Social media

Social media round-up: February 2017

This month I look at the social aspects of social media, including Mark Zuckerberg’s recently released manifesto for Facebook, and revisit the issues of fake news and hate speech and online abuse.

The Queensland University of Technology Facebook racism row continues to reverberate, and Seven West Media entered the news-cycle with their sensational Twitter injunction against a former employee.

A witness in a New South Wales criminal trial got into strife after sending a juror a Facebook friend request, and in Italy a man is using Facebook data to defend people smuggling allegations.

Two new social media defamation cases are also likely to stretch legal boundaries in Australia, one in the Supreme Court of Victoria between a dentist and a very unhappy client, and the other in the Federal Court of Australia between an insolvency practitioner, one very unhappy client, and Google.

Meanwhile, a fascinating copyright battle is brewing between Australia’s pay-TV operator Foxtel and two hapless chaps, who somehow thought it would be a good idea to stream a premier, pay-per-view boxing fight over Facebook from their TV screens.

On the regulatory front, social media operators continue to fight US law enforcement agencies over access to users’ data, privacy and online abuse continue to be an issue, but Google finally received some good news from European privacy regulators when it comes to data transfers.

See all previous issues of
Social Media Round-Up

Tweet of the month

Tweet of the month goes to an entire Twitter account: ‘Donaeld The Unready‘.

The best early medieval King out there. I’m just great. I’m the bretwalda. The bestwalda. I’ve got great swords, everyone says so. Make Mercia Great Again.

While at first sight ‘Mercia’ may look like an anagram of America, it is not.

First, it’s missing an ‘a,’ second, Mercia was the dominating kingdom of the Anglo-Saxon Heptarchy, dating back to 6th to 9th century United Kingdom.

Here are some hilarious examples of the tweets of Donaeld The Unready, which also double as a history lesson:

Note: Canute was the 11th century King of Denmark, England, and Norway, together often referred to as the Anglo-Scandinavian or North Sea Empire.

Note: Ubba was a 9th century Viking leader and one of the commanders of the Great Viking Army which invaded the Anglo-Saxon kingdoms of Northumbria, Mercia, East Anglia, and Wessex in 865.

… and so on.

Culture and social media | Fake news | Free speech | Social media gone wrong | Crime (and punishment) | Regulatory issues


Culture and social media

Social media is first and foremost a cultural phenomenon, which had fundamentally altered how we communicate, and how we behave. Some of the changes make a positive contribution to society, others not so much.

The Zuckerberg manifesto

This month Mark Zuckerberg published a lengthy manifesto for Facebook, titled ‘Building Global Community’.

https://www.facebook.com/notes/mark-zuckerberg/building-global-community/10103508221158471

The manifesto talks about Facebook’s mission to ‘connect the world,’ and the importance of bringing people ‘closer together and building a global community’.

In times like these, the most important thing we at Facebook can do is develop the social infrastructure to give people the power to build a global community that works for all of us.

Mark Zuckerberg goes on to explain that the fundamental components of achieving the social network’s aim, are (1) supportive, (2) safe, (3) informed, (4) civically-engaged, and (5) inclusive communities.

I am reminded of President Lincoln’s remarks during the American Civil War: “We can succeed only by concert. It is not ‘can any of us imagine better?’ but, ‘can we all do better?’ The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew, act anew.”

There are many of us who stand for bringing people together and connecting the world. I hope we have the focus to take the long view and build the new social infrastructure to create the world we want for generations to come.

It’s an honor to be on this journey with you. Thank you for being part of this community, and thanks for everything you do to make the world more open and connected.

Mark

Despite the apparent positive tone of Mark Zuckerberg’s manifesto, there are reasons to be concerned.

The guiding principles are that the Community Standards should reflect the cultural norms of our community, that each person should see as little objectionable content as possible, and each person should be able to share what they want while being told they cannot share something as little as possible. The approach is to combine creating a large-scale democratic process to determine standards with AI to help enforce them.

… even within a given culture, we have different opinions on what we want to see and what is objectionable. I may be okay with more politically charged speech but not want to see anything sexually suggestive, while you may be okay with nudity but not want to see offensive speech. Similarly, you may want to share a violent video in a protest without worrying that you’re going to bother friends who don’t want to see it. And just as it’s a bad experience to see objectionable content, it’s also a terrible experience to be told we can’t share something we feel is important. This suggests we need to evolve towards a system of personal control over our experience.

The idea is to give everyone in the community options for how they would like to set the content policy for themselves. Where is your line on nudity? On violence? On graphic content? On profanity? What you decide will be your personal settings. We will periodically ask you these questions to increase participation and so you don’t need to dig around to find them. For those who don’t make a decision, the default will be whatever the majority of people in your region selected, like a referendum. Of course you will always be free to update your personal settings anytime.

With a broader range of controls, content will only be taken down if it is more objectionable than the most permissive options allow. Within that range, content should simply not be shown to anyone whose personal controls suggest they would not want to see it, or at least they should see a warning first. Although we will still block content based on standards and local laws, our hope is that this system of personal controls and democratic referenda should minimize restrictions on what we can share.

The manifesto struggles with internal inconsistencies, assumptions, and leaps of logic.

For example, is it necessarily wrong for someone to see content they personally find objectionable? The manifesto appears to assume so. The statement is far too generic and vague – it can be easily interpreted to support the censorship requirements of oppressive regimes, especially when read together with the references to cultural variations in what’s acceptable, or as an ode to the social media echo chamber reverberating with majority thinking.

And what happens when the objectionable, say horrific images of war or famine, are critical to educate and enlighten, regardless of the general offense they may cause? Do you really wish to be constrained to information that conforms to the standards of the ‘majority’ whoever they may be?

Social media and the elderly

Isolation and loneliness is a significant problem in nations with aging populations. Our increasingly global lifestyles can also result in families and friends living on separate continents, contributing to the feeling of isolation.

Social media offers great opportunities to the elderly, by breaking them out of their isolation and connecting them with family and friends near and far.

The latest Sensis Social Media Report shows significant online presence by the elderly, with almost 80% of Australians over the age of 65 accessing the internet daily, with 40% reporting accessing social networking, and 20% doing so at least once a day. The social network of preference is Facebook with 95% of elderly Australians using the network, and 23% in this age group had increased the time they spent on social media in the last year.

Social media and the echo chamber

Echo chamber’ is the phenomenon whereby accepted ideas, information, and opinions are amplified and reinforced by repetition inside a closed system, where ideas, information, and opinions that are different are censored, or underrepresented.

Concerns have been raised for some time now that the personalised experience offered by social networks, whereby information is filtered using algorithms designed to select materials that are more likely to appeal to a user, are contributing to an online echo chamber.

A recent report by the British cross-party think-tank Demos appears to confirm this concern. The report titled ‘Talking to Ourselves: Political debate and online echo chambers,’ is based on data collected from 2,000 Twitter users. The findings indicate ‘a strong connection between a user’s ideology and the users and news sources they interact with’ and the report suggests that ‘offline beliefs play a key role in the way users behave online.’

The report’s unsurprising findings include that:

  • people with the same party political affiliations tend to share news on Twitter from sites that are ideologically consistent with their party political affiliation;
  • the degree to which people share news from sites that are consistent with their party political affiliation differs by party, but those with more polarised political affiliations tend to be more inward-facing than people with more moderate political affiliations – in short, the echo chamber effect is more pronounced the further a group is from the centre; and
  • groups are more likely to interact with other groups who are ideologically aligned with them.

How we modify our behaviour in the social media age

The social media age reduced our privacy, and made our movements more traceable, causing behaviour modifications by some when it comes to our interaction with social media.

A great example of these subtle modifications was offered by female pro surfer Felicity Palmateer in a recent interview.

Ms Palmateer revealed that she often delays posting images to social media, and masks her location, because of online ‘creeps.’

With over 135,000 followers on Instagram she tries to strike a careful balance between her privacy and giving to her fans.

Fake news

I sincerely thought that I had exhausted the subject of fake news last month. I was wrong …

Fake news and the coming French election

I noted last month that both Facebook and Google are taking steps to address the scourge of fake news, and Facebook had announced it would specifically target fake news in Germany, leading up to the election.

Now Facebook and Google announced a joint project targeting fake news in France, leading up to the country’s presidential election. The social media operators will join forces with credible French news organisations such as Agence France-Presse, L’Express, and Le Monde to reduce the risk of fake news being spread.

The German and French elections will be a good testing ground for the social media network’s ability to get the upper hand on fake news, although as a recent fake news row in The Netherlands indicates it is not going to be easy.

A whole new level of fake news

When it comes to targeting fake news, the social networks will have their work cut out for them, as those responsible for producing fake news reach increased levels of sophistication.

The latest operation is a website titled ‘Center for Global Strategic Monitoring.’ The entirely legitimate sounding site has only one problem – such a Center does not exist …

What separates this site from other sources of fake news is that it uses the byline of real and respected journalists, academics, and experts to push articles they had never written. By using the names of respected experts the site immediately creates a veneer of respectability – the problem is those respected experts have no idea who wrote the articles accredited to them.

A Yahoo! News investigation into the site suggests the most likely culprit is Russia, but the person or persons responsible remain well hidden.

No, that’s not fake news

As I indicated previously, the phrase ‘fake news’ is being used with increasing frequency by politicians, from Donald Trump to our own Scott Morrison. Unfortunately, they either do not understand the meaning of ‘fake news,’ or are misusing the term deliberately. The problem with misusing the term is that it confuses and trivialises an increasingly serious issue.

‘Fake news’ is deliberately fabricated stories pushing hoaxes, propaganda, and misinformation, designed to pass for real news and spread through social media to amplify their effect. They are used for political manipulation, and to drive web traffic to create advertising revenue. Unlike satire, fake news is not intended to be funny or to entertain, its sole purpose is to mislead, confuse, and misinform readers.

So, the following are not fake news:

Negative polls are not ‘fake news’ just because they are unfavourable to a particular politician. Polls taken by respectable news organisation using reputable polling companies may not always be entirely accurate due to sample size, or other statistical anomalies, but they are not ‘fake news.’

You may come across ‘fake polls,’ produced by disreputable sources, where the numbers are simply made up, but that’s different from legitimate polls conducted by respected news organisations.

Our own Scott Morrison recently referred to reports about a renewed push for marriage equality in Australia within the ranks of the Coalition as ‘fake news’.

Again, that news story was not fake news. The story was reporting on information received by journalists from sources within the Coalition – that’s not how fake news comes about.

Fake news not just for conservatives anymore

Traditionally, fake news has been a largely conservative problem. However, that’s changing too. It seems fake news may have proved itself to be too effective to be resisted, so sadly now we have ‘fake news for liberals‘.

It remains to be seen whether the phenomenon can be brought to heel now that its seriousness has been recognised, governments and the public demand action, and social media companies are starting to respond in a meaningful way.

Free speech

Last month I reported on the collision of free speech and social media from Thailand to Singapore, Iran, Bahrain, and Saudi Arabia.

Saudi Arabia

Saudi Arabia makes a return appearance this month courtesy of Saudi cleric Sheikh Saud al-Shiraim. In no less prestigious place than Mecca’s Grand Mosque, he expressed strong criticism of social media.

The nature of social media has given rise to strange practices contradicting morals, customs and norms. People are using their fingertips to think instead of their minds and tongues.

In many other places such criticism by a religious leader would be shrugged of by the citizenry, however Saudi Arabians don’t have that luxury given they live in an Islamic theocracy which enforces a strict code of morality.

While there is pressure for social change in the kingdom, citizens would be wise to heed the words of the cleric, as religious leaders hold strong sway in Saudi Arabia, and their interpretations of religious rules can have a flow on effect into the endorsement of Islamic law.

Russia

Journalist and veteran Arkady Babchenko was forced to flee Russia due to sustained harassment and threats following a Facebook post reminding Russians of their government’s involvement in the indiscriminate bombing of Aleppo, and calling Russia an aggressor.

Independent journalists are becoming threatened species in Russia, with the threat of violence, even murder, hanging over their heads if they are considered insufficiently patriotic.

Events in Russia over the past few years highlight the dangers of the press being either co-opted as the propaganda arm of the prevailing regime or, if they don’t co-operate with the regime, destroyed as the enemy of the people, and the state.

Social media gone wrong

The use of social media continues to be a potential social and legal minefield, to be navigated cautiously. Careless online behaviour could threaten or cost your job, and you may even find yourself on the receiving end of a lawsuit.

The Queensland University of Technology (QUT) Facebook racism row continues to reverberate

I first reported on this case a year ago, noting it would be one to watch.

The highly, and unnecessarily, politicised matter involved QUT’s indigenous Oodgeroo Unit, a number of inappropriate Facebook posts after three non-indigenous students wanting to use computers at the Unit were asked to leave, and a resulting complaint under section 18C of the Racial Discrimination Act 1975 (Cth) by a worker at the Unit.

The matter ended up in the Federal Circuit Court of Australia, where Justice Jarrett ruled late last year that the case should not proceed.

In the meantime, the case had become a cause célèbre for those trying to water down Australia’s anti-discrimination laws, and a significant lesson for those who may think about engaging in inappropriate social media conduct.

While the young people involved in this particular kerfuffle were cleared by the first instance judgment, so far they faced a legal process that lasted over three years and, according to The Australian, one of the students involved had been left with a legal bill of over $41,000.

However, a public appeal launched on Go Fund Me has raised sufficient funds to cover his legal costs.

Sadly, the fundraising effort was accompanied by a video produced by the conservative, partisan Institute of Public Affairs, which had previously called for the abolishment of the Australian Human Rights Commission (AHRC). The video arguably paints a misleading picture of the case by omitting important facts and attacking the AHRC yet again, including the role it played in the matter.

Considering that the first instance judgment of the court cleared the student in question, this case is a poignant illustration of the clear and present danger represented by conduct on social media which may breach the law. If someone who has been cleared by a court of wrongdoing can still end up suffering such serious financial consequences, just imagine what could happen to someone who is actually found in breach of the law.

