS post was ‘not witty’ or ‘funny,’ and that in fact it was ‘ridiculous,’ the FWC held that there was no valid reason for the dismissal:
There is no evidence before me that Aerocare considered any other sanction. It did not properly investigate Mr Singh’s Facebook profile; the decision makers considered he had breached the SM Policy with respect to numerous posts, and therefore it must result in the termination of his employment.
A more thorough investigation, including obtaining a written account from Mr Singh would have satisfied Aerocare that Mr Singh did not support ISIS. A reasonable conclusion would then be that the ISIS post was an incredibly stupid post to have been made.
With the above information available, it would have been appropriate to meet with Mr Singh and reiterate the SM Policy, and seek an assurance from him that he would, in all forms of social media interaction, whether within profiles or closed or secret groups, comply with the SM Policy. Aerocare would have been at liberty to inform Mr Singh that any subsequent breach of the SM Policy, whether made in a profile of his own name or otherwise, in a closed group or in public would result in the termination of his employment.
The FWC went on to conclude that Mr Singh’s dismissal was harsh, unjust and unreasonable, but awarded him only $4,800, less tax. The compensation represents eight weeks’ wages, less 40% for Mr Singh’s misconduct in breaching the employer’s social media policy with the ISIS post.
Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance),  O.L.A.A. No. 267
This fascinating labour dispute and arbitration decision from Ontario arose from the social media activities of the Toronto Transit Commission (TTC), a public transport agency responsible for managing and operating Toronto’s public transport system.
The Twitter account in question, @TTCHelps was set up to respond to customer enquiries, as part of an overarching social media strategy for the TTC, and was handled by the TTC’s Customer Service Centre, managed by Sue Motahedin with over 20 years experience in customer service management.
We have it because our customers expect us to have it. Social media is incredibly important and continues to grow. Customers expect to be served through a channel of their choice. Different generations expect different experiences so we’re being responsive to what our customers want. Having @TTChelps on Twitter allows customers to contact us from their smart phones wherever they are and at any time, so by us having that presence we’re easily accessible. It allows us to interact with customers one-on-one. It can be immediate so it allows us to assist someone who is experiencing an issue right then and there. We can clarify, provide additional information, and de-escalate situations. We reduce frustration for our customers and reduce frustration employees are experiencing… . As well, @TTChelps builds trust with our customers. They see that we’re visible and present. Our responses are transparent. We have nothing to hide.
The Amalgamated Transit Union became concerned about the Twitter account because it received many derogatory, abusive, offensive, thretening tweets directed at TTC employees, including homophobic, misogynistic and racist comments.
The Union expressed a concern about how the TTC handled such tweets, and alleged that it didn’t do enough to protect its employees.
Importantly, the Arbitrator held that ‘social media sites operated by the TTC, such as @TTCHelps, can be considered to constitute part of the workplace,’ a decision which may have wider implications for employers, if the decision of the arbitrator on this point gains wider acceptance.
The Arbitrator went on to conclude that the TTC did not take all ‘reasonable and practical measures to protect’ employees from harassment on the platform, but rejected the Union’s request for shutting down the Twitter account.
Instead, the Arbitrator recommended that the TTC develop a comprehensive social media policy, and that the TTC and the Union develop ‘mutually acceptable guidelines’ and ‘templated responses’ for responding to tweets generally, and in particular for dealing with the various types of inapproriate tweets raised by the Union.
Alice Springs teacher investigated after posting an anti-LGBTI comment on Facebook
The Northern Territory Department of Education is investigating a Year 8 Alice Springs teacher after it received complaints about a comment posted by the teacher to the Alice Springs Community Open Forum page on Facebook in the context of the ABC’s Q&A program:
Gays think the reason they don’t feel good about themselves is because society currently won’t let them call themselves married. Will it change when the law changes? No, because the reason they don’t feel good about themselves is because their lifestyle choice is inherently wrong.
The statement arguably displays a serious lack of critical faculty for someone who is a teacher. One can only hope there are no young LGBTI students in his care.
Tennessee law professor under investigation over a tweet
As protests unfolded in Charlotte, North Carolina over the police shooting of Keith Scott, University of Tennessee conservative law professor Glenn Reynolds found himself temporarily suspended from Twitter and under investigation by his university over a tweet.
‘Run them down,’ he wrote in reference to protestors blocking an intersection, causing outrage by the apparent callousness of his words.
Belle Gibson’s social media posts come back to haunt her in court
Former wellness blogger Belle Gibson failed to appear at the Federal Court of Australia (FCA) in Melbourne when the case against her by Consumer Affairs Victoria (CAV) came before the court. The consumer watchdog commenced proceedings against Ms Gibson over the marketing of her ‘Whole Pantry’ book and App.
The alleged contraventions of the Australian Consumer Law arise from false claims made by Ms Gibson that she had been diagnosed with terminal brain cancer, and she cured herself by rejecting conventional treatements in favour of natural remedies.