This case is also a timely reminder of an often underappreciated aspect of litigation – legal costs. The reality is that even winning a court case will not guarantee that you will also win financially. Even if you emerge victorious you may not always be able to recover your legal costs in full, and if you lose you will be left with your own legal costs and possibly a costs order for the legal costs of the winning side …

If you are a witness in a murder trial, do not send a Facebook friend request to a juror

One would think that if you are a witness in a murder trial, it would be clear that fraternising with the jury is out of the question, as contact between witnesses and the jury is strictly forbidden during a trial.

A witness in the murder trial of Graham Sloane in the Supreme Court of New South Wales, sitting in Newcastle, breached this prohibition by sending a Facebook friend request to one of the jurors the day after giving evidence at the trial.

The juror deleted the request, immediately informed her fellow jurors and Justice Wilson, who was overseeing the trial.

A mistrial was narrowly avoided, but the witness will now be subject to further investigations after a referral of the matter by Justice Wilson to the Office of the Sheriff of NSW.

Man faces intense Facebook abuse after a car accident

After a video of a man driving erratically and causing a serious accident, resulting in the death of, and serious injury to, others, gone viral on social media, the man’s Facebook page was flooded with hateful messages.

Police is now urging the family of 45-year-old Shaun Southern to contact Facebook to end the social media abuse.

There are two major issues with such mob responses to tragic events.

First, those leaving the offensive messages are unlikely to be aware of all the facts surrounding the accident, and there may be relevant circumstances not yet made public that will affect the evaluation of the incident.

Second, in circumstances where a matter may later proceed through our criminal justice system, public comments may be seen as prejudicial to the person facing the courts.

Social media and the workplace

There is a spectacular clash of social media and the workplace playing out on Twitter and in the Supreme Court of NSW.

The case arises from a workplace romance gone wrong between Amber Harrison and the CEO of Seven West Media Limited, Tim Worner.

After the romance soured and salacious and controversial claims and counter-claims were made, Seven commissioned an independent investigation into the matter.

Ms Harrison, feeling slighted by Seven’s handling of the matter, and the investigation and subsequent report which cleared Mr Worner of any wrongdoing, set up a Twitter account and started publishing documents to tell ‘her side of the story’.

Seven responded by applying for an urgent injunction in the Supreme Court of NSW to stop the release of further internal Seven documents.

It became clear late last week that Ms Harrison is now releasing or divulging commercial in confidence emails and other documents that she has no right to hold, access or release.

These documents extend beyond the scope of the other dispute Ms Harrison has with SWM.

The injunction was granted, and subsequently Twitter had removed two tweets from Ms Harrison’s Twitter account and it is also withholding a number of other tweets from Australian users, using its geoblocking system, in compliance with the relief granted by the court.

Tweet withheld

A week later the Supreme Court of NSW extended the injunction until the final hearing of the matter.

Seven is seeking further relief for breaches of a settlement deed it entered into with Ms Harrison in 2014, and her violations of obligations of confidentiality under general law, the Corporations Act, and her former employment contract.

This is definitely a case that’s likely to get more interesting before it is resolved.

In the United Kingdom, two barristers find themselves in a very public display after Sarah Phillimore sent a formal complaint to Barbara Hewson‘s legal representatives over her conduct on Twitter, in particular the alleged abuse of a journalist by Ms Hewson.

Ms Hewson, who specialises in human rights, had been previously described as likely ‘the most foul-mouthed lawyer on Twitter.’

The dispute between the two deteriorated to such an extent that both the police and the Bar Standards Board have been drawn into the matter, and The Times had reported on the controversy, so watch this space.

Closer to home, a staffer for our Prime Minister had been suspended over a three-month old ‘inappropriate’ Facebook post about US president Donal Trump.

Sydney shock jock Ben Fordham brought attention to the Facebook post by the executive assistant to Malcolm Turnbull’s chief-of-staff, which involved a photo of a T-shirt with the word ‘Tuck Frump’.

Following the revelations by the 2GB shock jock the administrative staffer was reportedly ‘suspended’.

Social media and defamation

Last month I reported on a fair few cases of defamation involving social media, and it seems these cases just keep on coming.

An interesting new claim is being pursued by a Melbourne dentists against a patient, over an unflattering online review of his practice. Mark Bradbury gave Smile Solutions a one-star review on Google, before having a go at the owner, Dr Kia Pajouhesh himself.

The greedy owner drives a Bentley and brags about his private box at the footy … yet his motto is ‘we see things from the patient’s perspective’. Hmm … the only thing this lot see is the size of your wallet.

Dr Pajouhesh founded Smile Solutions 24 years ago and it is now one of Australia’s largest private dental practices.

Dr Pajaoihesh filed a claim against Mr Bradbury in the Supreme Court of Victoria on 25 January (00229 of 2017) for injury to his reputation and occupation, and having been brought into public scandal and ridicule. He is claiming to have suffered loss and damage as a consequence of Mr Bradbury’s actions, and also seeking aggravated damages over a separate negative review posted on the ‘Word of Mouth’ review site.

Another interesting case is unfolding in the Federal Court of Australia, where a group of insolvency practitioners operating under the name ‘Rodgers Reidy’ had applied for an interim relief in respect of a Google ad that causes an advertisement titled ‘Rodgers Reidy – David Hambleton gets sued – pleading.com.au’ to show on search result pages when people search for ‘Rodgers Reidy.’

Mr Hambleton is one of the principals of Rodgers Reidy and in 2015 he was appointed as the trustee in bankruptcy of the bankrupt estate of Gordon Craven, one of the respondents. Mr Craven, unhappy with Mr Hambleton’s conduct in that bankruptcy, set up a website ventilating his numerous objections and litigation he commenced against Mr Hambleton.

Mr Hambleton ignored the matter until Google Adwords were employed by Mr Craven to advertise the website on search result pages when people search for ‘Rodgers Reidy.’

Rodgers Reidy is now concerned that people who search for its practice and come across the website may conclude that ‘Rodgers Reidy and its officers are untrustworthy and/or incompetent.’

In Rodgers Reidy (Qld) Pty Limited v Google Australia Pty Limited [2017] FCA 65 Justice Bromwich granted interlocutory relief to Rodgers Reidy, requiring:

  • Mr Craven to cause the advertisement in question, or similar, ‘to be removed or de-linked from Google Adwords, such that a link to the advertisement, or the advertisement itself, or anything identifying the advertisement, does not appear when an Internet search of any kind is conducted for the words “Rodgers Reidy” or any other words’; and
  • Google Australia Pty Limited, the first respondent, to cause the advertisement in question, or similar, ‘to be removed or de-linked from Google Adwords, such that a link to the advertisement, or the advertisement itself, or anything identifying the advertisement, does not appear when an Internet search of any kind is conducted for the words “Rodgers Reidy” or any other words’.

The matter continues before Justice Bronwich.

Meanwhile in the United States a North Carolina woman has agreed to a $500,000 settlement over a Facebook comment she made, in which she allegedly implied that a past professional rival had caused the death of her 11-year-old child, who died in a tragic accidental shooting incident while playing with a friend.

The consent order approving the settlement consists of 250,000 in damages, and $250,000 in punitive damages.

Discrimination

Retired Australian politician and environmental campaigner Bob Brown has lodged a complaint with the Commissioner of Equal Opportunity Tasmania over a Facebook post he characterises as ‘nasty and homophobic,’ posted to a Facebook page called ‘Pro Tamar Valley Pulp Mill,’ set up by supporters of a failed forestry project.

The complaint relates to a comment posted on a black and white photo of Mr Brown at the 1986 Farmhouse Creek protest, as he was being forcibly removed by several forestry workers:

We have no idea why Bob would want to be surrounded by sweaty, hairy men.

The post was later deleted by the page, but Mr Brown is of the view that the post crossed the line:

It’s quite overt homophobia, and as such it’s trying to have a political advancement on the matter — in this case forestry and logging, advanced through homophobic allegations.

Judging by a more recent ‘Butthurt Report’ post on the page, which lampoons Mr Brown’s reaction, its administrators do not appear to be overly concerned about the complaint …

While on the subject of discrimination, you may recall allegations back last year about Facebook’s advertising program allowing the customisation of ads in a way that allowed for the discriminatory exclusion of specific ethnic groups.

Facebook announced earlier this month that it is making changes to its advertising platform to prevent advertisers from creating ads on its network that would discriminate based on personal attributes, in particular in the areas of housing, employment and credit-related matters – areas protected under US anti-discrimination laws.

We’ve updated our policies to make our existing prohibition against discrimination even stronger. We make it clear that advertisers may not discriminate against people based on personal attributes such as race, ethnicity, color, national origin, religion, age, sex, sexual orientation, gender identity, family status, disability, medical or genetic condition.

Facebook and hate speech

Just as Mark Zuckerberg released his grand manifesto of Facebook creating safe, supportive, and inclusive communities, a Huffington Post investigation revealed a disturbingly low standard of enforcement when it comes to its own Community Standards.

As part of its investigation, the Huffington Post reported to Facebook a number of posts targeting Muslims, only to be informed the posts in question apparently did not breach its Community Standards.

“Set the f**kers on fire, if they don’t want to take their burka as we have requested then we just burn it of them!”

“Only way is to burn em down and run em out of town.”

“Go out, and kill as many off these goatf**kers as you can!!”

“Recipe: 1 ltr petrol, 3 matches taped together, instructions: chuck petrol on goat f**ker,, ignite matches and set goat f**ker alight and say MERRY CHRISTMAS to goatf**ker Done !!!”

“Give me a gun and I’ll start shooting the putrid things. I’m f**king over the Australian government and the Islamic filth. Just kill them all f**k it.”

Given the nature of the above posts, it is hard to imagine how they could possibly conform with Facebook’s Community Standards

Direct Threats: How we help people who feel threatened by others on Facebook.

We carefully review reports of threatening language to identify serious threats of harm to public and personal safety. We remove credible threats of physical harm to individuals. We also remove specific threats of theft, vandalism or other financial harm.

Hate Speech

Facebook removes hate speech, which includes content that directly attacks people based on their:

  • race,
  • ethnicity,
  • national origin,
  • religious affiliation,
  • sexual orientation,
  • sex, gender or gender identity, or
  • serious disabilities or diseases.

Schools and bullying

In recent times I reported on online bullying generally, and bullying and other inappropriate online behaviours specifically related to schools.

In that context a new study by ReachOut Australia reveals interesting insights. ‘Bullying and young Australians‘ reveals that children are still twice as likely to be bullied at school than online, with 52% of the 14-25-year-olds surveyed experiencing bullying at school, and 25.3% experiencing bullying online.

These results do not take away from the often devastating effects of online bullying, but highlight that the public focus on bullying in cyberspace is perhaps somewhat misaligned with the reality.

UK man arrested over offensive social media messages

As previous social media round-ups attest, the United Kingdom doesn’t mess about when it comes to threatening or offensive social media messages, and police there has a history of arresting and charging people over social media posts that cross the line.

The latest news of such an arrest involves a 73-year-old West Sussex man who allegedly sent offensive social media messages to two Members of Parliament.

Crime (and punishment)

Copyright fracas over boxing fight

Australia’s pay TV operator Foxtel said it would pursue 25-year-old Brisbane mechanic Darren Sharpe over his brazen streaming of the Danny Green v Anthony Mundine fight on Facebook Live.

Mr Sharpe decided to broadcast the fight from his TV, live on his Facebook page reaching over 78,000 viewers. Foxtel was charging viewers $59.95 on a one-off pay-per-view basis for the fight.

Foxtel contacted Mr Sharpe during the fight and advised him that his streaming of the fight on Facebook was a breach of the Copyright Act 1968 (Cth), and asked him to stop. He refused.

Foxtel’s subsequent statement indicates it is prepared to pursue Mr Sharpe over the breach.

Foxtel spends over $900m each year on the production of local content including live sports. This investment is only possible when the rights to that content can be protected. Without copyright protection, many of these events and productions would not exist and the thousands of people employed in their creation would not have jobs.

The incident with Facebook is not just theft. It is a threat to the future viability of live events such as boxing and to the sustainability of the content industry generally.

A Go Fund Me page has been set up by Mr Sharpe collecting funds for his potential legal costs.

Mr Sharpe has achieved dubious fame, but he was not the only one streaming the fight. Brett Hevers was streaming to over 100,000 viewers just prior to Mr Sharpe starting up his Facebook Live stream. In Mr Hevers’ case Foxtel remotely deactivated his Foxtel subscription in response. He is also raising funds via his Paypal account, anticipating legal action by Foxtel.

Revenge porn

This month it’s Denmark’s turn to take steps towards curbing the scourge of ‘revenge porn‘.

Denmark proposes to increase the penalty for the sharing of nude pictures or videos of people online without their consent to two years in prison from the current six months, and victims will also be provided with more detailed information on what they can expect to happen when they report cases of revenge porn to the police.

Social media to the rescue

While most stories you read in the context of criminal allegations and social media are usually case studies in what not to do online, sometimes social media can come to the rescue and help those charged with a crime.

That appears to be the case for Medhanie Tesfamarian Berhe, an Eritrean refugee, facing prosecution in Italy accused of being Medhanie Yehdego Mered, a notorious human smuggler. Italian and British officials seem certain they got their man, but Mr Berhe’s lawyers suggest they got it wrong, and the prosecution is a spectacular case of mistaken identity.

The defence team are using electronic location data from Facebook to offer evidence of their claim of mistaken identity, by showing Mr Berhe’s geographical movements as captured by Facebook.

While prosecutors allege that Mr Berhe is in fact Mr Mered and that he was in Khartoum in Sudan in 2013, Facebook’s data appears to back Mr Berhe’s version of events whereby he first accessed the Facebook account in question in October 2014 in Eritrea, and then in an Ethiopian refugee camp, with the first access in Sudan occurring in 2015, in line with his refugee-route.

If Mr Berhe is the victim of a major case of mistaken identity, it will be a major embarrassment for the relevant authorities, but it will also be a great illustration of the power of social media to offer not just incriminating materials, but also electronic evidence that may absolve people of false allegations.

The case is also a timely reminder of our digital footprint captured by social media and other conveniences that are integrated with online databases (such as the Opal transport cards in Sydney which retain a detailed geographical and chronological record of a person’s movements while travelling on public transport, offering a plethora of potentially useful information to law enforcement agencies).

Closer to home, in Darwin, Australia, social media may have helped the guilty to escape the consequences of their actions, highlighting the dangers of vigilante ‘law enforcement.’

Darwin has been experiencing a rise in car break-ins, and related social media shenanigans. The ‘Stolen Cars in Darwin‘ Facebook group became a forum for people who had suffered the indignity of having their cars stolen, calling on their fellow Facebook users to help them to find their stolen vehicles.

Well, believe it or not, as it turns out vigilante justice may not be the best solution in the circumstances.

A stolen vehicle was located and reported to the police, but by the time the police turned up amateur sleuths had hampered any chance the police had to gather evidence that would have helped them to catch the thieves by wondering all over the stolen car, completely destroying the crime scene and preventing police dogs from picking up a scent.

Although two people suspected of the crime were picked up nearby, they had to be released due to lack of evidence …

Meanwhile, in Saudi Arabia a woman chose to turn to Twitter rather than the police in an attempt to achieve justice – this time with success.

Admittedly, we are talking about Saudi Arabia where women have a much better chance to shame authorities into action than simply hope to prevail over man in the usual course of judicial procedures.

In this unique case Nareman Kallas posted to Twitter a video of her ex-husband abusing their infant, in an attempt to force her to go back to him.

After she was sent the video she chose to make it public. A brave move in male-dominated Saudi Arabia, but a move that shamed the authorities into action and now she has full custody of her child.

Regulatory issues

Law enforcement agencies’ access to social media data

Following Google’s lead late last year which saw the company releasing a number of so-called National Security Letters (NSLs), Twitter’s own recent transparency update, releasing two NSLs sent to the social network in 2015 and 2016 after the relevant gag orders had been lifted, returned focus on access by law enforcement agencies to social media data.

As I explained in June last year, NSLs are issued under 18 U.S.C. §2709, the Electronic Communications Privacy Act, as modified by section 505 of the USA Patriot Act, and amended by the USA Freedom Act in 2015. The NSLs are served on communications service providers such as a telephone company, ISP, or social network, and allow the FBI to secretly demand users’ data, arguably without meaningful judicial oversight. The recipients of NSLs are also subject to a gag order that forbids them from revealing the existence of an NSL even to their colleagues, let alone the public, or an affected user. It has been alleged in the past that the FBI systematically abuses this power. A panel advising Barack Obama on surveillance revealed in 2014 that the FBI alone issues an average of 60 NSLs each day.

Twitter noted in its release that it ‘remains unsatisfied with restrictions on our right to speak more freely about national security requests we may receive’.

We continue to believe that reporting in government-mandated bands does not provide meaningful transparency to the public or those using our service. However, the government argues that any numerical reporting more detailed than the bands in the USA Freedom Act would be classified and as such not protected by the First Amendment. They further argue that Twitter is not entitled to obtain information from the government about the processes followed in classifying a version Twitter’s 2013 Transparency Report or in classifying/declassifying decisions associated with the allowed bands. We would like a meaningful opportunity to challenge government restrictions when “classification” prevents speech on issues of public importance.

Twitter resisted most of the demands, but the nature of the requests suggests the FBI may be stretching the guidelines set by a 2008 opinion issued by the US Justice Department’s Office of Legal Counsel (OLC), which limited NSLs to name, address, length of service, and telephone bill records. Opinions issued by the OLC are generally considered conclusive and binding by the executive branch.

This is to be contrasted with the Office of the Inspector General’s report in 2014 which appears to have disagreed with that position, suggesting the FBI is not bound by such limitations when it comes to NSLs.

Twitter is continuing its fight in this regard in an ongoing lawsuit against the US Department of Justice, seeking ‘more transparency into similar NSL requests’.

Facebook also continues to resist what it sees as overreach by law enforcement agencies, by appealing further an appellate decision out of New York in July 2015 which held it has no legal standing to challenge search warrants on behalf of its members.

The Matter of 381 Search Warrants Directed to Facebook Inc., involved search warrants issued in 2013 ordering Facebook to turn over all of the information contained in the Facebook accounts of 381 members, including private conversations and photos in a matter relating to investigation into disability fraud by police officers and other public employees. Only 62 of the 381 were charged with an offence.

New York highest court, the Court of Appeals of the State of New York heard Facebook’s last ditch appeal on 7 February, watched closely by social media and technology companies, and civil rights groups.

Meanwhile in New Jersey, police now can access a social media user’s private messages without applying for an order under the State’s wiretapping laws after the three-judge appeals panel of the Superior Court of New Jersey Appellate Division ruled that communications on messaging applications and social media platforms are not subject to the tighter privacy rules applicable to telephone calls set by wiretapping laws.

Law enforcement agencies in New Jersey are still required to apply for a communications data warrant to compel social media companies to produce private user data, however such warrants put a lower burden of proof on police than wiretap orders.

The decision once again brings into questions the often haphazard application of long-standing privacy principles to digital communications.

The issue is widespread across the United States. In Washington, D.C. police is also seeking the social media history of at least two people arrested at anti-Trump protests which coincided with the president’s inauguration.

Facebook’s ‘Law Enforcement Response Team’ notified at least one such protester of a ‘legal process from law enforcement seeking information about [their] Facebook account.’

Facebook and privacy

Facebook is accustomed to complaints over privacy issues, especially in Europe.

However, privacy issues also haunt it closer to home in Colin R. Brickman v. Facebook Inc., Case Number 3:16-cv-00751, in the US District Court for the Northern District of California.

Most recently, Judge Henderson denied Facebook’s motion to dismiss the class action lawsuit accusing the social media operator of breaching the Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C. 227) by sending unsolicited robo-text messages to users to remind them of their friends’ birthdays.

The TCPA is designed to prevent unwanted calls, texts, and faxes, and it is administered by the Federal Communications Commission.

Facebook argued the dismissal of the case on constitutional free speech grounds, and on the basis that various exemptions are already given from the prohibition under the TCPA.

Judge Henderson rejected Facebook’s arguments and held the TCPA constitutional on the basis that it serves a ‘compelling government interest in promoting residential privacy,’ among other things.

… the TCPA does not restrict individuals from receiving any content they want to receive – speech that would otherwise be prohibited by the TCPA is immediately removed from the purview of the statute once express consent is provided. If individuals want to receive speech from Facebook that facilitates social connections, they are not prohibited from doing so. Accordingly, this Court finds the TCPA is not overinclusive.

Travelling to the US and your social media

In July I reported on US Customs and Border Protection proposing to ask for your social media accounts and screen names when travelling to the United States. Implementation of the new policy commenced in December last year.

Since then a lot had changed in the US, including the election of Donald Trump.

While at the time the actual provision of such information was proposed to be optional, new reports indicate administration officials are discussing the requirement for all foreign visitors to disclose all websites and social media sites they use, and share their contacts from their mobile phones.

So, if you are planning a trip to the United States, it’s time to start deleting all those Facebook posts and tweets making fun, or questioning the judgment, of Donald Trump.

Regulating social media abuse

In the UK a group of MPs fed up with the seemingly unfettered abuse on social media are proposing fines for social networks if they fail to address online abuse. The private member’s bill is unlikely to get up, however it is a clear shot across the bow for social media operators when it comes to online harassment.

The Malicious Communications (Social Media) Bill would force social media operators to register on a ‘register of regulated social media platforms’ and require them to have in place ‘reasonable means to prevent threatening content from being received by users of their service in the United Kingdom during normal use of the service’.

Failure to do so could be penalised by a fine up to the greater of £2 million or 5% of the social media operator’s worldwide turnover.

Just a few days after the introduction of that Bill, Twitter announced further steps designed to reduce and eliminate abuse on its platform, including:

  • a renewed effort to prevent the creation of new abusive accounts by those suspended from the service, which has been a long-standing complaint by those subjected to harassment; and
  • a new filter targeting abusive replies.

It remains to be seen how succesful these attempts will be due to inherent technological obstacles, such as abusers simply using a different email address to sign up again, or changing computers to create a new account.

A week later Twitter introduced further tweaks to its system to ensure that users will no longer receive notification about replies to threads started by accounts they’ve blocked or muted, unless those replies are from people they already follow.

One way or another Twitter needs to get on top of its problem because it is believed the prevalence of abuse on the platform is negatively affecting its users growth numbers. Twitter’s latest results for the last quarter of 2016 failed to impress, with a mere 4% growth in users in the last 12 months, a modest rise in revenue, and another quarterly loss of $167 million.

Google finally appears to land on the good side of the European Union’s Data protection Authorities

Google announced that ‘the European Union’s Data Protection Authorities have confirmed that Google Cloud services’ contractual commitments fully meet the requirements to legally frame transfers of data from the EU to the rest of the world, in accordance with EU Data Protection Directive 95/46/EC.’

I have long chronicled the privacy dramas of social media companies, including Google, in the European Union, in particular the downfall of the US-EU Safe Harbour Agreement and its replacement known as the Privacy Shield, so it makes for a refreshing change to see Google on the good side of the European regulators.

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