Earlier this month the FCA heard that Ms Gibson made false statements on social media to her Facebook and Instagram followers concerning her illness, and the posts were quoted to the court by barrister Catherine Button, acting for the CAV.
Reminding us once again, since 2009 (at least), to always pause, and “think before you click ‘post’“.
Indonesia investigates Google’s tax affairs
I recently reported of Facebook’s tax issues in the United States. Now it’s Google’s turn to be investigated, this time in Indonesia.
Reports indicate Indonesian authorities intend to pursue Google for five years of back taxes, suggesting the technology giant could face a tax bill of more than $US400 million for 2015 alone if the investigation finds Google had avoided tax payments.
The tax affairs of multinational corporations have come under increased scrutiny of late as public concerns about tax avoidance, and even legitimate tax reductions, increased in the last few years, with governments increasingly complaining about falling tax revenues and resorting to signficant cuts to social programs and services across the Western world and developing nations.
Australia’s corporate regulator examines social media practices in the context of marketing initial public offerings
The Australian Securities and Investments Commission (ASIC) issued a report this month warning firms and individuals involved in initial public offerings (IPOs) to ensure compliance with the law in their marketing campaigns, especially on social media.
The report titled ‘REP 494 Marketing practices in initial public offerings of securities,’ found that there were some oversight weaknesses in relation to marketing done via social media. According to ASIC, while social media was significantly less important than traditional marketing methods for IPOs in Australia, occasionally they identified information about IPOs that were misstated in social media posts (including information about ASIC’s role in the IPO). ASIC subsequently advised that:
Firms should apply controls on social media posts similar to those in place for other marketing, such as:
• educating employees on using social media for marketing IPOs in compliance with the Corporations Act; and
• ensuring that social media posts are reviewed before being posted.
UK TV presenter warned over social media product promotion
Last month, I wrote about Truth in Advertising Inc. taking on the Kardashian clan over promoting products on social media without disclosing their commercial connections, and the Australian position on social media endorsements. In July, I also questioned whether a Selena Gomez Instagram post was in breach of relevant US regulations.
This month, a UK TV presenter AJ Odudu was pulled up by the Advertising Standars Authority (ASA) over a tweet she sent out to her 25,000 followers, holding a tub of Alpro yogurt with the caption ‘Fave summer snack vibes.’
The ASA found that Ms Odudu had failed to disclose that she was paid to send out the tweet in question, and should have included a ‘clear identifier’ to let people know the post was marketing communication, rather than her own editorial content. She has been advised that future sponsored or paid for social media posts should include ‘#ad’ to avoid any doubt.
While we noted that the tweet contained the advertiser Twitter handle and campaign hashtags, we did not consider that this would make clear to consumers the commercial intent of the content or the editorial control exercised by the advertiser. We therefore considered that it would not have been obviously identifiable as a marketing communication to Ms Odudu’s Twitter followers and other visitors to her Twitter feed. We.concluded, therefore, that it breached the Code.
Alpro (UK) Limited itself noted that it would ensure that future social media marketing communications are ‘clearly identified as such’ – a mode of operation I recommended last month for Australian businesses when it comes to social media endorsements.
The Australian Competition and Consumer Commission is assessing the review policies of sharing economy platforms
Last month I also reported on the Australian Competition and Consumer Commission (ACCC) announcing the release of a range of new guidelines by the International Consumer Protection and Enforcement Network, dealing with online reviews and endorsements.
The ACCC now announced it will focus on the review policies of sharing economy platforms to ensure compliance with legal requirements, as part of an international initiative.
Businesses such as Uber and Airbnb can expect to find themselves under the regulator’s microscope.
The sharing economy is a fantastic development and offers a range of benefits for consumers and businesses. However, operators of sharing economy platforms must make sure that they have appropriate policies to regulate the use of reviews to avoid misleading consumers.
Delia Rickard, Deputy Chair of the ACCC
The ACCC is also expected to release formal guidance for those operating in the sharing economy later this year.
Tweet(s) of the month
This month, Tweet(s) of the month is a tie again the US Defense Intelligence Agency (DIA) and TV’s beloved George Takei.
China has been known to behave like a petulant four-year-old, and throw a good tantrum, from time-to-time when it doesn’t get its way, but its uncouth treatment of US President Barack Obama, and other US officials, on their arrival in Hangzhou for the G20 Summit ruffled a few diplomatic feathers.
In response to the well-publicised slight, the US spy organisation, the DIA responded with a sharp and sarcastic tweet: ‘Classy as always China.’
The tweet caused both delight and furore around the world, depending on your geopolitical alliance, and contributed to the childish, but entertaining, protocol row between the US and China which was later played down by President Obama.
The DIA quickly deleted the tweet in question and followed it up with a speedy apology.
The tweet from George Takei is a self-explanatory zinger in response to a tweet by US presidential candidate Donald Trump: