Social media and the law [2nd edition.] 9780409343397, 0409343390

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Social Media and the Law 2nd Edition Patrick George, Kennedys BA (SYD), LLB (UNSW) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Monica Allen, ACA Lawyers LLM (SYD) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Gerard Basha, Bartier Perry, BEc (MACQ), LLM (SYD), LLM (APPLIED LAW) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Stefanie Benson, Allen & Overy BA (SYD), LLB (UNSW) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Joseph Collins, National Rugby League LLB (HONS) (UTS) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

James B Mattson, Bartier Perry BA (UNSW), LLM (SYD) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Justine Munsie, Addisons BA (UNSW), LLB (UNSW) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Gabriella Rubagotti, Selborne Chambers BA (HONS) (UNSW), LLB (UNSW) MEMBER OF THE NEW SOUTH WALES BAR

Gavin Stuart, Bartier Perry BSc, LLB (UTS) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

James Whiley, Bartier Perry BSc (CHEMISTRY & LAW JOINT HONOURS) (BRISTOL UNIVERSITY, UK) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES AND SOLICITOR, SENIOR COURTS OF ENGLAND AND WALES

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN:

George, atrick Thomas. Social Media and the Law 2nd Edition. 9780409343380 (pbk). 9780409343397 (ebk). Notes: Includes index. Social media — law and legislation — Australia. Subjects: Online social networks — law and legislation — Australia. Allen, Monica. Basha, Gerard. Benson, Stefanie. Collins, Joseph. Mattson, James Other Authors/Contributors: B. Munsie, Justine. Rubagotti, Gabriella. Stuart, Gavin. Whiley, James. Dewey Number: 343.94099 © 2016 Reed International Books Australia Pty Limited trading as LexisNexis. 1st Edition 2014. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers.

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About the Authors Patrick George (General Editor) is the author of Defamation Law in Australia, which is now in its 2nd edition. He is the Senior Partner at Kennedys in Australia. Patrick has acted in many high-profile defamation and mediarelated cases and complex commercial cases over a 30-year period. Monica Allen is a Senior Associate at ACA Lawyers and is a commercial litigation lawyer with extensive experience managing large-scale litigation in the Supreme Court of New South Wales and the Federal Court of Australia. She is experienced in a wide range of commercial disputes and has a practice predominantly involving NSW Supreme Court and Federal Court of Australia litigation. Monica holds a Master of Laws and has special interests in crossborder issues, international arbitration and technology-related disputes. Gerard Basha is an Executive Lawyer at Bartier Perry, specialising in estate planning, and in contested and uncontested probate and estate litigation. He is an Accredited Specialist in Wills and Estates Law. His principal practice areas include equity and trusts as well as capacity applications before the Guardianship Division of the New South Wales Civil and Administrative Tribunal. Gerard has also advised and been involved as an expert witness in succession law cases in the Supreme Court of New South Wales. Stefanie Benson is a Senior Associate in the Competition practice at Allen & Overy. She specialises in competition and consumer law, including cartel investigations, misuse of market power, mergers, joint ventures, infrastructure access and the Australian Consumer Law. Stefanie acts for clients in the media, technology, communications and retail industries and has a particular interest in cross-border matters and the growth of competition regimes in the Asia–Pacific region. Joseph Collins is Senior Legal Counsel at the National Rugby League. Previously, he was a Senior Associate in Clayton Utz’s Litigation and Dispute

Resolution practice, where he acted in a broad range of large-scale commercial disputes. James B Mattson is an Executive Lawyer at Bartier Perry, leading its Workplace Team. He is an Accredited Specialist in Employment Law and Industrial Relations. James regularly appears in administrative and industrial tribunals, as well as in courts, representing employers. Justine Munsie is a Partner at Addisons, specialising in media and intellectual property law. Justine acts for clients operating in the media, entertainment, advertising and gaming industries, as well as other brand owners whom she advises on a range of issues relevant to content, branding, reputation and marketing. Gabriella Rubagotti is a barrister admitted to the New South Wales Bar and holds degrees in arts and law from the University of New South Wales. She practises in the areas of defamation, intellectual property, constitutional and corporate law. Since her commencement at the Bar, Gabriella has appeared in a number of high-profile cases concerning media law and the constitutionally implied freedom of political communication. Gavin Stuart is an Executive Lawyer in Bartier Perry’s Commercial Litigation and Dispute Resolution group. He has over 19 years’ experience providing commercial dispute advice and appearance services covering domestic and cross-border contractual disputes involving jurisdictions such as England, New Zealand, India and the United States of America. He also has extensive experience in finance-related issues, intellectual property, information technology, and corporate and regulatory matters. Gavin has a wealth of experience in the conduct of proceedings in the Supreme Court of New South Wales and other states and territories, the Federal Court of Australia as well as specialist tribunals. James Whiley is a Senior Associate at Bartier Perry. Since being admitted as a solicitor in England and Wales in September 2008 and in New South Wales in 2015, he has specialised in providing estate- and succession-planning services to high-net-worth individuals and families in Australia, the United Kingdom and offshore, including structuring, Australian and UK tax planning, creating tailored strategies for clients with complex personal and business circumstances and the implementation of all relevant documentation to achieve their intentions in relation to their private wealth, to their business, or to both. James also specialises in resolving trust and estate disputes and has extensive experience in

cross-jurisdictional issues.

Preface Social media has established itself as the medium of choice for everyday exchanges. As such, it is a world where free speech may truly exist. It enables the free flow of communication at any time of the day or night by anyone to anyone. The benefit of that freedom has been seriously challenged by the harm caused to those who are abused on social media for malicious, unlawful or criminal purposes. Many who engage in that abuse choose to speak with spite and cruelty, often behind the mask of anonymity. Many choose not to exercise restraint and speak about others without inhibition or care. Imposing restraint by law has been difficult and, at times, futile. The publication of statements on social media is subject to defamation law (Chapter 4) and, in more extreme cases, subject to the criminal law (Chapter 8). If the communication is made in the course of employment, it may be subject to employment law (Chapter 2). If made on social media in trade or commerce, it may be subject to competition and consumer laws (Chapter 5). Given the free flow of communication, the use of the work of others and the protection of works on social media under copyright law is a matter of developing concern (Chapter 6). The ownership of a person’s social media accounts and disclosure of messages on those accounts after death is another matter of developing concern (Chapter 9). If communications on social media invade the privacy of others or disclose confidential information, they may be subject to laws being developed that protect those rights (Chapter 3). At the time of writing, the United Kingdom Supreme Court has just delivered judgment in PJS v News Group Newspapers Ltd [2016] UKSC 26. In that

case, the court continued an interim injunction to preserve the privacy interests of the appellant, his partner and their young children in England and Wales, pending the trial. There had already been significant internet and social media coverage which had identified the appellant and his family. The court held that the injunction was the only remedy of any value to them for the invasion of privacy by further disclosure in the English media, rather than any award of damages. The decision supports the view that privacy rights can be applied to prevent distress by intrusion and harassment where there is no public interest in the underlying information to be published and even where the information has been disclosed on the internet and in social media within the jurisdiction. For a general overview of social media and the law, refer to Chapter 1. For the ability to obtain documents and information through court process, refer to Chapter 7. The law is stated as at May 2016. We are grateful to Jennifer Burrows and Helen Eastwood of LexisNexis for the support and encouragement of this book. I take the opportunity to thank each of the other authors, who lead busy professional lives and have found the time to contribute their knowledge to this second edition of Social Media and the Law. Patrick George Sydney 27 May 2016

Table of Cases References are to paragraphs

A A v B (a company) [2002] All ER (D) 142 (Mar); [2003] QB 195; [2002] 2 All ER 545; [2002] EWCA Civ 337 …. 3.43, 3.44, 3.125 — v B and C (QBD, 2 March 2001) …. 3.52 — v B plc [2000] 3 WLR 542 …. 3.140 — v Google New Zealand [2012] NZHC 2352 …. 4.89 — v Hayden (1984) 156 CLR 532 …. 3.144 A & M Records Inc v Napster Inc (Case No 239 F.3d 1004, 1025, United States Court of Appeals, Ninth Circuit, Schroder CJ, Beezer and Paez JJ, 2001) …. 6.118 AB Ltd v Facebook Ireland Ltd [2013] NIQB 14 …. 4.82, 4.183 Adami v Maison de Luxe Ltd [1925] VLR 147; (1924) 35 CLR 143; 30 ALR 438 …. 2.17, 2.45 AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; 58 IPR 268; [2002] NSWSC 170 …. 3.123, 3.144 Age Co Pty Ltd v Liu (2013) 82 NSWLR 268; 296 ALR 186; 272 FLR 426; [2013] NSWCA 26 …. 4.81 Agence France Presse v Morel (Case No 10-Civ-02730, United States District Court, Southern District of New York, Nathan J, 21 May 2013) …. 6.84, 6.105, 6.107, 6.137, 6.145, 6.147 Agostino v Cleaves [2010] ACTSC 19 …. 8.36, 8.79 Ahmed v Nationwide News Pty Ltd (District Court of NSW, Bozic DCJ, 7 December 2012, unreported) …. 4.263 Airways Corporation of New Zealand Ltd v Pricewaterhouse Coopers Legal [2002] NSWSC 138 …. 7.139 Aktas v Westpac Banking Corp [2010] HCA 25 …. 4.209

Ali v Nationwide News Pty Ltd [2008] NSWCA 183 …. 4.255 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; 143 FLR 180 …. 4.114, 4.116 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 …. 3.122, 3.123, 3.144 AMP v Persons Unknown [2011] EWHC 3454 …. 3.50, 3.66, 3.147 Anders v The Hutchins School [2016] FWC 241 …. 2.62 Anderson v Crown Melbourne Ltd (2008) 216 FLR 164; [2008] FMCA 152 …. 2.32 Appellant v Respondent (1999) 89 IR 407 …. 2.58 Applause Store Productions Ltd v Raphael [2008] All ER (D) 321 (Jul); [2008] EWHC 1781 (QB) …. 3.62, 3.64, 3.65, 4.79, 4.80 Applicant v ACT Dept of Education and Training [2012] FWA 2562 …. 2.48 Ardis Health LLC v Nankivell United States District Court, Southern District, New York, Case No 11 Civ 5013, 23 October 2012 …. 2.80 Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2012] NSWCA 430 …. 3.131 Arnison v Smith (1889) 41 Ch D 348 …. 5.104 Association of Quality Child Care Centres (NSW) v Manefield [2012] NSWCA 123 …. 4.273 Attorney-General v Fraill [2011] EWHC 1629 …. 8.148 — v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109; [1988] 3 All ER 545; [1990] 3 WLR 776; [1988] 2 WLR 805 …. 3.41, 3.108, 3.120, 3.131 — v MGN Ltd [2011] All ER (D) 06 (Aug); [2012] 1 WLR 2408; [2012] 1 Cr App Rep 1; [2011] EWHC 2074 …. 8.147 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCCA, Priestley, Meagher and Powell JJA, 16 October 1997, unreported) …. 8.154 Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 …. 3.108, 3.111 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 8 NSWLR 341 …. 3.144 Austin v Honeywell Ltd (2013) 277 FLR 372; [2013] FCCA 662 …. 2.12 Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 …. 2.32 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; 54 IPR 161; [2001] HCA 63 …. 3.2, 3.7, 3.17, 3.18, 3.20, 3.21, 3.24, 3.27, 3.39, 3.48, 3.83, 3.95, 3.110, 3.111, 3.112, 3.116, 3.124,

3.126, 3.130, 3.132, 3.135 — v O’Neill (2006) 227 CLR 57; 229 ALR 457; [2006] HCA 46 …. 4.284, 4.285 Australian Competition and Consumer Commission v AirAsia Berhad Co [2012] FCA 1413 …. 5.128, 5.129 — v Allergy Pathway (No 2) (2011) 192 FCR 34; [2011] FCA 74 …. 5.27, 5.44, 5.50, 5.182, 7.85 — v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305; [2009] HCA 19 …. 5.36 — v Commonwealth Bank of Australia (2003) 133 FCR 149; [2003] FCA 1129 …. 5.104 — v Dukemaster Pty Ltd [2009] FCA 682 …. 5.24 — v Jetstar Airways Pty Ltd [2015] FCA 1263 …. 5.91, 5.95, 5.100, 5.104 — v Signature Security Group Pty Ltd (2003) ATPR 41-908; [2003] FCA 3 …. 5.104 — v SMS Global Pty Ltd [2011] FCA 855 …. 5.114 — v TPG Internet Pty Ltd [2011] FCA 1254 …. 5.96, 5.97, 5.104, 5.130 — v — [2013] HCA 54 …. 5.95, 5.99, 5.103 Australian Football League (AFL) v Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 …. 3.115, 3.144 Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 …. 3.47, 3.57, 3.58, 3.59, 3.61, 3.113 Axe Market Gardens v Craig Axe (Case No CIV-2008-485-2676, High Court Wellington, Gendall A J, 16 March 2009) …. 7.57

B B, C and D v Australian Postal Corporation t/as Australia Post [2013] FWCFB 6191 …. 2.54, 2.55 Bacich v Australian Broadcasting Corp (1992) 29 NSWLR 1; 10 ACLC 1420 …. 3.123, 3.144 Banerji v Bowles [2013] FCCA 1052 …. 2.50, 2.76 Barach v University of New South Wales [2011] NSWSC 431 …. 4.63, 4.64, 4.65, 4.94, 4.108 Barrett v Ecco Personnel Pty Ltd [1998] NSWCA 30 …. 2.87 Barrymore v News Group Newspapers Ltd [1997] FSR 600 …. 3.125 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193; [2004] HCA 5 …. 4.23, 4.209, 4.217 Basic v Australian Associated Motor Insurers [2012] QDC 208 …. 2.32 Bateman v Slatyer (1987) 71 ALR 553; 8 IPR 33 …. 5.88

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; 227 ALR 425; 80 ALJR 1100; [2006] HCA 27 …. 3.24 Belbin v Lower Murray Urban & Rural Water Corp [2012] VSC 535 …. 4.275 Beloff v Pressdram Ltd [1973] 1 All ER 241 …. 3.142 Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341 …. 4.186 Berkoff v Burchill [1996] 4 All ER 1008 …. 4.170 BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132 …. 2.43 Birnie v Police [2006] SASC 263 …. 8.24 Bishop v New South Wales [2000] NSWSC 1042 …. 4.72 Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395; [2002] FCA 603 …. 2.32 Blaney v Persons Unknown (UK High Court Chancery Division, Lewinson J, October 2009, unreported) …. 7.57 Bleyer v Google Inc [2014] NSWSC 897 …. 4.104 Blylevens v Kidicorp Ltd [2014] NZERA Auckland 373 …. 2.67, 2.75, 2.76 Blyth Chemicals v Bushnells (1933) 49 CLR 66; 6 ALJR 457a; [1933] HCA 8 …. 2.45 Boal v BHP Coal Pty Ltd [2014] FWC 9331 …. 2.56 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445; [2012] HCA 32 …. 2.43 Bonnard v Perryman [1891] 2 Ch 269; [1891–4] All ER Rep 965 …. 3.109, 3.147, 4.285 Boral Besser Masonry Ltd v ACCC (2003) 215 CLR 374; 195 ALR 609; [2003] HCA 5 …. 5.137 Bowden v Ottrey Homes [2012] FWA 6468 …. 2.70, 2.75, 2.76 — v — [2013] FWCFB 431 …. 2.70 Bowker v DP World Melbourne Ltd [2014] FWCFB 9227 …. 2.26, 2.27 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 …. 4.132, 4.170 Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 …. 3.70 Brady v Norman [2008] EWHC 2481 (QB) …. 4.217 Brand v Monks [2009] NSWSC 1454 …. 3.138 Bray v Hoffman-La Roche Ltd (2002) 118 FCR 1; 190 ALR 1; [2002] FCA 243 …. 5.211 Bread Manufacturers Ltd, Ex parte; Truth and Sportsman Ltd, Re (1937) 37 SR (NSW) 242; 54 WN (NSW) 98 …. 8.164 Breen v Williams (1996) 186 CLR 71; 43 ALD 481; 138 ALR 259; [1996] HCA 57 …. 3.120, 3.148 Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460; [1984] FCA 391 ….

5.104 Bristow v Adams [2012] NSWCA 166 …. 4.273 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 …. 7.70, 7.75 British Broadcasting Corp Re; Attorney General’s Reference (No 3 of 1999) [2009] All ER (D) 175 (Jun); [2009] UKHL 34; [2010] 1 AC 145; [2010] 1 All ER 235 …. 3.10 Broadmeadows Disability Services [2011] FWA 4063 …. 2.35 Broome v Cassell & Co Ltd [1972] AC 1027; [1972] 1 All ER 801 …. 4.256 Bunt v Tilley [2006] All ER (D) 142 (Mar); [2006] 3 All ER 336; [2007] 1 WLR 1243 …. 4.95, 4.228 Burrell v Clifford [2016] EWHC 294 (Ch) …. 3.55 Bushara v Nobananas Pty Ltd [2013] NSWSC 225 …. 4.274 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 …. 5.36 Byrne v Deane [1937] 2 All ER 204; [1937] 1 KB 818 …. 4.97 — v Howard (2010) 239 FLR 62; [2010] FMCAfam 509 …. 7.45 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 …. 2.54

C C v Holland [2012] 3 NZLR 672; [2012] NZHC 2155 …. 3.70, 3.74, 3.76, 3.77, 3.78 Cairns v Modi [2012] All ER (D) 01 (Nov); [2013] 1 WLR 1015; [2012] EWCA Civ 1382 …. 4.131, 4.243, 4.255, 4.276, 4.279 — v — [2012] EWHC 756 (QB) …. 4.131 Cameron v Asciano Services Pty Ltd [2011] VSC 36 …. 2.47 Campbell v Mirror Group Newspapers Ltd [2004] All ER (D) 67 (May); [2004] UKHL 22; [2004] 2 AC 457; (2004) 62 IPR 231; [2004] 2 All ER 995 …. 3.10, 3.41, 3.42, 3.43, 3.44, 3.46, 3.48, 3.50, 3.51, 3.67, 3.142 Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677; [2000] HCA 12 …. 5.36 Candy v Bauer Media Ltd [2013] NSWSC 979 …. 3.2, 3.69, 3.95, 3.147 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; 113 ALR 577; [1993] HCA 31 …. 4.254 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 …. 4.248 Catholic Education Commission of Victoria v Independent Education Union of Australia [2012] FWA 7274 …. 2.39

Chambers v DPP [2012] All ER (D) 346 (Jul); [2013] 1 All ER 149; (2012) 176 JP 737; [2012] EWHC 2157 …. 8.41 Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335 …. 3.95 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468; [2007] HCA 60 …. 4.116, 4.223 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 …. 4.195, 4.255 Chase v Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 …. 4.143 Christou v Beatport LLC 849 F. Supp. 2d 1055 (2012) …. 2.84 Church of Scientology Inc v Woodward (1982) 154 CLR 25; 43 ALR 587; 57 ALJR 42; [1982] HCA 78 …. 3.10, 3.16 Citigroup Pty Ltd v Weerakoon [2008] QDC 174 …. 7.51, 7.53 Citizens’ Life Assurance Co Ltd v Brown [1904] AC 423 …. 4.71 Clift v Clarke [2011] EWHC 1164 …. 4.188 Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587; [1968] FSR 415; [1969] RPC 41 …. 3.59, 3.121, 3.129, 3.130 Coleman v Power (2004) 220 CLR 1; 209 ALR 182; 78 ALJR 1166; [2004] HCA 39 …. 3.111, 8.59 Columbia Pictures Industries v Fung (Case No 447 F.Supp.2d 306, United States District Court, Southern District of New York, Stanton J, 21 August 2006) …. 6.111, 6.117, 6.118, 6.171 — v — (Case No 710 F.3d 1020, United States Court of Appeals, Ninth Circuit, Berzon J, 21 March 2013) …. 6.111, 6.117, 6.118, 6.171 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; 32 ALR 485; 55 ALJR 45 …. 3.116, 3.120, 3.132 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australia Post [2006] AIRC 541 …. 2.32 Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171; 65 ALR 33; 6 IPR 1; [1986] HCA 19 …. 6.32 Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 …. 5.117 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201 …. 2.43 — v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 …. 2.43 Corby v Allen & Unwin Pty Ltd (2013) 297 ALR 761 …. 6.73 Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1; 275 LSJS 476; [2011] SASC 104 …. 4.135, 4.175, 4.177 Corrie v Sheen Panel Service (Vic) Pty Ltd [2013] FWC 7830 …. 2.53 Corrs Pavey Whiting v Collector of Customs (Vic) (1987) 14 FCR 434; 13 ALD

254; 74 ALR 428; 10 IPR 53 …. 3.122, 3.141, 3.143 Cox Broadcasting v Cohn 420 US 469 (1975) …. 3.90 Crampton v Nugawela (1996) 41 NSWLR 176; (1997) Aust Torts Reports 81416 …. 4.273 Crisp v Apple Retail (UK) Ltd (UK Employment Tribunal, case no 1500258/2011) …. 2.10, 2.64 Crispin v Christian Audigier Inc (Case No CV 09-09509-MMM-JEMx, United States District Court, CD California, 26 May 2010) …. 7.113 Crockett v Vondoo Hair t/as Vondoo Hair [2012] FWA 8300 …. 2.76 Crowther v Sala [2008] 1QdR127 …. 8.69 Cruise & Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125 …. 3.69, 3.147 CTB v News Group Newspapers Ltd [2011] All ER (D) 142 (May); [2011] EWHC 1232 (QB) …. 4.156 — v — [2011] EWHC 1326 (QB) …. 4.156 — v — [2011] EWHC 1334 (QB) …. 4.156 Cush v Dillon (2011) 243 CLR 298; 279 ALR 631; [2011] HCA 30 …. 4.218

D Dank v Whittaker (No 1) [2013] NSWSC 1062 …. 4.73 David Syme & Co v Canavan (1918) 25 CLR 234; 24 ALR 275; [1918] HCA 50 …. 4.69 David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 …. 3.144 — v Hore-Lacy [2000] 1 VR 667 …. 4.207 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 …. 4.258 Davison v Habeeb [2011] All ER (D) 205 (Nov); [2012] 3 CMLR 104; [2011] EWHC 3031 (QB) …. 4.97 Dekort v Johns River Tavern Pty Ltd t/as Blacksmiths Inn Tavern [2010] FWA 3389 …. 2.32 Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326; [2007] NSWCA 172 …. 2.20 Dering v Uris [1964] 2 QB 669; [1964] 2 All ER 660; [1964] 2 WLR 1298 …. 4.206 Didomizio v Tetra Pak Manufacturing Pty Ltd [2005] AIRC 936 …. 2.32 Digital Pulse Pty Ltd v Harris (2002) 166 FLR 421; [2002] NSWSC 33 …. 2.91 Director of Public Prosecutions v Collins [2006] All ER (D) 249 (Jul); [2006] UKHL 40; [2006] 4 All ER 602; [2006] 1 WLR 2223 …. 8.51 — v Kear (2006) 204 FLR 55; [2006] NSWSC 1145 …. 7.130

— v Rodriguez [2012] VCC 1216 …. 8.27 Director of Public Prosecutions (NSW) v Eades [2009] NSWSC 1352 …. 8.129 Director of Public Prosecutions (Vic) v Johanson [2012] VCC 708 …. 8.20 Doe v Australian Broadcasting Corp [2007] VCC 281 …. 3.2, 3.10, 3.31, 3.34, 3.35 — v Yahoo!7 Pty Ltd; Wright v Pagett [2013] QDC 181 …. 3.2, 3.37 Donoghue v Allied Newspapers Ltd [1938] Ch 106; [1937] 3 All ER 503 …. 6.19 Douglas v Hello! Ltd [2000] All ER (D) 2435; (2000) 9 BHRC 543; [2001] QB 967; [2001] 2 All ER 289; [2001] 2 WLR 992 …. 3.7, 3.41, 3.44, 3.83 — v — (No 2) [2004] All ER (D) 280 (May); [2006] QB 125; (2005) 65 IPR 449; [2005] 4 All ER 128 …. 3.149, 3.150 Dover-Ray v Real Insurance Pty Ltd (2010) 204 IR 399; [2010] FWA 8544 …. 2.62, 2.75 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 …. 4.35, 4.36, 4.59, 4.61, 4.67 Duchess of Argyll v Duke of Argyll [1967] Ch 302 …. 3.117, 3.118, 3.125 Duffy v Google Inc [2011] SADC 178 …. 4.89 — v — [2015] SASC 170 …. 4.103, 4.272 — v — (No 2) [2015] SASC 206 …. 4.272 Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75 …. 4.67 Dye v Commonwealth Securities Ltd [2010] FCA 720 …. 3.95

E Eagle v Morgan United States District Court, Eastern District Pennsylvania, Case No 11-4303, 12 March 2013 …. 2.79 East England Schools CIC v Palmer [2013] EWHC 4138 …. 2.94 Eiselein v BuzzFeed (Case No 1:13-cv-03910-UA, United States District Court, Southern District of New York, 7 June 2013) …. 6.64, 6.146 Elzahed v Commonwealth of Australia [2015] NSWDC 271 …. 4.192 Enders v Erbas & Associates Pty Ltd (No 2) [2013] NSWDC 44 …. 4.273 Energizer NZ Ltd v Panasonic New Zealand Ltd (HC Auckland CIV 2009-4044087 16 November 2009) …. 5.104 Enhanced Network Solutions v Hypersonic Technologies Corp 951 N.E.2d 265 (2011) …. 2.86 Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19; [2001] SASC 60 …. 4.177 Epichealth Pty Ltd v Yang [2015] VSC 516 …. 2.102

Equal Employment Opportunity Commission v Simply Storage Management LLC (Case No 1:09-cv-1223-WTL-DML, United States District Court, Southern District of Indiana, 11 May 2010) …. 7.99, 7.118, 7.129 Equico Equipment Finance Ltd v Enright [2009] NZERA 411 …. 2.87 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443; Aust Torts Reports 81–125 …. 4.170 Ewin v Vergara (No 3) [2013] FCA 1311 …. 2.30 Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119; [1981] 3 All ER 241; [1981] 3 WLR 541 …. 6.40

F Faccenda Chicken Ltd v Fowler [1987] 1 Ch 117 …. 2.91 Facebook Inc, Re 923 F.Supp. 1204 (2013) …. 9.157 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; 293 ALR 384; 263 FLR 211; [2012] NSWCCA 125 …. 3.38 Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 …. 4.207 — v Reed International Books Australia Pty Ltd (2010) 189 FCR 109; 272 ALR 547; 88 IPR 11; [2010] FCA 984 …. 6.35, 6.40, 6.48, 6.49 Faulkner v BHP Coal Pty Ltd [2014] FWC 9330 …. 2.56 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 …. 4.114, 4.115, 4.118, 4.141, 4.142, 4.143 Finlay v Finlay 18 Kan App 2d 479, 485–86, 856 P 2d 183, 189 (1993) …. 3.85 Fire Watch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520; [1999] FCA 761 …. 5.112 Fitzgerald v Dianna Smith t/as Escape Hair Design (2010) 204 IR 292; [2010] FWA 7358 …. 2.3, 2.31, 2.60, 2.64, 2.75 Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153 …. 5.44 — v — [2015] FCAFC 52 …. 5.118 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 …. 1.104, 7.44, 7.56 Flood v Times Newspapers Ltd [2012] All ER (D) 153 (Mar); [2012] UKSC 11; [2012] 2 AC 273 …. 4.75, 4.77 Florida Star v BJF 491 US 524 (1989) …. 3.90 Forkserve Pty Ltd v Jack (2001) 19 ACLC 299; [2000] NSWSC 1064 …. 2.81 Franchi v Franchi [1967] RPC 149 …. 3.138 Frangione v Vandongen 2010 ONSC 2823 …. 7.118 Fraser v Evans [1969] 1 QB 349 …. 3.49, 3.109 French v Fraser [2015] NSWSC 1807 …. 4.16 Frost v Kourouche [2014] NSWCA 39 …. 7.91

G G v Day [1982] 1 NSWLR 24 …. 3.138 G & G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB) …. 3.65, 4.84 Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920 …. 4.280 Gallagher v Durack (1983) 152 CLR 238; 45 ALR 53; 57 ALJR 191; [1983] HCA 2 …. 8.165 Gardam v George Wills Co Ltd (No 1) (1988) 82 ALR 415; 12 IPR 194 …. 5.75 Gartside v Outram (1857) 26 LJ Ch (NS) 113 …. 3.129, 3.141 Gatto v United Air Lines (Case No 10-cv-1090-ES-SCM, United States District Court, District of New Jersey, 25 March 2013) …. 2.32, 7.80 Gee v Burger [2009] NSWSC 149 …. 3.95 George Weston Foods Ltd v Goodman Fielder Ltd [2000] FCA 1632 …. 5.104 Ghosh v Google Australia Pty Ltd [2013] NSWDC 146 …. 4.89, 4.90 Giller v Procopets (2008) 24 VR 1; 79 IPR 489; [2008] VSCA 236 …. 3.2, 3.21, 3.95, 3.145, 3.146 Gillett v Bullivant (1846) 7 LT (0S) 49 …. 4.135 Global Partners Fund Ltd v Babcock & Brown Ltd (in Liq) (2010) 267 ALR 144; [2010] NSWSC 270 …. 4.63 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; 55 ALR 25 …. 5.34, 5.88 Gluyas v John Best Junior [2013] VSC 3 …. 4.274 Godfrey v Demon Internet Ltd [2001] QB 201; [1999] 4 All ER 342; [2000] 3 WLR 1020 …. 4.97 Godfrey Hirst NZ Ltd v Cavalier Bremworth Ltd [2014] NZCA 418 …. 5.104 Google Inc v ACCC (2013) 294 ALR 404; 99 IPR 197; [2013] HCA 1 …. 4.98, 5.36, 5.45, 5.68, 5.74 — v Vidal-Hall [2015] EWCA Civ 311; [2015] CP Rep 28; [2015] 3 WLR 409; [2015] EMLR 15; [2015] FSR 25; …. 3.41, 3.150, 3.168 Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 …. 5.104 Gramotnev v Queensland University of Technology [2013] QSC 158 …. 3.95 Grant v Marshall [2003] FCA 1161 …. 7.65 Graves v West [2013] NSWSC 641 …. 7.51 Gray v Gray [2013] WASC 387 …. 9.87 Griffiths v Rose (2011) 201 IR 216; [2011] FCA 30 …. 2.21, 2.58 Grosse v Purvis (2003) Aust Torts Reports 81-706; [2003] QDC 151 …. 3.2, 3.28, 3.34, 3.39, 3.146 Grubb v Bristol United Press Ltd [1963] 1 QB 309; [1962] 2 All ER 380; [1962] 3 WLR 25 …. 4.111

Gulati v MGN Ltd [2015] WLR(D) 232, [2015] EWHC 1482 (Ch) …. 3.55 Gulliver Schools, Inc and School Management Systems Inc v Snay (26 February 2014, District Court of Appeal of Florida, No. 3D13-1952) …. 2.77 Gutnick v Dow Jones & Co Inc (No 4) (2004) 9 VR 369; Aust Torts Reports 81-748; [2004] VSC 138 …. 4.217

H Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619; [2010] NSWSC 924 …. 4.253 — v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 …. 4.71, 4.74 Haddon v Forsyth [2011] NSWSC 123 …. 4.273 Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 …. 4.275 Hammond v Credit Union Baywide [2015] NZHRRT 6 …. 2.13 Hanna v OAMPS Insurance Brokers Ltd (2010) 202 IR 420; [2010] NSWCA 267 …. 2.93 Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 …. 4.171, 4.172 Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 …. 3.146 Harvey v Egis Road Operation Australia Pty Ltd [2015] FWC 2306 …. 2.61, 2.75 — v — [2015] FWCFB 4034 …. 2.61 Hays Specialist Recruitment (Holdings) Ltd v Ions [2008] EWHC 745 …. 2.82, 2.91 Health Services Union v Life Without Barriers [2012] FWA 6244 …. 2.36 Hellmann Insurance Brokers Pty Ltd v Peterson [2003] NSWSC 242 …. 2.87 Her Majesty’s Attorney General v The Condé Nast Publications Ltd [2015] EWHC 3322 (Admin) …. 8.150 Herald & Weekly Times v Popovic (2003) 9 VR 1; [2003] VSCA 161 …. 4.219, 4.255 Hilton & Longhurst [2013] FamCA 511 …. 7.51 Hinch v Attorney-General (Vic) (1987) 164 CLR 15; 74 ALR 353; 61 ALJR 556; [1987] HCA 56 …. 8.154 Hispanics United of Buffalo Inc and Carlos Ortiz (2012) 359 NLRB No 37 …. 2.42 HL (a minor) v Facebook Inc [2013] NIQB 25 …. 4.82 Hockey v Fairfax Publications Pty Ltd [2015] FCA 652 …. 4.50, 4.116, 4.121 Hook v Stream Group (NZ) Pty Ltd [2013] NZEmpC 188 …. 2.3, 2.53, 2.69 Hope v Bathurst City Council (1980) 144 CLR 1; 29 ALR 577 …. 5.213 Hornsby Building Information Centre Pty Ltd v Sydney Building Information

Centre Ltd (1978) 140 CLR 216; [1978] HCA 11 …. 5.36 Hosking v Runting [2003] 3 NZLR 385 …. 3.41 — v — [2005] 1 NZLR 1; [2004] NZCA 34; (2004) 7 HRNZ 301 …. 3.10, 3.70, 3.71, 3.75, 3.77, 3.78, 3.150 Hough v London Express Newspaper Ltd [1940] 3 All ER 31; [1940] 2 KB 507 …. 4.135

I iCabinCrew Connect [2013] FWC 4143 …. 2.36 IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458; 254 ALR 386; 80 IPR 451; [2009] HCA 14 …. 6.33 Industrial Equity Ltd v North Broken Hill Holding Ltd (1986) 9 FCR 385; 64 ALR 292; 6 IPR 317 …. 5.88 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16 …. 6.46 Integrated Medical Technology Pty Limited v Gilbert [2015] QSC 124 …. 7.84 Interfirm Comparison (Australia) Pty Ltd v Law Society of NSW [1975] 2 NSWLR 104 …. 3.138 Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands) BV (1977) 15 ALR 353 …. 6.73 Investorshub Com Inc v Mina Mar Group Inc, 2011 US Dist Lexis 87566 (MDFLA 20 June 2011) …. 4.108 Invidia LLC v DoFonzo, 2012 WL 5576406 (Mass. Super 22 October 2012) …. 2.86 Ives v Western Australia (No 8) [2013] WASC 277 …. 4.210, 4.211, 4.216

J Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440; [1997] SASC 6370 …. 4.286 Jameel v Dow Jones Inc [2005] EWCA Civ 75 …. 4.36 Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] UKHL 44; [2007] 1 AC 359; [2006] 4 All ER 1279 …. 4.253 — v — [2007] 1 AC 359 …. 3.51 Jeffrey v Giles [2013] VSC 268 …. 4.274 Jeynes v News Magazines Ltd [2008] All ER (D) 285 (Jan); [2008] EWCA Civ 130 …. 4.115 John v MGN Ltd [1997] QB 586; [1996] 2 All ER 35; [1996] 3 WLR 593 …. 4.255

John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; 50 ACSR 380; 148 A Crim R 522; [2004] NSWCA 324 …. 8.148 — v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 …. 4.75 — v Rivkin (2003) 201 ALR 77; [2003] HCA 50 …. 4.116 John Holland Pty Ltd v CFMEU [2013] FCA 615 …. 2.37, 2.39 John Reid Enterprises Ltd v Pell [1999] EMLR 675 …. 3.125 Johns v Australian Securities Commission (1993) 178 CLR 408; 31 ALD 417; 116 ALR 567; [1993] HCA 56 …. 3.129, 3.137, 3.148 Jones v E Hulton & Co (1909) 2 KB 444 …. 4.69 — v Skelton [1964] NSWR 485; [1964] ALR 170; [1963] 3 All ER 952 …. 4.111, 4.115 — v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 …. 4.56, 4.239 — v Toben (2002) 71 ALD 629; [2002] FCA 1150 …. 2.31 Judson v City of Sydney (2008) 172 IR 11; [2008] AIRCFB 289 …. 2.100

K Kalaba v Commonwealth of Australia [2004] FCA 763 …. 3.95 — v — [2004] FCAFC 326 …. 3.95 Kaye v Robertson (1990) 19 IPR 147; [1991] FSR 62 …. 3.41 Kea Petroleum Holdings Limited v McLeod [2014] NZERA Wellington 113 …. 2.77 Kensington v Air New Zealand Ltd [2013] NZERA Auckland 332 …. 2.32 Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 …. 4.31, 4.120 King v Lewis [2004] All ER (D) 234 (Oct); [2004] EWCA Civ 1329 …. 4.63 KNF&T Staffing Inc v Muller 2013 Mass Super Lexis 189 (24 October 2013) …. 2.86 Knight v Gibbs (1834) 1A&E 43 …. 4.135 Knott v Sutherland (Feb 5 2009), Edmonton 0803 02267 (Alta QBM) …. 7.57 Konidaris v Google Australia Pty Ltd [2015] NSWSC 1810 …. 4.93 Koops Martin v Reeves [2006] NSWSC 449 …. 2.92, 2.93 Ku-ring-gai Co-op Building Soc (No 12) Ltd, Re (1978) 22 ALR 621; 36 FLR 134 …. 5.33 Kwok v Thang [1999] NSWSC 1034 …. 3.147

L Labelmakers Group Pty Ltd v LL Force Pty Ltd [2012] FCA 512 …. 2.91 Lamb v Cotogno (1987) 164 CLR 1 …. 3.146

Lambley v DP World Sydney Ltd [2013] FCA 4 …. 2.76 Lange v Australian Broadcasting Corp (1997) 189 CLR 520; 145 ALR 96; 71 ALJR 818; [1997] HCA 25 …. 3.111, 3.112, 3.114, 3.115, 4.23, 4.219, 8.59 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285; [1959] 1 WLR 698 …. 2.45 LCR Mining Group Pty Ltd v CFMEU [2016] FWCFB 400 …. 2.4 Lee v Smith (2007) EOC 93-456; [2007] FMCA 59 …. 2.30 — v Wilson and Mackinnon (1934) 51 CLR 276; [1935] ALR 51 …. 4.27 Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 …. 4.262 Lenah Game Meats Pty Ltd v Australian Broadcasting Corp (1999) 9 Tas R 355; A Def R 53-040; [1999] TASSC 114 …. 3.19 — v — (TASSC, Underwood J, 3 May 1999, unreported) …. 3.19 Lennon v News Group Newspapers Ltd [1978] FSR 573 …. 3.140 Lester v Allied Concrete (Case No CL.08-150, CL09-223, United States Circuit Court, Virginia State, 1 September 2011) …. 7.80 Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151; [1963] 2 WLR 1063 …. 4.115, 4.118, 4.143 Ley v Hamilton (1935) 153 LT 384 …. 4.56, 4.275 Lindner v Murdock’s Garage (1950) 83 CLR 628; [1950] ALR 927 …. 2.92, 2.93 Linfox Australia Pty Ltd v Fair Work Comm [2013] FCAFC 157 …. 2.69 — v Stutsel (2012) 217 IR 52; [2012] FWAFB 7097 …. 2.3, 2.68, 2.69, 2.75, 2.76 Lion Laboratories Ltd v Evans [1985] QB 526 …. 3.142 Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 198 IR 143; [2010] FCA 770 …. 2.47 Little v Credit Corp Group Ltd t/as Credit Corp Group [2013] FWC 9642 …. 2.2, 2.4, 2.19, 2.63, 2.71, 2.75 Littlewoods Organisation Ltd v Harris [1977] 1 WLR 1472 …. 2.92 Liu v The Age Co Ltd (2012) 285 ALR 386; 257 FLR 360; [2012] NSWSC 12 …. 3.113, 4.81 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728; [1986] AC 350; (1985) 63 ALR 83 …. 4.69 Lord Ashburton v Pope (1913) 2 Ch 469 …. 3.116, 3.132 Lord McAlpine v Bercow [2013] EWHC 1342 …. 4.75, 4.77, 4.149, 4.158 Loty and Holloway and the Australian Workers Union, Re [1971] AR (NSW) 95 …. 2.63

M

Madden v Seafolly Pty Ltd [2014] FCAFC 30 …. 5.10, 5.44, 5.79, 5.113 Maher v AJ & MT Properties Pty Ltd [2013] FWC 7853 …. 2.53 Maier v Police [2004] SASC 367 …. 8.22 Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports ¶81–915; [2007] NSWCA 254 …. 4.119 Mallik v McGeown [2008] NSWCA 230 …. 4.133 Malone v Metropolitan Police Commissioner (No 2) [1979] Ch 344; [1979] 2 All ER 620; [1979] 2 WLR 700; (1979) 69 Cr App Rep 168 …. 3.41 Manefield v Childcare Centres (NSW) [2010] NSWSC 1420 …. 4.273 Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 …. 3.137 Marckx v Belgium (1979) 2 EHRR 330 …. 3.43 Marron v State Transit Authority [2016] NSWIRComm 1003 …. 2.73 Mayberry v Kijani Investments Pty Ltd t/as The Dawe Investments Trust Subway Wallsend [2011] FWA 3496 …. 2.74, 2.76 Maynes v Casey [2011] NSWCA 156 …. 3.17, 3.21, 3.95 McCabe v British American Tobacco Australia Services Ltd (2002) VSC 73 …. 7.70, 7.75 McDiarmid v Cmr of Police [2012] NSWIRComm 100 …. 2.3, 2.49, 2.99 McEloney v Massey [2015] WADC 126 …. 4.224, 4.225 McInnes, Re [2014] FWCFB 1440 …. 2.27 McIntyre v Special Broadcasting Services Corporation t/a SBS Corporation [2015] FWC 6768 …. 2.57 McKennitt v Ash [2008] QB 73; [2007] 3 WLR 194; [2006] EWCA Civ 1714 …. 3.41, 3.43, 3.45 McKeogh v John Doe 1 (username Daithii4U) [2012] IEHC 95 …. 4.83, 4.85, 4.292 McLeod v Power (2003) 173 FLR 31; [2003] FMCA 2 …. 2.31 McManus v Scott-Charlton (1996) 70 FCR 16; 140 ALR 625 …. 2.24, 2.25, 2.58 Medical Benefits Fund of Australia Ltd v Cassidy (2003) ATPR 41-971; [2003] FCAFC 289 …. 5.104 Megna v Marshall [2010] NSWSC 686 …. 4.209 Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd (Case No 545 U.S. 913, 920 & n.1, United States Supreme Court, 27 June 2005) …. 6.116, 6.117 Metropolitan International Schools Ltd t/as Skills Train and/or Train2Game v Designtechnica Corp t/as Digital Trends [2009] All ER (D) 263 (Jul); [2011] 1 WLR 1743; [2009] EWHC 1765 (QB) …. 4.95, 4.228 Mickle v Farley [2013] NSWDC 295 …. 4.11, 4.275 Microsoft Corporation v ATIFO Pty Ltd (1997) 38 IPR 643; AIPC 91-336 …. 6.136

— v Goodview Electronics Pty Ltd (2000) 49 IPR 578; (2001) AIPC 91-669; [2000] FCA 1852 …. 6.136 Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 …. 5.34 Milwell Pty Ltd v Olympic Amusements Pty Ltd (1999) 85 FCR 436; 161 ALR 302; 43 IPR 32; [1999] FCA 63 …. 6.135 Minter Ellison (a firm) v Raneberg [2011] SASC 159 …. 3.125 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; 42 ALR 487; [1982] HCA 50 …. 4.140, 4.142, 4.143 Mitchell v HWE Mining Pty Ltd [2012] FWA 2721 …. 2.60, 2.76 MKM Capital Pty Ltd v Corbo (ACTSC, Master Harper, 12 December 2008, unreported) …. 7.46, 7.49, 7.57 Monis v R; Droudis v R (2011) 256 FLR 28; 215 A Crim R 64; [2011] NSWCCA 231 …. 8.62 Monis v R; Droudis v R (2013) 249 CLR 92; 295 ALR 259; 87 ALJR 340; [2013] HCA 4 …. 3.111, 8.62, 8.67, 8.68, 8.69 Moorgate Tobacco Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414; 56 ALR 193; 3 IPR 545; [1984] HCA 73 …. 3.118 Morgan v Odhams Press Ltd [1971] 2 All ER 1156; [1971] 1 WLR 1239 …. 4.68, 4.135 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 …. 4.238 Mothership Music Pty Ltd v Darren Ayre t/as VIP Entertainment & Concepts Pty Ltd (No 2) [2012] NSWDC 111 …. 7.54 Munday v Court (2013) 65 MVR 251 …. 7.91 Mundey v Askin (1982) 2 NSWLR 369 …. 4.184 Munsie v Dowling [2014] NSWSC 458 …. 8.161, 8.165 Mustad & Son v Dosen [1963] 3 All ER 416; [1964] 1 WLR 109 …. 3.137

N N P Generations Pty Ltd t/as L J Hooker v Feneley (2000) 50 IPR 63; [2000] SASC 240 …. 2.81 Naiman Clarke Pty Ltd v Tuccia [2012] NSWSC 314 …. 2.83, 2.91 Naruto v Slater (ND Cal, No 15-CV-04324 28 January 2016) …. 6.26 National Exchange Pty Ltd v Australian Securities and Investment Commission (2004) 49 ACSR 369; [2004] FCAFC 90 …. 5.104 National Roads and Motorists’ Association Ltd v Geeson (2001) 39 ACSR 401; (2002) 20 ACLC 111; [2001] NSWSC 832 …. 3.26 — v — (2001) 40 ACSR 1 …. 3.145

National Union of Workers v Linfox Australia Pty Ltd [2013] FWC 9851 …. 2.38 Ndege v World Gym Sunshine Pty Ltd [2013] FWC 8434 …. 2.56 Nelfelt v Cantina Mobil Pty Ltd [2013] FWC 4668 …. 2.53 New South Wales Country Press Co-Operative Co Ltd v Stewart (1911) 12 CLR 481; 17 ALR 554 …. 4.71 Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] All ER (D) 248 (Jul); (2011) 93 IPR 341; [2011] EWCA Civ 890 …. 6.42, 6.43, 6.46 Nextra Australia Pty Ltd v Fletcher [2014] FCA 399 …. 5.115, 5.117 Nicol v Iacusso (1995) 64 IR 190; 76 WAIG 44 …. 2.32 Norcast S.âr.L v Bradken Ltd (No 2) [2013] FCA 235 …. 5.151 Norman South Pty Ltd & Geoffrey Edlesten v Stacey da Silva [2012] VSC 477 …. 3.134 North v Television Corp Ltd (1976) 11 ALR 599 …. 2.45 North Coast Children’s Home Inc v Martin [2014] NSWDC 125 …. 4.15 Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133; [1973] 2 All ER 943; [1973] 3 WLR 164 …. 3.64, 4.79 Nova Scotia (Public Safety) v Lee 2015 NSSC 71 …. 9.149 NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 …. 3.145

O O’Connor v Outdoor Creations Pty Ltd [2011] FWA 3081 …. 2.56 O’Keefe v William Muir’s Pty Ltd t/as Troy Williams The Good Guys [2011] FWA 5311 …. 2.63, 2.75, 2.76 Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR 281; [2010] FCAFC 21 …. 3.122 Oriental Press Group Limited v Fevaworks Solutions Pty Ltd [2013] HKCFA 47 …. 4.103 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191; ATPR (Digest) 46-223; [2002] FCA 860 …. 5.88 Owens v Barnett [2013] VCC 133 …. 3.125

P P v D [2000] 2 NZLR 591 …. 3.70 Page [2015] FWC 5955 …. 2.26 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 …. 7.65, 7.70 Palmer Bruyn v Parsons (2001) 208 CLR 388; 185 ALR 280; [2001] HCA 69 ….

4.56, 4.275 Papaconstantinos v Holmes à Court [2012] HCA 53 …. 4.209 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; 1A IPR 684; [1982] HCA 44 …. 5.34, 5.35, 5.36, 5.104 Parker v Falkiner (1889) 10 NSWR 7 …. 4.124 Parmiter v Coupland (1840) 6 M&W 105; 151 ER 340 …. 4.133, 4.168 Patrick Stevedores Operations No 2 Pty Ltd v MUA (No 3) (1998) 195 CLR 1; [1998] HCA 30 …. 2.40 Pearson v Linfox Australia Pty Ltd [2014] FWC 446 …. 2.3, 2.18, 2.56 — v — [2014] FWCFB 1870 …. 2.96, 2.98 Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 …. 4.251 Pedley v IPMS Pty Ltd t/as peckvonhartel [2013] FWC 4282 …. 2.45, 2.56 Peninsular Real Estate Ltd v Harris (1992) 2 NZLR 216 …. 2.91 Penna v Lanza [2014] FCCA 278 …. 7.51 People v Harris 36 Misc 3d 613, 945 NYS2d 505 (2012) …. 7.114 Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 …. 4.223 Peterson v Moldofsky (Case No 07-2603-EFM, United States District Court, District of Kansas, 29 September 2009, Melgren J) …. 3.85, 3.91 Petrov v Do [2013] NSWSC 1382 …. 4.263 Phipps v Boardman [1967] 2 AC 46; [1966] 3 All ER 721; [1966] 3 WLR 1009 …. 3.120 Phonedog v Kravitz United States District Court, N.D. California, Case No 1103474, 8 November 2011 …. 2.80 Pier Sixty LLC v Perez and Gonzalez (2015) 362 NLRB 59 …. 2.42, 2.43 Pillay t/as West Corp Mortgage Market v Nine Network Australia Pty Ltd [2002] NSWSC 983 …. 3.129, 3.141 Pioneer Concrete Services Ltd v Galli [1985] VR 675; (1985) 4 IPR 227 …. 5.212, 5.213 Piscioneri v Brisciani [2015] ACTSC 106 …. 4.190, 4.192, 4.225, 4.226 Planet Fitness Pty Ltd v Dunlop [2012] NSWSC 1425 …. 2.86, 2.87 Plato Films Ltd v Speidel [1961] AC 1090; [1961] 1 All ER 876; [1961] 2 WLR 470 …. 4.206 Polias v Ryall [2013] NSWSC 1267 …. 4.186 — v — [2014] NSWSC 1692 …. 4.15 Police v Usmanov [2011] NSWLC 40 …. 8.98, 8.99 Pontigon v Lord, 340 SW 3d 315 (Mo Ct App 2011) …. 4.108 Potter v WorkCover Corp (2004) 133 IR 458 …. 2.55 Powell v Gelston [1916] 2 KB 615 …. 4.27 Pratten v Labour Daily [1926] VLR 115; (1925) 32 ALR 152 …. 4.135

Prefumo v Bradley [2011] WASC 251 …. 4.133, 4.240 Pre-Paid Legal Services Inc v Cahill 924 F.Supp.2d 1281 (2013) …. 2.86 Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171 …. 3.109, 3.117 — v — (1849) 2 De G & Sm 652; 13 Jur 45; 64 ER 293 …. 3.41, 3.117, 3.129, 3.138 Pulman v Hill & Co Ltd [1891] 1 QB 524 …. 4.35

R R v Broadcasting Standards Comm [2000] EWCA 59; [2001] QB 885; [2000] 3 All ER 989; [2000] 3 WLR 1327 …. 3.10 — v Caffrey (Southwark Crown Court, UK, 17 October 2003, unreported) …. 7.35 — v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601; 12 ALJR 172 …. 2.17 — v Dept of Health; Ex parte Source Informatics Ltd [2001] QB 424; [2000] 1 All ER 786; [2000] 2 WLR 940 …. 3.119, 3.120 — v Dimech (County Court of Victoria, Jenkins J, 29 April 2010, unreported) …. 8.20 — v Dunbabin; Ex parte Williams (1935) 53 CLR 434; [1935] ALR 232; (1935) 9 ALJR 74 …. 8.165 — v Dyment [1988] 2 SCR 417 …. 3.10 — v Hampson [2011] QCA 132 …. 8.29, 8.32 — v Laws (2000) 50 NSWLR 96; [2000] NSWSC 880; …. 2.87 — v Ogawa [2011] 2 Qd R 350; [2009] QCA 307 …. 8.21, 8.77 — v Rogerson; R v McNamara (No 14) [2015] NSWSC 1157 …. 7.156 — v Stephens [2009] VCC 696 …. 8.19 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606; [2009] HCA 16 …. 4.110, 4.126 Rana v Google Australia Pty Ltd [2013] FCA 60 …. 4.89, 4.94, 4.96, 4.240 Rani v Limitless Ventures Toscas Pty Ltd t/as Toscanis Mackay [2015] FWC 6429 …. 2.66 Rankin v Marine Power Int Pty Ltd (2001) 107 IR 117; [2001] VSC 150 …. 2.44 Rantzen v Mirror Group Newspapers Ltd [1994] QB 670; [1993] 4 All ER 975 …. 4.256 Ratcliffe v Evans [1892] 2 QB 524; [1891–4] All ER Rep 699 …. 4.253 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417; [1982] HCA 4 …. 4.124 Recall Information Management Pty Ltd v National Union of Workers [2013]

FCA 161 …. 2.37 Representative Claimants v MGN Ltd [2015] EWCA Civ 1291; [2015] WLR(D) 535 …. 3.55 Restifa v Pallotta [2009] NSWSC 958 …. 4.37 Richardson v Facebook UK Ltd; Richardson v Google (UK) Ltd [2015] EWHC 3154 …. 4.89 — v Oracle Corp Australia Pty Ltd [2013] FCA 102 …. 2.98 Richardson Pacific Ltd v Fielding (1990) 26 FCR 188 …. 7.147 Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66 …. 2.46 Robb v Green [1895] 2 QB 315 …. 2.20 Robert Half International Inc v Ainsworth 2014 WL 7272405 (SD Cal 17 December 2014) …. 2.89 Roberts v Bass (2002) 212 CLR 1; 194 ALR 161; [2002] HCA 57 …. 4.218 — v VIEW Launceston Pty Ltd [2015] FWC 6556 …. 2.28 Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449; [1999] FCA 1019 …. 5.112 Rodriguez v DPP (Cth) [2013] VSCA 216 …. 8.26 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4; 42 WN (NSW) 3 …. 4.195 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184; [2003] HCA 52 …. 4.255, 4.262 — v Television New Zealand Ltd [2007] NZSC 91 …. 3.71 Rolls v Miller (1884) 27 Ch d 71 …. 5.212 Rose v Telstra Corp Ltd [1998] AIRC 1592 …. 2.59

S Saad v Chubb Security Australia Pty Ltd [2012] NSWSC 1183 …. 3.80, 3.127 Sadgrove v Hole [1901] 2 KB 1 …. 4.68 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413; (1948) 65 RPC 203 …. 3.118, 3.121, 3.129, 3.137 Sands v South Australia [2013] SASC 44 …. 3.95 Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49; 23 ALR 154; [1917] HCA 14 …. 6.41 SAP Australia Pty Ltd v Sapient Australia Pty Ltd (1999) 169 ALR 1; [1999] FCA 1821 …. 5.97, 5.103, 5.104 Seafolly v Madden (2012) 297 ALR 337; 98 IPR 389; [2012] FCA 1346 …. 5.10, 5.32, 5.78, 5.80, 5.89, 5.111, 5.118, 5.119, 5.120, 5.182 Seager v Copydex Ltd [1967] 2 All ER 415; [1967] 1 WLR 923; [1967] RPC 349

…. 3.118 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 …. 2.54 Senior v Police [2013] NZFLR 356 …. 2.3 Setka v Abbott [2014] VSCA 287 …. 4.207 Sims v Wran (1984) 1 NSWLR 317 …. 4.74 Slim v Daily Telegraph Ltd [1968] 2 QB 157; [1968] 1 All ER 497; [1968] 2 WLR 599 …. 4.122 Smith v ADVFN Plc [2008] All ER (D) 335 (Jul); [2008] EWHC 1797 (QB) …. 4.117, 4.188, 4.240, 4.241 — v Anderson (1880) 15 Ch D 247 …. 5.213 — v Elliot [2007] ACTSC 65 …. 8.24 — v Lucht [2015] QDC 289 …. 4.179, 4.238 Smith Kline & Kline French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Department of Community Services (1990) 22 FCR 73; 95 ALR 87; 17 IPR 545 …. 3.49, 3.114, 3.116, 3.122, 3.123, 3.132, 3.133, 3.144, 3.145 Smith t/as Escape Hair Design v Fitzgerald [2011] FWAFB 1422 …. 2.60 Snell v Pryce (1990) 99 FLR 213 …. 3.123 Sony Music Entertainment (Aust) Ltd v University of Tasmania [2003] FCA 724 …. 7.65, 7.84 South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402; [2005] FCAFC 130 …. 2.29 Spautz v Williams [1983] 2 NSWLR 506 …. 8.85 Speed Seal Products v Paddington [1986] 1 All ER 91 …. 3.137, 3.138 Speight v Gosnay (1891) 55 JP 501; 60 LJQB 231; 7 TLR 239 …. 4.74 Stacks Taree v Marshall (No 2) [2010] NSWSC 77 …. 2.93 Starkey v DPP (Cth) [2013] QDC 124 …. 8.64, 8.68, 8.70 Starr v Department of Human Services [2016] FWC 1460 …. 2.49, 2.52, 2.65, 2.75, 2.76 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 …. 4.68 Stephens v Avery [1988] Ch 449; (1988) 11 IPR 439; [1988] 2 All ER 477; [1988] 2 WLR 1280 …. 3.125 Streetscape Projects (Australia) Pty Ltd v City of Sydney (2013) 295 ALR 760; 92 ACSR 417; [2013] NSWCA 2 …. 3.122 Stutsel v Linfox Aust Pty Ltd (2011) 217 IR 28; [2011] FWA 8444 …. 2.41, 2.68, 2.76, 2.99 Sullivan v Sclanders & Goldwell Int Pty Ltd (2000) 77 SASR 419; 210 LSJS 135; [2000] SASC 273 …. 3.123, 3.125, 3.144, 3.145 Sutherland v Stopes [1925] AC 47; [1924] All ER Rep 19 …. 4.195 Sweeney v Astle [1923] NZLR 1198 …. 2.87

T Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 …. 5.97, 5.103 Taiapa v Te Runanga O Turanganuni A Kiwa Trust t/as Turanga Ararau Private Trading Establishment [2013] NZEmpC 38 …. 2.32 Tamiz v Google Inc [2013] All ER (D) 163 (Feb); [2013] 1 WLR 2151; [2013] EWCA Civ 68 …. 4.97, 4.229, 4.230, 4.247 — v Google Inc and Google UK Ltd [2012] All ER (D) 14 (Mar); [2012] EWHC 449 (QB) …. 4.89 Tate v Duncan-Strelec [2013] NSWSC 1446 …. 4.287 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 …. 3.2 — v Ilvariy Pty Ltd (2008) 71 NSWLR 323; [2008] NSWCA 9 …. 3.2 — v Network Ten Pty Ltd (2002) 118 FCR 417; 190 ALR 468; 55 IPR 112; [2002] FCAFC 146 …. 6.60, 6.61 Telstra Corporation Ltd and Privacy Commissioner [2015] AATA 991 …. 3.168 Terry v Persons Unknown [2010] EWHC 119 …. 4.84 Theakston v MGN Ltd [2002] All ER (D) 182 (Feb); [2002] EWHC 137 (QB) …. 3.52, 3.125 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1; [1996] HCA 38 …. 4.57, 4.103 Tipto Pty Ltd v Yuen [2015] NSWSC 1086 …. 2.88 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; 111 ALR 61; 24 IPR 529; [1992] FCA 630 …. 5.88, 5.98 Tournier v National Provincial and Union Bank of England Ltd [1923] All ER Rep 550; [1924] 1 KB 461 …. 4.133 Town Investments Ltd v Dept of Environment [1978] AC 359 …. 5.212 TPG Internet Pty Ltd v ACCC (2012) 210 FCR 277; [2012] FCAFC 190 …. 5.39 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 …. 5.67 — v Email Ltd (1980) 31 ALR 53 …. 5.150 — v Optus Communications Pty Ltd (1996) 64 FCR 326 …. 5.104 Triggell v Pheeney (1951) 82 CLR 497; [1951] ALR 453 …. 4.279 Triple Play v National Labor Relations Board 14-3284(L) (2d Cir. Oct. 21, 2015) …. 2.66 Triple Play Sports Bar and Grille (2014) 361 NLRB No 31 …. 2.66 Trkulja v Google Inc [2015] VSC 635 …. 4.102, 4.103 — v Google Inc LLC (No 2) [2010] VSC 490 …. 4.95, 4.231

— v — (No 5) [2012] VSC 533 …. 4.96, 4.100, 4.235, 4.268 — v Yahoo! Inc LLC [2012] VSC 88 …. 4.264 Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 …. 3.70 Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627; ASC 55-709 …. 5.119

U Universal Communication Network Inc v Chinese Media Group (Aust) Pty Ltd (2008) Aust Torts Reports ¶81–932; [2008] NSWCA 1 …. 4.68 Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1; 65 IPR 409; [2005] FCA 972 …. 5.117, 6.110 Urbanchich v Drummoyne Municipal Council (1988) A Def R 50–035; (1991) Australian Torts Reports 81-127 …. 4.72 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1967] ALR 25 …. 4.255 Usmanov v R [2012] NSWDC 290 …. 8.99

V Vassiliev v Frank Cass & Co Ltd [2002] All ER (D) 94 (May); [2003] EMLR 761; [2003] EWHC 1428 (QB) …. 4.217 Venables and Thompson v New Group Newspapers Ltd [2001] 1 All ER 908; [2001] 2 WLR 1038; [2001] Fam 430 …. 3.149 Vergara v Ewin [2014] FCAFC 100 …. 2.30 Viacom International Inc v Youtube Inc (Case No 718 F.Supp.2d 514, United States District Court, Southern District of New York, 23 June 2010) …. 6.163 Vickery v Nova Scotia Supreme Court (Prothonotary) [1991] 1 SCR 671; (1991) 64 CCC (3d) 65 …. 3.10 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; [1937] ALR 597; (1937) 11 ALJR 197; 1A IPR 308 …. 3.17, 3.18, 3.21, 3.95, 3.202 Victoria University of Technology v Wilson (2004) 60 IPR 392; [2004] VSC 33 …. 2.91 Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2012] FCA 149 …. 2.39 von Marburg v Aldred [2015] VSC 467 …. 4.106

W

W v Egdell [1990] Ch 359; (1989) 17 IPR 646; [1990] 1 All ER 835; [1990] 2 WLR 471 …. 3.125 Wai Fun Chan, Re [2015] NSWSC 1107 …. 7.65 Wainwright v Home Office [2003] All ER (D) 279 (Oct); [2003] UKHL 53; [2004] 2 AC 406; [2003] 4 All ER 969 …. 3.41 Waterhouse v The Age Co Ltd [2011] NSWSC 159 …. 4.31, 4.50, 4.51, 4.53 — v Gilmore (1988) 12 NSWLR 270 …. 8.85 Webb v Bloch (1928) 41 CLR 331; 2 ALJR 282 …. 4.71, 4.100 Weinert v DPP (Cth) [1999] SASC 34 …. 8.23 West Australian Newspapers Ltd v Bond [2009] WASCA 127 …. 3.141, 3.144 — v Elliott (2008) 37 WAR 387; 250 ALR 363; [2008] WASCA 172 …. 4.143 Western v Union Des Assurances De Paris (1996) 88 IR 259 …. 2.47 Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 …. 3.144 Wilden (Dec’d), In the Estate of [2015] SASC 9 …. 7.65 Wilkinson-Reed v Launtoy Pty Ltd t/as Launceston Toyota [2014] FWC 644 …. 2.73, 2.75 Williams v Spautz (1992) 174 CLR 509; 107 ALR 635; 66 ALJR 585; [1992] HCA 34 …. 8.85 Wilson v Ferguson [2015] WASC 15 …. 3.128, 3.135, 3.136, 3.145, 3.147 Winship v Corporation of the Town of Walkerville [2015] SAIRComm 9 …. 2.72, 2.75 Woodward v Hutchins [1977] 1 WLR 760 …. 3.144 Woolworths Ltd v Mark Konrad Olson [2004] NSWCA 372 …. 2.92 Woolworths Ltd (t/as Safeway) v Brown (2005) 145 IR 285 …. 2.15 Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1; 86 ALJR 246; [2012] HCA 2 …. 3.111 Wyatt v Wilson (1820, unreported) …. 3.125

X X v Y (1987) 13 IPR 202; [1988] 2 All ER 648 …. 3.125 X and Y v Netherlands (1985) 8 EHRR 235 …. 3.43

Y Y v W (2007) 70 NSWLR 377; [2007] NSWCA 329 …. 8.83, 8.164 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 …. 5.36, 5.74 Youssoupoff v Metro-Goldwyn-Maher Pictures Ltd (1934) 50 TLR 581 …. 4.133

Yu, Re [2013] QSC 322 …. 7.65

Z ZAM v CFW [2013] EWHC 662 (QB) …. 4.271, 4.291, 4.292 Zimmerman v Weis Markets Inc (Case No CV-09-1535, United States Court of Common Pleas, Northumberland County, Pennsylvania, Saylor J, 19 May 2011) …. 7.116 Ziogas v Telstra Corp Ltd (2010) 195 IR 286; [2010] FWAFB 2664 …. 2.56

Table of Statutes References are to paragraphs

Commonwealth Age Discrimination Act 1992 s 18(1) …. 2.7 Australian Capital Territory Government Service (Consequential Provisions) Act 1994 …. 3.154 Australian Consumer Law …. 1.92, 5.10, 5.15–5.18, 5.20, 5.23, 5.27, 5.37, 5.38, 5.40, 5.43, 5.44, 5.100, 5.109, 5.121, 5.137, 5.182, 5.194, 5.210, 5.214 s 2 …. 5.30 s 2(2)(a) …. 5.28 s 18 …. 5.23, 5.24, 5.26, 5.79, 5.98, 5.100, 5.113, 5.115, 5.118, 5.119, 5.131 s 29 …. 5.25, 5.26, 5.98, 5.119, 5.131 s 29(1)(i) …. 5.100 s 29(l)(m) …. 5.100 s 47 …. 5.41 s 47(2)(e) …. 5.40 s 48 …. 5.38, 5.129, 5.131 s 223 …. 5.194 Australian Human Rights Commission Act 1986 s 46PO(4) …. 2.9 Australian Information Commissioner Act 2010 …. 3.184 Australian Securities and Investments Commission Act 2001 …. 5.17 Broadcasting Services Act 1992 …. 4.236, 8.117 Sch 5 cl 3 …. 3.38 Sch 5 cl 8 …. 3.38 Sch 5 cl 91 …. 3.38, 4.232, 4.236 Broadcasting Services Online Services Amendment Act 1999 …. 8.119

Competition and Consumer Act 2010 …. 2.16, 5.8, 5.13, 5.33, 5.67, 5.96, 5.109, 5.119, 5.136, 5.137, 5.142, 5.148, 5.166, 5.172, 5.183, 5.184, 5.191, 5.194–5.196, 5.199, 5.200, 5.209, 5.210, 5.214, 5.220 s 2 …. 5.8, 5.136, 5.137 s 4 …. 5.31 s 4(2) …. 5.109 s 5 …. 5.15, 5.209, 5.214 s 18 …. 5.36 s 29 …. 5.119 s 44ZZRD …. 5.141, 5.151 s 44ZZRD(2) …. 5.153 s 44ZZRF …. 5.141, 5.142, 5.210 s 44ZZRG …. 5.141, 5.142, 5.210 s 44ZZRJ …. 5.141, 5.142, 5.210 s 44ZZRK …. 5.141, 5.142, 5.210 s 45D …. 2.37 s 46 …. 5.157, 5.158 s 53 …. 5.98 s 76 …. 5.171 s 155 …. 5.183, 5.196 Sch 2 …. 5.10 Constitution …. 3.108, 3.111, 8.59, 8.173 s 51(i) …. 5.118 s 51(v) …. 8.10 Copyright Act 1968 …. 1.35, 6.5, 6.7, 6.9–6.11, 6.15–6.17, 6.32, 6.55, 6.56, 6.59, 6.60, 6.67, 6.71, 6.126, 6.128, 6.141, 6.143, 6.157, 6.174 s 10(1) …. 6.31, 6.73 s 13 …. 6.57 s 22 …. 6.20 s 22(3) …. 6.20 s 22(3A)–(3B) …. 6.20 s 22(4) …. 6.20 s 22(5) …. 6.20 s 32 …. 6.11, 6.32 s 35(2) …. 6.15 s 35(4) …. 6.15 s 35(5) …. 6.15 s 35(6) …. 6.15 s 36HA) …. 6.143

s 40 …. 6.59 s 41 …. 6.59 s 41A …. 6.59 s 42 …. 6.59 s 43 …. 7.157 s 89 …. 6.11 s 90 …. 6.11 s 91 …. 6.11 s 92 …. 6.11 s 97(2) …. 6.15 s 97(3) …. 6.15 s 98(3) …. 6.15 s 98(4)–(6) …. 6.15 s 101(1A) …. 6.110, 6.143 s 115 …. 6.128 s 115(3) …. 6.133 s 115(4) …. 6.136 s 134 …. 6.129 s 176 …. 6.15 s 177 …. 6.15 s 178 …. 6.15 s 187 …. 6.15 s 188 …. 6.15 s 194 …. 6.53 s 195 …. 6.53 ss 195AD–195AH …. 6.53 ss 195AJ–195AL …. 6.53 s 196 …. 6.27, 6.50 s 196(1) …. 6.28 s 196(2) …. 6.30 s 196(3) …. 6.31 s 196(4) …. 6.72 s 197 …. 6.15 Corporations Act 2001 …. 2.20, 5.17 ss 180–184 …. 2.20 ss 1317AA–1317AC …. 2.56 Crimes Act 1914 s 4AA …. 3.193 s 474.17 …. 1.106

Criminal Code 1995 …. 8.12, 8.21, 8.34, 8.56, 8.73, 8.119, 8.126, 8.140 Pt 9.5 …. 8.143 Pt 10.8 …. 8.140 Div 474 Subdiv F ss 474.25A–474.29 …. 8.135 s 80.2(1) …. 8.56 s 80.2(3) …. 8.56 s 80.2(5) …. 8.56 s 80.3(1) …. 8.58 s 370.1 …. 8.144 s 372.1 …. 8.143 s 372.2 …. 8.143 s 372.3 …. 8.143 s 473.1 …. 8.122, 8.131 s 474.15(1) …. 8.73, 8.174 s 474.15(3) …. 8.73 s 474.17 …. 8.18, 8.21, 8.22, 8.38, 8.63, 8.67, 8.68, 8.100, 8.174 s 474.17(1)(b) …. 8.34 s 474.19 …. 8.121, 8.124, 8.125 ss 474.19–474.24C …. 8.119 s 474.20 …. 8.124, 8.125, 8.132 s 474.21 …. 8.125 s 474.22 …. 8.131, 8.132 s 474.23 …. 8.132 s 474.24 …. 8.133 ss 474.24D–474.24J …. 8.100 s 474.25 …. 8.134 s 480.1 …. 8.140 s 480.4 …. 8.140 s 747.17 …. 8.28 Criminal Code Act 1995 …. 8.12, 8.17 s 471.12 …. 8.60 Sch …. 8.18, 8.21, 8.34, 8.56, 8.73, 8.119, 8.140 Cybercrime Act 2001 …. 8.11, 8.12 Cybercrime Legislation Amendment Act 2012 …. 8.14 Disability Discrimination Act 1992 s 15(1) …. 2.7 Electronic Transactions Act 1999 s 8 …. 7.64

Evidence Act 1995 …. 7.64 s 53 …. 7.69 ss 76–79 …. 7.62 Dictionary …. 7.64 Dictionary Pt 2 cl 8 …. 7.64 Fair Work Act 2009 …. 2.12, 2.21, 2.27, 2.35, 2.36, 2.64 Pt 3-1 …. 2.8, 2.40 Pt 3-2 …. 2.53 s 26 …. 2.4 s 27(2)(m) …. 2.21 s 107(3) …. 2.32 s 193 …. 2.35 s 236 …. 2.36 s 340 …. 2.8 s 340(1)(a) …. 2.40 s 341(1)(a) …. 2.40 s 341C0(b) …. 2.40 s 341(1)(c) …. 2.40 s 342(1) item 1 …. 2.40 s 346 …. 2.8 s 346(b) …. 2.40 s 347(a) …. 2.40 s 347(b)(ii) …. 2.40 s 347(b)(iii) …. 2.40 s 347(b)(v) …. 2.40 s 347(c) …. 2.40 s 347(d) …. 2.40 s 351(1) …. 2.8, 2.51 s 360 …. 2.40 s 381(2) …. 2.63 s 385(b) …. 2.54 s 386(1) …. 2.53 s 387 …. 2.54 s 390(1) …. 2.53 s 392(3) …. 2.70 s 392(5) …. 2.53 s 789FC(1) …. 2.27 s 789FD …. 2.27 s 789FE …. 2.27

Federal Court of Australia Act 1976 s 31 …. 7.74 Federal Court Rules 2011 Pt 10 …. 7.58 Pt 42 …. 7.74 r 7.22 …. 7.138, 7.143 r 7.23 …. 7.143 r 10.23 …. 7.40 r 10.46 …. 7.107 r 14.11 …. 7.71 r 20.14 …. 7.97 r 20.13 …. 7.146 r 20.31 …. 7.134 Sch 1 …. 7.64 Income Tax Assessment Act 1936 s 102AG …. 9.14 Income Tax Assessment Act 1997 Div 128 …. 9.14 Privacy Act 1988 …. 1.84, 1.87, 2.11, 2.12, 3.2, 3.6, 3.14, 3.153–3.158, 3.161–3.164, 3.168–3.170, 3.184, 3.187, 3.194, 3.196–3.200, 3.203 Pt IV …. 3.184 Pt IV Div 3A …. 3.186 Pt V …. 3.184, 3.189 s 3 …. 3.154 s 2A …. 3.155 s 5B …. 3.162 s 5B(2) …. 3.163 s 5B(3) …. 3.163 s 6 …. 3.165, 3.166 s 6(1) …. 3.168 s 6C …. 2.12 s 6C(1) …. 3.157, 3.158 s 6D …. 2.12, 3.158 s 6D(4)(c)–(d) …. 3.159 s 6D(6) …. 3.159 s 6D(7)–(8) …. 3.159 s 7B(1) …. 3.158 s 7B(3) …. 2.11 s 7B(4) …. 3.158

ss 13-13F …. 3.184 s 13(1) …. 3.184 s 13(2)–(5) …. 3.184 s 13B …. 3.184 s 13G …. 3.193 s 15 …. 2.11 s 16 …. 3.158 ss 16A-16B …. 3.173, 3.176 s 33E …. 3.187 s 33F …. 3.188 s 36A …. 3.190 s 42 …. 3.190 ss 44–47 …. 3.190 s 50 …. 3.190 s 52(1A) …. 3.191 s 80W …. 3.194 Privacy Amendment (Enhancing Privacy Protection) Act 2012 …. 3.156 s 2 …. 3.156 Privacy Regulation 2013 …. 3.156 Public Service Act 1999 …. 2.51 s 10(5) …. 2.50, 2.52 s 13 …. 2.50 Racial Discrimination Act 1975 …. 2.31 s 9 …. 2.7 s 18C …. 2.31 Sex Discrimination Act 1984 …. 2.29 s 14(1) …. 2.7 s 28A(1) …. 2.29 s 106 …. 2.29 Telecommunications Act 1997 …. 3.38 s 7 …. 8.120 Telecommunications (Interception and Access) Act 1979 …. 3.168, 8.102 s 5 …. 8.106 s 5(1) …. 8.103 s 5F …. 8.104 s 5H …. 8.104 s 6AA …. 8.107 s 7 …. 4.57 s 7(1) …. 8.102

s 108(1) …. 8.106 s 187A(1) …. 3.168 Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 …. 8.167, 8.168, 8.169 s 187LA …. 3.168 Trade Practices Act 1974 …. 5.16, 5.172 s 4 …. 5.31 s 45 …. 5.151 s 52 …. 5.23, 5.35, 5.36, 5.69, 5.72, 5.88, 5.98 s 53C …. 5.98 Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 …. 5.191 Work Health and Safety Act 2011 …. 2.25, 2.27 s 7 …. 2.27 s 19 …. 2.25 s 19(1) …. 2.25 s 28 …. 2.25

Australian Capital Territory Civil Law (Wrongs) Act 2002 …. 4.4 Court Procedure Rules 2006 Div 6.8.9 …. 7.58 r 21 …. 7.97 r 620 …. 7.134 r 650(5) …. 7.146 r 650(6) …. 7.146 r 650(7) …. 7.146 r 651 …. 7.143 r 751 …. 7.71 r 6460 …. 7.40 r 6509 …. 7.107 Crimes Act 1900 s 35 …. 8.89 s 35(a)(i) …. 8.174 s 35(a)(ii) …. 8.174 s 35(b) …. 8.174 s 43 …. 8.174 s 439 …. 8.84

Criminal Code 2002 s 342 …. 8.174 Family Provision Act 1969 s 8(3)(a) …. 9.153 s 8(3)(k) …. 9.153 Guardianship and Management of Property Act 1991 s 8 …. 9.106 Powers of Attorney Act 2006 s 8 …. 9.4

New South Wales Civil Procedure Act 2005 s 56 …. 7.97, 7.101 s 61 …. 7.74 s 131 …. 7.74 Court Security Act 2005 s 9A …. 8.166 Court Security Regulation 2011 reg 6B …. 8.166 Crimes Act 1900 …. 8.129 s 61N(1) …. 8.129 s 99 …. 8.82, 8.174 s 249K …. 8.80, 8.174 s 529(1) …. 8.84, 8.174 s 529(7) …. 8.85 s 578C …. 8.98, 8.100, 8.174 Crimes Amendment (Fraud) Identity and Forgery Offences Act 2009 …. 8.145 Crimes (Domestic and Personal Violence) Act 2007 s 13 …. 8.89, 8.174 Defamation Act 2005 …. 4.4, 4.65, 4.70, 4.249, 4.260, 4.264 Pt 3 …. 4.250 s 3(d) …. 4.249 s 7(1) …. 4.7 s 9 …. 3.25 s 9(1) …. 4.70 s 11 …. 4.65 s 20 …. 4.283 s 22(3) …. 4.260

s 25 …. 4.195 s 26 …. 4.202 s 27 …. 4.208 s 29 …. 4.222 s 30 …. 4.220 s 31 …. 4.223 s 32 …. 4.232 s 32(1) …. 4.233 s 32(2) …. 4.234 s 33 …. 4.237 s 34 …. 4.261 s 35(1) …. 4.20, 4.257 s 35(2) …. 4.278 s 37 …. 4.281 s 38 …. 4.282 s 38(1) …. 4.283 Electronic Transactions Act 2000 s 7 …. 7.64 Evidence Act 1995 …. 7.64 s 53 …. 7.69 ss 59–61 …. 7.92 Interpretation Act 1987 …. 7.64 Jury Act 1977 s 68B …. 8.151 Legal Profession Regulations 2005 r 177(1) …. 7.76 r 177(2) …. 7.76 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 28 …. 7.156 r 31 …. 7.155 Limitation Act 1969 s 14B …. 4.26, 4.67, 4.248 s 56A …. 4.26, 4.248 NSW Trustee and Guardian Act 2009 s 41 …. 9.106 Powers of Attorney Act 2003 s 19(1) …. 9.4 Privacy and Personal Information Protection Act 1998 …. 3.2, 3.153 Succession Act 2006

s 60(2)(m) …. 9.153 s 60(2)(n) …. 9.153 Uniform Civil Procedure Rules 2005 …. 7.64 Pt II …. 7.58 Pt IIA …. 7.58 r 5.2 …. 4.81, 7.138 r 5.3 …. 7.143 r 5.4 …. 7.146 r 10.14 …. 7.41 r 10.21 …. 7.40 r 11.21 …. 7.107 r 21.1 …. 7.99 r 21.2 …. 7.99 r 21.4 …. 7.78 r 21.10 …. 7.134 r 25.19 …. 7.71 r 31.10 …. 7.91 Uniform Civil Procedure Rules 2006 r 10.20 …. 7.40 Workplace Surveillance Act 2005 …. 2.21, 2.22 s 17(4) …. 2.22

Northern Territory Advance Personal Planning Act 2013 …. 9.4 Aged and Infirm Persons’ Property Act s 11 …. 9.106 Criminal Code Act 1983 Div 7 s 204 …. 8.84, 8.174 s 189 …. 8.89 s 189(2)(a) …. 8.174 s 189(2)(b)(i) …. 8.174 s 189(2)(b)(ii) …. 8.174 s 204 …. 8.87 s 205 …. 8.174 s 228 …. 8.174 Defamation Act 2006 …. 4.4 Family Provision Act s 8(3) …. 9.153

Information Act 2002 …. 3.2, 3.153 Supreme Court Rules r 1.10 …. 7.97 r 6.09 …. 7.40 r 7.01 …. 7.58 r 7.05 …. 7.107 r 32.07 …. 7.146 r 35.08 …. 7.134 r 37B.02 …. 7.71

Queensland Criminal Code 1899 s 359E(2) …. 8.174 s 359E(3)(a) …. 8.174 s 359E(3)(b) …. 8.174 s 365 …. 8.84, 8.174 s 408D …. 8.145 s 415 …. 8.174 s 415(a) …. 8.174 s 415(b) …. 8.174 s 415(c) …. 8.174 Criminal Code 1995 s 359A …. 8.89 Defamation Act 2005 …. 4.4, 4.65, 4.70, 4.249, 4.260, 4.264 Pt 3 …. 4.250 s 3(d) …. 4.249 s 7(1) …. 4.7 s 9(1) …. 4.70 s 11 …. 4.65 s 20 …. 4.283 s 22(3) …. 4.260 s 25 …. 4.195 s 26 …. 4.202 s 27 …. 4.208 s 29 …. 4.222 s 30 …. 4.220 s 31 …. 4.223 s 32 …. 4.232

s 32(1) …. 4.233 s 32(2) …. 4.234 s 33 …. 4.181, 4.237 s 34 …. 4.261 s 35(1) …. 4.20, 4.257 s 35(2) …. 4.278 s 37 …. 4.281 s 38 …. 4.282 s 38(1) …. 4.283 Guardianship and Administration Act 2000 s 8 …. 9.106 Information Privacy Act 2009 …. 3.2, 3.153 Powers of Attorney Act 1998 s 32 …. 9.4 Right to Information Act 2009 …. 3.2, 3.153 Succession Act 1981 s 41(2)(c) …. 9.153 Uniform Civil Procedure Rules 1999 Ch 4 Pt 7 …. 7.58 r 5 …. 7.97 r 116 …. 7.40 r 129 …. 7.107 r 222 …. 7.134 rr 243–249 …. 7.146 r 261A …. 7.71

South Australia Criminal Law Consolidation Act 1935 s 19AA …. 8.89, 8.174 s 144B …. 8.145 s 172 …. 8.174 s 257 …. 8.84, 8.174 Defamation Act 2005 …. 4.4, 4.65, 4.70, 4.249, 4.260, 4.264 Pt 3 …. 4.250 s 3(d) …. 4.249 s 7(1) …. 4.7 s 9(1) …. 4.70 s 11 …. 4.65

s 20 …. 4.283 s 22(3) …. 4.260 s 25 …. 4.195 s 26 …. 4.202 s 27 …. 4.208 s 29 …. 4.222 s 30 …. 4.220 s 31 …. 4.223 s 32 …. 4.232 s 32(1) …. 4.233 s 32(2) …. 4.234 s 33 …. 4.237 s 34 …. 4.261 s 35(1) …. 4.20, 4.257 s 35(2) …. 4.278 s 37 …. 4.281 s 38 …. 4.282 s 38(1) …. 4.283 Electronic Transactions Act 2000 s 7 …. 7.64 Guardianship and Administration Act 1993 s 35 …. 9.106 Inheritance (Family Provision) Act 1972 s 7(3) …. 9.153 Summary Offences Act 1953 s 26C …. 8.100 s 26D …. 8.100 Summary Offences Act 1958 s 26C(1) …. 8.174 Supreme Court Civil Rules 2006 r 41 …. 7.58, 7.107 r 66 …. 7.40 r 113 …. 7.97 r 140 …. 7.134 r 146 …. 7.146 r 148 …. 7.71

Tasmania

Criminal Code Act 1924 s 192 …. 8.89, 8.174 s 196 …. 8.84, 8.174 s 241 …. 8.174 s 389 …. 8.174 Defamation Act 2005 …. 4.4, 4.65, 4.70, 4.249, 4.260, 4.264 Pt 3 …. 4.250 s 3(d) …. 4.249 s 7(1) …. 4.7 s 9(1) …. 4.70 s 11 …. 4.65 s 20 …. 4.283 s 22(3) …. 4.260 s 25 …. 4.195 s 26 …. 4.202 s 27 …. 4.208 s 29 …. 4.222 s 30 …. 4.220 s 31 …. 4.223 s 32 …. 4.232 s 32(1) …. 4.233 s 32(2) …. 4.234 s 33 …. 4.237 s 34 …. 4.261 s 35(1) …. 4.20, 4.257 s 35(2) …. 4.278 s 37 …. 4.281 s 38 …. 4.282 s 38(1) …. 4.283 Guardianship and Administration Act 1995 s 51 …. 9.106 Personal Information and Protection Act 2004 …. 3.2, 3.153 Powers of Attorney Act 2000 s 30 …. 9.4 s 31 …. 9.4 Supreme Court Rules 2000 r 133 …. 7.40 r 147A …. 7.58, 7.107 r 391 …. 7.134

r 403C …. 7.143 r 403E …. 7.146 r 414A …. 7.97 r 937J …. 7.71 Testator’s Family Maintenance Act 1912 s 8(1) …. 9.153

Victoria Administration and Probate Act 1958 s 91A(k) …. 9.153 Civil Procedure Act 2010 s 7 …. 7.97 Crimes Act 1958 s 10 …. 8.84 s 21A(1) …. 8.174 s 21A(2)(b) …. 8.89 s 27 …. 8.174 s 28 …. 8.174 s 87 …. 8.80, 8.174 Crimes Amendment (Identity Crime) Act 2009 …. 8.145 Crimes (Stalking and Family Violence) Act 2003 …. 8.89 Defamation Act 2005 …. 4.4, 4.65, 4.70, 4.249, 4.260, 4.264 Pt 3 …. 4.250 s 3(d) …. 4.249 s 7(1) …. 4.7 s 9(1) …. 4.70 s 11 …. 4.65 s 20 …. 4.283 s 22(3) …. 4.260 s 25 …. 4.195 s 26 …. 4.202 s 27 …. 4.208 s 29 …. 4.222 s 30 …. 4.220 s 31 …. 4.223 s 32 …. 4.232 s 32(1) …. 4.233 s 32(2) …. 4.234

s 33 …. 4.237 s 34 …. 4.261 s 35(1) …. 4.20, 4.257 s 35(2) …. 4.278 s 37 …. 4.281 s 38 …. 4.282 s 38(1) …. 4.283 Electronic Transactions (Victoria) Act 2000 s 7 …. 7.64 Evidence Act 2008 s 53 …. 7.69 Guardianship and Administration Act 1986 s 46 …. 9.106 Information Privacy Act 2000 …. 3.2, 3.153 Judicial Proceedings Reports Act 1958 …. 3.35 s 4(1) …. 3.31 Powers of Attorney Act 2014 s 22 …. 9.4 Summary Offences Act 1966 s 41DA …. 8.100, 8.174 s 41DB …. 8.100, 8.174 Supreme Court (General Civil Procedure) Rules 2005 Pt 2 …. 7.58 r 6.10 …. 7.40 r 7.03 …. 7.107 r 32.05 …. 7.143 r 32.07 …. 7.146 r 35.08 …. 7.134 r 37B.02 …. 7.71 Whistleblowers Protection Act 2001 Pt 2 …. 2.56 Wrongs Act 1958 s 10(1) …. 8.87, 8.174 s 10(2) …. 8.174

Western Australia Criminal Code Act Compilation Act 1913 s 338A …. 8.174

s 338D …. 8.89 s 338E …. 8.174 s 338E(a) …. 8.174 s 338E(b) …. 8.174 s 345 …. 8.84, 8.174 s 397 …. 8.174 s 398 …. 8.174 s 398(3)(e) …. 8.174 Defamation Act 2005 …. 4.4, 4.65, 4.70, 4.249, 4.260, 4.264 Pt 3 …. 4.250 s 3(d) …. 4.249 s 7(1) …. 4.7 s 9(1) …. 4.70 s 11 …. 4.65 s 20 …. 4.283 s 22(3) …. 4.260 s 25 …. 4.195 s 26 …. 4.202 s 27 …. 4.208 s 29 …. 4.222 s 30 …. 4.220 s 31 …. 4.223 s 32 …. 4.232 s 32(1) …. 4.233 s 32(2) …. 4.234 s 33 …. 4.237 s 34 …. 4.261 s 35(1) …. 4.20, 4.257 s 35(2) …. 4.278 s 37 …. 4.281 s 38 …. 4.282 s 38(1) …. 4.283 Family Provision Act 1972 s 6(3) …. 9.153 Freedom of Information Act 1992 …. 3.2, 3.153 Guardianship and Administration Act 1990 s 64 …. 9.106 s 104 …. 9.4 Rules of Supreme Court 1971

O 1.4B …. 7.97 O 10 …. 7.58 O 26.8 …. 7.134 O 26A.4 …. 7.143 O 26A.5 …. 7.146 O 52B.2 …. 7.71 r 10.10 …. 7.107 r 72.4 …. 7.40

International Convention on Cybercrime …. 8.14, 8.15, 8.16 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) …. 4.295 European Convention on Human Rights …. 3.42, 3.43, 3.142 Art 8 …. 3.42–3.45, 3.49, 3.58, 3.67, 3.142 Art 10 …. 3.42–3.45, 3.47, 3.49, 3.51, 3.54, 3.58, 3.60, 3.142 Art 11 …. 3.43 Hague Protocol to the Warsaw Convention 1955 Art XIX …. 4.295 International Convention for the Prevention of Pollution from Ships (MARPOL Convention 73/78) …. 4.295 International Covenant on Civil and Political Rights 1966 Art 17 …. 4.1 Art 19(2) …. 4.21 Art 19(3) …. 4.24

United Kingdom Communications Act 2003 …. 8.46, 8.47 s 127(1)(a) …. 8.41 Contempt of Court Act 1981 s 2(2) …. 8.150 Copyright Act 1911 …. 6.33 Copyright, Designs and Patents Act 1988 …. 6.45 Data Protection Act 1998 …. 3.168 Defamation Act 2013 s 5 …. 4.95, 4.228 s 8 …. 4.67

Enterprise and Regulatory Reform Act 2013 …. 6.123, 6.124 s 77 …. 6.123 Human Rights Act 1998 …. 3.42, 3.49, 3.149 s 6(1) …. 3.43 s 6(3) …. 3.43 s 12 …. 3.54 Megan Meier Cyberbullying Prevention Act 2009 s 881a …. 8.113

United States of America California Labor Code s 980 …. 2.6 Communications Decency Act 1996 s 230 …. 4.108 Constitution …. 3.90, 4.108, 7.109 17 USC §504(c)(1) …. 6.137 17 USC §504(c)(2) …. 6.137, 6.138 Copyright Act 1976 …. 6.26 Digital Millennium Copyright Act 1998 …. 1.35, 6.113, 6.118, 6.161, 6.162, 6.165, 6.171, 6.172 s 512(c) …. 6.166, 6.167, 6.169 s 512(c)(1)(A)(i) …. 6.167 s 512(c)(1)(A)(ii) …. 6.167 Federal Trade Commission Act of 1914 …. 5.200 s 5 …. 5.199 Speech Act 2010 …. 4.108 Stored Communications Act …. 1.102, 7.109, 7.113, 7.114 s 2701 …. 1.102, 7.109

Contents About the Authors Preface Table of Cases Table of Statutes CHAPTER 1

Social Media and the Law Joseph Collins

CHAPTER 2

Social Media and Employment Law James B Mattson

CHAPTER 3

Social Media and Privacy Gabriella Rubagotti

CHAPTER 4

Social Media and Defamation Law Patrick George

CHAPTER 5

Social Media and the ACCC Stefanie Benson

CHAPTER 6

Social Media and Copyright Justine Munsie

CHAPTER 7

Social Media and Litigation Gavin Stuart and Monica Allen

CHAPTER 8

Social Media and Criminal Law Patrick George

CHAPTER 9

Social Media Before and After Death Gerard Basha and James Whiley

Index

[page 1]

1 Social Media and the Law Overview Joseph Collins

OVERVIEW • • •

Social media combines the broad reach of broadcast media with the highly interactive nature of interpersonal communications. As a communication medium, social media remains subject to the body of law which governs communications — and, in particular, publishing and broadcasting. While social media’s accessibility has allowed almost any user access to the benefits of mass communication, it has also exposed its users to increased accountability before the law.

INTRODUCTION 1.1 From relative obscurity in the early 2000s, social media has grown to a level of acceptance where Facebook counts one in every six people in the world as a regular user1 and 27 million tweets are sent during the Super Bowl.2 [page 2]

New social media platforms are growing and maturing at a rate limited only by the development of the technologies which underpin them. 1.2 For a legal publication, this presents an obvious challenge in terms of currency. Certainly, any usage statistics quoted in this book (such as those for Facebook and Twitter, above) will be out of date before the proof leaves editing, much less before the book appears on physical or digital bookshelves. The mention of certain platforms may seem outdated to a reader in a year’s time; other newly indispensable platforms will seem conspicuous by their absence. Social media is a communication medium in constant evolution. 1.3 But, as tempting as it might be to think of social media as something too febrile and fast-moving to be dealt with in a dedicated legal text, social media is, at its core, an old story, and capable of being dissected and discussed in the context of existing law.

What is social media? 1.4 There have been many definitions of social media offered in academia (and on social media itself), but the elegant assessment in the Oxford Dictionary of English is as good a starting place as any: Social Media, N. websites and applications that enable users to create and share content or to participate in social networking

1.5 While it is expressed in terms of such relatively recent phenomena as ‘websites’ and software ‘applications’, the core of social media — the creation and communication of content within a community — has been a fundamental element of society for millennia.

‘Traditional’ communications 1.6 The ability to communicate and share information has expanded as technology has advanced. Sharing content was initially supercharged by the introduction of mass publishing in the 1400s with the popularisation of the printing press. Since then, communication channels broadly developed along

two lines: those focused on sharing content individual-to-individual (eg, the electrical telegraph in the 1820s, the telephone in the 1870s, popularised electronic mail in the 1990s), and those dedicated to broadcasting content to an audience (eg, radio at the start of the 20th century, television in the 1930s and the popularised internet and world wide web in the 1990s). 1.7 Access to a particular communication channel largely depended on the financial means of the person wanting to communicate. For private individuals, this meant their communications were generally limited to [page 3] individual-to-individual services where access could be purchased reasonably cheaply. These communication channels were highly interactive and took place within closely defined personal networks, but lacked the ability to reach a broader audience.3 1.8 Those with greater resources were able to overcome the large capital expenses involved in publishing and broadcast technology. Businesses and government accessed print, radio and television platforms, both as operators (of commercial networks or of publicly funded broadcasters) and as users paying fees to access those platforms through advertising or announcements. However, while print and broadcast media gave its users the ability to communicate to a vast audience, it provided very limited interaction with that audience. Those who consumed this media were (save for limited measures such as letters to the editor or ratings systems) unable to communicate back, resulting in a largely passive, one-way communication.

Social media 1.9 Social media is the next iterative step in this history of communications. It combines the broad reach of broadcast media with the interactive nature of interpersonal communications. 1.10 In doing so, it has overwhelmingly removed the barriers to entry which applied to most traditional media: an individual does not even need a postal address or a telephone landline, much less access to printing presses or traditional broadcast infrastructure, to have their content disseminated and

consumed on social media. The price of admission is an internet connection. And the sophisticated networking which is baked into every social media platform means that each publication to social media has a potentially huge audience. 1.11 The effects of this are proving to be profound for all users. Individuals can now utilise the power of broadcast media for a tiny fraction of the price, while business and government can now access information on the views, preferences and habits of their customers and their constituents on an unprecedentedly granular level. 1.12 Further, the lines of communication between those groups have been opened up. Conversations which once took place on a one-to-one basis now happen before potentially huge audiences: a call to a complaints line now takes place publicly over a Twitter feed and is made accessible to a company’s thousands of ‘followers’. A witty political comment between friends can gain a following and end up on the front page of the national press. Grassroots [page 4] social media campaigns can help save a factory or procure the release of an experimental drug to a patient in need. 1.13 There are darker examples arising from social media’s combination of exceptional reach and intimate networking. Stalking, harassment and bullying in their cyber forms have also been supercharged by social media. And the use of a mass communication tool to air private grievances has caused considerable harm. Defamatory remarks which previously would have been limited to an audience of a few individuals can now be quickly and easily published to thousands, exposing the subject to harm and the defamer to consequences far beyond those contemplated in traditional communications.

Social media law 1.14 Just as social media is the next iterative step in communications, so it broadly remains subject to the laws which have always applied to communications.

1.15 Laws regulating communications have been in place for as long as communications technology has existed. All forms of communication, from personal conversations to mass media broadcasts, are covered by one form of law or another, but, conventionally, the level of legal regulation increased with the reach of the communication medium. The law has long recognised that broadcast communications carry with them significant power, both because of the size of their prospective audience and the fact that, due to the considerable economic barriers to entry, the proprietors of mass communication mediums have always been relatively few in number. Cross-media ownership laws have sought to limit the influence these individuals possess, while the laws applying to defamation, consumer protection, corporate disclosure and more have been regularly applied to what can and cannot be said over broadcast communication channels. 1.16 Laws governing privacy and the use of an individual’s personal information have also commonly been applied to communication platforms. Do-not-call and anti-spamming legislation have limited business’s access to individuals, while privacy legislation has regulated the collation and use (and sale) of their personal details when obtained from or used in communications. 1.17 The central question for social media law is, now that all communicators — individuals, business and government alike — have increasingly equal and inexpensive access to broadcast communication platforms of immense scope and impact, how will these traditional rules and laws be applied? 1.18 Any answer will have to take into account, at least in part, the different levels of sophistication of the various communicators. In the past, where only the well-resourced had access to mass communication platforms, those communications tended to take place with an appreciation of the considerable [page 5] body of law which applied. Newspaper, radio and television stories tended to receive legal sign-off before going to air, or, at the least, their authors and presenters received training in the application of laws covering areas such as defamation, contempt and anti-vilification. Corporations communicating their results to the market were similarly advised on their obligations to give accurate and full disclosure of their company’s position.

1.19 Conversely, the individual writing a letter to a friend or complaining to acquaintances at the pub about their day at work, received no such training or oversight. Even though these communications had the potential to breach any number of laws, as long as they took place on a limited basis this generally presented no real problem — letter-writers tended to be civilly prosecuted less enthusiastically than were media barons. But, as these communications increasingly take place on the broadcast platform of social media, so too will these individuals increasingly find themselves accountable to the laws of communication.

A new frontier 1.20 In many ways, all these communicators now find themselves embarked upon a new frontier of communications. As for all frontiers, there is a general awareness of the old rules but it is not exactly known how they will apply, or, crucially, be enforced. The law is often racing to catch up with events: this book tracks the progress of those efforts. But before considering how Australian and analogous international law is dealing with these issues, it is important to consider the position of the various players in the new social media frontier: the providers, the users and the regulators.

THE SOCIAL MEDIA PLAYERS The social media providers The platforms 1.21 As discussed above, in a broad sense, social media has been with us for some time. The dawn of the world wide web led to the early popularity of ‘weblogging’ communities, such as GeoCities, where individuals could publish their own content and engage with others posting to the platform. As Kaplan and Haenlein observe,4 the popularity of social media can in some [page 6] ways be seen as a return to that ‘creating and sharing’ nature of the early web —

only this time with mass adoption. 1.22 Web-logs, or ‘blogs’ as they became popularly known, are still with us. Traditional blogging lives on in platforms such as Tumblr, or in the enormous micro-blogging success of Twitter and Sina Weibo, where blog posts are limited to 140 characters and are immediately shared with a networked group of followers. 1.23

Joining blogging is a broad range of brands, platforms and approaches:

(a) Social networks — Social networks emphasise the connections between individuals and groups to share content, primarily about the individuals and groups themselves. Facebook is the ubiquitous example, claiming 1.65 billion active monthly users in 2016,5 commanding an active population that outstrips that of the world’s largest countries. It is far from being the only one. Facebook usurped the position of early successful social media networks such as Friendster and MySpace. Google launched its version of a social media network, Google+, in 2011. LinkedIn, launched in 2003 and counting 433 million registered members in 2016,6 approaches social networking from a professional perspective, allowing individuals and groups to share their professional associations and experience. Social networks rely upon networking individuals together based on personal or professional connections, and, in doing so, they create detailed profiles and maps of relationships. This network can then be used to share information, but also to allow targeted messaging and advertising — as most social networks are free for users, this is a critical aspect of their commerciality. Increasingly, instant messaging platforms, such as WhatsApp and Facebook Messenger, are being incorporated into social media networks or expanding to become social media networks themselves (eg, Snapchat’s evolution).7 (b) Collaborative projects — When Wikipedia launched in 2001 with the invitation, ‘Humor me. Go there and add a little article. It will take all of five or ten minutes’,8 it was the start of one of the most successful online collaborative projects in history. To date, over 5 million English language [page 7]

articles9 have been contributed, augmented, edited and moderated entirely by Wikipedia’s community of users — the vast majority of whom will never meet. But Wikipedia is only one of a number of collaborative projects and ‘wikis’ devoted to all kinds of subjects and media. The impact of Wikipedia’s success (ironically at the expense of its proposed peer-reviewed stable-mate, Nupedia, which withered on the vine) is difficult to quantify. Its popularity and ubiquity has positioned it in some ways as a de facto reference tool, with academic papers, media articles and even government ministers from time to time quoting it as a source of information. This has invested Wikipedia’s entries with considerable importance: only a single, ‘official’ entry exists for each individual, business, organisation or event within Wikipedia’s virtual pages, sometimes resulting in pitched battles over what is said, what is not said and what is appropriately referenced about each. (c) Social bookmarking and collections — The success of platforms such as Pinterest illustrate the appeal of community-curated material. Pinterest, Digg, Delicious and countless others allow users to cultivate complex collections of material appealing to particular interests or groups. Services such as Buzzfeed create short-form material for the express purpose of being bookmarked and shared across social media. (d) Content communities — Content communities focus on the posting of original content for consumption by other users of the service, usually with the functionality for those users to comment and rate the material posted. YouTube launched in 2005 as a website dedicated to allowing users to share their own generated video. Acquired by Google the next year, by 2014 YouTube was counting 1 billion individual visitors a month.10 While YouTube includes a degree of social networking, Instagram (another hugely successful content community) has sophisticated social-networking infrastructure built around its key functionality of posting and sharing photographs. (e) Hosted communities — The above examples focus on platforms created predominantly for the purpose of fostering social media. However, increasingly individuals and businesses are creating their own bespoke social media platforms as an adjunct to their own primary digital offerings. For example, a newspaper or business might host a comments section on their website, or facilitate discussions through existing social media networks and embed the results. The phenomena of ‘live tweeting’ television shows

and the publishing of those tweets live on screen during a telecast is now commonplace. Moderated message and feedback boards [page 8] now appear on the websites of many businesses, making them de facto social media platforms even if this is far from their core business. (f) Virtual worlds and social gaming — A different approach to those referred above, but an example of social media nonetheless, virtual worlds are exactly what the name describes: online communities where interaction takes place in a virtual ‘world’, using digital avatars as stand-ins for the individuals involved. Virtual worlds can be broken into two camps: gaming and social. • In gaming worlds there is an emphasis on gaming elements, such as combat and point scoring, although complex in-game economies can also develop. Platforms such as World of Warcraft and Eve Online allow players, usually on a subscription basis, to play against each other in persistent worlds with thousands of other players. Virtual gaming worlds need not be complicated: FarmVille, a basic social game involving a working virtual farm, drew tens of millions of users when launched via Facebook. • Social virtual worlds, such as Second Life, allow individuals to take on online personas and interact with the online community — playing, shopping, and even holding virtual jobs. These worlds can be highly complex and involve transactions referable to real-world money: for example, land on Second Life might be bought using in-world currency which bears a direct exchange rate to real-world currencies. 1.24 Increasingly the distinctions between these forms are breaking down as platforms expand their feature sets and as smaller social media platforms are acquired by the ‘big’ players and their product offering subtly (or overtly) integrated. 1.25 However, as many and varied as the above platforms, brands and approaches are, they remain essentially a variation on the central theme of social media and, as such, they share many key characteristics, which are discussed below.

Free access 1.26 Most social media platforms do not charge an access fee for users. But as has been famously put: if you’re not paying for it, you’re the product.11 Accordingly, social media platforms are often financed through advertising targeted at users using the demographic and other information they themselves have contributed, or through some other form of data sale. For example, Facebook allows its advertising partners to directly target [page 9] users based on their profile information (and even, controversially, on their web-searching history). Twitter allows paid tweets to be escalated up its newsfeeds but also sells its data direct to partners through the ‘firehose’.12 A very few social media platforms, such as Wikipedia, operate solely on donations.

Reliance on user-generated content 1.27 Whereas traditional media publishers commissioned their content from professional journalists, writers, photographers and film-makers, social media platforms generally act only as distributors of content created by their users. The term ‘user-generated content’ is commonly used to identify this content, which, for much of social media’s infancy, was taken to mean that the content was purely amateur in nature.13 However, as social media has increased in popularity so too has the involvement of professional content creators (whether they be individuals, businesses or government) who use the communication platform to distribute their own user-generated content. Entire businesses have arisen, based solely around the creation of content for sharing through social media channels, and ‘viral’ content (user-generated content which has received large numbers of referrals and views on social media) now competes with business attempts at ‘viral advertising’.

Networking, openness and referred content 1.28 Most social media platforms foster the creation and growth of networks of users through which the user-generated content will be shared. Even those platforms which do not promote themselves primarily as social networks rely

upon the networking model to ensure that content is widely distributed. 1.29 The methods of creating and updating networks have evolved with the platforms. From fairly rudimentary beginnings, a social network might now ask to download your address book or access your email account for analysis to determine other members of the network to whom you might have a connection. Complex algorithms match personal details, such as geographical location, education or former employment, to suggest additional ‘friends’ or ‘connections’ on the platform. [page 10] 1.30 The sharing of content across such networks is facilitated by an emphasis on openness. Tumblr’s Privacy Policy illustrates this point:14 … you should assume that anything you publish is publicly accessible unless you have explicitly selected otherwise … Content published and shared publicly is accessible to everyone, including search engines, and you may lose any privacy rights you might have regarding that content …

1.31 The emphasis on sharing and openness does not relate solely to content. It also applies to the use of all user data, the collection and collation of which is becoming ever more sophisticated. User data collected from one social media platform may be used by other related platforms, or sold to a third-party platform. 1.32 Referral mechanisms, such as ‘likes’ and ‘re-tweets’, are designed to facilitate the selection and sharing within the network of the best material, drawn from the enormous pools of user-generated content on each platform. This Darwinian editing process is a critical part of social media. Some content can prove so popular that millions of views can be recorded in a short amount of time: the content is said to have ‘gone viral’.

Strong terms and conditions 1.33 Although each platform has its own peculiarities, they all share a number of common terms and conditions addressing their role as content hosts and distributors, as distinct from being content creators. These terms and conditions are invariably non-negotiable, extensive and often difficult to navigate for the consumer audience who make up the majority of users — notwithstanding that the terms and conditions purport to create a binding

contract between user and platform. 1.34 Chief among the issues commonly addressed are the authorisations extracted from users to utilise their content. These are usually described as ‘permissions’ or ‘licences’ to ensure, as far as possible, that ownership of and liability for the content resides with the user. This not only renders the act of posting more palatable to the individual (who is not losing ownership of their photograph or comment) but allows the platform to underline its disclaimer of liability for the posting. Twitter’s terms and conditions make this abundantly clear:15 You are responsible for your use of the Services, for any Content you post to the Services, and for any consequences thereof.

[page 11] 1.35 Social media platform terms usually include extensive disclaimers of liability for the content posted, and can extract broad indemnities from the user. Most platforms have also developed sophisticated takedown procedures in respect of copyright material to ensure access to the safe harbour provisions of the US Digital Millennium Copyright Act 1998.16 1.36 Usage authorisations are usually broad, allowing use of the content worldwide and royalty-free, and for the creation of derivative works. Such breadth reflects the logistical realities of making content available on platforms across many different jurisdictions and markets, but also the considerable value user-generated content can represent to a social media platform. 1.37 These and similar contractual terms, together with the realities of incorporation in jurisdictions removed from that of many of their users, have to date provided social media platforms with quite effective protections against civil actions.

Location 1.38 While some social media platforms have a presence in several different markets through locally registered subsidiaries, often a platform’s service is operated from a single legal jurisdiction. This means that, distinct from many traditional media publishers, a social media publisher can lack all but the most

ephemeral physical (and legal) connection with the jurisdiction or market in which it operates. 1.39 The consequence is that although two users’ interaction with a platform may be identical, their rights arising from that interaction (and their ability to enforce those rights) may differ greatly, depending on their location. 1.40 Obvious questions arise. Where does a publication on social media take place? When does a consumer relationship arise between an individual in one country and a business in another where that interaction occurred entirely on social media? How can an Australian social media user commence proceedings against a foreign social media platform, or compel the provision of documents from them?17 [page 12]

Permanence 1.41 Information posted to social media can be expected to be long-lived. As noted above, expansive content licences allow for platforms to retain posts and other information potentially indefinitely. The long memory of social media is regularly demonstrated. In 2014, MySpace began a campaign to win back former users by emailing them photos of themselves from over a decade previously, while Facebook declared 5 February 2016 to be ‘Friends Day’ and sent its users video collages generated from the depth of content it had accumulated for each user. Each campaign was met with decidedly mixed reactions from its audience.18 1.42 Even the deletion of a post or an entire social media account is unlikely to provide assurance that the material has been forever extinguished, as retention of information is not limited to the platforms themselves. Copies of social media posts can be made and preserved on as many devices as receive them through screenshots and similar processes. The material might have been translated to other social media platforms, or off social media altogether — for example, since 2010 the US Library of Congress has been archiving all public tweets posted on Twitter.19 1.43 The social media community’s keen interest in openness further ensures the permanence of content — many a high-profile tweet-and-regret has

remained live despite its author’s attempt to remove it, the very act of ‘removal’ leading to even more interest in the post.

The social media users Who are the users? 1.44 From relatively humble beginnings (eg, Facebook was originally a networking tool for students at Harvard University) social media users have grown to encompass individuals, organisations, multinational corporations and entire governments. As a communications platform, social media is forcefully egalitarian: private individuals tweet alongside the world’s best-resourced companies and most powerful politicians. 1.45 Yet participation in social media is not limited to its users. People and organisations who have never joined a social media platform are nevertheless [page 13] often present on those platforms: they can be name-tagged in photographs posted by another user, discussed on blogs or (if of a sufficient profile) written up in Wikipedia entries. 1.46 As a result, many of the same issues apply to active users of social media as well as those who do not choose to participate.

Identity, verification and veracity 1.47 Due to its online nature, identity (and the verification of that identity) is a constant issue on social media. The opening of an account on a social media platform usually requires nothing more than a name and an active email address. The absence of arduous verification processes or registration fees means that users commonly hold accounts on several platforms at once, and sometime multiple accounts on a single platform. 1.48 While some social media platforms encourage (or require) their users to use their real names, others permit users to maintain anonymity and operate under all manner of pseudonyms and aliases.20

1.49 Anonymity has always been a double-edged sword for social media users. Some users find the ability to assume a different persona, or at least to not be judged for views genuinely held, as liberating and one of the medium’s strengths. Anonymity might be used in the furtherance of legitimate interests; for example, where it maintains the confidentiality of a whistleblower or a source for legitimate journalism. However, the common use of anonymity on social media leads to obvious issues. At its worst, anonymity has facilitated — some might say encouraged — destructive activities, such as defamation, abuse, trolling, cyber bullying and cyber stalking.21 As Chapter 3 (‘Social Media and Privacy’) and Chapter 7 (‘Social Media and Litigation’) discuss, in such circumstances the anonymity of a user might not be sustained if legal proceedings are commenced, but it is far from a certain matter. 1.50 Closely tied with anonymity is the impersonation of others on social media. As anyone can set up a social media account with little to no verification, accounts impersonating individuals, corporations and even government officials and bodies are common. Different platforms have taken different approaches to impersonation; some platforms require that ‘parody’ accounts identify themselves as such or risk deletion while others simply permit them. Increasingly, platforms are attacking the problem by adopting a form of verification for high-profile users. Following independent verification of an account holder’s identity the social media platform will then confirm that identity to other users by use of an identifier (eg, Twitter and Facebook’s [page 14] ‘blue tick’). However, at the time of writing, such verification is limited to highprofile individuals and brands. Regular users are largely left without an official way to assure other users of their identity, and to ensure that their own identity is not usurped. 1.51 Even verification of one’s social media presence is not necessarily the end of the issue; official accounts, particularly of organisations, routinely have many authors, with decidedly mixed results. Some individuals have been embarrassed by having staff write or transcribe tweets (Australian actor Hugh Jackman was caught out by a tweet about his native Sydney referring to the ‘harbor’ and ‘Opera Center’ — an apparent transcription error by staff),22 while some official corporate accounts have been hijacked by outsiders or, on

occasion, by their own employees. In April 2013, hackers accessed the Associated Press (AP) official Twitter account and posted a tweet reporting explosions at the White House injuring US President Barack Obama. Within minutes the Dow Jones industrial average had fallen 143 points (it soon recovered once the tweet was disowned by AP).23 A less drastic example involved the hijack of music retailer HMV’s corporate Twitter account during a period of lay-offs. Before control of the account was regained, outgoing staff had posted tweets, including, ‘We’re tweeting live from HR where we’re all being fired! Exciting!!’ and ‘Just overheard our Marketing Director (he’s staying folks) ask “How do I shut down Twitter?”’.24 In 2016, Microsoft encountered a novel version of Twitter hijack, when its ‘artificial intelligence’ Twitter bot was hijacked by other Twitter users. ‘Tay’, a computercontrolled Twitter account designed to learn from and engage with other users, was swiftly tricked by some of those users into spouting highly offensive tweets — including in support of Hitler and genocide. The account was quickly suspended.25 1.52 The question of identity and verification also has an important role to play in the veracity of information posted by users on social media. With social media content being created and posted by a broad range of authors it is increasingly difficult to confirm the accuracy of information posted as fact. The growth of Wikipedia as a de facto reference tool has led to many bizarre circumstances of what comedian Stephen Colbert has described as ‘wikiality’ — where reality is determined not by facts, but by the majority view of what a fact should be. A practical example arose in July 2008 when a 17-year-old student edited the Wikipedia entry on ‘coati’ with the unreferenced and [page 15] false ‘fact’ that coatis are also known as ‘Brazilian aardvarks’ (the edit arose from a private joke). Following adoption of the term in several ‘traditional’ media sources, which had accessed the information on Wikipedia, the term ultimately became a firm Wikipedia fact — referenced to the very mainstream media articles it had misled.26

Privacy and privacy controls

1.53 Privacy is an obvious key issue flowing on from one’s social media identity. The roll call of personal information shared by users is extensive and, as the platforms and associated technology have evolved, so too has the depth of information available. Names, ages, relationship status, political views and purchasing habits are routinely shared. Location data is shared, whether consciously through ‘check-ins’ on social media networks or unconsciously through the locational meta-data encapsulated in a smartphone photograph. Biometric data is becoming increasingly common through the popularity of fitness-monitoring devices, and, with the advent of new wearable devices, the categories of potential data will continue to grow. 1.54 Even data which a user might not ultimately decide to share (or know they are sharing) may still be utilised by the platform. In 2013, two Facebook employees released a study detailing the results of their analysis of what they termed ‘self-censorship’: entries which were physically typed into the Facebook software, but ultimately not posted. Notwithstanding the decision by the user not to post, these entries were nonetheless capable of analysis by Facebook.27 Many social media platforms are able to track users’ behaviour away from the platform’s home application: for example, a platform might serve a user advertising based not only on the history of their interaction with the platform, but also their history with other websites and applications.28 1.55 Given the availability of these huge swathes of personal data, striking the balance between the sharing which underpins social media, and the privacy desired by its users, is frequently a vexed issue. Complicating matters is the fact that platforms and users generally approach privacy from very different starting positions. Platforms which rely on plentiful personal data as their currency draft broad privacy policies which are constantly evolving (sometimes in the face of considerable controversy) to ensure that the most value is extracted. Users may not agree to such an expansive approach but, [page 16] to a large extent, have to accept these terms as the price of using the service. Others never engage with the issue: the Office of the Australian Information Commissioner’s 2013 research report, Community Attitudes to Privacy, found that 51 per cent of respondents did not read online privacy policies due, among other reasons, to their length, complexity and tediousness.29 Thus, many users

operate in an atmosphere of complete (and, on occasion, misplaced) trust with their social media providers. 1.56 In some respects, growing concern regarding the expansive nature of sharing on social media has led to the popularity of alternative platforms which emphasise privacy features. The rise of platforms such as Snapchat (which promises that posts ‘self-destruct’ after they have been viewed and are deleted from the recipient’s device and Snapchat’s servers)30 and the continued debate over certain social media networks’ kaleidoscope of privacy settings speak of a desire for some balance in platforms’ use of private user details. 1.57 Similar sentiments have underpinned the ‘right to be forgotten’ movement, leading to the 2014 decision of the European Court of Justice allowing individuals some control over their personal details as they might be presented by an internet search engine.31 1.58 Of course, and as noted above (see [1.45]), even a decision not to participate in social media is by no means a guarantee of privacy or anonymity. Individuals can still appear on social media in photographs and even be identified through tags and other markings without their knowledge or consent. Even more concerning are instances where social media has been used to promote the publication of stolen or misused personal images; for example, the rise of abusive practices such as ‘revenge porn’.32

Reputation 1.59 As social media has placed the power of mass publication into the hands of practically everyone, the impacts on personal reputation have been extraordinary. Many have used its capabilities to promote their interests, professions, causes and themselves to considerable success. Many mainstream celebrities and artists have social media to thank for their start; others continue to conduct all of their interaction with their audience exclusively over social media channels. Businesses have built (or destroyed) buzz for new products by engaging with their target markets on social media. And political [page 17] campaigns now regularly utilise social media to shape the reputation of parties

and politicians in the public consciousness. 1.60 However, as effective as social media can be for building reputations, it has proven to be equally adept at damaging them. Rumours and innuendo, misinformation, harassment and rank abuse have all found a home on social media, and its nature as a mass-publishing medium ensures that such behaviour can easily find a broad audience. Even the relatively minor slanders which might take place in conversations between acquaintances have the potential to spill over into a broader audience, no matter the intention of the slanderer. And if the subject is sufficiently high profile, reputational damage which begins in the social media sphere can quickly spread through traditional media and beyond. As considered in Chapters 4 (‘Social Media and Defamation Law’), 7 (‘Social Media and Litigation’) and 8 (‘Social Media and Criminal Law’), those who find themselves attacked on social media can face a difficult process in seeking redress. 1.61 Reputational damage on social media need not be inflicted by others — it can as easily be self-inflicted. The common phenomena of ‘social media fails’ illustrate the uncertainty involved in engaging on social media and the reputational risks which follow. In November 2015, the Victorian Taxi Association commenced a social media campaign focused on positive taxi experiences. Its hashtag ‘#YourTaxis’ was quickly hijacked by Twitter users who did not share the association’s views.33 Similarly, Woolworths’ 2015 Anzacthemed ‘Fresh in our Memories’ campaign was short-lived following a sizeable social media backlash.34 1.62 Reputation on social media remains a delicate topic. The announcement in October 2015 of a social media application, ‘peeple’, was met with immediate and widespread condemnation. Initially described by The Washington Post as ‘the terrifying “Yelp for people”’, peeple proposed to allow its users to post ‘reviews’ of the character of other people, without their consent.35 Following protracted public criticism, peeple eventually launched with a reduced feature set.

Ownership 1.63 Users of social media face the possibility, or likelihood, that their content will be utilised by others. The broad terms of use described above (see [1.33]) allow the social media platforms to make almost any use of content

[page 18] posted. While ownership is expressed to continue to reside with the original poster, this becomes an increasingly ephemeral concept the more content is spread, amended or adapted across social media networks. 1.64 A content owner does not need to be on social media to be affected by the medium’s somewhat permissive approach to intellectual property rights. A key issue for determination in the social media space is the question of the reach of fair-use exceptions and the point where appropriation of content crosses from the innocent to the actionable.36 1.65 Ownership of a social media account itself is a complex issue. Various social media providers have differing rules for whether and how an account might be transferred between individuals. The matter becomes even more vexed when the owner of a social media account dies — delicate issues of privacy and identity, discussed above (see [1.47]–[1.58]), have resulted in complex procedures for granting access to a deceased person’s social media accounts.37

Exposure to liability 1.66 Social media has unlocked access to mass publication for practically all of its users. However, in doing so, it has also exposed its users to areas of law and liability where an individual’s ability to transgress has traditionally been limited. 1.67 Access to a social media account does not come with training on the legal implications of its use, and its immediate and informal nature encourages users to post first and worry about the consequences later (if at all). However, as explored in this book, social media is a publishing medium, in theory subject to all of the laws which traditionally apply to the act of communicating. Many of these laws can easily be breached on social media in a matter of moments yet a large proportion of its users operate in complete ignorance of how the law applies — until it does. 1.68 Social media users have been exposed to civil suits for defamation arising from tweets and blogs. They have breached suppression orders when discussing high-profile criminal cases online, or been criminally prosecuted for offensive behaviour in their posting.38 Employees have found their jobs

[page 19] in the balance due to questionable posts about their employer or colleagues. As Chapter 8 (‘Social Media and Criminal Law’) discusses, even jokes disseminated on Twitter accounts can have dire consequences. 1.69 More ‘sophisticated’ users, such as big business and government, are not immune either. While well-resourced entities might be expected to have in place compliance programs to ensure communications are conducted appropriately, the multitudinous communication channels offered by social media have made such compliance difficult. Now not only must a business keep track of its own official communications, but also of those made by its executives and employees. In July 2012, a post concerning recent company results made by Netflix CEO Reed Hastings on his personal Facebook page led to an investigation by the US Securities and Exchange Commission (SEC).39 And as Chapter 5 (‘Social Media and the ACCC’) discusses, Australian businesses conducting business on social media will be held accountable to the usual regulations governing advertising and other consumer interactions. 1.70 As well as being exposed to liability themselves, social media users also operate in an environment where the usual protections they might enjoy do not necessarily apply. As international commerce extends through social media channels, consumers are regularly exposed to commercial offers from outside their home jurisdiction and in respect of which their normal consumer protections laws may be extremely difficult, or impossible, to enforce.40

Empowerment 1.71 One of the most striking effects of social media has been the empowerment of individuals. Users now have access to a channel of mass communication once reserved only to the best resourced, allowing them to wield influence in unprecedented ways. 1.72 Crowd-sourcing and crowd-funding (the aggregating of information or financing, respectively, from large, interested groups) have been enabled and promoted through social media channels. Political and social movements can quickly obtain widespread exposure. Whether it’s resurrecting a beloved television series or lobbying for government action on an environmental issue, social media has had a profound effect on the ability of individuals and groups

to be heard and to implement change. 1.73 For businesses, engaging with this aspect of social media has proven to be a double-edged sword. A successful social media campaign might result in an engaged and supportive social media audience which might [page 20] be converted into customers. Equally, a hostile social media response can destroy a product through poor reviews and, perhaps more disastrously, ridicule. 1.74 Yet, choosing to not engage with the influence wielded in social media is to take a risky path. In early 2014, biotechnology company Chimerix was blindsided by a social media campaign directed at obtaining access to its experimental antiviral medication for a 7-year-old patient. Following initial refusals by the company, a rapidly organised and widespread campaign on social media platforms (which was picked up by the US press) ultimately succeeded, but not before causing considerable disruption at Chimerix and damage, if only temporary, to its reputation.41 Protests and industrial actions are now regularly organised on social media platforms. Social media response is now firmly a factor in corporate risk. 1.75 The effect on news and politics also cannot be ignored. The impact of social media in the Arab Spring has been much debated, but few will deny it played a role of some significance in the organisation of protests and the reporting of the uprisings to the world. During the 2014 Ukraine crisis, individuals could follow events by subscribing to the official Twitter feeds of many of the main players. The 2008 and 2012 presidential campaigns of Barack Obama are famous for their shrewd and highly sophisticated social media focus, while popular political awareness campaigns, such as #BringBackOurGirls and Save the Children’s #helpisontheway, have amassed enormous audiences across social media platforms and mainstream media. 1.76 As with other issues considered above, the power of social media in this respect can also be misused. Following the bombing of the Boston Marathon in April 2013, users of the social networking/content platform Reddit attempted to identify potential suspects from photographs of the crowd. The result was the incorrect identification of several people as suspects — one such photograph appeared on the front page of the New York Post.42 It is also apparent that in the

relatively short period since the publication of the first edition of this book (in 2014) the role of social media in conflict zones and terrorism has grown substantially.43

The social media regulators 1.77 On an international level, the approach to the regulation of social media has broadly matched the approach taken to existing forms of media. Some [page 21] governments have extended censorship to social media communications. The People’s Republic of China permits social media, but filters its content in the same fashion as it does all other internet traffic.44 Despite Turkey being one of the world’s most active users of social media, in March 2014 its prime minister blocked access to YouTube and Twitter after the platforms were used to spread allegations of government corruption.45 In June 2014, the Iraqi government sought to shut down access to Facebook, Twitter and YouTube to avoid those platforms being used for co-ordination between ISIS insurgents.46 1.78 The occasional discussion of internet filters and like aside, in Australia and similar jurisdictions the approach to regulation of social media has been more ordinary. Generally, it has occurred through the modification and application of existing laws governing communications. Social Media and the Law tracks the progress of these applications and considers what might be next.

SOCIAL MEDIA AND THE LAW 1.79 The chapters of this book look at how the most relevant areas of Australian law (and some analogous jurisdictions) are adapting across the areas of reputation, privacy, competition, intellectual property and employment. The sphere of enforcement is also considered, both from civil litigation and criminal prosecution points of view.

Social media and employment law (Chapter 2) 1.80 The workplace has played a particularly active role in the development of social media law in Australia. James Mattson’s chapter discusses the impact social media is having on the employer/employee relationship. Social media blurs the boundaries of what can be considered conduct at work and conduct ‘after hours’, and frequently raises the question of whether conduct engaged in on social media is ‘in connection with’ an employee’s employment. The broad reach of social media also magnifies the consequences of ill-judged comments and actions which, before social media, might have remained private. The Fair Work Commission has already dealt with numerous cases arising from employees’ use of social media, often in their own time and away from the workplace. 1.81 Existing workplace issues, such as bullying, harassment and vilification, are continuing to take place on social media, requiring careful management [page 22] by employers. Meanwhile, the temptation for employers to use social media platforms as a means of pre-employment (and even post-employment) screening and workplace surveillance raises fresh issues. 1.82 The chapter also considers the importance of social media policies in setting the boundaries for social media use (and their place in unfair dismissal cases), and emerging issues such as the ownership of work-related social media accounts and the use of social media in industrial action.

Social media and privacy (Chapter 3) 1.83 Gabriella Rubagotti’s chapter looks at an individual’s right to privacy in the face of social media’s power to broadly disseminate all manner of personal and private information. 1.84 Despite Australia’s signatory status to numerous international treaties and conventions on privacy, to date no tort of unjustified invasion of privacy has been recognised by Australian courts, and statutory protections remain primarily concerned with the collection, storage and disclosure of personal

information. While amendments to Australia’s federal Privacy Act 1988 have strengthened this protection of personal information, as Chapter 3 discusses, these measures fall far short of a comprehensive protection of privacy in Australia. 1.85 In recognition of this problem, the Australian Law Reform Commission has recommended a statutory cause of action for ‘serious invasion of privacy’ — a recommendation which was adopted by the NSW Parliament Standing Committee in March 2016. At the time of writing, these issues remain under consideration, and Chapter 3 considers this developing area in detail, as well as the potential application of indirect common law actions which might be used to bolster privacy protections. 1.86 Overseas jurisdictions such as the United Kingdom, the United States and New Zealand have made more progress on the protection of privacy in social media use. UK courts have already considered the right of a blogger to preserve his anonymity, the creation of false Facebook accounts for the purposes of impersonating and defaming an individual, and the spread of an individual’s explicit personal photographs over online-sharing platforms (the latter including the grant of injunctive relief). 1.87 Chapter 3 also considers the application of the Privacy Act 1988 (Cth) to the relationship between social media platforms and their users.

Social media and defamation law (Chapter 4) 1.88 As discussed in Patrick George’s chapter, social media raises the stakes from a defamation perspective because any communication on a [page 23] social media network is made to a potentially enormous audience. That a large percentage of these communications are made by individuals with no knowledge of the laws of defamation makes social media a particularly fertile ground for defamation disputes. The constituent elements of a defamation action arising from traditional media are just as capable of establishment in a defamation action originating on social media (although, as the chapter discusses, effective remedies may be more difficult to obtain).

1.89 Republication of defamatory material is a key issue, as the sharing and referral system upon which much of social media is grounded has little regard for the intention of the original poster. Stray comments can be swiftly and massively disseminated, and unlike more traditional forms of publishing (where an offending book might be pulped or television interview not rebroadcast), there can be no way to shut down republications taking place on social media. Indeed, in many instances, attempts to limit the spread of defamatory material has only served to propagate it further. As Chapter 4 notes, Australian and UK courts have already identified the ‘grapevine effect’ of social media as creating the potential for unprecedented damage to reputations. 1.90 The broad reach of social media communications places great responsibility on users who post to get their facts straight first. Many disputes have arisen over the wrongful identification of individuals on social media as wrong-doers (eg, the Boston bombing ‘suspects’ referred to at [1.76], above), exposing them to considerable abuse for their perceived actions. Similarly, rumours, innuendo and untruths spread easily and efficiently on social media, to the great harm of those targeted. 1.91 Already, high-profile defamation cases rising from social media have begun to illustrate the perils involved for social media authors and their subjects. Numerous ‘twibel’ cases in the UK courts have sought to redress damage wrought by libellous comments on Twitter, while Australia has seen the development of a body of social media defamation case law over the short period since this book’s first edition.

Social media and the ACCC (Chapter 5) 1.92 In Chapter 5, Stefanie Benson considers the application of Australian consumer law to the social media environment. The reach of Australian regulators in respect of social media is vast: any person or corporation carrying on business in Australia is sufficient nexus to attract the application of the Australian Consumer Law’s provisions governing such matters as misleading or deceptive conduct, unconscionable conduct, unfair contract terms, pricing display, unsolicited selling and pyramid schemes. As a result, many activities conducted on social media within Australia, whether originating in the jurisdiction or not, will be caught by Australia’s competition laws.

[page 24] 1.93 Australian regulators (government and industry-based alike) have observed that social media has transitioned from being a tool for personal communications or entertainment to a platform for business, and have formed the view that if a business participates in the social media space they should be held responsible for the information disseminated there. This can apply not only to information a business positively posts on a social media platform, but to content posted by third parties, whether solicited or not. Such requirements raise myriad new issues for business in terms of monitoring and compliance. 1.94 As social media has created a new international marketplace for businesses to compete, so too has it increased the potential for anti-competitive behaviours, such as price-signalling and cartel conduct, which may fall foul of the anti-trust laws of the multiple jurisdictions over which a social media communication might take place. Chapter 5 considers these issues, and also provides an update on the approaches taken by competition regulators in Australia and other comparable jurisdictions in providing guidance to business and consumers in the social media space.

Social media and copyright (Chapter 6) 1.95 Given social media’s emphasis on rich, user-generated content, it is unsurprising that its use raises numerous issues in the area of copyright. Justine Munsie’s chapter examines social media and copyright. 1.96 On the issue of copyright in social media, one of the key questions encountered is conceptual: are some of the communications which take place over social media susceptible to copyright? While the status of tweets limited to 140 characters and similar short-form communications has not been considered by Australian courts in this context, other short-form communications, such as newspaper headlines, have traditionally been denied protection as original literary works. 1.97 The broad licences involved in the day-to-day operations of social media platforms create a complex legal framework for intellectual property on social media. However, the status of rights between author and re-tweeter (as opposed to author and social media platform) is fraught with uncertainty. The

question of assignment of copyright is made particularly difficult in social media due to its exclusively online nature. 1.98 Meanwhile, the frequent appropriation of material covered by copyright or trademark protections for use in new works (eg, the ever-popular memes and mash-ups which proliferate on social media) is prompting further consideration by Australian and overseas regulators on the limits of ‘fair use’ exceptions, and the place of an author’s moral rights. For the moment, the differences between Australian fair-use rules and overseas counterparts creates a confusing patchwork of rules ostensibly applying to communications on [page 25] social media. Chapter 6 also considers the growing prevalence of orphan works on social media: content stripped of data identifying its creator.

Social media and litigation (Chapter 7) 1.99 Gavin Stuart and Monica Allen’s chapter discusses the challenges involved in the enforcement of rights in the social media space and the responses of Australian and other jurisdictions. 1.100 Key to any civil action is the ability to identify a defendant, something which (as discussed at [1.47], above) is far from straightforward in the social media space. Chapter 7 provides a useful guide to the searches which may be used to ascertain user details for use in litigation. 1.101 Gathering evidence can also be problematic given social media’s peculiarities. Although a user interacts with a platform through an application stored on their computer or smartphone, the data and content which are the subject matter of an action are generally maintained ‘in the cloud’ — meaning they are on a server at a faraway location. 1.102 Subpoenas can be of questionable utility in seeking material from platforms which store their data overseas. Even where a platform maintains a locally incorporated subsidiary subject to Australian laws, the platform’s service may well be operated from the United States and subject to the rules of its home jurisdiction on matters such as compulsory process. Local laws, such as the US

federal Stored Communications Act,47 might prevent a platform from disclosing private user data even if validly served with a foreign subpoena. 1.103 The ephemeral nature of information posted to social media also causes difficulties for a litigator: How is a Facebook page preserved as a document when it is constantly being updated? When are users of social media required to maintain copies of their content for the purposes of discovery orders? How can a page or post’s authenticity be verified? And who has possession or control of a ‘document’ on social media? 1.104 In some respects, Australia has been leading the way on the integration of social media into the litigation process. A 2008 decision of the Supreme Court of the Australian Capital Territory ordered that a plaintiff’s solicitors could serve default judgment by sending a private message to the defendants’ Facebook pages. Other jurisdictions have followed Australia’s lead. However, not all attempts at ‘social media service’ have been successful. An attempt to serve originating process on rapper Flo Rida by email and Facebook page was rejected by the NSW Court of Appeal.48 [page 26]

Social media and criminal law (Chapter 8) 1.105 As Patrick George explores in Chapter 8, all online behaviour is subject to Australian state and federal criminal laws. Australia is a signatory to the Council of Europe Convention on Cybercrime, which provides for the criminalisation of online activities, including those involving harassment and threatening behaviour and the infringement of intellectual property rights. 1.106 As Chapter 8 discusses, harassing conduct which might in the past have been conducted over telephone or email has now progressed to webcams and Facebook accounts — but still remains capable of prosecution under s 474.17 of the Crimes Act 1914 (Cth). Successful prosecutions, such as that of two male cadets at the Australian Defence Force Academy for use of a carriage service in an offensive manner (in that case, the voice-over-IP service, Skype), and another for the publishing of offensive material on a memorial Facebook page, illustrate that the same principles will be applied to users of social media. New areas of criminal conduct, for example the growth of revenge porn sites, have also been met with a mixture of legislation (in the United States) and

prosecution under existing laws (for instance, in New South Wales for publishing an indecent article). 1.107 The position of children who use social media is particularly fraught from an enforcement point of view. Voluntary protocols have been entered into by Australian social media platforms with a view to the protection of children participating in social media, particularly in relation to cyber bullying. 1.108 As has been the case overseas, Australian contempt laws have also been enlivened by social media publications, with a journalist sent to prison for disclosing on his social media accounts suppressed information about an accused. If the international experience is any guide, it is unlikely to be the last contempt case arising from social media.

Social media before and after death (Chapter 9) 1.109 In this book’s final chapter, Gerard Basha and James Whiley consider complex questions of social media identity and ownership in the context of deceased users. 1.110 A person’s social media presence can be a significant part of their identity, and difficult questions arise for family and friends should the user die without leaving instructions as to their accounts’ use — or, critically, the accounts’ access passwords. These issues can become even more contentious where a social media account forms a valuable part of the assets of a deceased’s estate or is connected to a business which they operated. [page 27] 1.111 Chapter 9 considers the different approaches taken by social media providers to their deceased users’ digital remains, together with useful guidelines for ensuring that these difficult questions of ownership, access and ongoing use are dealt with appropriately.

THE SOCIAL MEDIA FUTURE 1.112

Despite the occasional assertion that falling user numbers on one

platform or another means the end of the ‘social media fad’, social media is unlikely to die out any time soon.49 The social media of the future will look very different to the platforms, brands and approaches of today, but its core elements will remain: inexpensive, networked communications with a sophisticated inbuilt referral system. 1.113 The content of those communications will continue to develop alongside new technological advancements. Already, we are getting a glimpse of the new kinds of information which might be communicated. The ongoing development of wearable devices point to a future where many aspects of our lives (including detailed behavioural and biometric data) might be constantly recorded, compiled and shared over social media channels. The increasing popularity of mobile transactions taking place over or facilitated by social media platforms will continue to yield immense information on the financial habits of users, in addition to the troves of personal information already shared. The creation, maintenance and use of this information will be a major issue for the law to grapple with in the coming years. 1.114 The challenges presented in responding to the complexities of social media will improve the strength of the general law. Already, and as discussed in the following chapters, complex and long-standing issues in areas such as copyright and privacy law are being defined and dealt with as a result of social media’s impact on the particular area. Other areas of law will no doubt benefit in the same way. 1.115 The social media frontier is full of promise and hazards, many of which have yet to be fully understood. What is certain is that the legal decisions taken in Australia and other jurisdictions will play a critical role in shaping its future. The pages which follow provide a nascent map of the new territory.

1. 2. 3. 4.

Facebook reported 1.65 billion monthly active users as of 31 March 2016 (Facebook, ‘Facebook Reports First Quarter 2016 Results and Announces Proposal for New Class of Stock’, 27 April 2016, available at ). Twitter reported 4.3 billion views of Super Bowl 50 tweets in February 2016, based on 27 million tweets sent during the event (Twitter, ). Excepting, of course, the impact of viral emails — an early harbinger of social media disasters. A Kaplan and M Haenlein, ‘Social Media: Back to the Roots and Back to the Future’ (2012) 14(2) Journal of Systems and Information Technology 101; see also A Kaplan and M Haenlein, ‘Users of the World, Unite! The Challenges and Opportunities of Social Media’ (2010) Business Horizons 53 at 59–68 for a

5. 6. 7. 8.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

useful discussion of the principles underlying social media. See Facebook, ‘Stats’, available at . ‘Monthly active users’ is the measure used by many social media platforms, and is generally defined as the number of unique users accessing the platform over a 30-day period. See LinkedIn, ‘Newsroom’, available at . E Hamburger, ‘Surprise: Snapchat’s Most Popular Feature isn’t Snaps Anymore’, The Verge, 20 June 2014. The author was Wikipedia co-founder Larry Sanger, who posted the message to users of Wikipedia’s shorter-lived predecessor, Nupedia (accessed 28 April 2014 from the Wayback Machine: ). Wikipedia:About, . YouTube, ‘Statistics’, . The sentiment is commonly attributed to MetaFilter user, blue_beetle: ‘If you’re not paying for something, you’re not the customer, you’re the product being sold.’ For example, Twitter’s relationship with social data specialist, GNIP. When the OECD considered the question of user-generated content in 2007, it considered amateurism to be a key element of the term’s definition: Participative Web and User-Created Content: Web 2.0, Wikis and Social Networking, OECD, 2007. Tumblr, Privacy Policy, ‘What We Collect and How We Use It’, available at (accessed 19 May 2016). Twitter Terms of Service, available at (accessed 16 May 2016). Although platforms may enjoy less protection in Australia given the limited scope of the safe harbour provision of the Copyright Act 1968 (Cth): see Chapter 6, ‘Social Media and Copyright’. For answers to these questions, see Chapter 4 (‘Social Media and Defamation Law’), Chapter 5 (‘Social Media and the ACCC’) and Chapter 7 (‘Social Media and Litigation’). K Wagner, ‘MySpace is Embarrassing Users with Old Photos to Win Them Back’, Mashable, 2 June 2014; ‘Facebook “Friends Day” Video Falls Flat with Users’, Sydney Morning Herald, 5 June 2016. E Allen, ‘Update on the Twitter Archive at the Library of Congress’, Library of Congress Blog, 4 January 2013, . However, the task has been far from a simple one: see N Scola, ‘Library of Congress’ Twitter Archive is a Huge #FAIL’, Politico.com, 7 November 2015. For a discussion of the status of false names on social media, see Chapter 8, ‘Social Media and Criminal Law’. For a discussion of these issues, see Chapter 8, ‘Social Media and Criminal Law’. ‘“Opera Center” Message Not My Fault: Jackman’, Sydney Morning Herald, 8 April 2009. H Moore and D Roberts, ‘AP Twitter Hack Causes Panic on Wall Street and Sends Dow Plunging’, The Guardian, 24 April 2013. ‘HMV Staff Hijack Twitter Account, Tweet Mass Sackings’, The Australian, 1 February 2013. A Griffin, ‘Tay Tweets: Microsoft Apologises for Robot’s Racist and Genocidal Tweets’, The Independent, 27 March 2016. E Randall, ‘How a Racoon Became an Aardvark’, The New Yorker, 19 May 2014; the Wikipedia article has now removed all reference to the Brazilian aardvark. S Das and A Kramer, ‘Self-Censorship on Facebook’, Proceedings of the Seventh International Conference on Weblogs and Social Media, Association for the Advancement of Artificial Intelligence, 2 July 2013; C Johnston, ‘Facebook is Tracking Your “Self-Censorship” ’, Wired, 17 December 2013. Facebook, ‘Making Ads Better and Giving People More Control Over the Ads They See’, 12 June 2014, available at . Office of the Australian Information Commissioner, Community Attitudes to Privacy Survey, research report, 2013.

30. Snapchat, ‘When Does Snapchat Delete Snaps and Chats?’, available at (accessed 22 May 2016). 31. Google Spain v AEPD and Mario Costeja Gonzalez ECLI:EU:2014:317; ‘Google’s Legal Blow: What “The Right to Be Forgotten” Means’, Wall Street Journal, 13 May 2014. 32. See Chapter 8, ‘Social Media and Criminal Law’. 33. M Ritson, ‘How #YourTaxis Got It So Very, Very Wrong’, Sydney Morning Herald, 10 November 2015. 34. X La Canna, ‘Woolworths Takes Down Anzac “Fresh in our Memories” Website after Social Media Backlash’, ABC News, 15 April 2015. 35. ‘Peeple, the “Yelp for people” Review App, Launches in North America on Monday’, The Guardian, 7 March 2016. 36. See Chapter 6, ‘Social Media and Copyright’. 37. See Chapter 9, ‘Social Media Before and After Death’. 38. BBC reported 653 people were criminally prosecuted in England and Wales in 2012 in connection with comments on Twitter or Facebook: B Wheeler, ‘Twitter Users: A Guide to the Law’, BBC News Magazine, 23 February 2013. A 2016 Crown Prosecution Service draft guideline indicated prosecutors would be directed to take action against individuals using social media to threaten or publicise false and damaging information: see D Barrett, ‘Faking Social Media Accounts Could Lead to Criminal Charges’, The Telegraph, 3 March 2016. 39. A Brown, ‘Netflix CEO Reed Hastings’ Facebook Flap Forces SEC into 21st Century’, Forbes, 2 April 2013; the SEC ultimately took no action against Reed or Netflix, issuing a clarification to its disclosure regulations. 40. See Chapter 5, ‘Social Media and the ACCC’. 41. D Larcker, S Larcker and B Tayan, ‘Josh Hardy and the #SaveJosh Army: How Corporate Risk Escalates and Accelerates through Social Media’, Stanford Closer Look Series, 14 April 2014. 42. L Kaufman, ‘Bombings Trip Up Reddit in its Turn in Spotlight’, New York Times, 28 April 2013. 43. B Koerner, ‘Why Isis is Winning the Social Media War’, Wired, March 2016. 44. R Greenslade, ‘Chinese Authorities Step Up Censorship Controls on Internal Media’, The Guardian, 13 January 2014. 45. ‘Turkey Moves to Block YouTube Access After “Audio Leak”’, BBC News, 27 March 2014. Access was later restored. 46. C Timberg, ‘Iraq Tries to Censor Social Media to Disrupt ISIS Communication, but its Success is Limited’, The Washington Post, 13 June 2014. 47. 18 USC @ 2701. 48. Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268. 49. Indeed, some commentators see falling numbers as an indication of the next phase of social media growth as a decentralised approach is adopted by some of the big players. See, for instance, M Elgan, ‘Why the Social Networks are Falling Apart’, Computerworld, 26 April 2014.

[page 29]

2 Social Media and Employment Law James B Mattson

OVERVIEW •

• • • • •

Social media’s impact on work cannot be ignored. Social media reaches into all aspects of employment, from pre-employment to termination of employment and post-employment competition. Employees face significant risk that their social media activity will readily come into work and have an adverse impact on work relationships, their duties, the business and reputations. Employees should be cautious and restrained in their use of social media (whether at work or not) and consider the consequences of their actions. Employers cannot be precious about all worker activity on social media. Employers need to be focused on protecting legitimate business interests. Employers need to protect the business and its goodwill from the opportunities social media presents a disgruntled and departing employee. Employers can address social media risks by careful planning and a considered strategy supported by policies, education and training.

INTRODUCTION 2.1 Embrace or loathe social media, its use in connection with work is both confronting and real. 2.2

There are dangers for both employees and employers with the use of

social media. Unfortunately, complete avoidance of social media is not practicable in this modern age. Employees will use social media, such as [page 30] Facebook and Twitter, to update friends on their working day, to ‘befriend’ work colleagues and to share (unedited) their life experiences and views. Employees will use LinkedIn (with tacit approval from their employer) to connect with clients and communicate about the business of their employer. Eventually, employees will use social media to promote their new employment or business ventures. All these interactions and communications on social media, unchecked and unregulated, present many challenges for both employees and employers. ‘It was inevitable with the seismic shift to the phenomenon of social media as a means of widespread instantaneous communication that it would lead to new issues in the workplace.’1 2.3 Social media challenges the divide between private life and public life, between conduct at work and conduct out of work hours. Social media is having an ‘in-and-out’ effect on work. Social media brings ‘private’ comments by employees into the workplace with relative ease. Employees cannot assume that postings on social media are like private conversations at the pub or around the water cooler at work.2 The Fair Work Commission (FWC)3 warned that what ‘might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people’: Fitzgerald v Dianna Smith t/as Escape Hair Design (Fitzgerald).4 Indiscretions have a greater audience, magnifying repercussions. There is now an expression for employees who are dismissed as a result of their online behaviour: they are ‘Facebook fired’. Employers, on the other hand, cannot be overly precious about all comments made by employees on social media during their own time. Some comments may be trivial, private or protected from any disciplinary action. Social media also allows, with relative ease, the leaking and misuse of confidential and sensitive business information in new and unique ways. Social media risks business contacts and opportunities leaving with a departing employee. 2.4 In examining the relationship between employment law and social media, this chapter focuses predominately on laws at the Commonwealth level, given that Australia largely has a national workplace system.5 Social media touches on

issues of contract, discipline, entitlements, human resources, industrial [page 31] activity, policy and work health and safety. Its reach is wide ranging. This chapter examines the impact of social media under the following topics: (a) the use of social media in pre-employment; (b) managing social media from engagement to employment; (c) the impact of social media on industrial relations (as social media also presents challenges and opportunities for unions); (d) discipline, termination of employment, unfair dismissal and settlements; and (e) the impact of social media on post-employment obligations. From that examination, what we see is employment law addressing the use of social media by applying existing rules to the new environment. Employment law has adapted its rules to new technology before: from the photocopier, to email and to the internet.6 The existing law can (and must7) adequately adapt to deal with and apply to social media.

THE USE OF SOCIAL MEDIA IN PRE-EMPLOYMENT 2.5 Information held on social media accounts could provide valuable insight about job candidates. Imagine a prospective employee presenting as a mature, responsible worker yet on Facebook bragging about alcohol- and drug-fuelled weekends. On the other hand, prospective employees increasingly use LinkedIn to join various interest groups to present an image of an active professional; is this the modern day embellished résumé? In reality, information on social media may provide a false impression. The challenge for employers is to determine what use is going to be made of information on social media.

Pre-employment screening — an overseas perspective 2.6 In the United States and United Kingdom, there have been reports of employers demanding job seekers provide their Facebook login details so they

can scrutinise and vet job candidates. Some say it is fair game; others view it as an invasion of privacy. The Australian Privacy Commissioner has said ‘requests of this kind are extremely privacy invasive, and … very difficult to justify’.8 Some states in the US have outlawed the practice. For example, in California, the Labor Code provides at s 980 that an employer cannot require or request an employee or applicant for employment to disclose their username or password for the purpose of accessing the person’s personal social media [page 32] account. There are exceptions to the prohibition; for example, being able to request that an employee divulge personal social media information relevant to a misconduct investigation. In Australia, there are presently no laws that explicitly prevent employers searching the internet and social media sites to gain an insight into a job candidate’s social activities, community and personality.9 For employers, the challenge is what to do with the information it gathers.

Discrimination laws 2.7 At the Commonwealth level, it is unlawful for an employer to decide not to employ or engage a person because of their: (a) race, colour, descent or national or ethnic origin: Racial Discrimination Act 1975 (Cth) s 9; (b) age: Age Discrimination Act 2004 (Cth) s 18(1); (c) disability: Disability Discrimination Act 1992 (Cth) s 15(1); or (d) sex, marital and relationship status, sexual orientation, gender identity, intersex status, pregnancy and family responsibilities: Sex Discrimination Act 1984 (Cth) s 14(1). There are other grounds and protected characteristics prescribed under state anti-discrimination and industrial laws that also need to be considered. 2.8 Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) also provides various protections to prospective employees against adverse action or discrimination because of: (a) a workplace right, union membership or industrial activity: ss 340 and 346;10

and (b) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin: s 351(1). 2.9 The above laws, collectively, protect job applicants from discrimination on the grounds of prescribed protected attributes. So, if the information gathered from a candidate’s social media account relates to one of the above protected attributes, then to not employ the job candidate because of that attribute would be unlawful. Breaches of discrimination legislation can result [page 33] in awards of damages and other orders being made against an employer: see, for example, s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth).

Privacy 2.10 Social media accounts contain a lot of personal information. More obvious examples of personal information one will find on a social media account could include name, age, employment history, academic qualifications, associations and affiliations, sexual preference and political views. If a prospective employee allows such information to be accessible then they have no basis for complaint about privacy.11 Whatever view of that debate is taken, an important issue remains as to obligations of an employer in respect of the personal information it accesses. 2.11 The Privacy Act 1988 (Cth) (Privacy Act) regulates the treatment of personal information collected, held and used by certain private sector organisations and federal public sector organisations. Under the Privacy Act a regulated private sector employer cannot do an act, or engage in a practice, that breaches the Australian Privacy Principles (APPs): s 15. The handling of the personal information of an employee by a private sector employer is exempt from the Privacy Act if the handling of the information is directly related to a current or former employment relationship and an employee record: s 7B(3). The exemption from the Act therefore does not benefit employers in respect of

prospective employees. The APPs include obligations on an employer to, relevantly: (a) not collect personal information unless the information is necessary for one or more of its functions or activities (APP 3.2); (b) collect personal information only by lawful and fair means (APP 3.5); (c) collect personal information about an individual only from that individual, unless it is unreasonable or impracticable to do so (APP 3.6); (d) not disclose personal information other than for the primary purpose for which it was collected (subject to a number of exceptions) (APP 6.1); and (e) provide the individual with access to the personal information held by it on request by the individual (subject to a number of exceptions) (APP 12.1). 2.12 At first glance it appears the Privacy Act provides a useful remedy for job applicants in respect of protecting their personal information. A problem [page 34] for employers may be whether, under APP 3.2, it is necessary for the employer to collect information about an employee from their social media account. That is, can an employer establish that it cannot effectively pursue a legitimate function without collecting personal information from a job candidate’s social media account? Prospective employees unsuccessful for employment could request access to information relating to them as held by the employer. As such, employers covered by the Privacy Act need to be careful about collecting information from a social media account in a manner that complies with the APPs. However, the Privacy Act does not cover all private sector employers; it only covers businesses with an annual turnover of more than $3 million: ss 6C and 6D. And, the Privacy Act is not a workplace law (Austin v Honeywell Ltd12), meaning that employees or prospective employees do not have a ‘workplace right’ within the meaning of the FW Act to privacy in respect of their personal information. 2.13 The other danger for regulated employers is the use of information about ex-employees collected after employment. In Hammond v Credit Union Baywide,13 the New Zealand Human Rights Review Tribunal awarded over $168,000 in damages to Ms Hammond for breaches of her privacy. Ms Hammond had resigned from NZ Credit Union (NZCU). Ms Hammond hosted

a private party where there was a cake with the words ‘NZCU F…K YOU’. Ms Hammond had a Facebook page that was not accessible to the public at large, due to her security settings. Ms Hammond posted a picture of that cake on Facebook. NZCU subsequently became aware of the picture and a screenshot was taken. NZCU then sent the screenshot to employment agencies in town warning against employing Ms Hammond. At the hearing, NZCU conceded it had collected personal information about Ms Hammond by downloading the picture, and that it had unlawfully disclosed that information. This case is a valuable lesson for employers to exercise caution when using and circulating information obtained from social media.

A practical warning to prospective employees 2.14 Establishing that information from a social media site was collected in breach of privacy or that information of a protected attribute was used to adversely determine suitability for employment, is likely to be difficult. Careful consideration of the content of a job applicant’s social media account is recommended. Rights may be limited. So, think before you post! [page 35]

MANAGING SOCIAL MEDIA FROM ENGAGEMENT TO EMPLOYMENT 2.15 Statutory provisions dealing with bullying, discrimination and work health and safety laws, compel employers to regulate the proper use of social media by employees: see generally Woolworths Ltd (t/as Safeway) v Brown.14 Social media touches on many aspects of the employment relationship, some of which this chapter now examines.

Contractual matters 2.16 The employment contract is the appropriate device to establish obligations of importance to the employment relationship. A breach of contractual obligations may give rise to the ability to terminate the contract and

seek damages for any loss or damage suffered as a consequence of the breach. Employers should therefore consider including contractual provisions in an employment contract specifically dealing with social media. Such provisions could include: (a) ensuring any use of social media is consistent with maintaining obligations of confidentiality, privacy and intellectual property; (b) prohibiting any use of social media that is, or could be taken to be, obscene, offensive, threatening, derogatory, harassing, discriminatory or hateful to employees, contractors, clients and suppliers; (c) imposing a restraint on making disparaging or negative remarks about the business of the employer (including post employment); and (d) requiring all use to otherwise be compliant with all laws applicable to their employment, including the Competition and Consumer Act 2010 (Cth) (such as ensuring no comments are made in trade and commerce that are misleading or deceptive) and the Australian Stock Exchange (ASX) Listing Rules (such as not to disclose market-sensitive information).

Policy 2.17 As discussed at the end of this chapter, employers should also have a policy on social media. From a disciplinary perspective alone, policies are strongly recommended. Employers have the ability to issue lawful and reasonable directions to its employees: Adami v Maison de Luxe Ltd (Adami)15 and R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan.16 A breach of a lawful and reasonable direction may provide a basis [page 36] for dismissal: Adami.17 A policy will contain lawful directions and make it difficult for employees to rely on ignorance to excuse their misuse of social media. The implementation of a policy on social media therefore serves three main purposes: (a) to document a lawful and reasonable direction to employees; (b) to educate employees on the dangers of social media; and

(c) to explain and set out the expectations of the employer in respect of an employee’s use of social media, including that a failure to meet the standards of behaviour could lead to disciplinary action. 2.18 An employee cannot refuse to acknowledge a policy on social media or refuse to undertake training on the basis the policy applies to conduct outside working hours. In Pearson v Linfox Australia Pty Ltd (Pearson),18 the FWC upheld the dismissal of an employee on grounds that included his refusal to acknowledge his employer’s social media policy. The FWC held that a social media policy cannot be constrained to operate in an ‘at work’ context only. A policy can, for example, legitimately seek to prevent employees damaging the business or releasing confidential information whether the employee engages in that behaviour at work or outside of working hours: at [47].

Induction, education and training 2.19 The effectiveness of any policy and strategy on social media is undermined unless it is communicated and there is education of employees as to its content and regular training to reinforce its provisions. In the context of unfair dismissal laws, a failure to have regular education and training on a policy could result in a dismissal for breach of the policy being overturned as unfair.19

Confidentiality 2.20 During employment, an employee must maintain the confidence of confidential material as part of their implied duty of good faith and fidelity.20 Statutory duties under the Corporations Act 2001 (Cth) should also not be ignored.21 Policies, procedures and contractual terms about confidentiality need to deal with the potential misuse of social media in [page 37] this area. Unfortunately, social media provides a means for employees to disclose confidential information, deliberately or inadvertently.22 Imagine an HR manager uploading to their social media account a photo of their cocktail drink overlooking the harbour but that drink is sitting on a confidential report about a

restructure; and soon the unions have organised the workers to go out on strike! Such situations could not only cause damage to the business but breach disclosure rules for publicly listed companies. For example, ASX Listing Rule 3.1 provides that ‘[o]nce an entity is or becomes aware of any information [that could] have a material effect on the price or value …, the entity must immediately tell ASX that information’. As the ASX recognises in Guidance Note 8, market-sensitive information may be inadvertently released on social media and, if that happens, companies may be required to respond promptly.23 As such, training in this area is vital. Employers (and employees) need to be warned that they may have limited avenues to recover information once disclosed. Prevention is the best strategy.

Workplace surveillance 2.21 Employees will use their employer’s computers, mobile devices and networks to access and utilise their personal social media accounts at work or after work hours. Use of work facilities after work hours may be a legitimate concern for an employer.24 So, can an employer lawfully monitor social media use on its computer devices and network? The FW Act expressly permits state governments to regulate workplace surveillance: s 27(2)(m). In New South Wales, for example, there is the Workplace Surveillance Act 2005 (NSW) (NSW Workplace Surveillance Act). For present purposes, this Act usefully illustrates some important matters concerning social media. 2.22 The NSW Workplace Surveillance Act imposes three main obligations in relation to computer surveillance of employees at work: (a) notification of computer surveillance before it commences; (b) the establishment of a computer surveillance policy; and (c) the establishment of a blocking of emails or internet websites policy. Employers cannot block websites merely because the website contains information relating to industrial matters: s 17(4). There is no reason why a website would not include a social media site from where social media accounts can be accessed. An interesting issue arises as to whether blocking [page 38]

access to social media sites is blocking access to sites that relate to industrial matters. Unions and regulatory departments are using social media sites to communicate about industrial matters. Are social media sites a ‘website’ that ‘contains information relating to industrial matters’? The likely answer is ‘no’. There is a distinction between a website that contains information relating to industrial matters and a social media site that happens to allow access to others discussing industrial matters. In fact, the NSW Workplace Surveillance Act probably did not have social media in mind at the time it talked of ‘emails and websites’, demonstrating how easily legislation can date in this modern age. 2.23

As prudent business practice, employers ought to consider:

(a) whether it will allow, on its facilities and networks, access to social media at all, only during breaks, or have no restrictions on access; (b) explicitly notifying employees that their use of social media on its facilities and network will be monitored and recorded (whether that use is during work hours or outside of work hours); (c) warning employees that their communications on social media accessed on employer-provided facilities or networks are not to be considered private; and (d) ensuring that any policy on computer use and surveillance adequately captures the monitoring and use of social media.

Work health and safety — cyber bullying 2.24 Social media facilitates communication between workers to occur not only by a new means, but also in a more public and persistent manner that continues and occurs outside of the confines of the physical workplace. Prudent employers would recognise the need to manage the risk of such communications, and the consequences of such communications, spilling into the workplace: see McManus v Scott-Charlton (McManus),25 discussed at [2.58], below. The risk of cyber bullying, ‘mobbing’ or ‘trolling’ is real and presents a risk to workplace cohesion and workplace safety. Employers cannot turn a blind eye to after-work conduct simply on the basis that it does not concern them. 2.25 Under the Work Health and Safety Act 2011 (Cth) (WHS Act) and other occupational health and safety legislation,26 employers have a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of

[page 39] employees at work in its business or undertaking: s 19(1). It can be accepted that there may be factual and legal issues as to whether any particular alleged bullying behaviour that occurs on social media out of work hours can be said to be ‘at work’ as required by the WHS Act.27 Safety legislation may not directly regulate after-hours conduct, but the common law (see McManus) recognises the legitimacy of employer regulation in this area to ensure safety (and cohesion) at work. 2.26 Safe Work Australia published in November 2013 a guideline titled, Guide for Preventing and Responding to Bullying in the Workplace. The guideline (at 2) defines workplace bullying as: repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

The guideline provides some more definitions: Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time. Unreasonable behaviour means behaviour that a reasonable person, having regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.

The guideline (at 2) then gives examples of what behaviours may be bullying: Examples of behaviour, whether intentional or unintentional, that may be considered to be workplace bullying if they are repeated, unreasonable and create a risk to health and safety include: • •

abusive, insulting or offensive language or comments unjustified criticism or complaints

… •

spreading misinformation or malicious rumours28

There is no reason why repeated inappropriate communications by employees against other employees on social media of the nature illustrated above would not amount to bullying behaviour.29 [page 40] 2.27

The FW Act provides employees30 with ready access to the FWC to

seek orders in respect of workplace bullying.31 The FWC must deal with such applications within 14 days: s 789FE. There is a low threshold to make a claim. An employee is able to make an application to the FWC simply if the employee reasonably believes that he or she has been bullied ‘at work’: s 789FC(1). Like the WHS Act, the alleged bullying has to be ‘while the worker is at work’: s 789FD of the FW Act. As expected, there has been a challenge to the jurisdiction of the FWC to deal with comments made outside of work on social media. In Bowker & Ors v DP World Melbourne Ltd & Ors,32 the Full Bench of the FWC provided guidance as to when behaviour on social media will be considered ‘at work’. Part of the complaint in this case related to posts made on Facebook by a group of workers towards others outside work. In examining the requirement that the bullying must occur ‘while the worker is at work’ the FWC noted there is no requirement that the individual or group engaging in the bullying conduct must be at work at the time of their conduct.33 Examining whether the conduct on social media was within jurisdiction, the Full Bench said:34 … But how does the definition of ‘bullied at work’ apply to such behaviour? For example, say the bullying behaviour consisted of a series of facebook posts. There is no requirement for the person who made the posts (the alleged bully) to be ‘at work’ at the time the posts were made, but what about the worker to whom they are directed? During the course of … argument … the [respondent] submitted that the worker would have to be ‘at work’ at the time the facebook posts were made. We reject this submission. The relevant behaviour is not limited to the point in time when the comments are first posted on facebook. The behaviour continues for as long as the comments remain on facebook. It follows that the worker need not be ‘at work’ at the time the comments are posted, it would suffice if they accessed the comments later while ‘at work’ …

An employee can also argue that the out-of-work comments have come into the workplace through other behaviour. The nature of social media means that communications outside of work may nevertheless find themselves at work impacting on the employee. Given the beneficial nature of the legislation to [page 41] focus on safety, the FWC has adopted a broad practical view of whether a worker is being bullied at work. 2.28 There have been very few cases of bullying involving the use of social media. Most notably, the FWC examined the act of ‘defriending’ and whether that constituted bullying. The facts of the case in Roberts v VIEW Launceston Pty

Ltd & Ors35 are a little unusual. The case concerned a real estate agency in Tasmania where the alleged bully was the wife of the owner of the agency. There were various behaviours that constituted bullying and it was towards the end of a series of behaviours that the wife called Ms Roberts a ‘naughty little school girl running to the teacher’ for complaining to her husband/the owner. The wife then, in that context, defriended Ms Roberts. The FWC acknowledged the wife was ‘drawing a line under the relationship’ but said ‘[t]his action … evinces a lack of emotional maturity and is indicative of unreasonable behaviour’.36 Context is important. Choosing not to befriend, follow or connect with work colleagues in the first place would not be bullying itself. If you choose to defriend, unfollow or unconnect then it should not be part of a pattern of unreasonable behaviour, and perhaps politely explained before execution.

Sexual harassment and vilification 2.29 Under the Sex Discrimination Act 1984 (Cth) (SD Act), a person sexually harasses another person if the first person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated: s 28A(1). Clearly, conduct of a sexual nature can occur over social media. What is the liability of employers for such conduct on social media? Under s 106 of the SD Act an employer is liable for the acts of its employees ‘in connection with their employment’ unless the employer establishes it took all reasonable steps to prevent the employee engaging in that conduct. The phrase ‘in connection with their employment’ is a broad one: South Pacific Resort Hotels Pty Ltd v Trainor (South Pacific).37 As Kiefel J (now High Court justice) found, the phrase simply requires ‘that the unlawful acts in question be in some way related to or associated with the employment’.38 In South Pacific, the employer was found liable for the sexual harassment of an employee by another employee that occurred out of hours but in employer-provided accommodation. [page 42] 2.30

It would seem as a matter of principle harsh to find that an employer is

liable for sexual harassment that occurs out of work hours between two employees who, of their own volition, engage in communications over social media. Is it enough that the two employees met because of their employment? Perhaps not, but, as discussed above, there is a real risk of such communications, and the risks created by those communications, coming into the workplace that require employer overview. In Lee v Smith,39 the Federal Magistrate’s Court of Australia (now the Federal Circuit Court) found the employer liable for the rape of a worker by a co-worker even though the rape occurred out of hours and in a private residence. The court held, at [206], that the rape was a ‘culmination’ of earlier conduct of a sexual nature from the workplace such that the connection with work ‘was not broken’. Ultimately, each case will turn on its own facts as to whether an employee’s out-of-work conduct has a relevant connection to their employment.40 To avoid liability, employers will be best advised to focus their attention on taking all reasonable steps to prevent the employee engaging in that conduct. In the area of social media, employers can at least educate employees on the risk. Regular education and training is a must. 2.31 Users of social media should also not forget that there are laws, such as the Racial Discrimination Act 1975 (Cth) (RD Act), that prohibit engaging in behaviour that is offensive or vilifies a person because of a protected attribute, such as race: s 18C of the RD Act. Comments on social media could potentially fall within the reach of such laws. The critical issue will be whether comments on social media are private. Section 18C does not apply to private conversations. Given the nature of social media, comments on social media could be considered not to be private.41 A lot will depend on the circumstances,42 and the extent of privacy settings used to prevent the dissemination of communications to a wide audience.43

Sick leave and workers’ compensation claims 2.32 Information on social media accounts can provide evidence to challenge and defeat claims for sick leave or workers’ compensation. The National Employment Standards require an employee to give the employer ‘evidence that would satisfy a reasonable person’ that they took leave because they were sick.44 [page 43]

What that evidence may be is not prescribed. The usual rule is that, absent evidence to the contrary, a medical certificate that states an employee is unwell for work is sufficient proof.45 An employer can, however, question medical certificates in cases of forgery or in situations of misuse. Examples include: an employee undertaking secondary employment whilst absent for ‘viral illness’;46 and an employee who provided a medical certificate but attended a sporting event instead.47 Information on a social media site allows an employer to question the validity of a medical certificate. In New Zealand, the Employment Relations Authority allowed an employer to access an employee’s Facebook to test the veracity of her explanation for taking sick leave.48 In Dekort v Johns River Tavern Pty Ltd t/as Blacksmiths Inn Tavern,49 an unfair dismissal application was dismissed for having no reasonable prospects of success. The employee was dismissed from his employment as a bar attendant for misrepresenting he was sick for work on 30 and 31 December, with a medical certificate dated 4 January. A Facebook posting showed him partying on New Year’s Eve, creating an unexplained inconsistency with his asserted unfitness for work. In Basic v Australian Associated Motor Insurers,50 statements on Facebook were used to test the employee’s claims of impairment to defeat a compensation claim.51

Workplace investigations 2.33 If a complaint is made about the misuse of social media, then employers need to quickly take steps to preserve any evidence from social media accounts. Posts and information on social media accounts can be readily deleted. It is important to include an obligation in any policy prohibiting an employee from deleting any information from their account that might be relevant to an investigation (once they are aware or notified of a complaint or an investigation). [page 44]

THE IMPACT OF SOCIAL MEDIA ON INDUSTRIAL MATTERS 2.34 Industrial relations, including agreement-making and industrial action, are not immune to the impact of social media. Social media has proven to be a powerful device for unions to generate membership, promote their campaigns

and to notify of industrial action and strategy. For employers, social media allows it to gather evidence of pending or threatened industrial action. HR personnel and lawyers for employers would be remiss to not follow unions and delegates on Facebook and Twitter.

Enterprise agreements 2.35 Under the FW Act, enterprise agreements to be approved must be better off overall when compared to the relevant award: s 193 of the FW Act. In Broadmeadows Disability Services,52 the FWC found that a clause in a proposed enterprise agreement dealing with social media was a detriment for the purposes of the ‘better off overall’ test. The employer argued the clause simply clarified its expectations on social media use and provided guidance to employees. The FWC, however, said (at [105] and [109]) the clause went too far in prohibiting an employee from putting any comments about the employer’s business on social media at any time, imposing limitations on employee freedom to talk about their work on social media. Given that analysis, the clause was seen as a negative in assessing the better off overall test. The above reasoning, along with the matters relating to general protections (see [2.40], below), suggests the need to ensure that any direction, policy or obligation on social media use is reasonable, proportional and connected to employment.

Industrial activity 2.36 Social media may provide opportunity for unions to garner support for the making of an enterprise agreement amongst members at a workplace. Under the FW Act, if an employer refuses to agree to bargain for an enterprise agreement, the union can seek a majority support determination (MSD) that requires the employer to bargain: s 236 of the FW Act. Evidence in support of an MSD often includes signed petitions by a majority of employees.53 There appears to be no reason why a union could not show that a majority of members ‘liked’ a union proposal on Facebook to seek an MSD, provided the likes were in answer to a specific proposition. In iCabinCrew Connect,54 the FWC found ‘likes’ on a Facebook page did not establish [page 45]

majority support for the registration of an industrial association because the ‘likes’ were not in response to a specific question on whether the members supported registration. 2.37 There have been occasions when employers have used evidence of postings or tweets to support an application for orders preventing threatened or pending industrial action: see John Holland Pty Ltd v CFMEU ( John Holland ).55 Though, again, any posting or tweet needs to be considered in context. In Recall Information Management Pty Ltd v National Union of Workers,56 the court was considering whether a number of unions had been involved in a picket line at Recall’s premises. Recall was alleging various torts, like the tort of conspiracy, and a breach of s 45D of the Competition and Consumer Act 2010 (Cth).57 It was alleged other unions were acting in concert with the National Union of Workers (NUW). The employer relied on evidence of a posting by the NUW on Facebook for ‘WA members who are available to get down to the Recall picket line at …’. The employer relied on the posting to demonstrate that the unions were acting in concert. However, the posting was taken literally to contain a ‘call to arms’ directed to NUW members and not to other unions.58 2.38 Postings by unions may also be used to demonstrate or suggest that the union is not bargaining in good faith. In National Union of Workers v Linfox Australia Pty Ltd,59 the FWC had to consider whether the union was meeting its good-faith bargaining obligations to rely on a Facebook post that was inaccurate and believed to be threatening unprotected industrial action. It appeared to be a posting approved by the NUW but it was not enough to justify a finding that the union was not bargaining in good faith. Interestingly, the FWC said at [25], ‘[i]nformation on a Facebook page cannot be treated like a union bulletin or union newspaper’. Whether such a distinction can be made with social media communications might then turn on the facts in each case. 2.39 The courts and the FWC have issued orders for the cessation of industrial action, requiring unions to notify members to cease such action by providing advice to members by a posting or tweet.60 Such communication of the court’s orders by social media has been described as ‘sensible and appropriate’.61 [page 46]

General protections 2.40 Part 3-1 of the FW Act provides various protections for employees against adverse action62 for reasons that include63 any protected attributes held by the employee. The attributes that are protected include: that the employee has a workplace right, exercises or proposes to exercise a workplace right: s 340(1)(a) of the FW Act. A workplace right includes having the benefit of, or a role of responsibility under a workplace law (s 341(1)(a)), being able to participate in a process or proceeding under a workplace law (s 341(1)(b)) or being able to make a complaint or inquiry in relation to their employment (s 341(1)(c)). An example of a workplace right is the right to be involved, as a bargaining representative, in negotiations for an enterprise agreement. Activity such as reporting on negotiations, if conducted on social media, is likely to be protected. An employer also cannot take adverse action against another person because they do, or propose to, engage in an industrial activity: s 346(b) of the FW Act. Industrial activity includes joining a union (s 347(a)), promoting a lawful activity of a union or participating in such activity (s 347(b)(ii) and (iii)), representing or advancing the views of a union (s 347(b)(v)), and promoting or participating in an unlawful activity organised by the union (s 347(c) and (d)). An employer cannot act against an employee for reasons that include an employee’s involvement in such industrial activity. Such activity may very well be conducted on, or facilitated by, social media. 2.41 The existence of these protections requires a degree of caution from employers in drafting any policy on social media and when taking action in respect of certain activity on social media. In the United States, the National Labor Relations Board (NLRB) has criticised employer policies for being too broad in simply banning all negative discussion about the employer.64 Discouraging workers from exercising their rights is not permissible. Exercising rights protected under statute, via discussions on social media, is protected. Taking disciplinary action against an employee for comments on social media about enterprise agreement negotiations, or union matters, would be fraught with danger.65 2.42 The United States case of Pier Sixty LLC v Perez and Gonzalez (Pier Sixty),66 represents the struggle with social media, workplace rights and appropriate [page 47]

workplace behaviours. In this case, the employees of a catering company were seeking union representation and, two days before the vote, there was an incident at a fundraising event. Mr Perez, a server, was approached by management (Bob) to ‘stop chitchatting’ and return to work. Mr Perez vented his frustration on Facebook, saying: ‘Bob is such a NASTY MOTHER F… KER don’t know how to talk to people!!!!!!! F…k his mother and his entire f… king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!’. Mr Perez was dismissed. The NLRB (by majority) found the employer violated the employee’s statutory protection to communicate collectively about workplace conditions. The majority said the comments ‘asserted mistreatment of employees’ and was ‘seeking redress through the upcoming union election’ and, as such, remained protected union activity. 2.43 If, in Australia, dismissing Mr Perez was only motivated by his inappropriate offensive conduct, it is doubtful a similar result would follow given the High Court decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay.67 Mr Barclay was a team leader employed by the institute and was also a union official. Mr Barclay sent an email to union members at his workplace advising of reports of employees ‘being asked to be part of producing false and fraudulent documents’ and asking them not to participate in creating ‘false/fraudulent documentation’ as part of the institute’s application for re-accreditation.68 Mr Barclay did not relay these concerns about alleged fraud to his employer. When becoming aware of Mr Barclay’s email correspondence to on-site union members, the institute’s chief executive officer suspended Mr Barclay for not disclosing the alleged fraudulent behaviour. The High Court accepted the CEO acted not because Mr Barclay was a delegate or engaged in an industrial activity, but because of his failure to disclose a serious matter to his employer, particularly given his team leader role. Sometimes, it is the nature (and appropriateness) of the communication that is determinative of the lawfulness of an employer’s disciplinary action.69 As the minority in Pier Sixty said:70 We live and work in a civilized society, or at least that is our claimed aspiration. The challenge in the modern workplace is to bring people of diverse beliefs, backgrounds, and cultures together to work alongside each other to accomplish shared, productive goals. Civility becomes the one common bond that can hold us together in these circumstances. Reflecting the underlying truth, moreover, legal and ethical obligations make employers responsible for maintaining safe work environments that are free of unlawful harassment.

[page 48]

Given all this, employers are entitled to expect that employees will coexist treating each other with some minimum level of common decency. Personally directed and insulting statements like Perez’ Facebook posting about [Bob], his mother, and his family, typically cause irreparable damage to working relationships. … Therefore, I find that Perez’ comments lost … protection, and that the Respondent’s discharge of him for his opprobrious Facebook posting was lawful.

Employers need to be certain that the workplace right or protected attribute is not a reason for motivating any action taken.

DISCIPLINING EMPLOYEES FOR MISUSE OF SOCIAL MEDIA 2.44 When an employee misuses social media, an employer will need to act swiftly and consider any action in response, including disciplinary action. A failure to act on any disobedience or misconduct could be considered to be a waiver of the right to take action in respect of the employee’s misconduct.71 The disciplinary action will involve a choice between dismissal or some other sanction.

Contractual powers of discipline 2.45 Ordinarily, from a contractual perspective, an employer confronted with employee misuse of social media is faced with an election between exercising a contractual power to dismiss or not. There may be cases involving the misuse of social media where summary dismissal, without any notice, is open to an employer. The FWC held that the dismissal of an employee for advertising their new business to clients of their then employer warranted summary dismissal: Pedley v IPMS Pty Ltd t/as peckvonhartel (Pedley).72 Whether summary dismissal is justified is a question of fact.73 In the case of disobedience of a direction or policy, the disobedience would need to be wilful: Adami. In the case of misconduct warranting summary dismissal, it has been said the conduct must itself be sufficiently serious ‘that by the standards of fairness and justice the employer should not be bound to continue the employment’: North v Television Corp Ltd.74 The conduct must be ‘conduct which in respect of important matters is incompatible with the fulfillment of an employee’s duty, or involves an opposition, or conflict [with their] duty to [the] employer, … or is destructive of the necessary confidence between employer and employee’.75 [page 49]

Single acts of disobedience or misconduct do not ordinarily justify summary dismissal,76 unless the single act of disobedience or misconduct is aggravating in character. 2.46 In the context of social media, a mere failure to follow policy may not be enough to warrant summary dismissal at common law. The failure would need to involve conduct with some aggravating circumstance, such as the deliberate or grossly negligent disclosure of confidential information by a senior employee or an employee engaging in a pattern of behaviour that affects a coworker’s health and safety. In light of the burden on employers to justify summary dismissal, dismissal on notice then remains a viable option for employers confronted with the inappropriate use of social media by employees. For employees not covered by an award or enterprise agreement, and earning more than $136,700 a year,77 an employer can usually terminate employment at any time for any reason, on notice in compliance with the contract.78 For other employees, regard must be had to unfair dismissal laws, discussed in the next section of this chapter, beginning at [2.53]. 2.47 Of course, dismissal need not be the only response to the misuse of social media. Contracts rarely provide a regime for other disciplinary action. In the absence of an explicit term, it could be a repudiation of an employee’s employment contract to unilaterally vary an employee’s position or pay as a form of disciplinary action.79 An interesting example of taking disciplinary action, absent a contractual power to do so, is Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd.80 In that case, the misbehaving employees were required to make an election between dismissal and a period of leave without pay. Such an option was viewed as ‘merciful’ and not unlawful.81 There is no reason, in the right circumstances, why an employer may not consider some other form of sanction short of dismissal for misuse of social media.

The public sector experience 2.48 In Applicant v ACT Dept of Education and Training,82 the FWC was asked to review a decision to reduce a teacher’s salary for having students as friends on her Facebook account. There was no challenge to the reasonableness of the department’s policy to prohibit teachers having students as friends on [page 50]

Facebook.83 The teacher was unsuccessful in her appeal. Arguments that she was not friends with students, or that someone hacked into her Facebook account, were rejected.84 2.49 In McDiarmid v Cmr of Police (McDiarmid),85 the NSW Industrial Relations Commission largely upheld the demotion of a sergeant to the rank of constable for misuse of social media. While a sergeant of police, Mr McDiarmid used Facebook to speculate about whether a constable at his station had been the unnamed offender charged with a public disorder offence; Mr McDiarmid involved himself in office gossip and undermined his role as a sergeant. Astutely, President Boland said:86 … However, this is not simply a case of a police officer engaging in private conversations over the Internet with friends and being punished because the conversations were work related and involved criticism and derogatory remarks about other police officers and discussions about the criminal conduct of another officer. It is also not a case about the respondent seeking to prevent or stultify police ‘gossip’ or the ordinary day-to-day banter between police regarding what occurs at work, including about the criminal conduct of other police. I think that would be about as successful as Prohibition and counter- productive.87 The case is about a Sergeant of police in a supervisory position inappropriately communicating with junior officers. The exchanges were disparaging of other police officers … One would not expect this sought [sic] of conduct from a police Sergeant, regardless of the fact that the communications were with friends.

The president’s above remarks demonstrate: (1) the practical and realistic scope of a social media policy to prevent office gossip; and (2) that sometimes, depending on an employee’s seniority, higher standards of conduct may be required (even out of work hours).88 2.50 Public servants also need to appreciate their role to be impartial and serve the government with such impartiality: see, eg, s 10(5) of the Commonwealth Public Service Act 1999 (Commonwealth Public Service Act). The making of comments on social media about political matters could potentially draw into question a public servant’s impartiality. Often, there is legislation and a code of conduct that governs public servants. For example, the Commonwealth Public Service Act provides at s 13 that public servants [page 51] ‘must at all times behave in a way that upholds the good reputation of Australia’, ‘behave honestly and with integrity’ and ‘disclose, and … avoid, any conflict of

interest’. The case of Banerji v Bowles (Banerji)89 usefully illustrates the dangers for public servants in using social media. In this case, Ms Banerji established a Twitter account using an alias ‘Twitter handle’ of ‘@LALegale’. Under that alias Ms Banerji made regular comment ‘mocking’ and being ‘critical’ of her employer, the Immigration Department, employees of the department, the government, the opposition and even the then prime minister. Once discovered, Ms Banerji’s ongoing employment was questioned. 2.51 Ms Banerji argued that, as the comments tweeted by her were made on her own time and out of work, any disciplinary action would infringe her constitutionally protected right to engage in political communication.90 The court rejected any submission that her comments were protected; ‘even if there be a constitutional right of the kind for which [Ms Banerji] contends, it does not provide a licence … to breach a contract of employment’.91 Ms Banerji had to comply with the Commonwealth Public Service Act and the code of conduct. Public servants should, given the nature of their employment, exercise some caution in the use of social media, including after hours. 2.52 Not all activity on social media by public servants, even if political in nature, will warrant sanction. Context will be important. In the case of Starr v Department of Human Services (Starr),92 Mr Starr (a government officer) had responsibility for dealing with recipients for social security benefits. Mr Starr habitually posted on social media under the name ‘mmmdl’ during his own time and using his own computer. Mr Starr posted comments on an IT and sports website, making critical comments of recipients of social security benefits as ‘spastics and junkies’ and was critical of recipients suffering depression, saying ‘every 2nd certificate is for depression’ and, whilst acknowledging some genuine cases, said ‘here’s an idea, get a job, meet some people, bingo, you won’t be so depressed’. The department questioned Mr Starr’s impartiality to perform his job. The FWC disagreed with the department, saying:93 In my opinion, the reference to … being apolitical in s.10(5) is to be read as meaning apolitical in the exercise of its functions … It may be accepted that, in some cases, the public expression of political views by public servants in their private time might compromise their capacity to carry out their work functions impartially … This might happen if, for example, a departmental secretary, a policy advisor, a ministerial staff member or a senior diplomat publicly and

[page 52] emphatically criticised the government of the day. However in the case of the vast majority of

public servants who perform routine administrative tasks (such as Mr Starr), it is difficult to envisage any circumstance in which the robust expression of political views and criticism of the government outside of work could have an impact on the performance of their duties.

UNFAIR DISMISSAL AND SOCIAL MEDIA 2.53 The area where the use of social media has received the most attention is the unfair dismissal jurisdiction. Award-covered employees, or employees earning less than $136,700 per annum,94 who have passed a minimum period of employment,95 have access to the unfair dismissal jurisdiction in Pt 3-2 of the FW Act. An employee who has been dismissed96 can, if their dismissal is unfair, seek orders for reinstatement, re-employment and/or compensation: s 390(1). Compensation is limited to six months’ pay or $68,350:97 s 392(5) of the FW Act. 2.54 In determining whether a dismissal is unfair, the FWC must consider matters of substance (Is there a valid reason for dismissal?) and matters of process (Was a fair process followed by the employer before making the decision to dismiss?): s 387 of the FW Act. A reason will be valid if it is ‘sound, defensible or well-founded’.98 After considering matters of substance and process, the FWC must then relevantly determine whether, in all the circumstances, the dismissal is harsh, unjust or unreasonable: s 385(b).99 [page 53] McHugh and Gummow JJ of the High Court in Byrne & Frew v Australian Airlines Ltd said:100 It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

2.55 In the area of social media, the reason for dismissal will be connected to the employee’s conduct, including disobedience of a policy on social media. In Potter v WorkCover Corp,101 the Full Bench of the Australian Industrial Relations

Commission observed: Of course breaching an employer’s policy will not of itself automatically give rise to a valid reason for termination of employment. It depends on the character of the policy and the nature of the breach. The policy in question must be lawful and reasonable.

As we now examine, issues concerning the gravity of the breach or the severity of the conduct are relevant to the outcome.

Excessive and improper use 2.56 There is little doubt that excessive use during working hours of social media distracting an employee from their usual duties (whether on personal devices or work computer) can provide a basis for dismissal.102 Some jobs might justify no use of social media, including for safety reasons.103 It would also be a fundamental breach of employment obligations for an employee to use social media to solicit work from clients of their employer for the employee’s proposed new business: Pedley. The use of social media to take or disclose confidential or sensitive business information would also warrant [page 54] dismissal: Ziogas v Telstra Corp Ltd (Ziogas).104 In that case, Mr Ziogas copied his employer’s industrial strategy and gave it to the union. The issue of whistleblowing was not addressed on the facts of Ziogas and whether an act of whistleblowing may be an exculpatory factor in determining whether a termination is harsh, unjust or unreasonable.105 It is worth noting that a very public disclosure over social media is unlikely to be whistleblowing and protected under legislation, particularly given that the disclosure is made in a public forum.106

Out-of-hours conduct 2.57 Employees predominately use social media outside of work hours (on their personal devices). Such use is considered to be personal and private and should not be a concern for employers. Occasionally, however, the use of social media will involve the making of inappropriate comments about a co-worker, a

supervisor or manager, or the business itself. It may involve conduct that is inappropriate; for example, the harassment of a co-worker. More controversial use of social media that has attracted the attention of employers included a broadcaster’s dismissal of a journalist over controversial Anzac Day tweets107 and a building company’s dismissal of a supervisor for calling a newspaper columnist a ‘slut’ on Facebook.108 Views may differ on the boundaries for holding employees accountable for their own personal views expressed during their own time; albeit, openly displayed. The challenge, in an employment law context, is determining: (1) whether an employer has a legitimate concern in monitoring that out-of-hours conduct; and (2) whether an employer can dismiss an employee in these circumstances. 2.58

The Federal Court in McManus said:109

I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.

[page 55] It has been said that for an employer to supervise an employee’s private life requires ‘exceptional circumstances’.110 However, in McManus where the context was an employee sexually harassing a co-worker outside of work, the court held it was lawful and reasonable for the employer to direct the employee to cease that out-of-work behaviour:111 … once an employee’s conduct can be shown to have significant and adverse effects in the workplace — because of its impact on workplace relations, on the productivity of others, or on the effective conduct of the employer’s business — that conduct becomes a proper matter of legitimate concern to an employer, and does so because of its consequences.

Undoubtedly, some conduct out of work hours on social media will have a relevant connection to work. It may be, because of the fluid nature of social media, that the misuse of social media will have a potentially closer connection to work than does other conduct out of work hours. By its nature, comments made on social media lack any privacy. The very nature of social media may easily bring a private comment into the workplace. Courts may be relaxing the divide between private and public life when there is impropriety with a connection to work. A recent example of a sufficient connection to work is the case of Griffiths v Rose,112 where just using the employer’s laptop was sufficient to warrant the employer being concerned about the employee accessing

pornography at home, in his own time and using his own internet service provider. 2.59 Ultimately, determining the divide between personal and work matters can be elusive. In B Rose v Telstra Corp Ltd113 a fight between co-workers after work hours did not justify dismissal of the employee. It was said that an employer had no grounds to dismiss an employee following a physical altercation (fight) with a workmate after work. Vice President Ross of the Australian Industrial Relations Commission (AIRC) (as he then was) said, in the context of unfair dismissal claims: It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited: • • •

the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or the conduct damages the employer’s interests; or the conduct is incompatible with the employee’s duty as an employee.

As will be seen, the FWC has applied these principles when considering cases concerning the misuse of social media. [page 56]

Unfair dismissal cases on social media A need to identify the business 2.60 Employers may complain that an inappropriate tweet or post reflects badly on the business; but the business must be identifiable from the tweet or post. In Fitzgerald v Dianna Smith t/as Escape Hair Design,114 Ms Fitzgerald posted a general comment on her Facebook account complaining about a warning she received and that she was paid no holiday pay. As a result, her employment was terminated. The commissioner warned that it would be ‘foolish’ for employees to think that postings on their Facebook page are ‘with total immunity from any consequences’: at [52]. However, the posting in this case did not name the employer and there was no evidence of damage to the employment or business. As such, the employer did not have a valid reason to dismiss Ms Fitzgerald for her Facebook posting. On appeal, the Full Bench agreed that in the absence of any evidence of damage to the business, a posting that failed to identify the

employer did not provide a valid basis to terminate employment.115 In Mitchell v HWE Mining Pty Ltd (Mitchell),116 the employee was dismissed for offensive remarks about her employer on her Facebook page.117 The employee lodged her unfair dismissal claim late, and reluctantly the FWC dismissed the employee’s application for an extension of time. The reluctance stemmed from the employee not being trained in the employer’s social media policy and the employer being unable to provide evidence of any adverse impact from the employee’s remarks on Facebook. 2.61 In contrast is the case of Harvey v Egis Road Operation Australia Pty Ltd118 (upheld on appeal119) (Harvey). Mr Harvey was going through a divorce, when his ex-partner emailed his employer complaining about aggressive and abusive emails sent to her from his LinkedIn account. The emails identified the employer’s business and Mr Harvey’s role as safety manager at Egis. Mr Harvey was dismissed for many reasons, including the LinkedIn emails. In respect of the emails, SDP Richards said:120 There were other matters that negatively affected the employment relationship and which reflected poorly on the Applicant’s judgment. One such matter was the offensive email … True it is that the email appears to have been sent from within the Applicant’s personal LinkedIn account, but the email essentially ‘advertised’ the Applicant’s role as an employee of Egis and expressly refers to his position with Egis and to the Egis brand.

[page 57] It would ordinarily be thought that the Applicant ought to have been sufficiently conscious of the need to preserve the good name and reputation of his employer. The use of the employer’s name and his position title in a particularly offensive email to send to his (presumed) former partner was profoundly naïve…

Complaining about workplace matters 2.62 There is a right way to complain and a wrong way; and, when it comes to employment disputes, complaining over social media is not advisable. Maturity must be shown.121 In Dover-Ray v Real Insurance Pty Ltd (Dover-Ray),122 Ms Dover-Ray made sexual harassment allegations against a manager. The employer investigated the allegations and Ms Dover-Ray was advised her complaint was unsubstantiated. Ms Dover-Ray, dissatisfied, wrote a blog on social-networking site, MySpace. The blog criticised the investigation and made accusations of corruption. The blog was publicly accessible through a Google

search. Ms Dover-Ray’s friends on MySpace included work colleagues. Ms Dover-Ray did not remove the blog when requested; this was aggravating conduct. The FWC formed the view that the blog was an attack on the employer, and allegations of corruption were serious. The FWC was mindful that there were other legitimate avenues available to Ms Dover-Ray to pursue her allegations. The FWC found there was a valid reason to terminate Ms Dover-Ray’s employment. 2.63 In O’Keefe v William Muir’s Pty Ltd t/as Troy Williams The Good Guys (O’Keefe),123 Mr O’Keefe had an ongoing pay issue with his employer. On his Facebook page, Mr O’Keefe wrote ‘f…ing work still haven’t managed to f…ing pay me correctly. C…s are going down tomorrow’. Some of Mr O’Keefe’s friends were co-workers. The comments were directed towards Ms Taylor, the operations manager. The FWC determined Mr O’Keefe’s dismissal was justified. It said:124 The Employee Handbook referred, amongst other things, to the requirement of employees to be aware that: ‘In communicating with other staff, customers and suppliers, employees should be courteous and polite, maintain a high level of honesty and integrity and present themselves and the business professionally. Employees will not use offensive language, resort to personal abuse or threaten or engage in physical contact.’

[page 58] The Employee Handbook also contained detailed Policies, such as the Sexual Harassment Policy and the Workplace Bullying Policy. Even in the absence of the respondent’s Handbook …, common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred. The fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before Ms Taylor was advised of what had occurred. The respondent has rightfully submitted, in my view, that the separation between home and work is now less pronounced than it once used to be.125

This was a commonsense decision that ensured a ‘fair go all round’.126 The FWC found the Mr O’Keefe’s conduct was serious misconduct directly attacking a manager (‘c…s are going down tomorrow’) and publicly criticising his manager in a manner that was abusive and destructive of the necessary confidence required in the working relationship. The remarks by Mr O’Keefe were not a mere statement of discontent but rather were a personal attack.

Criticising the employer’s business or product 2.64 In the UK case of Crisp v Apple Retail (UK) Ltd,127 the tribunal determined the dismissal of an employee of Apple was not unfair. The employee had been trained on ‘protecting [the] company image’ and being mindful of how they present themselves on social networks. So, when the employee made a number of Facebook posts criticising the functionality of the iPhone, he was dismissed for bringing the name of the company into disrepute. The tribunal held the employer’s response was within the range of reasonable responses and chose not to intervene and overturn the dismissal. A similar approach may not be taken in Australia. The outcome will depend on the nature of the comments and the role and/or seniority of the employee in question. One doubts that under the FW Act a complaint by a mere storeperson about their employer’s product would itself be of such gravity to warrant dismissal, particularly if the employer is a large corporation: see Fitzgerald. The outcome may be different for more senior staff. 2.65 The case of Starr (discussed at [2.52], above) demonstrates that online criticism of an employer, colleagues and clients needs to be carefully considered in context, and that employers should not be ‘so thin-skinned’ about any adverse [page 59] remarks.128 Mr Starr called clients ‘spastics and junkies’, described colleagues as ‘utterly useless people’ and said business processes were ‘utterly disgraceful’ such that he was ‘embarrassed to work’ at his employer. Comments about clients and his workplace were described by the FWC as ‘clearly excessive’,129 providing a valid reason for dismissal. However, his comments about colleagues, and other comments about management, were not viewed as serious. The comments were expressed in the abstract rather than at any particular person; the department employed thousands of people. There was no evidence that Mr Starr’s remarks caused actual damage to the department’s reputation. Having regard to Mr Starr’s lengthy service, competent performance as an employee and the personal consequences of dismissal for him, the FWC found his dismissal to be harsh. Mr Starr won his job back, but not without sanction. The FWC refused to award him compensation for lost remuneration, saying his conduct ‘was worthy of a lesser but still significant disciplinary response’ to send a message ‘to him, other employees … and the public that conduct of the type [Mr Starr] engaged in is

unacceptable and not condoned by the Commission’.130

To ‘like’ or not to ‘like’ 2.66 Customers or others may make negative comments about an employer on social media. What if an employee ‘likes’ those comments or ‘retweets’ the negative comment to a larger audience? In Rani v Limitless Ventures Toscas Pty Ltd t/as Toscanis Mackay,131 the FWC did not seem overly concerned by a restaurant manager’s ‘liking’ of a customer’s complaint on Facebook. The FWC said the act of ‘liking’ did not lead it ‘to conclude that Ms Rani had set out to damage her employer’s corporate reputation’. In the US case of Triple Play v National Labor Relations Board,132 the United States Second Circuit Court of Appeal found the ‘liking’ of comments complaining about the employer’s incorrect handling of withholding tax, to be protected. In the United States, employees have the statutory protection to communicate collectively about workplace conditions. That protection can be lost if the employee’s communications are sufficiently disloyal or defamatory. Even though the ‘liking’ took place on Facebook in the presence of customers, to not give protection to the communication ‘could lead to the undesirable result of chilling virtually all employee speech online’. The court recognised the reality [page 60] that ‘almost all Facebook posts by employees have at least some potential to be viewed by customers’. The liking of the comments was not viewed with sufficient seriousness to warrant loss of statutory rights. 2.67 The New Zealand case of Blylevens v Kidicorp Limited (Blylevens)133 demonstrates when a mere ‘liking’ can justify dismissal. Ms Blylevens was the centre manager of a childcare centre. She had been the subject of complaints from other staff, and her employer was investigating the matter. Ms Blylevens hired an advocate to assist her. The advocate made two posts on Facebook containing derogatory and damaging remarks about Kidicorp, including referring to human resources as ‘vindictive’ and implying an unsafe environment for staff and children. Ms Blylevens liked the posts and was dismissed. In a compelling analysis, the NZ Employment Relations Authority found: (1) Ms Blylevens’ ‘liking’ of the posts was deliberate; (2) the act of ‘liking’ endorsed the

derogatory and damaging remarks about Kidicorp; and (3) ‘it was fair and reasonable for Kidicorp to conclude that Ms Blylevens’ [actions] … seriously compromised the trust and confidence required’ of a manager. It did not help Ms Blylevens that she accepted no responsibility for her actions nor did she remove her ‘liking’ when requested. Ms Blylevens’ unjustified dismissal claim did not succeed.

Abuse, bullying and inappropriate conduct to co-workers 2.68 It should perhaps go without saying that abuse, bullying and inappropriate conduct by one employee towards another on social media, will place continued employment at risk. But dismissal is not always justified as individual circumstances can mean different outcomes. This is illustrated by the case of Stutsel v Linfox Aust Pty Ltd (Stutsel);134 Linfox Australia Pty Ltd v Stutsel (Linfox)135. Mr Stutsel was a union delegate. Mr Stutsel had 22 years’ service with his employer and was senior in age. Mr Stutsel apparently knew little of Facebook, having his daughter set up his account. On his Facebook page, Mr Stutsel posted content which the FWC said would be best not to explicitly set out.136 The material, it appears, contained comments about terrorism and ‘the death of a terrorist’. Some of the material was a reference to the manager, Mr Assaf. Mr Stutsel referred to Mr Assaf as a ‘bacon hater’. The FWC said ‘such a remark [was] clearly in poor taste’ and that ‘many … would find … distasteful’.137 Nevertheless, the FWC found the comments to be private views, shared between a group of work colleagues, which had ‘much of the flavour of a conversation in a pub or café, although conducted in an electronic format’.138 [page 61] It must be said that those remarks seem extraordinary, read in isolation. The comments made by Mr Stutsel were so explicit they could not be reproduced in the judgment. There appeared to be an apparent connection between the remarks and work and in particular a group of workers targeting a manager on race grounds. Nevertheless, the FWC reinstated Mr Stutsel to his employment. 2.69 The employer appealed. The Full Bench dismissed the appeal in Linfox. However, in doing so, it was more critical of Mr Stutsel. It was only personal factors (age, service, ignorance and contrition) that meant the dismissal of Mr

Stutsel was unfair. Relevantly, on the topic of social media, the Full Bench said:139 The posting of derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment. In each case, the enquiry will be as to the nature of the comments and statements made and the width of their publication. Comments made directly to managers and other employees and given wide circulation in the workplace will be treated more seriously than if such comments are shared privately by a few workmates in a social setting. In ordinary discourse there is much discussion about what happens in our work lives and the people involved. In this regard we are mindful of the need not to impose unrealistic standards of behaviour and discourse about such matters or to ignore the realities of workplaces. In the present case, the series of Facebook conversations in which the comments were made were described by the Commissioner as having the flavour of a conversation in a pub or cafe, although conducted in electronic form. We do not agree altogether with this characterisation of the comments. The fact that the conversations were conducted in electronic form and on Facebook gave the comments a different characteristic and a potentially wider circulation than a pub discussion. Even if the comments were only accessible by the 170 Facebook ‘friends’ of the Applicant, this was a wide audience and one which included employees of the Company. Further the nature of Facebook (and other such electronic communication on the internet) means that the comments might easily be forwarded on to others, widening the audience for their publication. Unlike conversations in a pub or cafe, the Facebook conversations leave a permanent written record of statements and comments made by the participants, which can be read at any time into the future until they are taken down by the page owner. Employees should therefore exercise considerable care in using social networking sites in making comments or conducting conversations about their managers and fellow employees.

The Full Bench then said:140 The postings on his Facebook page by the Applicant and others were appropriately a matter for concern and censure. The comments were

[page 62] childish and objectionable, and reflect poorly on those who participated in the conversations complained about. However, when the statements and comments posted on the Facebook page were objectively considered in their proper context they were not of such a serious or extreme nature as would justify dismissal for serious misconduct. Further there were other considerations which, when taken into account in the circumstances of the matter before the Commissioner, led to the conclusion that the dismissal of the Applicant on the basis of serious misconduct was unfair.

This decision was unsuccessfully appealed by Linfox to the Full Federal Court of Australia.141 The decision of the Full Bench in Linfox has not been met with universal approval. The comments posted by Mr Stutsel would be considered highly inappropriate by most people, and age or ignorance of social media should not excuse the inappropriateness of the comments. The

Employment Court of New Zealand found it ‘unclear why a distinction along the lines of age would apply’.142 The Full Bench of the FWC did however warn:143 It is also apparent that, with increased use and understanding about Facebook in the community and the adoption by more employers of social networking policies, some of these factors [like age, ignorance and lack of understanding of Facebook’s operation] may be given less weight in future cases. The claim of ignorance on the part of an older worker, who has enthusiastically embraced the new social networking media but without fully understanding the implications of its use, might be viewed differently in the future.

2.70 In Bowden v Ottrey Homes (Bowden),144 an employee used Facebook to place pressure on another employee to withdraw a workplace complaint. Not surprisingly, the employer was found to have a valid reason to dismiss the employee. The dismissal was however found unfair because another employee who equally participated in the Facebook exchanges was not disciplined. Interestingly, the FWC reduced the employee’s compensation for the unfair dismissal by 20 per cent as a result of her misconduct: see s 392(3) of the FW Act. This decision was confirmed on appeal.145 2.71 In Little v Credit Corp Group Ltd t/as Credit Corp Group (Little),146 a young employee criticised an organisation with whom his employer had professional dealings and made sexually suggestive comments about a new employee.147 The employee pleaded ignorance but Deputy President Sams placed the blame squarely on the employee: ‘[f]or a young person who seemingly frequently used Facebook, it strikes me as highly implausible that he was incapable of [page 63] adjusting privacy settings’.148 Then in response to a defence that the offending comments were outside of work hours, Deputy President Sams swiftly observed, ‘it was not when the comments were made which is important, but the effect and impact of those comments on [the employer], its other employees and on the new employee’.149 That is, the work and home divide is of less importance given the nature of social media, and what matters is the ‘effect and impact’ of social media activity. 2.72 Finally, the decision in Winship v Corporation of the Town of Walkerville (Winship),150 provides an illustration of the responsibility on leaders. Mr Winship was the Team Leader of Library Services. Work colleagues were friends of his on Facebook. Mr Winship made posts about feeling ‘sick to the stomach’ about

an insubordinate inviting a colleague to dinner, that he was ‘sickened that people did not like him’, he was ‘feeling undermined’, and a post saying ‘Can’t trust people. I have a mole in my team’.151 What then followed was a message about management ‘plotting’ his ‘demise’, being on an ‘ego trip’ and ‘looks highly likely I’ll be out of your hair soon’.152 Mr Winship was dismissed for serious misconduct. He was aware of and trained in social media. Employees felt uncomfortable with his posts. The council felt his conduct undermined leadership. The commission agreed, saying:153 Council should have been able to rely upon its leaders to provide a strong, cohesive message to its subordinate staff. Instead, the actions of the applicant were to undermine the leadership group within Council … Being in a position of leadership, sending the … messages make the actions of sending the … messages more serious.

Truly private matters are of no concern for employers 2.73 In Wilkinson-Reed v Launtoy Pty Ltd t/as Launceston Toyota (WilkinsonReed),154 the employee was dismissed for a private conversation on Facebook where the employee conveyed to the business owner’s wife the sentiment that everyone at the workplace thought the owner was a ‘tosser’. The owner and his wife were separated at the time. The owner saw the message, which was not a public post on the Facebook wall, when he (using the ex-wife’s password) accessed her account. The FWC held:155 I do not believe the breach was particularly serious. The remark was not made to another employee or a customer of the business and, would have remained

[page 64] private to the parties to the conversation had Mr Nixon not accessed his estranged wife’s email account. It was certainly not such a serious breach of confidentiality as to justify termination of the applicant’s employment.

Another aspect of this decision needs to be considered. Even though the comments made by the employee were private and the employee was entitled to have an opinion, the expression of those views in a small workplace would make restoring the employment relationship impracticable.156

Triviality

2.74 Mayberry v Kijani Investments Pty Ltd t/as The Dawe Investments Trust Subway Wallsend (Mayberry),157 concerned a fellow employee posting a picture on his Facebook page of the applicant posing with a made-up car, comprising used Subway materials, including cardboard boxes, two plastic cups and plastic salad bowls. The photo was taken in the Subway store. The employer alleged this behaviour constituted wilful misconduct and summarily dismissed the applicant. Not surprisingly, in the absence of any evidence of damage to the business, the employer was found to have no valid reason to terminate employment. The applicant was awarded 20 weeks’ compensation.

The lessons learnt 2.75 Without any doubt, employees need to be more circumspect in their use of social media and understand that privacy settings alone may not protect them from the consequences of inappropriate communications (Linfox). While lowlevel expressions of discontent about their employer might not justify dismissal (Fitzgerald; Wilkinson-Reed; Starr), some sanction may nevertheless be warranted for ill-advised remarks (Starr; Bowden). Employees need to consider if there is a more appropriate forum to raise their grievances, such as through a disputeresolution process (Dover-Ray). Senior employees and managers may need to exercise far greater care in what they post (Starr; Blylevens; Winship). Abhorrent behaviour will always justify sanction from an employer (O’Keefe; Little; Harvey) and the employee will not, in respect of such behaviour, be saved by ignorance of the risks of social media or a lack of policy.158 2.76 For employers, any comments made by employees on social media need to be carefully reviewed in context, and employers (and managers) should avoid over sensitivity (Starr). Indeed, it is ‘the fate of those holding [page 65] managerial positions’ that there will be some criticisms of them (Stutsel). Two main elements need to be established to justify dismissal for misuse of social media: (a) The misuse must have a relevant and real connection to work; and (b) The misuse of social media needs to cause some appreciable and real

damage or harm (Mitchell; Starr), or risk thereof, to co-workers, managers and the business or to be destructive of the necessary trust and confidence in the relationship (O’Keefe; Blylevens), noting that any harm cannot be inconsequential or trivial (Mayberry). And, even if there is a valid reason to dismiss, the dismissal can still be harsh, unjust or unreasonable (Starr; and see Lambley v DP World Sydney Ltd159) for any number of reasons, including disproportionate treatment (Bowden), lack of training or policy (Linfox; Mitchell), a flawed handling of the dismissal process (Crockett v Vondoo Hair t/as Vondoo Hair160) or the dismissal is for an unlawful reason (such as an employee taking part in an industrial activity).

SETTLEMENTS 2.77 Settlements of employment disputes are likely to include obligations of confidentiality (as to the existence and terms of the settlement) and clauses dealing with non-disparagement or speaking ill of others. Boasting about a settlement on social media, or a friend or relative boasting, can breach confidentiality and place the settlement at risk.161 Making negative remarks about the former employer or its management on social media could breach a non-disparagement obligation.162

SOCIAL MEDIA AND POST-EMPLOYMENT MATTERS 2.78 LinkedIn is a social media platform for professionals. Connections are readily established between employee and clients, often with the employer’s [page 66] encouragement or implied consent. LinkedIn is a powerful business tool. As a program, it allows email contacts to be easily imported into an employee’s LinkedIn account.163 LinkedIn provides employees with a de facto customer list at their ready disposal. What can employers do to protect this modern-day ‘customer list’? This section of the chapter begins by examining who owns social media accounts and connections. This may be an area of contest between parties in future litigation. However, as this chapter argues, the protection of post-

employment interests is better dealt with by carefully crafted restraints against non-solicitation and stringent exit processes to protect legitimate business interests.

Who ‘owns’ social media accounts? 2.79 There would be little dispute that an employee owns their personal LinkedIn or Facebook account. The User Agreement entered into with LinkedIn clearly establishes an agreement between the account holder and LinkedIn.164 However, that fact did not stop an employer in the United States secretly changing its CEO’s password for her LinkedIn account and replacing her name and photo with that of the new CEO. The former CEO successfully claimed invasion of privacy and misappropriation of identity, but was unable to prove any damage: Eagle v Morgan.165 2.80 The other area of contention has been who owns the social media account set up by the employee for the employer. In Ardis Health LLC v Nankivell,166 an injunction was granted in favour of the employer requiring a former employee to return login information relating to the company website she was paid to establish and maintain. In the much-published matter of Phonedog v Kravitz,167 the court refused to dismiss the employer’s claim that it owned the social media account opened by the former employee on its behalf. On leaving his employment, the former employee changed the name of the account to his own name and had immediate access to the 17,000 Twitter followers of his previous employer! A well-drafted contract, setting out the employee’s duties and responsibilities in respect of login information and ownership of a social media account opened and managed for the employer, will avoid any dispute. [page 67]

Who owns the connections and followers on social media? 2.81 Who owns the connection and followers established on social media after an employee’s employment ends? There is little case law on this specific

topic as well. The existing law may suggest ‘connections’ are not, themselves, capable of protection. Connections are, in one sense, electronic business cards. Business cards are widely distributed to a large number of people; there is no obvious or inherent confidentiality in business cards. In Forkserve Pty Ltd v Jack,168 Santow J held that a folder of business cards taken by a departing employee (an executive) was not a breach of any duty owed by the employee to their employer.169 Business cards could not be converted into a confidential client list subject to protection. In N P Generations Pty Ltd t/as L J Hooker v Feneley,170 an employee took her personally compiled address book following the cessation of her employment. It was held that the address book was not the property of the employer.171 Further, as the address book was not compiled for an improper purpose, its subsequent use after employment was not a breach of any duties owed to the former employer.172 The same reasoning could be applied to connections on social media, applying existing rules to these new circumstances. An employee who establishes connections with no improper purpose could use those connections, absent a restraint, without breaching their duty of good faith.

Few cases on restraints and social media Stealing clients and confidential information 2.82 In Hays Specialist Recruitment (Holdings) Ltd v Ions (Ions),173 the English and Wales High Court permitted Hays Specialist (a recruitment company) to obtain pre-action disclosure based on allegations that Mr Ions, while still an employee, copied and retained confidential information concerning clients and contacts of Hays using LinkedIn. Mr Ions allegedly uploaded information to his LinkedIn account from his employer’s database concerning clients and job candidates. While employed, Mr Ions sent invites over LinkedIn to clients and candidates at Hays for use in his new venture. On an interlocutory basis, the High Court held the actions of Mr Ions could arguably be a breach of his express and implied duties. Pre-action disclosure was allowed. [page 68] 2.83

In Australia, it is likely a similar view would be taken of such conduct

being an arguable breach of an employee’s duty of good faith and fidelity. Similarly, in Naiman Clarke Pty Ltd v Tuccia (Naiman Clarke),174 the Supreme Court of New South Wales allowed the claim by the former employer to proceed as it was arguable that the employee had breached her employment and statutory obligations. Naiman Clarke carried on a recruitment consultancy business. Ms Tuccia was an employee in that business as a recruiter for the legal industry. Ms Tuccia had access to a spreadsheet of the employers, containing the names of job candidates. Naiman Clarke said that information was confidential. Ms Tuccia allegedly used the spreadsheet to establish connections on LinkedIn with candidates for use in her subsequent employment. Naiman Clarke was, as a result, able to allege the employee had breached her employment and statutory obligations. 2.84 In the United States case of Christou v Beatport LLC,175 a former employee was sued for misappropriating login information for the employer’s MySpace page. The employer, Beatport, operated an online marketplace for downloading electronic dance music. On its MySpace page was a list of ‘friends’ of Beatport. These friends were able to purchase songs from the website. Beatport used the list of friends to market its business. The employer argued that the list of friends was a confidential customer list. The former employee sought to dismiss the claim. The District Court held the claim was sufficiently arguable to not dismiss the matter. It said:176 Social networking sites enable companies… to acquire hundreds and even thousands of ‘friends.’ These ‘friends’ are more than simple lists of names of potential customers. ‘Friending’ a business or individual grants that business or individual access to some of one’s personal information, information about his or her interests and preferences, and perhaps most importantly for a business, contact information and a built-in means of contact. Even assuming that employees generally knew the names of all of the ‘friends’ on [the employer’s] MySpace pages, it is highly unlikely, if not impossible, that employees knew the contact information and preferences of all those on the ‘friends’ list from general experience.

2.85 What is interesting about this case is that the court equated ‘friends’ with customers. In Australia, the issue would be more about an employee, in breach of their duty of good faith and fidelity, accessing an employer’s ‘connections’ or ‘friends’ to create their own list of contacts to use after employment to the detriment of the former employer. That act could be viewed as a breach of the duty of good faith and fidelity. [page 69]

Solicitation 2.86 Social media provides ready temptation with relative ease for an exemployee to solicit the business of clients en masse or targeted. A simple posting on Facebook or LinkedIn can advertise a new business to clients. In Planet Fitness Pty Ltd v Brooke Dunlop (Planet Fitness),177 the Supreme Court of New South Wales issued an interlocutory injunction to restrain the solicitation of former clients. The plaintiff operated a gym. The defendant was a contracted personal trainer. The defendant had non-competition obligations in her contract to not solicit the custom of clients of the gym. The defendant placed messages on Facebook advising her Facebook friends, who included clients of the plaintiff, that she was leaving the gym as a personal trainer and that her new gym would offer them reduced fees. There was a prima facie case of solicitation. Aside from that obvious case of blatantly soliciting business via social media, does a restraint against soliciting clients cover an ex-employee merely updating their status or employment details on LinkedIn? In the US case of KNF&T Staffing Inc v Muller,178 it was held that merely announcing on Facebook that the employee had a new job was ‘somewhere between very weak to non-existent’ evidence of a breach of a non-solicitation restraint. In other US cases it has been held that merely advertising a new business on Facebook,179 or posting a job opportunity on LinkedIn,180 did not amount to solicitation. Neither was it solicitation for a new employer to post on the ex-employee’s Facebook page that the ex-employee was now working for the employer’s business or for that ex-employee to befriend a client on Facebook.181 Would the same thinking be followed in Australia? 2.87 It has been said that to ‘solicit’ is to ‘ask’, ‘to call for’, ‘to make a request’, ‘to entreat’ or ‘to persuade’.182 Solicitation does require some influencing or [page 70] encouragement of a client to leave the former employer.183 And it does not matter who approaches whom first for there to be solicitation.184 Given the nature and purpose of LinkedIn as a network for professionals to advertise their experience, qualifications and services to others,185 there may be an attraction to argue that an updated status186 amounts to some form of implicit solicitation; as that is at least a purpose of the update to tell clients where they now work. What

activity on social media is necessary to breach a non- solicitation covenant, other than blatant solicitation as in Planet Fitness? To date, mere postings or updates on social media have not been considered sufficient by US courts to breach nonsolicitation covenants. 2.88 In Tipto Pty Ltd v Yuen,187 the Supreme Court of New South Wales had to consider a restraint clause that prevented an employee from ‘contact [with] clients’ after employment. Tipto, the employer, discovered that its ex-employee, Mr Yuen, was advertising his new business on LinkedIn. Mr Yuen’s connections included clients of Tipto. The issue under the restraint was whether Mr Yuen was prevented from contacting clients, irrespective of whether he took any steps to persuade the clients to cease dealing with Tipto. There was no evidence of Mr Yuen soliciting these clients. The court was not impressed with Tipto’s justification for a prohibition against mere contact. Absent any evidence of solicitation, the court said a prohibition against mere contact could not be seen as reasonable to protect goodwill.188 Interestingly, there was a dearth of evidence as to LinkedIn and its impact on relationships with clients.189 Absent any detailed evidence, the court could only draw the conclusion that Mr Yuen and his former employer’s clients ‘were [simply] connected’ on LinkedIn.190 No adverse inference could be drawn from mere connection on LinkedIn. For the issue to be tested, expert evidence will be required as to the impact and influence of LinkedIn to demonstrate a legitimate need for protection against such activity on LinkedIn. [page 71]

Other restrictions 2.89 Appreciating the power of social media, employers have used other interesting tactics to protect goodwill and sever an ex-employee’s connection with customers. An example is the US case of Robert Half International Inc v Ainsworth.191 Robert Half International (RHI) is a recruiter that invests in its employees, systems and processes. Aside from the usual non-solicitation clauses, the employment contract had cl 13 which prohibited employees after employment indicating that they were an employee of RHI. As such, no references to employment with RHI could be made on LinkedIn. RHI’s rationale was that it wanted to prevent employees demonstrating their expertise to competitors. RHI argued that former employees use the RHI name, goodwill

and connections to boost their future endeavours, resulting in an unfair advantage. The former employees argued that their background was a fundamental sales tool for future business. Clearly, employment with RHI was a benefit for future endeavours against RHI. Perhaps not unsurprisingly, the court found cl 13 invalid. It was found to be a restraint against mere competition and void. It is hard to see a legitimate basis to prevent an ex-employee documenting and using their employment history.

Applying old rules to a new problem 2.90 Arguably, existing legal principles and the use of restraint clauses should provide adequate protection for employers against the use of social media by an ex-employee. As such, it is useful to look at the existing principles in respect of common law obligations and restraints of trade. 2.91 Employees, while employed, owe a duty of good faith and fidelity. In Faccenda Chicken Ltd v Fowler,192 it was held: … that the duty of good faith will be broken if an employee makes or copies a list of the customers of the employer for use after his employment ends or deliberately memorises such a list, …

In Peninsular Real Estate Ltd v Harris,193 Tipping J relevantly said:194 There is now a clear trend of authority to the effect that whether one classifies the following information as confidential or not, a departing employee may not take with him customer or client lists for the purpose of using them in a competing role … Neither may a departing employee deliberately memorise such information for that purpose …

[page 72] Whether the departing employee takes customer lists or not, generally he may not solicit or approach a client of his former employer in respect of a transaction current at the time of his departure …

In Digital Pulse Pty Ltd v Harris,195 the Supreme Court of New South Wales emphasised that an employee’s duty of loyalty requires them to not place their own interests in conflict with their duty to their employer. Employees cannot take a business opportunity of their employer for themselves. While employees may make some preparatory steps to compete with their employer while still employed, there are limits. The more senior the role, the greater the restrictions.196 As was said in Labelmakers Group Pty Ltd v LL Force Pty Ltd,197

‘such obligations cannot, routinely, be cast aside at the … office door’. As the case of Naiman Clarke suggests, using social media to take client connections to compete after employment may very well be a breach of the duty of good faith. However, it needs to be accepted that there may be some difficulty of proving such actions and intention by an employee given social media is used routinely during employment for legitimate purposes and most employees will not upload connections en masse as in the case of Ions. 2.92 Employers therefore need to rely on well-drafted and reasonable restraints to protect their legitimate business interests. This is the surest way to obtain protection to enable steps to be taken to protect the business from unfair competition. It is legitimate for employers to seek to protect its business interest in confidential information, customer connections and goodwill: Lindner v Murdock’s Garage (Murdock’s Garage);198 Littlewoods Organisation Ltd v Harris;199 and Woolworths Ltd v Mark Konrad Olson.200 The Supreme Court of New South Wales in Koops Martin v Reeves (Koops Martin) said:201 While the employer is not entitled to be protected against mere competition by a former employee, the employer is entitled to be … safeguarded against use after termination … of special knowledge of or influence over customers gained [by the employer] as a result of customer contact during the employment.

2.93 Restraints that are unreasonable, either as to the scope of the restraint, the geographic area of the restraint or the period of the restraint, will not be enforced by courts: Murdock’s Garage. The reasonableness of the period of a restraint can be tested a number of ways.202 First, restraints are to allow a reasonable period to enable the business time to re-establish its connection with the client and demonstrate that it can, in the future, look after its [page 73] business (despite the departure of the former employee): Koops Martin;203 that is, the time for a new replacement employee to demonstrate their worth to the client. As such, focusing on who owns the ‘connection’ could be seen as an unnecessary distraction from the real task of maintaining the custom of the client. Another test of the reasonableness of a restraint period is to assess the time required to sever the special relationship built up between the former employee and the employer’s clients for whom they had worked, so that at the end of that period there is no more special advantage enjoyed by the former employee.204 The practicality of being able to effectively sever such a special

advantage is heightened if the former employee maintains an active presence on social media, including by promoting their new business/employer, given the prevalent use of social media. This factor may support a longer restraint period. 2.94 The England and Wales High Court had to consider the impact of social media on conventional restraint clauses in East England Schools CIC v Palmer.205 This case concerned a recruitment consultant, Ms Palmer, who left one agency to work for another agency doing the same job of placing teachers (candidates) with schools (clients) in the same geographical area. Ms Palmer was subject to a six-month non-solicitation restraint with her former employer. Ms Palmer argued that her restraint could not be enforced as it did not protect any confidential information of the employer. Ms Palmer argued that candidates placed all their personal information on their social media account for all to see. Schools registered with many agencies to find a teacher. Ms Palmer argued that with the ‘increasing use of the internet and social media’ there was no interest to protect by a restraint.206 The court disagreed. The court accepted that while some information was publicly available Ms Palmer would have nevertheless acquired other valuable information about candidates and clients that created a special connection. The court accepted that the nature of the industry and social media ‘makes it more, rather than less, necessary and legitimate for the employer to seek to protect it, because it makes the prospect of a successful solicitation by the ex-employee more likely’.207 The court upheld the restraint, applying existing principles to determine the validity of the restraint. 2.95 The best safeguard from social media misuse is a ‘non-solicitation’ restraint obligation in an employee’s employment contract for an appropriate period. Accepting that an employee will retain their LinkedIn connections on cessation of employment, that fact ought to pose no problem for the employer if the employee is contractually bound not to canvass, deal with or solicit the custom of existing clients or prospective clients (including on [page 74] social media) for a reasonable period. In that sense, the LinkedIn connection may be worthless — assuming that an employee could otherwise remember contacts and conduct a search on LinkedIn after employment to re-establish the connection. What is important is that the employer has a valid restraint.

A CONSIDERED POLICY AND STRATEGY ON SOCIAL MEDIA 2.96 An employer is entitled to regulate social media by policy. In Pearson, the FWC said:208 … in an employment context the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business. It also serves a useful purpose by making clear to employees what is expected of them.

2.97 There is not a ‘one size fits all’ social media policy. Employers need to carefully consider how social media can impact on its own business. Considerations that will need to be taken into account include: (a) the legal status of the business (public company, private company, government or charity); (b) the nature and industry of the business (public, educational, government, retail, professional or support services, etc); (c) its industrial relations environment (unionised or non-unionised); (d) the types of employees it employs (manufacturing, managerial, sales or administrative, etc); and (e) its market (competitiveness, portability of clients, etc). These matters will influence the content of any policy and strategy that an employer would need to adopt. For example, a heavily unionised workforce may require a policy that does not infringe the worker’s right to engage in industrial activity. A public company would need to ensure employees are aware not to disclose market-sensitive information over social media. A government body may require senior public servants to avoid political comment to demonstrate impartiality. A sales and professional environment may need greater regulation for post-employment matters compared to a younger, interactive workforce that may require greater focus on avoiding inappropriate communications with coworkers. 2.98 Unfortunately, employees will misuse social media. Educating and training staff on the proper use of social media is vital. Without a policy, [page 75]

and education and training on proper social media use, an employer may be vicariously liable for some of the action of its employees. A policy will also enable employees to understand that out-of-work conduct can have an impact at work: Pearson.209 It warns employees of the various dangers with social media. A policy should explain to employees the consequences of their actions, including if they could be in breach of any laws.210 2.99 Any policy on social media needs to be carefully drafted; not too broad but not too specific or overly prescriptive, it must be flexible to account for human ingenuity. Remember, a policy may be unreasonable if it seeks to regulate too much of an employee’s private life where it has no connection with employment. Without a sufficient connection, the policy may be an unenforceable direction. An employer must realise it cannot prohibit all adverse comments by employees about its business. Indeed, it should be accepted that there may be some low-level criticism of the business and managers: Starr, 211 Stutsel212 and McDiarmid.213 A policy that seeks to prohibit protected activity and communications may be unlawful. 2.100 Employers will need to investigate any misuse. Part of prudent management of the risks associated with social media (and indeed with any computer use) may require appropriate monitoring of the use of social media over the employer’s facilities and networks. A more active supervision may be required for employees who have access to market-sensitive information. Employers may also need to access an employee’s social media account to marshal evidence of misuse, readily and quickly, before deletion. An option may be to require employees to preserve their social media accounts and provide access to their accounts when required for an investigation. These matters can be part of a policy. Interference with an investigation can be grounds for dismissal.214 2.101 Social media use, post employment, requires careful consideration. Some have suggested that employers should take snap shots of an employee’s LinkedIn connections before and after their employment, requiring the departing employee to delete connections made during their employment on their departure. Businesses need to consider what message this may send to clients who notice they have been disconnected and may be unaware of the employee’s departure. An issue could also be whether such a request is reasonable to be a direction requiring compliance by the employee. Further, is that request practicable and realistic? A restraint clause is the better option. And, to complement a non-competition clause, there may need to be other agreed

obligations and restraints to protect the business interests and, perhaps, [page 76] to sever any special advantage enjoyed by the departing employee, such as requiring that the former employee will not, during the notice period or the restraint period: (a) make disparaging or defamatory remarks about the employer’s business, personnel or products; (b) advertise their departure other than in terms agreed and approved by the business;215 (c) advertise on social media any new business or employment that is competitive to that of their employer; or (d) market events, products or services of a new business or employer to connections they established during their employment. 2.102 There is little doubt that social media presents challenges for both employees and employers. Employees have more to lose if they misuse social media; they face dismissal and their activity on social media accounts can be used to prove a breach of a restraint clause216 and thwart their future ambitions. Employers however, unaware of the potential impact and use of social media, and ignorant of the need to have a comprehensive strategy on social media, place its business at risk. All parties need to manage social media carefully.

[page 77]

PRACTITIONER TIPS Features of an effective social media policy and strategy An effective policy and strategy for managing social media in the workplace will include: • • •

• •

• • •

1. 2.

3.

education of workers about the dangers and risks of using social media; explanation to workers of how and when out-of-hours conduct can have an impact on their ongoing employment; regulation of the behaviours in connection with social media that are not acceptable or compatible with their ongoing employment. Note that such regulation: – need not be overly prescriptive; – may build on, or refer to, other policies, such as bullying, code of conduct, discrimination and harassment; and – should not have broad sweeping prohibitions, in order to avoid any direction being in breach of statutory protections or being unreasonable; provision of measured encouragement for engagement with social media and discussion of employee responsibility to promote the brand of the business in a positive way; creation of an obligation on employees to assist with investigations, preserve information and allow reasonable access to information on social media sites for the purposes of investigations; development of a communication strategy for exiting employees in respect of their use of social media and announcing their departure on social media; setting out the consequences of employees not complying with the social media policy (ie, consequences could include termination of their employment); and having a methodology for monitoring employee and ex-employee use of social media on the employer network that complies with the law, and also notifying employees that their use of social media may be monitored.

Little v Credit Corp Group Ltd t/as Credit Corp Group [2013] FWC 9642 at [67]. Linfox Australia Pty Ltd v Stutsel (2012) 217 IR 52; [2012] FWAFB 7097 at [26]; also see Pearson v Linfox Australia Pty Ltd [2014] FWC 446 at [46] and McDiarmid v Cmr of Police [2012] NSWIRComm 100 at [136]. In New Zealand, see Senior v Police [2013] NZFLR 356 (HC); NZHC 357 at [6] and Hook v Stream Group (NZ) Pty Ltd [2013] NZEmpC 188 at [31]. The FWC was previously known as Fair Work Australia (FWA) and, before that, as the Australian

4. 5. 6. 7. 8. 9.

10. 11.

12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

27. 28. 29.

Industrial Relations Commission (AIRC). (2010) 204 IR 292; [2010] FWA 7358 at [50]; see [2.60], below. Section 26 of the Fair Work Act 2009 (Cth), the referral of state powers of industrial relations to the Commonwealth by most states, along with the recent push for harmonised work health and safety laws. See Little v Credit Corp Group Ltd t/as Credit Corp Group [2013] FWC 9642 at [67]. LCR Mining Group Pty Ltd v CFMEU [2016] FWCFB 400 at [46]: ‘History is riddled with support for the notion that law that remains static invariably becomes archaic.’ Media release, Australian Privacy Commissioner Timothy Pilgrim, 30 March 2012. In the Australian Law Reform Commission Issues Paper 43, Serious Invasions of Privacy in the Digital Era, released 8 October 2013, the ALRC has sought submissions on prohibiting employers using social media to assess candidates for work, education and other opportunities. The paper questions whether such conduct can be classified as ‘a serious invasion of privacy’ under a statutory cause of action for breach of privacy: at [179] and [180]. See [2.40], below, for a more detailed review of these provisions. See Crisp v Apple Retail (UK) Ltd (UK Employment Tribunal, case no 1500258/2011) where at [45], in the context of considering the fairness of the dismissal of an Apple employee for criticising Apple on his Facebook page, the tribunal said: ‘we do not find that the Claimant had a reasonable expectation of privacy over this information’. The tribunal said the employee should have been aware that his posts on Facebook could be circulated. [2013] FCCA 662; (2013) 277 FLR 372. [2015] NZHRRT 6. (2005) 145 IR 285 at [24]. [1925] VLR 147; (1924) 35 CLR 143 at 151; 30 ALR 438. (1938) 60 CLR 601; 12 ALJR 172. Above, n 15, CLR at 151–3. [2014] FWC 446. Some behaviour may be of such a nature that you do not need a policy or training to say the conduct was not appropriate warranting dismissal: see, for example, Little v Credit Corp Group Ltd t/as Credit Corp Group [2013] FWC 9642 at [69]. Robb v Green [1895] 2 QB 315; Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326; [2007] NSWCA 172. See Corporations Act 2001 (Cth) ss 180–184. It is perhaps for this reason that LinkedIn provides at cl 8.2 of the User Agreement (as at October 2014) that the account holder ‘will not … disclose information that you do not have the right to disclose (such as confidential information of others (including your employer))’. See ASX Guidance Note 8 at [3.17]. See Griffiths v Rose (2011) 201 IR 216; [2011] FCA 30. (1996) 70 FCR 16; 140 ALR 625. The Commonwealth and some states and territories (Australian Capital Territory, New South Wales, Northern Territory, Queensland, South Australia and Tasmania) had adopted the model Work Health and Safety legislation. For present purposes, the occupational health and safety legislation adopted by Victoria and Western Australia, although not yet part of the harmonised national system, is similar. See s 19 of the WHS Act that refers to ensuring the safety of workers ‘while the workers are at work in the business or undertaking’. Also see s 28, which refers to the duty of workers ‘while at work’. The WHS Act does not seek to govern conduct not ‘at work’. In Ms Nadia Page [2015] FWC 5955 at [44] the FWC said: ‘it [is] uncontroversial to say that spreading misinformation or ill-will against others’ is bullying. The Full Bench of the FWC has observed that, conceptually, there is little doubt that unreasonable behaviour on social media can constitute bullying: Bowker & Ors v DP World Melbourne Ltd & Ors

[2014] FWCFB 9227 at [54]. 30. It is important to note that the new bullying regime under the FW Act more accurately applies to ‘workers’ adopting the meaning of that term from s 7 of the WHS Act. ‘Workers’ include employees, subcontractors, employees of subcontractors, volunteers, students, etc. 31. The FW Act regulated bullying from 1 January 2014. In Re McInnes [2014] FWCFB 1440, the Full Bench ruled that the FWC can consider behaviour that occurred before 1 January 2014 when dealing with applications to stop bullying conduct continuing after 1 January 2014. 32. [2014] FWCFB 9227. 33. Above, at [48] and [54]. 34. Above, n 32, at [54] and [55]. 35. [2015] FWC 6556. 36. Above, at [89]. 37. (2005) 144 FCR 402; [2005] FCAFC 130 at [41] per Black CJ and Tamberlin J. 38. Above, at [70]. 39. (2007) EOC 93-456; [2007] FMCA 59. 40. Also see Ewin v Vergara (No 3) [2013] FCA 1311; Vergara v Ewin [2014] FCAFC 100 where sexual harassment at the pub across the road was sufficiently connected to work as the employee went to the pub to discourage and reject sexual advances that started at work. 41. Fitzgerald v Dianna Smith t/as Escape Hair Design, above, n 4, at [50], and discussed at [2.60], below. 42. See McLeod v Power (2003) 173 FLR 31; [2003] FMCA 2 at [71]–[73]. 43. See Jones v Toben (2002) 71 ALD 629; [2002] FCA 1150 at [73]–[75] regarding unrestricted publication on websites. 44. FW Act s 107(3). 45. See Nicol v Iacusso (1995) 64 IR 190; (1995) 76 WAIG 44; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australia Post [2006] AIRC 541 at [124]. For exceptions when more detail can be sought see Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395 and Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32. 46. J Didomizio v Tetra Pak Manufacturing Pty Ltd [2005] AIRC 936. 47. Anderson v Crown Melbourne Ltd (2008) 216 FLR 164; [2008] FMCA 152. In Taiapa v Te Runanga O Turanganuni A Kiwa Trust t/as Turanga Ararau Private Trading Establishment [2013] NZEmpC 38, an employee called in sick to attend a sporting competition. A post on Facebook showed him to be ‘smiling, gesturing thumbs up, and sitting on outdoor bleacher seating with a number of young people’ when he was meant to be sick: at [56]. The employee’s dismissal for misusing sick leave was found to be fair. 48. Kensington v Air New Zealand Ltd [2013] NZERA Auckland 332. 49. [2010] FWA 3389. 50. [2012] QDC 208 at [62]. 51. Also see Gatto v United Air Lines Inc (Case No 10-cv-1090-ES-SCM, 25 March 2013, United States District Court, District of New Jersey). 52. [2011] FWA 4063. 53. Health Services Union v Life Without Barriers [2012] FWA 6244. 54. [2013] FWC 4143 at [22]–[24]. 55. [2013] FCA 615 at [28]. 56. [2013] FCA 161. 57. This section is about preventing two or more persons from acting in concert to cause substantial harm to a business by preventing another person from supplying goods or services to the business. 58. Recall Information Management Pty Ltd v National Union of Workers [2013] FCA 161 at [55]. 59. [2013] FWC 9851. 60. See Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2012] FCA 149 and Catholic

Education Commission of Victoria v Independent Education Union of Australia [2012] FWA 7274 at [33]. 61. John Holland Pty Ltd v CFMEU, above, n 55, at [33]. 62. This term is defined to include dismissal, injuring the employee in their employment, altering the employee’s position to their prejudice or discriminating against the employee: s 342(1) item 1. See Patrick Stevedores Operations No 2 Pty Ltd v MUA (No 3) (1998) 195 CLR 1; [1998] HCA 30 at [4] as to what those terms mean. 63. See FW Act s 360. The unlawful reason just needs to be a reason, amongst other reasons, for an employer to contravene Pt 3-1. 64. See National Labor Relations Board, Office of the General Counsel, Memorandums OM 11-74 and 12-31. 65. See Stutsel v Linfox Aust Pty Ltd (2011) 217 IR 28; [2011] FWA 8444 at [82]. 66. (2015) 362 NLRB 59; also see, in similar vein, Hispanics United of Buffalo Inc and Carlos Ortiz (2012) 359 NLRB No 37 as discussed in P George et al, Social Media and the Law, 1st ed, LexisNexis Butterworths, Sydney, 2014 at [2.47]. 67. (2012) 220 IR 445; [2012] HCA 32. 68. Such a message could have just as easily been sent via social media. 69. See Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 1201 in contrast to Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 (overturned on appeal: BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132). 70. Above, n 66, at 6. 71. Rankin v Marine Power Int Pty Ltd (2001) 107 IR 117; [2001] VSC 150 at [352]–[358]. 72. [2013] FWC 4282 at [61]. 73. Blyth Chemicals v Bushnells (1933) 49 CLR 66 at 73; 6 ALJR 457a; [1933] HCA 8. 74. (1976) 11 ALR 599 at 608–9. 75. Above, n 73, at 81–2. 76. Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285; [1959] 1 WLR 698. 77. This amount is indexed annually, and the amount set out above is for the 2015/16 financial year. 78. Ridge v Baldwin [1964] AC 40 at 65; [1963] 2 All ER 66. 79. Western v Union Des Assurances De Paris (1996) 88 IR 259 at 261; Cameron v Asciano Services Pty Ltd [2011] VSC 36 at [45]. 80. (2010) 198 IR 143; [2010] FCA 770. 81. Above, at [67]. 82. [2012] FWA 2562. 83. Above, at [23]–[25]. 84. Above, n 82, at [79]. 85. [2012] NSWIRComm 100. 86. Above, at [137]–[138]. 87. Also see Starr v Department of Human Services [2016] FWC 1460 where at [68] VP Hatcher of the FWC said, as a general proposition, it was his view that ‘[e]mployees are entitled to dislike their jobs and to say so publically’. This case is discussed further at [2.52] and [2.65], below. 88. Above, n 85, at [140]. 89. [2013] FCCA 1052. 90. It appears Ms Banerji did not allege a breach of s 351(1) of the FW Act on the grounds of her political opinion. Section 351(1) does not grant a freedom to express one’s political opinion in any manner unrestrained. 91. Above, n 89, at [102]. 92. [2016] FWC 1460. This case is discussed further at [2.65], below, in the context of unfair dismissal. 93. Above, at [73]. 94. This amount is indexed annually. The amount of $136,700 applies for the 2015/16 financial year. 95. An employee resorted to exploring social media accounts to prove his employer was not a ‘small

96.

97. 98. 99. 100. 101. 102. 103.

104. 105. 106.

107.

108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121.

business’ for determining if the employee’s minimum period of employment was six months rather than 12 months: Nelfelt v Cantina Mobil Pty Ltd [2013] FWC 4668 at [20]. A dismissal is at the initiative of the employer: see s 386(1) of the FW Act. In Corrie v Sheen Panel Service (Vic) Pty Ltd [2013] FWC 7830, a comment on Facebook by the daughter of the business owner that the employee not ‘come back to work’ was enough to show a dismissal occurred. In Maher v AJ & MT Properties Pty Ltd [2013] FWC 7853, an employer was unable to use a post on Facebook by an employee saying they were happy to not be working for the employer to retrospectively suggest a resignation. In Hook v Stream Group (NZ) Pty Ltd [2013] NZEmpC 188, the New Zealand Employment Court dismissed a grievance alleging constructive dismissal, based on posts on Facebook that read ‘… work found out I am looking for another job’ followed by a later post ‘Going to quit my job tomorrow, while in annual leave. Probably should have timed that better’. This amount is also indexed annually. Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373. See B, C and D v Australian Postal Corporation t/as Australia Post [2013] FWCFB 6191 at [58]. (1995) 185 CLR 410; [1995] HCA 24 at 465. (2004) 133 IR 458 at [67]; also see B, C and D v Australian Postal Corporation t/as Australia Post, above, n 99, at [62]. O’Connor v Outdoor Creations Pty Ltd [2011] FWA 3081 at [42]; Ndege v World Gym Sunshine Pty Ltd [2013] FWC 8434 at [38]; Pearson v Linfox Australia Pty Ltd [2014] FWC 446 at [46]. See, for example: Boal v BHP Coal Pty Ltd [2014] FWC 9331 at [100] and Faulkner v BHP Coal Pty Ltd [2014] FWC 9330 at [8], where a post made by Mr Faulkner on Facebook during work time led to the discovery that the workers had, and used, a mobile phone, contrary to safety requirements to not have with them mobile phones during work. Due to procedural deficiencies, the employees were reinstated to their employment. (2010) 195 IR 286; [2010] FWAFB 2664 at [18]–[19]. Above, at [21]. See ss 1317AA–1317AC of the Corporations Act 2001 (Cth) where disclosure is usually to an authority or authorised person and the disclosure is made in good faith. Also see, Whistleblowers Protection Act 2001 (Vic) Pt 2. Disclosure over social media may also be for other ulterior purposes and not qualify as a protected disclosure. McIntyre v Special Broadcasting Services Corporation t/a SBS Corporation [2015] FWC 6768, albeit an unlawful termination claim. Mr McIntyre tweeted (on Anzac Day) that ‘brave Anzacs’ had committed ‘widespread rape and theft’ in certain areas of the world, with these comments offending Australia’s servicemen and women. See M Levy, ‘Hotel Worker Michael Nolan Sacked over Facebook Post to Clementine Ford’, Sydney Morning Herald, 1 December 2015. McManus v Scott-Charlton (1996) 70 FCR 16; (1996) 140 ALR 625 at [60]. Appellant v Respondent (1999) 89 IR 407 at 416. Above, n 109, at [56]. (2011) 201 IR 216; [2011] FCA 30 at [41] to [42]. [1998] AIRC 1592. (2010) 204 IR 292; [2010] FWA 7358. Smith t/as Escape Hair Design v Fitzgerald [2011] FWAFB 1422 at [9] and [10]. [2012] FWA 2721. Above, at [12]. [2015] FWC 2306. Harvey v Egis Road Operation Australia Pty Ltd [2015] FWCFB 4034 at [14(3)]. Above, n 118, at [142]–[143]. Anders v The Hutchins School [2016] FWC 241 at [96] and [97] when the FWC commented that a Facebook post making disparaging remarks about an unresolved dispute demonstrated a ‘lack of

122. 123. 124. 125. 126. 127. 128.

129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161.

judgment’ and ‘lack of wisdom’ that justified warning. (2010) 204 IR 399; [2010] FWA 8544. [2011] FWA 5311. Above, at [40]–[43]. These particular comments were endorsed by the FWC in Little v Credit Corp Group Ltd t/as Credit Corp Group [2013] FWC 9642 at [69]. Section 381(2) of the FW Act, adopting the phrase used by Sheldon J in Re Loty and Holloway and the Australian Workers Union [1971] AR (NSW) 95. UK Employment Tribunal, case no. 1500258/2011. This remark was made by the FWC in the context of the employer, the Department, criticising the employee, Mr Starr, saying online that his employer’s response to customer complaints contained ‘ridiculous assertions’. The FWC said ‘[s]ociety has not (yet) become so thin-skinned that the use of the word “ridiculous” in this way would be regarded as offensive, demeaning or denigratory’: at [67]. Above, n 87, at [68] and [69]. Above, n 87, at [98]. [2015] FWC 6429. 14-3284(L) (2d Cir. Oct. 21, 2015), with the decision below being Triple Play Sports Bar and Grille (2014) 361 NLRB No 31. [2014] NZERA Auckland 373. (2011) 217 IR 28; [2011] FWA 8444. (2012) 217 IR 52; [2012] FWAFB 7097. Stutsel v Linfox Aust Pty Ltd, above, n 134, at [7]. Above, n 134, at [79]–[80]. Above, n 134, at [81]. Linfox Australia Pty Ltd v Stutsel, above, n 135, at [25]–[26]. Above, n 135, at [35]. Linfox Australia Pty Ltd v Fair Work Comm [2013] FCAFC 157. Hook v Stream Group (NZ) Pty Ltd [2013] NZEmpC 188 at [37]. Above, n 135, at [34]. [2012] FWA 6468. Bowden v Ottrey Homes [2013] FWCFB 431. [2013] FWC 9642. Above, at [1], [10] and [11]. Above, n 146, at [73]. Above, n 146, at [75]. [2015] SAIRComm 9. Above, at [62] to [68]. Above, n 150, at [8]. Above, n 150, at [180]. [2014] FWC 644. Above, at [61]. Above, n 154, at [82]. Also see Marron v State Transit Authority [2016] NSWIRComm 1003 where comments made by a dismissed employee two months after his dismissal that his employer was ‘bast..ds’ and ‘criminals’ demonstrated that employment could not be restored: at [106]–[108]. [2011] FWA 3496. See Linfox Australia Pty Ltd v Stutsel, above, n 135, at [34]. [2013] FCA 4; also see B, C and D, above, n 99. [2012] FWA 8300 at [60]–[61]. For example: Gulliver Schools, Inc and School Management Systems Inc. v Patrick Snay, 26 February 2014, District Court of Appeal of Florida, No. 3D13-1952, where the daughter posted (to 1200 of her

162.

163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180.

181.

182. 183. 184. 185. 186.

friends on Facebook) ‘Mama and Papa … won the case … Gulliver is now officially paying for my vacation … S…K IT’ and, as a result of a teenager’s ill-considered post, $80,000 of the settlement was lost. For example: Kea Petroleum Holdings Limited v McLeod [2014] NZERA Wellington 113 where the former employee posted an article accusing the managing director of lying and then announcing his dismissal. The non-disparagement clause did not have an exemption for comments that were true, or believed to be true. Defamation law may also apply. K Hodgson, LinkedIn for Lawyers: Connect, Engage and Grow your Business, LexisNexis Butterworths, Sydney, 2012, p 80. See cll 1.2 and 2.2 of the User Agreement as at October 2014. United States District Court, Eastern District Pennsylvania, Case No 11-4303, 12 March 2013. United States District Court, Southern District, New York, Case No 11 Civ 5013, 23 October 2012. United States District Court, N.D. California, Case No 11-03474, 8 November 2011. This case eventually settled, on confidential terms, but it is known that the ex-employee continues to use the Twitter handle! (2001) 19 ACLC 299; [2000] NSWSC 1064. Above, at [84]–[85]. (2000) 50 IPR 63; [2000] SASC 240. Above, at [37]. Above, n 170. [2008] EWHC 745. [2012] NSWSC 314. 849 F. Supp. 2d 1055 (2012). Above, at 1075. [2012] NSWSC 1425. 2013 Mass Super Lexis 189 (24 October 2013) decision of the Superior Court of the Commonwealth of Massachusetts, No. 13-3767-BLS1. Pre-Paid Legal Services Inc v Cahill 924 F.Supp.2d 1281. In this case, the employee touted generally the benefits of his new employer’s products, and this was not solicitation as there was no direct private messaging of clients. Enhanced Network Solutions v Hypersonic Technologies Corp 951 N.E.2d 265. In this case, two businesses had agreed to not solicit the employment of each other’s employees. One company advertised on LinkedIn a job opportunity to a broad group that included employees of the other company. Such a public advertisement was not solicitation and the parties to the contract should have defined ‘solicitation’ better to cover this situation. Invidia, LLC v DoFonzo, 2012 WL 5576406 (Mass. Super 22 October 2012). This case concerned a hair stylist leaving employment to work at a new salon. Interestingly, the court said ‘one can be Facebook friends with others without soliciting those friends to change hair salons, and [the plaintiff] presented no evidence of any communications, through Facebook or otherwise, in which [the defendant] has suggested they should take their business to her [new employer]’ at 6. Sweeney v Astle [1923] NZLR 1198 at 1202; also see R v Laws [2000] NSWSC 880; (2000) 50 NSWLR 96 at 98, [8]. Hellmann Insurance Brokers Pty Ltd v Peterson [2003] NSWSC 242 at [12]; also see Equico Equipment Finance Ltd v Enright [2009] NZERA 411 at [31]–[32]. Barrett v Ecco Personnel Pty Ltd [1998] NSWCA 30. LinkedIn describes itself as ‘the world’s largest professional network’ with a simple mission ‘to connect the world’s professionals to make them more productive and successful’. Those professionals include key contacts with clients. When a person obtains a new job, it is placed in the news feed and all connections are sent a notification to congratulate the person on their new job. That in itself will not be solicitation by the

187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216.

employee (as it is a LinkedIn-generated feature) but what if an employee generated an update, ‘I’ve moved!’? [2015] NSWSC 1086. Above, at [156]. Above, n 187, at [122]. Above, n 187. 2014 WL 7272405 (SD Cal 17 December 2014). [1987] 1 Ch 117 at 135–6. (1992) 2 NZLR 216. Above, at 218–19 (citations omitted). (2002) 166 FLR 421; [2002] NSWSC 33 at [21]–[22]. Victoria University of Technology v Wilson [2004] VSC 33; (2004) 60 IPR 392 at 438. [2012] FCA 512 at [112]. (1950) 83 CLR 628; [1950] ALR 927. [1977] 1 WLR 1472. [2004] NSWCA 372 at [38]. [2006] NSWSC 449 at [30]. Hanna v OAMPS Insurance Brokers Ltd (2010) 202 IR 420; [2010] NSWCA 267 at [43]. Above, n 201, at [88]. Stacks Taree v Marshall (No 2) [2010] NSWSC 77 at [66] and [83]. [2013] EWHC 4138 (QB). Above, at [48]. Above, n 205, at [62]. Above, n 18, at [46]. This decision was upheld on appeal: Pearson v Linfox Australia Pty Ltd [2014] FWCFB 1870. Above, n 18, at [46]. Richardson v Oracle Corp Australia Pty Ltd [2013] FCA 102 at [163]. At [2.52]. Above, n 134, at [82]. Above, n 85, at [137]. Judson v City of Sydney (2008) 172 IR 11; [2008] AIRCFB 289. A communication strategy for a departing employee could include assisting a replacement employee by vouching for and promoting them on social media, as well as attesting to the employer’s business and products. Epichealth Pty Ltd v Yang [2015] VSC 516 at [17(f)] where a Facebook post established that a doctor had opened his own medical practice in breach of the terms of his contract and a restraint clause.

[page 79]

3 Social Media and Privacy Gabriella Rubagotti

OVERVIEW • • • • •

• • •

The digital era and the rapid growth of social media have brought unprecedented threats to personal privacy. There is no statutory cause of action for the unjustified invasion of privacy or intrusion upon seclusion in any Australian jurisdiction. Neither cause of action has been recognised by the appellate courts; however, some lower courts have held that a right of privacy exists at common law. A cause of action for breach of confidence may be used to protect privacy interests. Prompted in part by the growth of the digital era and social media, state and federal law reform bodies have recommended the enactment of statutory causes of action for the unjustified invasion of privacy and intrusion upon seclusion. Privacy protection in overseas jurisdictions will impact on privacy law developments in Australia. The collection of personal information by social media organisations raises issues concerning data protection, otherwise known as information privacy. The handling of personal information about individuals, including the collection, use, storage and disclosure of such information by various public and private sector entities is regulated by state and federal information privacy legislation.

INTRODUCTION

Privacy protection in Australia 3.1 This chapter considers the protections Australian law affords to privacy interests, with particular reference to social media. [page 80] 3.2 These protections are far from comprehensive. There are no statutory causes of action for the unjustified invasion of privacy or intrusion upon seclusion in any Australian jurisdiction. Neither cause of action has been recognised by the appellate courts.1 Few of the lower courts have recognised the existence of a cause of action for the unjustified invasion of privacy2 and only one lower court has recognised a cause of action for the unjustified intrusion upon seclusion.3 Instead, where permitted by the facts of individual cases, courts have traditionally filled the gap by affording individuals indirect privacy protection through the application of existing causes of action, including breach of confidence (to protect against unauthorised disclosures of personal information) and trespass (to protect against unwanted personal intrusions).4 To the extent that state and federal statutes address matters of privacy, they are primarily concerned with information privacy, that is, the handling of personal information about individuals, including the collection, use, storage and disclosure of such information by various public and private sector entities.5

Social media and privacy — issues 3.3 Continuing and rapid advances in new technologies significantly affect privacy interests. The digital era is marked by an unprecedented capacity to record and to communicate personal information and an unprecedented capacity to monitor the activities of individuals and organisations.6 The topic of this book, social media, is one incident of the digital era. While social media provides opportunities for individuals to connect and to communicate [page 81] in hitherto novel and unmatched ways, it also raises concerns about invasions of

privacy and misuse of personal information.7 3.4 Against this background, legal measures for the protection of privacy in Australia warrant fresh consideration. With reference to social media, such measures are of interest to: (a) users of social media; that is to say the social media participants who create, share, discuss and modify user-generated content; (b) providers of social media services, including Facebook, Twitter, Instagram, LinkedIn, YouTube and WhatsApp, internet bloggers and the online arms of traditional media organisations; and (c) third parties, be they commercial or governmental, that wish to access information published on, and held by, social media organisations for a myriad of purposes, including marketing, research and surveillance. 3.5 In each case, the pressing issues concerning social media and privacy focus upon the use of social media unjustifiably to invade privacy or to intrude upon seclusion, and the capacity of social media organisations to collect, to store, to use and to permit access to personal data. 3.6

This chapter addresses the following topics:

(a) (b) (c) (d)

the concept of ‘privacy’ and the interests privacy law seek to protect; the impact of social media on privacy; the direct protection of privacy at common law in Australia; the protection of privacy in other jurisdictions, namely, the United Kingdom, New Zealand and the United States; (e) the relationship between privacy protection and freedom of speech in Australia; (f) the availability of an equitable action for breach of confidence indirectly to protect privacy; and (g) information privacy and the Privacy Act 1988 (Cth).

THE CONCEPT OF PRIVACY 3.7 ‘Privacy’ has no fixed meaning at common law, the concept the term embodies is elusive and the task of defining it is not straightforward.8 The leading Australian authority on the topic, Australian Broadcasting Corporation

[page 82] v Lenah Game Meats Pty Ltd (Lenah Game Meats)9 (discussed at [3.19], below), stresses the difficulty of obtaining a ready definition. Gleeson CJ observed that human dignity is at the foundation of much of what is protected where rights of privacy are acknowledged10 but otherwise observed that the concept lacked precision.11 Referring to Sedley LJ in Douglas v Hello! (Douglas v Hello!)12, Gummow and Hayne JJ accepted that privacy is ‘a legal principle drawn from the fundamental value of personal autonomy’13 but noted that this is to ‘assume rather than explain what “privacy” comprehends and what would amount to a tortious invasion of it’.14 Their Honours emphasised the recognised ‘difficulties in obtaining in this field something approaching definition rather than abstracted generalisation’.15 3.8 Notwithstanding these difficulties, an attempt to assess the meaning of privacy and to identify the interests sought to be protected upon its invocation, necessarily precedes any consideration of existing privacy protections and possible developments in the law. 3.9

The Oxford English Reference Dictionary (2nd ed) defines ‘privacy’ as follows:

(1) (a) The state of being private and undisturbed; and (b) a person’s right to this. (2) Freedom from intrusion or public attention. (3) Avoidance of publicity.

3.10 So defined, privacy has two objects. First, it marks an inviolate space reserved for the individual in which he or she is free to conduct his or her affairs free from the disturbance of others.16 Second, it recognises and acts as a defence against third party excess, be it the excess of one’s neighbour, one’s government and its administrators, or non-governmental bodies, including the media.17 In both cases, privacy is essential to the development and protection of personal identity and to the maintenance of personal liberty.18 As has been observed by one contemporary American philosopher, ‘[t]he boundary between what we reveal and what we do not, and some control over [page 83] that boundary, are among the most important attributes of our humanity’.19 This accords with the repeated judicial observation that privacy is a right that

inheres in the basic dignity of the individual.20

PRIVACY AND THE IMPACT OF SOCIAL MEDIA 3.11 Through a proliferation of internet-based virtual communities, social media allows users to exchange ideas and information.21 Some social media websites provide general forums for connection. Other social media websites loosely collect individuals around identified interests, goals or personal experience. All social media websites significantly challenge the basic principles protected by the conceptions of privacy identified above. 3.12 Social media depends in large part on the willingness of people to publish some intimate details of their private lives. However, the virtual interaction it facilitates encourages the publication of significantly more information. Social media users frequently identify themselves by their real name; they name their family and friends; they reveal their relationship status, sexuality, political views and whereabouts; and they share photographs of themselves and their family and friends in both public and private places. Via social media, anyone can publish matters that were once part of their intimate private realm for the scrutiny, titillation, approval or criticism of others. 3.13 In so doing, social media users expose themselves to potential encroachments upon their privacy by the organisations through which they access social media networks and by the other social media users to whom they publish their private information. 3.14 First, individuals routinely agree to the terms of privacy policies prior to joining social media networks. These privacy policies often allow social media organisations to make extensive and unchecked use of private information. Frequently, social media organisations make unilateral changes to privacy policies, with little if any negotiation with the users of their platforms. Further, if social media organisations are located outside Australia and otherwise lack [page 84] a ‘link’ to the jurisdiction, they are beyond the reach of Australian privacy legislation and, in particular, the Privacy Act (see [3.152]–[3.195], below).

3.15 Second, social media users are apt to publish other people’s photographs and personal information whether for benign or harmful purposes.22 Individuals routinely run the risk that the information they publish on social media, even to a limited audience, will be disseminated widely.

PRIVACY PROTECTION AT COMMON LAW IN AUSTRALIA The unjustified invasion of privacy — a (slowly) developing area 3.16 In Church of Scientology Inc v Woodward,23 Murphy J described the unjustified invasion of privacy as one of the ‘developing torts’.24 However, more than 30 years have passed since his Honour’s observation and, in that time, the development of the law has been slow. The ease with which private information may be shared on social media may give some impetus to its further development.

High Court considerations Victoria Park Racing and Recreation Grounds Co Ltd v Taylor25 3.17 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (Victoria Park Racing)26 decided in the High Court, was once thought to stand in the way of the development of a cause of action for the unjustified invasion of privacy.27 The High Court’s decision in Lenah Game Meats28 more recently held that this view was wrong (see [3.19], below). 3.18 In Victoria Park Racing,29 the plaintiff owned a racecourse and charged an admission fee. A fence surrounded the racecourse to prevent those who had not paid the fee from watching the races and placing bets. An adjoining landowner permitted a platform to be erected on his land, from which the [page 85]

plaintiff’s races were called and broadcast via radio without the plaintiff’s permission. Relevantly, the plaintiff sought an injunction to restrain the broadcasting as amounting to a nuisance. The claim under nuisance was partly founded on an argument that the law recognised a right of privacy that the defendants had infringed. The majority held that there was no right given by law to prevent the defendant’s conduct and the plaintiff had no interest falling within any category which was protected at law or in equity.30 Rich J and Evatt J, in dissent, held that there were limits on the right to overlook31 and, while acknowledging that the common law did not recognise any general right of privacy, Evatt J observed that it was ‘not the law that every interference with privacy must be lawful’.32 However, until the determination of Lenah Game Meats,33 Australian legislatures and law reform bodies proceeded on the basis that this case stood for the proposition that no enforceable general right to privacy existed under Australia law.34

Lenah Game Meats35 3.19 Lenah Game Meats operated a licensed possum abattoir in Tasmania. Unidentified trespassers entered the facility and installed hidden video cameras, which surreptitiously recorded footage of possums being stunned and slaughtered. The footage was retrieved from the cameras and supplied to Animal Liberation Ltd, which in turn supplied the footage to the Australian Broadcasting Corporation (ABC) for television broadcasting. Lenah Game Meats applied for an interlocutory injunction to restrain, among other things, ABC’s broadcasting of the footage.36 3.20 The primary question for determination in Lenah Game Meats37 concerned the circumstances under which equity will grant an interlocutory injunction.38 In addressing this question, all members of the court (save for [page 86] Kirby J)39 gave consideration to the applicant’s reliance on an action for the unjustified invasion of privacy. The judgments of the court raise important questions concerning the development of this cause of action.

Lenah Game Meats: new hope for common law protection of privacy in Australia? 3.21 The majority were of the view that Victoria Park Racing40 (discussed at [3.17]–[3.18], above) was not an obstacle to the development of a cause of action for the unjustified invasion of privacy as it did not stand for any proposition regarding the existence of the tort.41 The majority’s conclusion has now been noted in a number of appellate courts.42 Gleeson CJ went further, accepting that ‘[t]he law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy’.43

Lenah Game Meats: a test of privacy? 3.22 The court did not determine whether a cause of action for the unjustified invasion of privacy exists at common law in Australia. Nevertheless, in obiter, Gleeson CJ identified activities that would be considered private and formulated a test. His Honour stated:44 There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved.

[page 87] The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.

3.23 Should a cause of action for the unjustified invasion of privacy be developed at common law in Australia, a question arises as to whether the test of what is private will follow Gleeson CJ’s formulation, that which has been adopted in UK jurisprudence (discussed at [3.45]–[3.48], below), or some other formulation.

Lenah Game Meats: the development of existing principles or a new cause of action? 3.24 A further question arises as to whether the protection of privacy might develop at common law from existing principles (in particular, as an extension of the law of confidence) or as a new cause of action. Gleeson CJ emphasised the need for caution in declaring a new tort of privacy, having regard to the imprecise nature of the concept of privacy and the tension between privacy interests and free speech interests.45 Gummow and Hayne JJ were similarly cautious. Their Honours surveyed the developments in UK and US privacy law without reaching a concluded view as to whether privacy protection might ‘be best achieved by looking across the range of already established legal and equitable wrongs’.46 By contrast, Callinan J ventured, ‘the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made’.47 His Honour recognised that an appropriate balance would need to be struck between the ‘value of free speech and publication in the public interest’ and the ‘value of privacy’.48

Lenah Game Meats: corporate privacy? 3.25 All members of the court considered whether a corporation might avail itself of a common law right of privacy.49 Noting that ‘human dignity’ is the foundation of privacy, as distinct from rights of property, Gleeson CJ stated [page 88] that privacy protection ‘may be incongruous when applied to a corporation’.50 Kirby J doubted ‘whether a corporation is apt to enjoy a common law right of privacy’.51 Gummow and Hayne JJ were emphatically of the view that privacy protection should only be available to individuals and should not extend to corporations.52 Gaudron J agreed.53 Callinan J, however, did not foreclose the possibility that, in some circumstances, a corporation might be able to enjoy the same or similar rights to privacy as a natural person.54 3.26 Doubt has been expressed elsewhere. In National Roads and Motorists’ Association Ltd v Geeson,55 the court said that NRMA was not ‘an organisation for

which the concept of private concern or embarrassment has any real meaning’, and in a case concerning the confidentiality of board meetings, the court declined to consider ‘cases in which a breach of confidence involves invasion of personal privacy’.56

Developments following Lenah Game Meats57 3.27 Following Lenah Game Meats,58 the question whether a cause of action for the unjustified invasion of privacy exists in Australian law has received some limited lower court consideration.

Grosse v Purvis59 3.28 The first of these cases was Grosse v Purvis,60 decided in the Queensland District Court. The plaintiff asserted that over eight years the defendant engaged in a course of conduct against her which amounted to stalking. She relied on a number of causes of action including an action for the unjustified invasion of privacy. The court found that, in having unlawfully stalked the plaintiff, the defendant had invaded her privacy.61 The court held that a civil [page 89] action for damages is available upon the unjustified invasion of privacy and held that it has the following elements:62 (a) a willed act by the defendant; (b) which intrudes upon the privacy or seclusion of the plaintiff; (c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities; and (d) which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which he or she is lawfully entitled to do. 3.29 The court found it unnecessary to determine whether negligent acts (as opposed to willed acts) would also be capable of founding an action.63 The court observed that a defence of public interest should be available (although it

was not available to the defendant in the circumstances of this case).64 3.30 The court awarded the plaintiff $108,000 in compensatory damages, $50,000 in aggravated damages and $20,000 in exemplary damages for the unjustified invasion of privacy.65

Doe v Australian Broadcasting Corp66 3.31 Doe v Australian Broadcasting Corp67 (Doe v ABC), decided by the Victoria County Court, was the second case to conclude that a cause of action for an unjustified invasion of privacy exists in Australian law. In 2007, the ABC reported in one of its radio news bulletins that a man had been convicted of raping his estranged wife (given the pseudonym ‘Jane Doe’). The man was identified by name. The offences of which he was convicted were described as rapes within marriage. The news bulletins described in detail where the offences took place. In addition, one of the bulletins referred to the man’s wife by her name and referred to her as the victim. The journalist and sub-editor involved in the publication of the report were both charged with offences under s 4(1) of the Judicial Proceedings Reports Act 1958 (Vic) (JPR Act), which, in certain circumstances, makes it an offence under Victorian law to publish information identifying a victim of a sexual offence.68 3.32 Jane Doe sued the ABC, the journalist and the sub-editor, alleging, among other causes of action, unjustified invasion of privacy and breach of [page 90] confidence.69 The court found for the plaintiff in respect of these (and other) causes of action.70 3.33 In publishing information concerning privately conducted sexual activity and, moreover, non-consensual sexual activity about which the plaintiff had a reasonable expectation of privacy, the court held that the ABC published private information about Jane Doe.71 The court declared privacy to be ‘a right in itself deserving of protection’72 having regard to its close connection with the recognition and protection of human dignity.73 In so doing, the court took what it termed the ‘next incremental step’ in declaring that an unjustified invasion of privacy ‘is an actionable wrong which gives rise to a right to recover damages

according to the ordinary principles governing damages in tort’.74 3.34 The court refrained from attempting to formulate an exhaustive definition of privacy. It did, however, conclude that the ‘defendants breached the plaintiff’s privacy’ by engaging in:75 (a) the unjustified publication of private personal information; (b) where there is no public interest in publishing it. 3.35 The defendants’ failure to exercise reasonable care by complying with the JPR Act and their publication of private personal information contrary to a prohibition order also led to the court’s conclusion that the publication was unjustifiable.76 3.36 The court awarded the plaintiff $85,000 in compensatory damages for psychiatric injury,77 $25,000 in compensatory damages for ‘hurt, distress, embarrassment, humiliation, shame and guilt’78 and $124,190 in special damages.79 [page 91]

Doe v Yahoo!7 Pty Ltd; Wright v Pagett80 3.37 In Doe v Yahoo!7 Pty Ltd; Wright v Pagett,81 the plaintiffs commenced action against Yahoo!7 and one of its account holders for the unjustified invasion of privacy via social media.82 It was alleged that the account holder impersonated one plaintiff online using her name and photo, which he obtained from a publicly available online source. It was also alleged that he sent harassing emails to the other plaintiff using various Yahoo!7 accounts, which Yahoo!7 failed to deactivate in a timely manner.83 On an interlocutory basis, the court determined that there was an arguable case for the unjustified invasion of privacy.84 3.38 A question arose as to whether internet content hosts85 and internet service providers (ISPs)86 might, in certain circumstances, have a statutory defence to the cause of action pursuant to Sch 5 cl 91 of the Broadcasting Services Act 1992 (Cth).87 Clause 91 is categorical in its terms88 and excludes internet content hosts and ISPs from liability under state or territory law in relation to internet content of which they were unaware. It also provides that they are under no obligation to monitor, to make enquiries about or to keep

records of the content. Although a court has yet to determine the matter, cl 91 should entitle internet content hosts and ISPs to resist actions for unjustified invasions of privacy in circumstances where the invasion was occasioned by a user of their services and where the nature of the use was not known to the hosts or the ISPs. However, it is doubtful whether ISPs and internet content hosts will be able to rely on the defence if objectionable content is brought to their attention and yet they fail to take any or any sufficient steps to remove it. [page 92]

Unjustified intrusion upon seclusion 3.39 In Lenah Game Meats, Gummow and Hayne JJ considered the four categories of intrusion that give rise to a cause of action for the invasion of privacy under US law (discussed at [3.81], below).89 Their Honours noted that, like an unjustified invasion of privacy, an unjustified (or in their formulation, ‘unreasonable’) intrusion upon seclusion perhaps comes ‘closest to reflecting a concern for privacy “as a legal principle drawn from the fundamental value of human autonomy”’.90 Thus far, no appellate court in Australia has declared that a cause of action for the unjustified intrusion upon seclusion is available at common law in Australia. However, in Grosse v Purvis, the court’s formulation of the essential elements for a cause of action for the unjustified invasion of privacy also covers unjustified intrusions upon seclusion (as discussed at [3.28], above). Further, both the Australian Law Reform Commission (ALRC) and the New South Wales Parliament Legislative Council Standing Committee on Law and Justice (NSW Parliament Standing Committee) have recommended causes of action seeking to protect against unjustified intrusions upon seclusion (as to which, see [3.100]–[3.107], below).

Privacy protection and further developments at common law in Australia? 3.40 Developments in Australia of a cause of action for the unjustified invasion of privacy or intrusion upon seclusion will undoubtedly involve a consideration of the positions in other jurisdictions, including the United Kingdom, New Zealand and the United States. These are discussed at [3.41]–

[3.93], below.

PRIVACY PROTECTION IN THE UK, NZ AND THE US United Kingdom Misuse of private information — privacy protection in the United Kingdom 3.41 UK authorities have repeatedly acknowledged that English law does not recognise a general right of privacy and does not provide a general tort for its invasion.91 Nevertheless, the value of privacy underlies various specific causes [page 93] of action under English law, most notably the equitable action for breach of confidence.92 As an equitable remedy, an action for breach of confidence traditionally enforced equitable duties owed by one party to another, where, by reason of a confidential relationship, the party to whose conscience equity fastened received confidential information from the other. The action was not founded on any notion that the information per se was entitled to protection. However, it has long been accepted that the action is capable of being used to protect private information.93 Over time, the action for breach of confidence developed to protect such information and to provide a remedy for breach notwithstanding the absence of an initial confidential relationship.94 Thus, an obligation of confidence may now arise from the nature of the material or may be inferred from the circumstances in which it was obtained.95 The essence of the cause of action is misuse of private information and it has been renamed accordingly.96 It is separate and distinct from a cause of action for breach of confidence, and lies in tort not equity.97 Actions for breach of confidence and actions for misuse of private information rest on different legal foundations.98 The first protects secret or confidential information and focuses on a duty of good faith. The second protects privacy and focuses on ‘the protection of human autonomy and dignity’ and ‘the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people’.

The impact of the Human Rights Act 1998 (UK) 3.42 UK law concerning misuse of private information departs from Australian law concerning breach of confidence (discussed at [3.116]–[3.148], below). This is because the development of UK law has been given impetus by [page 94] the Human Rights Act 1998 (UK), which requires UK courts to give appropriate effect to the rights contained in the European Convention on Human Rights.99 These rights include the right to respect for private and family life contained in Art 8 and the right to freedom of expression contained in Art 10. 3.43 Art 8 imposes positive obligations on the state to respect, and therefore to promote, the interests of private and family life.100 Since at least Marckx v Belgium,101 the courts have consistently accepted that a person’s privacy is worthy of protection against encroachments by individuals and organisations, and a ‘citizen can complain against the state’ about such breaches of privacy.102 Under s 6(1) and (3) of the Human Rights Act 1998 (UK), the court, as a public authority, must refrain from acting ‘in a way which is incompatible with a Convention right’.103 UK courts achieve this by recognising that the values enshrined in Arts 8 and 10 are part of the cause of action for misuse of private information.104 It is here that UK law departs from Australian law concerning breach of confidence. 3.44 Articles 8 and 10 operate in different ways. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy.105 Thus, an action for breach of confidence is no longer constrained to enforce a duty of good faith applicable to personal confidential information (or, indeed, commercially valuable information). Rather, it has extended to recognise privacy itself as a legal principle worthy of protection.106 Conversely, Art 10 operates to protect freedom of expression and thus operates to restrict the area in which remedies are available for breaches of confidence.107 [page 95]

The test of misuse of private information

3.45 In cases concerning the wrongful publication of private information, the court has two questions to decide. First, is the information private in the sense that it is prima facie protected by Art 8? If it is not, then no cause of action arises. If it is, the court asks: in all the circumstances, are there any countervailing factors that warrant disclosure of the private information, and, in particular, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Art 10?108 3.46 As to the first question: information is private if it falls within the sphere of the complainant’s private or family life. Under the UK test, the touchstone of private life is whether the complainant had a reasonable expectation of privacy in the disclosed facts.109 Some types of information, including information relating to sexuality, medical matters and personal finances are more likely to be regarded as private; however, the court assesses the information on a case-by-case basis. 3.47 As to the second question: the court undertakes a balancing exercise in assessing whether relief from intrusion is appropriate having regard to any countervailing public interest that would justify overriding the prima facie right to privacy, including freedom of expression under Art 10.110 3.48 English courts have emphasised the need to keep the issues underlying each question separate. In Campbell v Mirror Group Newspapers Ltd (Campbell v MGN), Lord Nicholls of Birkenhead stressed that, when determining the ambit of an individual’s ‘private life’, ‘courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality’.111 Lord Nicholls of Birkenhead and Lord Carswell cautioned against the test for privacy suggested by Gleeson CJ in Lenah Game Meats112 observing, first, that it imposed a stricter test of what is private and, second, it tended to elide this threshold question with matters going to proportionality (eg, the extent of the intrusion and whether publication of the private information was a matter of public interest).113 [page 96]

Defences 3.49 Prior to the introduction of the Human Rights Act 1998 (UK), public interest was generally considered to be an instance of the general defence of ‘just

cause and excuse’ for breaking confidence.114 However, by reason of the incorporation of the Act and Arts 8 and 10 into the cause of action for misuse of private information, the public interest favouring the disclosure of information is seen as an aspect of the right to freedom of expression. Striking the correct balance between the competing rights contained in Arts 8 and 10 often depends on the extent to which there is a public interest in the disclosure of private information. This gives rise to the question whether it remains appropriate to analyse public interest in freedom of expression as a ‘defence’.115 3.50 Whatever the juridical status of the public interest, when courts are faced with the difficult task of balancing the rights of privacy and freedom of expression, any public interest is an important consideration. In Campbell v MGN,116 the public interest was described as an interest in ‘put[ting] the record straight’,117 that is to say, correcting the false image fostered by a public figure. In AMP v Persons Unknown (discussed at [3.66]–[3.69], below), the court took into account the lack of public interest in the private information disclosed. 3.51 In determining what is in the public interest, it is necessary to ask whether the public ought to know or has a proper interest in knowing the private information. The public interest is not synonymous with what the public is interested in, which may extend to idle gossip not susceptible to protection under Art 10.118 3.52 Putting aside questions of public interest, consent is a defence to a cause of action for misuse of private information. It is necessary to establish that the consent given extends to the misuse about which the complaint is made.119

Remedies 3.53 Remedies for misuse of private information include injunctive relief, damages (including aggravated damages), an account of profits and delivery up. [page 97] 3.54 Injunctive relief for misuse of private information is capable of affecting the exercise of the right to freedom of expression enshrined in Art 10. Accordingly, any grant of relief must take into account the steps taken to notify the defendant of the proceedings, or why notice should not be given, the

likelihood of obtaining final injunctive relief, the importance of the right of freedom of expression, the public interest in the publication of the material and any relevant privacy codes: s 12 of the Human Rights Act. 3.55 In claims for misuse of private information, the power of the court to award general damages is not limited to compensation for distress and can be exercised in addition to compensate claimants for the misuse of their private information.120 The court takes into account all the circumstances of the case, including the nature of the information misused, its significance as private information, the effect on the victim of its disclosure, the nature, extent and purpose of the misuse (including whether it involved a breach of a contractual or fiduciary duty or the commission of a criminal offence), the consequences of the misuse (eg, whether it causes information to be revealed for the first time, or to be disclosed to someone to whom the claimant has particular objection, or whether the effect is temporary or long-lasting, such as where the information remains accessible on the internet), whether the misuse caused the claimant financial loss or provided financial gain to the defendant, any relevant policy considerations (such as the protection of the rights of children or legal privilege) and any mitigating factors (such as a genuine mistake or a belief in the claimant’s consent) or aggravating factors (such as the manner of the defendant’s response to the complaint of misuse and the conduct of the trial).121

Relevance to social media 3.56 A number of English authorities have considered a cause of action for the misuse of private information in the context of social media.

Misuse of private information via social media: loss of privacy protection 3.57 The claimant in The Author of a Blog v Times Newspapers Ltd (Author of a Blog v Times)122 was a serving police officer and the author of a blog on which he published information concerning his police work and his opinions [page 98] on the police, the administration of justice and social and political issues. He

attempted to conceal his identity by blogging under a pseudonym. A journalist for the Times identified the claimant, who then sought an injunction to prevent the newspaper publishing his identity. 3.58 The claimant advanced his case against the newspaper on two grounds. First, the newspaper was subject to an obligation of confidence in respect of his identity.123 Second, the publication of his identity would constitute a misuse of information in which he had a reasonable expectation of privacy in circumstances where there was no countervailing public interest warranting its disclosure. The claimant argued that his efforts to preserve his anonymity were sufficient to characterise his identity as the author of the blog as private and confidential. The claimant also argued that the disclosure of his identity would infringe his rights under Art 10 as well as Art 8, as it would inhibit his right to impart information and ideas to the general public.124 3.59 The claimant failed. The court held that the information did not have about it the necessary ‘quality of confidence’, as contemplated by Megarry VC in Coco v AN Clark (Engineers) Ltd (Coco v Clark).125 Nor did it qualify as information in respect of which the claimant had a reasonable expectation of privacy.126 In this regard, the court held that ‘blogging is essentially a public rather than a private activity’.127 The court stated that, absent a genuine breach of confidence, a blogger does not have a legally enforceable right to maintain his anonymity.128 The court’s conclusion amounted to a rejection of the ‘general proposition’ put forth on behalf of the claimant that ‘there is a public interest in preserving the anonymity of bloggers’.129 3.60 Although not necessary for the disposition of the matter, the court made a number of obiter observations regarding the countervailing interest in freedom of expression under Art 10. First, the claimant was a police officer subject by Regulation to duties of confidence and good conduct and a public law duty not to disclose information obtained in the course of policing otherwise than for the performance of his duties. In publishing the blog, the claimant arguably contravened these duties and a legitimate interest may be served in unmasking him and bringing his wrongdoings to the attention of the public.130 Second, because the blog was overtly political and highly critical of policing strategies and politicians, the public may be entitled to receive [page 99]

information about the identity of its author in order to assess the value of the opinions advanced.131 Third, noting the claimant’s contentious views, which he believed contributed to a debate of general interest, the disclosure of his identity may itself contribute to this debate.132 3.61 Author of a Blog v Times cautions social media users that their mere desires to remain anonymous, and steps taken in furtherance of those desires, are insufficient to establish that the user’s identity is relevantly private and confidential under UK law, whether for the purposes of a breach of confidence action or an action for the invasion of privacy. If in Australia, contrary to the decision in Author of a Blog v Times, a social media user were entitled to preserve his or her anonymity, the content of the material anonymously published is likely to be highly relevant to the question whether anonymity is lost on other grounds, for example by iniquity in the case of breach of confidence actions, or in the case of an action for the invasion of privacy, a potential public interest basis (including but not limited to iniquity) if it is asserted to be relevant to the cause of action.

Misuse of private information via social media: orders for discovery 3.62 In Applause Store Productions Ltd v Raphael (Applause Store Productions v Raphael),133 a Facebook profile was created in the name of the complainant. A Facebook group was also created which was hyperlinked to the profile and was admittedly defamatory of the complainant and his company. 3.63 The Facebook profile contained a picture of the claimant and private information (not all of it accurate) about the complainant, including information concerning his sexual orientation. The profile contained additional information about the complainant’s whereabouts on certain days. The court was quick to conclude that information pertaining to the claimant’s supposed sexual preferences was private and its misuse gave rise to an action for breach of privacy. The court reached a different conclusion regarding the information as to his whereabouts, which was not considered private. 3.64 Facebook ceased publication of the profile and the group at the complainant’s request. The complainant then obtained a Norwich Pharmacal134 order against Facebook for the disclosure of data concerning the registration of the Facebook profile and group, including relevant email addresses and

[page 100] IP addresses.135 Upon obtaining this information, the court was satisfied that it established that the defendant was responsible for the Facebook publications and thus an unjustified invasion of privacy. 3.65 While social media users may treat their online anonymity as an unfettered licence to say what they wish about others, Applause Store Productions v Raphael demonstrates that they are not necessarily beyond the reach of the courts: various court procedures are available to assist aggrieved persons to identify the anonymous posters of their private information. Moreover, although social media organisations may be located outside the jurisdiction, courts are clearly prepared to make orders requiring the discovery of information tending to identify anonymous users and some social media organisations are prepared to abide by the orders.136 For a discussion of the position under Australian law, see Chapter 7, ‘Social Media and Litigation’.

Misuse of private information via social media: remedies for breach 3.66 The English courts have also displayed at least some preparedness to grant robust injunctive relief to protect an individual against actual or threatened breaches of privacy on the internet. In AMP v Persons Unknown,137 the claimant was in possession of a mobile phone, which contained sexually explicit digital images of herself. Unfortunately she lost the phone. Not long after its disappearance, the images were uploaded to an online hosting service used to share images. Persons unknown to the claimant used Facebook to inform her of the publications. Notably, when the images were uploaded, the claimant’s name and Facebook profile were appended to them.138 Attempts were also made to blackmail the claimant139 and associates of her family were threatened in relation to unspecified images.140 The explicit images were later uploaded to a Swedish BitTorrent141 file website and were subsequently [page 101] downloaded an unknown number of times by persons unknown. Links to the

BitTorrent files were at the top of the list of search engine results for the claimant’s name.142 3.67 The claimant sought an interim injunction to prevent the distribution of the image by persons unknown to her, so to prevent their further storage and transmission and publication. Among other grounds, the claimant sought relief for the misuse of private information to preserve the right to respect for her private and family life under Art 8. The court concluded that the claimant had a reasonable expectation of privacy in relation to the explicit sexual images (and other images of her family and friends) having regard to the feelings of a reasonable person of ordinary sensibilities placed in the claimant’s position.143 After observing that ‘information which is stored on a person’s mobile phone would generally be information for which there would be a reasonable expectation of privacy’, the court noted that the claimant had a ‘very strong case’ under Art 8 having regard to the circumstances in which the images were taken, the nature and purpose of the intrusion caused by their distribution, the absence of consent and the effects of distribution upon the claimant.144 3.68 As to the competing right to freedom of expression, the court again observed that the matter strongly favoured the claimant’s right to privacy. In particular, the court noted that this was not a case involving press freedoms.145 The court granted an interim injunction restraining the disclosure of the claimant’s identity and restraining the seeding, uploading, transmitting, or creation of derivatives of the relevant BitTorrent files. This was so even though the persons against whom the interim injunction was granted were unknown to the claimant. 3.69 Whether an injunction would be granted in similar circumstances by an Australian court is an open question. Relevantly, a court will not grant an injunction where to do so would be futile and where the order would be incapable of enforcement.146 [page 102]

New Zealand 3.70 The New Zealand courts have developed common law causes of action for the protection of privacy.147 The first cause of action concerns unjustified publication of private facts.148 The second cause of action concerns

unauthorised intrusion upon seclusion.149 Neither cause of action has come before the New Zealand Supreme Court.

Unjustified publication of private facts 3.71 By majority,150 the New Zealand Court of Appeal in Hosking v Runting (Hosking)151 declared that a cause of action for the unjustified publication of private facts is available under New Zealand law. The majority held that the juridical basis for this new cause of action is tort, not an extension of the cause of action for breach of confidence. They observed that privacy and confidence concern different matters152 and stated that the development of a new tort will ‘allow the law to develop with a direct focus on the legitimate protection of privacy, without the need to be related to issues of trust and confidence’.153 3.72

The elements of the tort are:

(a) the existence of facts in respect of which there is a reasonable expectation of privacy; and (b) publicity given to those private facts that would be considered highly offensive to an objective reasonable person.154 3.73 Gault P and Blanchard J noted the special vulnerability of children and observed that their private lives will seldom be of concern to the public.155 This warrants particular note in social media, which is widely used to share private facts about children. [page 103]

Unauthorised intrusion upon seclusion 3.74 In C v Holland (Holland)156 the plaintiff was surreptitiously filmed by her flatmate whilst she was showering. The plaintiff discovered the tapes and commenced proceedings against her flatmate for invasion of privacy. The court was required to determine whether an invasion of privacy without publicity or the prospect of publicity is an actionable tort in New Zealand. The court held that it was and declared that an action for the unjustified intrusion upon seclusion was available under New Zealand law. 3.75

The court described the tort thus: 157

(a) an intentional and unauthorised intrusion into seclusion (intimate personal activity, space, or affairs); (b) involving infringement of a reasonable expectation of privacy; (c) that is highly offensive to a reasonable person. 3.76 The court held that the intrusion must be an affirmative, nonconsensual act, which directly impinges on personal autonomy and causes real hurt or harm. The court further held that the tort does not extend merely to ‘unwitting or simply careless’ intrusions.158

Defences 3.77 In respect of each cause of action, a defence of legitimate public concern is available.159 The majority in Hosking stated, ‘the scope of privacy protection should not exceed such limits on the freedom of expression as is justified in a free and democratic society.’160

Remedies 3.78 In each cause of action, damage is the primary remedy.161 In Hosking the majority held that, as a cause of an action for the unjustified publication of private facts is intended to protect against ‘humiliation and distress’,162 it is unnecessary to establish actual damage in the nature of personal injury [page 104] (including recognised psychiatric injury) or economic loss.163 Injunctions are available for the unjustified publication of private facts. Holland did not consider whether an injunction would be an available remedy for intrusion on seclusion.

Relevance to social media 3.79 Like cases for the misuse of private information in the United Kingdom (discussed at [3.41]–[3.69], above), a cause of action for the unjustified publication of private facts may be brought in relation to publications on social media, subject to the elements of the cause of action being made out.

3.80 In certain circumstances, the use of social media may also give rise to a cause of action for the unauthorised intrusion upon seclusion. Arguably, the online streaming of surveillance material surreptitiously obtained from a person’s home or, in some circumstances, workplace,164 is capable of amounting to an unauthorised intrusion upon seclusion, again subject to the elements of the cause of action being made out. The additional fact of publication would not bar the availability of the cause of action; however, it may be accepted that a cause of action for the unjustified publication of private facts would cover the field.

United States 3.81 US privacy jurisprudence has its genesis in the noted article by S Warren and L Brandeis, ‘The Right to Privacy’,165 in the Harvard Law Review in 1890. This article contended that the growing abuses of the press made a remedy upon the distinct ground of the protection of privacy essential to the protection of the individual. 3.82 Nearly all US states now recognise a right to privacy, either at common law or by statute.166 The Restatement of the Law167 provides that privacy tort protection is available for the following categories of intrusion: (a) the unreasonable intrusion upon the seclusion of another; (b) the appropriation of the other’s name or likeness; [page 105] (c) the unreasonable publicity given to the other’s private life; and (d) the giving of publicity that unreasonably places another in a false light before the public.168 3.83 The causes of action most relevant to the protection of privacy interests in Australia, including in connection with social media, are unreasonable intrusion upon seclusion of another and unreasonable publicity given to another’s private life. These come closest to reflecting a concern for privacy ‘as a legal principle drawn from the fundamental value of personal autonomy’.169

Unreasonable intrusion upon seclusion 3.84 To prevail in a cause of action for unreasonable intrusion upon seclusion, a plaintiff must establish:170 (a) an intentional interference in the solitude or seclusion of his or her physical being or private affairs or concerns; (b) which would be highly offensive to a reasonable person. 3.85 The essence of the tort ‘is that an individual’s right to be left alone is interfered with by the defendant’s physical intrusion, or by an intrusion of the defendant using his or her sensory facilities’.171 The interference must be substantial. The mere unauthorised distribution of lawfully or consensually obtained material does not constitute an intrusion upon seclusion.172

Unreasonable publicity given to another’s private life 3.86 The giving of publicity to a matter concerning the private life of another is subject to liability for an invasion of privacy if the matter publicised is:173 (a) of a kind that ‘would be highly offensive to a reasonable person’; and (b) ‘is not of legitimate concern to the public’. 3.87 The information revealed must be private; that is, it must not be in the public domain or otherwise generally known. The information must be made [page 106] public by communication to the public at large, or to so many individuals so as to be regarded as substantially certain to become a matter of public knowledge.

Defences 3.88 Commentators have stated that consent may be the only defence in actions for the invasion of privacy.174 However, they have also observed that consent is not a true defence: under US law it is more properly relevant to the establishment of the element of offensiveness (ie, a consensual invasion of privacy is not ‘highly offensive’).

Remedies 3.89 Damages can be recovered for the harm caused by the loss of privacy, mental distress reasonably suffered and, where appropriate, special damages.175 Owing to US free speech jurisprudence, injunctions are not readily ordered.176

Impact of United States free speech jurisprudence 3.90 The US constitutionally enshrined right to free speech has limited the effect of privacy protection, particularly concerning freedom of the press. The First Amendment to the Constitution prohibits action for invasion of privacy where the matter published was truthful, lawfully obtained and of legitimate public concern.177 In the United States, the concept of legitimate public concern is broader than the concept of the public interest and, in particular, the right to freedom of expression in the United Kingdom.178

Relevance to social media 3.91 In Peterson v Moldofsky (Peterson),179 the defendant emailed180 explicit photographs of his former girlfriend to her mother, ex-husband, ex-in laws, [page 107] current boyfriend, employer and co-workers. The plaintiff commenced action for, among other things, intrusion upon seclusion and unreasonable publicity given to private life. The defendant applied summarily to dismiss the claim. 3.92 As to intrusion upon seclusion, the court held that the distribution of consensually obtained material was insufficient to sustain the action. 3.93 As to unreasonable publicity, on an interlocutory basis, the court was ask to determine whether a genuine issue of fact existed as to whether the contents of the email were substantially certain to become public knowledge. The court held that there was a genuine question to be tried. The court emphasised the sexually explicit nature of the photographs; the differences between traditional publications (eg, the mail and oral publications) and internet publications; ‘the prevalence of the Internet, and the relative ease in which information can be published over the Internet’; and the fact that ‘[w]ith one

simple keystroke, a recipient of the email could, at least theoretically, disclose the pictures to over a billion people’. The court stated that while publication via traditional means to a single person or even to a small group of people is usually insufficient to give publicity to the relevant private fact, the same could not be said for publications on the internet.

THE UNJUSTIFIED INVASION OF PRIVACY — FUTURE DEVELOPMENTS IN AUSTRALIAN LAW A common law cause of action? 3.94 It remains to be seen whether a cause of action for the unjustified invasion of privacy (or indeed a cause of action for the unjustified intrusion upon seclusion) will be declared at common law in Australia or whether such a declaration will be overtaken by the enactment of statutory causes of action. 3.95 In Maynes v Casey,181 the NSW Court of Appeal observed that statements in Lenah Game Meats (discussed at [3.19]–[3.26], above) and Giller v Procopets182 as to the proper effect of Victoria Park Racing183 (discussed at [3.17]– [3.18], above), ‘may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence’.184 [page 108] In Sands v South Australia,185 Kelly J stressed the need for ‘further development in the law to acknowledge the existence of a tort of privacy in Australia’. In Chan v Sellwood; Chan v Calvert,186 Davies J observed that the existence of the cause of action at common law was ‘a little unclear’;187 however, its existence has otherwise been described as an arguable proposition.188 Where doubt has existed as to whether a cause of action for unjustified invasion of privacy should be recognised in the Australian common law, courts have been reluctant to foreclose the possibility of argument, provided that such argument may reasonably be raised.189 In Candy v Bauer Media Ltd,190 Pembroke J raised the question of privacy in the context of an interlocutory injunction for breach of confidence.

3.96 If a cause of action for the unjustified invasion of privacy is developed at common law, the following questions arise: (a) Will the cause of action develop as an extension of the existing law concerning breach of confidence (discussed at [3.116]–[3.148], below)? (b) Will the cause of action be founded on a new tort for the unjustified invasion of privacy (or some similar name)? (c) Whatever the juridical basis, how might the cause of action be formulated; that is to say, how might the elements of the cause of action, any defences and the possible remedies be cast? 3.97

In answering these questions, the court is likely to seek guidance from:

(a) the existing Australian judicial considerations of unjustified invasions of privacy (as to which, see [3.16]–[3.40], above); (b) the protections afforded against unjustified invasions of privacy in other jurisdictions, including the United Kingdom, New Zealand and the United States (as to which, see [3.41]–[3.93], above); and (c) considerations of the topic by state and federal law reform bodies (as to which, see [3.100]–[3.107], below). 3.98 Similar questions are likely to be asked and similar approaches adopted if the court is invited also to consider the development of a cause of action for the unjustified intrusion upon seclusion. [page 109] 3.99 Prospective litigants contemplating either cause of action, or defendants to any such actions, would undoubtedly benefit if they too were to have regard to the issues identified in [3.94]–[3.97] in the course of formulating their respective positions.

A statutory cause of action? 3.100 The enactment of statutory causes of action for the unjustified invasion of privacy and the unjustified intrusion upon seclusion may anticipate common law developments.

3.101 In its report entitled, Serious Invasions of Privacy in the Digital Era (ALRC Report No 123), and tabled in 2014, the Australian Law Reform Commission (ALRC) made recommendations as to the formulation of both causes of action, their defences and remedies.191 The inquiry founding the report called for detailed consideration to be given to the design of a statutory cause of action, noting that ‘unauthorised use of personal information and intrusion on personal privacy or seclusion’ are ‘significantly affected by the digital era and the capacities that digital technology provides’.192 3.102 In a report published on 3 March 2016, the NSW Parliament Standing Committee recommended that the NSW Government introduce a statutory cause of action for serious invasions of privacy, based on the model proposed by the ALRC.193 3.103 ALRC Report No 123 stated that a cause of action should lie for two types of invasions: (a) intrusion upon seclusion, such as by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs; and (b) misuse of private information, such as by collecting or disclosing private information about the plaintiff. 3.104 The ALRC further stated that the new tort should be actionable only where a person in the position of the plaintiff would have had a reasonable [page 110] expectation of privacy, in all of the circumstances, and should be confined to intentional or reckless invasions of privacy (and should not extend to negligent invasions). In adopting the ALRC’s position, the NSW Parliament Standing Committee proposed that the NSW Government should consider incorporating a fault element of intent, recklessness and negligence for governments and corporations, and a fault element of intent and recklessness for natural persons. 3.105 The ALRC defined ‘private information’ to include untrue information, but only if the information would be private if it were true. 3.106 The ALRC advanced a number of defences, namely necessity, consent, absolute privilege, publication of public documents and fair report on

proceedings of public concern. The ALRC did not advance a public interest defence; rather, it recommended the legislation should provide that, for the plaintiff to have a cause of action, the court must be satisfied that the public interest in privacy outweighs any countervailing public interest. The ALRC identified the following non-exhaustive list of countervailing public interest matters: freedom of expression, including political communication and artistic expression; freedom of the media; the proper administration of government; open justice; public health and safety; national security; and the prevention and detention of crime and fraud. 3.107 The ALRC advanced a range of remedies, including injunctive relief; damages, including damages for emotional distress and exemplary damages (without proof of actual damage); an account of profits; delivery up; correctional orders; apologies and declarations. The ALRC proposed that damages ought to be capped, noting that the cap should not exceed the cap on damages for noneconomic loss in defamation and should apply to the sum of damages for noneconomic loss and any exemplary damages.

FREE SPEECH, PRIVACY PROTECTION AND SOCIAL MEDIA 3.108 The Australian Constitution does not expressly guarantee freedom of speech. However, at common law, ‘everybody is free to do anything, subject only to the provisions of the law’.194 Among other things, we are free to exercise our common law right of freedom of speech. 3.109 Legal developments that seek to protect privacy interests invariably curtail this common law right. A threatened invasion of privacy by the publication of private information is most effectively prevented by an interlocutory injunction. As the court held in Prince Albert v Strange, ‘where [page 111] privacy is the right invaded, postponing the injunction would be equivalent to deny it altogether’.195 However, prior restraints also place the most significant restrictions on freedom of speech. In an action for defamation, a court will not impose a prior restraint on publication if the defendant ‘says he intends to justify it or to make fair comment on a matter of public interest’.196 This principle

owes much to the value the court places on freedom of speech.197 3.110 In Lenah Game Meats, Gleeson CJ stressed the ‘tension that exists between interests in privacy and interests in free speech’.198 This is an incident of the broader impact of the implied freedom of political communication on the development of the common law. 3.111 Under Australian law, ‘the common law and the freedoms it encompasses have a constitutional dimension’.199 The Constitution provides for a system of representative and responsible government. ‘Freedom of communication on matters of government and politics is an indispensible incident of that system’: Lange v Australian Broadcasting Corp (Lange).200 Owing to this, the freedom of political communication cannot be curtailed by the exercise of legislative or executive power. Further, the common law,201 and the rules of equity and of judicial practice cannot be inconsistent with it.202 Nor can the court’s exercise of its discretionary function.203 However, the freedom is not absolute and nor is its limit on legislative power. In these circumstances, ‘[t]he accepted doctrine of the Court is that where a law has the legal or practical effect of burdening political communication, the boundaries of the freedom are marked by two conditions’,204 these being the two limbs of the well-known test first articulated in Lange.205 [page 112] 3.112 The operation of the law of confidence and any law concerning the unjustified invasion of privacy, therefore, needs to be qualified by the implied freedom of political communication in cases involving political speech.206 In Lange, the court held that such a qualification was required of the law of defamation.207 Similarly, a cause of action for the unjustified invasion of privacy is unlikely to be compatible with the implied freedom without qualification, in particular by a mechanism that would permit proper judicial consideration of the public interest.208 The public interest protected would include an interest in free communication on government and political matters. 3.113 However, at the intersection of competing interests in free speech and privacy, the court may well encounter difficult issues of discretion (subject to the precise formulation of any cause of action). The facts of Author of a Blog v Times209 sufficiently illustrate the point. As discussed at [3.57]–[3.61], a social media user who engaged in political commentary in his anonymous blog

brought a claim for injunctive relief against a newspaper that wanted to reveal his identity. The bases for relief were breach of confidence and misuse of private information. Although not in issue in Author of a Blog v Times,210 in Australia, a political commentator might argue that his unmasking would have a ‘chilling effect’ on political communication by discouraging other social media users from freely sharing their political views online.211 Having regard to the implied freedom of political communication, this would need to be taken into account in any relevant exercise of discretion concerning the grant of an injunction. However, against this, the investigative journalist who seeks to reveal the identity of the political commentator, might wish to resist the injunction in order to advance free speech on political matters. This too would need to be taken into account. 3.114 The resolution of these competing interests is neither straightforward nor necessarily satisfactory; as to the latter, particularly if in the establishment of principles of general application, the scope for ad hoc discretionary judgments is widened.212 Gummow J expressed such concerns when considering the UK ‘public interest’ defence to alleged breaches of equitable obligations of confidence. In Smith Kline & Kline French Laboratories [page 113] (Australia) Ltd & AlphaPharm Pty Ltd v Department of Community Services,213 which predates Lange, his Honour stated: (i) an examination of the recent English decisions shows that the so-called ‘public interest’ defence is not so much a rule of law as an invitation to judicial idiosyncrasy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or to override the obligation of confidence, and (ii) equitable principles are best developed by reference to what conscionable behaviour demands of the defendant not by balancing and then overriding those demands by reference to matters of social or political opinion.

3.115 Although Gummow J’s approach in cases of equitable breaches of confidence may be preferred as a matter of principle, the position has yet to be settled under Australian law,214 and the above discussion raises a question whether, in light of Lange, Gummow J’s stricter approach may be adopted conformably with the requirements of the implied freedom of political communication in the area of privacy protection. How the matter might be resolved in cases of invasion of privacy will depend in part on whether the cause

of action, if it develops, does so by way of an extension of the existing law of confidence or by the creation of a separate common law or statutory tort. However, in neither case is it clear that the court will be able to avoid difficult discretionary issues.

BREACH OF CONFIDENCE AND THE PROTECTION OF PRIVACY 3.116 The equitable action for breach of confidence may be used to restrict the disclosure of private information in certain circumstances. The court will act to ‘restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged’.215

Origin 3.117 The law of breach of confidence finds its origin in cases concerning interferences with private life and information. In Prince Albert v Strange,216 [page 114] Prince Albert obtained an injunction to restrain the defendant from exhibiting, and publishing in a catalogue, impressions, private etchings and drawings of his children and other subjects of interest to his family. In Argyll (Duchess) v Argyll (Duke),217 the duchess obtained an interlocutory injunction to restrain the revelation of marital confidences by her former husband, the duke, and to restrain their publication by the editor and publisher of the newspaper to whom the duke had communicated them. 3.118 In each of these cases, the court, in the exercise of its equitable jurisdiction, restrained a breach of confidence independently of any right at law.218 In Moorgate Tobacco Ltd v Phillip Morris Ltd (No. 2)219 Deane J (with whom the other members of the court agreed) held that the rational basis for equitable relief ‘lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained’.

The protected information 3.119 Breach of confidence is concerned with the protection of a variety of information, traditionally falling within four classes: trade secrets; personal confidences; government information; and literary and artistic confidences (R v Dept of Health, Ex parte Source Informatics Ltd (R v Dept of Health))220 3.120 The protection of each of these classes of information is directed to the protection of different interests. The protection of trade secrets and literary and artistic confidences is akin to the protection of property interests.221 The protection of government information is designed to prevent disclosures that are ‘likely to injure the public interest’.222 And, as Simon Brown LJ explained in R v Dept of Health, ‘the notion of privacy lies [page 115] close to the heart of the courts’ interest in securing personal confidences’.223 It is with this latter class of information that this chapter is concerned.

The elements of the cause of action 3.121 In order to establish a cause of action for breach of confidence independently of contract, the following elements, as specified by Megarry VC in Coco v AN Clark (Engineers) Ltd,224 are required: (a) the information has the necessary quality of confidence about it; (b) the information has been imparted in circumstances importing an obligation of confidence; (c) there has been unauthorised use or misuse of the information. 3.122 In Corrs Pavey Whiting v Collector of Customs (Vic)225 and Smith Kline & Kline French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Department of Community Services,226 Gummow J identified a further requirement, namely that the plaintiff must be able to identify the allegedly confidential information with specificity, and not merely in global terms.227 The need for specificity is derived from the court’s need to assess whether the information is, in truth, confidential in nature (an inquiry which ‘may turn on whether the information in whole or in

part has become the subject of general disclosure or notoriety’).228

The necessary quality of confidence 3.123 In order to warrant equitable protection, information must have a quality of confidence. As a matter of principle, the courts must determine what ‘conscionable behaviour demands of the confidant in the circumstances’ for an ‘obligation of confidence will yield only where the confidant in conscience could not be expected to maintain the confidence’.229 [page 116] 3.124 Certain categories of information are more susceptible to having the necessary quality of confidence than others.230 In Lenah Game Meats,231 Gleeson CJ observed:232 Certain kinds of information about a person such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved.

3.125 Of private information, it has been said that it will be obvious whether it has the mark of confidentiality.233 The categories of private information identified by Gleeson CJ have all received protection by the courts through equitable actions for breach of confidence. Thus, the contents of a physician’s diary,234 medical reports235 and health information236 have all been classed as confidential. Further, courts have also regarded information concerning personal relationships237 and finances238 as being confidential. For information falling outside these accepted categories, the courts will have regard to a number of factors in assessing whether the information has the necessary quality of confidence, including: (a) the nature of the information (is it particularly sensitive for it concerns, eg, a person’s sexuality?); [page 117] (b) whether, when imparted, it was expressly designated as confidential by the

confider; (c) whether, failing any express designation, it was otherwise treated as confidential (eg, by keeping it hidden239); (d) whether it would be treated as confidential by a reasonable person;240 and (e) whether the presentation of the information is particularly graphic (eg, photographs of a private activity compared with its description241). 3.126 This list of factors is not exhaustive and, ultimately, the court will take into account all the circumstances concerning the relevant information, including ‘where there is no imparting of information in circumstances of trust or confidence’.242 3.127 In Saad v Chubb Security Australia Pty Ltd,243 photographs of a woman taken from CCTV footage recorded by security cameras installed in her workplace were uploaded to a Facebook page. The plaintiff asserted that the photographs were accompanied by ‘humiliating commentary’ about her. On an interlocutory application seeking to strike out the plaintiff’s claims (including for breach of confidence based on the unjustified invasion of privacy), Hall J held:244 In the present case, the plaintiff was … the sole subject and focus of the photographic images. It is at least arguable that the unauthorised images of her amounted to an interference in what was essentially an activity forming part of her private, though not secret life associated with her employment. On balance … having regard to the source of the photographic images, the limited purposes for which they were obtained and the nature of them, I do not consider that, at this stage of the proceedings, it is open to conclude that the cause of action for breach of confidence based on invasion of the plaintiff’s privacy would be futile or bad in law …

3.128 In Wilson v Ferguson,245 the defendant published sexually explicit photographs and videos of his former partner on Facebook. They were made available to more than 300 of the defendant’s Facebook friends. The plaintiff [page 118] and the defendant were co-workers and many of the defendant’s Facebook friends worked with them. The court determined that the images and videos were confidential, holding that, ‘[i]ntimate photographs and videos taken in private and shared between two lovers would ordinarily bear a confidential character, and be implicitly provided on condition that they not be shown to any third party’.246 Further, the images were not in the public domain and the

plaintiff had emphasised their private nature to the defendant. The court further observed that ‘the equitable doctrine may be applied to images of a person, even where the images were created by the person sought to be restrained from disclosing the images’.247 3.129 Some information, however, will ordinarily not possess this quality. This includes information that is no more than mere ‘trivial tittle tattle’.248 Further, information in the public domain lacks the necessary quality of confidence and thus is not entitled to protection.249 Moreover, there is no confidence in an iniquity.250

Information imparted in circumstances importing an obligation of confidence 3.130 Equity will intervene to protect information that has been communicated in circumstances importing an obligation of confidence.251 Concerning this requirement, Megarry VC stated in Coco v AN Clark (Engineers) Ltd:252 … if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.

3.131 This reasoning has been adopted in Australia: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd; [page 119] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd.253 Accordingly, a person to whom information is imparted in confidence will be bound by an obligation of confidence. A third party recipient of confidential information, who knew or ought to have known of its confidential nature, is also bound by an obligation of confidence.254 3.132 Equity will also intervene to ‘restrain the publication of confidential information improperly or surreptitiously obtained’.255 Thus, equity may impose obligations of confidence even though there is no imparting of information in circumstances of trust and confidence.256

3.133 In each case, equity has ‘regard not only to what the defendant knew, but to what he ought to have known in all the relevant circumstances’.257 3.134 Social media users may impart information by way of social media in a manner that fails to import such an obligation of confidence. This was the conclusion the court reached in Norman South Pty Ltd & Geoffrey Edlesten v Stacey da Silva258 of information imparted via email and the online dating site, . 3.135 Social media users to whom confidential information is imparted in circumstances importing an obligation of confidence are bound not to publish the information further, whether they receive it from the original confider or whether it was provided to them by a third party in circumstances where they knew or ought to have known that the information was confidential. However, many users (and in particular younger users) of social media tend more freely to share what might ordinarily be regarded as confidential private information (eg, information falling within one or more of the categories identified by Gleeson CJ in Lenah Game Meats259 and discussed at [3.124], above). Accordingly, they may fail to appreciate that upon their receipt of like information, having regard to all the circumstances, they may be bound by an obligation of confidence not to disclose or to make unauthorised use of it. ‘Sexting’ (ie, sending to a recipient an explicit image of oneself or another person) provides but one example of the category of private information [page 120] that a court would regard as prima facie confidential.260 Unless the confider granted his or her consent for its use or disclosure, a court would be likely to find that any recipients of such information are bound by an obligation of confidence.

Unauthorised use or misuse of the information 3.136 A breach of the obligation of confidence occurs where there is an unauthorised disclosure or use of the information. Social media users will thus be liable for an action for breach of confidence if they use or disclose confidential information in circumstances where they knew, or ought to have known, that they were unauthorised to do so. Unauthorised disclosure of

confidential information may include its dissemination electronically (eg, by way of social networks), in hardcopy or by oral disclosure. Unauthorised use may include use of the information to harass the confider of confidential information, including by way of cyber-bullying. In Wilson v Ferguson (see [3.128], above), the defendant misused sexually explicit images of his ex-lover by publishing them to hundreds of people on Facebook in order to cause her embarrassment and distress and to punish her for ending their relationship.261

Loss of quality of confidence: the ‘public domain’ 3.137 In Marcel v Commissioner of Police of the Metropolis, Browne-Wilkinson V-C said,262 ‘there can be no breach of the duty of confidence once the information or documents are in the public domain and the confidentiality has therefore disappeared’. Gaudron J discussed the concept of the ‘public domain’ in Johns v Australian Securities Commission.263 As her Honour stated, ‘the public domain has two distinct aspects: the first is concerned with the question whether any duty of confidence arises; the second is concerned with whether a duty of confidence has come to an end’.264 Thus, in the first instance, information ‘which is public property and public knowledge’265 or ‘common knowledge’266 is already in the public domain and is unable to attract the necessary quality of confidence. In the second instance, if information passes into the public domain, it ceases to be confidential. This may occur, [page 121] for example, if the information is published by or with the consent of the person to whom the duty of confidence is owed, thus releasing the confidant from the duty: Speed Seal Products v Paddington (Speed Seal Products).267 3.138 The question whether information has passed into the public domain is largely one of fact, although it may also involve questions of law (as in the example of Speed Seal Products). Further, the question will also often be a matter of degree: Brand v Monks.268 Absolute secrecy is unnecessary and ‘a claim that the disclosure of some information would be a breach of confidence is not to be defeated simply by proving that there are other people in the world who know the facts in question besides the man as to whom it is said that his disclosure would be a breach of confidence and those to whom he has disclosed them’.269

Accordingly, although there may be some disclosure of the confidential material, if the disclosure is not made with a view to general publication, an obligation of confidentiality may still remain. 3.139 In the realm of social media, the question whether information has been generally disclosed, and is therefore in the public domain, is fraught. Although an individual may wish to limit his or her disclosure of certain information to, for example, a limited circle of friends on Facebook, social media is capable of making the most private fact general knowledge in a matter of hours, as information is published online, picked up on social media, shared on Facebook, tweeted, retweeted, opined on in blogs, and reported upon in mainstream online and traditional news media. Users of social media would be well-advised to avoid altogether online publication of private information which they wish to keep confidential, even if they intend to publish the information to only a limited group of people. 3.140 Social media users would also be well-advised to heed the observations in English decisions as to the fate of parties who routinely disclose aspects of their private lives to the public. In Lennon v News Group Newspapers Ltd.270 Lord Denning MR observed of the parties that, owing to their having engaged in ‘making money by publishing the most intimate details about one another’ the relationship between them has ‘ceased to be their own private affair … It is all in the public domain’. More recently, in A v B plc.271 the Court of [page 122] Appeal observed that, ‘if you have courted public attention then you have less ground for the intrusion which follows’. It is arguable that social media users who tend to publish all manner of private information online will have more difficulty in asserting a cause of action for breach of confidence in relation to similar private information.

Iniquity 3.141 Wood V-C stated in Gartside v Outram,272 ‘there is no confidence as to the disclosure of iniquity’ for one ‘cannot be made the confidant of a crime’.273 Both under English and Australian law, as a doctrine of public policy, the law of confidence will not protect the commission of crimes and frauds and other

serious wrongdoing.274 However, from Wood V-C’s classical dicta, differing approaches to the breadth of the iniquity exception have developed in the English and the Australian authorities. 3.142 Modern English authority provides that the law of confidence will not prevent the disclosure of confidential information where the disclosure is in the public interest.275 The public interest is broader than the mere disclosure of iniquity, in the sense of crimes or frauds, and includes, among other matters, an interest in correcting the public record (particularly when what is sought to be protected involves some degree of moral turpitude).276 The courts are required to balance the competing interests in protecting the confidential information and in disclosing it. This necessarily involves a balance between competing rights enshrined in the European Convention on Human Rights, and, in particular, the right to privacy and family life under Art 8 and the right to freedom of expression under Art 10. 3.143 Australian law, however, generally provides for a more limited approach to the principle of iniquity and some caution should be exercised when considering English authority on the topic. In Corrs Pavey Whiting v Collector of [page 123] Customs (Vic),277 Gummow J deprecated the English ‘public interest’ approach. In considering the iniquity exception when applied in equity (ie, in the absence of an assertion of a contractual right to confidence), his Honour held that the principle:278 is no wider than one that information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime wrong or misdeed … It is no great step to say that information as to crimes, wrongs and misdeeds, in the sense I have described, lacks what Lord Greene MR called ‘the necessary quality of confidence’.

3.144 The weight of authority in the Australian courts supports Gummow J’s narrower approach to iniquity, thus rejecting a broad public interest approach.279 Nevertheless, an exception expressed in terms of public interest is not entirely without support. In Attorney-General (UK) v Heinemann Publishers Aust

Pty Ltd,280 Kirby P expressed a preference for a general principle of ‘public interest’ of which principle his Honour viewed ‘iniquity’ to be but an instance. His Honour continued by observing that ‘the public interest in disclosure … may sometimes, even if rarely, outweigh the public interest in confidentiality and secrecy’.281 However, against this position may be pressed the opinion of Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd282 that the better view is that the matter is one of principle founded on what conscionable behaviour demands of the confidant in the circumstances. The court should not be drawn into a discretionary exercise, [page 124] involving the balancing of the private interest in maintaining a confidence against the public interest in knowing the truth.283

Remedies 3.145 Remedies for breach of the equitable obligation include compensation or an account of profits, an injunction and a declaration. Although there has been some judicial question on the matter, the weight of authority indicates that the plaintiff in a suit for breach of the equitable obligation does not need to show any damage.284 However, damage may include damage for distress285 and aggravated damages.286 3.146 Social media is capable of dispersing information rapidly, throughout Australia and the world across numerous websites, often rendering impossible the task of removing the information from ready access via online search. Breaches of confidence by way of publication on social media may, therefore, warrant awards of damages for distress and aggravated damages. Although not yet settled, an award of exemplary damages is unlikely to be available in causes of action for equitable wrongs.287 3.147 Injunctions for breach of confidence can be sought on both a quia timet basis (ie, prior to any threatened imminent publication of confidential [page 125]

material),288 or on an interim or final basis following publication. As to the latter, limited publication of confidential information does not necessarily extinguish its quality of confidence. In Kwok v Thang,289 the court held that the publication of a verbal account of the contents of a confidential recording did not prevent the plaintiff from enjoining widespread publication by release on the internet.290 However, as a fundamental principle, a court will only make orders that are capable of enforcement and have utility, in that ‘they can reasonably achieve the objective which is intended’: Candy v Bauer Media Ltd.291 While a court may make orders restraining an individual who has breached a confidence through the use of social media from further breach, or may make additional orders restraining recipients of the confidential information from engaging in further publication, a court will not grant an injunction where to do so would be futile, particularly if the information sought to be contained has been disseminated widely throughout the internet.292 In Wilson v Ferguson,293 the court granted an injunction on the basis that there was a reasonable apprehension that the defendant would repeat his publication of the confidential material (revenge pornography). Significantly, the defendant published the material on the internet for a short time and, although third parties may have obtained copies of the images, the court noted that there was no evidence that their distribution was so widespread that the grant of injunctive relief would be futile or that the material had lost its confidential character by reason of the extent of its publication. 3.148 Relief is also available against third party recipients of confidential information who are possessed of actual or constructive knowledge and those who knowingly assist a confidant to breach his or her obligations of confidentiality.294 In the context of social media, therefore, relief may be available against a party who creates a social media forum (say, a blog) that encourages people to publish confidential information about others [page 126] (eg, explicit pictures of former partners or information relating to another person’s sexual preferences).295

Is breach of confidence a suitable vehicle by which to

protect privacy? 3.149 Notwithstanding the capacity for the equitable action for breach of confidence to be deployed in cases of unjustified invasions of privacy and the developments in the United Kingdom, the proposition that the law of breach of confidence in Australia should develop to protect privacy interests has been met with criticism. The ALRC argues that such a development would be undesirable for the following reasons:296 (a) confidentiality and privacy are different concepts and cover different matters. Although ‘most confidential acts and information could arguably be described as private, not all private activity is necessarily confidential’; (b) the equitable doctrine of breach of confidence is unsuited to the introduction and development of greater privacy protection because it fastens on the conscience of the confidant, not the intrinsic value of the private information itself; (c) it is unclear whether breach of confidence is able to offer privacy protection beyond the unjustified publication of private information. 3.150 Similar observations have been made by members of the court in Hosking.297 Gault P, Blanchard J and Tipping J each emphasised the conceptual difference between the actions. Tipping J stated that, ‘[b]reach of confidence, being a equitable concept is conscience-based’ whereas, ‘[i]nvasion of privacy is a common law wrong which is founded on the harm done to the plaintiff by [page 127] conduct which can reasonably be regarded as offensive to human values’.298 In the United Kingdom, courts have expressed dissatisfaction with their being required to ‘shoe-horn’ claims for unjustified invasions of privacy within the cause of action of breach of confidence299 and the Court of Appeal’s decision in Google v Vtdal-Hall300 emphasises that the causes of action are quite distinct. 3.151 There is force in the arguments put against an expansion of the law of confidence in Australia to encompass protection for unjustified invasions of privacy. Whether or not Australian superior courts will follow the developments in the United Kingdom, or will take up declarations in the lower courts as to the existence in Australia of a tort of unjustified invasion of privacy, is an open

question and one that social media organisations and users should keenly anticipate.

INFORMATION PRIVACY 3.152 Separately from questions concerning unjustified invasions of privacy, the collection of personal information by social media organisations raises issues concerning data protection, otherwise known as information privacy. 3.153 Information privacy is concerned with the handling of personal information about individuals, including the collection, use, storage and disclosure of such information by various public and private sector entities. To the extent that state and federal statutes address matters of privacy, they are primarily concerned with information privacy.301 3.154 The Privacy Act 1988 (Cth) (Privacy Act) governs the handling of personal information about individuals by federal government agencies and private sector organisations. It is the principal Commonwealth legislation dealing with information privacy. The Privacy Act does not apply to state or territory government agencies.302 However, some state and territory parliaments have enacted privacy legislation, which is applicable to their own government departments and agencies and which operates concurrently with the Privacy [page 128] Act.303 Some of these laws also apply to private sector organisations. In the context of social media, however, the Privacy Act remains the most relevant legislation and it is this legislation that this chapter considers.

Privacy Act 1988 (Cth) (Privacy Act) The Privacy Act, its recent amendments and its objects 3.155 The Privacy Act has a number of objects. Notably, it is intended to promote the protection of individual privacy, to balance this protection with the interests of public and private sector entities, to provide the basis for nationally consistent regulation and to facilitate the free flow of information across

national borders while ensuring that the privacy of individuals is respected.304 3.156 By the introduction of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) and the accompanying Privacy Regulation 2013, the Federal Government has effected the most significant reform to privacy regulation since the introduction of the Privacy Act over 25 years ago.305 These amendments followed the ALRC’s comprehensive review of information privacy, the results of which are contained in ALRC Report No 108. The report made a number of recommendations seeking reform of federal and state privacy legislation, having regard to the growth and impact of new technologies on information privacy.306 The Privacy Act was amended following these calls for reform. The amendments are significant and are relevant to social media organisations and social media users.

To whom does the Privacy Act apply? 3.157 The Privacy Act applies to ‘APP entities’. An APP entity is an ‘agency’ (ie, a government or government-related entity) or an ‘organisation’. An organisation means an individual, a body corporate, a partnership, any other unincorporated association or a trust.307 APP entities, save in certain excepted circumstances, are required to comply with the Australian Privacy Principles (APPs) contained in the Privacy Act (ie, the rules concerning the regulation of personal information, discussed at [3.169]–[3.183], below). 3.158 The Privacy Act provides a number of exemptions that limit its operation. Most notably, an ‘organisation’ does not include a small business [page 129] operator,308 a registered political party, an agency, a state or territory authority or a prescribed instrumentality of a state or territory.309 Moreover, the Privacy Act does not apply to individuals acting in a non-business capacity.310 Further, it does not apply to journalists or media organisations engaged in journalism if they are publicly committed, in writing, to observing standards that deal with privacy.311 3.159 However, if a small business operator ‘trades in personal information’ by disclosing personal information about another individual to anyone else for a

benefit, service or advantage or by providing a benefit, service or advantage to collect personal information about another individual from anyone else, save in limited circumstances, it will need to comply with the APPs.312 This is so regardless of its size. A small business operator will be exempt from compliance if the disclosure of personal information or the provision of a benefit occurs otherwise than in the course of the business it carries on313 or if it obtains the consent of the individuals to whom the personal information belongs or if the activity is authorised or required by law.314 3.160 The Office of the Australian Information Commissioner (OAIC) states that ‘trading in personal information’ includes buying, selling or bartering personal information.315 The OAIC states that a benefit, service or advantage can be any kind of financial payment, concession, subsidy or some other advantage or service.316 Accordingly, if an organisation collects personal information and then provides it to a direct-marketing business, buys a mailing list or uses customer information to cross-sell products from a related business, it may be ‘trading in personal information’.317 3.161 This is capable of affecting social media organisations that have a connection to Australia (as to which, see [3.162]–[3.163], below), irrespective of their size. Social media organisations should pay special attention to their advertising and cross-marketing activities (among other activities) to ensure they comply with the Privacy Act and, in particular, the APPs (as to which, see [3.169]–[3.183], below). [page 130]

Extra-territorial operation of Act 3.162 The Privacy Act has extra-territorial operation in respect of acts done or practices engaged in outside Australia by Australian government agencies, organisations and small business operators.318 However, these entities are not liable under the Privacy Act for any acts or practices required by any applicable foreign law. 3.163 The Privacy Act applies to organisations and small business operators that are located outside the jurisdiction but have an ‘Australian link’. An ‘Australian link’ will exist if the organisation or operator is an Australian citizen, an Australian permanent resident, a partnership, trust or body corporate formed

in Australia319 or an unincorporated association that has its central management and control in Australia.320 In assessing alleged breaches of the Privacy Act, an ‘Australian link’ will also exist if an organisation or small business operator carries on business in Australia and collected or held personal information in Australia either before or at the time the allegedly infringing act or practice occurred.321

To what kind of information does the Privacy Act apply? 3.164 The Privacy Act applies to personal information and sensitive information. 3.165

‘Personal information’ means:322

information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not.

3.166

‘Sensitive information’ means:323

(a) information or an opinion about an individual’s: (i) racial or ethnic origin; or (ii) political opinions; or (iii) membership of a political association; or (iv) religious beliefs or affiliations; or (v) philosophical beliefs; or (vi) membership of a professional or trade association; or

[page 131]

(b) (c) (d) (e)

(vii) membership of a trade union; or (viii) sexual orientation or practices; or (ix) criminal record; that is also personal information; or health information about an individual; or genetic information about an individual that is not otherwise health information; or biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or biometric templates.

3.167

This information (save for genetic and biometric information and

perhaps health information) is routinely collected and handled by social media organisations in the ordinary course of their business activities. 3.168 With effect from 13 October 2015, the definition of personal information in the Privacy Act also includes information relating to an individual or a communication to which the individual was a party in circumstances where the information is held by internet and telecommunication service providers and, more specifically, a service provider as defined in s 187A(1) of the Telecommunications (Interception and Access) Act 1979 (Cth).324 However, in Telstra Corporation Limited and Privacy Commissioner, the Administration Appeals Tribunal determined that the definition of personal information does not extend so far as to include metadata, such as mobile network data, web-browsing history and IP addresses — these not being information about an individual.325

Australian Privacy Principles 3.169 Prior to the amendments to the Privacy Act, dealings in personal information by government agencies and private sector organisations were governed by differing rules, respectively termed Information Privacy Principles (IPPs) and National Privacy Principles (NPPs). These rules [page 132] established standards for the collection, use, storage and disclosure of personal information. 3.170 Following the amendments to the Privacy Act discussed at [3.156], above, the handling of personal information by Australian government agencies and private sector organisations is regulated by a single set of 13 rules (the APPs), which have replaced the IPPs and NPPs. A summary of each principle follows.

APPI — open and transparent management of personal information 3.171

This principle provides that an APP entity must manage personal

information in an open and transparent way. An APP entity must take reasonable steps to ensure it complies with the APPs and can deal with enquiries or complaints regarding compliance. Further, an APP entity must have a clearly expressed, up-to-date and readily accessible privacy policy which sets out, among other things, the kind of personal information the entity collects and holds, how and for what purpose the information is used, how the information may be accessed, how complaints may be made regarding the entity’s collection and use of the information, whether the information is likely to be disclosed to recipients overseas and where any such overseas recipients are located.

APP2 — anonymity and pseudonymity 3.172 This principle provides that, unless impracticable or required or authorised by law or court or tribunal order, individuals must have the option of dealing with an APP entity using a pseudonym or without having to identify themselves.

APP3 — collection of solicited personal information 3.173 This principle provides that APP entities must not collect personal information (including sensitive information) unless the collection is reasonably necessary. It further provides that an individual’s consent must be obtained prior to the collection of sensitive information. However, sensitive information may be collected, among other things, if consent is obtained, if collection is required or authorised by law, if the entity is engaged in certain law enforcement activities, or if certain other circumstances exist, including difficulties obtaining consent, suspicion of unlawful activity and threats to health.326 The information must be collected by lawful and fair means. Moreover, it must be collected directly from the individual unless his or her [page 133] consent is obtained, it is impracticable or unreasonable to do so, or the entity is otherwise authorised or required by law to collect it from another individual.

APP4 — dealing with unsolicited personal information

3.174 This principle concerns the receipt of unsolicited personal information by an APP entity. In these circumstances, the entity must determine, within a reasonable time, whether it should have collected the information. If not, and if it is reasonable and lawful to do so, the APP entity must destroy the information. If the entity could have collected the information, it is required to manage it in accordance with APP5 to APP13 (discussed at [3.175]–[3.183], below).

APP5 — notification of the collection of personal information 3.175 This principle provides that, prior to or as soon as practicable after the collection of personal information about an individual, the APP entity must take reasonable steps to inform the individual of the kind of information it collects and holds, how and for what purpose the information is collected and held, how to make a complaint about an APP entity’s compliance, how an individual may access the information, whether the information is likely to be disclosed to recipients overseas and the location of any such overseas recipients.

APP6 — use of disclosure of solicited personal information 3.176 This principle provides that personal information obtained for one purpose cannot be used for another purpose unless, among other things, the individual consents to its use, the individual would have reasonably anticipated that the information would be used for the secondary purpose, and the secondary use is, among other things, required or authorised by law.327

APP7 — direct marketing 3.177 This principle provides that personal information may not be used for direct marketing, unless the information was collected directly from the individual, the individual has given his or her consent, the individual would reasonably expect that the information would be used for direct marketing and the individual is able to opt out but has chosen not to do so. Sensitive information may only be used for direct marketing if the individual’s consent has been obtained, save for circumstances where the APP entity is a contracted service provider under a Commonwealth contract.

[page 134]

APP8 — cross-border disclosure of personal information 3.178 This principle provides that, before providing an overseas organisation (including a related company) with personal information, an APP entity must take reasonable steps to ensure that the overseas recipient will not breach the APPs.328 However, this is not necessary if the overseas entity is subject to enforceable obligations similar to those contained in the APPs or, among other things, the individual consents or the disclosure is required by law.

APP9 — adoption, use or disclosure of government related identifiers 3.179 This principle provides that an APP entity must not adopt, use or disclose government-related identifiers of an individual, unless specific exemptions are met.

APP10 — quality of personal information 3.180 This principle provides that an APP entity must take such steps as are reasonable to ensure that the personal information in which it deals is accurate, up to date, complete and relevant.

APP11 — security of personal information 3.181 This principle provides that an APP entity must take such steps as are reasonable to protect personal information from misuse, interference, loss, unauthorised access, modification or disclosure. Moreover, any personal information no longer required must be destroyed or de-identified, unless under law it must be retained.

APP12 — access to personal information 3.182 This principle provides that an individual must be given access to his or her personal information unless, among other things, the APP entity reasonably believes that giving access would pose a serious threat to the life,

health or safety of any individual or to the public health or public safety or would have an unreasonable impact on the privacy of other individuals.

APP13 — correction of personal information 3.183 This principle provides that an APP entity must take such steps as are reasonable to ensure that incorrect, out-of-date, incomplete, irrelevant or misleading personal information is corrected, or otherwise explain any refusal to do so. [page 135]

Breaches and powers of the Information Commissioner329 Interferences with privacy 3.184 The Privacy Act contains mechanisms by which complaints may be made about, and assessments and investigations conducted into, acts or practices that may be an interference with the privacy of an individual.330 Sections 13–13F of the Privacy Act identify these acts or practices.331 Certain acts or practices are unlikely to arise in the context of social media.332 However, under s 13(1) of the Privacy Act, APP entities will engage in an act or practice that is an interference with the privacy of an individual if: (a) the act or practice breaches an APP in relation to personal information about the individual; or (b) the act or practice breaches a registered APP code that binds the entity in relation to personal information about the individual.333 3.185 This section is capable of directly affecting non-exempt334 social media organisations located in Australia or otherwise having an Australian link.

Assessments 3.186 The Information Commissioner may undertake an assessment as to whether personal information held by an APP entity is being maintained and handled in accordance with, among other things, the APPs or a registered APP code that binds the APP entity.335

Undertakings 3.187 In the event of non-compliance, the Information Commissioner may accept undertakings from an APP entity which are capable of being enforced in the Federal Court or Federal Magistrates Court, and which the [page 136] Commissioner may publish on its website. The Information Commissioner can seek undertakings that require an APP entity:336 (a) to comply with the Privacy Act by undertaking or refraining from undertaking a specified action; (b) to take specified action directed towards ensuring that the entity does not do an act, or engage in a practice, in the future that interferes with the privacy of an individual. 3.188 Should the Information Commissioner take court action to enforce any undertaking, the court may order, among other things, the APP entity to comply with the undertaking and to compensate any individual who has suffered loss or damage as a result of the breach.337

Investigations 3.189 In addition to the Information Commissioner’s assessment powers, the Commission has the power to investigate potential interferences with the privacy of an individual upon the receipt of a complaint or on the Information Commissioner’s own initiative.338 3.190 The Information Commissioner has a range of specific powers relating to the conduct of investigations, including powers:339 (a) to conciliate complaints; (b) to make preliminary inquiries of any person; (c) to require a person to give information or documents or to attend a compulsory conference; and (d) to transfer matters to an alternative complaint body in certain circumstances. 3.191

After an investigation, the Information Commissioner may make a

determination in relation to the investigation. An APP entity to which a determination relates must comply with any declaration made by the Commissioner, including any declarations:340 (a) prohibiting the entity from repeating or continuing any interference with privacy; (b) requiring the entity to take specific steps in furtherance of the prohibition; (c) requiring the entity to redress any loss or damage suffered by an individual who has suffered an interference of privacy; and [page 137] (d) requiring the entity to pay any specified amount by way of compensation for any loss or damage suffered by reason of the interference, including damage for injury to the feelings and humiliation suffered. 3.192

Court proceedings may be commenced to enforce a determination.

Civil penalty orders 3.193 A range of civil penalty provisions are prescribed by the Privacy Act, many of which concern credit reporting and thus are unlikely to impact upon social media organisations. However, if a social media organisation: (a) does an act, or engages in a practice, that is a serious interference with the privacy of an individual; or (b) repeatedly does an act, or engages in a practice, that is an interference with the privacy of one or more individuals, it will contravene s 13G of the Privacy Act, which is subject to a civil penalty provision of 2000 penalty units.341 3.194 In these circumstances, the Information Commissioner may, within six years of the alleged contravention, apply to the Federal Court or Federal Magistrates Court for an order for the payment of a pecuniary penalty to the Commonwealth.342 In considering whether to impose a pecuniary penalty, a court must take into account all relevant matters, including the nature and extent of the contravention, the nature and extent of any loss or damage suffered because of the contravention, the circumstances in which the contravention

took place and whether the APP entity has previously been found by a court in proceedings under the Privacy Act to have engaged in any similar conduct. 3.195

The prescribed amounts are:

(a) if the entity is a body corporate: 5 times the amount of the pecuniary penalty specified for the civil penalty provision (ie, at present, a maximum penalty of $1.8 million); and (b) otherwise: the amount of the pecuniary penalty specified for the civil penalty provision (ie, at present, a maximum penalty of $360,000).

Impact on social media organisations 3.196 The amendments to the Privacy Act are designed to ensure that the organisations and Australian Government agencies to which the Act applies [page 138] are transparent in their handling of personal information and have clearly expressed and up-to-date privacy policies. 3.197 To be subject to the Privacy Act, an organisation or entity must be based in Australia or, in respect of acts done or practices engaged in outside Australia, must have an ‘Australian link’ (and must not be otherwise exempt). Thus, social-networking sites located outside the jurisdiction, and not otherwise having an ‘Australian link’, will not be subject to regulation by the Privacy Act. In the event of misuse of private personal information by such organisations, social media users based in Australia should have regard to any relevant privacy policies established by the organisation and the laws concerning the protection of private personal information in the relevant jurisdiction. 3.198 However, for social media organisations based in Australia or possessing an Australian link (and not being otherwise exempt) the amendments to the Privacy Act are significant and warrant careful attention. The amendments impose considerable compliance obligations on social media organisations and grant greater powers of enforcement to the Information Commissioner in the event that an APP entity engages in acts or practices that are contrary to, or inconsistent with, the APPs.

3.199 The Information Commissioner, through his delegate the Australian Privacy Commissioner, has been active in pursuing investigations into breaches of the Privacy Act. In Cupid Media Pty Ltd: Own Motion Investigation Report,343 the Australian Privacy Commissioner opened an own motion investigation into Cupid Media Pty Ltd (Cupid), the operator of various online dating websites. The investigation followed media allegations (subsequently confirmed by Cupid) that hackers had acquired personal information of more than 250,000 Cupid users in Australia, including, full names, dates of birth, email addresses and passwords. The Privacy Commissioner concluded that Cupid had breached the Privacy Act in two ways.344 First, Cupid failed to take reasonable steps to ensure the security of the personal information that it held.345 Second, Cupid failed to take reasonable steps to destroy or permanently to de-identify certain personal information it held.346 The Privacy Commissioner took no further steps against Cupid because it determined that Cupid satisfactorily responded to the security breach. [page 139] 3.200 It is to be expected that the Privacy Commissioner will continue actively to investigate breaches of privacy under the amended Privacy Act, both on its own motion and in response to complaints, including investigations into alleged breaches by social media organisations.

CONCLUSION 3.201 Privacy law has developed in response to the excesses of third party interference in private lives, including intrusions by individuals, the government and the media. When Warren and Brandeis called for a right to privacy in the United States,347 the learned authors were disturbed by ‘… the press … overstepping in every direction the obvious bounds of propriety and of decency’ and declared with dismay that ‘[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops”’.348 3.202 Writing almost 50 years later, in this jurisdiction, Rich J in Victoria Park Racing349 identified a new threat to privacy: television. In determining whether a

party had a cause of action by reason of his neighbour’s spying, Rich J observed that:350 … the prospects of television make our present decision a very important one, and I venture to think that the advance of that art may force the courts to recognize that protection against the complete exposure of the doings of the individual may be a right indispensable to the enjoyment of life.

3.203 The digital era is upon us and the impact of social media is inescapable. With this come new threats to individual privacy, new oversteppings and new exposures. However, individual attitudes to privacy are rapidly changing. The disclosure of extensive, and often very intimate, private information via social media has become a commonplace event. In response to these challenges, we have seen considerable reforms to the Privacy Act (and consequently to the protection of information privacy). It remains to be seen whether fully developed causes of action for the unjustified invasion of privacy and the unauthorised intrusion upon seclusion will follow, whether in common law or by legislative enactment.

[page 140]

PRACTITIONER TIPS •

• •

1. 2. 3. 4. 5.

6. 7.

8. 9.

In litigation concerning breaches of privacy on social media platforms or through electronic communications — facts permitting — consider pleading causes of action for breach of privacy (and, if appropriate, intrusion upon seclusion) and breach of confidence, notwithstanding the nascent state of privacy protection at common law in Australia. in privacy litigation, have regard to privacy law developments in other jurisdictions, including the United Kingdom and New Zealand, and recent law reform body recommendations concerning the topic. Advise social media organisations subject to the Privacy Act to ensure that they are transparent in their handling of personal information; that they have clearly expressed and up-to-date privacy policies; and that they comply with the APPs.

As to the unjustified invasion of privacy see: Giller v Procopets (2008) 24 VR 1; 79 IPR 489; [2008] VSCA 236 (Giller) at [167] per Ashley J. See also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; 54 IPR 161; [2001] HCA 63 (Lenah Game Meats). See the following decisions, which are discussed at [3.27]–[3.38], below: Doe v Australian Broadcasting Corp [2007] VCC 281 (Doe v ABC); Grosse v Purvis (2003) Aust Torts Reports 81-706; [2003] QDC 151 at [442]; Doe v Yahoo!7 Pty Ltd; Wright v Pagett [2013] QDC 181 (Doe v Yahoo!7). Grosse v Purvis, above, at [444]. See [3.28], below. See, for example: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323; [2008] NSWCA 9; Giller, above, n 1; Candy v Bauer Media Ltd [2013] NSWSC 979. See Privacy Act 1988 (Cth); Privacy and Personal Information Protection Act 1998 (NSW); Information Act 2002 (NT); Information Privacy Act 2009 (Qld); Right to Information Act 2009 (Qld); Personal Information and Protection Act 2004 (Tas); Information Privacy Act 2000 (Vic); Freedom of Information Act 1992 (WA). Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Issue Paper No 43 (2013) at [1.1]–[1.3], [1.12], . See, for example: Office of the Australian Information Commissioner, Community Attitudes to Privacy Survey, Research Report 2013, . This survey identified Australians’ views on a range of privacy issues, including online privacy and, in particular, social media. The Office previously conducted surveys in 1990 and 2007. Australian Law Reform Commission (ALRC), Privacy, Report No 22, 1983, at [19]. (2001) 208 CLR 199; 185 ALR 1; [2001] HCA 63 (Lenah Game Meats).

10. Above, at [43]. 11. Above, n 9, at [41]. 12. Sedley LJ in Douglas v Hello! [2000] All ER (D) 2435; (2000) 9 BHRC 543; [2001] QB 967; [2001] 2 All ER 289; [2001] 2 WLR 992 (Douglas v Hello!); All ER at 320. 13. Above, at [113]. Gummow and Hayne JJ adopt the statement of Sedley LJ in Douglas v Hello!, above, n 12, at 320. 14. Lenah Game Meats, above, n 9, at [116]. 15. Lenah Game Meats, above, n 9, at [116]. 16. R v Broadcasting Standards Comm [2000] EWCA 59; [2001] QB 885; [2000] 3 All ER 989; [2000] 3 WLR 1327 at [48] per Lord Mustill. 17. R v Dyment [1988] 2 SCR 417 (Dyment) at 426. See also Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 68 per Murphy J; 43 ALR 587; 57 ALJR 42; [1982] HCA 78. 18. Dyment, above, at 426. 19. T Nagel, ‘Concealment and Disclosure’ (1998) 27(1) Philosophy & Public Affairs 3 at 4. 20. Doe v ABC, above, n 2; R v Broadcasting Standards Comm, above, n 16; Hosking v Runting (2004) 7 HRNZ 301; [2005] 1 NZLR 1 at [238]–[239]; Vickery v Nova Scotia Supreme Court (Prothonotary) [1991] 1 SCR 671 at 687; (1991) 64 CCC (3d) 65; Dyment, above, n 17; Campbell v Mirror Group Newspapers Ltd [2004] All ER (D) 67 (May); [2004] UKHL 22; [2004] 2 AC 457; [2004] 2 All ER 995 (Campbell v MGN) at [12] per Lord Nicholls of Birkenhead; British Broadcasting Corp Re; Attorney General’s Reference (No 3 of 1999) [2009] All ER (D) 175 (Jun); [2009] UKHL 34; [2010] 1 AC 145; [2010] 1 All ER 235 at [17]–[18] per Lord Hope of Craigend. 21. See also the definition contained in the Introduction and Overview at [1.4]–[1.5] and [1.13]–[1.17]. 22. For example, to defame or to harass. 23. (1982) 154 CLR 25; 43 ALR 587; 57 ALJR 42; [1282] HCA 78. 24. Above, CLR at 68. 25. (1937) 58 CLR 479; [1937] ALR 597; (1937) 11 ALJR 127; 1A IPR 308 (Victoria Park Racing). 26. Victoria Park Racing, above. 27. Lenah Game Meats, above, n 9, at [186] per Kirby J; at [314] at [314] per Callinan J. See also Maynes v Casey [2011] NSWCA 156 at [34] per Basten JA (Allsop P agreeing). 28. Lenah Game Meats, above, n 9. 29. Victoria Park Racing, above, n 25. 30. Victoria Park Racing, above, n 25, CLR at 510 per Dixon J, at 496 per Latham CJ and at 524 per McTiernan J. 31. Above, n 25, CLR at 501–2 per Rich J, and at 521 per Evatt J. 32. Above, n 25, CLR at 517. 33. Lenah Game Meats, above, n 9. 34. Above, n 9, at [187] per Kirby J. See also Callinan J at [314]. 35. Above, n 9. 36. Lenah Game Meats had earlier obtained an interlocutory order against Animal Liberation Ltd. Animal Liberation did not appear and did not appeal from the order. See Lenah Game Meats Pty Ltd v Australian Broadcasting Corp (TASSC, Underwood J, 3 May 1999, unreported); Lenah Game Meats Pty Ltd v Australian Broadcasting Corp (1999) 9 Tas R 355; (1999) A Def R 53-040; [1999] TASSC 114 (Wright and Evans JJ, Slicer J dissenting). 37. Lenah Game Meats, above, n 9. 38. The court was invited to determine whether, prior to granting equitable interlocutory relief, it is necessary to identify the legal or equitable rights upon which a plaintiff will ultimately rely. Gleeson CJ at [15]–[16], Gaudron J at [58]–[62] and Gummow and Hayne JJ at [91] held that it is necessary. Kirby J at [156]–[160] held that it is not ‘essential’. Callinan J at [297] identified a cause of action without indicating whether the task is strictly necessary. 39. Lenah Game Meats, above, n 9, at [189].

40. Victoria Park Racing, above, n 25. 41. Lenah Game Meats, above, n 9, at [107]–[108] per Gummow and Hayne JJ (Gaudron J agreeing at [58]), and Callinan J at [314]–[335]. See also Maynes v Casey, above, n 27, at [34] per Basten JA (Allsop P agreeing). 42. See, for example: Maynes v Casey, above, n 27, at [34]; Giller, above, n 1. 43. Lenah Game Meats, above, n 9, at [40]. 44. Above, n 9, at [42]. 45. Above, n 9, at [41]. 46. Above, n 9, at [132], Gaudron J agreeing. 47. Above, n 9, at [335]. But see Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; (2006) 227 ALR 425; (2006) 80 ALJR 1100; [2006] HCA 27 at [216] per Callinan J where his Honour appears to suggest a more cautious approach. 48. Lenah Game Meats, above, n 9, at [334]. 49. In developing the law, guidance may perhaps be obtained from the law of defamation. A corporation has no cause for defamation unless: (1) it was formed other than for financial gain; or (2) it employs fewer than 10 employees and is not related to another corporation and is not a public body (see Defamation Act 2005 (NSW) s 9). 50. Above, n 9, at [43] per Gleeson CJ. But see also his Honour’s observation at [43] that some forms of corporate activity (eg, directors’ meetings) and internal corporate communications are private. 51. Above, n 9, at [190]. 52. Above, n 9, at [126] and [129]–[132]. 53. Above, n 9, at [58]. 54. Above, n 9, at [328]. Note that Callinan J did not elaborate on the circumstances. See also Gleeson CJ at [43]. 55. (2001) 39 ACSR 401; (2002) 20 ACLC 111; [2001] NSWSC 832 (NRMA v Geeson) at [34] per Bryson J. 56. NRMA v Geeson, above, n 55, at [34]. 57. Lenah Game Meats, above, n 9. 58. Above, n 9. 59. Grosse v Purvis, above, n 2. 60. Above, n 2. 61. Above, n 2, at [417]–[420]. 62. Above, n 2, at [444]. 63. Above, n 2, at [446]. 64. Above, n 2, at [447]. 65. Above, n 2, at [483]. 66. Doe v ABC, above, n 2. 67. Above, n 2. 68. Above, n 2. 69. Above, n 2, at [5]. The other causes of action — breach of statutory duty and negligence — are outside the scope of this chapter and are not discussed. 70. Above, n 2, at [81], [100], [137], [145], [164] and [194]. 71. Above, n 2, at [128] and [163]. 72. Above, n 2, at [161]. 73. Above, n 2, at [148]. 74. Above, n 2, at [157]. 75. Above, n 2, at [163]. Compare with the essential elements of the cause of action identified by the court in Grosse v Purvis, above, n 2, at [3.28], discussed in Doe v ABC, above, n 2, at [159]. 76. Doe v ABC, above, n 2, at [163]. 77. See above, n 2, at [176] and [185]. This amount was assessed in respect of the tortious claims, including the unjustified invasion of privacy, and the claim for equitable relief for breach of

confidence. 78. Above, n 2, at [186]. This additional amount was assessed only in respect of the claim for equitable relief for breach of confidence. 79. Above, n 2, at [177]–[184]. 80. Doe v Yahoo!7, above, n 2. 81. Above, n 2. 82. Above, n 2, at [310]. 83. Above, n 2, at [94], [96], [98]. 84. Above, n 2, at [310]. 85. An internet content host is ‘a person who hosts internet content in Australia, or who proposes to host internet content in Australia’: see definitions in the Broadcasting Services Act 1992 (Cth) Sch 5 cl 3. 86. A ‘person is an internet service provider’ if the ‘person supplies, or proposes to supply, an internet carriage service to the public’: see the Broadcasting Services Act 1992 (Cth) Sch 5 cl 8. Internet carriage service has the meaning given to that term in the Telecommunications Act 1997 (Cth); namely, it is a service for carrying (including by transmitting, switching and receiving) communications by means of guided and/or unguided electromagnetic energy that enables end-users to access the internet. 87. Above, n 2, at [316]. 88. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 82; 293 ALR 384; 263 FLR 211; [2012] NSWCCA 125 per Basten JA (Bathurst CJ and Wheally JA agreeing). 89. Lenah Game Meats, above, n 9, at [125]. 90. Above, n 9, at [125]. 91. Malone v Metropolitan Police Commissioner (No 2) [1979] Ch 344 at 372; [1979] 2 All ER 620; [1979] 2 WLR 700; (1979) 69 Cr App Rep 168; Kaye v Robertson (1990) 19 IPR 147; [1991] FSR 62 at 66, 70, 71; Campbell v Mirror Group Newspapers Ltd [2004] All ER (D) 67 (May); [2004] 2 AC 457; (2004) 62 IPR 231; [2004] 2 All ER 995 (Campbell v MGN) at [11] per Lord Nicholls of Birkenhead citing Wainwright v Home Office [2003] All ER (D) 279 (Oct); [2003] UKHL 53; [2004] 2 AC 406; [2003] 4 All ER 969; McKennitt v Ash [2006] EWCA Civ 1714; [2007] 3 WLR 194; [2008] QB 73. 92. Campbell v MGN, above, n 20, at [14] per Lord Hoffmann; Douglas v Hello!, above, n 12, at [110] per Sedley LJ. 93. Prince Albert v Strange (1849) 2 De G & Sm 652; 13 Jur 45; 64 ER 293; Campbell v MGN, above, n 20, at [43] per Lord Hoffmann. 94. Douglas v Hello!, above, n 12, at [118] per Sedley LJ citing Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 281; [1988] 3 All ER 545; [1990] 3 WLR 776 (A-G (UK) v Guardian) per Lord Goff of Chieveley. See also Campbell v MGN, above, n 20, at [13]–[14] per Lord Nicholls of Birkenhead. 95. Campbell v MGN, above, n 20, at [134] per Baroness Hale of Richmond citing Hosking v Runting [2003] 3 NZLR 385 at [83] per R Anderson J. 96. Campbell v MGN, above, n 20, at [14] per Lord Nicholls of Birkenhead. As to the development and adaptation of the law of confidentiality to protect the misuse of private information, see Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311; [2015] CP Rep 28; [2015] 3 WLR 409; [2015] FSR 25; [2015] EMLR 15 (Google v Vidal-Hall), esp at [19]. 97. Google v Vidal-Hall, above, at [21]. 98. Google v Vidal-Hall, above, n 96, at [25]. 99. See, for example: Campbell v MGN, above, n 20, at [11] per Lord Nicholls of Birkenhead. 100. McKennitt v Ash, above, n 93, at [9] per Buxton LJ. See similarly, Art 11 (freedom of assembly). Compare with other articles of the Convention which ‘impose negative obligations on the state and on public bodies’ and ‘do not and cannot create obligations owed by private parties in private law’. 101. (1979) 2 EHRR 330. 102. McKennitt v Ash, above, n 93, at [9] per Buxton LJ. See also X and Y v Netherlands (1985) 8 EHRR 235

referred to therein. 103. A v B plc [2002] All ER (D) 142 (Mar); [2003] QB 195; [2002] 2 All ER 545; [2002] EWCA Civ 337 at [11], at [4] per Lord Woolf; McKennitt v Ash, above, n 93, at [9]. 104. A v B plc, above, at [6] per Lord Woolf LJ; McKennitt v Ash, above, n 93, at [9] per Buxton LJ; Campbell v MGN, above, n 20, at [17] per Lord Nicholls of Birkenhead, and at [49]–[50] per Lord Hoffmann. 105. A v B plc, above, n 103, at [6] per Woolf CJ. 106. Douglas v Hello!, above, n 12, at [125] per Sedley LJ, cited with approval in Campbell v MGN, above, n 20, at [51] per Lord Hoffmann. 107. A v B plc, above, n 103, at [6] per Lord Woolf CJ. 108. See, for example: McKennitt v Ash, above, n 93, at [11] per Buxton LJ. 109. Campbell v MGN, above, n 20, at [21] per Lord Nicholls of Birkenhead. 110. The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB) (Author of a Blog v Times) at [7] per Eady J. 111. Campbell v MGN, above, n 20, at [21] per Lord Nicholls of Birkenhead. 112. Namely, whether the disclosure of the information would be highly offensive to a reasonable person of ordinary sensibilities. See Lenah Game Meats, above, n 9, at [42]. See also the discussion at [3.22]– [3.23], above. 113. Campbell v MGN, above, n 20, at [22] per Lord Nicholls of Birkenhead, and at [166] per Lord Carswell. 114. Fraser v Evans [1969] 1 QB 349 at 362 per Lord Denning MR. 115. See also the statements by Gummow J in Smith Kline & Kline French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Department of Community Services [1990] FCR 73 at 111 (Smith Kline). 116. Campbell v MGN, above, n 20. 117. Above, n 20, at [24] per Lord Nicholls of Birkenhead. 118. Campbell v MGN, above, n 20. See also Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 at [147] per Baroness Hale. 119. See, for example: A v B and C (QBD, 2 March 2001) per Mackay J. Referred to in Theakson v MGN Ltd [2002] EWHC 137 (QB) at [41] per Ousley J. 120. Representative Claimants v MGN Ltd [2015] EWCA Civ 1291; [2015] WLR(D) 535 (17 December 2015) (Representative Claimants v MGN) per Arden, Rafferty and Kitchin LJ. See also Gulati & Ors v MGN Limited [2015] WLR(D) 232; [2015] EWHC 1482 (Ch) (21 May 2015) (Gulati v MGN) per Mann J. 121. Burrell v Clifford [2016] EWHC 294 (Ch) (19 February 2016), referring with approval to Representative Claimants v MGN and Gulati v MGN, above. 122. Author of a Blog v Times, above, n 110. 123. For a discussion of the principles concerning breach of confidence, see [3.116]–[3.148], below. 124. Author of a Blog v Times, above, n 110, at [18]. 125. Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587; [1968] FSR 415; [1969] RPC 41 (Coco v Clark) at 48 per Megarry VC; see Author of a Blog v Times, above, n 110, at [33]. 126. Author of a Blog v Times, above, n 110, at [33]. 127. Above, n 110, at [11]. 128. Above, n 110, at [4] and [6]. See also [11]. 129. Above, n 110, at [5]. 130. Above, n 110, at [15]–[20] (except in the case of de minimis wrongdoings). 131. Above, n 110, at [21]. 132. Above, n 110, at [22]–[23]. 133. [2008] All ER (D) 321 (Jul); [2008] EWHC 1781 (QB) (Applause Store Productions v Raphael) per DJ Parkes QC. 134. See Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133; [1973] 2 All ER 943; [1973] 3 WLR 164. 135. Applause Store Productions v Raphael, above, n 133, at [10] per DJ Parkes QC. 136. See also G and G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB). In this case, an internet user

137. 138. 139. 140. 141.

142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166.

anonymously posted private information about a woman and her child in a Wikipedia entry concerning the woman. Although observing that it was a foreign entity outside the jurisdiction of the courts of the United Kingdom, Wikipedia agreed to comply with a properly issued order of the High Court requiring Wikipedia’s disclosure of information tending to identify the anonymous internet user. [2011] EWHC 3454 (TCC). In the protection of confidential information and in the interests of justice, Ramsay J ordered the claimant’s name to remain undisclosed. Ramsay J at [6]. After being contacted by the claimant, the online media hosting service removed the images. Ramsay J at [6]. Ramsay J at [7]. As Ramsay J states at [10], ‘BitTorrent is a peer to peer file sharing protocol used for distributing large amounts of data over the internet. … Rather than downloading a file from a single source server, as is the case with the conventional HyperText Transfer Protocol (HTTP), the BitTorrent protocol allows users to join a “swarm” of users to download and upload from each other simultaneously’. Ramsay J at [8]. Ramsey J at [25]–[27], citing (at [25]) Lord Hope of Craighead Campbell v MGN, above, n 20, at [99]. Ramsey J at [27]. Ramsey J at [32]. See Candy v Bauer Media Ltd [2013] NSWSC 979 at [20] per Pembroke J, discussed at [3.147], below. See also Tom Cruise & Nicole Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125. Above. See, for example: Tucker v News Media Ownership Ltd [1986] 2 NZLR 716, Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 and P v D [2000] 2 NZLR 591. See Hosking v Renting [2005] 1 NZLR 1; [2004] NZCA 34 (Hosking). C v Holland [2012] 3 NZLR 672; [2012] NZHC 2155 (Holland). Hosking, above, n 148, per Gault P and Blanchard (Tipping JJ); Keith and Anderson JJ dissenting. See Hosking, above, n 148. In Rogers v Television New Zealand Ltd [2007] NZSC 91 at [23]–[36] per Elias CJ and at [144] per Anderson J, it was emphasised that the jurisprudence on the tort of invasion of privacy has not been settled and will fall for review by the Supreme Court in an appropriate case. Hosking, above, n 148, at [45]–[49] per Gault P and Blanchard J, at [245]–[247] per Tipping J. Above, n 148, at [148] per Gault P and Blanchard J; Tipping J agreeing at [223]. Above, n 148, at [117] per Gault P and Blanchard J; see also Tipping J at [249] and [259] in similar terms. Above, n 148, at [147]. Holland, above, n 149. Above, n 149, at [94]–[97] per Whata J. In Hosking, above, n 148, at [118], Gault P and Blanchard J expressly declined to consider whether privacy protection should extend to unreasonable intrusions into a person’s solitude or seclusion. Holland, above, n 149, at [95]. Hosking, above, n 148, at [129]–[130], [133] per Gault P and Blachard J; Holland, above, n 149, at [96]. Hosking, above, n 148, at [129]–[130] per Gault P and Blachard J. See also Tipping J at [259]. Hosking, above, n 148, at [149] per Gault P and Blachard J; Holland, above, n 149, at [99]. Hosking, above, n 148, at [135] per Gault P and Blachard J. Hosking, above, n 148, at [128] per Gault P and Blachard J. Particularly, if the matter observed is not ordinarily the subject of public observation. See also Saad v Chubb Security Australia Pty Ltd [2012] NSWSC 1183. (1890) 4 Harvard Law Review 193. Victorian Law Reform Commission, Surveillance in Public Places: Final Report 18, 2010 (VLRC Report), ch 7 at [7.53], available at , referring to W Page Keeton et al (eds), Prosser and Keeton on the Law of Torts, 5th edn, West Group, St Paul, MN, 1984 (Prosser), p 851. Reference is made to statutes in the states of New York, Utah, Virginia, Wisconsin and Nebraska.

167. Second, Torts 2d (1977) at 383–94 (Restatement). 168. See Restatement, above, at §652A. The formulation in the Restatement is adopted from W L Prosser, ‘Privacy’ (1960) 48 California Law Review 383. 169. Lenah Game Meats, above, n 9, at [125], quoting Sedley LJ in Douglas v Hello!, above, n 12. Gummow and Hayne JJ doubted the connection between privacy and the appropriation and false light torts. 170. Restatement, above, n 167, at §652B. 171. Finlay v Finlay 18 Kan App 2d 479, 485–86, 856 P 2d 183, 189 (1993). 172. Peterson v Moldofsky (Case No 07-2603-EFM, United States District Court, District of Kansas, 29 September 2009, Melgren J) (Peterson). 173. Restatement, above, n 167, at §652B. 174. VLRC Report, above, n 166, at [7.67], referring to Prosser, above, n 166, at 868. 175. Restatement, above, n 167, at §652H. 176. VLRC Report, above, n 166, at [7.69], referring to R Gellman, ‘A General Survey of Video Surveillance in the United States’, in S Nouwt et al (eds), Reasonable Expectations of Privacy? Eleven Country Reports on Camera Surveillance and Workplace Privacy, Asser Press, The Hague, 2005, 7, 34. 177. Cox Broadcasting v Cohn 420 US 469 (1975); The Florida Star v BJF (1989) 491 US 524, 541. 178. See Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, ALRC Report 108, 2008, at [74.19]. 179. Above, n 172. 180. The defendant could have easily published the explicit photographs on Twitter, Facebook or another social media platform. 181. Maynes v Casey, above, n 27. 182. Giller, above, n 1. 183. Victoria Park Racing, above, n 25. 184. Maynes v Casey, above, n 27, at [34] per Basten JA (Allsop P agreeing). This case concerned an incompetent appeal and an application for leave to appeal. However, the applicants failed to demonstrate any plausible basis upon which to challenge the trial judge’s finding that there was no invasion of privacy. The case was therefore an inappropriate vehicle to consider any developments of the law concerning unjustified invasion of privacy. See also Gramotnev v Queensland University of Technology [2013] QSC 158 at [309] per McMeekin J. 185. [2013] SASC 44 at [614]. 186. [2009] NSWSC 1335. 187. Above, at [37]. 188. Gee v Burger [2009] NSWSC 149 at [53] per McLaughlin ASJ. 189. Kalaba v Commonweatlh of Australia [2004] FCA 763 at [6]–[11] per Herr J; Kalaba v Cth [2004] FCAFC 326 at [8] per Tamberlin, North and Dowsett JJ. See also Giller, above, n 1, at [167]–[168] per Ashley JA, and at [447]–[452] per Neave JA; Dye v Commonwealth Securities Ltd [2010] FCA 720 at [290] per Katzmann J. 190. Candy v Bauer Media Ltd, above, n 4. 191. Available at . This report takes into account previous recommendations by the ALRC concerning Australian privacy protection contained in a report entitled, For Your Information: Australian Privacy Law and Practice, and tabled in 2008. 192. Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Issue Paper No 43, 2013, at [5], . 193. New South Wales Parliament Legislative Council Standing Committee on Law, Remedies for the Serious Invasion of Privacy in New South Wales, NSWSCLJ Report No 57, 3 March 2016, . Legislative protections for the invasions of privacy have previously been considered in New South Wales, most notably by the NSW Law Reform Commission in its report, Invasion of Privacy, Report No 120, 2009. 194. A-G (UK) v Guardian, above, n 94, AC 283 per Lord Goff of Chieveley, referred to by Heydon J in

Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at [145] and [152]. 195. Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171 (CA), Mac & G at 46 per Lord Cottenham LC. 196. See Fraser v Evans [1969] 1 QB 349 (Fraser v Evans), QB at 360–61 per Lord Denning MR referring to the principle in Bonnard v Perryman ([1891] 2 Ch 269, 283–85 per Coleridge LJ. 197. See also the further reasons articulated in, for example, Fraser v Evans, above, QB at 360–61 per Lord Denning MR: ‘the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge’. 198. Lenah Game Meats, above, n 9, at [41]. 199. Monis v The Queen (2013) 249 CLR 92 (Monis) at [60] per French CJ. 200. Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at 559; 145 ALR 96; 71 ALJR 818; [1997] HCA 25 (Lange). 201. Lange, above, at 568; Lenah Game Meats, above, n 9, at [194] per Kirby J; Monis above, n 199, at [103] per Hayne J. 202. Lenah Game Meats, above, n 9, at [194] per Kirby J. 203. See, for example: Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1; 86 ALJR 246; [2012] HCA 2 at [9]–[10] per French CJ, Gummow, Hayne, Crennan and Bell JJ; A-G (SA) v Adelaide City Corporation (2013) 249 CLR 1 at [214]–[215] per Crennan and Kiefel JJ. 204. Monis, above, n 199, at [103] per Hayne J. 205. Lange, above, n 200, subject to the second limb of the test being slightly reformulated in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 50–51 [92]–[96] per McHugh J, 77–78 [196] per Gummow and Hayne JJ, 82 [211] per Kirby J. 206. Lenah Game Meats, above, n 9, at [34]–[35] per Gleeson CJ. 207. Lange, above, n 200. 208. The may occur by way of a balancing of interests as proposed by the ALRC (see [3.106], above), legislative obligation or a defence. As to the latter, see similar developments in the law of defamation and the development of an extended form of qualified privilege: Lange, above, n 200, at [560]. 209. Author of a Blog v Times, above, n 110. 210. Author of a Blog v Times, above, n 110. 211. For a discussion of the ‘chilling effect’, see Liu v The Age Co (2012) 285 ALR 386; (2012) 257 FLR 360; [2012] NSWSC 12 per McCallum J. 212. M Gleeson, ‘Courts and the Rule of Law’, The Rule of Law Series, Melbourne University, 7 November 2001. 213. (1990) 22 FCR 73 at 111; 95 ALR 87; 17 IPR 545. See [3.144], below, for a discussion of the differing approaches to public interest taken in Australia and the United Kingdom. 214. Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 at [75] per Kellam J. 215. Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50 per Mason J, citing Swinfen Eady LJ in Lord Ashburton v Pope (1913) 2 Ch 469, 475; Lenah Game Meats, above, n 9, at [34] per Gleeson CJ. See also Smith Kline, above, n 115, at [49] per Gummow J. 216. Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171, CA per Lord Cottenham LC. Prince Albert v Strange (1849) 2 De G & Sm 652; 13 Jur 45; 64 ER 293 per Vice-Chancellor Knight-Bruce. 217. [1967] 1 Ch 302 (Argyll v Argyll). 218. The court may also restrain breach of confidence arising out of contract or any right to property: Argyll v Argyll, above, at 318. 219. (1984) 156 CLR 414; 56 ALR 193; 3 IPR 545; [1984] HCA 73 at CLR 438 per Deane J (Gibbs CJ, Mason, Wilson and Dawson JJ agreeing). See also Seager v Copydex Ltd [1967] 2 All ER 415 at 417; [1967] 1 WLR 923 at 931; [1967] RPC 349; Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413; (1948) 65 RPC 203 (Saltman Engineering) at RPC 211 per Lord Greene MR. 220. [2001] QB 424; [2000] 1 All ER 786; [2000] 2 WLR 940 (R v Dept of Health) at [23] per Simon Brown LJ quoting, with approval, the monograph of Dr Francis Gurry, Breach of Confidence, Oxford University Press, 1984.

221. See Phipps v Boardman [1967] 2 AC 46 at 127–8; [1966] 3 All ER 721; [1966] 3 WLR 1009 (1967) 2 AC 46 per Lord Upjohn: information ‘is not property in any normal sense but equity will restrain its transmission to another if in breach of some confidential relationship’. See also Breen v Williams (1996) 186 CLR 71; 43 ALD 481; 138 ALR 259; [1996] HCA 57. 222. Attorney-General v Guardian Newspapers Ltd (No 2 ) [1990] 1 AC 109 at 146; [1988] 3 All ER 545; [1990] 3 WLR 776; [1988] 2 WLR. See also Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; 32 ALR 485; 55 ALJR 45 per Mason J. 223. R v Dept of Health, above, n 220, at [23]. 224. (1968) 1A IPR 587; [1968] FSR 415; [1969] RPC 41 at 47. See also Saltman Engineering, above, n 219, per Lord Greene MR. 225. (1987) 14 FCR 434 at 443; 13 ALD 254; 74 ALR 428; 10 IPR 53. 226. (1990) 22 FCR 73 at 86–7; 95 ALR 87; 17 IPR 545. 227. See also AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 (AMI Australia Holdings v Fairfax) at [19] per Brereton J. 228. Streetscape Projects (Australia) Pty Ltd v City of Sydney (2013) 295 ALR 760; 92 ACSR 417; [2013] NSWCA 2 at [159] per Barrett J (Meagher JA and Ward JA agreeing). See also Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR 281; [2010] FCAFC 21 at [39] where Finn, Sundberg and Jacobsen JJ identified the need for specificity and three traditional elements stated in the previous paragraph as the four elements necessary to establish an equitable breach of confidence. 229. AMI Australia Holdings v Fairfax, above, n 227, at [20] per Brereton J. See also Snell v Pryce (1990) 99 FLR 213 at 217–18 per Angel J; Smith Kline & Kline French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Department of Community Services (1990) 22 FCR 73 at 111; 95 ALR 87; 17 IPR 545 per Gummow J; Bacich v Australian Broadcasting Corp (1992) 29 NSWLR 1 at 16; (1992) 10 ACLC 1420 per Brownie J; and Sullivan v Sclanders & Goldwell Int Pty Ltd (2000) 77 SASR 419 at 427; 210 LSJS 135; [2000] SASC 273. However, as Brereton J notes at [19], of cases concerning circumstances of iniquity, the view that the matter is one of principle may be compared with the view that it is a matter of discretion, whereby the private interest in maintaining a confidence is balanced against the public interest in knowing the truth (as to which, see, for example, AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; 58 IPR 268; [2002] NSWSC 170, among other authorities to which Brereton J refers at [20]). 230. Lenah Game Meats, above, n 9. 231. Lenah Game Meats, above, n 9. 232. Lenah Game Meats, above, n 9, at [42]. 233. A v B (a company) [2002] All ER (D) 142 (Mar); [2003] QB 195; [2002] 2 All ER 545; [2002] EWCA Civ 337 at [11]. 234. Wyatt v Wilson (1820, unreported) referred to in Argyll (Duchess) v Argyll (Duke) [1967] 1 Ch 302 (Argyll v Argyll) at 319–20. 235. W v Egdell [1990] Ch 359 at 389, 415, 419; (1989) 17 IPR 646; [1990] 1 All ER 835; [1990] 2 WLR 471. 236. X v Y (1987) 13 IPR 202; [1988] 2 All ER 648; Owens v Barnett [2013] VCC 133 (Owens) at [20]–[22] per O’Neill J. 237. Argyll v Argyll, above, n 217; Stephens v Avery [1988] Ch 449; (1988) 11 IPR 439; [1988] 2 All ER 477; [1988] 2 WLR 1280; Barrymore v News Group Newspapers Ltd [1997] FSR 600. 238. Owens, above, n 236, at [20]–[22] per O’Neill J; Minter Ellison (a firm) v Raneberg [2011] SASC 159 at [30] per Gray J; Argyll v Argyll, above, n 217, at 329–30; John Reid Enterprises Ltd v Pell [1999] EMLR 675. 239. See, for example: Sullivan v Sclanders & Goldwell Int Pty Ltd (2000) 77 SASR 419; 210 LSJS 135; [2000] SASC 273, which concerned confidential documents surreptitiously removed from a closed brief case. 240. See Owens, above, n 236, at [27] per O’Neill J as to the reasonable expectation of persons who dispose of confidential documents in the waste that the documents will be destroyed or dealt with in some other manner so that they do not become public. 241. In Theakston v MGN Ltd [2002] All ER (D) 182 (Feb); [2002] EWHC 137 (QB), the court restrained the publication of photographs showing the claimant’s activities in a brothel but not the publication of

242. 243. 244. 245. 246. 247. 248.

249.

250. 251. 252. 253. 254. 255. 256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269.

270. 271.

a description of those activities. Lenah Game Meats, above, n 9, at [34] per Gleeson CJ. [2012] NSWSC 1183. Above, at [183]; see also at [180]. [2015] WASC 15. Wilson v Ferguson, above, n 245, at [56]. Wilson v Ferguson, above, n 245, at [47]. Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587; [1968] FSR 415; [1969] RPC 41 at 48 per Megarry VC. See also Johns v Australian Securities Commission (1993) 178 CLR 408 at 461; 31 ALD 417; 116 ALR 567; [1993] HCA 56 per Gaudron J; Pillay t/as West Corp Mortgage Market v Nine Network Aust Pty Ltd [2002] NSWSC 983 at [31] per Campbell J. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413; (1948) 65 RPC 203 at 215 per Lord Greene MR. However, as Prince Albert v Strange (1849) 2 De G & Sm 652; 13 Jur 45; 64 ER 293 (Prince Albert) demonstrates, information will not lose the quality of confidence if it has been published only to a limited circle. See also the discussion of the ‘public domain’ at [3.137]–[3.140], below. See Page Wood V-C in Gartside v Outram (1857) 26 LJ Ch (NS) 113 at 114. See also the authorities identified in the consideration of this topic at [3.141]–[3.144], below. (1968) 1A IPR 587 at 591; [1968] FSR 415; [1969] RPC 41 at 47–8 per Megarry VC. Above, at 48. See also Lenah Game Meats, above, n 9, at [30] per Gleeson CJ. [2012] NSWCA 430 at [99] per Campbell JA (MacFarlan JA and Sackville AJA agreeing). See also the authorities to which Campbell JA refers at [99]. This point has not been disputed on appeal. See, for example: Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268; [1988] 3 All ER 545; [1990] 3 WLR 776; [1988] 2 WLR per Lord Griffiths. Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50 per Mason J, citing Swinfen Eady LJ in Lord Ashburton v Pope (1913) 2 Ch 469, 475; Lenah Game Meats, above, n 9, at [34] per Gleeson CJ. See also Smith Kline, above, n 115, at [49] per Gummow J. Lenah Games Meats, above, n 9, at [34] per Gleeson CJ. Smith Kline, above, n 115, FCR at 93, ALR at 111. [2012] VSC 477 at [34]. Lenah Game Meats, n 9, above. Wilson v Ferguson, above, n 245. Wilson v Ferguson, above, n 245, at [59]. [1992] Ch 225 at 237. (1993) 178 CLR 408 at 460–62; 31 ALD 417; 116 ALR 567; [1993] HCA 56. Johns v Australian Securities Commission, above, at [461]. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413; (1948) 65 RPC 203 at 215 per Lord Greene MR. Mustad & Son v Dosen [1964] 1 WLR 109 at 111; [1963] 3 All ER 416 at 418 (although reported in 1964, this case was decided in 1928). [1986] 1 All ER 91 at 94. [2009] NSWSC 1454 at [184] per Ward J (Brand). Franchi v Franchi [1967] RPC 149 at 152–3 per Cross J. See also Interfirm Comparison (Australia) Pty Ltd v Law Society of NSW [1975] 2 NSWLR 104 at 118–19 per Bowen CJ in Eq thus, ‘[t]he authorities indicate that even though secrecy may be imperfect in relation to communication which is given in confidence, that communication may still be protected by the principles of confidentiality’. See also G v Day [1982] 1 NSWLR 24 at 40–1 per Yeldham J and Prince Albert v Strange (1849) 2 De G & Sm 652; 13 Jur 45; 64 ER 293, referred to in Brand, above, n 268, at [186]–[187] per Ward J. [1978] FSR 573 at 574–5. [2000] 3 WLR 542 at [11(xii)].

272. (1857) 26 LJ Ch (NS) 113 at 114. See also the reports at 5 WR 35, 3 Jur NS 39 and 28 LTOS 120. As Gummow J notes in Corrs Pavey Whiting v Collector of Customs (Vic) (1987) 14 FCR 434 at 452; 13 ALD 254; 74 ALR 428; 10 IPR 53, the Vice-Chancellor’s judgment was delivered ex tempore and thus the various reports contain ‘some differences of expression’. In addition to the expression noted above, in Corrs Pavey Whiting v Collector of Customs (Vic) FCR at 453, Gummow J identifies the further reports expressions of principle. 273. Above, at 114. 274. In Australia, see for example: Pillay t/as West Corp Mortgage Market v Nine Network Australia Pty Ltd [2002] NSWSC 983 at [32] per Campbell J; West Australian Newspaper Ltd v Bond [2009] WASCA 127. 275. Lion Laboratories Ltd v Evans [1985] QB 526 at 550 per Griffiths LJ; Beloff v Pressdram Ltd [1973] 1 All E.R. 241 at 260, per Ungoed-Thomas J. 276. Campbell v MGN, above, n 20. 277. (1987) 14 FCR 434; 13 ALD 254; 74 ALR 428; 10 IPR 53. 278. Above, FCR at 456. 279. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 (AMI Australia Holdings v Fairfax) at [20] per Brereton J; West Australian Newspapers Ltd v Bond [2009] WASCA 127 at [44] per Buss JA (Owens and Wheeler JJA agreeing); Australian Football League v The Age Co Ltd (2006) 15 VR 419; A v Hayden (1984) 156 CLR 532 at 556 per Mason J, at 571–4 per Wilson and Dawson JJ and at 595 per Deane J. See also Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 8 NSWLR 341 (Heinemann) at 382 per Powell J. 280. Heinemann, above, NSWLR at 171. 281. In approving of a public interest exception, his Honour drew a clear distinction ‘between matters that ought to be disclosed in the public interest, and those which are merely of public interest in the sense that many people would like to know them’: Heinemann, above, n 279, NSWLR at 171 per Kirby P. On the question of public interest generally, see also AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; 58 IPR 268; [2002] NSWSC 170; Woodward v Hutchins [1977] 1 WLR 760 at 764; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 305–6 per Hutley AP and at 309–10 per Samuels JA; and Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513. 282. AMI Australia Holdings v Fairfax, above, n 227, at [20]. 283. Above. See also the cases referred to by Brereton J at [19] in support of this proposition, namely: Smith Kline & Kline French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Department of Community Services (1990) 22 FCR 73 at 111; 95 ALR 87; 17 IPR 545 per Gummow J; Bacich v Australian Broadcasting Corp (1992) 29 NSWLR 1 at 16; (1992) 10 ACLC 1420 per Brownie J; Sullivan v Sclanders & Goldwell Int Pty Ltd (2000) 77 SASR 419 at 427; 210 LSJS 135; [2000] SASC 273 per Gray J. As to the public interest and questions of free speech, see [3.108]–[3.115], above. 284. See, for example, the obiter observation of Gummow J in Smith Kline, above, n 115, at 112 that, ‘[t]he obligation of confidence is to respect the confidence, not merely to refrain from causing detriment to the plaintiff … To look into a related field, when has equity said that the only breaches of trust to be restrained are those that would prove detrimental to the beneficiaries?’ Cf the position in contract, where loss is the basis of a claim for damages: National Roads and Motorists’ Association Ltd v Geeson (2001) 40 ACSR 1 at [58]; and NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 at [21]. 285. Giller, above, n 1, at [142]–[153] per Ashely JA and at [408]–[431] per Neave JA (Maxwell JA agreeing at [1]); Wilson v Ferguson, above at [68]–[85], esp. at [83]. 286. Giller, above, n 1, at [158] per Ashely JA and at [438]–[439], [442] per Neave JA (Maxwell JA agreeing at [1]). 287. Exemplary damages have a public purpose and may be awarded as a mark of curial disapprobation of the conduct of a defendant, which is undertaken in conscious and contumelious disregard for the rights of the plaintiff; thus, they are awarded to punish the wrongdoer, to deter others from similar behaviour and to vindicate the plaintiff: Lamb v Cotogno (1987) 164 CLR 1. As to a discussion of the award of exemplary damages in equity, see Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298; and

288.

289. 290. 291. 292.

293. 294. 295.

296.

297. 298. 299. 300. 301.

302. 303. 304. 305. 306. 307. 308.

Giller, above, n 1. As to academic discussions on the topic, see the texts referred to by Mason P in Harris v Digital Pulse at [106]. Compare with the position in tort: Grosse v Purvis, above, n 2. Compare with the position in respect of a threatened defamatory publication: should a defendant seek to rely on a plea of justification, interim injunctive relief will ordinarily succeed in those rare cases where a plaintiff is able to establish that the defence of justification is bound to fail: Bonnard v Perryman [1891] 2 Ch 269 at 284. [1999] NSWSC 1034. Kwok v Thang, above, at [33]. [2013] NSWSC 979 at [20] per Pembroke J. See also Tom Cruise & Nicole Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125. Compare with AMP v Persons Unknown [2011] EWHC 3454 (TCC) (see [3.66]–[3.69], above). It is to be doubted whether the injunctive relief ordered in AMP v Persons Unknown was capable of enforcement. It is similarly to be doubted whether an Australia court would be prepared to grant like injunctive relief. Wilson v Ferguson, above, n 245, at [61]. See Johns v Australian Securities Commission (1993) 178 CLR 408 at 459–60; per Gaudron J 31 ALD 417; 116 ALR 567; [1993] HCA 56; Breen v Williams (1996) 186 CLR 71 at 129; 43 ALD 481; 138 ALR 259; [1996] HCA 57 per Gummow J. See, for example, the (now closed) website, , which allowed users to anonymously upload pornographic photographs or videos of other people (of legal age) to its database, which would then be published together with the name of the person featured and his or her location and social-networking pages: ‘Hunter Moore Sells “Revenge Porn” Site to Anti-Bullying Group BullyVille.com’, news.com.au, 23 April 2012, available at . Compare with Venables and Thompson v New Group Newspapers Ltd [2001] 1 All ER 908; [2001] 2 WLR 1038; [2001] Fam 430 where the court (having regard to the implementation of the Human Rights Act 1998 (UK)) granted injunctions against the whole world restraining the disclosure of any information capable of leading to the identification of the murderers of a two-year old boy following their release from prison. As was observed by the court in Douglas v Hello! Ltd (No 2) [2004] All ER (D) 280 (May); [2006] QB 125; (2005) 65 IPR 449; [2005] 4 All ER 128 (Douglas v Hello! Ltd (No 2)) at [69]: ‘A remarkable feature of this decision was that the nature of the information alone gave rise to the duty of confidence regardless of the circumstances in which the information might come to the knowledge of a person who might wish to publish it.’ (2004) 7 HRNZ 301; [2005] 1 NZLR 1. Above, at [246] per Tipping J, see also at [45]–[49] per Gault P and Blanchard J. See Douglas v Hello! (No 2), above, n 12, at [53] per Lord Phillips MR, Clarke and Neuberger JJ in respect of claims for publication of unauthorised photographs of a private occasion. Above, n 96. See Privacy Act 1988 (Cth); Privacy and Personal Information Protection Act 1998 (NSW); Information Act 2002 (NT); Information Privacy Act 2009 (Qld); Right to Information Act 2009 (Qld); Personal Information and Protection Act 2004 (Tas); Information Privacy Act 2000 (Vic); Freedom of Information Act 1992 (WA). Save that a different version of the Privacy Act, as modified by the Australian Capital Territory Government Service (Consequential Provisions) Act 1994, applies to ACT Government agencies. Privacy Act 1988 (Cth) s 3. Privacy Act 1988 (Cth) s 2A. The provisions came into effect on 12 December 2012 and 12 March 2014. See Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) s 2. Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, ALRC Report No 108, 2008, . Privacy Act 1988 (Cth) s 6C(1). Privacy Act 1988 (Cth) ss 6C(1) and 6D. A small business operator is a business that had an annual

309. 310. 311. 312. 313. 314. 315. 316. 317. 318. 319. 320. 321. 322. 323. 324.

325.

326. 327. 328. 329. 330. 331. 332. 333. 334. 335. 336. 337. 338. 339. 340. 341. 342.

turnover for the previous financial year of $3,000,000 or less. However, a business is not a ‘small business operator’ if it provides a health service to another individual and holds health information or is related to a body corporate that carries on a business that is not a small business. Privacy Act 1988 (Cth) s 6C(1). Privacy Act 1988 (Cth) s 7B(1). See also s 16: The Privacy Act does not apply for the purposes of, or in connection with, an individual’s personal, family or household affairs. Privacy Act 1988 (Cth) s 7B(4). Privacy Act 1988 (Cth) s 6D(4)(c)–(d). Privacy Act 1988 (Cth) s 6D(6). Privacy Act 1988 (Cth) s 6D(7)–(8). See . Above. Above, n 315. Privacy Act 1988 (Cth) s 5B. References to Australia include reference to an external territory. Privacy Act 1988 (Cth) s 5B(2). Privacy Act 1988 (Cth) s 5B(3). Privacy Act 1988 (Cth) s 6, definition of ‘personal information’. Privacy Act 1988 (Cth) s 6, definition of ‘sensitive information’. This follows the amendment of the Telecommunications (Interception and Access) Act 1979 by the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015. See s 187LA of the Telecommunications (Interception and Access) Act 1979 and the note added to the definition of ‘personal information’ in s 6(1) of the Privacy Act. [2015] AATA 991 (18 December 2015). Compare with Google v Vidal-Hall, above, n 96, in which the Court of Appeal for England and Wales concluded that there was a serious issue to be tried as to whether Google’s covertly collected ‘browser-generated information’, which identified website browsing histories and linked them to a particular device or user, was ‘personal data’ for the purposes of the Data Protection Act 1998 (UK). See also Privacy Act 1988 (Cth) ss 16A–16B. See also Privacy Act 1988 (Cth) ss 16A–16B. However, an APP entity does not need to ensure that the overseas entity has formulated a privacy policy meeting the requirements of APP1. Privacy Act 1988 (Cth) Pts IV and V. The Information Commissioner has the meaning given in the Australian Information Commissioner Act 2010 (Cth). Privacy Act 1988 (Cth), Pt IV, concerning the functions of the Information Commissioner, and Pt V, concerning enforcement powers, including investigations. Privacy Act 1988 (Cth) ss 13–13F. See, for example, credit-reporting activities, the activities of Commonwealth contracted service providers and dealings in tax file numbers: Privacy Act 1988 (Cth) s 13(2)–(5). Subject to certain exceptions concerning the sharing of information between related bodies corporate: Privacy Act 1988 (Cth) s 13B. For example, the small business and media exemptions referred to in [3.158], above. Privacy Act 1988 (Cth) Pt IV Div 3A. Privacy Act 1988 (Cth) s 33E. Privacy Act 1988 (Cth) s 33F. Privacy Act 1988 (Cth) Pt V. Privacy Act 1988 (Cth) ss 36A, 42, 44–47, 50. Privacy Act 1988 (Cth) s 52(1A). See Crimes Act 1914 (Cth) s 4AA, which currently provides that one penalty unit is $180. Privacy Act 1988 (Cth) s 80W.

343. [2014] AICmrCN 3 (25 June 2014). See also Telstra Corporation Ltd: Own Motion Investigation Report, 11 March 2014, available at . On 24 May 2013, the Australian Privacy Commissioner opened an own motion investigation into Telstra Corporation Ltd following media reports (subsequently confirmed by Telstra) that personal information of Telstra customers was accessible online. 344. Because the activity in question took place prior to the entry into force of relevant provisions of the Privacy Act and the Australian Privacy Principles, this matter was determined by reference to the National Privacy Principles (NPP). 345. In contravention of NPP 4.1. 346. In contravention of NPP 4.2. 347. (1890) 4 Harvard Law Review 193. 348. Above, at 195–6. 349. (1937) 58 CLR 479; [1937] ALR 597; (1937) 11 ALJR 197; 1A IPR 308. See [3.17]–[3.19], above. 350. Above, CLR at 505.

[page 141]

4 Social Media and Defamation Law Patrick George

OVERVIEW • • •

•

The use of social media involves the publication of ‘matter’ under the defamation laws in Australia. Publication of defamatory matter identifying another person is the foundation for an action for defamation. An action for defamation based on the use of social media raises complex questions about where, when, to whom, about whom, by whom was the matter published and what does the matter published mean? The awards of damages in Australia for defamation from the use of social media can be substantial and, in a number of cases, have exceeded six-figure sums.

INTRODUCTION 4.1 Defamation laws exist in most societies around the world and they exist for a very basic reason. They protect a fundamental human right, that no one shall be subjected to unlawful attacks on honour and reputation.1 4.2 We belong to the society in which we are born and in which we live. Our right to belong and the esteem in which we are held within society depend upon our reputations, earned by a social assessment of who we are and what we do.

4.3 The estimation that others give us by way of reputation is communicated and reviewed and reassessed over time. This assessment takes place through [page 142] any and all means of communication available. ‘Social media’ is now one of those means of communication. It is faster, more accessible and more widely available than any other means of communication previously experienced. It therefore has the capacity to impact upon our reputations, positively and negatively, in a most significant way. 4.4 An accusation, which damages a reputation unjustifiably or inexcusably, will breach the law of defamation. This law is now partly statutory and partly common law in Australia, governed by uniform defamation legislation in each state and territory. In most jurisdictions, it is known as the Defamation Act 2005.2 4.5 Defamation is an age-old tort. From the time of the printing press to today with social media such as Twitter and Facebook, the law of defamation has applied to all kinds of communications over the centuries. 4.6 The common law came to distinguish between defamatory statements which were made orally and defamatory statements which were made in writing. Those which were oral, known as slander, required special rules because of the potential multiplicity of actions that could be brought from the spoken word and the uncertainty of proof of what words were said. Accordingly, it was necessary to show actual loss arising from the oral publication, except in certain specific categories of defamation where damage to reputation was presumed. 4.7 By comparison, defamatory statements made in writing, known as libel, were considered inherently damaging to reputation because of their permanence. The distinction between slander and libel no longer exists under Australian law.3 The relevance of the distinction is that there is a multiplicity of publications in social media just like there is in everyday conversation but social media statements are made electronically ‘in writing’ and are therefore ‘permanent’. The ‘conversation’ by way of social media is recorded and endures, available to scrutiny and review in electronic form, and does not disappear as does the spoken word. 4.8

In an action for defamation, there is no necessity for a plaintiff to show

actual damage, as damage is presumed by the publication of a defamatory statement. Complex questions arise from the use of social media as to when and where the publication is made and by whom it is deemed to be understood. These are not matters that users of social media will normally have in mind. Instead, they feel liberated to speak their minds as they please. 4.9 So free and uninhibited has the use of social media become that, for all its benefits in providing freedom of speech, it sometimes resembles the ‘Wild [page 143] West’ of publishing, with no apparent laws to restrict it. Its impact, when used to damage another, can be savage and immeasurably harmful. 4.10 A single mother, Nicola Brookes, showed her support on Facebook to a former contestant on the television program X Factor in the United Kingdom after he received hate mail on his Facebook page. She posted a message, ‘Keep your chin up Frankie, they’ll move on to someone else soon.’ Unfortunately, they did. They moved on to her. She became the target of ‘vicious and depraved’ abuse. A fake Facebook profile account was set up in her name using her picture to post explicit comments and suggesting she was a paedophile. As a result, she went to court and obtained an order requiring Facebook to disclose the identities of those persons for defamation proceedings. 4.11 In Australia, one of the first cases involving Twitter and Facebook, Mickle v Farley,4 concerned a teacher at a regional high school in New South Wales. The school had decided to honour the teacher, after many years of service, with the naming of the school music centre after her. The son of the head teacher of the music department of the school took to Twitter and Facebook to attack the teacher’s good name with vitriolic abuse. Others contributed to the conversation. One of the friends said, ‘You’re all entitled to your opinions. I in no way am arguing with that. But be very very VERY careful what you post on public media.’ 4.12 The defendant responded: ‘Like I said I can post whatever the f..k I like and if you don’t like it block me so you don’t have to read it. I don’t give a s..t. She has f..ked with my family’s life for too long for me to give a s..t if anyone gets hurt over what I have to say about her.’ 4.13

The plaintiff was made aware of the tweets and posts by the principal of

the school after they had been disseminated amongst students, parents, teachers and members of the local community. The plaintiff was devastated. 4.14 The judge found that the statements were utterly baseless and awarded the plaintiff $105,000, including $20,000 aggravated damages.5 The judge considered that the ‘inherent evil in this type of communication’ was the unrestricted dissemination of the material through the grapevine effect.6 4.15 Other substantial awards of damages from social media cases have since followed. In Polias v Ryall,7 a total sum awarded of $340,000 arose from comments on Facebook and a number of oral statements imputing the plaintiff was a thief and a liar. In North Coast Children’s Home Inc v Martin,8 the defendant made 12 publications on Facebook and by email imputing the [page 144] plaintiffs, a children’s home and its executive officers, were guilty of child abuse and neglect. They were awarded a total of $250,000. 4.16 In French v Fraser,9 a plaintiff sued on various publications, including an article posted on the defendant’s website ‘The Arbitrator’, an email sent to over 500 people and an item posted on Facebook, alleging the plaintiff was dishonest, corrupt and grossly incompetent. The plaintiff was awarded the sum of $300,000. The judge described the defendant’s conduct as a wide-reaching and wholly unfounded public attack on the plaintiff’s reputation with a more sinister private campaign in which the defendant bombarded the plaintiff ‘with hundreds of emails, texts and voice messages, many containing thinly veiled threats evidently motivated by homophobia and other senseless vitriol’.10 4.17 The sheer nastiness of trolling, the cowardice of anonymity and the frenzied attacks by the following herd are as unacceptable to ordinary decent people in society as much as they are unlawful. Yet those with the willingness to hurt others in this way have gained an extremely powerful tool through social media. What is now said in public, probably lurked before in private conversation or went unsaid in people’s private thoughts. The public outpouring of malice by means of social media is an antisocial phenomenon of these times. 4.18

How then does defamation law apply to restrict it?

DEFAMATION LAW 4.19 Defamation law provides a cause of action through the courts to compensate a person for the damage suffered by reason of a published attack on reputation. Through its long history, the law has served a peaceful purpose in providing a remedy to a person who has been defamed when, before such law existed or despite such law existing, people took matters into their own hands to inflict revenge upon wrongdoers. This led to lawlessness, violence and bloodshed. Duels were often used to satisfy the slur on one’s honour and vendettas were passed down for generations. 4.20 Damages are awarded for a breach of the defamation law and, in Australia, those damages for non-economic loss are capped by legislation;11 in 2015, at the sum of $376,500 (and adjusted each year for inflation). 4.21 Defamation laws have an inhibiting effect upon the free flow of communication and freedom of speech. The recognition of the importance of this freedom to a democratic society is of more recent origin than the existence of the defamation laws. Freedom of speech is accepted as a [page 145] fundamental human right; that is, that everyone shall have the right to exercise freedom of thought and freedom of expression.12 4.22 The suppression by governments of criticism and dissent is an essential means of controlling the people and exercising power. Dictatorships thrive on the absence of dissent, enforced through censorship and restraint of those who might wish to express opposition. The Nazi regime was the perfect example, not only violently suppressing dissent but controlling the media in pursuit of its goals. Western democracies have also witnessed the harsh control of criticism by those who exercise power, and the defamation laws have been used as a weapon for that purpose. It is in that context that freedom of speech of political and government discussion has been seen in recent times as deserving of particular protection. 4.23 Consequently, defences have been developed in defamation law to provide protection of freedom of speech. There is an absolute privilege to publish statements in parliament or in court. There is a qualified privilege to

publish statements of ‘political or government discussion’13 or where the occasion is protected for the ‘common convenience and welfare of society’.14 4.24 However, these defences conflict with the protection of freedom from attack on reputation. It is therefore expressly recognised that the exercise of freedom of speech carries with it special duties and responsibilities and may be subject to certain restrictions as are necessary for the respect of the rights or reputations of others.15 The law seeks to strike a balance between these two freedoms or human rights underlying the defamation law. 4.25 One particular consequence of this balance is that courts are reluctant to grant interim injunctions to restrain defamatory publications before they are published. In the usual course, an award of damages is considered to be an adequate remedy after publication has taken place.

DEFAMATION AND CAUSE OF ACTION 4.26 The cause of action for defamation requires the proof of three elements — publication, identification and defamatory meaning. It will also be necessary for a plaintiff to identify the defendant and bring the proceedings within 12 months from the date of publication.16 [page 146]

Publication 4.27 It is said that publication is the foundation of the cause of action for defamation.17 From publication, the following questions arise: (a) (b) (c) (d) (e) (f) (g)

What form did the publication take — oral, written, conduct? To whom was it published and to how many? Where was it published? When was it published and for how long? About whom was it published? By whom was it published? What did the ordinary reasonable person understand the publication to

mean? 4.28 The central issue, of course, in all of these questions is publication. It will be seen that these questions are also centrally relevant to the defences and remedies.

Form of the publication 4.29 Social media being ‘social’ is a form of publication which satisfies the essential element of the cause of action for defamation. It is electronic in form and the publication generally remains available online once posted or uploaded for viewing or reading. 4.30 Social media, and the internet generally, is not confined to the written form. It can contain pictures, video and sound. This means that social media is not just read but can be seen and heard. The electronic form means it can be retained indefinitely by being retained online. Social media also makes use of symbols, abbreviations, acronyms and ‘emoticons’ (typed symbols simulating a facial expression or feeling, such as :), which is the emoticon for a smiley face). 4.31 Another relevant form used on social media and the internet generally is the hyperlink, which enables cross-referencing of matter. Following the hyperlink, a reader can link from one web page to another. This is often used in the social media context by linking news pages to a tweet or message. At law, this link may be taken as a single publication or together as a combination of separate publications.18 The proximity of two articles in a search result does not of itself enable complaint to be made that they were read together, as they would be downloaded separately to read the content.19 [page 147] 4.32 One further common form of publication is the republication of someone else’s publication. The Twitter and Facebook websites respectively permit users to ‘Retweet’ or ‘Share’ other users’ publications. 4.33 The ability to store or retain the form of the publication has consequences in terms of liability in particular, where the recipient can go back and reread the publication in order to have a different or better understanding

to the initial impression gained, and also the time at which the publication is read or understood. 4.34 This issue is complicated by popular platforms, such as Snapchat, which allows users to set the time their publication, known as a Snap, can be viewed by a reader (between 1 and 10 seconds) before it is hidden from the reader’s device and deleted from the Snapchat server. Users of Snapchat generally tend to make permanent records of controversial Snaps by taking a screenshot and saving it to their device. It is, of course, not possible for a user to ascertain whether this has occurred.

To whom and how many 4.35 Publication at law requires the matter to be published to at least one person other than the plaintiff. The reason for this is that the law protects a person’s reputation in the eyes of others, not in the plaintiff’s own perception of his or her reputation.20 4.36 Publication involves the comprehension of the matter by a third party.21 That is the moment when damage to reputation occurs. It involves a bilateral act, where, in the case of social media, the defendant uploads the publication and the recipients read it and comprehend the meaning of it. Complex questions arise as to when and where such publication occurs. Damage is presumed whenever the act of publication occurs, even if the recipients had no prior knowledge of the plaintiff or his or her reputation.22 4.37 The uploading of any matter on social media may in the normal course be expected to be read by one person other than the person attacked. However, the law may not necessarily allow an inference to be drawn from the use of social media that such a publication occurs and it may be necessary for a plaintiff to show it was read by at least one other person.23 4.38 If the matter is not capable of being understood by a recipient, there is no communication of it and no publication. For example, matter in a foreign language may not be understood by the recipients, and no damage [page 148]

results. However, in one case, material was uploaded onto the website of an Australian newspaper in the Italian language. The court inferred that publication had taken place to a significant number of people because of evidence that ‘many’ people had contacted the plaintiffs about it after the article was made available.24 4.39 Social-networking websites, such as Twitter and Facebook, are open to any member of the public to establish accounts to use the formats of those sites, subject to agreement to the website owners’ terms and conditions. 4.40 Social media sites such as these are different from other forms of websites which might be available to access information or be used for education or research. Social media sites involve the ability of users to exchange information and communicate to one and many at the same time and in any number of locations. 4.41 Twitter and Facebook are both free social-networking sites. Tweets are publicly visible by default. The vast majority of Twitter accounts are set to tweet publicly visible content and because the tweets are publicly visible, there is no limit to the number of persons who can view them. 4.42 Content shared on Facebook is also public by default. However, account holders can set their privacy settings to different levels of privacy, with the least restricted setting available to the public and the most restricted level to ‘friends only’. 4.43 Regardless of the privacy settings, any recipient of a tweet or post may ‘copy paste’ content to others or may take a screenshot of the content and send the image by any option available on smart phones, tablets or personal computer. This exercise can easily be carried out in less than 60 seconds. 4.44 A tweet on Twitter or a post on Facebook is automatically published to the number of followers and friends respectively that the account holder has and it will then appear in the newsfeeds of those account holders. Those followers or friends may republish the original content to their own followers and friends and this will increase the extent of publication instantly and cumulatively. 4.45 Once a matter is placed on these social media sites, there is no ability to recall or shut down further publication or dissemination by others to a wider audience. To the extent that followers reply to tweets on Twitter, each of those replies would be readable by their followers. This reflects the ‘expanding

universe’ of communication on Twitter, which cannot be defined as to extent or location once published, and the capacity of tweets to ‘go viral’ in a short space of time. Facebook is similar, depending upon the privacy settings. Once statements are made on social media websites, it should be assumed that they can and often will be seen in any place by anyone because of the public nature [page 149] of those websites. There is no ability to control the extent of the audience to whom matter is published or their location, regardless of the privacy settings in the first instance. 4.46 In England, defamation proceedings were issued by a school governor against a mother who had posted comments to her 300 Facebook friends via her Facebook profile to which access was restricted to ‘friends only’. They were then reposted by the mother’s sister whose profile was public, which meant that they could be read by anyone.25 4.47 By comparison, in the United States, celebrity Courtney Love was sued by her former lawyer for a tweet in which she suggested the lawyer had been ‘bought off’. The media labelled this libel claim as ‘Twibel’. Ms Love argued that she did not intend to send the tweet worldwide but only to two recipients. She also said that she did not know the information was untrue when she published it. The jury accepted Ms Love’s argument finding that she did not act recklessly. In Australia, this tweet would have been defamatory regardless of Ms Love’s intention as to whom it was published and whether she knew it was untrue or not. A defendant would need to establish a defence of qualified privilege in order to avoid liability. 4.48 The extent to which it may be inferred that the matter has been published will be identifiable on social media from the number of followers on Twitter or friends on Facebook. It may be possible to identify each and every recipient from documents obtained on discovery from the defendant or obtained by subpoena from intermediaries. It is usual practice with mass media publications for there to be an estimate of the audience from distribution or circulation figures. As the technical ability of social media websites continues to be enhanced, it is possible that intermediaries may be able to provide information not only as to the identity of each recipient who accessed the matter but also when they did so, the time spent in reading it and whether they

forwarded the publication to others through a mechanism provided by the intermediary. 4.49 Limited information regarding publication may already be available where the website provides a particular mechanism to share the publication with others. For example, the ‘Share’ mechanism on Facebook records the number of times a post is shared by a user. 4.50 In Hockey v Fairfax Publications Pty Ltd,26 The Age newspaper had published three tweets, two of which the judge found were defamatory. The first tweet comprised only the words ‘Treasurer Hockey for Sale’ and a truncated hyperlink to the story as it appeared on The Age website, together with another hyperlink using the words ‘View Summary’. The second tweet [page 150] was a summary of the article on The Age website. The Age had approximately 280,000 followers on Twitter. 4.51 There was argument as to whether the two tweets should be determined by reference to themselves alone or whether account should also be taken of the article for which the matters gave a hyperlink. The judge found the article was not defamatory on a full reading and in its context. The Age argued that the ease with which followers of tweets may obtain access to the article by the hyperlink suggests that, if the tweet had any impact on those reading it, they are likely to have used the hyperlink to read more. In the judge’s view that was a matter going to damages not to liability. 4.52 Accordingly, the judge found the first tweet to impute that Mr Hockey corruptly solicited payments to influence his decisions as Treasurer of the Commonwealth of Australia. In relation to the second tweet, the judge found that the reader would have understood the summary to be indicating that Mr Hockey was providing access of a privileged kind in consideration for substantial political donations and that the privileged access was available only to a select group of business leaders. Ordinary reasonable readers would therefore have regarded that as corrupt conduct. 4.53 It was established that, of the 280,000 followers on The Age’s Twitter account, only approximately 789 of these downloaded the article from The Age website. Mr Hockey submitted that it could be inferred that approximately

279,000 had read the tweets but had not had the understanding conveyed by them corrected by a later reading of the article. 4.54 The judge considered that many, if not most, Twitter users received daily large numbers of tweets. It is unrealistic to suppose that they read every tweet. Ordinary experience suggests that many do not read all the tweets they receive and, of those who do, many will glance at a tweet only fleetingly to see if it contains anything to attract their interest. Readers of this kind do not ‘take in’ the subject matter of every tweet. The judge also considered that the ease of the means by which those seeing the Twitter matters could access the article should not be ignored. It would have been a simple matter for readers to click on the hyperlink included in the tweets. 4.55 Nevertheless, the judge accepted that there would have been a large number of persons, perhaps in the tens of thousands, who read the bare tweets and who did not read further.27 Accordingly, the judge awarded Mr Hockey $80,000 in respect of the two tweets. 4.56 Where it is not possible to identify precisely the identity or number of recipients of the publication, the law recognises that defamatory material may be repeated or republished to others through the ‘grapevine effect’ so that the [page 151] damage is caused by the ongoing publication to a much wider audience than those to whom it was initially published.28 4.57 If a communication is intercepted from a private setting, such as by computer hackers, not only is the hacking a criminal offence,29 the author may not be liable for the unauthorised or unintentional publication made by those hackers.30

Where 4.58 Social media may be published anywhere in the world depending upon the geographical location of the recipients. As each receipt of a defamatory publication is a separate publication and therefore constitutes a separate cause of action, a defendant may be sued in any number of jurisdictions.

4.59 In Dow Jones & Co Inc v Gutnick,31 it was unsuccessfully argued that publication occurs when and where the matter is uploaded (in that case, in New Jersey, United States) and not when and where it is downloaded by readers around the world. Dow Jones published The Wall Street Journal newspaper and Barron’s Magazine. It operated a news site by subscription on the internet. It uploaded to its website, Barron’s Online, an article under the headline ‘Unholy Gains’ which made reference to Joseph Gutnick. 4.60 Gutnick, as the plaintiff, restricted his complaint to the publication to readers in Victoria and therefore brought his cause of action in Victoria claiming damages for the defamation within that state only. 4.61 The High Court held that the cause of action is located at the place where the damage to reputation occurs. In relation to the internet, that is where the recipient downloads the material because that is where the damage to reputation is done.32 As a result, the place of publication was Victoria and that was the jurisdiction in which Gutnick sued for damages. It was his reputation in that state which he sought to vindicate. 4.62 Dow Jones argued that this would give rise to multiplicity of actions in each and every jurisdiction in which the publication was downloaded, from Afghanistan to Zimbabwe. The High Court considered that those uploading material on the internet do so knowing that the information they make available is available to all and sundry without any geographic restriction. [page 152] However, in all except the most unusual cases, identifying the person about whom the material was published, will readily identify the defamation law to which that person may resort.33 4.63 The High Court said that, if in a case an issue arises as to whether an Australian court is clearly an inappropriate forum, a very significant consideration will be whether that court can determine the whole controversy and, if it cannot, whether the whole controversy can be determined by a court of another jurisdiction. Importantly, the place of the tort, the parties’ connection with one jurisdiction or another, and the publisher’s choice to place matter on the internet are relevant matters to the court’s exercise of discretion as to whether the chosen forum is appropriate or not.34

4.64 A relevant matter to the place where damage occurs is where the plaintiff first learned of the publication and suffered hurt to feelings in that place; this may be a different place to where it was received and understood.35 4.65 The Defamation Act 2005 applies the substantive law of the state or territory in which the matter was published within Australia. If the matter is a multi-state publication, the Act applies the substantive law with which the harm caused by publication has its closest connection.36 It may be necessary to apply foreign law where the publication occurs in a foreign jurisdiction and the appropriate forum is within Australia.37

When and for how long 4.66 It follows that the date on which the matter was published for the purposes of the cause of action is the date on which the publication is comprehended by the recipient. To the extent that it continues to be made available over a period of time, such as on the internet, publication is continuing whenever it is accessed and read. 4.67 Each publication gives rise to a separate cause of action.38 If a later publication occurs outside the limitation period (12 months from the date of publication)39 for a cause of action arising from the original publication, a plaintiff may still bring an action for the damage suffered by the later publication. In Duke of Brunswick v Harmer,40 an article in a London [page 153] newspaper, the Weekly Dispatch, had been published in 1830 critical of the exiled German ruler Karl II, Duke of Brunswick. Living in Paris 17 years later, the duke sent his valet to read a copy in the British Museum and obtain a copy from the publisher, Harmer. The first publication was held to be statute barred but the second publication to the duke’s valet was not. This technical publication would today be likely to be met with a defence of triviality. In the United Kingdom, it would be statute barred by the single publication rule operating for 12 months from the date of first publication to the public unless the later publication is materially different.41

About whom 4.68 The plaintiff must prove that he or she was identified in the matter published. It must be shown that the defendant published the defamatory material ‘about the plaintiff’ or ‘of and concerning’ the plaintiff.42 This is easily done where the plaintiff is referred to by name or title but, where there is no such reference, the relevant question is about whom the ordinary reasonable recipient of the publication understood the matter to refer. It is the general impression which ordinary reasonable recipients would have obtained without any need on their part to formulate reasons for that impression.43 The primary test is that the recipient act reasonably, being fair-minded without being morbid or suspicious.44 4.69 The defendant’s actual intention whether to refer to the plaintiff or not, or whether the defendant even knew about the plaintiff, is not relevant.45 In certain circumstances, if the publication does not refer by name or description to the plaintiff, the plaintiff may be able to show that the matter was published to persons who had knowledge of his or her identity as a result of knowledge of special facts.46 4.70 Any living person may sue for defamation. Corporations generally cannot sue for defamation in Australia unless they are exempted under the Defamation Act 2005.47 A small business company can sue provided it employs fewer than 10 persons and is not related to another corporation. Not-for-profit corporations can also sue for defamation. The directors of corporations which are unable to sue may bring an action in their own [page 154] name, or the corporation may sue for injurious falsehood. It is also possible for groups to sue; for example, in New South Wales, a class of 28 students sued a newspaper for an article ‘The Class We Failed’,48 which was found to be defamatory of the whole class by suggesting that the class had failed the Higher School Certificate.49

By whom

Publisher 4.71 Each person who publishes or participates in the publication of defamatory matter may be liable. In traditional media cases, the publication may be made jointly by a number of defendants where, for example, the author, editor, newspaper owner, printer and distributor participate in the production of the newspaper. Each is jointly and severally liable for the publication.50 An employer is liable for the publication by its employee provided the publication was authorised or made in the course of employment.51 4.72 Participation in the publication will require proof of more than just mere knowledge on the part of the defendant of the existence of the statement and the opportunity to remove it, for example, from the defendant’s website or social media site. The plaintiff must establish that the defendant consented to, or approved of, or adopted, or promoted, or in some way ratified, or in one way or another accepted responsibility for the continued publication of that statement (once it came to the defendant’s knowledge).52 4.73 Where a person contributes material to a publication but has no control over the publishing process, the person will not ordinarily be liable as a publisher unless he or she has assented to its final form.53 4.74 A person may be liable for the repetition or republication of the original publication by another. The original publisher may be liable for whatever form the republication takes and the damages which flow from such republication.54 It is necessary to prove that the original publisher authorised or intended that the republication take place or that the republication was [page 155] the natural and probable consequence of the original publication.55 This is essentially a question of causation, namely whether the republication by a third party was the foreseeable consequence of the original publication.56

Republisher 4.75 In addition, the person who repeats or republishes defamatory matter published by another person may be liable as if the person was the original publisher.57 Liability does not necessarily depend upon whether the person

approved, reaffirmed or endorsed the original publication. 4.76 It is common in the use of social media for the matter to be republished and indeed go ‘viral’ by people retweeting or sharing material which they find amusing or of interest. Gossip and rumour tend to spread far and wide. Social media platforms provide specific mechanisms to enable content to be disseminated as easily and as quickly as possible to as wide a geographical audience as possible. Cutting and pasting material is also a popular feature of the use of social media. 4.77 It follows that an original publisher on social media would ordinarily foresee that the material placed online may be republished and that it is the natural and probable consequence of doing so. The original publisher can therefore be sued along with those who participate in the republication. A good example is the case of Sally Bercow,58 who tweeted, ‘Why is Lord McAlpine Trending? *innocent face*’. She was sued by Lord McAlpine for repeating the accusation published in the traditional media, which in fact was the reason his name was trending on Twitter. She was held liable based on the repetition rule that where a defendant repeats a defamatory allegation made by another, he or she is treated as if he or she made the allegation themself, even if he or she attempts to distance themselves from the allegation.59

Anonymity 4.78 Social media has commonly seen the use of anonymity or pseudonyms to disguise the true identity of the person publishing. Where the identity of the publisher is not known, it may be necessary to apply to the court for preliminary discovery. [page 156] 4.79 It is possible to trace the true identity of a person through the author’s ‘set of identifiers’ used online. In Applause Store Productions Ltd v Raphael,60 the defendant had set up a false Facebook profile in the name of the plaintiff, Matthew Firsht. Linked to the profile was a hyperlink, ‘Has Matthew Firsht Lied to You?’. Mr Firsht initially requested Facebook to take down the false profile, which it did. He then sought an order from the court against Facebook for disclosure of the registration data provided by the user responsible for creating

the false material, including email addresses, and the IP’s addresses of all computers used to access Facebook by the owner of those email addresses. The basis of this application was a Norwich Pharmacal order,61 an order compelling disclosure by a third party of documents or information necessary for the plaintiff to bring the claim. Facebook produced evidence in relation to the profiles which showed there were two computers that used the IP address: the defendant’s desktop computer and a laptop computer belonging to the defendant’s girlfriend which the defendant often used. Both computers used a wireless router to connect to the internet and the router employed the IP address which Facebook disclosed pursuant to the order. 4.80 However, the defendant denied that he was responsible for posting the false profile on Facebook. He claimed in his evidence that a complete and random stranger visited his flat, went into his study and started using his computer without his permission over a period of about an hour without being seen. The stranger, he claimed, created a false and hurtful Facebook profile about Mr Firsht, someone whom the defendant knew well and had fallen out with, which contained private information about Mr Firsht and which few people, apart from the defendant, would have known. The court rejected the defendant’s evidence as ‘utterly implausible’.62 4.81 An application for preliminary discovery can be made under specific court rules, such as the Uniform Civil Procedure Rules 2005 (NSW) r 5.2 which enables preliminary discovery to be ordered by the court for disclosure of the identity or whereabouts of a source for a defamatory publication. The court has discretion to refuse to make an order for disclosure unless it is shown to be necessary in the interests of justice.63 4.82 In some cases, it may be advisable for the plaintiff to make an application for a protection order of anonymity because the particular publication is so [page 157] damaging that the public right of access to the court would be thwarted if the plaintiff’s name was known.64 4.83 The consequences of not doing so can be seen in a case where the plaintiff applied to the court ex parte and did not seek an order for anonymity.65

He sought orders for the immediate removal from YouTube of video footage which was defamatory of him, as well as any other internet sites on which it might be viewed as well as restraining various defendants, known and unknown, from continuing to publish the material on the internet or otherwise. He also sought orders requiring the defendants to provide the plaintiff with the identity of the web users who had defamed him by their websites so that he would be able to take steps against them for damages. 4.84 In this context, there is an accepted practice in the United Kingdom to commence proceedings against ‘persons unknown’ (often in misuse of private information cases) in order to obtain an injunction and, in doing so, notify non parties or media defendants upon whom it is intended to serve the injunction.66 4.85 The video footage in this case had been posted on YouTube by an Irish taxi driver whose passenger had left the taxi without paying his fare. The taxi driver had posted it with the intention of attempting to identify the passenger. As a result, a person using the pseudonym ‘Daithii4U’ saw the footage and wrongly identified the plaintiff by name as the culprit. This led to ‘the most appalling stream of vile, nasty, cruel, foul, and vituperative internet chatter and comment’ on YouTube and Facebook directed against this entirely innocent plaintiff. The commentators felt ‘free to say what they wished about him, and in language the vulgarity of which offends even the most liberal and broadminded’.67 4.86 The plaintiff, however, at the time of the event was thousands of miles away in Japan and was not the man depicted exiting the taxi on that date. When the matter returned to court, various media outlets reported the proceedings, and the continued publication of the video footage increased showing the defamatory abuse directed at the plaintiff (uncorrected). The judge observed that the court does not have a magic wand and that damage had already been done. It was impossible to ‘unring’ the bell that had sounded so loudly. Unfortunately for the plaintiff, ‘the genie was out of the bottle’ and the media were entitled to report the proceedings provided the report was fair and accurate.68 [page 158]

Intermediaries

4.87 Where it is not possible to identify or trace the defamer or where the defamer is unlikely to be able to satisfy any judgment, plaintiffs have turned their attention to search engines, such as Google, and web platforms, such as Facebook, as identifiable defendants with deep pockets. 4.88 In general, the function of intermediaries and their role in the process of publication is not yet well understood by the public. 4.89 In a number of cases, plaintiffs have brought proceedings against the local entity of Google, such as Google Australia, Google New Zealand and Google UK on the basis that they had the ability to remove URL links or had the ability to control or direct the conduct of Google Inc. It is reasonably settled that these local entities, in the absence of contrary evidence, do not have that ability and the claims made against them have been struck out.69 4.90 In Ghosh v Google Australia Pty Ltd, the owner of a holiday rental property brought proceedings in relation to three blogs with these titles: (a) holidayhousefromhell.blogspot.com; (b) where NOT to go; Never again, HORRIBLE HOLIDAYS ON THE GOLD COAST, BUNDALL GOLD COAST; and (c) A Current Affairs Naked Neighbours Video of November 2011. 4.91 The plaintiff claimed that the blogs were repeatedly attached and sent by Google Australia to all listing holiday rental websites. Google Australia applied to dismiss the claim on the basis that it is a wholly owned subsidiary of Google International LLC, registered in Victoria, and Google Inc, incorporated in the state of Delaware in the United States which is the ultimate holding company of Google Australia. It said that it was not responsible for the day-to-day operations of Google Inc and was neither authorised to, nor able to control or direct, the conduct of Google Inc. Instead, Google Inc owns and operates the domains as well as , and search engines at these domains were exclusively operated and controlled by Google Inc. 4.92 The court struck out the claim on the basis that there was no reasonable prospect of the plaintiff proving that Google Australia had the ability to control or direct the conduct of Google Inc. 4.93 By way of contrast, a plaintiff succeeded in obtaining an urgent ex parte injunction to restrain the publication by Google Australia of a blog suggesting that the plaintiff, who was a Greek Orthodox priest, was involved

[page 159] in a sex scandal. Google Australia’s solicitor had sent a letter stating that it was a support services company and did not operate the Blogger product and did not have the authority to remove blog postings from the Blogger product on legal grounds. It said that the Blogger product was owned and operated by Google Inc, based in the United States, which has a dedicated removals team that handles removal requests. This, it was understood, suggested that Google Australia did not have authority to remove blog postings, but the plaintiff argued that if the injunction was granted, it did not follow that Google Australia would not have the authority or ability to comply with it. The court agreed and granted the injunction.70 4.94 Proceedings can be commenced against Google Inc as a defendant and leave obtained to serve those proceedings outside Australia under the long-arm jurisdiction of the rules of court. The grounds of the application would be that the proceedings were based on a tort committed in Australia or based on recovery of damage suffered within Australia caused by a tort.71 4.95 It has been held that a search engine such as Google or Yahoo may be liable as a publisher at law in Australia, subject to the defence of innocent dissemination, if it participates in and enables the dissemination of defamatory material.72 In the United Kingdom, however, in the absence of any conduct authorising or acquiescing in the continuing publication of defamatory material after complaint is made, and in the absence of knowledge of the defamatory material prior to the complaint, it has been held that a search engine cannot be regarded as a publisher of the defamatory material.73 It may be a mere conduit or passive distributor, similar to a telephone line or broadband provider. This position has been reinforced for website operators, featuring user-generated content, with a statutory defence under s 5 of the Defamation Act 2013 (UK). 4.96 Where Google Inc has been joined to proceedings for defamation in Australia, the argument has been made that it is not a publisher of defamatory material unless it is notified of it and does not take steps to remove it. Instead, it was accepted that Google Inc intended to publish the material that its automated system produced because that was what the search engines were designed to do upon a search request being typed into one of Google Inc’s search products.74 It was no answer to the action that the search engine’s role was a passive one as ‘passive’ distributors, such as newsagents and libraries,

[page 160] have been held liable at common law and their liability depends upon the common law defence of innocent dissemination. Also relevant are those cases where someone with the power to remove a defamatory publication chooses not to do so in circumstances where an inference of consent can be drawn.75 4.97 In Tamiz v Google Inc,76 the plaintiff brought proceedings in England against Google Inc as a result of comments which appeared on the blog site, ‘London Muslim’. The plaintiff was unable to identify certain anonymous commentators who accused him of being a drug dealer, stealing from his employer and being hypocritical in his attitude towards women, and he sought leave of the court to serve the claim on Google Inc in California. The English Court of Appeal held that even though Google Inc provides a platform along with advertising for the blogs and has the capacity for control over them, this did not make it a primary publisher in the sense that it would be vicariously liable for the users. Nor did it make Google Inc a secondary publisher facilitating publication in the manner of a distributor unless it knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory. However, after notification of the defamatory material, the Court of Appeal considered that the position of Google Inc was different, leaving it in the position of participating in the publication and making it potentially liable on the basis of consent or acquiescence (after it had had a reasonable time to act to remove the defamatory statements).77 4.98 In a different context involving advertisements, the issue of whether Google Inc was liable for the misleading and deceptive conduct of advertisers arose.78 The advertisers used Google Inc to display sponsored links in response to search requests made by users of the Google search engine. The High Court held that Google Inc did not create, in any ‘authorial’ sense, the sponsored links that it published or displayed. The fact that the display of sponsored links (together with organic search results) could be described as Google’s response to a user’s request for information did not render Google Inc ‘the maker, author, creator or originator of the information in a sponsored link’.79 It was accepted by the court that ordinary and reasonable users would have understood the sponsored links to be statements made by advertisers which Google Inc had not endorsed and was merely passing on for what they were worth. Accordingly, it was held that Google Inc itself did not engage in misleading or deceptive conduct or endorse or adopt the

[page 161] representations which it displayed on behalf of advertisers. In this context (advertisements), the High Court considered that Google was not different from other intermediaries, such as newspapers or broadcasters, who publish the advertisements of others.80 4.99 This decision suggests that a court may turn to the ordinary reasonable recipient concept to resolve the issue as to whether Google Inc and similar search engines are capable of being understood as a participating publisher alongside the author. Until the search engine is put on notice of the defamatory matter, it may be a mere conduit but, once on notice, it has an election within a reasonable time as to whether it chooses to adopt or endorse by continuing the facilitation of the original author’s publication. 4.100 However, in Trkulja v Google Inc LLC (No 5),81 the plaintiff sued Google Inc in the Supreme Court of Victoria over search results on the internet of his name, Michael Trkulja, consisting of the first 10 results of 185,000 results and various images of him automated by Google Inc in image results. A jury found the material conveyed the imputation that he was so involved with crime in Melbourne that his rivals had hired a hit man to murder him. The trial judge held that the jury were entitled to conclude that Google Inc intended to publish the material that its automated assistance produced because that was what they were designed to do upon a search request being typed into one of Google Inc’s search products. Similar to a newsagent that sells newspapers containing a defamatory article, there might not have been any specific intention by Google Inc to publish the defamatory material but there was a relevant intention to publish for the purposes of the law of defamation.82 This is consistent with the principle that each person who participates in the publication of defamatory matter may be liable83 (subject to the defence of innocent dissemination). 4.101 These same parties engaged in another round of litigation to determine whether Google Inc as a search engine proprietor could be a publisher (either before or after receiving notice of any alleged defamatory publication). 4.102 In Trkulja v Google Inc,84 Google Inc submitted that it essentially had a passive, facilitator role and in no circumstances should be held to be a publisher. The Victorian Supreme Court held that Google authorises for its own commercial purposes the publication of its search engine results on the internet. Its search engine was established and is maintained by its employees. The results

generated by its search engines are the result of the operation of the algorithms created by its employees. [page 162] 4.103 Applying the High Court decision in Thompson v Australian Capital Television Pty Ltd,85 the court held that Google’s ignorance of the specific material generated in response to any given user query does not prevent it from being found liable as a publisher.86 The existence of the defence of innocent dissemination presupposes that the defendant, notwithstanding absence of knowledge of the material constituting the defamation, is a publisher and the lack of knowledge is relevant to the defence as a subordinate publisher.87 4.104 In Bleyer v Google Inc,88 the plaintiff brought proceedings against Google alleging publication by way of Google search engine results of seven items conveying imputations alleging various levels of criminality. The publications related to ‘snippets’ accessible through hyperlinks to specific URLs. Google removed two URLs following notification from the plaintiff and partially removed a third URL which was accessed by only one person post notification. Google sought an order that proceedings be permanently stayed or summarily dismissed because the statement of claim did not disclose a real and substantial tort in New South Wales. 4.105 McCallum J held that the evidence before her established that there was no human input in the application of the Google search engine apart from the creation of the algorithm. She preferred the English line of authority to the effect that at least prior to notification of a complaint, Google Inc cannot be liable as a publisher of the results produced by its search engines.89 While that may be the position pre-notification of the alleged defamatory material, Her Honour considered the position post notification to be ‘more complex’. In any case, she concluded that the complexity and cost of the litigation was not proportionate to the potential vindication of the plaintiff’s reputation vis-à-vis the one person who viewed the URL post notification. Her Honour noted that the plaintiff acknowledged that, if successful, he would be unable to enforce any award of damages against Google Inc.90 4.106 In von Marburg v Aldred,91 the plaintiff alleged that the first defendant was an administrator of a Facebook page of an association called ‘Rights to Privacy Albury’. The second defendant was alleged to be a leader and public

spokesperson of that association. In a useful discussion relating to the operation of Facebook, the court noted that Facebook provided a passive medium for publication by third parties, known as ‘walls’. A Facebook wall may feature multi-layer privacy settings and complex systems governing each individual’s [page 163] capacity to view, add, alter or exchange content on the wall. An individual, such as the administrator of the wall, will have greater control over the content of the wall than a third party viewing or adding to that content. 4.107 In assessing the potential liability of the defendant as a publisher, the court considered the following principles as relevant:92 (1) If the defendant was alleged to be a primary publisher of defamatory material on a Facebook page when that defendant is neither the author nor the originating publisher of the communication, it will be necessary to allege that the defendant was instrumental in the act of publication when it occurred in that he or she intentionally was, in any degree and by whatever means, complicit in the acts of making or authorising the communication or failed to take reasonable care to prevent its publication — if the defendant knew of the content of the communication, it would be sufficient without actually appreciating its defamatory nature (knowledge factor). (2) In the absence of complicity in the conduct of the author and/or originating publisher of the communication or an employment/agency relationship, it would be necessary to allege that the defendant had the ability to control where the publication occurred (control factor). (3) To allege a subordinate publication, a plaintiff should allege that the defendant acquired knowledge of the existence of the impugned publication which is a pre-condition before an Internet intermediary such as an administrator or sponsor of a Facebook page will be held to be a publisher (knowledge factor). (4) To allege a subordinate publication a plaintiff would also need to allege that the Internet intermediary must have sufficient responsibility for the content on the Facebook page to exert control over its content and when made aware of a communication posted by another on a Facebook page or Internet platform within its control whether by actual personal observation

or by being informed of its existence, the defendant failed to remove or terminate the communication, the defendant, it may be concluded, is responsible for or has ratified the continuing publication of that communication (ratification factor). (5) Whether the ratification inference should be adopted is a question of fact in all of the circumstances which will include the manner in which the Internet platform is structured, referring to the architecture of its software, how it is operated or controlled by its sponsor and the role of the defendant in such matters. 4.108 Google Inc, Twitter Inc and Facebook Inc are all incorporated in the United States. Assuming liability is established against them in Australia and judgment entered, the judgment may not be enforceable in the United States [page 164] because of the collective effect of the First Amendment of the United States Constitution, s 230 of the Communications Decency Act 1996 (US) which protects US providers of an ‘interactive computer service’, and the Speech Act 2010 (US) which protects US citizens from foreign libel judgments in jurisdictions where the law provides less protection for free speech than does the United States. This may have the effect of neutralising any judgment entered in Australia and sought to be enforced in the United States.93 The foreign judgment may be recognised only if the plaintiff proves in a US court that he or she would have prevailed under US law.94 It seems an odd result for international law that even if the applicable law for the defamation was Australian law, the Speech Act 2010 (US) overrides the common law choice of law for the cause of action by US statute.

Meaning 4.109 The defamatory meaning is the crux of many defamation cases. The first step in practice is for the plaintiff to identify the meanings that he or she asserts were conveyed. The test for these meanings is whether the ordinary reasonable reader would understand the matter to carry or convey the imputations complained of.

4.110 The second step is to determine whether that meaning or imputation is defamatory of the plaintiff. The test for defamation is whether the ordinary reasonable reader would tend to think less of the plaintiff by reason of the meanings or imputations conveyed.95 This is the ‘sting’ of the defamation — the accusation of an act or condition in the published matter which hurts the plaintiff’s feelings and damages (or at least has the tendency to damage) the plaintiff’s reputation. 4.111 The interpretation to be given to the published matter must be objective and according to its ‘natural and ordinary meaning’.96 It is based upon the ordinary reasonable reader’s general knowledge and experience of worldly affairs. If there is a particular knowledge which gives the published matter a special meaning, that knowledge can be relied upon to give a ‘true innuendo’97 to the matter published. The imputation (of which complaint is made) is often not expressly stated in the words used but more often implied [page 165] or inferred.98 This means that the imputation may be read only by insinuation or it may be difficult to detect. 4.112 Depending upon the form and context of the publication, reasonable minds may, and often do, differ as to the meaning of the communication. Words and images in everyday speech lack precision as to the meaning that might be understood by the person who receives them. This is particularly the case in the social media context given the frequent use of abbreviations and use (and misuse) of acronyms. 4.113 Consider, for example, the meaning of the sentence, ‘I never said she stole my money’. The sentence is capable of having seven different meanings depending on which word in the sentence is emphasised. Some of those meanings are capable of being defamatory, accusing the person of stealing, and others are not. 4.114 The meaning intended to be conveyed by the person who published the matter is not relevant to the cause of action as it depends upon the ordinary reasonable person’s level of comprehension and the ability to comprehend shades and nuances of meaning from the actual words used. Where two meanings are reasonably open, one defamatory and one innocent, or if

reasonable persons may differ as to the conclusion to be drawn, the issue as to what is the correct interpretation, or whether the imputation was in fact conveyed in the context of the publication, must be left to the trial to determine.99 4.115 The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse nor suspicious nor ‘avid for scandal’.100 There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publication in a strained or forced or utterly unreasonable way.101 It is a matter of general impression of the meaning from the words used and the ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood.102 4.116 The form of the publication may affect the interpretation that might be given. The opportunity to re-read the matter or to check back on something [page 166] means that the first impression can be reconsidered. As a result, the reader of a book is assumed to read it with more care than does the reader of a newspaper.103 By contrast, the ordinary reasonable listener of a radio program or viewer of a television program does not have the opportunity to reconsider the whole publication and check back and change first impressions.104 The form of the publication of a newspaper, its layout, headlines and use of particular terms are likely to affect the impression gained and may give the words a meaning, credibility and impact that they might not otherwise possess.105 However, a headline divorced of context and published in the form of a poster or a tweet can be defamatory even where the associated article itself is found not to be.106 4.117 The form of publication on social media is unlike most written kinds of communications but more like oral communications containing conversations. As a result, the communications are often uninhibited, casual and thoughtless. People are often anonymous or use pseudonyms so their identities will not be known to others. This creates a lack of inhibition affecting what people say in these circumstances. In its context, social media ‘conversations’ may often not be taken literally or seriously but understood as statements made

in the heat of the moment.107 4.118 The ordinary reasonable person considers the publication as a whole and attempts to strike a balance between the most extreme meaning that the words could have and the most innocent meaning.108 4.119 The publication has to be considered in its context. If a person complains about part of a publication which is qualified or altered by another part of the whole publication, the meaning is to be taken from the whole publication.109 4.120 Where a web page has links to other web pages on the internet, a reader may download and read any combination of links but the publication of one web page is complete when it is downloaded onto the reader’s computer. The plaintiff may sue upon each separate web page even where there are internal references to other material available on the same website.110 [page 167] 4.121 In Hockey v Fairfax Publications Pty Ltd,111 the question arose as to whether the defamatory meaning of the tweets was to be determined by reference to the tweets considered by themselves or whether account should also be taken of the article for which the tweets gave a hyperlink and which the judge determined in its context was not defamatory. The judge held that the greater ease by which the reader may obtain access to the article in question through the hyperlink is not a reason for concluding that all readers of the tweet will exercise that access. Some may read the tweet without going further while those upon whom the tweet had an effect may be more likely to have used the hyperlink to read more. This, however, was a matter going to damages not to liability and the judge interpreted the tweets by reference to the tweets themselves without reference to the hyperlinked article. 4.122 It is impossible to overstate the capacity for dispute about meaning in defamation cases. On the one hand, short statements may take seconds to read and yet, on the other, many hours may be spent in court at significant expense arguing over the objective meaning of the words. Two short letters which appeared in the letters columns of The Daily Telegraph would have taken no more than 60 seconds to read but took the best part of three days in court to argue a ‘minute linguistic analysis’ of every phrase used in each of the letters.112

4.123 Author Bob Ellis wrote a book entitled, Goodbye Jerusalem: Night Thoughts of a Labor Outsider. He quoted a member of the Australian Labor Party saying about Tony Abbott (then Minister for Employment Services) and Peter Costello (then Treasurer): ‘They’re both in the right wing of the Labor Party till the one woman f.…d both of them and married one of them and inducted them into the Young Liberals.’ Mr Abbott and Mr Costello and their respective wives sued Ellis and the book publisher, Random House. The wives pleaded that the passage conveyed an imputation of sexual promiscuity. The trial judge did not accept this but found that an imputation of unchastity was conveyed. On appeal, the court found that the meaning was not merely one of unchastity in the sense of pre-marital sex, but one of much grosser sexual misconduct, namely the exploitation of a sexual liaison or the prospect of it to achieve the result of changing each man’s political allegiance. 4.124 As the test is objective, what was intended by the publisher is not relevant nor is what the persons who actually read the matter believed or understood.113 This principle indicates that there is a distinction made between the actual interpretation of those to whom the matter was published and the conceptual interpretation of the ordinary reasonable person in the community whose interpretation determines the meaning for the law of [page 168] defamation. Even where the audience of the publication is restricted to a certain group, the meaning is determined by the ordinary reasonable reader in the community and not the ordinary reasonable person within the particular group to whom it is published, unless a true innuendo is pleaded that the publication has a special meaning to that group. 4.125 Although the meaning intended by the person who published the defamatory matter is not relevant to its meaning (or whether it is defamatory), the purpose of the publisher is relevant to malice and relevant to damages.

Defamation 4.126 The High Court has confirmed that the test to be applied in Australia as to whether the meaning is defamatory is whether the published matter is

likely to lead an ordinary reasonable person to think less of the plaintiff.114 Once again, as with the objective meaning of the words, the test depends upon the ordinary reasonable person applying his or her general knowledge and experience of worldly affairs. It depends upon general community standards. 4.127 It should not be taken to refer to the application by the ordinary reasonable person of moral or social standards but the application of general community standards, implying a standard of decency in a person in society who abides by its standards, values and rules, distinct from a person who does not.115 The standards which might apply will vary according to the nature of the imputation but it is determined objectively in the context of current community standards. The test does not depend for its exercise upon the existence of the standards but on the loss of reputation.116 4.128 Twitter was created in 2006 enabling text messages of up to 140 characters to be sent and read as ‘tweets’. Registered users can post tweets, but unregistered users can still read them as they are available publicly by default. Twitter allows its users to amend their privacy settings so that tweets posted by a user can be restricted as viewable by selected followers only. Despite this, if a user who is allowed to follow the person with restrictive privacy settings then retweets the original publication but does not have privacy settings, the original publication will be publicly viewable. 4.129 In one of the first significant social media defamation cases, Chris Cairns, a well–known international cricketer who represented New Zealand on many occasions, brought proceedings in the United Kingdom against Lalit Modi, the former chairman and commissioner of the Indian Premier League and vice president of the Board of Cricketing Control for India. [page 169] 4.130 Mr Modi had posted the following tweet on Twitter: ‘Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today.’ Mr Modi was contacted by the cricketing website, Cricinfo, seeking confirmation of his Twitter message, and he responded: ‘We have removed him from the list for alleged allegations (sic) as we have zero tolerance for this kind of stuff. The Governing Council has decided against keeping him on the list.’

4.131 Mr Cairns sued Mr Modi for defamation in respect of the tweet and the comment to Cricinfo. It was held that the defamatory meaning of the tweet was that Mr Cairns had fixed cricket matches while the meaning of the statement to Cricinfo was not as clear because of the garbled reference to an ‘alleged allegation’ but that it meant there were ‘strong grounds to suspect’ that Mr Cairns was guilty of match fixing. It was accepted that the tweet was received by only 65 followers within England and Wales, being the jurisdiction in which Mr Cairns sued for defamation. The second publication to Cricinfo was republished on their website for only a period of hours and it was estimated that about 1000 people read this publication.117 Taking all matters into account, the trial judge118 awarded Mr Cairns the sum of £90,000 (including £15,000 for aggravation) and this award was upheld on appeal.119 Mr Cairns was subsequently tried for perjury over the evidence he gave in the defamation trial but was acquitted. 4.132 The test of what is defamatory historically has aspects to it which involve some complexity. In some instances, material will be defamatory even if no imputation or fault is attributed to the plaintiff. For example, the suggestion that the plaintiff was so fat as to appear ridiculous as he came onto the field to play a rugby league match was held to be capable of being defamatory even though there was no suggestion of fault on the plaintiff’s part.120 4.133 The traditional test or ‘ancient formula’ of what is defamatory is that the matter ‘exposes the plaintiff to hatred, contempt or ridicule’.121 It has also been held to be defamatory if the matter tends to cause the plaintiff to be shunned and avoided without any moral discredit on the plaintiff’s part.122 This test accounts for persons who are accused of suffering from a contagious disease or stigmatised condition where no direct moral responsibility could be placed upon them. For example, the suggestion that a person was affected by mental illness could be defamatory, although that has been recently questioned.123 [page 170] 4.134 The combined formulation of these tests may, for present purposes, be stated as follows: … a matter is defamatory if it is likely to lead ordinary reasonable persons to think less of the plaintiff or is likely to expose a plaintiff to hatred, contempt or ridicule amongst ordinary

reasonable persons, or is likely to cause the plaintiff to be shunned or avoided amongst ordinary reasonable persons, even if there is no moral discredit on the plaintiff’s part.

4.135 It is also important to understand that a defamatory statement need not be proven to be untrue by the plaintiff. The onus is on the defendant to prove the truth of the defamatory statement. Further, a plaintiff does not have to show that the persons to whom the defamatory material was published do or do not believe it. In other words, for an imputation to be defamatory, it need have no actual effect on a person’s reputation. The law only looks to its tendency (or likelihood) so there is a cause of action even if the words were not believed by the audience.124 The issue is to be determined by the tendency of the matter published to negatively affect the ordinary reasonable person’s esteem for or evaluation of the plaintiff’s reputation. 4.136 The open and public accessibility of social media has made it possible to observe the habits of ordinary people in expressing themselves in everyday speech. People do not express themselves with precision as to the meaning of the words used in everyday speech. The social dynamic and the emotional charge of being able to say what one is thinking on social media results in the first thing that comes to mind being said without care and also the worst of things being said, which can be read by anyone and everyone. 4.137 Society may be in a developmental stage in terms of understanding how social media is used and what is socially acceptable. Statements are often made in the use of social media which would not be said face to face. Without seeing or hearing the reaction of the person concerned, the written word is often stated without inhibition or sensitivity. 4.138 In some instances, this behaviour may have been initially due to a lack of awareness of the extent to which matters on social media are publicly available. As people have become more aware of that fact, deliberate and sinister habits have emerged, particularly behind the mask of anonymity. 4.139 In a defamatory context the following practices have become common in the use of social media: the spreading of rumours; leaping to conclusions of guilt; the use of ridicule and humour to denigrate; and the use of vicious attacks and defamatory abuse. [page 171]

Rumours 4.140 A person who repeats or spreads a rumour is as liable as the original publisher. By passing on the rumour and giving it credence, the person implies that it is well founded or that it may be true.125 It will be no defence for repeating a rumour to say that someone else had said it first, as it is necessary for the republisher to justify the truth of the rumour in order to defend it. As previously noted, this is a significant issue in social media given the relative ease for users to republish someone else’s statements; refer to the case of Sally Bercow, discussed at [4.144]–[4.166], below.

Leaping to conclusions 4.141 The repetition of an allegation which has been made by an authority such as the police can lead ordinary reasonable persons to understand that, in its context, the person accused is guilty. Allegations or rumours, if repeated, whether they involve criminal conduct or not, need to be carefully stated because of the tendency for people to understand and believe that where there is smoke, there is fire.126 4.142 However, a statement that a person has been arrested and charged with a criminal offence is not by itself capable of conveying an imputation that the person is guilty or probably guilty of that offence.127 The ordinary reasonable reader is mindful of the presumption of innocence but will view a person under arrest with suspicion, concluding that the person is suspected by the police of having committed the crime and the police have grounds for laying a charge. As a result, such a statement imputes that the police suspect the person of having committed the criminal offence and that the person has so acted as to have warranted that suspicion and that the police have reasonable cause for having that suspicion based upon the person’s actions.128 4.143 The common law has developed three tiers of gravity of defamation reflecting the different degrees by which a person’s reputation may be damaged. At the lowest level, there are grounds to investigate whether the person committed a crime; next, there is a reasonable basis for suspicion that the person committed the crime (which would justify an arrest) or a reasonable belief that the person committed the crime based on proper material (such as

[page 172] report of court proceedings); and, at the highest level, the person committed the crime and is guilty.129 4.144 For example, Sally Bercow was the wife of the speaker of the House of Commons and had made a number of television appearances. She often used Twitter and had over 56,000 followers. In a classic example of the spreading of a rumour combined with leaping to a conclusion, she posted a tweet: ‘Why is Lord McAlpine Trending? *Innocent face*’. 4.145 Lord McAlpine was former deputy chairman of the Conservative Party and a former party treasurer. He was a close aide to Margaret Thatcher during her time as prime minister. He retired in 1990 and had lived in Italy for over 10 years out of the public eye. 4.146 The Twitter website has a screen with a box headed ‘Trends’ and lists names of individuals and other topics which are generated by an algorithm which identifies topics that are immediately popular and are ‘trending’. 4.147 Lord McAlpine sued Mrs Bercow for defamation, alleging that the natural and ordinary meaning of the tweet meant he was a paedophile who was guilty of sexually abusing boys living in care. 4.148 Mrs Bercow denied that meaning, but suggested that the question she asked in her tweet was simply a question and was as neutral as the statement on the Twitter screen itself which listed the fact that Lord McAlpine was trending. 4.149 Justice Tugendhat130 observed that if the tweet meant that Lord McAlpine had abused children, there was no dispute that that was one of the most seriously defamatory allegations which it was possible to make against a person. 4.150 In the absence of other evidence, the tweet had little meaning. There had, however, been a program broadcast on the preceding Friday night on the BBC’s current affairs program, Newsnight, which included an allegation by a man who claimed he was abused when he was living in care in Wales and that one of his abusers was a person who was ‘a leading conservative politician from the Thatcher years’. The Newsnight program did not broadcast the name of the politician who the complainant identified and said they did not have enough evidence to ‘name names’.

4.151 Between the broadcast of the Newsnight program on the Friday night and Mrs Bercow’s tweet on the Sunday following, online and traditional media reported the matter widely and repeated Newsnight’s allegations. These media [page 173] reports included a vehement denial by the former political figure without identifying him. Several politicians were named on social-networking sites as the likely subject. 4.152 The complainant was reported on the Saturday as saying that the ‘ Tory rapist told me he would kill me if I told police’. 4.153 The judge inferred that there was a substantial number of viewers who had seen the Newsnight program itself, that a very large number of people in England and Wales had read one or more of the ensuing media reports and that the people who viewed the Newsnight program and the people who had read one or more of the media reports included a substantial number of readers of Mrs Bercow’s tweet. 4.154 There was no dispute that the tweet identified Lord McAlpine because it named him. The issue was whether the tweet conveyed the defamatory meaning complained of by Lord McAlpine treating as part of the general knowledge of Mrs Bercow’s followers’ knowledge of the Newsnight broadcast and the media reporting. If not, knowledge would be exclusive to a limited number of people who may know this information by ‘extrinsic facts’ and the meaning would only be drawn by ‘innuendo’. 4.155 In order to determine the meaning, the judge applied the test of reasonableness and that was the hypothetical reader taken to be a reasonable representative of users of Twitter who followed Mrs Bercow. 4.156 It was common ground that, in the past, some Twitter users had used Twitter to identify alleged wrongdoers and others whom the traditional media had not identified when reporting a story. An example was when Twitter users identified a footballer, Ryan Giggs, who had obtained a privacy injunction in an action where he was identified in the public court papers only by the initials CTB.131 4.157

The judge observed that words may be defamatory in whatever form

they are used. A question or a rhetorical question or any other form of words may, in principle, be understood to convey a defamatory meaning. The meaning of a statement or question depends on the context. The author is not responsible for an inference drawn from neutral words unless it is one that a reasonable person would draw. 4.158 The judge also observed that if there are two possible meanings, one less derogatory than the other, whether it is the more or the less derogatory meaning that the court should adopt is to be determined by reference to what the hypothetical reasonable reader would understand in all the circumstances. It would be unreasonable for a reader to be avid for scandal and always to [page 174] adopt a bad meaning where a non-defamatory meaning was available. But, likewise, it would be unreasonable and naïve for a reader always to adopt the less derogatory meaning where a defamatory meaning was available.132 4.159 There was debate as to what the words ‘innocent face’ meant in the context. Lord McAlpine’s counsel submitted that the words were to be read as irony, as meaning the opposite of their literal meaning. He submitted that people sometimes ask a question to which they already know the answer and they may do that as an indirect way of bringing out into the open something they already know or believe to be a fact. He submitted that the reasonable explanation for Mrs Bercow inserting the words ‘innocent face’ in the tweet was to negate a neutral interpretation, and to hint, or nudge readers into the understanding that Lord McAlpine had been doing wrong. In contrast, Mrs Bercow’s counsel submitted that the words ‘innocent face’ were to be read literally and that the expression which the reader was being invited to imagine on Mrs Bercow’s face in asking the question was ‘deadpan’. It was an expression to convey that she was asking it in a neutral and straightforward manner. He claimed that it meant she had noticed that Lord McAlpine was trending and all she was asking was that someone should tell her why. 4.160 The judge held that it was not necessary for a reader of the tweet to have had any prior knowledge of Lord McAlpine as a leading politician of the Thatcher years in order for them reasonably to have linked the tweet naming him with knowledge about allegations in the Newsnight broadcast. The judge said that the tweet identified him by his title as a peer of the realm. The tweet asked

why Lord McAlpine was trending in circumstances where he was not otherwise in the public eye at the time of the tweet and there was much speculation as to the identity of an unnamed politician who had been prominent some 20 years before. 4.161 The judge held that the reasonable reader would understand the words ‘innocent face’ as being insincere and ironical. It was reasonable to infer that Lord McAlpine was trending because he fitted the description of the unnamed abuser. The reader would reasonably infer that Mrs Bercow had provided the last piece in the jigsaw. 4.162 In doing so, Mrs Bercow by implication repeated the accusation of a man who complained he was sexually abused and added the name which had been omitted from the Newsnight program. By virtue of the ‘repetition rule’ as the writer of the tweet, she was treated as if she had made, with the addition of Lord McAlpine’s name, the allegation in the Newsnight program and other media reports which had previously been made without his name. It was therefore an allegation of guilt. The judge found that the tweet meant, in its natural and ordinary defamatory meaning that Lord McAlpine was a paedophile who was guilty of sexually abusing boys living in care. [page 175] 4.163 Mrs Bercow and Lord McAlpine subsequently entered into a confidential settlement in which she agreed to apologise on Twitter: ‘I have apologised sincerely to Lord McAlpine in court — I hope others have learned tweeting can inflict real harm on people’s lives!’. 4.164 A number of others who published similar defamatory tweets suggesting his guilt also settled. One of those was Alan Davies, a panellist on the BBC’s QI program. His tweet at the time to almost 450,000 followers asked, ‘Any clues as to who the Tory paedophile is?’. He shortly after retweeted a response which named Lord McAlpine. 4.165 When threatened with action, Mr Davies tweeted an apology and subsequently agreed to pay Lord McAlpine damages and legal costs and apologised in court. 4.166 Lord McAlpine donated the damages he received to charity. His counsel said:

This case is a perfect example of the effect of recklessly retweeting a defamatory statement. There still remain people influenced by this tweet and all the apologies in the world are not going to put the situation back to where it was. Whilst Lord McAlpine accepts Mr Davies’ apology, he and his family have been caused immeasurable distress which cannot be rectified. The fact of the matter is that Mr Davies has irresponsibly fanned the work of the Internet trolls who, despite soundbites and promises from the government, seem to be able to act with impunity from prosecution.

4.167 Leaping to conclusions is an everyday event. We typically form conclusions without having all the facts and reach unwarranted conclusions when reading the news or observing others’ conduct. One makes inferences and assumptions in forming such conclusions, but when expressing a conclusion in social media it must be understood that it is a risk with potentially serious consequences. If the conclusion is wrong, a mistake has been made and there is likely to be no defence to the defamatory imputation published. The more prudent course is to seek, if one can, more information or seek clarification of one’s inference or assumption from the person concerned, before expressing the conclusion.

Ridicule 4.168 A statement which is humorous may still be defamatory if it is understood as defamatory by the ordinary reasonable person. As referred to earlier, the test of whether the publication is defamatory is whether the matter is likely to lead an ordinary reasonable person to think less of the plaintiff. This test had traditionally been formulated in earlier times as whether the matter exposed the person to ‘hatred, contempt or ridicule’.133 [page 176] 4.169 Facebook was established in 2004 but was preceded by ‘Facemash’, which was set up to rate the attractiveness of Harvard University students. Mark Zuckerberg uploaded photographs of students from their college facebooks and placed them side by side. The user was asked who was ‘hotter’, with the comment, ‘Were we let in for our looks? No. Will we be judged on them? Yes.’ More than 450 signed up to view the images and rate them, logging 22,000 page views in two days. Zuckerberg did not expect the reaction, noting that ‘people are more voyeuristic than what I would have thought’. This was 2003. Fortune Magazine commented: ‘There may be a new kind of internet emerging — one

more about connecting people to people, than people to websites.’ 4.170 Zuckerberg faced expulsion for breach of privacy and copyright but not for defamation. The presentation of a photograph of a person without the person’s consent is not usually defamatory in itself but the placement of it alongside another person’s photograph with a rating of ‘not hot’ carries the risk of being held up to hatred, contempt or ridicule.134 Plaintiffs have brought proceedings where they have been called ‘fat’135 or ‘ugly’136 and the borderline as to what is defamatory in ridicule cases is often difficult to define. 4.171 Even if the ordinary reasonable person would understand that the matter was not to be taken literally but was plainly intended as a joke, it is not correct that it will be incapable of being defamatory, whether it is facetious or offensive.137 The critical question is what the joke says about a person and whether what is said is defamatory. 4.172 A judge has observed that humour is notoriously subjective, as captured in the quote by Mel Brooks: ‘Tragedy is when I cut my finger. Comedy is when you fall in an open sewer and die.’138 Whether the publication can be characterised as a joke which is incapable on that basis of being understood in any defamatory sense is essentially an evaluative judgment and one informed by social context and community values.139 4.173 Nicole Cornes was married to a well-known South Australian AFL footballer, coach and commentator. She wrote a column in The Sunday Mail newspaper in which she praised another AFL footballer, Stuart Dew, for his decision to give up his football career to be with his girlfriend. She described his sensitivity, chivalry and masculinity and, in her praise for him, she said, ‘I fell for Mr Dew when he told me how he tended his rose garden …’. [page 177] 4.174 Some years later after the relationship with the girlfriend was over, Mr Dew was interviewed on Channel Ten for a television program, Before the Game. One of the panel raised the fact that Nicole Cornes had written the article saying that she loved him because he had a rose garden and tended his roses, at which point another panel member said ‘and apparently you slept with her too’. 4.175 Although Channel Ten contended that the meaning of the words was a joke and not to be taken seriously, the court held that the ordinary reasonable

viewer would have understood the meaning to be that Mrs Cornes willingly had consensual sexual intercourse with Mr Dew, and that, at the time of the interview, a substantial proportion of viewers knew or believed that she had been married to Mr Cornes so that the sexual intercourse had occurred at a time when she was married and therefore was unfaithful to her husband and had committed adultery. The court awarded damages in the sum of $85,000.140 4.176

It is relevant in this context that the trial judge considered whether:

(a) the statement was seriously intended in every respect (ie, as a statement of fact or alleged fact, and no more); (b) the statement was a joke about a true fact (or which carried an implied statement of fact); or (c) the statement was a joke involving reference to a nonsensical fact or statement. 4.177 The judge observed that if a statement was understood as a joke, then (a) would not be applicable. If the statement is a joke about a true fact, then in respect of (b), it will be up to the defendant to prove the truth of that statement of fact. If it comes within (c), it may be argued that the matter is devoid of meaning, but matter published for the purpose of having a joke may nevertheless be defamatory if it is understood by the ordinary reasonable person as making a defamatory statement of fact.141 4.178 If the defamatory statement is an expression of opinion, for the purpose of having a joke, it will be up to the defendant to establish the defence of honest opinion if it is available. 4.179 In Smith v Lucht,142 Brett Smith was a solicitor in Queensland who agreed to act for his daughter-in-law in family law proceedings against her former husband, Kenneth Lucht. The plaintiff claimed that the defendant had defamed him by calling him ‘Dennis Denuto’ in an email to the plaintiff’s daughter-in-law and during two conversations with members of the plaintiff’s family. [page 178] 4.180 Dennis Denuto was a lawyer in the popular Australian film, The Castle, relating to the story of Dale Kerrigan and his family’s fight against the

compulsory acquisition of their home. Dennis Denuto was the Kerrigan’s lawyer, who appeared in the film as incompetent and unprofessional, making his submission to the court that it was ‘the vibe’ that supported his client on a constitutional issue. 4.181 The judge held that the meaning of the words ‘Dennis Denuto’ would include by implication or inference the defamatory imputation that the plaintiff was an incompetent and unprofessional solicitor.143 The judge dismissed the plaintiff’s claim on the basis that it was a trivial matter protected by s 33 of the Defamation Act 2005 (Qld) but held that, if damages were awarded, $10,000 including interest was reasonable.144

Abuse 4.182 A substantial amount of material on social media is abusive and offensive. 4.183 In a case, AB Ltd v Facebook Ireland Ltd,145 involving a campaign of a series of gratuitous and malicious slurs, consisting of both words and images posted by the defendants on Facebook, the trial judge observed:146 It is indisputable that social networking sites can be a force for good in society, a truly positive and valuable mechanism. However, they are becoming increasingly misused as a medium through which to threaten, abuse, harass, intimidate and defame. They have become a source of fear and anxiety. So-called ‘trolling’ appears to be increasingly common place. There is much contemporary debate about evil such as the bullying of school children and its potentially appalling consequences. Social networking sites belong to the ‘Wild West’ of modern broadcasting, publication and communication … The misuse of social networking sites and the abuse of the right to freedom of expression march together. Recent impending litigation … confirms that, in this sphere, an increasingly grave mischief confronts society.

4.184 Words can be abusive, vulgar or objectionable without being defamatory. Words might injure a person’s pride without injuring his or her reputation.147 Where the ordinary reasonable person understands the statement as being ‘vulgar abuse’, it is not capable of being defamatory. 4.185 Whether abusive words are capable of conveying a defamatory meaning depends on the usual tests of whether the matter is likely to lead an [page 179]

ordinary reasonable person to think less of the plaintiff (and, as indicated in the previous section, whether it has the tendency to hold the plaintiff up to hatred, contempt or ridicule). 4.186 There is not a dichotomy between vulgar abuse and matter which is defamatory.148 There will be instances in which the position is clear enough to conclude that abusive words are incapable of conveying any defamatory meaning. The Frenchman’s taunt in the Monty Python film, The Holy Grail — ‘Your mother was a hamster and your father smelt of elderberries’ — is obviously incapable of being defamatory.149 4.187 In one case, a defendant posted on Facebook about the plaintiff: ‘You are a lying, cheating, stealing, selfish, incredibly negative, self-pitying, bad person. Susan deserves better than you and you deserve to have no friends.’ The plaintiff pleaded an imputation that he ‘is a person who deserves not to have any friends’. The defendant argued that this was mere vulgar abuse and that the imputation was bad in form as it did not specify any defamatory act or condition attributable to the plaintiff. While the judge considered that vulgar abuse was not incapable of being defamatory on that account alone, her Honour struck out the imputation as bad in form on the basis that it was a conclusion saying what the plaintiff deserved without saying why.150 4.188 The form of communication on social media lends itself to vulgar abuse and statements made in the heat of the moment.151 Even if they are found to be defamatory, they may, in the circumstances of the publication, be regarded as trivial for which a statutory defence is available. 4.189 In England, a Facebook page was set up to promote an 18th–century coach inn known as The Bell. When there was a falling out between the owner of the inn and a former worker who had set up the Facebook page, the worker rebranded the page, ‘Toad of Bell Enders — How Not to Run a Cotswold Pub’, and called him ‘Toad of Toad Hall’. The Facebook page had over 100 members and the owner became the subject of a torrent of ‘offensive and salacious’ abuse which included false allegations about his competence, sobriety and sexual impropriety. He was awarded £9000 damages.152 4.190 In Piscioneri v Brisciani,153 the plaintiff was a solicitor who was an acquaintance of the jury foreperson in a criminal trial against Bilal Skaf and others who were charged with several counts of aggravated sexual intercourse

[page 180] without consent in New South Wales. Following the trial and convictions of the accused men, the foreperson disclosed to the plaintiff that he and possibly other members of the jury had conducted a view of the crime scene after having been directed by the trial judge not to do so. The plaintiff reported this to the court and the convictions were quashed, with a retrial ordered. 4.191 A forum was started on the website which provided a medium for discussion about the plaintiff and her conduct in reporting the jurors. The website carried a number of threads and posts which were extremely abusive towards the plaintiff. The court accepted that viewers may only view and contribute to an online discussion at different stages and would thus have access only to the material published prior to the time they accessed the forum. It was more difficult to determine what the ‘context’ was surrounding internet publications compared to other more traditional forms of publications, such as newspaper articles. The context of a newspaper article is static, whereas the tone and content of the discussion contained in the ‘bitching and rants’ forum developed as each responding post was published, meaning that the context of the discussion was constantly changing with each new post. 4.192 In this case, while the posts were clearly written in language that was vulgar, abusive, offensive and derogatory, the court also found that they were defamatory. The posts conveyed serious imputations of unethical conduct against the plaintiff and implied that she was at fault for the so-called consequences of her actions, being the reduced sentence ultimately imposed on the offenders in the Skaf trials. Accordingly, the ordinary reasonable reader of the forum would not understand it to constitute mere abuse against the plaintiff but rather they would understand the material to seriously call into question the ethics and actions of the plaintiff and expose her to hatred, ridicule and contempt.154 The plaintiff was awarded $82,000, including aggravated damages and interest.155

DEFENCES 4.193 A defendant has a range of defences available to justify or excuse a defamatory publication. In essence, the defendant must show that the defamatory publication was justified or true, or was excused on some legitimate

basis such as it was published on a privileged occasion, or was an expression of opinion related to a matter of public interest. 4.194 There is also a range of miscellaneous defences which would, in certain circumstances, excuse the defamatory publication. These include innocent dissemination, triviality and time limitation. [page 181]

Truth 4.195 It is a defence to the publication of defamatory matter if the defamatory imputations are substantially true.156 The law considers that the truth stated about a person’s reputation which is defamatory but true will lower the reputation to its proper level and does not damage it.157 It is not sufficient to prove the truth of the literal meaning but necessary to prove the truth of the defamatory imputations. Slight inaccuracies of detail will not affect the substance of the defamatory accusation if it is true.158 4.196 Truth in this context is dependent upon facts, distinguished from opinion, and provable by admissible evidence in court. Social media relates to the interaction or communication of people, which involves more often the exchange of opinion and thoughts rather than provable statements of fact. Underlying the opinion, however, will often be a statement of fact on which the opinion is expressed. In order to defend defamatory statements of fact, it will be necessary for a defendant to show that the statements of fact are true. 4.197 The immediacy and availability of social media 24 hours a day means that information is communicated at any given moment which may make it indefensible as truth at a later time. This phenomenon has affected the reporting of news in a number of ways. People using social media may be eye witnesses of events, the news of which can be transmitted by instant photos, videos or verbal accounts before the traditional media organisations have collected the information, checked the facts and presented the news in a responsible and reasonable way. Users of social media may show no such responsibility and, in the immediacy of the moment, often exercise none. 4.198 After the Boston Marathon bombing in 2013, Twitter users in particular rushed to identify the Boston bombers and defamed a number of

people in doing so without any justification. The rush to find the guilty sacrificed truth and credibility in the information posted. The constant shifting of the information and allegations in real time by any number of social media users carries a significant danger for society of not only people being defamed but in placing institutions at risk. The clearest example was when the Twitter account of Associated Press was hacked and tweets were issued suggesting that the White House had been bombed and President Obama injured. Immediately, the Dow Jones Industrial Average slumped until the news was corrected. 4.199 The news as traditionally provided involves collecting the information, checking it for reliability and reporting it responsibly. Journalism as we have known it has changed. [page 182] 4.200 Breaking news is now the domain of social media. There is no restraint and if a defamatory imputation is published, there are many who will assist to identify and expose the guilty without taking care whether the information is true or false. This may be behaviour in which people have engaged in the privacy of their own homes but social media makes it public and seriously damaging to the reputations of those affected. 4.201 In some instances, a plaintiff may complain that something defamatory has been published about him or her but not complain about the more obvious defamatory statement contained within the publication. 4.202 The law provides a statutory defence known as contextual truth. Where a publication contains two or more separate and distinct defamatory meanings, the plaintiff is entitled to sue on one and not necessarily sue on the other but a defendant can assert that the other (contextual) meaning is substantially true and, for that reason, the meanings complained of by the plaintiff did not further harm the reputation of the plaintiff.159 4.203 Prior to the statutory defence of contextual truth, the common law did not allow a defendant to prove the truth of an imputation not sued on by the plaintiff in the defence. 4.204 Hans Speidel was a Nazi general during the Second World War. He later became the first German NATO commander during the Cold War and was portrayed in an East German film, Operation Teutonic Sword, as being involved in

the murder of King Alexander of Yugoslavia and betraying Field Marshall Rommel to the Gestapo after the attempt to assassinate Hitler. 4.205 General Speidel sued the distributors of the film in the United Kingdom for these imputations but did not sue for imputations that also conveyed he was guilty of war crimes and atrocities which included that he shot civilians, deported Jews to concentration camps and committed war crimes during the retreat of the German armies from Russia. 4.206 The defendant sought to rely upon these imputations in mitigation of damage, saying, ‘even if we did falsely accuse the plaintiff of being a murderer, can his reputation be worth much if he is prepared to sit down under a charge of being a war criminal and make no complaint about it?’. The House of Lords struck out the defendants’ plea in mitigation on the basis that the defence of truth had to be directed to the imputation complained of.160 4.207 Although the various state and territory Defamation Acts are uniform, the applicable procedural rules vary from jurisdiction to jurisdiction, including in relation to the availability of a particular species of common law [page 183] contextual truth defence.161 In Victoria, unlike New South Wales, a defendant is not restricted to the pleaded imputations, but can plead their own version of imputations not substantially different from the imputations pleaded by the plaintiff. The defendant can then seek to prove the substantial truth of the alternative imputations at trial.162

Privilege 4.208 Even if a defendant cannot prove that the defamatory imputations are true or there are more damaging imputations contextually which are true, a defendant can claim the publication was privileged, where applicable, on the basis of the defence of absolute privilege,163 which applies to parliamentary proceedings and judicial proceedings and the like, or the defence of qualified privilege, which applies to the occasion on which the publication occurs or the reasonableness of the conduct of the defendant in making the publication.

4.209 Where a defendant relies upon qualified privilege at common law, the defence must establish that the occasion was one where there was a duty to publish to a person who had a corresponding duty or interest to receive it, which takes into account all of the circumstances in which the communication was published, but the content of the communication must be relevant, germane or sufficiently connected to the occasion or subject matter of the communication. Even if it was published on such an occasion, where the occasion is misused or used for an ulterior or extraneous purpose, the defence will be excluded because of the presence of malice.164 4.210 For example, a police officer who has the duty of preserving the peace and preventing and investigating the commission of criminal offences will be protected by qualified privilege at common law where he or she makes statements to persons in the course of investigating acts of domestic violence in the exercise of their duties as a police officer. Persons receiving the information have an interest in knowing what is being investigated in order to provide information which might assist the investigation.165 4.211 In Ives v Western Australia,166 a woman attended Perth Police Station one New Year’s Eve and complained that she had a violence restraining [page 184] order against a Mr Ives and that Mr Ives had posted words on a social media site, , threatening her. One of the posts referring to the violence restraining order said, ‘BUT SOMETIMES AFTER WHAT SHE DID I JUST WANT TO KILL HER !!!! I WANT TO BEAT UP HER BODY AND SMASH HER TO PIECES AND MAKE HER REGRET EVERY THING!!!!!!!!!! … and if I get the chance I am going TO FORCE HER INTO MY CAR AND RAPE HER!’. 4.212 The next post included, ‘THE COPS ARE DEAD MEAT IF THEY TRY TO KEEP US APART!!! I will get a gun, and I will hold up a bank, and with the money I will buy another gun and go and shoot her front door down and TAKE HER FOREVER TO MY PLANE.’ 4.213 A sergeant went to the house shown on the police database to be Mr Ives’ last known address. It was the home of Mr Ives’ parents and he was not living at that address. The sergeant spoke to Mr Ives’ mother and others at the

house (in the presence of children) and conducted a search of the house. 4.214 Mr Ives brought defamation proceedings alleging that the sergeant had said to those at the house that he had sent a threatening email to a female who had a violence restraining order against him and that the email included threats to rape, murder and chop her into pieces. The court held the statements made by the sergeant were made on an occasion of qualified privilege and were relevant to the occasion and were not excessive. It held that it was reasonably necessary for the sergeant to inform those persons at the address of the subject matter of the alleged threatening email so as to make them aware of the seriousness of the complaint and to encourage them to assist in the investigation. 4.215 It is relevant to the case that Mr Ives said he wrote the social media posts in jest and did not intend for them to be taken seriously. The email had not been sent to the woman concerned but was sent to another person whose account on might be viewed by anyone whom he or she allowed to have access to the account. In other words, they were part of what might be viewed as a conversation between Mr Ives and that person. The trial judge considered that the words in isolation may well expressly constitute a threat but when considered in the context of the circumstances in which they were uttered, he held they were not. He observed that statements of this kind may be made in the heat of the moment, in extreme emotional circumstances, as part of a stream of abuse where they have no meaningful content. They may be uttered in anger, in jest or as a means of expressing embarrassment. 4.216 The trial judge found that, viewed objectively in context and having regard to the circumstances in which they were written, the words written by [page 185] Mr Ives did not amount to a threat to rape and murder the woman and chop her into pieces. In his evidence, Mr Ives had said: 167 One evening in jest I decided to make light of the anonymous character (to whom the post was sent) who was portraying him/herself to be the devil, and sarcastically affirmed his accusations/insinuations in an obviously exaggerated manner, and made it clear that the postings were mocking, sarcastic and comedy writings. I am still proud of the creativeness of some of the humorous writings … I felt highly amused at the comments and thought they were hilarious. My closing statement on that blog post was an admission that the writings were comedy.

4.217 In the context of social media, it is relevant to examine the terms and conditions on which users register for any particular website platform. The registration process by which a user agrees to the terms and conditions of Twitter, for example, is relevant in relation to the defence of qualified privilege at common law. Those people who register to follow a person’s tweets do so in circumstances where it may be said that the occasion of the communication may amount to one where there was a duty to publish matter to a follower who had a corresponding duty or interest to receive it. In these circumstances, the ‘common convenience and welfare of society’ may entitle the communication to be subject to the defence of common law qualified privilege.168 4.218 The privilege is ‘qualified’ because it may be defeated by evidence of malice, where the occasion has been used by the defendant to publish the matter for a purpose other than that for which the privilege is given. The law will accept honest mistakes being made in publishing matter which is untrue but will not protect untrue statements when they are made with an improper purpose, and this may be inferred from the defendant’s knowledge that the statements were untrue or where the defendant was recklessly indifferent to their truth or falsity.169 4.219 In Australia, the common law defence of qualified privilege has been extended by the High Court in Lange v Australian Broadcasting Corp (Lange).170 The Lange defence is available for publications to members of the Australian community with an interest in receiving matters of ‘government and political discussion’. This is a broad category of discussion but requires the publisher to act reasonably prior to publication. Reasonableness will include a number of factors, such as whether the publisher had reasonable grounds for believing [page 186] the defamatory imputations were true, took steps as were appropriate to verify the accuracy of those imputations prior to publication and has sought and published the response from the person defamed unless to do so was impracticable or unnecessary.171 4.220 The defendant may also rely upon statutory qualified privilege172 where the recipient had an interest or apparent interest in having information on the subject-matter, the matter was published to the recipient in the course of giving him or her information on that subject and the conduct of the publisher

in publishing that matter was reasonable in the circumstances. 4.221 What may be reasonable depends upon such matters as: whether the extent to which the matter published was of public interest or related to the performance of the public functions or activities of the person complaining; the seriousness of the defamatory imputations conveyed; the extent to which the matter published distinguished between suspicions, allegations and proven facts; the sources of the information in the matter published and the integrity of those sources; whether the matter published contained the substance of the complainant’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the complainant; any other steps taken to verify the information in the matter published; and any other circumstances that a court considers relevant. 4.222 A different form of privilege applies in relation to fair and accurate reports of proceedings of public concern.173 This includes reports of proceedings in parliament, court or public meetings. This defence can be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

Opinion 4.223 A defence is available where the defendant can prove that the publication was an expression of opinion relating to a matter of public interest and based upon proper material, being truthful factual material or matters of contemporary history or notoriety.174 The proper material on which the opinion is based should be expressed or sufficiently indicated in the matter published or be publicly known as a matter of contemporary history or notoriety. Such facts must be proven to be true175 and, if they are defamatory [page 187] in themselves, defended under the justification defence.176 The defence of honest opinion can be defeated if the plaintiff proves that the opinion was not honestly held by the defendant at the time the defamatory matter was published. There are related defences for expressions of opinions by an employee or agent of the defendant or where the opinion was expressed by a third party

commentator. 4.224 In McEloney v Massey,177 the defendant made certain statements about the plaintiff on a Facebook page called ‘Poms in Perth — Australia (WA)’. She posted, ‘Whatever you do, DO NOT use Barry McEloney accountants in Joondalup for your tax return. The man is unprofessional, rude and obnoxious. These people are supposed to provide a service and his is anything but’. Fourteen people ‘liked’ this comment. The home page indicated there were 9595 members of Poms in Perth. The defendant made a number of further posts which resulted in further comments from other people. 4.225 Following the decision in Piscioneri v Brisciani,178 where the court held that defamatory statements made as part of a thread of posts on a particular topic on a website should not be read in isolation but together with other posts made on that topic, all the defendant’s comments had to be considered as one thread of posts and each could not be read in isolation. Further, comments made by other people could not be relied upon to balance or mitigate what the defendant posted.179 4.226 In Piscioneri v Brisciani, the court held that all the comments posted with regard to the particular topic had to be considered, particularly in light of the fact that they all appeared on the forum within a short period of time and the entire thread was not excessive in length. In this case, the judge held that the statements gave rise to an expression of honest opinion. Any ordinary reasonable reader taking a meaning or imputation from the words used on this Facebook page would have realised that this was a forum for members to provide advice and assistance to other migrants who had newly arrived from the United Kingdom and that posts on this site were likely to involve a large measure of personal opinion and accounts of personal experiences, views and suggestions. 4.227 The defendant had employed colourful language, using words such as ‘clown’ and ‘shark’, which the ordinary reasonable reader of the Facebook page would have understood to mean that she was expressing her opinion about her specific dealings with the plaintiff. The court can take judicial notice that people who exchange comments on a Facebook page or similar blog on the internet often write in half sentences, with abbreviations, keep [page 188]

their comments brief and use colloquial language. It is a different manner of communicating than writing a letter or a report in a newspaper.180

Innocent dissemination 4.228 It has been held in the United Kingdom that a person who merely plays a ‘passive instrumental role’ in the transmission and caching of information will not be liable for publication of defamatory material unless they have knowing involvement in the process of publication of the relevant words.181 For example, the display of a ‘snippet’ from a Google search engine was not sufficient to amount to publication by the operator, where no human input was involved, and the role played was that of a facilitator rather than a participant in the publication.182 Even if the search engine operator became aware of defamatory material carried by it, and it had a ‘notice and take down’ procedure, a delay in doing so may not establish liability for publication on the basis of authorisation, approval or acquiescence in the United Kingdom.183 Website operators who facilitate user content now may have a statutory defence in such circumstances under s 5 of the Defamation Act 2013 (UK). 4.229 The role of the intermediary must be looked at closely to determine whether it is a purely passive role or whether it is a secondary publisher facilitating publication in a manner analogous to a distributor which may be entitled to rely upon the common law defence of innocent dissemination as well as statutory defences. It may be difficult to establish such defence if it has the power to prevent continuing publication after notification and chooses not to exercise that power.184 4.230 In Tamiz v Google Inc,185 the English Court of Appeal held that if Google Inc allowed defamatory material to remain on a blog after it had been notified of the presence of that material, it might be inferred to have associated itself with or to have made itself responsible for the continued presence of that material on the blog and therefore to have become a publisher of the material. Such inference could not be properly drawn until Google Inc had had a reasonable time within which to act to remove the defamatory material. In that case, the period between notification of the complaint and removal of the material was over five weeks and, while the judge at first instance described the response as ‘somewhat dilatory but not outside the bounds of a reasonable response’, the

[page 189] Court of Appeal considered that it was open to argument that the time taken was sufficiently long to leave room for an inference adverse to Google Inc.186 4.231 However, in Australia, any person who might be described as in ‘any degree accessory’ to the publication is liable in defamation and includes all participants in and enablers of the dissemination of defamatory matter, subject to the defence of innocent dissemination available to distributors.187 4.232 Where the circumstances of the publication are such that the defendant’s participation was limited, a statutory defence of innocent dissemination may be available188 or where the defendant is an internet service provider (ISP) or internet content host (ICH), a statutory defence may be available.189 4.233 The statutory defence of innocent dissemination under s 32(1) of the Defamation Act 2005 depends upon proof that the defendant published the matter in the capacity of a subordinate distributor, and that the defendant neither knew nor ought reasonably to have known, that the matter was defamatory and the defendant’s lack of knowledge was not due to any negligence on the part of the defendant. 4.234 The term ‘subordinate distributor’ is defined in s 32(2) of the Defamation Act 2005 as a person who is not the first or primary distributor of the matter, was not the author or originator of the matter and did not have any capacity to exercise editorial control over the content of the matter before it was first published. The following are deemed not to be primary distributors: newsagents; librarians; retailers; postal services; printers; broadcasters of a live program; providers of services consisting of the processing or distributing of an electronic medium in which the matter is recorded; or the operation of the system or service by means of which the matter is retrieved or made available in electronic form. It extends to the operator or provider of access to a communication system by means of which the matter is transmitted or made available by another person over whom the operator has no effective control. 4.235 In Trkulja v Google Inc LLC (No 5),190 Google Inc submitted that it was entitled to rely upon the defence of innocent dissemination on the basis that it did not have notice of the defamatory content of the material but the court found that it was open to the jury to conclude it did have notice and that, to rely

upon the defence, it had to establish not only that it did not know the matter was defamatory, but also that it ought not reasonably to have known of that matter and that such lack of knowledge was not due to any negligence on its part.191 [page 190] 4.236 An ISP or ICH can defend a matter under the Broadcasting Services Act 1992 (Cth) where it can show it was not aware of the nature of the internet content, or it would be required to monitor, make enquiries about or keep records of internet content hosted or carried.192 In this context, internet content excludes email. The ISP or ICH bears the onus of proving the lack of awareness of the nature of the internet content and liability arises from being aware or being made aware and not removing the internet content.

Triviality 4.237 A statutory defence of triviality exists where the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to suffer any harm.193 There are two significant elements to this defence: the circumstances of publication and whether, because of those circumstances, the plaintiff was ‘unlikely’ to suffer ‘any’ harm. This is a high threshold and, because of the multiplicity of publications on social media, will be difficult to establish. 4.238 The circumstances will depend upon the facts relevant to each publication and are particularly applicable to publications of limited extent or where the knowledge of the plaintiff’s reputation by the persons to whom the publication was made would lead to the plaintiff not being likely to suffer any harm. Where the publication was made to only two members of the plaintiff’s family with whom the defendant was in dispute, and they were able to make their own assessment of the imputation, the circumstances of publication were held to be such that the plaintiff was unlikely to sustain any harm to reputation.194 Where the publication is to a vast number of unknown people whose knowledge of the plaintiff’s reputation would be unknown, it is unlikely the defence would be available.195 4.239

The important factor is that the circumstances must be such that they

operate to establish a causal relationship that the person defamed is not likely to suffer any harm. The requirement does not amount to a need to prove that the plaintiff’s reputation did not in fact suffer harm at all.196 It is a question of likelihood. A relevant circumstance is whether there is a chance of republication where the content of the matter bears a likelihood of harm. This is particularly relevant to the ‘grapevine effect’ and the fact that an allegation is likely to be repeated from person to person indicates a risk of repetition relevant to the circumstances of causing harm to a potentially larger audience than those to whom it was actually published.197 [page 191] 4.240 Importantly, the various aspects of publication must be considered. It has been suggested that a blog arguably might be considered circumstances in which the contents shared would not be viewed seriously. Communications through social media, for example, often lack the formality and careful consideration that were once thought to mark the distinction between the written and spoken word. The very purpose of social media is to enable people to communicate instantaneously, often in a language that is blunt in its message and attenuated in its form. That will affect both what is regarded as defamatory and the potential for harm.198 4.241 It has also been observed that, where there are a number of communications on social media which involve a ‘thread’ such as in an online bulletin board, they are rather like contributions to a casual conversation, the analogy being drawn with people chatting in a bar, which people simply note before moving on and that such conversations are often uninhibited, casual and not well thought out. Accordingly, those who participate in the conversation know this and expect a certain amount of repartee or ‘give and take’. People who read these communications do not often read through the ‘thread’ but rather tend to read the remark, make their own contribution if they feel inclined and then think no more about it.199 In these circumstances, people say the first thing that comes into their heads and react in the heat of the moment. The statements are often not intended to be taken as serious.200 4.242 However, such a benign view of the social media conversation overlooks the intensity of the damage to reputation that can be caused by a defamatory statement and the ease and speed with which it can be disseminated

by social media. There is a difference between the view that comments made on social media are transitory and soon forgotten and unlikely to cause any harm, and the view that such comments, conveyed by the speed and extent of republication on social media to persons unknown and the permanence of the remark, which can be revived through powerful and far-reaching search engines at any future time, are likely to cause substantial harm. 4.243 Stories of a scandalous nature have the capacity to ‘go viral’ on social media, particularly for persons in the public eye, and the likelihood of harm in the circumstances of publication is substantial.201 4.244 This also carries the risk of contributions by others anonymously on social media who may intensify the gravity of the imputations with their contributions and increase the harm suffered. [page 192] 4.245 Tweeting or sharing matter on Facebook is not like a dinner-party conversation which can be contained and restricted to those present. The potential extent of publication in any given social-media defamation case by the multiplication of each republisher’s friends or followers may make this defence difficult to sustain. 4.246 It may be observed that, with social media, it sometimes may be preferable to contact the internet intermediary with a takedown request rather than contacting the author and threatening to sue for defamation, particularly if the author may react to any threat by spreading the publication further. 4.247 It is relevant in this context that an intermediary that receives notice of defamatory material at some time after the date of publication may rely upon this defence on the basis that there would not be any significant number of readers who will access the publication after that time and prior to removal, such that any damage to a complainant’s reputation arising out of continued publication during that period may be trivial.202

Time limitation 4.248

In Australia, the limitation period for defamation actions is one year

from the date of publication of the matter complained of.203 The court must extend the limitation period to a period up to three years from the date of publication if it is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from the date of publication.204 However, the plaintiff’s burden of proving that it was not reasonable to commence proceedings within the limitation period is difficult to overcome in practice unless there are some unusual circumstances; for example, that the plaintiff was unaware of the publication.205

Offer of amends 4.249 The objects of the Defamation Act 2005 include the intention to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.206 4.250 Part 3 of the Defamation Act 2005 sets out provisions for resolution of disputes without litigation and provides a mechanism by which an offer can be made to an aggrieved person to make amends after receiving a notice of concern about the alleged defamatory imputations. [page 193] 4.251 The offer is deemed to be made without prejudice. There are a number of specific requirements which must be met in order for a legitimate offer to be made. Amongst other things, the offer must identify the particular defamatory imputations to which it relates and must include an offer to publish a reasonable correction and an offer to pay the expenses reasonably incurred by the aggrieved person. It may include an offer to publish an apology and an offer to pay compensation.207 4.252 Acceptance of the offer amounts to an agreement to settle the aggrieved person’s complaint. If an offer is not accepted, it can be a defence to the action if the publisher made the offer as soon as practicable after becoming aware that the matter published was or may have been defamatory, if the publisher was ready and willing to carry out the terms of the offer and if, in all the circumstances, the offer was reasonable.

REMEDIES FOR DEFAMATION 4.253 General damage to reputation is presumed to be the natural and probable consequence of a defamatory publication.208 There is no need for a plaintiff to show actual loss.209 The damage is measured in money terms by way of compensation, but money is an imperfect remedy in most instances to repair the harm done to a person’s reputation. The compensation is also intended to vindicate the person’s reputation in the eyes of the general community and compensate the person for the distress and insult felt. This is commonly shown through evidence given by those who know the person and have observed the person’s mood and demeanour after the defamatory statement came to the person’s attention.

Purpose 4.254 The purposes therefore of an award of damages for defamation, in the absence of any claim for economic loss, are as follows: (a) consolation for the personal distress and hurt caused to the plaintiff by the publication; (b) reparation for the harm done to the plaintiff’s personal and (if relevant) business reputation; and (c) vindication of the plaintiff’s reputation.210 [page 194] 4.255 The High Court has observed that the three purposes overlap considerably in reality and the amount of damages is the product of a mixture of inextricable considerations. The first two purposes are frequently considered together and constitute consolation for the wrong done. Vindication looks to the attitude of others to the plaintiff, and the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff’s reputation, or the minimum necessary to ‘nail the lie’. The gravity of the libel, the social standing of the plaintiff and the availability of alternative remedies are all relevant to assessing the quantum of damages necessary to vindicate the plaintiff.211 A plaintiff is entitled to damages because of the injury to reputation,

simply by being publicly defamed.212

Amount 4.256 The amount must be sufficient to convince a reasonable bystander that the statements made about the plaintiff are baseless.213 4.257 The maximum amount that may be awarded in the absence of economic loss is capped by the legislation and, from 1 July 2015, was $376,500 (and adjusted for inflation each year).214 4.258 The cap applies to the whole claim in the proceedings even if the plaintiff has been successful in respect of two or more separate publications.215 4.259 The measure by which general damages are awarded relates to the gravity of the imputations, the extent of publication and the need to restore the plaintiff’s reputation in all of the circumstances. 4.260 The awards are made under the Defamation Act 2005 by judges, even in those jurisdictions where juries are still used to determine issues relating to liability.216 4.261 In determining the amount of damages, the court should ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.217 [page 195] 4.262 Regard may be had to awards in other actions for defamation, but these other awards may be confusing and not a reasonable comparison.218 The amount awarded should reflect the effect which the particular defamation has had on the particular plaintiff. As a result, drawing comparisons between awards is apt to mislead.219 4.263 Significant awards of damages have, however, been made where the claim has been made against two defendants in the proceedings and separate verdicts entered but cumulatively the awards have reached $350,000220 and $325,000.221 4.264

A number of awards, since the introduction of the Defamation Act

2005, have exceeded $200,000. The cases brought by Michael Trkulja against Yahoo Inc and Google Inc resulted in awards of $225,000 and $200,000, respectively. Mr Trkulja brought proceedings against Yahoo! Inc LLC and Yahoo!7 Pty Ltd222 for publishing an article about him which remained on the internet between January and December 2009. The article was available to be viewed by any person who accessed the defendants’ search engine and searched the plaintiff’s name. The page on which the article appeared was entitled ‘Melbourne Crime’. The jury found that the article conveyed imputations that Mr Trkulja was so involved with crime in Melbourne that his rivals had hired a hit man to murder him, and that he was such a significant figure in the Melbourne criminal underworld that events involving him were recorded on a website that chronicles crime in Melbourne. The imputations conveyed were serious. The publication of those imputations, the trial judge found, could only have caused considerable damage to the reputation of the plaintiff who was otherwise held in good repute throughout the community. 4.265 The defendant submitted that the article could only have been accessed through the defendants’ search engine by persons who specifically wished to know about the plaintiff. This, it was submitted, was unlike the print or live media where it would have been read or heard by the world at large. As a result, publication of the article was necessarily restricted. 4.266 The trial judge took into account as a matter of judicial notice that the use of the internet to ascertain information about particular people is now commonplace. Those searches have entered the everyday lexicon of the community and the process of undertaking such a search is commonly referred as ‘to google’. The judge was satisfied on the evidence that the allegations contained in the article reached a wide audience and the damage to [page 196] the plaintiff’s reputation was widespread. The fact that the material remained available through the defendants’ search engine for such a period of time without being removed could only have served to increase the damage to the plaintiff’s reputation throughout the community. In that respect, the publication had a more injurious effect than if it had been made on the live media or in the print media. It was open to persons who heard about the publication to view it for themselves and to confirm the contents and effect of it.

4.267 The judge accepted that the publication of the article caused Mr Trkulja significant grief and distress. The judge held that the verdict of the jury and an award of damages in favour of Mr Trkulja would no doubt significantly vindicate the wrong done to him by reinstating his reputation and assuaging his injured feelings. As an award of damages is directed to vindicating the plaintiff, the award is required to be treated as sufficiently large to vindicate him once and for all, into the future. The damages must be sufficient to demonstrate to the bystander the baselessness of the allegation about the plaintiff in the defamatory material and thus to ‘nail the lie’ in it. Taking these matters into account, the judge awarded the sum of $225,000. 4.268 Mr Trkulja brought separate proceedings against Google Inc LLC223 for publication of images and web pages consisting of the first 10 of 185,000 results for the search term ‘Michael Trkulja’. The jury found that the matter conveyed the defamatory imputation that the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him. 4.269 The trial judge held that the plaintiff was entitled to an award of damages that vindicated him for the imputation which was very serious. He took the view that the amount of the damages to be awarded must be sufficient to ‘nail the lie’. 4.270 Submissions by Google Inc in relation to the Yahoo matter were made suggesting that: damages in that matter were awarded on the basis that that publication was first and struck the first substantial blow; Google Inc was only liable in respect of the less serious of the two imputations that were found against the defendants in the Yahoo matter; the extended publication and the grapevine effect were probably greater in the Yahoo matter; and that the Yahoo matter was published for a significantly longer period of time than the period during which Google Inc had a liability in this case. The trial judge found that while these matters were relevant to the assessment of damages, they had particular relevance in respect to the issue of damage to reputation and hurt feelings rather than to the issue of vindication. Accordingly, he awarded Mr Trkulja the sum of $200,000. 4.271 It can be seen from both decisions that the seriousness of the imputations was a significant factor in the judges’ awards. The extent of publication on the internet was also a significant factor. A website publication [page 197]

will remain accessible in ways that a hardcopy publication does not. In some cases where the fame of a person has increased, it may even be viewed with increasing frequency on the internet. As a result, a person’s reputation may be ‘damaged forever’. What is posted on the internet may become like ‘a tattoo’224 or a stain upon reputation that cannot be removed. In both cases, however, the most significant factor was ‘nailing the lie’ for the purpose of vindication. 4.272 In Duffy v Google Inc,225 Google Inc published on its Australian website paragraphs relating to two web pages on the website imputing that the plaintiff stalked psychics, spread lies, engaged in scams and criminal conduct, fraudulently accessed others’ electronic materials and threatened and manipulated others. The court found that the harm caused to the plaintiff by the publication of the defamation lay more in her own feelings and what she thought other people were thinking of her than in any actual change made manifest in their attitude towards her. This meant that that assessment of the level of distress and hurt caused was particularly important in this case. The defendant must take the plaintiff as it finds her. The imputations were serious and inherently damaging. As to the nature and extent of publication, the court found that it lay somewhere between a mass media publication and a targeted publication to individual recipients. In considering reparation for harm for reputation, the court found that the publication on an internet search engine will have fewer publishees than would publication in the mass media, but they will be self-selecting because they choose to search for the plaintiff’s name. It may be expected that damage to reputation will be greater when the defamatory material is published in the mass media than when it is published on an internet search engine. When considering hurt to the plaintiff’s feelings, however, publication on an internet search engine was more akin to mass media publication because the plaintiff did not know who the publishees were and they potentially included anyone with access to the internet. In this sense, publication is directed to the public (whoever actually receives it) as opposed to publication by email which is directed to specific individuals.226 In the circumstances, the plaintiff was awarded $100,000. 4.273 Damages awards have varied widely for limited publications, such as office emails and internet publications. A business letter to 650 members of an association resulted in an award of $150,000.227 A letter sent to 22 members of a medical organisation resulted in an award of $600,000 prior to the introduction of the cap.228 An interoffice email sent to several branches of a

[page 198] company resulted in an award of only $10,000,229 and an interoffice email to 20 staff members complaining that many of them had been absent from the office in circumstances which hurt the company and their fellow employees and that something had to be done about it resulted in an award of $10,000.230 In another case, emails to members of a church community resulted in an award of $5000.231 4.274 Publication of material on a website of relevance to a local community resulted in awards of $8000 and $12,000 respectively to each of the plaintiffs.232 This compares to an award of $50,000 for publication on a website alleging serious criminal conduct,233 and an award of $37,500 for allegations of dishonesty also published on a website.234 4.275 Damage to reputation may occur from what has come to be described as the ‘grapevine effect’.235 The basis for the grapevine effect is that the real damage cannot be ascertained because it is impossible to track back the scandal, to know what quarters the poison may reach.236 The grapevine effect may enable the court to come to the view that the damage done to the plaintiff’s reputation was ‘natural and probable’ as a result of the original publication. It recognises that by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published,237 but is likely to be republished and spread by any means available. For example, publications on Twitter and Facebook disseminated by the ‘grapevine effect’ to students, parents, teachers of a school and the local community in regional New South Wales led to an award of $105,000, including $20,000 aggravated damages.238 4.276 In Cairns v Modi,239 the English Court of Appeal highlighted ‘the grapevine effect’ and referred to it as the ‘percolation phenomenon’ which the court considered was a legitimate factor to be taken into account in the assessment of damages.240 The court recognised that, as a consequence of modern technology and communication systems, stories of a scandalous nature would have the capacity to ‘go viral’ more widely and more quickly than ever before. With the ready availability of the internet and of [page 199]

social-networking sites, the court considered that the scale of the problem had been immeasurably enhanced, especially for those claimants who were already, for whatever reason, in the public eye. 4.277 Where a plaintiff claims economic loss, these damages are known as special damages and are not subject to the statutory cap. They are claimed and proved in the normal way for loss of past and future income, and the plaintiff needs to prove the loss has in fact been caused by the publication. 4.278 Where the conduct of the defendant has been particularly distressing to the plaintiff, a claim for aggravated damages may be made and the cap on damages will not apply.241 There is debate as to whether the cap continues to apply to the claim for ordinary compensatory damages in a case warranting an award of aggravated damages or whether, in such cases, ordinary compensatory damages are at large and not capped. 4.279 Aggravated damages will be awarded where the conduct of the defendant at the time of publication is lacking in bona fides, improper or unjustifiable.242 Examples include the manner and extent of publication, the failure or refusal to apologise, the conduct of the litigation by the defendant, the most common basis being an unsuccessful claim of justification,243 and the knowledge of the plaintiff that the imputations were false. 4.280 Damages may be aggravated by the lengthy and continued publication of the matter on the internet, where it can continue to be accessed by not only friends and family but also by strangers and prospective employers. The ongoing and unrestricted publication continues to ‘give life’ to the matter, resulting in an exacerbation of the distress and hurt caused.244 4.281 The court cannot award exemplary or punitive damages for defamation actions based on publication in Australia.245 4.282 There are a number of matters that are admissible on the question of mitigation of damages, including the publication of an apology or correction, the fact that the plaintiff has already recovered damages or agreed to receive compensation or has brought other proceedings in relation to publication of matter having the same meaning or effect as the defamatory matter in the proceedings.246 Mitigation on this basis appeared to have minimal effect in the two Trkulja cases discussed at [4.264]–[4.271], above. 4.283 The publication of an apology is not an admission of liability but can be used in mitigation of damage.247

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Injunctions 4.284 Damages are generally considered to be an adequate remedy for defamation. In determining applications for interlocutory injunctions in defamation proceedings, a court will ask whether the plaintiff has shown: that there is a serious question to be tried as to the plaintiff’s entitlement to relief, that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and that the balance of convenience favours the granting of an injunction.248 4.285 It is sufficient that the plaintiff shows a sufficient likelihood of success at the trial to justify in the circumstances the preservation of the status quo pending trial.249 An interlocutory injunction preventing publication is rare. If the defendant, in resisting an interlocutory injunction for defamation, claims to have a defence, the courts will be reluctant to grant an injunction,250 leaving the plaintiff to damages to compensate him or her. However, a plaintiff will normally face an additional obstacle for an interlocutory injunction in defamation cases in respect of the defendant’s entitlement to freedom of speech.251 4.286 The courts have recognised the substantial public interest in the free discussion of matters of public or general interest. That means that when the balance of convenience comes to be weighed, the public interest in free discussion of those matters weighs heavily against the grant of an injunction. Particularly, this will be the case if the defendant puts forward material which shows that there are reasonable grounds to think that a defence of justification may succeed.252 4.287 Nevertheless, where the defendant exceeds the rights to freedom of speech, the court may issue an injunction to restrain the defendant. In Tate v Duncan-Strelec,253 the plaintiff was the mayor of the City of the Gold Coast. The defendant, her husband and a company of which they were directors commenced proceedings against the plaintiff, amongst others, asserting various claims regarding the development of real estate in New South Wales. The proceedings were dismissed and judgment delivered against the defendant with substantial costs orders. 4.288

Subsequently, a domain name with the plaintiff’s name contained

within it, , was registered and a website was [page 201] published at that domain name. The plaintiff sought a permanent injunction against the defendant restraining her from publishing material on the website and an order requiring the defendant to take steps to deregister the domain name. The basis for the application was that the material contained on the website was defamatory of the plaintiff and that the material involved the defendant committing a contempt of court. The defendant did not appear at the hearing of the application but claimed that she was not the author of the website, nor did she have any knowledge of where it emanated from, let alone have control over it. She also said that she was bankrupt. 4.289 The court granted the injunction on the basis that the website was highly defamatory and therefore there was a serious question to be tried where the court would be prepared to grant a permanent injunction to restrain the publication of defamatory material. On the balance of convenience, the court took into account freedom of speech as obviously a very important value in the community and should not be lightly interfered with. However, in this case, the plaintiff, on the evidence, had a strong case that the defendant had exceeded her rights to freedom of speech. 4.290 The evidence suggested that the website had approximately 30,000 hits in its first two weeks of operation and was capable of doing irreparable damage to the plaintiff’s reputation. It also seemed clear that the defendant would continue to make material available on the website irrespective of her legal obligations unless restrained. Accordingly, the court granted an interlocutory injunction to order that the defendant take all necessary steps to cause publication of the web pages comprising the website located at the domain to cease. 4.291 It is also a relevant factor in relation to applications for injunctions to restrain defamatory publications on the internet and on social media that false and malicious allegations are easily uploaded and published and some people choose to do so as a means of extortion, harassment or revenge, or for other motives.254 As a result, interim injunctions are increasingly being granted to restrain harassment in the form of campaigns of vilification.

4.292 Some of these campaigns involve the publication of defamatory allegations. In some cases, an anonymity order will be necessary — in cases such as blackmail, where, for example, if the plaintiff does not do something, the defendant will publish defamatory allegations — to ensure that the purpose of the proceedings was not to be defeated by sending out in a public judgment the very allegations against the plaintiff, the publication of which was sought to be prevented.255 If, however, the defamation has already been published, the plaintiff will want a judgment that is equally widely published to demonstrate that he or she has cleared his or her name. [page 202]

CONCLUSION AND LOOKING AHEAD 4.293 Social media has made it easier and faster than ever before to communicate with each other. It has no geographical boundaries and is available 24 hours a day. It has, however, brought a risk of legal liability which, to many, was unforeseen or unknown, and that risk needs to be understood and behaviour modified to reduce the risk. 4.294 There will be those, however, that have no regard to the law because of the ability to publish scandalous material with anonymity or with apparent impunity by residing outside the jurisdiction in which the law imposes liability. Admittedly, there is a gap that exists between the remedies for damages and injunctions which would compensate those harmed and stop those who breach the law outside the jurisdiction in which the law operates. 4.295 The geographical challenge that this presents could lead to the reintroduction of measures such as exemplary damages within Australia for defamation. Such geographical challenges have been negotiated between nations in the past to provide consistent behaviour and enforcement of laws through international co-operation, usually by treaties or conventions. Examples include the Warsaw Convention (for liability for international carriage),256 the New York Convention (for enforcement of arbitration awards)257 and the International Convention for the Prevention of Pollution from Ships.258 4.296 The freedom to speak has been regarded as one of the most important advances for democracy since the Second World War. The internet and social

media continue the development of freedom of speech, opening up information for people previously ignorant of the workings of government and exposing scandal and corruption within it. 4.297 Society, however, does not tolerate cyber-bullies, gossip mongers and peeping toms and those who tell tales about others without lawful justification or excuse. The defamation laws have legitimate work to do to inhibit and restrict the antisocial behaviour of such people. They operate to restrict the abuse of social media by those who would cause harm to others’ reputations whose careers, relationships and lives, without such law, would be ruined.

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PRACTITIONER TIPS •

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1. 2.

The elements of the cause of action in defamation, namely identification, publication and defamatory meaning, and the principles giving rise to liability in defamation for traditional media, apply equally to social media publications. Proceedings must be brought within one year from the date of the publication unless it was unreasonable to do so. However, in relation to the internet, there is an actionable publication each time a recipient downloads the material. The immediacy and informality of communication on social media can give users a false impression of intimacy and privacy when there is no way to control the extent of publication on social media. Communications can be made public, republished and shared widely in a short space of time. Tweeting and posting material on social media can cause real harm, both to the reputations of those mentioned in defamatory tweets, and to publishers through liability in defamation. Any participant in a defamatory publication (eg, republishing or ‘retweeting’ a defamatory tweet) may be jointly and severally liable in defamation along with the original publisher. Anonymity is a common feature of internet-based defamatory publications. There are real difficulties with enforcing a court order against overseas-based social media platforms such as Facebook or Twitter, including to compel disclosure of the identity of their users.

International Covenant on Civil and Political Rights 1966, Art 17. References to the Defamation Act 2005 throughout this chapter are to the uniform laws in each state and territory by that title, the exceptions being Civil Law (Wrongs) Act 2002 (ACT) and the Defamation Act 2006 (NT). 3. Defamation Act 2005 s 7(1). 4. [2013] NSWDC 295. 5. Above. 6. Above, n 4, at [21]. 7. [2014] NSWSC 1692. 8. [2014] NSWDC 125. 9. [2015] NSWSC 1807. 10. Above, at [3]. 11. Defamation Act 2005 s 35(1).

12. International Covenant on Civil and Political Rights 1966, Art 19(2). 13. Lange v Australian Broadcasting Corp (1997) 189 CLR 520; 145 ALR 96; [1997] HCA 25. 14. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193; [2004] HCA 5 at [9]. 15. International Covenant on Civil and Political Rights 1966, Art 19(3). 16. Extensions of the limitation period are granted in certain limited circumstances: Limitation Act 1969 (NSW) ss 14B, 56A, and equivalent legislation in other states and territories. 17. Powell v Gelston [1916] 2 KB 615 at 619; Lee v Wilson and Mackinnon (1934) 51 CLR 276 at 287; [1935] ALR 51. 18. Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 at [24]. 19. Waterhouse v The Age Co Ltd [2011] NSWSC 159 at [78]–[80]. 20. Pulman v Hill & Co Ltd [1891] 1 QB 524 at 527; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 at [26], [124]. 21. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 at [27]. 22. Jameel v Dow Jones Inc [2005] EWCA Civ 75 at [25]–[29]. 23. Restifa v Pallotta [2009] NSWSC 958 at [26]–[29]. 24. Above, at [26]–[29]. 25. D Churchill, ‘Mother Faces Paying £20,000 Damages over Facebook “Libel”’, London Evening Standard, 7 February 2014. 26. [2015] FCA 652. 27. Above, at [451]–[454]. 28. Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at [60]; Ley v Hamilton (1935) 153 LT 384; Palmer Bruyn v Parsons (2001) 208 CLR 388; 185 ALR 280; [2001] HCA 69 at [88]. 29. Telecommunications (Interception and Access) Act 1979 (Cth) s 7. 30. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 594–5; 141 ALR 1. 31. (2002) 210 CLR 575. 32. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 at [44]. 33. Above, at [54]. 34. See also Global Partners Fund Ltd v Babcock & Brown Ltd (In Liq) (2010) 267 ALR 144; [2010] NSWSC 270; Barach v University of New South Wales [2011] NSWSC 431 at [63]– [72]; King v Lewis [2004] All ER (D) 234 (Oct); [2004] EWCA Civ 1329 at [35]–[36]. 35. Barach v University of New South Wales [2011] NSWSC 431 at [51]. 36. Section 11. 37. Barach, above, n 35, at [73]–[81]. 38. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 at [124]. 39. Limitation Act 1969 (NSW) s 14B. 40. (1849) 14 QB 185; 117 ER 75. 41. Defamation Act 2013 (UK) s 8. 42. Sadgrove v Hole [1901] 2 KB 1 at 4; Universal Communication Network Inc v Chinese Media Group (Aust) Pty Ltd (2008) Aust Torts Reports ¶81–932; [2008] NSWCA 1 at [42]. 43. Morgan v Odhams Press Ltd [1971] 2 All ER 1156; [1971] 1 WLR 1239 at 1244, 1245. 44. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371–3. 45. Jones v E Hulton & Co (1909) 2 KB 444 at 454; Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734; [1986] AC 350; (1985) 63 ALR 83. 46. David Syme & Co v Canavan (1918) 25 CLR 234 at 238; (1918) 24 ALR 275; [1918] HCA 50. 47. Section 9(1). 48. ‘The Class We Failed’, Daily Telegraph, Sydney, 8 January 1997. 49. Students of the 1996 Higher School Certificate class at Mount Druitt High School sued the Daily Telegraph over a front page article on 8 January 1997. The newspaper apologised and settled for damages out of court.

50. Webb v Bloch (1928) 41 CLR 331 at 363–5; 2 ALJR 282; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [121]. 51. Citizens’ Life Assurance Co Ltd v Brown [1904] AC 423 at 428; New South Wales Country Press Co-Operative Co Ltd v Stewart (1911) 12 CLR 481; 17 ALR 554. 52. Urbanchich v Drummoyne Municipal Council (1988) A Def R 50–035; (1991) Australian Torts Reports 81127; Bishop v New South Wales [2000] NSWSC 1042. 53. Dank v Whittaker (No 1) [2013] NSWSC 1062 at [26]. 54. Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [123]. 55. Speight v Gosnay (1891) 55 JP 501; 60 LJQB 231; 7 TLR 239; Sims v Wran (1984) 1 NSWLR 317 at 320. 56. Habib, above, n 54, at [124]–[125]. 57. John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 at [91]; Flood v Times Newspapers Ltd [2012] All ER (D) 153 (Mar); [2012] UKSC 11; [2012] 2 AC 273; Lord McAlpine v Bercow [2013] EWHC 1342 at [44]. 58. Lord McAlpine v Bercow [2013] EWHC 1342. 59. Flood v Times Newspapers Ltd [2012] All ER (D) 153 (Mar); [2012] UKSC 11; [2012] 2 AC 273 at [5]. 60. [2008] All ER (D) 321 (Jul); [2008] EWHC 1781 (QB). 61. Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133; [1973] 2 All ER 943; [1973] 3 WLR 164. 62. Applause Store Productions Ltd v Raphael [2008] All ER (D) 321 (Jul); [2008] EWHC 1781 (QB) at [62]. 63. The Age Co Ltd v Liu (2013) 82 NSWLR 268; (2013) 296 ALR 186; (2013) 272 FLR 426; [2013] NSWCA 26; Liu v The Age Co Ltd (2012) 285 ALR 386; (2012) 257 FLR 360; [2012] NSWSC 12. 64. AB Ltd v Facebook Ireland Ltd [2013] NIQB 14 at [1]; HL (a minor) v Facebook Inc [2013] NIQB 25. 65. McKeogh v John Doe 1 (username Daithii4U) [2012] IEHC 95. 66. G & G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB); Terry v Persons Unknown [2010] EWHC 119. 67. McKeogh, above, n 65. 68. Above, n 65. 69. Ghosh v Google Australia Pty Ltd [2013] NSWDC 146; Rana v Google Australia Pty Ltd [2013] FCA 60; Duffy v Google Inc [2011] SADC 178; A v Google New Zealand [2012] NZHC 2352; Tamiz v Google Inc and Google UK Ltd [2012] All ER (D) 14 (Mar); [2012] EWHC 449 (QB); Richardson v Facebook UK Ltd, Richardson v Google (UK) Ltd [2015] EWHC 3154. 70. Konidaris v Google Australia Pty Ltd [2015] NSWSC 1810. 71. Rana v Google Australia Pty Ltd [2013] FCA 60 at [44]–[46]; Barach v University of New South Wales [2011] NSWSC 431 at [32]–[62]. 72. Trkulja v Google Inc LLC (No 2) [2010] VSC 490 at [23]. 73. Bunt v Tilley [2006] All ER (D) 142 (Mar); [2006] 3 All ER 336; [2007] 1 WLR 1243; Metropolitan International Schools Ltd t/as Skills Train and/or Train2Game v Designtechnica Corp t/as Digital Trends [2009] All ER (D) 263 (Jul); [2011] 1 WLR 1743; [2009] EWHC 1765 (QB). 74. Trkulja v Google Inc LLC (No 5) [2012] VSC 533 at [27]–[28]. 75. Rana v Google Australia Pty Ltd [2013] FCA 60 at [56]. 76. [2013] All ER (D) 163 (Feb); [2013] 1 WLR 2151; [2013] EWCA Civ 68. 77. Above, at [24]–[35]; see also Byrne v Deane [1937] 2 All ER 204; [1937] 1 KB 818; Godfrey v Demon Internet Ltd [2001] QB 201; [1999] 4 All ER 342; [2000] 3 WLR 1020; Davison v Habeeb [2011] All ER (D) 205 (Nov); [2012] 3 CMLR 104; [2011] EWHC 3031 (QB). 78. Google Inc v ACCC (2013) 294 ALR 404; 99 IPR 197; [2013] HCA 1. 79. Above, at [69]. 80. Above, n 78, at [69]. 81. [2012] VSC 533. 82. Above, at [18]. 83. Webb v Bloch (1928) 41 CLR 331 at 363–5; (1928) 2 ALJR 282.

84. [2015] VSC 635. 85. [1996] HCA 38; (1996) 186 CLR 574. 86. [2015] VSC 635 at [59]; see also Oriental Press Group Limited v Fevaworks Solutions Pty Ltd [2013] HKCFA 47; Duffy v Google Inc [2015] SASC 170. 87. Thompson v Australian Capital Television Pty Ltd (1996) HCA 38; (1996) 186 CLR 574 at 585. 88. [2014] NSWSC 897. 89. Above, at [83]. 90. Above, n 88, at [97]. 91. [2015] VSC 467. 92. Above, at [37]. 93. Investorshub Com Inc v Mina Mar Group Inc, 2011 US Dist Lexis 87566 (MDFLA 20 June 2011); Pontigon v Lord, 340 SW 3d 315 (Mo Ct App 2011); Barach v University of New South Wales [2011] NSWSC 431; see also J Grimmelmann, ‘Speech Engines’ (2014) 98 Minnesota Law Review 868. 94. Barach v University of New South Wales [2011] NSWSC 431. 95. Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606; [2009] HCA 16 at [5]. 96. Jones v Skelton [1964] NSWR 485 at 491; [1964] ALR 170; [1963] 3 All ER 952. 97. Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 327; [1962] 2 All ER 380; [1962] 3 WLR 25. 98. Jones, above, n 96. 99. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [6]. 100. Lewis v Daily Telegraph Ltd [1964] AC 234 at 260; [1963] 2 All ER 151; [1963] 2 WLR 1063. 101. Jones, above, n 96. 102. Lewis v Daily Telegraph Ltd [1964] AC 234 at 277, 285; [1963] 2 All ER 151; [1963] 2 WLR 1063; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [11]; Jeynes v News Magazines Ltd [2008] All ER (D) 285 (Jan); [2008] EWCA Civ 130 at [14]. 103. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165–6; 143 FLR 180. 104. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468; [2007] HCA 60. 105. John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50 at [187]. 106. Hockey v Fairfax Publications Pty Ltd [2015] FCA 652. 107. Smith v ADVFN Plc [2008] All ER (D) 335 (Jul); [2008] EWHC 1797 (QB) at [14]–[17]. 108. Lewis v Daily Telegraph Ltd [1964] AC 234 at 259–60; [1963] 2 All ER 151; [1963] 2 WLR 1063; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [17]. 109. Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports ¶81–915; [2007] NSWCA 254 at [10]. 110. Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 at [24]. 111. [2015] FCA 652. 112. Slim v Daily Telegraph Ltd [1968] 2 QB 157; [1968] 1 All ER 497; [1968] 2 WLR 599. 113. Parker v Falkiner (1889) 10 NSWR 7 at 10–11; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506; 38 ALR 417; [1982] HCA 4. 114. Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606; [2009] HCA 16 at [5]. 115. Above, at [37]–[40]. 116. Above, n 114, at [48]. 117. Cricinfo settled by paying £7000 damages plus costs. 118. Cairns v Modi [2012] EWHC 756 (QB). 119. Cairns v Modi [2012] EWCA Civ 1382. 120. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449. 121. Parmiter v Coupland (1840) 6 M&W 105; 151 ER 340; Tournier v National Provincial and Union Bank of England Ltd [1923] All ER Rep 550; [1924] 1 KB 461 at 477. 122. Youssoupoff v Metro-Goldwyn-Maher Pictures Ltd (1934) 50 TLR 581 at 588. 123. See Mallik v McGeown [2008] NSWCA 230 at [56]–[57]; Prefumo v Bradley [2011] WASC 251 at [86]–[87]. 124. Knight v Gibbs (1834) 1A&E 43; Gillett v Bullivant (1846) 7 LT (0S) 49; Pratten v Labour Daily [1926] VLR

125. 126. 127. 128. 129.

130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159.

115 at 122; (1925) 32 ALR 152; Hough v London Express Newspaper Ltd [1940] 3 All ER 31; [1940] 2 KB 507 at 515; Morgan v Odhams Press Ltd [1971] 2 All ER 1156; [1971] 1 WLR 1239 at 1252; Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1; (2011) 275 LSJS 476; [2011] SASC 104 at [7]–[8]. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; 42 ALR 487; [1982] HCA 50. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [14]. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; 42 ALR 487; [1982] HCA 50; Favell, above, at [12]. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301; 42 ALR 487; [1982] HCA 50; Favell, above, n 126, at [12]–[15]. Lewis v Daily Telegraph Ltd [1964] AC 234 at 282; [1963] 2 All ER 151; [1963] 2 WLR 1063; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300–1; 42 ALR 487; [1982] HCA 50; Chase v Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11; Favell, above, n 126, at [12]–[15]; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; 250 ALR 363; [2008] WASCA 172 at [44]–[49]. Lord McAlpine v Bercow [2013] EWHC 1342. CTB v News Group Newspapers Ltd [2011] EWHC 1232 (QB); see also CTB v News Group Newspapers Ltd [2011] All ER (D) 142 (May); [2011] EWHC 1326 (QB); and CTB v News Group Newspapers Ltd [2011] EWHC 1334 (QB). Lord McAlpine v Bercow [2013] EWHC 1342 at [66]. Parmiter v Coupland (1840) 6 M&W 105 at 108; 151 ER 340 at 342. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443; (1991) Aust Torts Reports 81– 125; Berkoff v Burchill [1996] 4 All ER 1008. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449. Berkoff v Burchill [1996] 4 All ER 1008. Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 at [8]–[9]. Above, at [9]. Hanson-Young, above, n 137, at [10]–[11]. Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1; (2011) 275 LSJS 476; [2011] SASC 104. Cornes, above, at [82]–[85]; see also Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19; [2001] SASC 60. [2015] QDC 289. Above, at [31]. Above, n 142, at [59]. [2013] NIQB 14. Above, at [13]. Mundey v Askin (1982) 2 NSWLR 369 at 372. Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341 at [51]. Polias v Ryall [2013] NSWSC 1267 at [15]. Above, at [15]–[16]. Smith v ADVFN Plc [2008] All ER (D) 335 (Jul); [2008] EWHC 1797 (QB); Clift v Clarke [2011] EWHC 1164. L Watson, ‘Old Etonian Businessman Wins £9,000 Libel Damages Payout After He Was Dubbed Mr Toad on Disgruntled Pub Employee’s Facebook Page’, Mail Online, 3 February 2014. [2015] ACTSC 106. Piscioneri v Brisciani [2015] ACTSC 106 at [67]. See also Elzahed v Commonwealth of Australia [2015] NSWDC 271 at [52]–[60]. Defamation Act 2005 s 25. Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 21; 42 WN (NSW) 3. Sutherland v Stopes [1925] AC 47 at 79; [1924] All ER Rep 19; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at [138]. Defamation Act 2005 s 26.

160. Plato Films Ltd v Speidel [1961] AC 1090 at 1098; [1961] 1 All ER 876; [1961] 2 WLR 470; see also Dering v Uris [1964] 2 QB 669; [1964] 2 All ER 660; [1964] 2 WLR 1298. 161. David Syme v Hore-Lacy [2000] 1 VR 667. 162. Setka v Abbott [2014] VSCA 287; Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154. 163. Defamation Act 2005 s 27. 164. Megna v Marshall [2010] NSWSC 686 at [50]; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193; [2004] HCA 5 at [9]; Aktas v Westpac Banking Corp [2010] HCA 25 at [55]; Papaconstantinos v Holmes à Court [2012] HCA 53. 165. Ives v Western Australia (No 8) [2013] WASC 277 at [45]–[61]. 166. (No 8) [2013] WASC 277. 167. Ives, above, n 165, at [74]–[76]. 168. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193; [2004] HCA 5; Gutnick v Dow Jones & Co Inc (No 4) (2004) 9 VR 369; Aust Torts Reports 81-748; [2004] VSC 138; see also Vassiliev v Frank Cass & Co Ltd [2002] All ER (D) 94 (May); [2003] EMLR 761; [2003] EWHC 1428 (QB); Brady v Norman [2008] EWHC 2481 (QB). 169. Roberts v Bass (2002) 212 CLR 1; 194 ALR 161; [2002] HCA 57 at [76]; Cush v Dillon (2011) 243 CLR 298; 279 ALR 631; [2011] HCA 30 at [27]. 170. (1997) 189 CLR 520; 145 ALR 96; [1997] HCA 25. 171. Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at 574; 145 ALR 96; [1997] HCA 25; Herald & Weekly Times v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [221]–[229]. 172. Defamation Act 2005 s 30. 173. Defamation Act 2005 s 29. 174. Defamation Act 2005 s 31. 175. Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 at 250. 176. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468; [2007] HCA 60. 177. [2015] WADC 126. 178. [2015] ACTSC 106 at [63]. 179. McEloney v Massey [2015] WADC 126 at [82]. 180. Above, at [118]–[119]. 181. Bunt v Tilley [2006] All ER (D) 142 (Mar); [2006] 3 All ER 336; [2007] 1 WLR 1243. 182. Metropolitan International Schools Ltd t/as Skills Train and/or Train2Game v Designtechnica Corp t/as Digital Trends [2009] All ER (D) 263 (Jul); [2011] 1 WLR 1743; [2009] EWHC 1765 (QB) at [51]. 183. Above, at [58]. 184. Tamiz v Google Inc [2013] All ER (D) 163 (Feb); [2013] 1 WLR 2151; [2013] EWCA Civ 68 at [22]. 185. Above. 186. Tamiz, above, n 184, at [35]. 187. Trkulja v Google Inc LLC (No 2) [2010] VSC 490 at [23]–[26]. 188. Defamation Act 2005 s 32. 189. Broadcasting Services Act 1992 (Cth) Sch 5 cl 91. 190. [2012] VSC 533. 191. Above, at [41]. 192. Sch 5 cl 91. 193. Defamation Act 2005 s 33. 194. Smith v Lucht [2015] QDC 289 at [42]. 195. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800. 196. Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at [12]–[25]. 197. Above, at [60]. 198. Prefumo v Bradley [2011] WASC 251; Smith v ADVFN Plc [2008] All ER (D) 335 (Jul); [2008] EWHC 1797 (QB); Rana v Google Australia Pty Ltd [2013] FCA 60 at [79]. 199. Smith v ADVFN Plc [2008] All ER (D) 335 (Jul); [2008] EWHC 1797 (QB) at [14]–[17].

200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211.

212. 213. 214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239.

Above, at [17]. Cairns v Modi [2012] EWCA Civ 1382 at [27]. Tamiz v Google Inc [2013] All ER (D) 163 (Feb); [2013] 1 WLR 2151; [2013] EWCA Civ 68 at [50]. See Limitation Act 1969 (NSW) s 14B. See Limitation Act 1969 (NSW) s 56A. Cassar v Network Ten Pty Ltd [2012] NSWSC 680. Section 3(d). See, generally: Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674. Ratcliffe v Evans [1892] 2 QB 524 at 528; [1891–4] All ER Rep 699; Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619; [2010] NSWSC 924 at [9]. Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] UKHL 44; [2007] 1 AC 359; [2006] 4 All ER 1279 at [91]. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60; 113 ALR 577; [1993] HCA 31. See above; John v MGN Ltd [1997] QB 586 at 607/608; [1996] 2 All ER 35; [1996] 3 WLR 593; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184; [2003] HCA 52 at [60]; Herald & Weekly Times v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [377]; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70]; Cairns v Modi [2012] EWCA Civ 1382 at [21]. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150; [1967] ALR 25; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at [150]. Broome v Cassell & Co Ltd [1972] AC 1027 at 1071; [1972] 1 All ER 801; Rantzen v Mirror Group Newspapers Ltd [1994] QB 670 at 695–6; [1993] 4 All ER 975. Defamation Act 2005 s 35(1). Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [8]–[9]. Defamation Act 2005 s 22(3). Defamation Act 2005 s 34. Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184; [2003] HCA 52 at [69]; Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 at [29]. Rogers, above, at [69]. Petrov v Do [2013] NSWSC 1382. Ahmed v Nationwide News Pty Ltd (District Court of NSW, Bozic DCJ, 7 December 2012, unreported). Trkulja v Yahoo! Inc LLC [2012] VSC 88. Trkulja v Google Inc LLC (No 5) [2012] VSC 533. ZAM v CFW [2013] EWHC 662 (QB) at [61]. Duffy v Google Inc [2015] SASC 170; Duffy v Google Inc (No 2) [2015] SASC 206. Duffy v Google Inc (No 2) [2015] SASC 206 at [118]. Manefield v Childcare Centres (NSW) [2010] NSWSC 1420; see also Association of Quality Child Care Centres (NSW) v Manefield [2012] NSWCA 123. Crampton v Nugawela (1996) 41 NSWLR 176; (1997) Aust Torts Reports 81-416. Bristow v Adams [2012] NSWCA 166. Enders v Erbas & Associates Pty Ltd (No 2) [2013] NSWDC 44 at [194]. Haddon v Forsyth [2011] NSWSC 123. Jeffrey v Giles [2013] VSC 268. Gluyas v John Best Junior [2013] VSC 3. Bushara v Nobananas Pty Ltd [2013] NSWSC 225. Palmer Bruyn v Parsons (2001) 208 CLR 388; 185 ALR 280; [2001] HCA 69 at [89]; Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [82]. Ley v Hamilton (1935) 153 LT 384 at 386. Belbin v Lower Murray Urban & Rural Water Corp [2012] VSC 535. Mickle v Farley [2013] NSWDC 295. [2012] All ER (D) 01 (Nov); [2013] 1 WLR 1015; [2012] EWCA Civ 1382.

240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251. 252. 253. 254. 255. 256. 257. 258.

Above, at [27]. Defamation Act 2005 s 35(2). Triggell v Pheeney (1951) 82 CLR 497 at 514; [1951] ALR 453. Cairns v Modi [2012] EWCA Civ 1382 at [32]–[33]. Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920 at [255]. Defamation Act 2005 s 37. Defamation Act 2005 s 38. See Defamation Act 2005 ss 20 and 38(1). Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457; [2006] HCA 46 at [19]. Above, at [4]. Bonnard v Perryman [1891] 2 Ch 269; [1891–4] All ER Rep 965. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457; [2006] HCA 46. Above, at [7]; Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440; [1997] SASC 6370 at [6]. [2013] NSWSC 1446. ZAM v CFW [2013] EWHC 662 at [20]. ZAM v CFW [2013] EWHC 662; but see McKeogh v John Doe 1 (username Daithii4U) [2012] IEHC 95. Warsaw Convention 1929 as amended at The Hague, 1955 — Article XIX of the Hague Protocol. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958). MARPOL Convention 1973 as amended by the Protocol 1978.

[page 205]

5 Social Media and the ACCC Stefanie Benson

OVERVIEW • •

•

•

Conduct which takes place on social media, including Twitter, YouTube, Facebook and even personal Facebook pages, can be subject to Australia’s competition and consumer laws. Companies are responsible for user-generated content that appears on their sites. The Australian Competition and Consumer Commission (ACCC) expects companies to monitor their social media sites and to ensure any user-generated content that appears is not misleading. The regularity with which a company is expected to monitor its social media site depends on the size of the company and the size of its audience. Courts have held that audiences will absorb only the main thrust or dominant message of an online advertisement. Care must be taken when using disclaimers to qualify a headline statement. If disclaimers are not prominent enough, they may not save an otherwise misleading statement from contravening the law. Advertisements may be found to be misleading if they lead a consumer into error even though the true position is disclosed via a hyperlink or otherwise before the transaction is concluded.

INTRODUCTION 5.1 This chapter addresses the interaction between social media and Australia’s competition and consumer laws. Social media gives large and small businesses a direct way to interact with existing and potential customers, and promote their products and services.

[page 206] Businesses using social media channels like Facebook, Twitter and YouTube have a responsibility to ensure content on their pages is accurate, irrespective of who put it there.1

5.2 The above extract from the social media guidelines published by the Australian Competition and Consumer Commission (ACCC) reflects a recognition that, while social media may once have been primarily for personal or entertainment use, it is now a mainstream medium for business activity. The rapid growth of social media has created a new playing field for trade and commerce and therefore requires existing competition and consumer laws to be applied in new ways. 5.3 In recent years, the use of social media sites, such as Facebook, Twitter, LinkedIn and YouTube, has grown at an unprecedented pace. McKinsey reports that Facebook and Twitter took only one year and nine months respectively to reach an audience of 50 million people, in comparison to radio which took 38 years, television 13 years and the internet three years to achieve the equivalent.2 5.4 McKinsey also found that 50 per cent of survey respondents3 said that business-related activities were especially important to them, including learning about products and services, making and receiving recommendations, and taking advantage of special offers. 5.5 As a consequence, businesses now, as a matter of course, include social media in their marketing strategy, recognising its enormous potential to instantaneously communicate with a targeted audience. 5.6 Unlike traditional communication forms, such as print media, radio or television, which involve a one-way communication stream using channels selected by the marketer, social media marketing contains a reciprocal element through which advertisers can ‘connect’ or receive communications just as instantaneously. Consumers are no longer merely the recipients of advertising information. They are active participants through social-networking sites and blogs. 5.7 Perhaps even more significantly, social media has enabled the development of customer-to-customer communications (also referred to as user-generated content), so that a message can be disseminated beyond the original audience without the author’s control. This provides marketers with a ‘network effect’ to their online advertising (as consumers share their ‘likes’

[page 207] with friends and family) and also a valuable insight into consumer behaviour and preferences. Sites such as Facebook, Twitter and LinkedIn have become an important route for customer-to-customer communications and therefore a new component of a company’s marketing strategy. 5.8 Australia’s competition and consumer laws are, for the most part, contained in the Competition and Consumer Act (2010) (Cth) (CCA). The CCA regulates the interaction of businesses with their customers and with each other. Its objectives are to promote competition and fair trading and provide for consumer protection, thereby enhancing the welfare of Australians.4 Fair trading ensures that there is genuine competition, which, in turn, leads to lower prices and better-quality goods and services for the benefit of consumers. 5.9 As applies to many areas of law in Australia, competition and consumer laws have had to adapt to changing circumstances. Previously, globalisation and the development of internet and communication technology meant that competition and consumer laws needed to accommodate an online marketplace, including across traditional geographic boundaries. As a result, concepts such as misleading or deceptive conduct and misleading representations, which had been developed in the context of traditional communication forms such as print media, television and radio, need to be applied in an online space. There is now an even greater variety of unique issues which arise in the context of social media, mainly due to the immediate nature of, and user involvement in, the communications which take place. 5.10 Paragraphs [5.15]−[5.133] of this chapter consider the application of Australia’s consumer protection laws to marketing and trade taking place through social media. In 2011, Australia’s largely state-based consumer protection laws were substantially reformed and brought together in the Australian Consumer Law (ACL), found in Sch 2 to the CCA. Although case law involving social media is in its infancy, there is already a growing body from which trends can be identified. For example, both the Federal Court5 and the Australian Advertising Standards Bureau6 have held that the owner of a Facebook page is responsible for user-generated comments appearing on their page and has an obligation to monitor those comments. 5.11 Paragraphs [5.134]−[5.171] consider the way in which social media creates a new environment in which antitrust laws apply. In particular, social

media creates an ability for competitors to communicate with each other [page 208] in a way that may result in collusive behaviour. It also creates an opportunity for corporations, or their employees, to communicate their intentions in the form of threats to their customers, suppliers or competitors, all of which may, even inadvertently, breach relevant competition laws. 5.12 Paragraphs [5.172]−[5.208] consider the role of the ACCC in regulating the behaviour of businesses using social media. Given the rapid growth of social media and the limited social media-specific case law to date, the section considers the approach likely to be taken by the ACCC, evidenced in its guidelines and commentary. It also considers the approach taken by the ACCC’s overseas counterparts, the United States Federal Trade Commission, the European Commission and the United Kingdom Competition and Markets Authority. 5.13 Finally, paragraphs [5.209]−[5.214] consider the extra-territorial application of the CCA. 5.14 Despite the challenges identified to date, social media is in many ways pro competitive. The internet and social media have revolutionised marketing by creating a sales and distribution channel which is accessible to anyone, thereby greatly reducing the barriers to bringing a product or service to market. Social media also assists in consumer protection by promoting transparency and reducing information asymmetry in the marketplace. Its distinguishing feature is the speed at which information can be disseminated. For most users, competition and consumer protection laws will assist them by creating a level playing field and preventing corporations from obtaining an unfair advantage through exaggerations and misleading claims.

SOCIAL MEDIA AND THE AUSTRALIAN CONSUMER LAW Introduction 5.15 Social media connects businesses with customers in an instantaneous online community. By doing this, it has created a marketplace free from

traditional boundaries and an enormously powerful and immediate communication channel with customers. Dealings between businesses and Australian consumers are caught by the ACL, irrespective of the physical location of the business, so long as the business is a body corporate incorporated within Australia or carrying on a business in Australia.7 For the laws to apply, it is sufficient that the business is supplying goods or services to consumers located in Australia. [page 209]

Background to the ACL 5.16 Prior to 1 January 2011, Australia’s consumer protection laws were contained in both federal legislation (the Trade Practices Act 1974 (Cth) (TPA)) and state-based legislation, and were largely enforced by state-based fair trading departments. This resulted in multiple laws and a heavy burden on businesses to ensure that they complied with the laws of each state in which they operated. Following the recommendations of the 2008 Productivity Commission report, Review of Australia’s Consumer Policy Framework,8 work commenced to develop a consistent national approach to consumer protection. On 1 January 2011, the ACL came into effect as a law of the Commonwealth and of each state and territory. It replaces provisions in 20 national, state and territory Acts.9 5.17 The ACL applies to all industries and products except for financial services, which are subject to equivalent provisions in the Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001 (Cth). 5.18 The objectives of the ACL were expressed in the National Consumer Policy Objective, agreed to by the Ministerial Council on Consumer Affairs on 15 August 2008, as:10 … [t]o improve consumer wellbeing through consumer empowerment and protection, fostering effective competition and enabling confident participation of consumers in markets in which both consumers and suppliers trade fairly.

5.19 The National Consumer Policy Objective is highly relevant in a social media context where consumers may be exposed to exaggerations, misleading claims and other scams which have developed in online trading and where they do not have the same personal interface that they would in a traditional ‘bricks

and mortar’ setting. The National Consumer Policy Objective is supported by six operational objectives:11 • • •

to ensure that consumers are sufficiently well-informed to benefit from and stimulate effective competition; to ensure that goods and services are safe and fit for the purposes for which they were sold; to prevent practices that are unfair; [page 210]

• • •

to meet the needs of those consumers who are most vulnerable or are at the greatest disadvantage; to provide accessible and timely redress where consumer detriment has occurred; and to promote proportionate, risk-based enforcement.

Legal framework of the ACL Introduction 5.20 The ACL contains general and specific prohibitions. The general prohibitions include misleading and deceptive conduct, false or misleading representations, unconscionable conduct and unfair contract terms. The specific prohibitions address matters such as pricing display, unsolicited selling and pyramid schemes. There may be overlap between these provisions and the specific prohibitions. 5.21 While the legal elements of these provisions are well understood, their application to social media is in a developmental phase. This section of the chapter, comprising [5.22]–[5.42], outlines the legal framework of the consumer law provisions most relevant to social media; that is, misleading or deceptive conduct, false or misleading representations and the display of pricing. The following section, comprising [5.43]–[5.125], then considers the specific issues arising in the social media context.

Misleading or deceptive conduct and false or misleading representations 5.22 Misleading or deceptive conduct gives rise to market failure by hindering the ability of consumers and businesses to make correctly informed

and, hence, efficient, choices. It distorts competition as honest competitors lose customers to traders who are acting unfairly. It results in a loss of consumer welfare as consumers have to either pay more for products and services or receive poorer quality. The ability to seek redress for misleading or deceptive conduct in an online environment is important as customers are more reliant on representations made to them than they would be in a traditional bricks and mortar setting, where they have the opportunity to physically inspect goods they are purchasing and have direct access to the seller. 5.23

Section 18 of the ACL provides:12

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

[page 211] 5.24 Section 18 imposes strict liability; it does not require an intent to mislead or deceive. All that is required is ‘conduct’ which is capable of leading a person into error, with such error resulting from the ‘conduct’ of the perpetrator and not from other circumstances for which the perpetrator is not responsible.13 5.25 Section 29 of the ACL prohibits the making, in trade or commerce, in connection with the supply or possible supply of goods or services, or in connection with the promotion by any means of the supply or use of goods or services of false or misleading representations with respect to certain specified matters. As most misleading or deceptive conduct taking place on social media will be in the form of representations, there will be overlap between the provisions. The specified matters include, amongst other things, the price of goods or services, the place of origin of goods, or the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. 5.26 Sections 18 and 29 can be relied upon by consumers as well as by businesses in their interactions with other businesses.

What constitutes conduct under the ACL? 5.27 It is widely accepted that the making of a representation amounts to ‘conduct’. This has been held to be the case for representations made in a variety of mediums (eg, verbal statements, print media, radio, television). It has

also now been held by the Federal Court of Australia that the making of representations on social media websites will be considered conduct.14 5.28 Engaging in conduct is relevantly defined in s 2(2)(a) of the ACL as follows: (2) In this Schedule: (a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including: (i) the making of, or the giving effect to a provision of, a contract or arrangement; or (ii) the arriving at, or the giving effect to a provision of, an understanding; or (iii) the requiring of the giving of, or the giving of, a covenant; and … (c)

a reference to refusing to do an act includes a reference to: (i) refraining (otherwise than inadvertently) from doing that act; or (ii) making it known that that act will not be done; and

…

[page 212] 5.29 The types of statements that may be considered as misleading or deceptive conduct include: (a) (b) (c) (d)

misleading statements about employment and business opportunities;15 credence claims;16 falsely offering prizes; and17 misleading comparative advertising.18

When does conduct take place ‘in trade or commerce’? 5.30 The provisions relating to misleading or deceptive conduct will apply only if the conduct occurs ‘in trade or commerce’. ‘In trade or commerce’ is defined in s 2 of the ACL to mean: (a) trade or commerce within Australia; or (b) trade or commerce between Australia and places outside Australia; and includes any business or professional activity (whether or not carried on for profit).

5.31 The words ‘and includes any business or professional activity (whether or not carried on for profit)’ were inserted into the definition in 2011. Prior to this, ‘in trade or commerce’ was defined in s 4 of the TPA and also remains in s

4 of the CCA but without this additional descriptive language. 5.32 It can be concluded that whether conduct occurs ‘in trade or commerce’ or not will turn on the nature of the conduct rather than the medium in which it occurs, and the fact that conduct takes place in a private publication (eg, a personal Facebook page) will not preclude it from occurring ‘in trade or commerce’19 if it is otherwise of a commercial nature. The words are to have a very broad meaning and conduct does not need to be profit-making in order to be ‘in trade or commerce’. 5.33 The passage often cited as the authority on the meaning of ‘in trade or commerce’ in the context of the CCA is that of Deane J in Re Ku-ring-gai Co-op Building Soc (No 12) Ltd:20 The terms ‘trade’ and ‘commerce’ are not terms of art. They are expressions of fact and terms of common knowledge. While the particular instances that may fall within them will depend upon the varying phases of development of [page 213] trade, commerce and commercial communication, the terms are clearly of the widest import … they are not restricted to dealings or communications which can properly be described as being at arm’s length in the sense that they are within open markets or between strangers or have a dominant objective of profit marking. They are apt to include commercial or business dealings in finance between a company and its members which are not within the main stream of ordinary commercial activities and which, while being commercial in character, are marked by a degree of altruism which is not compatible with a dominant objective of profit making.

When will conduct be misleading or deceptive? 5.34 Conduct will be misleading or deceptive if it ‘leads or is likely to lead the person or persons to whom it is made into error’.21 Conduct is likely to mislead or deceive if there is a real or not remote chance or possibility of having that effect regardless of whether it is less or more than 50 per cent.22 5.35 Gibbs CJ interpreted the term ‘misleading or deceptive’ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (Puxu) as follows:23 The words of s 52 require the court to consider the nature of the conduct of the corporation against which proceedings are brought and to decide whether that conduct was, within the meaning of that section, misleading or deceptive or likely to mislead or deceive. Those words are on any view tautologous. One meaning which the words ‘mislead’ and ‘deceive’ share in common is ‘to lead into error’.

5.36

The High Court in Google Inc v ACCC24 outlined a number of well-

established propositions about s 18 (formerly s 52). It is useful to set these out here for the reason that they are contemporaneous statements from Australia’s highest court and were made in the specific context of an online market:25 First, the words ‘likely to mislead or deceive’ in s 52 make it clear that it is not necessary to demonstrate actual deception to establish a contravention of s 52. … Second, where an issue in s 52 proceedings is the effect of conduct on a class of persons such as consumers who may range from the gullible to the astute, [page 214] the court must consider whether ‘the “ordinary” or “reasonable” members of that class’ would be misled or deceived.26 … Third, conduct causing confusion and wonderment is not necessarily co-extensive with misleading or deceptive conduct.27 Fourth, s 52 is not confined to conduct which is intended to mislead or deceive. A corporation could contravene s 52 even though it acted reasonably and honestly.28 However, as Mason ACJ, Wilson, Deane and Dawson JJ observed in Yorke v Lucas:29 ‘That does not … mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive.’ Finally, misleading or deceptive conduct does not need to be directed at a particular person or class of persons.30

Other specific contraventions 5.37 The other provisions of the ACL that give rise to particular issues in social media are those relating to the display of prices. There are many more specific prohibitions under the ACL but these are beyond the scope of this chapter.

Single pricing 5.38 The ACL requires a business to state ‘in a prominent way’ the single total price payable for goods and services. This includes all components

[page 215] payable by the consumer to obtain the goods or services, including any fees, taxes or surcharges that can be calculated at the time the price representation is made. Section 48 of the ACL provides that: (1) A person must not, in trade or commerce, in connection with: (a) the supply, or possible supply, to another person of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption; or (b) the promotion by any means of the supply to another person, or of the use by another person, of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption; make a representation with respect to an amount that, if paid, would constitute a part of the consideration for the supply of the goods or services unless the person also specifies, in a prominent way and as a single figure, the single price for the goods or services.

5.39 In ‘a prominent way’ has been interpreted as ‘to stand out, be conspicuous, be easily seen or very noticeable’.31 Particular issues will arise in social media where displays are severely limited in their number of characters. The use of disclaimers or other qualifications of a prominent statement has been a focus of regulators in recent times. This is dealt with further at [5.90]–[5.104], below.

Displayed pricing 5.40 The ACL prohibits a business from supplying a good at a price higher than the lowest price at which it is displayed. A displayed price includes a price written on the good, mounted on display, published in a catalogue or ‘in any other way represented in a manner from which it may reasonably be inferred that the price or representation is applicable to the goods’.32 5.41

Section 47 of the ACL states:

(1) A person must not, in trade or commerce, supply goods if: (a) the goods have more than one displayed price; and (b) the supply takes place for a price that is not the lower, or lowest, of the displayed prices.

5.42 The issue of displayed pricing will be relevant in a social media context for the reasons that there are no geographic boundaries to representations made on social media unless expressly stated; and that an advertiser can easily lose control of the dissemination of the representation. This is dealt with further at [5.132]–[5.133], below.

[page 216]

The application of the ACL to social media 5.43 Conduct engaged in on social media is subject to all existing laws regulating dealings between businesses and dealings between businesses and with consumers. However, characteristics of social media give rise to unique issues when it comes to applying the existing laws. These include: (a) Social media is premised on interactivity between the author or seller and the audience or customers. (b) The author cannot control its audience. Representations can be ‘shared’, ‘liked’ or ‘retweeted’. This means an author of an advertisement or representation cannot assume that it is directed at a particular audience, such as the readers of a certain journal. (c) There are no geographic nor temporal boundaries. (d) Communication is instantaneous. (e) Representations must be capable of appearing in various formats, ranging from a tweet to a YouTube clip to a full page screen.

Misleading or deceptive conduct and misrepresentations in social media What amounts to ‘conduct’ for the purposes of the ACL? The making of a representation 5.44 Case law to date confirms that statements made on social media, including posts, comments, tweets, blog entries and YouTube clips amount to conduct for the purposes of the ACL, and more specifically for the purposes of the misleading or deceptive conduct provisions.33 Given the broad meaning that has been given to ‘conduct’, this is not contentious. As a result, social media users need to consider the overall impression made by such a statement and apply the test of whether, when viewed as a whole, it is it likely to lead a reasonable person into error. 5.45

In Google Inc v ACCC, Hayne J observed:34

The act of displaying an advertisement to people who otherwise would not see or hear it is clearly ‘conduct’ capable of misleading or deceiving those who see or hear it. Displaying the advertisement to those people may lead them into error. Whether it is likely to mislead or deceive depends upon how the ordinary or reasonable member of the class of persons to whom the publication was directed would understand what was published.

[page 217]

The treatment of third party comments 5.46 A common and distinguishing feature of social media is the functionality for users to leave comments which may be viewed either by subscribers or followers, or by the general public. The most well-known example of this is likely to be Facebook, which enables visitors to a page to post comments on the page’s ‘wall’. Typically, as is the case with Facebook, the administrator of the page will have an ability to remove comments should it so wish. 5.47 A large number of social media sites specifically invite users to post comments. Travel and hotel sites, such as TripAdvisor or Booking.com, use this function to allow guests to leave public feedback on the service they received. This function provides potential customers with an opportunity to review a large sample of feedback from previous customers who ostensibly have no incentive to distort the truth. More generally, most blogs operate in this way. 5.48 To date, the decisions relating to the treatment of comments by third parties have found that they constitute part of the advertisement and, where the publisher is aware of them and does not remove them, are to be taken as published by the advertiser. This creates a heavy burden for advertisers who, if these decisions are followed, will be required to moderate their social media pages to ensure that any material posted by third parties is accurate and complies with all relevant regulations. 5.49 The cases to date deal with Facebook pages and Twitter. Both the Federal Court and the Australian Advertising Standards Board and Alcohol Beverages Advertising Code Complaints Panel have held that third party comments on a Facebook page constitute part of an advertisement. It would seem that a distinction can be made between the cases considered below and a travel or other type of website which specifically marks third party comments as guest feedback.

Australian Competition and Consumer Commission v Allergy Pathway (No 2) 5.50 In the 2011 decision in Australian Competition and Consumer Commission v Allergy Pathway (No 2),35 the Federal Court also held that the author of a page, by allowing comments to remain on a page, was responsible for those comments. Between 8 July 2008 and 10 July 2009, Allergy Pathway made a number of representations on its website, in brochures and a DVD, and in advertisements published in newspapers, magazines and on the radio. The representations related to the ability of Allergy Pathway (then Advanced Allergy Elimination Pty Ltd) to cure allergies and allergic reactions. [page 218] In August 2009, the Federal Court found that these representations were misleading or deceptive. The court required Allergy Pathway to publish corrective notices and to implement a trade practices compliance program. Allergy Pathway and its director also gave undertakings to the court that they would refrain from engaging in similar conduct for a period of three years. Following the giving of the undertaking, testimonials were posted on the company’s Twitter and Facebook pages endorsing the company’s products. The court found that the third party posts amounted to a breach of the undertakings and therefore contempt of court by the company and its director because they were aware of the testimonials but did not remove them. The court found that ‘Allergy Pathway accepted responsibility for the publications when it knew of the publications and decided not to remove them. Hence it became the publisher of the testimonials’.36 5.51 The decisions do not as yet provide guidance as to what the court considers is a reasonable timeframe by which third party comments ought to be removed if they have the potential to mislead. However, there is recognition that it will not always be commercially viable for companies to be moderating their social media pages 24 hours a day, 365 days a year. Given the immediate and continuous nature of social media, it is likely that a short timeframe will come to be expected. 5.52 It is also likely that advertisers will be expected to make use of the features available on Facebook to restrict the posting of material by third parties.

For example, specific words can be ‘blacklisted’ so that comments containing them are not visible to the greater public, but only to the poster and their ‘friends’. Similarly, certain users can be banned.

Advertising Standards Bureau decision re Diageo Australia Ltd37 5.53 In July 2012, the Advertising Standard Bureau (the Bureau) released decisions in relation to complaints that the content of the Facebook pages for Victoria Bitter and for Smirnoff Vodka, operated by Diageo, had breached the Australian Association of National Advertisers (AANA) Code of Ethics (the Code).38 In the case of Victoria Bitter, the Bureau found that the Facebook page encouraged excessive consumption of alcohol. In the case of Smirnoff, the Bureau found that it used adults under the age of 25 years in advertising alcohol. [page 219] 5.54 The Bureau determined that the Code applies to a brand owner’s Facebook page on the basis that the Facebook site is a marketing communication tool over which the advertiser has a reasonable degree of control and could be considered to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose directly or indirectly that product. 5.55

Under the Code, advertising and/or marketing communication means:39

… any material which is published or broadcast using any medium or any activity which is undertaken by, or on behalf of an advertiser or marketer and: • •

over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of product …

5.56 The Bureau went on to determine that the Code applied to all content on the page, including both the posts of the brand owner and any material or comments posted by users. However, it provided limited analysis on this point, stating only that ‘as a Facebook page can be used to engage with customers, the Board further considered that the Code applies to the content generated by the advertisers as well as material or comments posted by users or friends’.40

5.57 The Bureau did not accept Smirnoff’s arguments that Facebook is a communication channel just like television and radio and therefore it is not appropriate to consider all content as advertising material. Smirnoff also sought to differentiate its Facebook page, which can be created at no cost, from paidfor advertising space on Facebook through which Diageo runs branded advertising (and which was not the subject of the complaint). 5.58 In finding that the Victoria Bitter Facebook page breached the Code, the Bureau stated that social media requires monitoring to ensure that offensive material is removed within a reasonable timeframe to ensure compliance with the Code. 5.59 The Bureau confirmed its approach in relation to the Smirnoff Facebook page, again finding that the Code applies to content generated by advertisers as well as to material posted by users. 5.60 Subsequent to these decisions, the Bureau has published guidelines on social media advertising, noting that ‘the very broad definition of advertising or marketing communications is intended to and does apply to a wide range of material broadcast and published by advertisers’. The Bureau notes that [page 220] not all content on an advertiser’s website or Facebook page will necessarily be considered advertising or marketing communications. Branded material, such as games featuring a product, recipes using a product or suggestions to buy the product, will all be considered as advertising or marketing communications and subject to the Code. Material such as news reports, articles, editorials, letters, cartoons or images may not be considered advertising or marketing communications but, rather, may be covered by the Australian Press Council.41 5.61 The Practice Note to the Code published in June 2015 provided further guidance as to what the Code applies to, and specifically includes ‘user generated content (UGC) which is communicated via a site or digital platform over which the marketer has a reasonable degree of control’. It specifies that UGC is ‘material which has not been created by the brand owner but by a person interacting on the brand owner’s digital marketing platform’ and that ‘a brand owner has reasonable control of UGC when it becomes aware of the material’. A brand owner can become aware of UGC, amongst other means, through

‘reasonable review’ or if the user notifies the advertiser/marketer of the UGC.42 5.62 The Alcohol Beverages Advertising Code (ABAC) Complaints Panel also assessed the complaints against Diageo and similarly found that each page, considered as a whole, including third party content, was an advertisement.43 5.63 The ABAC Complaints Panel determined that the Victoria Bitter page breached the Code because ‘certain user generated content, in conjunction with posts by the brand owner’ encouraged excessive consumption of alcohol. It also found the Smirnoff page breached the Code as it used adults under the age of 25 in advertising alcohol.44 5.64 The ABAC Complaints Panel acknowledged that the Code was designed for a very different type of advertising and was not easily applied to ‘the dynamic nature of social media’ and that a review of the ABAC scheme will be undertaken in the near future.45 5.65 Specific regulation, such as that relating to the supply of alcohol, creates considerable difficulties in a social media context given the potential for consumer-generated content which, as shown by the hypothetical example [page 221] below, may be beyond the control of the publisher and would require significant resources to constantly monitor. Hypothetical Karen has uploaded a photo of her 11-year-old daughter as her profile photo. She reviews an advertisement for XYZ vodka appearing in her newsfeed. She goes to XYZ’s Facebook page and ‘likes’ the product. This creates a post on XYZ’s Facebook page stating that Karen likes XYZ vodka and displaying her profile photo, containing a photo of her 11-year-old daughter, next to the text.

5.66 It is unclear at this time whether this post, including the image of Karen’s daughter, would now form part of XYZ’s advertising. The use of images of minors is prohibited in the advertising of alcohol.

ACCC approach

5.67 The ACCC has indicated that a company may breach the misleading and deceptive provisions of the CCA if it allows a misleading post by a consumer to remain on its Facebook page for too long.46 It has also indicated that the amount of time to be spent monitoring social media depends on the size of the company and the size of the audience. This approach is consistent with the factors French J articulated in Trade Practices Commission v CSR Ltd,47 which are used as guidance for the determination of the size of a penalty to be awarded for a breach of the CCA. Informally, the ACCC has indicated that misleading posts by large companies would be expected to be removed within 24 hours.48 A smaller company may be given more leeway but could still be held responsible if a misleading post remains on the page for too long. The following examples have been provided in the ACCC’s Social Media guidelines.49 ACCC social media guidelines The amount of time you need to spend monitoring your social media pages depends on two key factors: the size of your company and the number of fans or followers you have. Businesses should keep in mind that social media operates 24 hours a day, 7 days a week, and many consumers use social media outside normal business hours and on weekends. [page 222] Examples ABC Pty Ltd has 300 staff. As larger companies usually have sufficient resources and sophisticated systems, the ACCC would expect ABC to become aware of false, misleading or deceptive posts on its Facebook page soon after they are posted and to act promptly to remove them. XYZ Pty Ltd has only 10 staff but more than 50,000 Facebook fans. Given the number of people who could be misled by an incorrect post on XYZ’s Facebook page, the ACCC would expect XYZ to devote adequate resources to monitoring its Facebook page and to remove any false, misleading or deceptive posts soon after they are posted. DEF Pty Ltd has 12 staff and only 80 Facebook fans. As a small business, DEF is unlikely to have the same resources to dedicate to social media monitoring as a larger company would. Also, given the small number of Facebook fans, there is less potential for widespread public detriment from incorrect posts. Accordingly, the ACCC would not expect DEF to monitor its Facebook page as regularly as the companies in the two previous examples. Responding to false, misleading or deceptive comments instead of removing them You can respond to comments instead of removing them, but it is possible that your response may not be sufficient to override the false impression made by the original comments. It may be safer to simply remove the comments.

The innocent carriage of information — who makes the representation? 5.68 Whether representations made on social media sites may be attributed to an intermediary raises a relevant question for social media users. In Australia, the question was considered by the High Court in Google Inc v ACCC,50 in which case the court found that sponsored advertisements appearing on the Google search engine were not representations made by Google. The issue is also relevant for users who ‘retweet’ or ‘share’ advertisements or other posts. 5.69 In July 2007, the ACCC initiated proceedings against Google and another party for alleged breaches of s 52 of the TPA. The ACCC alleged that, by publishing certain advertisements, being ‘sponsored links’, Google made certain representations and, as each representation was false, Google engaged in conduct that was misleading or deceptive, or was likely to mislead or deceive. The proceedings related to advertisements by STA Travel, Carsales, Ausdog and the Trading Post. In the case of STA Travel, the issue was a sponsored link which was generated in response to a search conducted on the Google search engine using the search terms ‘harvey world travel’. The sponsored link generated by this search was in the following terms: ‘Harvey Travel Unbeatable deals on flights, Hotel & Pkg’s Search, Book & Pack Now! ’. The sponsored link linked to the website of STA Travel. The other sponsored links in question gave rise to similar issues. [page 223] 5.70 The primary judge found that Google had not made any of the alleged representations. He found that ordinary and reasonable members of the class of persons using Google’s search engine would have understood the sponsored links to be advertisements made and paid for by the advertisers, and that Google had not adopted or endorsed the representations made in them. 5.71 The ACCC successfully appealed the decision to the Full Federal Court. The court determined that Google had misled and deceived consumers as Google technology created the link, and the layout of the Google results page would lead users to believe that Google had found an answer to their search, and evidence revealed that Google often had an active role in helping advertisers choose search keywords.

5.72 On appeal, the High Court concluded that Google had not breached s 52. It reasoned that because the advertiser determines each aspect of the sponsored link, and because the automated response (ie, the display of a sponsored link) which the Google search engine makes to a user’s search request is wholly determined by the keywords and other content of the sponsored link which the advertiser has chosen, the correct conclusion is that Google does not create or produce the sponsored links that it displays. 5.73

The court held that:51

That the display of sponsored links (together with organic search results) can be described as Google’s response to a user’s request for information does not render Google the maker, author or creator or originator of the information in a sponsored link. The technology which lies behind the display of a sponsored link merely assembles information provided by others for the purpose of displaying advertisements directed to users of the Google search engine in their capacity as consumers of products and services. In this sense, Google is not relevantly different from other intermediaries, such as newspaper publishers (whether in print or online) or broadcasters (whether radio, television or online) who publish, display or broadcast the advertisements of others.

5.74 Whether a user who passes on information via social media is to be held liable or not for the accuracy of that information has significant implications for the ease with which information will be disseminated across social media in the future. In Google Inc v ACCC,52 the court cited the statement in Yorke v Lucas53 by Mason ACJ, Wilson, Deane and Dawson JJ:54 If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any [page 224] belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive.

5.75 The Google decision also referred to the statement by French J in Gardam v George Wills Co Ltd (No 1)55 (concerning the fire safety tag on children’s nightdresses). French J said:56 The innocent carriage of a false representation from one person to another in circumstances where the carrier is and is seen to be a mere conduit, does not involve him in making that representation … When, however, a representation is conveyed in circumstances in which the carrier would be regarded by the relevant section of the public as adopting it, then he makes that representation. It will be a question of fact in each case.

5.76 This suggests that whether a person, who, for example, ‘retweets’ a message on Twitter, can be held liable for its accuracy, will turn on whether the audience (ie, the followers of the person) will regard him or her as having

adopted the statement. This is likely to turn on the facts of the case, including the contents of the message and whether the person would be expected to have knowledge of whether the message is correct.

When is conduct on social media misleading? Introduction 5.77 Whether a representation on social media is likely to be misleading or deceptive raises a number of considerations that have not previously arisen in traditional media. These include the need to adapt to new formats (eg, a blog entry, tweet or Facebook post) and the likelihood that a ‘reasonable’ member of a limitless audience will be led into error.

Comments — blurring the line between information and opinion 5.78 In 2012 in Seafolly Pty Ltd v Madden (Seafolly),57 the Federal Court had the opportunity to rule on whether comments made on a Facebook page were misleading or deceptive or were merely an expression of the opinion of the writer. 5.79 A determination like this will ultimately turn on the nature of the statement in question. The court applied existing case law to a representation made on social media, and confirmed that comments appearing on a personal Facebook page could amount to misleading or deceptive conduct in breach [page 225] of s 18 of the ACL. The primary judge’s reasoning in respect of whether the relevant comments amounted to misleading or deceptive conduct was upheld on appeal.58 5.80 The case of Seafolly59 concerned representations made by the respondent, Ms Madden, a swimwear designer, on her personal Facebook page. The applicant, Seafolly, a competing swimwear designer, alleged the representations incorrectly suggested that Seafolly had copied some of Ms Madden’s designs. Seafolly commenced proceedings against Ms Madden for

misleading or deceptive conduct, injurious falsehood infringement.

and

copyright

5.81 In early 2010, Ms Madden had met with Ms McLaren, an employee of Sunburn Company Pty Ltd, a retail outlet 68 per cent owned by Seafolly. Ms McLaren was previously employed by Seafolly. The purpose of the meeting was a buying appointment at which Ms Madden showed Ms McLaren samples of her ‘White Sands’ swimwear range. Ms McLaren took photographs of the swimwear on her Blackberry but did not purchase any of the garments. 5.82 On 1 and 2 September 2010, Ms Madden posted on her personal Facebook page an album of photos under the heading, ‘The most sincere form of flattery?’. On the front page of the album appeared seven photographs of Seafolly garments taken from either Seafolly’s 2011 catalogue or from Seafolly’s website. There was a caption below the photographs which stated: ‘Why allowing buyers to photograph your collection at RAFW can be a bad idea’. Below this caption was a series of comments made by Ms Madden and third parties discussing the circumstances of the garments in question being photographed by a buyer who, in fact, was an employee of Seafolly. Below the comments appeared larger versions of each of the seven photographs of the Seafolly garments. Under each photo, Ms Madden inserted the name of one of her garments followed by a question mark. Further comments from third parties appeared below the photographs. 5.83 Subsequently, Ms Madden posted photos of her White Sands garments side by side with the photographs of the Seafolly garments, with the caption, ‘White Sands as seen at RAFW in May — Seafolly September 2010’ or ‘White Sands 2009 — Seafolly 2010’. Ms Madden also posted a series of comments on the White Sands Australia Swimwear Facebook page. That page had 3535 ‘friends’. Seafolly denied the allegations in a press release, noting that the majority of the garments in question had been sold or substantially developed well before the time of the photographs. On 3 September, Ms Madden removed the comments. The photographs were removed by Facebook at Seafolly’s request. Madden posted new comments concerning the use of [page 226] the Sunburn buyer to take photographs (in response to questions from other parties which it transpired had been asked at Madden’s request).

5.84 The question to be determined was whether the language employed by Ms Madden (read in context) was such that the persons to whom her statements were addressed were at risk of being misled or deceived into believing that Seafolly had copied costume designs created by Ms Madden and marketed them as Seafolly products and that this copying had been possible, in part at least, because Seafolly had access to the photographs taken by Ms McLaren.

Expressions of opinion? 5.85 Ms Madden contended that the reasonable reader of the Facebook postings and the email would have understood that she was expressing no more than an opinion about the similarity between the pairs of depicted garments and that a statement of opinion could not be held to be misleading or deceptive (or likely to be so) if it was honestly held by her. 5.86 The court held that, when read in context, Ms Madden’s statements would not have been understood by the class of persons to whom they were directed as mere expressions of Ms Madden’s opinions. 5.87 The court went on to conclude that even if it could be said that the readers of the statements would have understood them to be expressions of Ms Madden’s opinions, she was reckless in forming them. The court stated a number of factors which they had considered in forming its conclusion, namely: that her first Facebook postings occurred within hours of her seeing the photographs; that she failed to make enquiries of retailers to establish when the Seafolly garments were placed on the market; and that she did not examine the garments themselves, merely the visual comparison of the photo (thus failing to identify that six of the eight Seafolly garments had been on the market prior to the meeting with Ms McLaren in May 2010). 5.88 In examining the distinction between statement of fact and opinion, the court identified the following principles based on previous case law: (a) A statement of opinion conveys merely that the opinion expressed is held and perhaps that there is a basis for the opinion. If those conditions are met, an expression of opinion, however erroneous, misrepresents nothing.60 (b) Whether a particular formulation of words expresses merely an opinion or a statement of fact is a question of fact and therefore no case will provide guidance on any other case.61

[page 227] (c) Ordinarily it is the readers’ perception of the maker’s intention that is significant in determining whether a statement is one of fact or opinion. The question will generally be resolved by looking to the persons to whom the statement was directed and asking whether any members of that class of persons would reasonably understand the statement to be one of fact or opinion.62 (d) The necessary judgement has to be formed in the context in which the relevant statements were made.63 (e) Where statements ‘assert some matter of physical observation’, it is more likely that the statement will be treated as one of fact.64 (f) The expressing of an opinion could contravene s 52 if that opinion was not ‘honestly made’.65 (g) An opinion will not be treated as being honestly held if it is formed with reckless indifference to the true position and no serious attempt has been made to ascertain the true position.66 5.89 In light of this decision, social media users must exercise caution in regard to statements they make, particularly in respect of competitors who are likely to lodge complaints. Often, comments made on social media sites, particularly personal accounts, are made on the spur of the moment without consideration of the accuracy of the message. The decision in Seafolly v Madden (upheld on appeal) is authority for the proposition that such ‘off the cuff’ statements may still be regarded as misleading or deceptive conduct.

The appearance within a confined space and the use of disclaimers 5.90 Disclaimers are often incorporated into an advertisement in order to qualify an otherwise misleading representation. The use of disclaimers on social media creates specific issues due to the layout of the representation; take, for example, a tweet, which is limited to 140 characters. Similarly, regard needs to be had for the type of device on which the advertisement or representation will be viewed and whether this will affect how it is displayed. 5.91

Where corrective and qualifying material is published prominently and

in proximity to an allegedly false representation, it may be sufficient to prevent the representation from being false. Whether that is so in any given case will [page 228] depend upon all of the circumstances of the particular case.67 The disclaimer should be located as close as possible to the representation and may not save the statement from being found to be misleading if the overall impression created by the advertisement would nonetheless lead the audience into error. 5.92 Guidance to date shows that there are no exceptions for representations made in different mediums. If the representation cannot be made in a way that is truthful and includes all necessary information, such as qualifications or disclaimers, then the message from antitrust agencies, including the ACCC and the United States Federal Trade Commission (FTC), is that the medium should not be used for that particular representation. It is not a defence that the amount of available space is too small. 5.93

The ACCC’s guidelines on misleading advertising provide that:68

Remember that whether or not something misleads an audience relies on the overall impression created … the consumer is not required to exhaustively search for [the] facts. Instead, the advertiser must clearly direct the consumer’s attention to the most significant terms and conditions. The consumer can then make a reasonably informed judgement about whether to buy.

5.94

The FTC, in its .com Disclosures guidelines, states that:69

If a disclosure is necessary to prevent an advertisement from being deceptive, unfair, or otherwise violative of a Commission rule, and it is not possible to make the disclosure clearly and conspicuously, then that ad should not be disseminated. This means that if a particular platform does not provide an opportunity to make clear and conspicuous disclosures, then that platform should not be used to disseminate advertisements that require disclosures.

5.95 For example, if a tweet contains a statement which must be qualified in order to be accurate, but the disclaimer appears only when a consumer follows a link to a website, this is likely to be insufficient as the consumer may well only ever see the tweet, without progressing to the website. The courts have considered the use of disclaimers and the display of pricing in Australian Competition and Consumer Commission v TPG Internet Pty Limited70 and Australian Competition and Consumer Commission v Jetstar Airways Pty Limited.71

[page 229]

Australian Competition and Consumer Commission v TPG Internet Pty Ltd 5.96 In Australian Competition and Consumer Commission v TPG Internet Pty Ltd,72 TPG Internet Pty Ltd (TPG) was found to have breached the CCA in relation to a national advertising campaign for a broadband internet service named ‘Unlimited ADSL2+’, including advertisements that appeared on the internet. The campaign occurred in two phases, and the court held that the main thrust of the advertisements in each phase was that Unlimited ADSL2+ could be acquired for $29.99 per month. The requirements to also rent a home telephone line from TPG for $30 per month, and to pay a setup fee, were not part of this dominant message. 5.97 TPG argued that the dominant message of each advertisement was suitably qualified by a small print disclaimer that was visible or audible for each advertisement. In respect of the internet advertisements, TPG argued that there was no misleading or deceptive conduct because a consumer viewing one of the ads could ‘click’ on it and would be taken to a detailed page of terms and conditions on TPG’s website, which accurately set out the basis of the offer. The trial judge rejected this argument on the basis that subsequent correction of a misleading statement ‘does not save it from having contravened the law’.73 5.98 At first instance, TPG was awarded a penalty of $2 million in relation to contraventions of the misleading or deceptive conduct provisions in s 18 of the ACL and its predecessor, s 52 of the TPA; the false or misleading representations provisions in s 29 of the ACL and its predecessor, s 53 of the CCA; and the provisions relating to the publication of a single price contained in s 53C of the TPA. On appeal to the Full Federal Court, this penalty was reduced to $50,000 as the Full Federal Court held that the majority of the advertisements in question were not misleading. The Full Federal Court held that the authority that many will only absorb the general thrust of the advertisement74 does not take away from the overarching rule that it is necessary to look at the whole of the advertisement. 5.99 The ACCC successfully appealed to the High Court and the initial $2 million penalty was reinstated. The High Court found that the Full Federal Court had erred in holding that the trial judge was wrong to regard the dominant message of the advertisement as being of crucial importance and to

conclude that the tendency of TPG’s advertisements to be misleading [page 230] was neutralised by the attribution of knowledge to members of the target audience that ADSL2+ services may be offered in a bundle.75

Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd 5.100 In Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd,76 the Federal Court found that Jetstar Airways Pty Limited (Jetstar) and Virgin Australia Airlines Pty Ltd (Virgin) had both contravened the ACL by engaging in misleading or deceptive conduct in breach of s 18 and by making false or misleading representations in contravention of s 29(1)(i) and (1)(m). The conduct involved the manner in which booking and service fees payable by customers purchasing airfares with credit cards were displayed, in the case of Jetstar, on its web or mobile booking sites, and in the case of Virgin, on its mobile booking site only. 5.101 The ACCC alleged that both Jetstar and Virgin advertised and promoted airfares for sale at a prominent headline price without adequately disclosing to potential customers that they would be required to pay a booking and service fee for payments made using one or more payment methods, including widely accepted debit and credit cards. While it was possible to avoid paying this booking and service fee, most customers in fact paid the fee in respect of most transactions. On each occasion, the airlines displayed an initial price for the airfare and it was not until a consumer was well into the booking process that the booking and service fee would be added to the initial price. 5.102 Such conduct is referred to as ‘drip pricing’ and requires online customers to follow a staged booking process throughout which information is disclosed on a progressive basis, such that bit by bit, the original headline price is qualified and increased until the final (higher) price for the particular airfare is reached. 5.103 As in Australian Competition and Consumer Commission v TPG Internet Pty Ltd,77 the court confirmed the well-recognised proposition that conduct may be

misleading if it leads a consumer into error even though the true position is disclosed before the transaction is concluded.78 5.104 The ACCC submitted that, where a price is advertised on the home page of a website and there is no disclosure of additional fees which have [page 231] the effect of increasing the price until the consumer has been drawn into the website and commenced the booking process, the belated disclosure cannot negate or correct the effect of the otherwise misleading price representation on the home page. While the court found this to be the case in the case of both Jetstar and Virgin, significantly it did not accept that a principle of general application as wide as the ACCC’s submission could be extracted from the authorities; rather, whether it is so will depend on the particular facts and circumstances of each case.79 The court summarised the applicable law as stated in Godfrey Hirst NZ Ltd v Cavalier Bremworth Ltd:80 (a) Overall impression. It is the ‘dominant message’ or ‘general thrust’ of the advertisement that is of crucial importance.81 (b) Wrong only to analyse separate effect of each representation. As a corollary from (a), when assessing the mental impression on consumers created by a number of representations in a single advertisement, it is insufficient only to analyse the separate effect of each representation.82 The overall impression cannot be assessed by analysing each separate representation in isolation. (c) Qualifying information sufficiently prominent? Whether headline representations are misleading or deceptive depends on whether the qualifications to them have been sufficiently drawn to the attention of targeted consumers.83 This includes consideration of: (i) the proximity of the qualifying information;84 (ii) the prominence of the qualifying information;85 and (iii) whether the qualifying information is sufficiently instructive to nullify the risk that the headline claim might mislead or deceive.86 (d) Glaring disparity. Where the disparity between the headline representation and the information qualifying it is great, it is necessary for the maker of [page 232]

the statement to draw the consumer’s attention to the true position in the clearest possible way.87 (e) Tendency to lure consumers into error. Applying principles (a) to (d), the question for the court is whether the advertisement viewed as a whole has a tendency to entice consumers into ‘the marketing web’ by an erroneous belief engendered by the advertiser, even if the consumer may come to appreciate the true position before a transaction is concluded.88

Endorsements and testimonials 5.105 The use of endorsements on social media has the potential to mislead consumers when the fact that the endorser has received payment for his or her recommendation is not disclosed. This may be particularly problematic on social media where statements can be disseminated quickly and broadly. 5.106 According to the Nielsen Global Online Consumer Survey,89 more than two-thirds of consumers say they trust opinions stated online — second in trustworthiness only to recommendations from people they know in real life. 5.107 Social media enables users to maintain a degree of anonymity, which in turn makes it easier to engage in tactics such as tricking customers into believing that the ‘facts’ they are supplied with are objective and reliable, when in fact they are merely promotional. There is no way of knowing the commercial affiliations of users of social media. Hyperlinks may be used to direct consumers to other sites which are in fact operated by the same business as the original site. Referees and testimonials may be fictitious, or affiliated with the product or service they are endorsing. The FTC has taken the approach that, ‘while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement’.90 [page 233] 5.108 In 2015, Citymove Pty Ltd was fined $30,600 by the ACCC in relation to allegations that it used fabricated customer identities to post testimonials on Google+ and on YouTube. Such conduct is particularly serious as testimonials on Google+ also appear in Google Search results, meaning Citymove’s overall rating featured prominently on the first page of Google Search results for

removalists within particular locations.91 The conduct followed a previous fine of $6600 in 2011 after Citimove allegedly published false consumer testimonials on a website they had created, called .

Misleading by silence 5.109 In some circumstances, silence may amount to misleading or deceptive conduct. The definition of conduct in the CCA expressly includes ‘refraining (otherwise than inadvertently) from doing that act’.92 The ACL does not create a general duty to disclose information in all situations. However, disclosure is required where its omission creates an overall impression that is likely to lead the audience into error. 5.110 Australian courts have not yet applied this reasoning to conduct involving social media. Arguably, it would be relevant in the treatment of usergenerated conduct, such as third party comments posted on a site. If the owner of a social media site does not take action to correct misleading user-generated representations, there is an argument that their conduct is the refraining to remove or correct a misleading third party statement and could amount to misleading or deceptive conduct by silence. However, the ‘refraining’ must be deliberately undertaken as ‘inadvertence’ will not be sufficient to amount to conduct.93

When is conduct in trade or commerce? 5.111 In Seafolly,94 the court was required to consider whether comments made on a Facebook page were ‘in trade or commerce’. The judgment did not specifically focus on whether the fact that the conduct in question took place on Facebook or specifically on a personal Facebook page had any implications for whether it took place in trade or commerce. Based on the finding in this case, both at first instance and on appeal, that representations made on a personal Facebook page amounted to conduct in ‘trade or commerce’, it can be concluded that the nature of the medium on which the representations were made will not be decisive; rather, the conduct will be considered as a whole. [page 234]

5.112 The court focused on what is required in order for conduct to be ‘in trade or commerce’, finding that:95 … a person who is not an industry participant but who acts as a commentator on industry matters, is unlikely to be held to have published his or her views ‘in trade or commerce’.96 On the other hand, the making of statements which are intended to have an impact on trading or commercial activities, even if made by a person not engaged in the relevant industry, may bear the necessary trading or commercial character.97

5.113 The relevant question is therefore whether the making of the statements was intended to have an impact on trading or commercial activities, irrespective of whether the statements were made by a person engaged in the relevant industry or not. Mere commentary on industry matters may not suffice. Importantly, the court held that representations made on a personal Facebook page by Ms Madden were more than mere commentary; rather, it was caught by s 18 of the ACL as Ms Madden alleged that Seafolly had engaged in conduct which was to the detriment of her own business98 and therefore of a commercial nature. In upholding the primary judge’s finding that the relevant comments were made in trade or commerce, the appeal court further observed that the fact that a substantial number of those who made comments on the personal Facebook page were in the fashion industry supported a finding that the comments made by Ms Madden on her personal Facebook page amounted to conduct in trade or commerce.99 5.114 It has also been stated that there must be an element involving supply of goods or services and/or actual or potential consumers. In Australian Competition and Consumer Commission v SMS Global Pty Ltd,100 representations made on a redundant website belonging to a business that has ceased trading were held not to have been made in trade or commerce. This reflects a pragmatic approach as information on social media may be accessible through cached sites, or otherwise be beyond the control of a business owner to remove.

Nextra Australia Pty Ltd v Fletcher 5.115 In Nextra Australia Pty Ltd v Fletcher,101 it was held that a publication of an article on an internet blog was misleading or deceptive conduct in trade or commerce. In that matter, the respondent, Mr Fletcher, operated a [page 235]

blog known as the ‘Australian Newsagency Blog’. Mr Fletcher was a director and 50 per cent shareholder in NewsExpress Pty Ltd, the franchisor of a newsagency franchise system operating under the brand name ‘newsXpress’ and a competitor of the franchise system operated by the applicant. On 27 April 2011, Mr Fletcher posted an article on his blog entitled, ‘Nasty Campaign from Nextra Misleads Newsagents’, referring to a flyer previously distributed by Nextra. The applicant claimed that a number of statements in the article were untrue and that the respondent, by writing and posting the article on the blog, engaged in conduct that was misleading or deceptive in contravention of s 18 of the ACL. 5.116 The trial judge observed that self-publication by a person of articles or thought pieces relevant to a particular industry — on, for example, a blog — do not necessarily constitute conduct in trade or commerce where, for example, it is clear that the particular blog permits ventilation of personal opinions by the publisher on topics in which he or she is interested, and is provided for the interest of readers. However, in the factual circumstances, the trial judge concluded that Mr Fletcher’s motives in posting material on the blog were mixed and included using the blog to promote his own commercial interests. 5.117 The trial judge referred to the statements of Tamberlin J in Universal Music Australia Pty Ltd v Cooper102 as follows: ‘The evidence is that Cooper benefited financially from sponsorship and advertisements on the website and the attraction to users of accessing the site to obtain downloads from remote sites. I am therefore satisfied that the operation of the website occurred within a trading or commercial context and as part of trade and commerce.’ The trial judge was satisfied that the posting of the article on the blog was conduct in trade or commerce on the basis that Mr Fletcher used the blog, as well as the article in question, for commercial purposes103 and the article was not ‘conduct divorced from his relevant actual or potential trading or commercial relationships’.104 5.118 On appeal, the court differentiated between the reference in s 18 to conduct ‘in’ trade or commerce and ‘with respect’ to trade or commerce when used in the context of s 51(i) of the Constitution. It concluded, however, that Mr Fletcher was an active participant in the newspaper franchise industry and intended his conduct to have an impact on trading or commercial activities.105 Similarly to the finding in Seafolly, this was sufficient to conclude that the conduct took place in trade or commerce.

[page 236]

Damages 5.119 Under Australian law, any party that has suffered loss or damage due to misleading or deceptive conduct may bring a claim for damages under s 18, or alternatively under s 29 where the conduct involved the making of a misleading representation. In Seafolly,106 the court confirmed that damage to the commercial reputation of a corporation arising from misleading or deceptive conduct may be compensated for under the CCA. It applied the test stated by Wilcox J in Typing Centre of NSW Pty Ltd v Northern Business College Ltd107 in determining the size of the compensation, to have regard to ‘the nature of the statements made by the respondents and to the manner and extent of their publication’. 5.120 The manner and extent of the publication will be a significant factor in any case involving social media as the size of the audience may vary significantly. For example, in Seafolly,108 Tracey J took into account the fact that the audience was relatively limited (to Ms Madden’s Facebook friends for less than two days), when considering the extent of harm to Seafolly’s reputation resulting from the postings and ultimately awarding a relatively low award. 5.121 Given that many businesses will not be able to rely on Australia’s uniform defamation laws (most corporations cannot sue for defamation), the ACL provides an important avenue for businesses to achieve redress should their brands be harmed by activity on social media sites.

Compliance with social-media sites’ terms of usage 5.122 As well as complying with laws relating to misleading advertising, advertisers on social media must ensure they comply with the terms and conditions set by the social-media site operators.109 For example, Facebook’s guidelines not only place limits on the contents of advertisements placed on Facebook to prevent antisocial behaviour, they specify that:110 Advertisers are responsible for understanding and complying with all applicable laws and regulations. Failure to comply may result in a variety of consequences, including the cancellation of ads you have placed and termination of your account.

The guidelines further specify that prohibited content includes ‘[d]eceptive, false or misleading content, including deceptive claims, offers, or business

practices’. [page 237] 5.123 Similarly, the Facebook Statement of Rights requires users to agree not to use a personal timeline for commercial gain.111 5.124 The Trademark Policy for Twitter Ads112 prohibits misleading conduct as follows: What does this policy prohibit? •

•

•

Including other brands within your Promoted Tweets in a misleading way: Promoting Tweets with text that misleads users about the advertiser’s brand affiliation may be considered a trademark policy violation. Including other brands in your off-Twitter content in a misleading way: Sharing links, images or other embedded media that create user confusion regarding the advertiser’s brand affiliation may be considered a trademark policy violation This includes content within Promoted Tweets as well as account information such as background, profile photo, profile header, bio and website. Featuring brands within your Promoted Trends in a misleading way: Selecting Promoted Trend names that feature trademarked brands in a way that misleads users about the advertiser’s brand affiliation may be considered a trademark policy violation.

5.125 In light of the difficulties associated with obtaining remedies against social media advertisers (see further at [5.214]–[5.217], below), these terms and conditions will play a powerful role in regulating the conduct of advertisers on social media. Social media platforms have an interest in ensuring that their platform is associated with accurate information and advertising that is useful to their users, thereby attracting increased traffic. They will be incentivised to enforce these terms. Similarly, advertisers will be cautious not to breach these terms and risk their use of the social media platform being denied.

Other specific provisions Single price to be specified in certain circumstances 5.126 At both the time of advertisement and at sale, products and services must clearly display a ‘single price’ which is the minimum total cost that is able to be calculated. This should include:

(a) the price of all aspects of the final product and service; and (b) all taxes, duties and extra fees. 5.127 The single price must be at least as prominent as any other price displayed. This means it should be just as easily identifiable as the prices for all the other aspects. For example, the price of a vehicle being advertised should be inclusive of all costs, including stamp duty. [page 238] 5.128 Social media users must comply with the provisions requiring a single price to be published in a prominent place, irrespective of the medium on which they advertise. The Federal Court and the ACCC have indicated that they will enforce this provision strictly. In Australian Competition and Consumer Commission v AirAsia Berhad Co (AirAsia Berhad),113 Tracey J held that inadvertent error will not be regarded as a mitigating factor when determining penalties. (However, deliberate contravention may, on the other hand, properly be regarded as an aggravating factor.) 5.129 In AirAsia Berhad, Tracey J identified the harm that arises from a failure to display the full price to be paid, notwithstanding that a customer will see the full price before they make their decision to purchase:114 I accept that it is necessary to have regard to the entire booking process and to the fact that, having completed it, a consumer would have become aware of the full price to be paid before committing him or herself to a purchase. It is also relevant that, on Page 2, the potential customer was advised that the fares there quoted excluded taxes and fees. These considerations do not, however, weigh heavily in mitigation. The principal vice to which s 48 is directed is the seductive effect of a quoted price which is lower than the actual amount which the consumer will have to pay in order to receive the relevant service. Unless the full price is prominently displayed the consumer may well be attracted to a transaction which he or she would not otherwise have found to be appealing and grudgingly pay the additional imposts rather than go to the trouble of withdrawing from the transaction and looking elsewhere. The company which is seeking to attract business in contravention of s 48 will also obtain an advantage over competitors who are compliant.

5.130 A similar approach has been adopted in the United States in respect of Twitter advertisements. On 21 November 2011, the United States Department of Transportation entered into a consent order concerning, amongst other things, Twitter advertising by Spirit Airlines Inc. The consent order states that: ‘[P]rint and Twitter advertisements by Spirit violated the advertising requirements specified in 14 CFR 399.84 as well as 49 USC §41712 which

prohibits unfair and deceptive practices’.115 The consent was based, in part on a ‘review of Spirit’s Twitter feed [that] disclosed additional instances where Spirit failed to comply with the Department’s full-fare advertising rule and case precedent’.116 The order directed ‘Spirit to cease and desist from future violations … and assesse[d] the carrier a compromise … penalty of $50,000’.117 [page 239] 5.131 In practice, there is substantial overlap between the requirement to display a single price in accordance with s 48 of the ACL and the general prohibitions against misleading or deceptive conduct in s 18 and false or misleading representations in s 29, resulting in actions often being brought under all three provisions (see, for example, ACCC v TPG118).

Multiple price 5.132 The multiple prices provisions in the CCA specify that if more than one price is displayed in relation to a good or service, the good or service must be supplied at the lower of those prices. 5.133 Social media creates the opportunity for prices to be displayed without being limited to a geographic region. If social media is to be used, it will be necessary for companies to be vigilant in ensuring that geographic qualifiers are expressly made and sufficiently clear. Alternatively, it may mean that companies will move to national pricing strategies.

SOCIAL MEDIA AND ANTITRUST Introduction 5.134 Antitrust laws regulate the behaviour of businesses in order to facilitate competition. They do this by prohibiting conduct, such as taking advantage of a substantial degree of market power for a proscribed anticompetitive purpose, entering into agreements with competitors which contain cartel provisions, or entering into agreements which otherwise have the purpose, effect or likely effect of substantially lessening competition. Conduct

which takes place on social media will be subject to Australia’s competition laws so long as it has the necessary jurisdictional nexus to Australia (see further [5.209]–[5.211], below). 5.135 A large and growing number of countries, including in the Asia– Pacific region, have competition laws in place. Competition laws are premised upon the notion that markets operate so as to best promote the welfare of consumers when they are based on free competition. Like Australia’s laws, the laws of other countries will apply to social media to the extent the conduct falls within the jurisdictional reach of those laws. This means that conduct which is engaged in on social media may be subject to the antitrust laws of multiple jurisdictions. Social media provides a new forum for interaction and communication between competitors. It creates greater opportunities for informal communication and signalling to competitors, and creates greater [page 240] risks due to the fact that it is instantaneous and the original author loses control of their communications after they have been published.

Legal framework Objective of antitrust law 5.136

Section 2 of the CCA sets out the object of the CCA, as follows:

The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.

5.137 Section 2 of the CCA was inserted prior to the amendments which formed the separate ACL; hence, the section already reflects a strong consumer protection focus. Primarily, the object of the CCA focuses on competition as a means for achieving economic welfare. This was stated clearly by McHugh J:119 The parliament has determined that it is in the interests of consumers that firms be required to compete because competition results in lower prices, better goods and services and increased efficiency.

Market definition

5.138 The starting point for applying antitrust law in most instances is to define the relevant market or field of competition within which the conduct in question should be assessed. In order to determine whether two suppliers are competitors it is necessary to identify that they operate in the same market. Similarly, to determine whether there has been a lessening of competition, it is necessary to identify the market in which the level of competition is to be assessed. The market will have a product, geographic and functional element. 5.139 Like many new technologies, social media has had the effect of lowering barriers to entry across various industries and, in turn, broadening the traditional definitions of markets. Consider, for example, a merger in a retail market. Previously, the market would have been defined having regard to geographic location of the stores and the distance consumers would be prepared to travel in order to switch suppliers in the event of a price rise. Anecdotally, the ACCC has indicated that it is now willing — in fact, sees it as necessary to consider — the constraint provided by online retailers.120 [page 241]

Meaning of competitors 5.140 Any organisations that are ‘rivals’ when selling or buying goods or services are competitors. When buying goods or services, an organisation may also compete with companies in other industries. 5.141

A ‘competitor’ includes:

(a) an actual competitor or likely competitor; and/or (b) a company that would be a competitor or likely competitor but for an arrangement or agreement.121

Cartel conduct 5.142 In 2009, the cartel provisions in the CCA were substantially amended. Under the CCA, it is illegal to: (a) make a contract, arrangement or arrive at an understanding which contains a cartel provision (cartel arrangement);122 or (b) give effect to a cartel provision.123

5.143 An attempt to make or give effect to a cartel arrangement is also prohibited. 5.144 Making or giving effect to a cartel provision attracts both criminal and civil sanctions. To be guilty of a criminal offence the defendant must have the knowledge or belief that the arrangement contains a cartel provision. However, it is not necessary to establish that the person knew or believed the cartel provision is unlawful. There is no such knowledge or belief required to be subject to a civil penalty. 5.145

A ‘cartel provision’ exists where:

(a) the ‘competition condition’ is satisfied. The competition condition is satisfied where at least two of the parties to the contract, arrangement or understanding are, or are likely to be, in competition with each other for the supply or acquisition of the goods or services which are the subject of the contract, arrangement or understanding; and (b) either the ‘purpose/effect condition’ or the ‘purpose condition’ is satisfied. 5.146 The ‘purpose/effect condition’ is satisfied if the provision of the contract, arrangement or understanding has the purpose or effect, or likely effect of fixing, controlling or maintaining the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied, acquired or re-supplied by any or all parties to the contract, arrangement or understanding; [page 242] 5.147

The ‘purpose condition’ is satisfied if the provision has:

(a) the purpose of preventing, restricting or limiting the production of goods, the capacity to supply services or the supply of goods or services by any or all parties to the contract, arrangement or understanding; (b) the purpose of market sharing between any or all parties to the contract, arrangement or understanding; or (c) the purpose of bid rigging between parties to the contract, arrangement or understanding. 5.148 The term ‘contract’ is not defined in the CCA. It has its normal meaning and is intended to reflect a legally binding agreement.

5.149 An arrangement or understanding is less formal than a contract, is not legally binding and is therefore generally more difficult to identify. It requires some form of communication (which can be indirect) and consensus or a ‘meeting of the minds’ but can be relatively informal. For example, an arrangement or understanding can arise by ‘a wink and a nod’ or through informal communications at industry gatherings. 5.150 The principle was stated by Lockhart J in Trade Practices Commission v Email Ltd124 as follows: For there to be an arrangement or understanding there must be a meeting of minds for those said to be parties to the arrangement or understanding. In some cases this may be inferred from circumstantial evidence. There must be a consensus as to what is to be done and not just a mere hope as to what might be done or happen. Independently held beliefs are not enough.

5.151 More recently, the relevant legal principles were summarised in Norcast S.ár.L v Bradken Ltd (No 2):125 1. an arrangement or understanding is apt to describe something less than a binding contract or agreement; 2. the elements of an arrangement or understanding are: 2.1 evidence of a consensus or meeting of the minds of the parties, under which one party or both of them must assume an obligation or [undertake to] act in a certain way which may not be enforceable at law; 2.2 a hope or mere expectation that … a party will act in a certain way is not itself sufficient …; 2.3 the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligations; 2.4 in relation to whether or not mutual obligation is a necessary ingredient of an arrangement or understanding, it has been [page 243] suggested that it is difficult to envisage circumstances that would be an understanding within s 45 of the TPA [being the former equivalent of s 44ZZRD] involving the commitment by one party without some reciprocal obligation by the other party; 2.5 an arrangement may be informal as well as unenforceable with the parties free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it; …

5.152 The formation of an anticompetitive understanding is likely to be most relevant for conduct involving social media.

The purpose/effect condition (price fixing)

5.153 A price-fixing provision has the purpose, effect or likely effect, directly or indirectly, of fixing, controlling or maintaining the price in relation to goods or services:126 (a) supplied or acquired or likely to be supplied or acquired by any or all of the parties to a cartel arrangement; or (b) re-supplied or likely to be re-supplied by any person or class of persons to whom those goods or services were supplied or are likely to be supplied by any or all of the parties to a cartel arrangement. 5.154 The term ‘prices’ includes discounts, credits, allowances, rebates and charges of any kind.127 Prices are ‘fixed’, for example, when competitors: (a) agree about their respective pricing; or (b) control or maintain prices by restricting the participants’ ability to freely determine pricing. 5.155 Therefore, any behaviour that limits a company’s independent decision-making power on prices may satisfy the purpose/effect condition.

The purpose condition (output restriction, customer allocation and bid rigging) 5.156 Other than price fixing, a provision in a contract, arrangement or understanding will also amount to a ‘cartel provision’ if it has the purpose of: (a) Restricting output at any stage of the supply chain. This may take the form of a contact, arrangement or understanding to limit production, to refrain from expanding capacity or to limit the type of goods or services to be supplied. [page 244] (b) Market sharing. Market sharing involves a contract, arrangement or understanding whereby competitors agree to allocate customers, suppliers or territories. (c) Bid rigging. Bid rigging arises in the context of competitive tenders where competitors restrict the way that one or more of them responds to a request for bids while they ostensibly bid for the supply of goods or services in a

competitive environment with no coordination with other bidders. Bid rigging involves an agreement, arrangement or understanding between competitors to the effect that one or more parties to the arrangement will refrain from bidding, lodge a less-competitive bid, withdraw from the bidding process, proceed with a bid but in a manner that favours other bidders, or agree on a material component of the bid in advance.

Misuse of market power 5.157 The misuse of market power provisions in s 46 of the CCA prohibit a corporation with a substantial degree of power in a market from taking advantage of that power in that or any other market for a proscribed purpose. The proscribed purposes are: (a) eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market; (b) preventing the entry of a person into that or any other market; or (c) deterring or preventing a person from engaging in competitive conduct in any market. 5.158 Section 46 also prohibits a corporation that has a substantial degree of market power from supplying, or offering to supply, goods or services for a sustained period at a price that is less than the relevant cost to the corporation of supplying such goods or services.

Antitrust law and social media Introduction 5.159 Social media has created a new marketplace to which traditional antitrust laws have been required to adapt. Relevant questions for the application of antitrust law to social media include to what extent may communications made publicly on social media (eg, in relation to a company’s strategy or pricing) result in coordination between competitors to the extent that they can be said to have formed an ‘understanding’. To what extent will statements posted by employees be attributed to their employer? How likely is it that regulators will monitor personal posts and infer from them anticompetitive behaviour?

[page 245] 5.160 The challenges in this area arise predominantly from the lack of clarity in the current state of the law rather than necessarily from the need to apply it to a new environment. Australian courts have grappled with two key areas which now apply to communications on social media. These are: (a) the issue of when communications or ‘signalling’ by competitors will have a sufficient degree of reciprocity to constitute an ‘understanding’; and (b) what is required to satisfy the evidential burden to make out a claim under the misuse of market power provisions.

Conduct involving competitors 5.161 Social media creates an opportunity for companies and individuals to communicate instantaneously and directly (albeit publicly) with their competitors. Such communications can be pro-competitive in that they improve transparency and may increase rivalry through price wars or matching of discounts. However, they also have scope to be anticompetitive. High-risk activities may include: (a) price leadership — where one competitor increases its prices, only to be quickly followed by all the competitors in the market; and (b) price signalling — where one competitor raises (or lowers) the price for a short period and then resumes its normal pricing. All competitors subsequently either adopt the new higher (or lower) price or do not follow suit. This gives the original competitor the opportunity to gauge its competitors’ reactions to its conduct. 5.162 While such behaviour may not be sufficient to constitute an ‘understanding’ between competitors, the risk it creates on social media is that it may attract the attention of the ACCC and result in an investigation which can be lengthy and resource intensive. 5.163 Whether such conduct amounts to an ‘understanding’ will turn on the facts of each case and particularly the degree of consensus between the maker of any such statements and its audience (see [5.148], above). It may also be caught under the provisions which prohibit persons from ‘attempting’ to reach an understanding. The requirement that there be an understanding has been

identified as a gap in the existing laws as conduct which falls short of an understanding but nonetheless reflects coordinated behaviour between competitors (eg, signalling their intentions in relation to price changes) would not be prohibited by the current laws. 5.164 In contrast, the European notion of ‘concerted practices’ is interpreted more widely. A concerted practice will exist where a business ceases independently to determine its market strategy and has contact (whether directly or indirectly) with its competitors with the object or effect of [page 246] influencing their normal competitive behaviour, and which goes beyond mere intelligent adaptation to the existing or anticipated conduct of competitors. 5.165 The European ‘concerted practices’ provision has been included in a number of recently enacted competition laws, including in Malaysia, India and China, and so is relevant to any social media users whose activities encompass those countries. 5.166 In 2015, the Australian Federal Government conducted a comprehensive review of Australia’s competition law and policy (the Harper Review) which recommended a large number of amendments to the CCA, including the introduction of a prohibition against concerted practices which have the purpose, effect or likely effect of substantially lessening competition. At the time of writing, the Federal Government has accepted the recommendation and committed to preparing draft legislation to give effect to the amendment. While some groups have called for certain concerted practices to be prohibited per se, this proposal was not recommended by the Harper Review at this time and therefore was not considered by government.

Unilateral conduct: misuse of market power 5.167 There is a risk that employees of a company with market power may, via their use of social media, inadvertently suggest the firm is misusing its market power to injure or exclude its rivals. Such communication may lead to complaints by competitors which, in turn, may result in an investigation by the ACCC. Even if ultimately unfounded, such an investigation can be costly and

expensive. 5.168 Social media increases this risk due to the ease with which employees may make a public statement and the difficulty faced by companies in seeking to monitor such publications. Hypothetical Barry works for XYZ Co, one of two major supermarkets. He was recently promoted to assistant manager and part of his new role is to determine daily prices for deli products. Barry becomes aware that XYZ Co sells its deli products at a price below cost. When he asks, he is informed that this is part of XYZ’s six-month strategy to attract customer loyalty before ABC fine foods commences trading in the same shopping complex as XYZ. Barry posts on his Facebook page: ‘If you like your salami, swing by my work. There’s no way anyone can be selling this stuff cheaper than us — I know that for sure … the perks of working for Goliath.’

5.169 Barry’s statement does not expressly state that XYZ Co is engaging in illegal activity (predatory pricing). However, there is a possibility that a reader of the statement who had some existing knowledge (eg, of complaints [page 247] received from XYZ’s suppliers) could recognise that Barry’s certainty that the goods in question cannot be supplied at a cheaper price elsewhere was a suggestion of predatory pricing, and be motivated to investigate further.

Penalties 5.170 A contravention of the cartel provisions, misuse of market power provisions and other restrictive trade practices provisions may attract significant penalties, as well as third-party damages claims, declarations, injunctions or other such orders the court deems appropriate. 5.171 The maximum penalty that may be awarded for this conduct per contravention is the greater of:128 (a) 10 per cent of annual global turnover of the group for the previous year; (b) $10,000,000; or

(c) three times the gain realised due to the contravention (if this can be calculated). In addition, the cartel provisions also provide for criminal sanctions, including jail terms for individuals.

ACCC APPROACH AND POWERS Competition and consumer laws in Australia are enforced by the ACCC 5.172 The ACCC is an independent Commonwealth statutory authority, comprised of a chairman, deputy chairmen, commissioners and associate members. Decisions are made through formal meetings of its commissioners.129 Before 1995, the Trade Practices Commission (TPC) was responsible for administering and enforcing the TPA. In 1995, following the Hilmer Committee review, the TPC merged with the Prices Surveillance Commission to form the ACCC. Its function was to administer the TPA (renamed the CCA in 2011). 5.173 The ACCC’s role is to protect, strengthen and supplement the way competition works in Australian markets and industries in order to improve the efficiency of the economy and to increase the welfare of Australians.130 While a significant component of its mandate is the enforcement of competition [page 248] and consumer laws, it also plays a role in educating businesses and consumers about their rights and obligations when operating in Australian markets.

Education/Policy activities — education, advice and persuasion131 5.174 The ACCC publishes numerous guidelines in order to assist consumers and businesses navigate the regulatory regimes affecting their conduct. This is an important part of regulating a new area such as social media. Enforcement can achieve only so much but, at the same time, greater ground can be made by creating an environment in which users understand the rules.

The ACCC has released guidelines on online shopping, targeted at consumers. It has also released social media guidelines, which are discussed at [5.175]–[5.181], below.

ACCC social media guidelines 5.175 The ACCC has issued guidelines on social media.132 The guidelines do not have the force of law but provide an indication of the ACCC’s views and likely approach in a number of areas in which there is no case law as yet. 5.176 As would be expected, the overarching message is that there are no specific or different laws or rules in place for social media. Consumer protection laws apply to social media in the same way they apply to any other marketing or sales channel. 5.177 The guidelines focus on the making of false or misleading claims on social media. They specifically reference that a social media user can be held responsible for posts of public comments made by others on its social media pages which are false or likely to mislead or deceive:133 You must ensure you don’t make any false or misleading claims as part of your marketing and promotional activities. This includes advertisements or statements using any media, including print, radio, television, websites and social media channels like Facebook and Twitter. There are no specific or different consumer laws or rules in place for social media. Consumer protection laws which prohibit businesses from making false, misleading or deceptive claims about their products or services have been in place for decades. These laws apply to social media in the same way they apply to any other marketing or sales channel. … [page 249] You can also be held responsible for posts or public comments made by others on your social media pages which are false or likely to mislead or deceive consumers.

5.178 The guidelines also provide an indication of the types of cases the ACCC will pursue:134 While all complaints are carefully considered, the ACCC directs its resources to investigate and resolve matters in accordance with our compliance and enforcement priorities. The ACCC will take a proportionate response in relation to false or misleading comments on businesses’ social media sites. We are more likely to pursue cases of false, misleading or deceptive conduct if: •

there is the potential for widespread public detriment if the statement is relied on

• •

the conduct is particularly blatant it is by a business that has come to our attention previously.

5.179 The ACCC has recognised that different companies will have different resources to devote to monitoring social media. It has stated that:135 … the amount of time you need to spend monitoring your social media pages depends on two key factors: the size of your company and the number of fans or followers you have.

5.180 In providing examples, the ACCC differentiates between a large company with, for example, 10,000 staff and a company of 12 staff with only 80 Facebook fans. 5.181 The ACCC has also indicated that it would expect 24 hours to be a reasonable time within which a business would remove misleading usergenerated content from its social media page.136

The ACCC’s enforcement powers 5.182 The ACCC has a range of powers when it comes to enforcing the ACL. The ACCC has already brought two successful claims against businesses in the Federal Court in connection with their use of social media.137 In addition to commencing proceedings, the ACCC has numerous investigatory and enforcement powers which will be relevant in the regulation of social media use. [page 250]

Investigation powers 5.183 Section 155 of the CCA sets out the ACCC’s investigatory powers. Under this provision, the ACCC has the power to request the production of documents and the provision of information where it has reason to believe that the CCA has been contravened. It has a further power to require individuals to attend an examination.

Dawn raids 5.184 The ACCC may conduct a ‘dawn raid’ on a company’s premises if it has a reasonable suspicion that the company has engaged in conduct in breach

of the CCA. ACCC officers will arrive at the premises and request entry in order to search for hardcopy documents and documents stored electronically. They have power to make copies and/or remove documents (other than documents protected by legal privilege). They may only conduct a dawn raid if they have been issued with a search warrant by a federal magistrate.

Substantiation notices 5.185 The ACCC may issue a substantiation notice requiring a person to give information and/or produce documents that could be capable of substantiating or supporting a claim or representation made by the person. 5.186 Substantiation notices do not require a person to prove that a claim or representation is true or is not misleading; rather, they are a preliminary investigative tool that helps the ACCC determine whether further investigation is warranted. 5.187 A substantiation notice may be used, for example, to respond to concerns about: (a) two-part advertising claims — such as ‘was/now’ pricing and strikethrough advertising; (b) business opportunities — such as projected earnings; (c) food claims — such as place-of-origin claims, composition claims, health claims; (d) environmental claims — such as biodegradability claims, claims about carbon emission impacts; and (e) product safety claims — such as meeting a prescribed standard that requires testing. 5.188 Individuals are not required to provide information or documents if the information or documents may incriminate them or expose them to a penalty. [page 251] 5.189 A person served with a substantiation notice must comply with the notice within 21 days. Penalties may apply where false or misleading information

is provided. The period for compliance with a notice may be extended where a person applies for the extension during the compliance period and the ACCC considers it appropriate to grant the extension. 5.190 If a person does not respond to the substantiation notice within the compliance period, the ACCC may issue an infringement notice.

Infringement notices 5.191 The 2011 amendments138 to the CCA introduced a power to issue ‘infringement notices’ which are on-the-spot fines where the ACCC has formed a view that a contravention has occurred, including contraventions involving unconscionable conduct, unfair practices (such as component pricing). Infringement notices cannot, however, be issued in respect of misleading or deceptive conduct. 5.192 Infringement notices must be issued within 12 months of the alleged contravention. Penalties must be paid within 28 days (unless extended) and, while the ACCC cannot enforce payment, it can institute court proceedings in respect of the alleged contravention in the event of a failure to pay. 5.193 The ACCC’s Compliance and Enforcement Policy states that it may issue an infringement notice where it ‘considers that the matter may be resolved without legal proceedings’.139

Public warning notices 5.194 The ACCC may issue a public warning notice to alert consumers to a suspected breach of certain provisions of the ACL. The ACCC may issue such a notice where:140 (a) it has reasonable grounds to suspect that the conduct may constitute a contravention of a provision of the CCA; (b) it is satisfied that one or more other persons has suffered, or is likely to suffer, detriment as a result of the conduct; (c) it is satisfied that it is in the public interest to do so; and (d) a person refuses or fails to respond to a substantiation notice and the ACCC considers it to be in the public interest to issue the public warning notice.

[page 252]

Court proceedings 5.195 The ACCC may commence court proceedings in the Federal Court where it considers a breach of the CCA has occurred. The CCA prescribes the maximum penalties which may be awarded. In addition, there are a range of orders which can be made, including: (a) (b) (c) (d) (e)

enforceable undertakings; damages and injunctions; orders for non-party redress; adverse publicity and non-punitive orders; and disqualification orders from managing corporations.

5.196 It is evident that the ACCC has a raft of powers which it can use to enforce the CCA. The substantiation notices are very relevant in the case of social media as they provide the ACCC with an effective way of requiring a company to make good any statements made on its social media sites (or usergenerated content that appears on those sites), without the requirement to commence proceedings and with more certainty than through conducting an investigation under s 155. 5.197 Similarly, the infringement notices are a powerful tool, although they do not apply to misleading or deceptive conduct. This is because many contraventions which occur on social media may not necessarily be significant as individual contraventions and may not justify the cost of commencing proceedings.

Approach taken by other regulators 5.198 As awareness of social media increases, a number of regulators have issued guidance on their views and sought to provide assistance to users. Such guidance tends to follow a common theme; that is, that existing laws must now be applied to a new environment.

United States Federal Trade Commission guidelines

5.199 Section 5 of the United States Federal Trade Commission Act of 1914 (FTC Act) prohibits ‘unfair or deceptive acts or practices’ and covers advertising claims, marketing and promotional activities, and sales practices in general. It is therefore similar in operation to the misleading or deceptive conduct provisions of the CCA. Similar to the ACCC, the FTC has focused on protecting consumers from fraud and deception in the online marketplace. 5.200 Unlike the CCA, consumers are unable to bring private claims under the FTC Act. Only the FTC can commence proceedings. However, many US states have enacted similar legislation under which consumers may seek redress. [page 253] 5.201 In March 2013, the FTC released new guidelines on online advertising called .com Disclosures: How to Make Effective Disclosures in Digital Advertising (.com Disclosure guidelines).141 The .com Disclosure guidelines acknowledge that, ‘Twitter might be a quick, real-time communication tool but companies must still apply the same stringent consumer protection requirements to short-form, online [messages] as they do to traditional advertisements’.142 The guidelines also acknowledge the advances in mobile technology which allow advertisers to reach consumers nearly anywhere they go. 5.202 The .com Disclosure guidelines provide detailed guidance on what is required by social media advertisements in order to comply with the wellunderstood traditional rules around misleading advertising. These include:143 (a) Where practical, advertisers should incorporate relevant limitations and qualifying information into the underlying claim, rather than having a separate disclosure. (b) Disclosures must be clear and conspicuous. Advertisers should consider their placement in the ad and its proximity to the relevant claim, whether it is unavoidable, whether the disclosure needs to be repeated at different places on a website, whether other parts of the ad distract attention. 5.203 The .com Disclosure guidelines specify further practical guidance, 144 including: (a) Take account of the various devices and platforms consumers may use to view advertising and any corresponding disclosure.

(b) When a space-constrained ad requires a disclosure, incorporate the disclosure into the ad whenever possible. (c) When using a hyperlink to a disclosure, make the link obvious, label the hyperlink appropriately, take consumers directly to the disclosure on the click-through page. (d) Preferably design advertisements so that scrolling is not necessary in order to find a disclosure. (e) Display disclosures before consumers make a decision to buy (eg, before they add to ‘shopping cart’). (f) Layout is not an excuse — the guidelines specify that: … if a disclosure is necessary to prevent an advertisement from being deceptive, unfair or otherwise violative of a Commission rule, and it is not possible to make the disclosure clearly and conspicuously, then that ad should not be disseminated.

[page 254] This means that if a particular platform does not provide an opportunity to make clear and conspicuous disclosures, then that platform should not be used to disseminate advertisements that require disclosures. 5.204 The .com Disclosure guidelines provide a number of examples, and specifically refer to tweets, which generally do not provide very detailed information about a product or service (given their limited length) but, rather, require a consumer to click through to a website to get more information and learn the terms of an offer (eg, ‘ad’ at the beginning of a tweet or similar shortform message should inform consumers that the message is an advertisement and the word ‘sponsored’ likely informs consumers that the message was sponsored by an advertiser). 5.205 The .com Disclosure guidelines also address maintaining disclosures with republication. Advertisers should employ best practices to make it less likely that disclosures will be deleted from space-constrained ads when they are republished by others. Some disclosures can be placed at the beginning of a short-form message. Alternatively, if a disclosure is placed at the end of a message, the original message can be written with enough free space that the disclosure is not lost if the message is republished with a comment by others. 5.206

The FTC has also released guidelines concerning the use of

endorsements and testimonials in advertising.145 These guidelines address blogging and indicate that the FTC may penalise bloggers who make an endorsement of a product or service without disclosing the material connections with the seller of the product or service (such as being compensated by the seller). These guidelines also provide specific examples involving Twitter and consumer-generated media.

European Commission guidelines 5.207 The key regulatory document relating to unfair commercial practices and misleading advertising is Directive 2005/29/EC of 11 May 2005 Concerning Unfair Business-to-Consumer Commercial Practices in the Internal Market (Directive 2005/29/EC). It governs misleading practices and aggressive commercial practices. In addition, the European Commission has issued a Staff Working Document on the implementation/application of Directive 2005/29/EC in which it identifies social media, including blogs and social-networking sites, as ‘important avenues for commercial practices, especially hidden ones’ and that online commercial practices are to be covered by Directive 2005/29/EC.146 [page 255]

The UK Competition and Markets Authority 5.208 The UK Competition and Markets Authority (UK CMA) has focused on endorsements on Twitter where users do not clearly state their relationship with a product about which they tweet. In December 2010, in concluding an investigation into Handpicked Media Ltd, the UK Office of Fair Trading, predecessor to the UK CMA, ruled that online advertising and marketing practices are deceptive if they do not disclose that they are paid-for promotions.147 This statement applied to Twitter and online blogs; requiring transparency in online practices. Like the FTC, the UK CMA is demanding that promotional comments must be clearly marked if they have been paid for.

EXTRA-TERRITORIALITY 5.209

The extra-territorial application of the CCA is an important

component of the regulation of social media. Many traders who use social media to access consumers in Australia are physically located in other jurisdictions. In order to fall within the CCA, it is necessary that a company is incorporated in Australia or carrying on a business within Australia. Section 5 of the CCA sets out the extra territorial application of the CCA:148 (1) Each of the following provisions: (a) Part IV; … (c) the Australian Consumer Law (other than Part 5-3); (f) the remaining provisions of this Act (to the extent to which they relate to any of the provisions covered by paragraph (a), (b) or (c)); extends to the engaging in conduct outside Australia by: (g) bodies corporate incorporated or carrying on business within Australia; or (h) Australian citizens; or (i) persons ordinarily resident within Australia. …

5.210 To be captured by the ACL, and certain other provisions of the CCA,149 conduct must also occur in ‘trade or commerce’, defined as either ‘within Australia or between Australia and places outside Australia’. [page 256] 5.211 ‘Carrying on a business within Australia’ has been given a broad interpretation as an occupation, not necessarily profit-generating, as opposed to an activity carried out for pleasure. It also does not require a place of business or corporate presence.150 5.212 In Pioneer Concrete Services Ltd v Galli,151 the Full Court affirmed the statement of Lord Diplock in Town Investments Ltd v Dept of Environment:152 The word ‘business’ is an etymological chameleon; it suits its meaning to the context in which it is found. It is not a term of legal art and its dictionary meanings, as Lindley LJ pointed out in Rolls v Miller153 embrace ‘almost anything which is an occupation, as distinguished from a pleasure — anything which is an occupation or duty which requires attention is a business’.

5.213 The court also confirmed the statement of Mason J in Hope v Bathurst City Council:154 Mason J accepted the meaning No 19 from the Shorter Oxford Dictionary, ‘a commercial enterprise as a going concern’, as the definition which came closest to the popular meaning, although he considered that ‘it is the words “carrying on” which imply the repetition of acts (Smith v Anderson (1880) 15 Ch D 247 at 277–8) and activities which possess something of a permanent character’.

5.214 Section 5 further provides that where a private party seeks damages for loss suffered due to a breach of the CCA and relies on s 5, they must first obtain ministerial consent. Consent will be granted unless the minister is of the opinion that the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct and it is not in the national interest that the consent be given:155 … (3) Where a claim under section 82, or under section 236 of the Australian Consumer Law, is made in a proceeding, a person is not entitled to rely at a hearing in respect of that proceeding on conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister. (4) A person other than the Minister, the Commission or the Director of Public Prosecutions is not entitled to make an application to the Court for an order under subsection 87(1) or (1A), or under subsection 237(1) [page 257] or 238(1) of the Australian Consumer Law, in a proceeding in respect of conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister. (5) The Minister shall give a consent under subsection (3) or (4) in respect of a proceeding unless, in the opinion of the Minister: (a) the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct; and (b) it is not in the national interest that the consent be given.

CONCLUSION Enforcement challenges 5.215 Social media has created a new marketplace with unique characteristics. This has required existing laws relating to advertising and trading to be adapted to an environment in which there is greater transparency and more immediate interaction between businesses and customers. 5.216 Social media is premised on the ability to disseminate information that is timely and accurate. In this context, it is vital that there are checks in place to prevent misleading or deceptive conduct and other activity which has the result of misleading consumers. 5.217

Possibly the greatest challenge to the application of consumer

protection laws to social media is the problem of obtaining redress against a foreign entity. How consumers deal with problems and seek redress, especially cross-border, is still developing and can make some consumers more vulnerable.156 The cost and logistics of cross-border legal proceedings and the typically small sums involved make the imposition of liability on manufacturers and sellers outside Australia impractical for most consumers. 5.218 In the face of these practical difficulties, it is likely that soft regulation and self regulation will play an important role in regulating the conduct of social media users. Against a background where enforcement in the form of court proceedings and penalties may be challenging, soft regulation, in the form of policies such as the ACCC’s social media guidelines, guidance from other fair trading departments, trade associations and consumer groups and policies or terms of use imposed by social media sites, will be important in practice. In addition, just as social media sites rely on user-generated content to provide a transparent trading platform (eg, Airbnb, eBay, TripAdvisor), the public nature of social media is likely to assist as it provides parties who [page 258] are the victims of misleading conduct or scams with an ability to alert others to such practices. It is also likely that social media sites will have a vested interest in maintaining the accuracy and reliability of content appearing on their sites and will increasingly play a role in ensuring this to be the case.

Obligation on companies to monitor and comply 5.219 As with all developing areas of law, there is a need for businesses to become aware of their new obligations and to take steps to ensure compliance through internal education, training and monitoring. The ACCC’s social media guidelines suggest there is an expectation that businesses will inform themselves of the rules and monitor their compliance. The ACCC has also indicated that this obligation is commensurate to the resources a firm has available to them. 5.220 Given the rapid growth and far reach of social media, it will be vital for companies to stay abreast of legal developments and comply with the applicable laws. In this way, social media will operate as a fair and transparent

market to the benefit of companies and consumers alike.

[page 259]

PRACTITIONER TIPS •

•

•

• •

1. 2.

Companies are responsible for content, including user-generated content, which appears on their social media site. Companies should develop a policy for how often their social media sites will be monitored, having regard to their available resources and the size of their audience. Companies should exercise caution when qualifying a headline message with disclaimers or ‘fine print’. Whether a headline message which may otherwise be misleading is adequately qualified will be a question of fact. A threshold question for whether conduct occurring on social media is subject to the CCA is whether it takes place ‘in trade or commerce’. If conduct is engaged in for commercial purposes, it is likely to be regarded as being ‘in trade or commerce’, irrespective of whether it occurred on a personal social media site or not. Given that the law around social media is in a developmental phase, useful guidance should be obtained from the ACCC’s guidelines on social media. Companies should ensure they comply with the terms of use of social media sites, or risk being prohibited from using those sites.

Australian Competition and Consumer Commission, Social Media, available at . McKinsey, Turning Buzz into Gold: How Pioneers Create Value from Social Media, May 2012, . 3. iConsumer survey among social media users in the United States, cited in Turning Buzz into Gold, p 6, above. 4. CCA s 2. 5. Seafolly v Madden (2012) 297 ALR 337; 98 IPR 389; [2012] FCA 1346; Madden v Seafolly Pty Ltd [2014] FCAFC 30. 6. Australian Advertising Standards Bureau, Advertiser: Diageo Australia Ltd, Case Report 0272/12, 11 July 2012. 7. CCA s 5. 8. Productivity Commission, Review of Australia’s Consumer Policy Framework, 30 April 2008, Vol 1 No 45, available at . 9. Australian Competition and Consumer Commission, Other Consumer Laws, available at . 10. Ministerial Council on Consumer Affairs, Joint Communique, Perth, 4 December 2009, available at .

11. Above. 12. Prior to the introduction of the ACL, misleading or deceptive conduct was prohibited in identical terms by s 52 of the TPA. 13. Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682. 14. Australian Competition and Consumer Commission v Allergy Pathway (No 2) (2011) 192 FCR 34; [2011] FCA 74. 15. Australian Competition and Consumer Commission, Social Media, available at . 16. Australian Competition and Consumer Commission, False or Misleading Claims, available at . 17. Above. 18. Above, n 16. 19. Seafolly v Madden, above, n 5. 20. (1978) 22 ALR 621 at 648–9; 36 FLR 134 at 167. 21. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; 1A IPR 684; [1982] HCA 44 (Puxu); Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at 368. 22. Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; 55 ALR 25. 23. Puxu, above, n 21, ALR at 6; 1A IPR at 688. 24. (2013) 294 ALR 404; 99 IPR 197; [2013] HCA 1. 25. Above, at [6]–[9]. 26. See Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677; [2000] HCA 12. 27. Above. 28. See Puxu, above, n 21, CLR at 197 per Gibbs CJ; see also Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228; [1978] HCA 11 per Stephen J; Yorke v Lucas (1985) 158 CLR 661 at 666; [1985] HCA 65 per Mason ACJ, Wilson, Deane and Dawson JJ. 29. Yorke v Lucas, above, CLR at 666. See also Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at 605; [2004] HCA 60 per Gleeson CJ, Hayne and Heydon JJ; Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305 at 321 per French CJ and Kiefel JJ, 323–4 per Gummow J; [2009] HCA 19. 30. Google v ACCC, above, n 24. 31. TPG Internet Pty Ltd v ACCC (2012) 210 FCR 277; [2012] FCAFC 190 at [130]. 32. ACL s 47(2)(e). 33. Australian Competition and Consumer Commission v Allergy Pathway, above, n 14; Madden v Seafolly, above, n 5; Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153. 34. Google v ACCC, above, n 24, at [118]. 35. Australian Competition and Consumer Commission v Allergy Pathway (No 2), above, n 14. 36. Above, at [33]. 37. Australian Advertising Standards Bureau, Advertiser: Diageo Australia Ltd, above, n 6. 38. Australian Association of National Advertisers, Code of Ethics, 1 January 2012, available at . 39. Above, at definition of ‘Advertising or Marketing Communications’. 40. Australian Advertising Standards Bureau, Advertiser: Diageo Australia Ltd, above, n 6, at [5]. 41. Advertising Standards Bureau, Social Media Advertising, (accessed 23 March 2016). 42. Australian Association of National Advertisers, AANA Code of Ethics Practice Note, 3 June 2015. 43. Alcohol Advertising Review Board, Determination: Smirnoff Vodka (Diageo Australia Pty Ltd), Report 46/12, 5 July 2012, available at . 44. ABAC Complaints Panel Determination No: 58/12, .

45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82.

ABAC Complaints Panel Determination No: 59/12, . Australian Competition and Consumer Commission, Social Media, available at . (1991) ATPR 41-076. Statement by ACCC Commissioner, Sarah Court, reported by W Ma, ‘ACCC Backs ASB’s Facebook Ruling’, AdNews, 13 August 2012. Above, n 46. Google v ACCC, above, n 24. Above, n 24, at [69]. Above. Yorke v Lucas, above, n 28. Google v ACCC, above, n 24, at [105] citing Yorke v Lucas, above, CLR at 666 per Mason ACJ, Wilson, Deane and Dawson JJ. (1988) 82 ALR 415; 12 IPR 194. Above, ALR at 427. Seafolly v Madden, above, n 5. Madden v Seafolly, above, n 5. Seafolly v Madden, above, n 5. Above, n 5, at [64] quoting Global Sportsman Pty Ltd v Mirror Newspapers Ltd, above, FCR at 88, ALR at 31 per Bowen CJ, Lockhart and Fitzgerald JJ. Above, n 5, at [65] quoting Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 46–7; 111 ALR 61 at 105; 24 IPR 529 at 573 per Hill J. Above. Above, n 5, at [66] quoting Industrial Equity Ltd v North Broken Hill Holding Ltd (1986) 9 FCR 385 at 392–3; 64 ALR 292 at 300; 6 IPR 317 per Burchett J. Above, n 5, at [66] quoting Industrial Equity Ltd v North Broken Hill Holding Ltd, above, FCR at 393, ALR at 301 per Burchett J. Above, n 5, at [66] quoting Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191; ATPR (Digest) 46-223; [2002] FCA 860 at [124]. Above, n 5, at [66] quoting Bateman v Slatyer (1987) 71 ALR 553 at 559; 8 IPR 33 at 39. Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2015] FCA 1263. Australian Competition and Consumer Commission, False or Misleading Claims, available at . United States Federal Trade Commission, .com Disclosures: How to Make Effective Disclosures in Digital Advertising, Washington DC, March 2013, available at . [2013] HCA 54. [2015] FCA 1263. [2011] FCA 1254. ACCC v TPG, above, at 112; SAP Australia Pty Ltd v Sapient Australia Pty Ltd [1999] FCA 1821; (1999) 169 ALR 1 at [51]; Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 at 199. Tobacco Institute of Australia Ltd v Australasian Federation of Consumer Organisations Inc [1992] FCA 630 at 4. Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 at 45. [2015] FCA 1263. Above, n 75. SAP Australia Pty Ltd v Sapient Australia Pty Ltd [1999] FCA 1821; (1999) 169 ALR 1 at [51]; Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 at 199. Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2015] FCA 1263 at 38. [2014] NZCA 418. ACCC v TPG, above, n 72, at [45], [51], [52]; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3; (2003) ATPR 41-908 at [28]. ACCC v TPG, above, n 72, at [52], citing Arnison v Smith (1889) 41 Ch D 348 (CA) at 369; Gould v

Vaggelas [1985] HCA 75; (1985) 157 CLR 215 at 252; Puxu (High Court), above, n 21, at 199, 210–11. 83. ACCC v Signature Security, above, n 81, at [25]. 84. ACCC v Signature Security, above, n 81, at [26], citing George Weston Foods Ltd v Goodman Fielder Ltd [2000] FCA 1632 at [46]. 85. ACCC v Signature Security, above, n 81, at [27]; National Exchange Pty Ltd v Australian Securities and Investment Commission [2004] FCAFC 90; (2004) 49 ACSR 369 at [51]–[52]. 86. Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289; (2003) ATPR 41-971 at [35]–[41]; Energizer NZ Ltd v Panasonic New Zealand Ltd (HC Auckland CIV 2009-404-4087 16 November 2009) at [81]. 87. National Exchange v ASIC, above, n 85, at [55], [58] and [62]; ACCC v Signature Security, above, n 81, at [27]. 88. ACCC v TPG, above, n 72, at [50], citing Trade Practices Commission v Optus Communications Pty Ltd (1996) 64 FCR 326 (FCA) at 338–9; SAP Australia Pty Ltd v Sapient Australia Pty Ltd [1999] FCA 1821; (1999) 169 ALR 1 at [51]; Australian Competition and Consumer Commission v Commonwealth Bank of Australia [2003] FCA 1129; (2003) 133 FCR 149 at [47]; and Bridge Stockbrokers Ltd v Bridges [1984] FCA 391; (1984) 4 FCR 460 (FCAFC) at 475. 89. Nielsen, Under the Influence: Consumer Trust in Advertising, September 2013, available at . 90. United States Federal Trade Commission, Press Release: Federal Trade Commission Publishes Final Guides Governing Endorsements, Testimonials, 5 October 2009, available at . 91. Australian Competition and Consumer Commission, Removalist Company Pays Penalties for Alleged False or Misleading Online Testimonials, media release, 30 July 2015. 92. CCA s 4(2). 93. Above. 94. Seafolly v Madden, above, n 5. 95. Above, n 5, at [82] per Tracey J. 96. See, for example: Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449; [1999] FCA 1019. 97. See, for example: Fire Watch Australia Pty Ltd v Country Fire Authority [1999] FCA 761; (1999) 93 FCR 520. 98. Madden v Seafolly, above, n 5, at 97. 99. Above, n 5, at 98. 100. [2011] FCA 855. 101. [2014] FCA 399. 102. [2005] FCA 972. 103. Nextra v Fletcher, above, n 101, at 37. 104. Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17. 105. Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52 at 57. 106. Seafolly v Madden, above, n 5. 107. Above, n 5, at [96] quoting Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 at 641; (1989) ASC 55-709. 108. Seafolly v Madden, above, n 5. 109. See, for example: Facebook, Guidelines, available at . 110. Above. 111. Facebook, Statement of Rights and Responsibilities, available at . 112. Available at . 113. [2012] FCA 1413. 114. Above, at [31]. 115. United States of America Department of Transportation, Consent Order Served on Spirit Airlines Inc, 21 November 2011, available at .

116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152.

Above. Above, n 115. Above, n 72. Boral Besser Masonry Ltd v ACCC (2003) 215 CLR 374; 195 ALR 609; [2003] HCA 5. M Smith, ‘Rod Sims: Shopping for a Good Deal’, Business Review Weekly, 21 March 2013, available at . CCA ss 44ZZRD, 44ZZRF, 44ZZRG, 44ZZRJ, 44ZZRK. CCA ss 44ZZRF, 44ZZRJ. CCA ss 44ZZRG, 44ZZRK. (1980) 31 ALR 53. [2013] FCA 235 at 263 (citations omitted). CCA s 44ZZRD(2). Above. CCA s 76. Australian Competition and Consumer Commission, Decision Making Processes, available at . Australian Competition and Consumer Commission, About the ACCC, available at . Australian Competition and Consumer Commission, Compliance and Enforcement Policy, available at . Australian Competition and Consumer Commission, Social Media, available at . Above. Above, n 132. Above, n 132. ACCC Commissioner Sarah Court, quoted in W Ma, ‘ACCC Backs ASB’s Facebook Ruling’, AdNews, 13 August 2012. Seafolly v Madden, above, n 5, and Australian Competition and Consumer Commission v Allergy Pathway, above, n 14. Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 (Cth). Australian Competition and Consumer Commission, Compliance and Enforcement Policy, available at . ACL s 223. United States Federal Trade Commission, .com Disclosures: How to Make Effective Disclosures in Digital Advertising, Washington DC, March 2013, available at . Above. Above, n 141, at 112. Above, n 141, at 112. United States Federal Trade Commission, Guide Concerning the Use of Endorsements and Testimonials in Advertising, Washington DC, 2009, available at . European Commission, Staff Working Document: Guidance on the Implementation/Application of Directive 2005/29/EC on Unfair Commercial Practices, 3 December 2009, available at . United Kingdom Office of Fair Trading (UK OFT), Investigation into Inadequate Disclosures in Respect of Commercial Blogging Activity, 13 December 2010. The UK OFT closed effective April 2014, with its responsibilities passing to various organisations, including the UK CMA. CCA s 5. The cartel provisions contained in ss 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not require conduct to take place in trade or commerce. Bray v Hoffman-La Roche Ltd (2002) 118 FCR 1; 190 ALR 1; [2002] FCA 243. [1985] VR 675 at 705; (1985) 4 IPR 227 at 235. Above, quoting Town Investments Ltd v Dept of Environment [1978] AC 359 at 383 per Lord Diplock.

153. (1884) 27 Ch d 71 at 88. 154. Pioneer Concrete Services Ltd v Galli [1985] VR 675 at 705; (1985) 4 IPR 227 at 235 quoting Hope v Bathurst City Council (1980) 144 CLR 1 at 8–9; 29 ALR 577 at 582. 155. CCA s 5. 156. Council of Australian Governments’ Legislative and Governance Forum on Consumer Affairs and Consumer Affairs Australia New Zealand, Strategic Agenda 2013–2015, 1 July 2013, p 9, available at .

[page 261]

6 Social Media and Copyright Justine Munsie

OVERVIEW • •

•

In most respects, copyright concerns in social media mirror those which present themselves in traditional publishing and broadcast media. Questions arise for content creators, users and owners of social media sites and other publishers as to how copyright law protects online content, the ways in which the content can be used by third parties and to what extent other users and site hosts can be liable if content is misused. The real difference for copyright considerations between social media and traditional media is the speed and breadth of dissemination of copyright material and the consequences that ensue.

INTRODUCTION 6.1 In the context of copyright law, social media is a platform or collection of content, much of which is generated by users and which is posted, liked, shared and often copied and reproduced both within and outside the original social media platform and in other online and traditional media. 6.2 Questions arise for content creators, users and owners of social media sites and other publishers as to how copyright law protects social media content,

the ways in which the content can be used by third parties and to what extent other users and site hosts can be liable if social media content is misused. 6.3 This chapter considers the questions of ownership and use, infringement and remedies for infringement, including liability of social media site hosts. [page 262] 6.4

For the purposes of this chapter, social media ‘content’ includes:

(a) short forms of written content, such as tweets, status updates and comments on sites such as Facebook and Twitter; (b) longer form blogs and commentary posted to subject-specific sites, customer review websites and blogs; and (c) photographs, music and videos uploaded to Facebook, Twitter and specific image- and film-sharing sites such as Instagram, Flickr and YouTube. 6.5 Copyright may subsist in each of these forms of content and, accordingly, the Copyright Act 1968 (Cth) (Copyright Act) applies to any content created, posted or used in Australia. There are no provisions in the Copyright Act which specifically address social media content. Instead, the rules which apply to traditional content, such as written works, photographs, music and video, apply equally to social media use. In addition, content is usually governed by the terms of use which apply to each social media site and are accepted by users. 6.6 There have been changes to aspects of copyright law made or proposed, both internationally and in Australia, which would have a particular impact on aspects of social media copyright. This chapter considers, in particular, the recent legislative change in the United Kingdom and proposals under consideration by the Australian Law Reform Commission (ALRC) regarding ‘orphan works’ and other proposals to limit liability of social media providers.

COPYRIGHT OWNERSHIP OF SOCIAL MEDIA CONTENT 6.7 Like most forms of material, copyright in social media content is, at first instance, governed by the Copyright Act. 6.8

However, as discussed below, most social media sites require users to

accept terms and conditions which invariably alter the position of owners of copyright in content which interacts with, or is generated through, those sites.

Ownership of copyright under the Copyright Act In what subject matter does copyright subsist? 6.9 Copyright subsists only in content as it is expressed and has been reduced to a ‘material form’ — generally when it has taken shape in the form of words, images or sounds. In other words, there is no copyright in ideas or concepts alone before they have been reduced to writing or some other form. Accordingly, for example: (a) there may be many different apps which offer the same service or functionality in a general sense and no app infringes the copyright in the idea of the other; [page 263] (b) there may be many photographs taken of the same streaker at a sporting match but each is original and none infringes the copyright of another; and (c) any number of blogs may review the same fashion show and, provided they are written separately by their respective authors, none infringes the others’ copyright. 6.10

For copyright to subsist in content, it must also be established that:

(a) the content falls within one of the recognised subject matters identified in the Copyright Act; and (b) there is the requisite connection between the content and Australia. 6.11 The Copyright Act recognises the following subject matters as ones in which copyright may subsist: (a) (b) (c) (d)

literary, dramatic, musical or artistic works (s 32); sound recordings (s 89); films (s 90); television broadcasts and sound broadcasts (s 91); and

(e) published editions of the subject matters set out in point (a) above (s 92). 6.12 Social media content — such as written content (ie posts, comments, messages, tweets, blogs, etc), images, music and video — will generally fall within these subject matters. For most social media content, the term of the copyright will be 70 years after the death of the author. Copyright in audiovisual posts lasts for 70 years after the end of the year in which the underlying film or sound recording was first broadcast. 6.13 It is important to note that, in respect of the subject matter set out in [6.11(a)], above, (literary, dramatic, musical or artistic works), there is also a requirement that such content be ‘original’. 6.14 The concept of ‘originality’ is explored further below (beginning at [6.32]) and is a matter of particular interest in relation to short forms of written content on social media sites.

Who is the owner of copyright in a subject matter? 6.15 Broadly, ownership of content under the Copyright Act operates as follows: (a) The author of a ‘work’ (see [6.11(a)], above) is the first owner of copyright in the work (s 35(2)). Exceptions to this include where: (i) a work is made by a person in pursuance of the terms of their employment by another person under a contract of service or apprenticeship (s 35(6)); [page 264] (ii) a literary, dramatic or artistic work is made by a person under the terms of their employment for a proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship (s 35(4)); (iii) photographs, portraits and engravings are commissioned (s 35(5)); (iv) a work is made or first published under the direction or control of the Commonwealth or the state (ss 176, 177); (v) a work is made or first published by an international organisation (ie, the United Nations (UN), International Monetary Fund (IMF), World

Health Organization (WHO), etc) (s 187); (vi) there is an assignment of future copyright in the work (whether wholly or in part) (s 197). (b) The maker of ‘a subject matter other than a work’ (see [6.11(b)]–[6.11(e)], above), or — in the case of a published edition — the publisher, is the first owner of copyright in the subject matter. Exceptions to this include where: (i) a sound recording or film is made in pursuance of an agreement, for valuable consideration, to make the sound recording or film (ss 97(3), 98(3)); (ii) a sound recording of a live performance is made and there are multiple makers (s 97(2)); (iii) a film which is not made in accordance with (b)(i) above, but is made in circumstances where the director directs the film under their employment which is under a contract of service or apprenticeship (s 98(4)–(6)); (iv) a sound recording or cinematograph film is made under the direction or control of the Commonwealth or the state (s 178); (v) a sound recording, film or published edition is made or first published by an international organisation (ie, the UN, IMF, WHO, etc) (s 188); (vi) there is an assignment of future copyright in the subject matter (whether wholly or in part) (s 197). 6.16 The question of ownership may also be affected by whether the subject matter came into existence before or after the commencement of the Copyright Act (1 May 1969), although this tends not to affect the vast majority of social media content which comes into existence on a daily basis.

Who is the author/maker of social media content? 6.17 In relation to works, the ‘author’ is not a term defined under the Copyright Act. The exception to this is with photographs, where the author is defined as ‘the person who took the photograph’. [page 265] 6.18 As copyright law seeks to protect the expression of ideas rather than their formulation, the author is generally the person who first reduces the work

(whether it be literary, dramatic, musical or artistic) to its material form. 6.19 Exceptions to this exist, for instance, where the work that materialises is almost solely a transcription, in which case the person transcribing the work is regarded to be acting as an agent for the true author of the work only.1 6.20 In contrast, s 22 of the Copyright Act expressly prescribes the identity of the ‘maker’ for the purposes of subject matter other than works. These are: (a) in the case of a sound recording (not of a live performance): the person who owned the first record embodying the sound recording at the time it was produced (s 22(3)); (b) in the case of a sound recording (of a live performance): the person(s) who owned the record on which the recording is made at the time of the recording, and the performer(s) (unless the performance is conducted in pursuance of the terms of their employment by another person under a contract of service or apprenticeship, in which case the employer takes the place of the performer(s)) (s 22(3A)–(3B)); (c) in the case of a film: the person by whom the arrangements necessary for the making of the film were undertaken (s 22(4)); and (d) in the case of television and sound broadcasts: the person who provided the broadcasting service by which the broadcast was delivered (s 22(5)). 6.21 Generally speaking, then, the author and first owner of social media content is the person who first wrote, photographed, produced or broadcast it. This will often also, but not always, be the person who first uploads the content to a social media site. However, where social media users post content which has been created by others, the creator, not the social media user, remains the owner of copyright. 6.22 Authors of social media content do not lose or assign their copyright merely by posting the content online. While those authors are almost always providing certain rights to share the content in certain ways, they do not give up their copyright rights entirely by making it available through social media. In other words, whilst it is publicly available, the content is not regarded as being in ‘the public domain’ and free for everyone to use without permission. 6.23 The case of ‘Naruto the Macaque’ illustrates not only the value of social media content but also, correspondingly, the lengths to which some parties may go to prove ownership over that content. 6.24

In 2011, Naruto, a crested macaque, took multiple photographs of

himself using a camera set up on a tripod by photographer David John Slater. The ‘monkey selfies’ were then published by Slater in 2014, using [page 266] the self-publishing platform, Blurb, Inc. The publication named David Slater and Wildlife Personalities, Ltd as the copyright owners of the images. Soon afterwards, People for the Ethical Treatment of Animals (PETA) and primatologist Antje Engelhardt, as ‘Next Friends’, sued David Slater, Blurb, Inc and Wildlife Personalities, Ltd on behalf of Naruto, stating that Naruto owned the images and that, by ‘falsely claiming to be the photographs’ authors and by selling copies of the images’, the publication had infringed the macaque’s copyright. 6.25 The plaintiffs submitted that Naruto should be assigned the copyright and the proceeds be administered by Next Friends to benefit him and other macaques living in the Tangkoko reserve on the island of Sulawesi, Indonesia. 6.26 The plaintiffs claimed that Naruto was highly intelligent, possessed opposable thumbs and, due to his previous dealings with tourists, was said to understand ‘cause-and-effect relationship between pressing the shutter release’. It was argued that, because of this, Naruto was able to use the camera to author the selfies through autonomous action. Unfortunately for Naruto and his Next Friend suitors, however, the California Northern District Court found that Naruto was not the author of the photographs as the United States Copyright Act 1976 does not confer standing upon animals. The court agreed with the defendants that ‘while Congress and the President can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act’.2

Assignment of copyright 6.27 Section 196 of the Copyright Act governs the assignment of copyright in material. 6.28 Subsection 196(1) establishes that ‘[c]opyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law’. As copyright comprises the bundle of exclusive rights

which vest in the subject matter, and not the subject matter itself, an assignment of copyright in the subject matter does not necessarily also mean an assignment of the subject matter, and vice versa. Rather, there must be an express or implied agreement to the contrary for both the underlying material and the copyright to be assigned. 6.29 It goes without saying that one cannot validly assign that which they do not own, and accordingly only the owner of copyright in the subject matter can assign such rights to another. Moreover, an assignment of copyright cannot involve the assignment of exclusive rights which do not arise from the particular subject matter. [page 267] 6.30 Subsection 196(2) of the Copyright Act provides that owners are capable of limiting an assignment of copyright in any way, including in relation to: (a) the exclusive rights which are assigned (including any one of the acts which fall within an exclusive right); (b) the geographical scope within Australia of the assignment; and (c) the period of time for which the assignment lasts (ie, where the assignment is intended to be for less than the duration of copyright remaining in the subject matter at the time of the assignment). 6.31 In terms of form, for an assignment of copyright in a subject matter to be valid, the assignment must be made in writing and signed by or on behalf of the assignor of the copyright: s 196(3). Two points worth noting are: (a) ‘Writing’ is defined in s 10(1) of the Copyright Act as ‘a mode of representing or reproducing words, figures or symbols in a visible form’. This would appear to include assignments reduced to writing in an electronic form, although this does not yet appear to have been the subject of judicial consideration. (b) The requirement under s 196(3) that the instrument of assignment be ‘signed’ by or on behalf of the assignor is an important one. In relation to content on social media, it may be difficult to satisfy this requirement in circumstances where all social media interaction takes place online. The

Australian Copyright Council has recently suggested that this may be overcome by having users type their name as a form of signature.3 Facebook’s online form for reporting intellectual property right infringements utilises an electronic signature.

‘Originality’ and copyright subsistence in written text on social media sites 6.32 There is a great deal of jurisprudence regarding the requirement for ‘originality’ in relation to works. In Computer Edge Pty Ltd v Apple Computer Inc,4 Gibbs CJ defined the term ‘original’ as follows:5 The expression ‘original’ in [s 32 of the Copyright Act] does not mean that the work must be the expression of original or inventive thought. ‘The originality which is required relates to the expression of the thought. But the [Copyright Act] does not require that the expression must be in an original or novel form, but that the work must not be copied from another work — that it should

[page 268] originate from the author’ … Originality is a matter of degree, depending on the amount of skill, judgment or labour that has been involved in making the work.

6.33 More recently, in IceTV Pty Ltd v Nine Network Australia Pty Ltd,6 French CJ, Crennan and Kiefel JJ made the following comments when discussing the concept of originality in relation to literary works:7 The requirement for copyright subsistence that a literary work be ‘original’ was first introduced into the Copyright Act 1911 (Imp), although it had already been recognised at common law. Originality for this purpose requires that the literary work in question originated with the author and that it was not merely copied from another work. It is the author or joint authors who bring into existence the work protected by the Act. In that context, originality means that the creation (ie the production) of the work required some independent intellectual effort, but neither literary merit nor novelty or inventiveness as required in patent law. There has been a long held assumption in copyright law that ‘authorship’ and ‘original work’ are correlatives; the legislation does not impose double conditions.

6.34 The extent to which a work involves the application of some ‘independent intellectual effort’ or original ‘skill, judgment or labour’ is a highly relevant consideration in the assessment of whether a work possesses the requisite originality for copyright to subsist.

Can tweets and similar content be sufficiently original to attract copyright protection? 6.35 Originality emerges as an issue in relation to some of the content which appears on social media — in particular, short-form written content such as posts, comments and tweets comprising short phrases, which are often descriptions of everyday events or reactions to other posts. A similar question of ‘originality’ arose in the context of newspaper article headlines in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (Fairfax v Reed).8 6.36 Fairfax is the publisher of, among other things, the Australian Financial Review (AFR). Reed provided a subscription service (titled ‘ABIX’) consisting of a collection of abstracts of articles featured in various newspapers and magazines in Australia (including the AFR). The abstracts comprised the headline of the article (typically unchanged), the by-line and a brief summary of the article written by a Reed employee (in the order of around one paragraph in length). [page 269] 6.37 Fairfax brought a claim against Reed for infringement of its copyright in a number of different works, including each of the headlines which appeared in its AFR editions. One of the issues which the court considered was whether headlines were original literary works in which copyright could subsist. 6.38 By way of evidence, Fairfax ultimately relied upon two AFR editions (27 June 2007 and 1 November 2007) with five selected headlines from each edition, and the evidence of two senior employees at the AFR regarding, among other things, the preparation of headlines and their significance. 6.39 Justice Bennett found no copyright in any of the headlines selected by Fairfax. While her Honour acknowledged that it was possible that copyright could subsist in a headline, her Honour found that it was unlikely that this would be the case in most instances because a headline would not be considered literary, nor would it be original. 6.40 In considering the literary character of a headline, Bennett J found that headlines were generally ‘like titles, simply too insubstantial and too short to qualify for copyright protection as literary works’.9 Her Honour referred to the

English decision in Exxon Corporation v Exxon Insurance Consultants International Ltd10 and the finding that a word ‘was not a “literary” work because it was not intended to afford information and instruction or pleasure in the form of literary enjoyment’.11 6.41 On the question of originality, her Honour found that novelty was not a requirement. Nevertheless, Bennett J considered that ‘it must involve more than mere authorship’ (echoing the decision of Isaacs J in Sands & McDougall Pty Ltd v Robinson).12 6.42 In stark contrast, the UK decision in Newspaper Licensing Agency Ltd v Meltwater Holding BV (Meltwater)13 indicates a more generous attitude by the British courts towards the authors of newspaper headlines than has been the case in Australia.

Newspaper Licensing Agency Ltd v Meltwater Holding BV (Meltwater)14 6.43 Meltwater involved the creation of various materials (such as email newsletters) by Meltwater, a media monitoring and analytics service. [page 270] The materials included extracts from articles published in English newspapers, accompanied by the headlines of the original articles. 6.44 At first instance, Proudman J found that copyright subsisted in the articles and the headlines and that the extracts and reproductions published by Meltwater to its clients constituted infringement. Meltwater appealed the decision. 6.45 A bench of three judges unanimously dismissed the appeal. In his leading judgment, the Chancellor of the High Court rejected the arguments put by counsel for the appellants that copyright could not subsist in a headline. Referring to the relevant provisions of the Copyright, Designs and Patents Act 1988 (UK), his Honour considered the requirement that, for copyright to subsist in a headline, it must be a work and it must be both literary and original.15 6.46

His Honour found a headline to be ‘plainly literary as it consists of

words’.16 His Honour then turned to the issue of originality and applied the test set out by the European Court of Justice in Infopaq International A/S v Danske Dagblades Forening17 that the work must be the ‘author’s own intellectual creation’. This was said by his Honour to be a question of whether the work originated with the author rather than one of novelty or merit.18 6.47 His Honour upheld the finding of the trial judge that a substantial number of the headlines in question satisfied these two criteria and that copyright was infringed by their reproduction by Meltwater. 6.48 While the appellants referred the court to Bennett J’s decision in Fairfax v Reed,19 his Honour addressed this point by referring to the fact that her Honour had acknowledged that it was possible that copyright could subsist in a headline. 6.49 While written content on social media sites, such as posts, comments, messages and tweets, are clearly not headlines, Bennett J’s discussion of what is required for material to satisfy the meaning of the expression ‘original literary work’ suggests the following: (a) In most circumstances, the shorter the written post, the more difficult it will be to assert successfully any copyright in such content. Twitter imposes a limit of 140 characters per tweet, which generates a further obstacle for claiming copyright in such content. [page 271] (b) Other written content on social media sites, such as Facebook posts or YouTube comments, may not meet the threshold of originality and attract copyright as it may be regarded as too trivial and unlikely to involve the requisite degree of effort, judgment, skill, etc. In this respect, it is worth having regard to Justice Bennett’s comments in Fairfax v Reed (at [45]): ‘… not every piece of printing or writing which conveys information will be subject to copyright … To obtain copyright protection under the Act, there must be a literary work’. That said, the Australian Copyright Council identifies ‘micropoetry: poems that are 140 characters or less’20 as one of the potential exceptions to that principle.

How do social media sites’ terms of service deal with ownership of copyright in content? 6.50 In theory, it is possible for social media site hosts to take an assignment of copyright in content which users post to their site. To do so, the site owner must deal with the copyright owner in the posted content and the requirements set out in s 196 of the Copyright Act must be met (ie, the assignment is in writing and signed by the user). However, in practice, site hosts rarely seek assignments of copyright as: (a) It may be difficult (though not necessarily impossible) to meet the requirements of s 196 in an online environment (as the assignment requires the signature of the assignor). (b) Users may understandably be reluctant to part with their rights. Past attempts by social media sites to take rights away from users have been met with outrage and viral protests, such as that which erupted in December 2012 when Instagram proposed changes to its terms of service to obtain rights to sell users’ photographs to advertisers. 6.51 Rather than seek an assignment of copyright in content, the terms of service imposed by the majority of popular social media sites (eg, Facebook, YouTube, Yahoo!, Twitter and LinkedIn) grant the site hosts extremely broad licences in respect of the content.

MORAL RIGHTS 6.52 Individuals who create online content have moral rights in their content which exist in addition to other copyright rights and which last usually for the term of the copyright and continue regardless of whether copyright has been assigned or licensed. [page 272] 6.53 Moral rights apply to films and literary, dramatic, musical and artistic works. Moral rights given to creators of online content include: (a) The right of attribution. This gives the creator the right to be attributed by

name in a clear and reasonably prominent way when their work is used, reproduced, published or communicated for the public (ss 194, 195). This would require that any content which is uploaded, posted or copied in social media is accompanied by the name of its creator. (b) The right against false attribution. This is an extension of the right of attribution and requires that the correct creator be identified and not an incorrect author (Copyright Act ss 195AD–195AH). (c) The right of integrity. This gives the creator the right not to have their work used in a way which would amount to derogatory treatment, namely which would prejudice or be harmful to the creator’s reputation (Copyright Act ss 195AJ–195AL). The right arises any time the work is dealt with and especially where it is altered; for example, if images are cropped or added to other images or where photographs or video are used to accompany other content, such as songs, especially those with a particular political message.

Moral rights exceptions and consents 6.54 Moral rights need not be complied with if it is not reasonable in all the circumstances to do so or where the creator has given their consent for their work to be used in ways which would otherwise infringe their moral rights.

USE OF SOCIAL MEDIA CONTENT 6.55 There are no special provisions in the Copyright Act to address the prolific and ubiquitous nature of social media content. Every post, tweet and photograph which constitutes a copyright work is therefore the exclusive property of its author subject to the terms of any licence for use or fair dealing exception.

Exclusive rights to content under the Copyright Act 6.56 Owners of copyright possess a bundle of exclusive rights in relation to the use of the subject matter. These bundles vary depending upon the particular type of subject matter involved. The following table sets out the exclusive rights which correspond with each recognised subject matter:

[page 273]

[page 274] 6.57 Moreover, s 13 of the Copyright Act extends these exclusive rights to the right to authorise a person to do these acts: (1) A reference in this Act to an act comprised in the copyright in a work or other subject-matter shall be read as a reference to any act that, under this Act, the owner of the copyright has the exclusive right to do. (2) For the purposes of this Act, the exclusive right to do an act in relation to a work, an adaptation of a work or any other subject-matter includes the exclusive right to authorize a person to do that act in relation to that work, adaptation or other subject-matter.

Fair dealing exceptions 6.58 Currently in Australia, exceptions exist for copyright infringement based on certain defined categories of use of copyright works. This position is to be contrasted to the one which exists in the United States, for example, where a general ‘fair use’ exception exists which is not limited to any category of use. 6.59 Under the Copyright Act, it is an exception to copyright infringement where a ‘fair dealing’ is made with content:

(a) (b) (c) (d)

for the purpose of research or study (s 40); for the purpose of criticism or review of the work or another work (s 41); for the purpose of parody or satire (s 41A); and for the purpose of, or associated with, the reporting of news (s 42).

6.60 The Copyright Act further details what constitutes a fair dealing for the purposes of research or study; however, what constitutes a ‘fair dealing’ is not further enunciated for any of the other exceptions. The case law suggests it involves questions of degree and impression to be judged by the criterion of a fair-minded and honest person and is an abstract concept.21 Factors such as the quantity and quality of the work used, whether the work could be licensed and the effect of the use on the commercial value of the work are also relevant. In addition, a fair dealing for the purpose of criticism or review requires that a sufficient acknowledgement of the work be made. 6.61 In TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (The Panel Case),22 the court considered the fair dealing exceptions for reporting the news and criticism or review, and held that:23 (a) criticism and review involve the passing of judgment which may be strongly expressed; [page 275] (b) (c) (d) (e)

criticism and review must be genuine but not necessarily balanced; ‘news’ is not restricted to current events; ‘news’ may involve the use of humour; and criticism, review and news may be entertaining and still fair.

6.62 Examples of use of content which may attract the fair dealing exceptions in the social media context include: (a) posting parts of a book, song or film as part of a review of that work; (b) copying photographs and adding punch lines; (c) using photographs of persons or events taken from Facebook or Twitter to accompany a news story; and (d) creating song parodies using the original music with new lyrics.

6.63 As a general rule, the commercial exploitation of social media content belonging to third parties is more difficult to justify as a fair dealing. 6.64 The defence of fair use has been raised by US social news and entertainment site, BuzzFeed, in response to a million-dollar copyright infringement suit in June 2013 by commercial photographer, Kai Eiselein.24 Eiselein’s claim relates to his photograph of a soccer player headbutting a ball which was posted to his Flickr feed. BuzzFeed subsequently copied the photograph and used it in its online montage/list of ‘The 30 Funniest Header Faces’ in June 2010 without permission. Eiselein sent Buzzfeed a takedown notice in May 2011 and BuzzFeed removed the photograph, changing the title of its list to ‘The 29 Funniest Header Faces’. However, Eiselein later commenced proceedings claiming damages not only for the original BuzzFeed post but also for each subsequent publication made of the post by other online sites. 6.65 BuzzFeed has indicated that it will defend the claim on the basis that its use of Eiselein’s photograph was a ‘transformative use’ of the work and therefore a protected fair use. BuzzFeed relies on this argument to copy many such images and arrange them in its lists of mostly comic images, such as ‘The 30 Funniest Header Faces’. 6.66 Unless the BuzzFeed list amounted to parody or satire, such use would not be protected in Australia under the fair dealing exceptions as it does not fall into any of the fair dealing categories and the circumstances of the use would not be regarded as ‘fair’. [page 276]

ALRC proposed reforms 6.67 In its February 2014 report, Copyright and the Digital Economy (ALRC Report),25 the ALRC recommends a significant change to the current fair dealing exceptions, by replacing them with a general fair use exception, more akin to the defence which exists in the United States. Under the ALRC proposal, the Copyright Act would include a non-exhaustive list of ‘fairness factors’ to be taken into account in order to determine whether use of any copyright material amounts to fair use. The list of those factors recommended in

the ALRC Report comprises:26 (a) the purpose and character of the use; (b) the nature of the copyright material used; (c) in a case where only part of the copyright material is used — the amount and substantiality of the part used, considered in relation to the whole of the copyright material; and (d) the effect of the use upon the potential market for, or value of, the copyright material. 6.68 The ALRC Report also recommends the adoption of a non-exhaustive list of illustrative purposes as examples of the types of use that may be fair. The ALRC recommends that the non-exhaustive list of illustrative purposes should include:27 (a) (b) (c) (d) (e) (f) (g) (h) (i) (j)

research or study; criticism or review; parody or satire; reporting news; professional advice; quotation; non-commercial private use; incidental or technical use; education; and access for people with disability.

6.69 The ALRC Report specifically considers the concept of ‘social use’ as a subset of private and domestic use, noting that some social uses of copyright material would be fair use. The ALRC Report notes the views expressed by Jeff Lynn, chairman of the UK Coalition for a Digital Economy, that social uses [page 277] of copyright are an essential part of using the internet and placing restrictions on its use is likely to damage the ‘collateral good’ while having little effect on the rights of copyright owners.28

6.70 However, the ALRC Report concludes that not all social use will be fair and therefore cannot justify a separate category of illustrative purposes such as social uses, or otherwise proposing a new fair dealing exception for social use. As a result, any use of material on social media must be considered against the currently available fair dealing exceptions or, should the ALRC’s recommendations be adopted, against the proposed lists of illustrative uses and illustrative purposes.

Licensing of copyright under the Copyright Act 6.71 The granting of a licence, by the copyright owner (or prospective owner in the case of future copyright) to a person, to use a subject matter in a particular way (or ways) allows that person to use the subject matter in the licensed way (or those ways) and not infringe the copyright of the owner. 6.72 Pursuant to s 196(4) of the Copyright Act, licences granted by owners bind every successor in title to the same extent as the licence was binding on the grantor. 6.73

Some important observations to make about licences generally:

(a) In the context of licensing copyright, the term ‘licence’ means no more than permission or consent.29 (b) The licensing of copyright can be either voluntary or compulsory in nature. Compulsory licensing arises under a statutory licensing scheme which largely relates to the music recording, film or broadcasting industries. (c) Licenses can be exclusive or non-exclusive. An ‘exclusive licence’ is expressly defined in s 10(1) of the Copyright Act as follows: ‘exclusive licence’ means a licence in writing, signed by or on behalf of the owner or prospective owner of copyright, authorising the licensee, to the exclusion of all other persons, to do an act that, by virtue of this Act, the owner of the copyright would, but for the licence, have the exclusive right to do, and ‘exclusive licensee’ has a corresponding meaning.

6.74 As is apparent from the above definition, exclusive licences, like assignments of copyright, are required to be in writing and signed by the [page 278]

grantor to be effective. In contrast, non-exclusive licences are not required to be in writing. For the same reasons which applied to assignments of copyright, it may be impractical for social media sites to have users exclusively license content to them. 6.75 Licences can be created expressly (ie, contractual licences) or by implication. Implied licences may be implied like any other implied term, namely: (a) by conduct; (b) by law; or (c) as necessary to give business efficacy to a specific agreement between the parties.

Terms and conditions of social media sites and use of user-generated content 6.76 In order to operate effectively, any person who contributes content to a social media site must grant certain permissions to allow the use by the site owner and users of the site. The terms and conditions for some of the more popular social media sites can be found on their websites.30 6.77 For convenience, we sample below the key terms of Facebook and Twitter which relate to the use of user-generated content contributed to their respective sites. Of course, these are only extracts from the terms, and the terms should be read in their entirety to have a full appreciation of the treatment of user-generated content on these sites.

Example: Facebook 6.78 Facebook extracts for itself the following licence from its users (titled ‘Sharing Your Content and Information’):31 You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition: For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royaltyfree, worldwide

[page 279] license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

6.79 Relevantly, ‘use’ is defined as ‘use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of ’. 6.80

Facebook also notes the following in relation to the public at large:

When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).

Example: Twitter 6.81 Twitter extracts for itself and its partners the following licence from its users (titled ‘Your Rights’):32 You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. Twitter will not be responsible or liable for any use of your Content by Twitter in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.

6.82

What is apparent from these terms and conditions is:

(a) Social media site hosts obtain for themselves (and, in some cases, their partners or related entities) extremely broad non-exclusive licences which: (i) permit practically any use contemplated; (ii) are worldwide; [page 280]

(iii) are royalty-free; and (iv) are sub-licensable. (b) In some cases, hosts also obtain and grant licences in the content to users of the site and other publishers. In the absence of such terms, licences to such parties would need to be implied.

Do users and publishers have an implied licence to use user-generated content on social media sites? 6.83 The question of whether (and to what extent) third parties are afforded a licence to use user-generated content recently arose in the United States in relation to the use by a number of media organisations of images uploaded onto Twitter by a photographer (discussed next).

Agence France Presse v Morel33 6.84 The 13 images in question depicted the aftermath of the earthquake which devastated Haiti in January 2010. The images were captured on the day of the disaster by the photographer, Daniel Morel, and posted onto Morel’s Twitter account (‘PhotoMorel’) using the website ‘TwitPic’. 6.85 Shortly thereafter, the photographs were retweeted by another individual, Lisandro Suero, who indicated that he had ‘exclusive’ images of the earthquakes. 6.86 The images were found by Agence France Presse (AFP) and uploaded onto their system for distribution (either by means of its wire or through ‘ImageForum’ — a databank made available to customers). The images were forwarded to Getty Images and, in turn, made available to their customers (also by means of a newswire or databank). They were initially attributed to Suero. 6.87 The Washington Post received four images from Getty and published them on its website; three of the images were credited to Suero (along with AFP and Getty), with the other credited to Morel (again, along with AFP and Getty). By this stage, AFP and Getty were alerted to Morel’s authorship and had taken some steps to correct the attribution, although clearly not completely. 6.88 Morel asserted copyright in the 13 images. This prompted AFP to issue proceedings against Morel, alleging commercial defamation and seeking

declaratory relief to the effect that AFP had not infringed Morel’s copyright in the images. Morel, in turn, brought a counter-claim for copyright infringement, joining Getty, The Washington Post and television networks CNN, ABC and [page 281] CBS to the proceedings (the Media Parties). More specifically, he asserted that the Media Parties had infringed upon his exclusive rights to reproduce, display publicly and distribute the images in question. 6.89 An attempt by some of the Media Parties to have the proceedings summarily dismissed failed in December 2010, following which the television networks settled their proceedings with Morel. 6.90 In ‘round two’, the parties filed cross-motions seeking summary judgment against each other. 6.91 AFP argued that, by posting the images on Twitter, Morel had granted AFP a licence to use the images in the manner in which it did. Getty and The Washington Post joined AFP in this argument. 6.92 AFP relied upon the terms of service for Twitter and TwitPic, which, among other things, govern the treatment of content posted on Twitter and through the TwitPic application. AFP contended that the provisions in the terms of service evince an intention by Twitter and the relevant user to confer a licence onto other users in respect of the content uploaded on the site, including photographs. 6.93 AFP referred to the extracts from TwitPic and Twitter’s terms of service and other relevant policies in support of their argument. TwitPic’s terms of service state in part:34 (a) ‘[B]y authorizing an application you continue to operate under Twitter’s Terms of Service’; and (b) ‘[B]y uploading your photos to TwitPic you give TwitPic permission to use or distribute your photos on Twitpic.com or affiliated sites. All images uploaded are copyright © their respective owners’. 6.94 The effect of point (a) above is that the Twitter terms of service also applied to the photographs (refer to the discussion at [6.81], above, regarding

the section entitled ‘Your Rights’). Further, the ‘Twitter Guidelines for Third Party Use of Tweets in Broadcast or Other Offline Media’ (the Guidelines) state: ‘[w]e welcome and encourage the use of Twitter in broadcast’.35 6.95 The court rejected this argument, finding that the evidence did not in fact demonstrate a clear intention to grant a licence to third parties to appropriate the images from Twitter and license them to others, but rather the very opposite. 6.96 In reaching its decision, the court referred to its prior ruling on the motion to dismiss, which had already considered whether the terms of service expressly granted a licence to AFP to use the images and held that they did not. [page 282] 6.97 The court noted that much of the language in the terms of service cuts against the assertion that third parties can remove content and license it to others without the author’s consent. In its reasoning, the court made specific mention of other passages in the terms of service which were not addressed by AFP, including:36 (a) ‘[b]y authorizing an application you continue to operate under Twitter’s Terms of Service’; (b) ‘[y]ou retain your right to any Content you submit, post or display’; and (c) ‘what’s yours is yours — you own your content’. 6.98 The court also noted that the Guidelines do not support AFP’s argument that it was the beneficiary of a third party licence to remove content and commercially distribute it. 6.99 The court held that, to the extent the Guidelines support the rebroadcasting of tweets, they stipulate that ‘content should not be disassociated from the tweets in which they occur’.37 6.100 As to the broader question of whether, and to what extent, the terms of service grant a licence to other users to use content on Twitter, the court was reluctant to engage with the issue: ‘The court need not fix the precise scope of any license created by the Twitter TOS in order to resolve the dispute before it’.38

6.101 However, without taking a position on the issue, the court did give some indications in its judgment that there might be a licence to other users and that some uses (ie, retweeting) would not amount to infringement: (a) The court noted that this was the ‘fatal flaw’ in AFP’s argument as it failed to recognise that, although some re-use of copyright material is allowed, this did not necessarily extend to a general licence to use content as AFP did.39 (b) Whilst the Twitter terms of service may grant some form of licence for third parties to use content, such as by retweeting it, no such licence exists to cover AFP’s conduct, especially given it occurred outside of Twitter. (c) Any licence granted by the Twitter terms of service does not amount to an intent to grant the widespread and unrestricted licence advocated by AFP in this case.40 6.102 The issue of ‘fair use’ was not raised by The Washington Post as a defence to copyright infringement. [page 283] 6.103 This may have been the case because the images were made available for purchase and some of the photographs were never correctly attributed to Morel, thus rendering the relevant conduct not ‘fair’. 6.104 On 22 November 2013, a federal jury found that AFP and Getty had wilfully violated the Copyright Act, and ordered the maximum statutory penalty available of US$1.2 million (US$150,000 per image).41 The Washington Post, along with the other Media Parties, had previously reached a settlement with Morel out of court. 6.105 Similar issues to those in Morel’s case also arose recently in the United Kingdom following the publication of a Twitter photograph by the London Evening Standard. A photograph of a fatal helicopter crash which occurred in central London during morning peak hour was taken by Craig Jenner and posted to his Twitter account, @craiglet. The London Evening Standard then reproduced Jenner’s photograph on the cover of its afternoon edition without Jenner’s permission. When queried about this in articles written by some of its competitors, the newspaper indicated that it had tried to seek consent to publish but had been unable to obtain it in time for publication. However, the newspaper also indicated that it regarded the photographer as the owner of the

copyright and would provide payment if requested.

Liking, retweeting and linking — how does copyright apply? Liking, sharing and retweeting 6.106 By liking, sharing and retweeting social media posts, the content will be reproduced and communicated to new users outside of the group of friends to whom the original post was made. 6.107 Permission or a licence for users to share material in this way within the social media site on which it is posted is sometimes dealt with in the specific terms of use of the host service (although clearly not always, as Agence France Presse v Morel42 (see [6.84], above) demonstrates, the court there only assuming, for the purposes of argument, that such a licence exists without deciding the issue). However, in the absence of any express licence, it is likely that an implied licence is granted by any person who posts content on a social media service to allow that content to be copied, shared and forwarded within the site at least. The existence of the ‘like’, ‘share’ and ‘retweet’ functionality on such sites suggests this must be the case. [page 284] 6.108 However, such an implied licence does not necessarily extend to use outside the original site or to commercial exploitation of the content. In the absence of any express licence conditions, such conduct may amount to copyright infringement unless it falls into one of the exceptions noted above.

Linking 6.109 Linking to a third party site does not usually raise issues of copyright or require permission where the link is made to a genuine third party site. 6.110 However, while permission to link to a third party website is not strictly required, care is required in the following situations:

‘Authorising infringement’ — where a user provides a link to a third party (a) website that contains material that infringes copyright or that the user knows could contain infringing material, the user may be liable for authorising infringements by any of their followers who follow the links. Under s 101(1A) of the Copyright Act, in deciding whether a person has authorised infringement, the court will take into account: (i) the extent (if any) of the person’s power to prevent the doing of the act concerned; (ii) the nature of any relationship existing between the person and the person who did the act concerned; and (iii) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. For example, the Federal Court of Australia in the 2005 case of Universal Music Australia Pty Ltd v Cooper43 held that the proprietor of a website was liable for authorising infringements because his website encouraged users to post links to other sites that contained pirated music files and that allowed users to download the files by clicking the links. The website owner did not place the links himself but allowed visitors to his site to post links that he knew could be linked to material that infringed copyright. The court held that the website was clearly designed to, and did, facilitate and enable the infringing downloading; that the website owner knowingly permitted or approved the use of his website in this manner, and designed and organised it to achieve this result; and that he had sufficient control of the website to take steps to prevent the infringement. Disclaimers on the website were held not to amount to reasonable steps to prevent or avoid the doing of the infringing act, but instead indicated knowledge of the existence of illegal music files to which the website provided hyperlinks. A similar recent case from the United States is discussed at [6.111], below, [page 285] and confirms the liability in that jurisdiction of those who use their internet sites actively to facilitate and encourage copyright infringement. (b) ‘Deep-linking’ — this occurs when a user site links to particular pages within a third party website, bypassing the third party’s website homepage. Linking may raise copyright issues as well as issues under consumer protection laws

on the basis that visitors to the site may be confused as to the owner or controller of the content. (c) ‘Framing’ material from other websites — this occurs when the website owner ‘frames’ material from third party websites so that visitors can see the material without being aware that they are actually looking at a different website. Again, this could have implications under copyright law, as well as under consumer protection laws (eg, if a website owner frames material from a commercial rival’s website).

Columbia Pictures Industries v Fung44 6.111 This long-running US case involved the peer-to-peer file-sharing protocol known as BitTorrent, which allows individuals to share large files, including movies, music and television shows. BitTorrent relies on torrent indexing sites to find and share torrent files (files which contain metadata capable, ultimately, of leading to the location of particular content) amongst users. Fung’s website, IsoHunt, was one of the largest BitTorrent indexers, attracting 7.5 million unique visitors at the height of its popularity. In addition to IsoHunt, Fung ran a number of other BitTorrent indexing sites. IsoHunt, as well as collecting and organising torrent files, automatically modified the torrent file by adding additional backup trackers. The website had a list of popular movies and television shows where, upon clicking on the title, the website would invite a user to ‘upload [a] torrent file’ for that movie or television show. The website also had an electronic message board where users could find assistance in uploading and downloading content. 6.112 In 2006, various film studios brought a case against Fung and his company, IsoHunt, for contributory copyright infringement, claiming that the websites induced third parties to download infringing copies of the studios’ copyrighted works. 6.113 Fung contested the copyright violation and argued that he, and his company, IsoHunt, were protected from liability under the safe harbour provisions in the Digital Millennium Copyright Act (DMCA). [page 286] 6.114

In 2009, the District Court45 released its decision, finding Fung liable

for contributory infringement, for inducing others to infringe plaintiffs’ copyrighted material and issued a broad injunction, restraining Fung from engaging in activities that facilitated copyright infringement of the plaintiffs’ works. 6.115 An appeal of the District Court decision was heard in 2011. In March 2013, the US Court of Appeals for the ninth circuit released its decision.46 6.116 The court looked to Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd (Grokster III),47 which stated ‘one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties’.48 The four elements of the inducement principle, as enunciated in Grokster III, are: (a) (b) (c) (d)

the distribution of a device or product; acts of infringement; an object of promoting its use to infringe copyright; and causation.

6.117 Columbia was held to have established all of the inducement principle elements against Fung and IsoHunt. Fung argued that his websites were not a ‘device’, and therefore did not meet the first element. However, the court held ‘the inducement copyright doctrine explained in Grokster III applied to services available on the Internet as well as to devices or products’.49 Fung’s active encouragement of uploading torrent files concerning copyrighted content satisfied the third element. Fung’s active involvement included the invitation to ‘upload [a] torrent’ when a title was clicked on, posts on the message board requesting users upload torrents for specific copyrighted material, providing links to copyrighted movies, as well as responding affirmatively to requests for help in locating and playing copyrighted material. With regard to causation, the court held ‘if Plaintiffs can show a sufficient causal connection between users’ infringing activity and the use of Fung’s trackers, the fact that the torrent files were obtained from elsewhere may not relieve Fung of liability’.50 [page 287] 6.118

Fung was unsuccessful in his affirmative defence under the DMCA

safe harbour provisions. Columbia argued, and the District Court agreed, that inducement liability is inherently incompatible with protection under the DMCA safe harbour provisions. The court noted that it had already rejected the notion that there can never be a DMCA safe harbour defence to contributory copyright liability51 and held that there is no inherent incompatibility. However, the court held that Fung’s website trackers did not fit the definition of ‘service provider’ that applies to the safe harbour provisions. Under the DMCA, the definition provides that a ‘service provider’ provides ‘connections … between or among points specified by the user’. Fung’s website trackers select the ‘points’ to which a user’s client will connect in order to download a file. Although Fung and IsoHunt were held not to come under the DMCA for failing to satisfy the definition of ‘service provider’, the court also considered that Fung’s trackers were more than mere ‘conduits’ between computers, and that Fung had ‘red flag’ knowledge of the infringing activities.52 6.119 The Motion Picture Association of America (MPAA) and Fung came to a settlement agreement on damages on 17 October 2013, ahead of the scheduled 5 November 2013 trial. Under the settlement, Fung agreed to pay US$110 million, was globally prohibited from further profiting from the infringement of MPAA member content, and was ordered to shut down his torrent sites by 23 October 2013. The CEO of MPAA said:53 This agreement is an important step forward in using the huge potential of the internet as a platform for legitimate business and innovation. It also delivers a serious warning that people who develop their businesses helping and encouraging others to infringe copyright, are in turn infringers and therefore guilty and held accountable for their illegal behaviour.

Proposed changes to the use of ‘orphan works’ and the ‘Instagram Act’ 6.120 Recent legislative change and proposed reforms in the United Kingdom and Australia in relation to so-called ‘orphan works’ are likely to have specific consequences for certain social media content, especially photographs and video material posted to social media sites. [page 288] 6.121

‘Orphan works’ are copyright material where an owner cannot be

identified or located by someone who wishes to make use of the work.54 6.122 The authors of both the recent ALRC Report (discussed at [6.67], above) and the UK Hargreaves Review into Intellectual Property (Hargreaves Review)55 noted that they received submissions from several stakeholders calling for reforms of the way that copyright laws deal with orphan works and advocating the freer use of those works, including potentially commercial use, especially where authors are difficult or impossible to ascertain. Such submissions typically argued that use of orphan works is to be preferred to the continuation of the current legal situation which acts to stymy use and exposure of orphan works since their owners, and therefore permission to use, cannot be found. 6.123 The Hargreaves Review described the orphan works ‘problem’ as representing ‘the starkest failure of the copyright framework to adapt’. In response, the UK Government decided this was a problem worth grappling with, on the basis that it benefits no one to have copyright works lie dormant and unable to be used to their full extent by virtue of there being no identifiable author.56 The result is the Enterprise and Regulatory Reform Act 2013 (UK ERR Act) which received royal assent in April 2013. The UK ERR Act deals with several unrelated topics, including certain measures for copyright reform. Relevantly, it provides for a licensing system for ‘orphan works’. To qualify as an ‘orphan work’, it is a requirement that ‘the owner of copyright in it has not been found after a diligent search made in accordance with the regulations’ (s 77). The regulations, not yet drafted, will also provide for a system of the granting of licences that allow for use of the orphan works. 6.124 It is expected that the likely result for social media will be a surge in use, including commercial use, of works (photographs, in particular) which have become separated from any digital information which may identify their authors and which will become available for use through a simple (and possibly nominal royalty fee) licence. In some respects, the UK ERR Act may achieve for users what Instagram tried but failed to do in 2012 when it purported to amend its terms and conditions to allow the site to make unrestricted use of any photographs which had been posted by the members of its site. Critics of the UK ERR Act have accordingly labelled it the ‘Instagram Act’.57 6.125 The issue of ‘orphan works’ has also been considered in the ALRC Report. The ALRC received submissions from several groups, including those in the museum sector as well as public broadcasters, which identified orphan

[page 289] works as a significant problem, noting the difficulties encountered when the owners of archival material could not be located for licensing purposes. Again, this related especially to photographs which are orphaned when rights information is removed when they are placed online. 6.126 In response to the concerns raised, but not specifically in relation to social media use, the ALRC has recommended that, in circumstances where use is found not to fall within the fair use exception and therefore use of the ‘orphan work’ infringes copyright, then remedies for infringement should be limited in certain circumstances. Specifically, the ALRC proposes an amendment to the Copyright Act to limit copyright infringement remedies in circumstances where a user can establish that a ‘reasonably diligent search’ was conducted for the rights holder, the rights holder has not been found and, as far as reasonably possible, the user of the work has clearly attributed it to the author.58 6.127 Should the ALRC’s recommendations be adopted in Australia, it is possible that ‘orphan works’ will be more freely used in social media and/or the true owners of such works may be less likely to complain about such use, should they become aware of it. While the owner might seek to prevent further use of the work in question, it is likely that lesser damages would be available, at least where a reasonably diligent search was made by the user and they were unable to identify the relevant owner concerned. Equally, non-commercial or ‘personal’ use of the work on an individual’s social media account may constitute fair use for the purposes of the proposed new exception and mean that any owner could have no basis at all to complain of copyright infringement.

REMEDIES AGAINST UNAUTHORISED USE OF SOCIAL MEDIA CONTENT

Remedies under the Copyright Act Copyright infringement 6.128 The Copyright Act treats content on social media no differently to the way it treats the traditional forms of content. Accordingly, provided that: (a) copyright subsists in the content;

(b) Person A is the owner of copyright in the content; (c) Person B uses, or authorises the use of, in Australia the content (or a substantial part of the content) in a way protected by copyright; (d) Person B does not have a licence from Person A to use (or authorise the use of) the content in that particular way; and [page 290] (e) there is no exception of fair dealing available to Person B; (f) then Person A may bring an action for copyright infringement against Person B pursuant to s 115 of the Copyright Act. 6.129 The limitation period for copyright infringement actions is six years from the time of infringement.59 One point of difference between content generally and online content (which includes content on social media) is that a new infringement arises each time the content is re-used and the starting point for limitations is reset. 6.130

If successful, the plaintiff may seek orders:

(a) restraining any further use of the content (ie, to have it removed from a particular site or sites and not re-posted); and (b) for the payment of damages or an account of profits. 6.131 The existence of an infringement that is likely to continue is a consideration to which the court may give weight in assessing whether to grant an injunction. In this regard, the infringer’s conduct post notification of its infringement may be a relevant consideration.

Innocent infringement and additional damages 6.132 In cases of innocent infringement, the plaintiff is not entitled to an award of damages and can only receive an account of profits. 6.133

An innocent infringement is one where:60

it is … established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright.

6.134 There may be many situations in the social media context where infringing use of copyright content is made by social media users with a genuine belief that the use did not constitute an infringement, such as the sharing of images already shared by many other users, even if the image was originally posted to the site without the owner’s permission. 6.135 To succeed in an argument of innocent infringement, the infringer must establish an active, subjective lack of awareness that the act constituting the infringement was an infringement of the copyright and that, objectively considered, the infringer had no reasonable grounds for suspecting that the act constituted an infringement.61 [page 291] 6.136 At the opposite end of the scale of culpability, s 115(4) of the Copyright Act governs the granting of additional damages: (4) Where, in an action under this section: (a) an infringement of copyright is established; and (b) the court is satisfied that it is proper to do so, having regard to: (i) the flagrancy of the infringement,62 and (ia) the need to deter similar infringements of copyright; and (ib) the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff’s copyright; and (ii) whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and (iii) any benefit shown to have accrued to the defendant by reason of the infringement; and (iv) all other relevant matters; the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.

6.137 A similar issue was discussed in Agence France Presse v Morel (see [6.84], above),63 though not decided. The court considered whether the conduct of AFP, Getty and The Washington Post was ‘wilful’ in the circumstances. This is a significant issue as the nature of the infringement in the United States can affect the damages award received by Morel.64 6.138 The court noted that for conduct to be deemed ‘wilful’, there must be either knowledge that the conduct was infringing, or reckless disregard/wilful

blindness to the prospect that the conduct was infringing. In contrast, where an infringement is innocent,65 the statutory damages award can be greatly reduced. [page 292] 6.139 The court had regard to the following conduct in relation to each respective media organisation: (a) AFP: (i) the Director of Photography for North and South America at AFP claimed that, at the time of uploading the photographs, he believed he had the right to distribute them for news purposes; (ii) the Director allegedly failed to follow AFP policies regarding the use of material from social media sites; and (iii) the Director had allegedly engaged in similar conduct regarding the use of images previously. (b) Getty: (i) a Getty employee had allegedly seen the photographs on Twitter posted by Morel; (ii) that employee was allegedly made aware of the caption change to the photographs (attributing them to Morel instead of Suero), and later a ‘kill notice’, both sent by AFP; and (iii) Getty had been contacted by Corbis, Morel’s representatives, regarding the infringement. (c) The Washington Post: (i) Morel’s lawyers had attempted to notify The Washington Post about the infringement, although it is unclear what correspondence was received by The Washington Post. 6.140 Given that the question of each party’s knowledge was one of fact, and the evidence was not unassailably in favour of wilfulness, the court left it to a jury to resolve. 6.141 The federal jury found that AFP and Getty had wilfully violated the Copyright Act, and ordered the maximum statutory settlement available of US$1.2 million.66

Authorising copyright infringement by other users 6.142 It is a separate and distinct act of infringement to authorise another person to do anything with copyright content which would itself infringe copyright, such as copying content without permission. [page 293] 6.143 The Copyright Act prescribes that the following matters must be taken into account when determining whether a person’s conduct amounts to authorisation: (a) the extent (if any) of the person’s power to prevent the doing of the act concerned; (b) the nature of any relationship existing between the person and the person who did the act concerned; (c) whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry code of practice.67 6.144 Where a user merely re-posts or retweets content uploaded by another user, it is unlikely they will be held to be authorising copyright infringement by downstream users. This is even less likely when a user attributes the content to the original user. 6.145 If, however, a user were to re-post or retweet content and represent that they owned the content and gave permission to others to use it, this may amount to authorising copyright infringement. In that regard, it is interesting to consider the conduct of Lisandro Suero in Agence France Presse v Morel (discussed at [6.84] and [6.137], above),68 who retweeted Morel’s images and indicated that he had ‘exclusive’ images of the earthquakes, and whether he authorised the infringements of the media organisations and other downstream users. Certainly, the media organisations were initially under the impression that the images belonged to Suero and not to Morel (hence why some of them were attributed to Suero in the first place). 6.146 In the current law suit brought by photographer Kai Eiselein against BuzzFeed regarding unauthorised use of Eiselein’s Flickr photograph, Eiselein claimed a total of US$3.6 million in damages.69 A significant part of the claim

arises from the availability in the United States of statutory damages for infringement of registered copyright works, which does not exist in Australian copyright law. However, part of Eiselein’s claim was that BuzzFeed’s conduct amounted to authorisation, described in the lawsuit as ‘contributory infringement’ on the basis that the BuzzFeed site has a viral news model which encourages readers to share the content they find. In the case of Eiselein’s photograph, it was shared by 64 other online sites after it was posted in BuzzFeed’s list. [page 294]

Accessorial liability for copyright infringements by other users 6.147 In Agence France Presse v Morel,70 the court also considered whether AFP and Getty could be held liable as accessories for infringements committed by downstream users who utilised the images. 6.148 The court held that for such a claim to be successful, it would be necessary to establish that both parties contributed to users’ infringements by actively providing the photographs to users, and that they each had knowledge of the infringement at the time of providing the photograph.

Takedown procedures offered by social media sites 6.149 Many social media sites have their own internal mechanisms for addressing copyright infringements. For instance, in the case of Facebook, the terms and conditions provide, among other things, that Facebook can remove content it believes is infringing copyright, and in cases of repeated infringements, disable a user’s account. 6.150 Facebook and other social media sites provide online facilities for reporting of infringing content. Links to such facilities offered by Facebook and other popular social media sites are available on their websites.71 6.151 In short, the process generally involves filling out an online questionnaire and providing details:

of the person or organisation making the complaint (ie, name, address and (a) contact information); (b) identifying the owner of copyright in the content; (c) identifying the infringed content, either by providing a direct link to the original work or a clear description of the work/materials; and (d) sufficient to enable the social media site to locate the infringing content. 6.152 In the United States, these last two points are considered important pieces of information that must be provided to a service provider. Without them, it is likely that a social media host will not be held liable for failing to remove the content from their site. 6.153 Social media sites are known to respond promptly to reports (ie, within a matter of days). 6.154 One issue which has arisen in the United States in this area is the removal of innocently placed content based on fraudulent reports. Given the [page 295] extensive amounts of content on site hosts, social media sites may find it difficult to balance between properly investigating claims of copyright infringement and ensuring they gain any protection available from the safe harbour provisions in the United States (discussed further at [6.157], below) by promptly removing offending content. In erring on the side of caution, social media sites may be more likely to remove content first and see if an appeal is made later. In this way, the safe harbour may nevertheless have a chilling effect on the freedom of social media speech.

Practical measures 6.155 Content owners should also consider taking practical steps to protect their social media posts against infringement. Such steps include: (a) encrypting content to prevent copying; (b) watermarking content so that the owner’s name stays with the content and appears even when the content is reproduced; and

(c) being aware of the privacy settings and terms of service of the social media site and restricting access to certain content where possible and practical.

LIABILITY OF SOCIAL MEDIA HOSTS 6.156 Subject to limited exceptions, social media hosts in Australia are likely to be liable for any claim that content on their site infringes the copyright of third parties. 6.157 The Copyright Act currently provides a ‘safe harbour’ (also known as a notification and takedown scheme) to such claims for defined activities engaged in by ‘carriage service providers’, which are those entities operating primarily as a provider of network access to the public. Provided such entities respond to copyright takedown notices regarding allegedly infringing content, they will not be liable for infringement. 6.158 While the definition of ‘carriage service provider’ would normally cover internet service providers, it does not extend to internet search engines (such as Yahoo and Google) or providers of interactive online services (such as social media sites like YouTube, Facebook, Twitter and Wikipedia). 6.159 Recognising the limited scope of the protection, the Commonwealth Attorney-General’s Department issued a consultation paper in October 2011, calling for submissions in response to a proposed change to the application of the safe harbour provisions, from ‘carriage service providers’ to ‘service providers’ who might include ‘a person who provides services relating to, [page 296] or provides connections for, the transmission or routing of data; or operates facilities for, online services or network access …’.72 6.160 Despite receiving several submissions from stakeholders broadly in favour of the changes (including Facebook, Google, Yahoo!7 and Ninemsn), the proposal remains under consideration within the Commonwealth AttorneyGeneral’s Department. 6.161 In the United States, the protection granted under the safe harbour provisions in the DMCA to social media content hosts YouTube and Google is

more certain. 6.162 Those provisions apply to a ‘service provider’, which extends beyond providers of internet infrastructure services and includes providing services for uploading and serving copyright content, such as YouTube. The DMCA provisions were considered in a long-running copyright infringement action brought by Viacom International Inc (and its partners, including Paramount Pictures Corporation), YouTube Inc and Google Inc.

Viacom International Inc v YouTube Inc73 6.163 In this case, Viacom alleged that YouTube was liable for direct and secondary copyright infringement based on the public performance, display and reproduction of approximately 79,000 clips that appeared on the YouTube website between 2005 and 2008, owned by Viacom, without permission. 6.164 Viacom also contended that YouTube engaged in, promoted and induced the copyright infringement of its material. Viacom sought one billion dollars (US) in damages. 6.165 YouTube claimed that it complied with Viacom’s takedown requests pursuant to the DMCA and brought a motion for summary judgment in the District Court for the Southern District of New York that, as a service provider, they were entitled to safe harbour protection under the DMCA. 6.166 The court considered the operation of the safe harbour provisions of the DMCA s 512(c), which states that: (1) In general — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction

[page 297] of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider — (A) (I) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (II) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (III) upon obtaining such knowledge or awareness, acts expeditiously to remove, or

disable access to, the material; (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

6.167 The key legal issue in this matter was the interpretation and application of DMCA s 512(c) and, in particular:74 … whether the statutory phrase ‘actual knowledge that the material or an activity using the material on the system or network is infringing,’ and ‘facts or circumstances from which infringing activity is apparent’ in s512(c)(1) (A)(i) and (ii) mean a general awareness that there are infringements … or rather mean actual or constructive knowledge of specific and identifiable infringements of individual items.

6.168 Stanton J held that a service provider is not required to actively seek out copyright infringing material in order to satisfy the criteria and receive the benefit of the safe harbour provisions. They will only lose the protection if, having been notified of specific items of copyright infringement, they failed to undertake appropriate takedown action. 6.169 Further, a general knowledge or awareness that copyright-infringing material is available is not enough to meet the knowledge standard required by DMCA s 512(c). 6.170

Ultimately, Stanton J held that the safe harbour principle is clear:75

(a) If a service provider knows — either from direct notice from a copyright owner or from an actual awareness from red flags — of specific and identifiable instances of infringement, then the service provider is required to promptly remove the infringing material. (b) However, if a service provider does not have knowledge of the specific and identifiable instances of infringement, then the onus is on the copyright [page 298] owner to identify the infringement and notify the service provider of the material. (c) General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringement. 6.171

The application of the DMCA provisions was also considered in

Columbia Pictures Industries v Fung,76 discussed at [6.111], above. 6.172 An example of YouTube’s DMCA procedures at work occurred in New South Wales in 2015 when Premier Mike Baird released a ‘Mean Tweets’ video on YouTube which showed him reading out various tweets from his critics. ‘Mean Tweets’ have their genesis in American television talk shows, which depict celebrities reading out insulting Twitter posts regarding themselves to camera set to the song, ‘Everybody Hurts’ by R.E.M. Premier Baird’s video included the songs ‘Everybody Hurts’, and ‘Shake it Off’ by Taylor Swift. 6.173 The video was initially removed by YouTube following a complaint by Warner Music — copyright holder to both ‘Everybody Hurts’ and ‘Shake it Off’ — but was soon reinstated, with advertising attached, and with a specific reference to ‘Shake it Off’ and links to purchase the song with references to the YouTube licence.

CONCLUDING REMARKS 6.174 The Copyright Act and equivalent laws in overseas jurisdictions apply equally to content posted on social media as they do to other forms of content and traditional media. However, specific considerations arise in the social media context by virtue of one or more of the following factors which characterise much social media content: (a) the brevity or truncated nature of the content; (b) the speed and breadth with which content may be reproduced and shared; (c) difficulties identifying the owner and users of copyright works. 6.175 As a result, particular problems are presented for social media users seeking to determine whether they may permissively copy and communicate posts made by others and also for copyright owners who wish to restrain unauthorised uses of their works. 6.176 Copyright owners, in particular, may find themselves placed in the unenviable position where any steps they take to protect their content are met with a backlash from customers, followers or fans who view such measures as unjustifiable restrictions on social media communication. [page 299]

6.177 While individual social media users may like, share or republish content posted by others with little fear of complaint, they face increased risks when generating posts which use third party content without permission. However, on the basis of the few legal proceedings commenced to date alleging copyright infringement in social media and the similar practice adopted in traditional media copyright matters, content owners are likely to take action in the first instance against media platforms which carry unauthorised reproductions of their works, rather than against individual user-generators of such material.

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1. 2. 3. 4. 5. 6. 7.

Owners of content should protect their copyright from the moment it is posted to social media. Depending on the extent of dissemination which is intended, content can be watermarked or encrypted and posted only to accounts with high-level privacy settings. Social media users who wish to copy and re-post other social media content for their own purposes need consent from the copyright owner or will need to rely on one of the fair dealing exceptions which may permit such use. Otherwise, they may find that advertising has been attached to their post, or that it has been removed and their account threatened with restrictions. In the worst case, they may receive a legal letter of demand. If content owners are concerned their content may be copied and misused on social media sites, they can work proactively with site owners. For instance, owners of content on YouTube can contact Google to identify their content (known as ‘Content ID’) and receive notification of any infringing copies. Owners can then decide whether they want the infringements wholly or partly removed or whether they wish to enter into a revenue-share arrangement. It is important also to keep in mind the double-edged sword presented by social media, and the suggestions in this chapter regarding protection of rights and proactive steps to take must be read in light of the not-insignificant risk of social media backlash to such action. Many high-profile copyright owners, especially famous brand owners and musicians, have faced severe social media criticism in response to their attempts to control the dissemination of their material over social media. In those cases, protection of the owners’ rights involves an assessment of the public relations implications just as much as it does the legal advice.

See, for instance, Donoghue v Allied Newspapers Ltd [1938] Ch 106; [1937] 3 All ER 503. Naruto, et al v Slater, et al (ND Cal, No 15-CV-04324 28 January 2016). Australian Copyright Council, Information Sheet G108v03 — Websites: Social Networks, New Media and User-Generated Content, June 2013, p 2. (1986) 161 CLR 171 at 182-3; 65 ALR 33; 6 IPR 1; [1986] HCA 19. Above, at [11] (citations omitted). (2009) 239 CLR 458 at 474; 254 ALR 386; 80 IPR 451; [2009] HCA 14. Above, at [33]–[34] (citations omitted).

8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44.

(2010) 189 FCR 109; 272 ALR 547; 88 IPR 11; [2010] FCA 984. Above, at [36] per Bennett J. [1982] Ch 119; [1981] 3 All ER 241; [1981] 3 WLR 541. Fairfax Media Publications v Reed International Books Australia Pty Ltd, above, n 8, at [43] per Bennett J. Above, at [31] per Bennett J; Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49; 23 ALR 154; [1917] HCA 14. [2011] All ER (D) 248 (Jul); (2011) 93 IPR 341; [2011] EWCA Civ 890. Above. Above, n 13, at [19] per Jackson LJ. Above. [2009] ECDR 16. Newspaper Licensing Agency Ltd v Meltwater Holding BV, above, n 13, at [20] per Jackson LJ. Fairfax Media Publications v Reed International Books Australia Ltd, above, n 8. Australian Copyright Council, Information Sheet B146: Websites & Social Media, May 2013, p 21. TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118 FCR 417; 190 ALR 468; 55 IPR 112; [2002] FCAFC 146. Above. Above, n 21, at [98]. Eiselein v BuzzFeed (Case No 1:13-cv-03910-UA, United States District Court, Southern District of New York, 7 June 2013). Australian Law Reform Commission, Copyright and the Digital Economy, Report 122, 13 February 2014 (ALRC Report). Above, at Recommendation 5-2. Above, n 25, at Recommendation 5-3. Above, n 25, at [10.016], citing J Lynn, ‘Copyright for Growth’ in I Hargreaves and P Hosheinz (eds), Intellectual Property and Innovation: A Framework for 21st Century Growth and Jobs, Lisbon Council, Brussels, 2012, p 15. See, for instance, Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands) BV (1977) 15 ALR 353 at 357 per Gibbs J; cited with approval in Corby v Allen & Unwin Pty Ltd (2013) 297 ALR 761 at 764 per Buchanan J. See Facebook ); Instagram (); LinkedIn (); Twitter (); Wordpress (); Yahoo (Aus) (); Yahoo (US) (); and YouTube (). See . See . (Case No 10-Civ-02730, United States District Court, Southern District of New York, Nathan J, 21 May 2013). Above, at pp 16–17. Above, n 33, at p 18. Above, n 33, at p 17. Above, n 33, at p 23. Above, n 33, at p 19. Above, n 33, at p 20. Above, n 33, at p 24. J Ax, ‘Photographer Wins $1.2 Million from Companies that Took Pictures off Twitter’, Reuters, 22 November 2013. Agence France Presse v Morel, above, n 33. (2005) 150 FCR 1; 65 IPR 409; [2005] FCA 972. (Case No 447 F.Supp.2d 306, United States District Court, Southern District of New York, Stanton J,

45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62.

63. 64. 65. 66. 67. 68. 69. 70. 71. 72.

21 August 2006); see the decision on appeal in Columbia Pictures Industries v Fung (Case No 710 F.3d 1020, United States Court of Appeals, Ninth Circuit, Berzon J, 21 March 2013). Above. Above, n 44. (Case No 545 U.S. 913, 920 & n.1, United States Supreme Court, 27 June 2005). Above, at 937. (Case No 447 F.Supp.2d 306, United States District Court, Southern District of New York, Stanton J, 21 August 2006); see the decision on appeal in Columbia Pictures Industries v Fung (Case No 710 F.3d 1020, United States Court of Appeals, Ninth Circuit, Berzon J, 21 March 2013). Above, at 1039. See A & M Records Inc v Napster Inc (Case No 239 F.3d 1004, 1025, United States Court of Appeals, Ninth Circuit, Schroder CJ, Beezer and Paez JJ, 2001). (Case No 447 F.Supp.2d 306, United States District Court, Southern District of New York, Stanton J, 21 August 2006); see the decision on appeal in Columbia Pictures Industries v Fung (Case No 710 F.3d 1020, United States Court of Appeals, Ninth Circuit, Berzon J, 21 March 2013). E Gardner, ‘IsoHunt to Shut Down after Settlement with Hollywood Studios’, Hollywood Reporter, 17 October 2013 quoting Chris Dodd, Chairman and CEO of the MPAA. ALRC Report, above, n 25, at [13.1]. I Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growths, UK Intellectual Property Office, May 2011. Department for Business Innovation and Skills (UK), Enterprise and Regulatory Reform Act 2013: Policy Paper, June 2013 at [12.3]. See, for example: S Anderson, ‘“Instagram Act” Could See Social Media Users Lose Ownership of Their Own Photos’, The Telegraph, United Kingdom, 30 April 2013. ALRC Report, above, n 25, Recommendations 13–1 and 13–2. Copyright Act s 134. Copyright Act s 115(3). Milwell Pty Ltd v Olympic Amusements Pty Ltd (1999) 85 FCR 436; 161 ALR 302; 43 IPR 32; [1999] FCA 63 at [52] per Lee, von Doussa and Heerey JJ. Flagrancy has been characterised as ‘deliberate, deceitful and serious’: see, for example: Microsoft Corporation v ATIFO Pty Ltd (1997) 38 IPR 643; (1997) AIPC 91-336, cited with approval by Branson J in Microsoft Corporation v Goodview Electronics Pty Ltd (2000) 49 IPR 578; (2001) AIPC 91-669; [2000] FCA 1852 at [60] per Branson J. Agence France Presse v Morel, above, n 33. For basic copyright infringement, the statutory damages award is between US$750 and US$30,000 per work: see 17 U.S.C. §504(c)(1). For wilful infringement, the statutory damages award can be increased to up to $150,000 per work: see 17 U.S.C. §504(c)(2). Where an infringer ‘was not aware and had no reason to believe that his or her acts constituted an infringement of copyright’, the statutory damages award can be reduced, to a sum not less than US$200 per work: see 17 U.S.C. §504(c)(2). J Ax, ‘Photographer Wins $1.2 Million from Companies that Took Pictures off Twitter’, Reuters, 22 November 2013. Copyright Act ss 36(1A) and 101(1A). Agence France Presse v Morel, above, n 33. Eiselein v BuzzFeed, above, n 24; see also [6.64], above. Above, n 33. See Facebook (); Tumblr (); Twitter (); and YouTube (). Commonwealth Attorney-General’s Department, Consultation Paper: Revising the Scope of the Copyright ‘Safe Harbour Scheme’, Commonwealth of Australia, Canberra, October 2011, available at .

73. (Case No 718 F.Supp.2d 514, United States District Court, Southern District of New York, 23 June 2010). 74. Above, at [519] per Stanton J. 75. Above, n 73, at [524]. 76. Above, n 44.

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7 Social Media and Litigation Gavin Stuart and Monica Allen

OVERVIEW •

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Where a social media user is prepared to have their activity attributed to them, identification of the user is not generally an issue. However, identification issues arise in seeking to identify the person responsible for posting social media material, whether the profile used was legitimate or not, and whether efforts were made to anonymise or otherwise ‘hide’ the user of social media. When contemplating the use of social media for service and substituted service in litigation, care must be taken to be able to prove the material will actually come to the attention of the party to the litigation. Particular considerations must be borne in mind when contemplating the use of social media material as evidence in court proceedings, including categories of social media related material that may be deemed to be ‘documents’ and preservation issues in respect of them. Social media material that is to be used in evidence must be authenticated using established methods, in the same way as other forms of evidence. Social media discovery, including subpoenas to social media sites, notices to produce and formal discovery orders (including preliminary discovery), raises particular issues that can complicate and delay the discovery process, and potentially leave documents out of reach of litigants. There are ethical considerations to bear in mind when gathering social media material for use as evidence.

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INTRODUCTION 7.1 Social media invites users to share details of their thoughts, relationships, what they are doing, where they are doing it and who they are doing it with. Millions of individuals and organisations worldwide utilise one or more social media platforms daily.1 In doing so, few users give any thought to the fact that their social media posts may one day be used in a court of law. Indeed, it is only in recent times that legal practitioners have begun to explore the use of social media as a tool in litigation and even more recently that the Australian courts have shown a willingness to accept social media as a means of substituted service and admissible documentary evidence. 7.2 Over the past decade, social media has increasingly played a part in defamation suits, personal injury claims, employment disputes, family law and criminal cases, but its use as evidence in other types of legal proceedings remains surprisingly infrequent. Social media represents a dichotomy. On the one hand, it encourages its users to readily share all manner of opinions and information, yet, on the other hand, social media platforms often provide little or no assistance to a party attempting to verify the identity of a particular user. The use of fake profiles, proxy servers and anonymising tools presents unique challenges in litigation, where key to any legal action is being able to identify with certainty a defendant. 7.3 This chapter examines the use of social media in civil proceedings. It considers available options for identifying users and social media platforms as a method of substituted service on defendants. The chapter then looks at how practitioners can use social media content as evidence in proceedings, including requirements for admissibility, approaches to authentication and preservation, as well as methods of gathering evidence, such as discovery, subpoenas and notices to produce. The chapter concludes with some ethical considerations for practitioners when gathering social media information for use in litigation. 7.4 While the concepts and processes discussed in this chapter will be well known to many practitioners, the manner in which social media content is created, stored and accessed poses some interesting issues — the significance of which Australian legal practitioners and the courts are, in the authors’ opinion, only beginning to understand. [page 303]

IDENTIFICATION — THE PERSON BEHIND THE PROFILE 7.5 The pervasiveness of the internet and electronic forms of communication, such as social media platforms, has enabled people to disseminate information to a wide audience with unparalleled ease. Social media platforms that are commonly used include: (a) social-networking sites, such as Facebook and LinkedIn; (b) blogs such as Tumblr, and micro-blogs such as Twitter; (c) video-sharing platforms such as YouTube, and photo-sharing sites such as Pinterest, Instagram and Snapchat; and (d) instant-messaging platforms, such as WhatsApp and Messenger. 7.6 For the vast majority of users of social media and other electronic forms of communication, there is no question that they are prepared to be attributed with the statements and comments they make online. The profiles and user accounts they operate are generally identified as being their own. 7.7 However, some people choose to anonymously post information to blogs and, through the use of fake profiles, send messages and post information and comments to social media sites. The anonymous user may be seeking to damage the reputation of a person or business, or be speaking out in a country whose ruling state has taken steps to curtail free speech. 7.8 Whether the user of social media is attempting to hide their identity or not, in litigation it is necessary to be able to identify the person behind the profile of the user; for example, to determine the appropriate person to sue, or to identify the witness from whom evidence may be required to prove a particular fact. The inability to identify a prospective defendant will be fatal to any claim. 7.9 In this section, available options for identifying users of social media are considered, primarily in the context of a user who does not wish to be identified. By considering the avenues available to identify an anonymous user, methods by which the identity of a user who is not seeking to remain anonymous are necessarily explored. 7.10 A user may have created a website and posted material to it that may need to be used as evidence in litigation. Equally, the source of the evidence might be an email. In either case, it will be important to prove the identity of the owner of the website or email, and also the identity of the person who posted

the material to the website or who actually sent the email. 7.11 Where the person’s website and posts clearly identify them as the person responsible for them, identification may be reasonably straightforward. However, for reasons explained below, it may be necessary to look behind the openly attributed identity referred to on the website or post in order to determine, to a level satisfactory to a court, the true identity of the person responsible. [page 304]

Domain names and websites 7.12 Where investigations in respect of a website are required, the domain name is the starting point for the analysis. As each domain name is registered, it is included in a central domain registration database as part of the domain name system (DNS). The Internet Corporation for Assigned Names and Numbers (ICANN)2 is the entity that has responsibility for managing the key technical services critical to the operation of the DNS.3 It does so through the Internet Assigned Numbers Authority (IANA).4 ICANN contracts5 with private organisations to act as ‘registrars’ that are authorised to allocate generic top level domains (TLDs)6 and other TLDs to third party ‘registrants’. For example, ‘GoDaddy.com’ is an ICANN-accredited registrar that is therefore authorised to assign domain names. 7.13 ICANN is also responsible for the administration of a number of resources used in conjunction with the internet and, again, manages this function through IANA. IANA is responsible for the internet protocol (IP) addressing systems, as well as the autonomous system numbers used for routing internet traffic.7 In simple terms, every website and device used in conjunction with the internet possesses a unique IP address that allows it to be identified.8 The IP address of the computer is logged every time a website is accessed, a post or contribution is made, a search is performed using a search engine or an email is sent. Users of the internet are allocated IP addresses by internet service providers (ISPs),9 that, in turn, obtain allocations of IP addresses from local, national or regional internet registries.10

[page 305] 7.14 The registrant is provided by the registrar with a ‘domain key’ password which allows the user to update and change the details of the registrant, administrative and technical contacts for the domain name. 7.15 The registrant pays a fee for the use of the domain name and is generally responsible for linking the domain name to a website. The registrant is responsible for the content on the website and is able to authorise access to the site by third parties to enable them to post material to the website. For this reason, the registrant is often also the administrative contact for the website, although this is not always the case. 7.16 The entity that provides online ‘space’ on which a website can be stored is known as the ‘host’ of the website (internet content host, ICH). The ICH maintains the website on a server that links the website to the domain name registration so that it is accessible, at least in read-only form, by third parties. The ICH will often also be the technical contact for the website. 7.17 Basic searches as to domain name availability and details of domain name registration can be performed at websites operated by domain name registrars11 and also at the website . A basic ‘whois’ search will provide details of the registered domain name, when the site was created and the server that maintains the site. It will also return details of who the registrant, administrative and technical contacts are for the site, along with contact details for them. This is the information that the person with the domain key inputs and updates with respect to the domain name. 7.18 It is also possible to perform an historical ‘whois’ search by using the website . This is a paid service that allows the user to view point-in-time ‘whois’ searches for a domain name. The website enables this by undertaking ‘whois’ searches on all domain names at random times, and then saves the results. The stored ‘whois’ searches are then accessible to users of the site. 7.19 These simple searches return powerful information that can be of great importance. Details of the creation date or transfer date of a domain name may assist in proving first use in a trademark dispute or opposition proceeding, or provide crucial evidence supporting a breach of restraint argument. 7.20

Armed with the details of the registrant, administrative and technical

contacts for a website over time, further enquiries can be made to attempt to verify whether the contact details provided for these persons and entities are legitimate. If they are, then proof of identity will be relatively straightforward, generally by tendering to the court the ‘whois’ search itself along with other evidence obtained as to proof of identity. 7.21 If the identity of specific users is sought, then further enquiries seeking this information can be targeted to the registrant, administrative/technical [page 306] contact or host. Initially, this information should be sought informally by letter, and then by subpoena if the entity to which the request is sent is either unresponsive or unwilling to divulge the requested information. Subpoenas are dealt with at [7.102], below. 7.22 Often, the operator of, and contributors to, a site may wish to remain anonymous. Sometimes, anonymity is achieved by providing incorrect contact details when registering a website. If this has occurred, then the chain of enquiry in seeking to prove identity may end at the results of a ‘whois’ search.

Proxy servers 7.23 A website registrant may have employed the use of a proxy server to maintain connection between the website and the internet. Very simply, a proxy server is a server that sits at some point between the user’s device and the identified target of the action or request on the internet and acts as an intermediary between them. There are different types of proxy servers, some of which will not be referred to here. 7.24 In general terms, a proxy server works by taking requests from a user or internal network and forwarding those requests to the internet, or taking requests from the internet and forwarding them to other servers in an internal network. 7.25 Proxies are commonly used by organisations to control the content received from the internet that is passed on to internal users of the organisation. This could be done to ensure that internal policies regarding internet use are

complied with. Caching may also be utilised at the proxy level to increase the speed of internal users’ information requests by storing content already retrieved from the internet and sending it to the required computer on the network as it is required for a new search, rather than accessing the internet to perform the search again. 7.26 Proxies can be used to anonymise activity on the internet. A user may access a proxy server that is open to anyone to use who may be connected to the internet. This type of proxy server receives the request from the user’s computer and passes the request on to the identified target for the request. It then receives the response from the identified target and returns it to the user. The proxy server may reveal the IP address of the relevant user if its terms of use allow for this, although typically this would not be the case, particularly in circumstances where the proxy server has been chosen to ensure anonymity (an anonymous proxy server). Where a proxy server has been chosen so as to preserve anonymity, the IP address of the user’s computer is never passed on to the target server. Rather, the proxy server’s IP address is recorded on the server of the identified target. Hence, enquiries with the target server will not reveal the IP address of the computer that actually made the request. To ascertain the details associated with the user’s computer, enquiries would need to be made with the proxy service, initially by informal request and then by subpoena if necessary. [page 307]

Anonymising tools 7.27 Any user seeking to remain anonymous may also use some form of more sophisticated anonymising tool or software. Examples include ‘Onion Routing’12 or Tor,13 I2P14 and software that hides IP addresses by substituting the real IP address for a fake one.15 A virtual private network (VPN) can also be used for these purposes. 7.28 These tools make it more difficult to trace internet activity, including visits to websites, online posts and instant messages back to the user. Their use has become prevalent out of necessity for people wishing to communicate freely in countries where freedom of expression is opposed. As concerns around privacy of information and monitoring of online activity increase, online users

are utilising anonymising tools and software in an effort to prevent recording and analysis of their online activity.

Linking IP addresses to users and their online activity 7.29 The concepts outlined above are applicable to posters and contributors to websites and social media platforms. If posters and contributors have not sought to hide their IP addresses, then details of the IP address used ought not be difficult to obtain, provided the relevant website or social-media site owner, host or ISP maintains that information16 and is prepared to release it.17 7.30 A subpoena sent to the website or social-media site owner, host or ISP, seeking the IP address of the poster or contributor may be required. Such requests will be dealt with in the first instance in accordance with the target [page 308] organisation’s terms and conditions of use and in accordance with the laws applicable to the place where that organisation is located. In addition, the usual procedural issues need to be contended with which arise when serving subpoenas issued out of Australian courts on entities located in foreign jurisdictions. For these reasons, if the target for a subpoena is located outside of Australia then there will often be difficulties in obtaining or compelling production of information. In the first instance, informal correspondence may yield results, although, in the authors’ experience, this is generally not the case. Issues that arise with subpoenas to foreign entities are covered in detail at [7.102], below. 7.31 Once the IP address details are obtained, it is then possible to perform a search on the IP address to obtain further details about it. For example, searches can be performed on IP addresses at that provide details of the country, region/city, location by latitude and longitude, registrar and ISP for the IP address. 7.32 Armed with this information, further enquiries can then be made with the identified ISP; for example, to obtain account details associated with the IP address. This may be by way of informal request, subpoena or an application for preliminary discovery.

7.33 If the IP address is traceable back to a public place, such as a university, library or café, further enquiries with that organisation may assist to identify the user of the particular device if the organisation has maintained a record of its users over time. For example, where identification is required to use a computer then a copy of the identification can be sought. Further, if the session was paid for using a credit or debit card, details of the transaction can be sought and further investigations conducted with the relevant financial institution(s) to obtain details of the person who holds the relevant accounts. 7.34 Depending on how investigations unfold, the identified IP address may be traceable back to a computer that is operated by a user account; for instance, at a place of work or, using the example above, at a university, library or café. Often, to use a computer in such circumstances, a username and password are required. To identify the person who was in fact the user responsible for the relevant conduct, it is necessary to link the person with the user account. This may be fairly straightforward where the user’s password, for example, contains components that are private and peculiar to the person in question (such as a birth date or mother’s maiden name). However, even with this information, if the defendant denies the use of the computer at the time and for the purpose alleged, how can it be proved that the person who set up and ‘owns’ the user account actually engaged in the conduct? In civil matters, the balance of probabilities standard may well provide the answer to this dilemma, particularly if the computer device in question is a personal device owned by the person in question and being operated over a work network or [page 309] if the device used is a device commonly only used by the person in question. In such circumstances, the administrator of the network used to engage in the conduct in question is the appropriate target for further enquiries. 7.35 It is worth noting that, in criminal matters, defences have been run on the basis that there is reasonable doubt that the accused was responsible for records on a computer where malware18 was present on the computer, raising the prospect of an unauthorised user being responsible for the records.19 In such cases, experts have been retained to test for the presence of security software that prevents malware in order to prove that the accused was responsible for the records on the computer.

Emails 7.36 Where the relevant evidence involved is an email, a business-specific email address will often identify the person with whom that email is associated. For example, the email address ‘[email protected]’ identifies the domain ‘bartier’, the generic TLD ‘com’ and the country code TLD ‘au’ as well as the name ‘gstuart’. A simple Google search of ‘site:bartier.com.au’ will identify the website for the law firm ‘Bartier Perry’ as the domain with which the target email address is associated. From there, the website itself can be searched for ‘gstuart’ to identify that Executive Lawyer Gavin Stuart is associated with the relevant email address. Indeed, a simple Google search on the relevant email address will return that result as well. Enquiries with the management of the company could then be made to confirm that the email address is associated with the person in question. 7.37 Another way to identify the sender of an email is to search the email header20 content for the IP address of the computer that sent the email. If the email passed through other servers en route to its destination, the IP addresses of those servers will also appear in the email header, often before the IP address of the sending computer. Expert assistance may be required to identify the correct IP address. Should the IP address be obtained, an IP address lookup search can be performed (such as the search available at the site > to obtain further details of the owner of the IP address. [page 310] 7.38 Where a web-based email account is utilised,21 the identity of the person associated with the email account may not be obvious. The email header of an email sent from a web-mail account can be searched for the IP address of the sending computer. In the event that further enquiries with the organisation responsible for maintaining the web-mail account need to be made, it should be borne in mind that information will only be provided by these organisations in compliance with their privacy policies as part of their terms and conditions. For instance, Google states in its Privacy Policy that:22 We will share personal information with companies, organizations or individuals outside of Google if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to: (a) meet any applicable law, regulation, legal process or enforceable government request.

(b) enforce applicable Terms of Service, including investigation of potential violation. (c) detect, prevent, or otherwise address fraud, security or technical issues. (d) protect against harm to the rights, property or safety of Google, our users or the public as required or permitted by law.

7.39 Another, more sophisticated method of identifying a user of the internet involves obtaining and analysing the user’s ‘identifiers’ and ‘user-related information’ utilised in conjunction with online activity. Identifiers include things such as usernames, pseudonyms, birth dates, bank account numbers and IP addresses. User-related information includes information retained on websites, search engines, posts and emails connected to an identifier. When these two categories of items are analysed, sufficient information may emerge to allow identification of the user, even though one of the identifiers alone may not.23 As with many of the methods of identifying the person behind a profile, such a process would be best embarked upon by an expert forensic computer specialist and may be an expensive process.

SERVICE AND SUBSTITUTED SERVICE Personal service 7.40 In all Australian jurisdictions, personal service is required when an originating process, such as a statement of claim, is to be served on [page 311] an individual.24 For example, r 10.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), regarding how personal service is effected generally, provides:25 1. Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document. 2. If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person. 3. Service in accordance with subrule (2) is taken to constitute personal service.

Substituted service 7.41 However, where personal service is impracticable, court rules allow for orders to be made dispensing with service completely, or substituting another way of service of the document concerned. For example, in New South Wales, pursuant to r 10.14 of the UCPR: (1) If a document that is required or permitted to be served on a person in connection with any proceedings: (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the matter provided by law, the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned. (2) An order under this rule may direct that the document is to be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time. (3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order. (4) Service in accordance with this rule is taken to constitute personal service.

[page 312] 7.42 Substituted service can be necessary in circumstances where an intended party is avoiding or refusing to accept service, or where they are unable to be located. 7.43 Commonly ordered ‘substitutes’ for personal service include leaving the documents with a friend or family member or professional adviser of the person to be served, sending the documents via registered or express post to a particular address (usually either their residential or business address) and/or sending the documents by email. 7.44 The key to any application for substituted service is to have sufficient evidence to satisfy the court that the nominated means of alternate service are likely to result in the documents coming to the intended recipient’s attention in a timely fashion.26 7.45 When considering an application for substituted service, the court may have regard to matters such as:27 (a) whether reasonable steps have been taken to attempt to serve the document;

(b) whether it is likely that steps have been taken that will have brought the existence and nature of the documents to the attention of the person being sought to be served; (c) whether the person to be served could become aware of the existence and nature of the documents in question by means of an advertisement or some other means of communication that is reasonably available; (d) the likely costs to the applicant, who has to serve the document in question; and (e) any other relevant matter.

Service via social media sites 7.46 Australia was the first jurisdiction in the world to order substituted service via a social media site. In the 2008 decision of MKM Capital Pty Ltd v Corbo (Corbo),28 a judge of the Australian Capital Territory Supreme Court ordered that a plaintiff’s solicitors could serve a default judgment for possession (of property) on the two defendants by sending a private message to the defendants via their Facebook pages. 7.47 In its application for substituted service, the plaintiff was required to prove that the two particular individual Facebook profile pages were indeed the profile pages of the defendants. The plaintiff established its case by demonstrating to the court that: [page 313] (a) the dates of birth displayed on the Facebook profile pages matched those held by the plaintiff; (b) the email addresses displayed on the Facebook profile pages matched the email addresses the defendants’ solicitors had on their file; and (c) the ‘mutual friends’ displayed on the Facebook profile pages showed that each of the defendants was ‘friends’ with the other. 7.48 The plaintiff was also able to demonstrate through recent posts to the Facebook profile pages that the defendants were regularly accessing their Facebook profiles. Having regard to the above, the court was ultimately satisfied

that the default judgment would reasonably be expected to be brought to the defendants’ attention by substituted service via Facebook. 7.49 In Corbo,29 the plaintiff’s application was greatly assisted by the public nature of the defendants’ social media profiles. However, the majority of social media users take steps to ensure that their social media accounts are of limited access to the general public by utilising the internal privacy controls to regulate the viewable content, thereby making it more difficult for a party to litigation to be able to prove that the particular user profile does in fact belong to the person to be served.

Requirements for substituted service 7.50 The fundamental element to be satisfied in any application for substituted service, via social media or otherwise, remains that the court must be satisfied that there is reason to believe the documents as served will come to the defendant’s attention. 7.51 Despite Australia being the first country to make an order for substituted service via a social media site, in keeping with the legal profession’s tradition of being somewhat slow to embrace technological advancements, to date there remains surprisingly little Australian case law on this topic. Where the courts have addressed the issue of substituted service via social media platforms such as Facebook or Twitter, it is clear that, to be successful in an application for substituted service via a social media site, a party will need to show with ‘real force’ that the person who created the page is in fact the defendant.30 Ways in which the person behind a social media profile can be identified are set out at [7.5], above. [page 314] 7.52 While the use of orders for substituted service via social media sites is a necessary advancement, such orders are not without controversy. In addition to concerns regarding the identity of the user, there are also security and reliability issues that need to be considered. 7.53 For example, in Citigroup Pty Ltd v Weerakoon,31 the court refused Citigroup’s application for substituted service via the defendant’s Facebook page

because it was not satisfied that the Facebook profile in question belonged to the defendant. In her reasoning, the judge said:32 I am not so satisfied in light of looking at … — the uncertainty of Facebook pages, the facts that anyone can create an identity that could mimic the true person’s identity and indeed some of the information that is provided there does not show me with any real force that the person who created the Facebook page might indeed be the defendant …

7.54 In Mothership Music Pty Ltd v Darren Ayre t/as VIP Entertainment & Concepts Pty Ltd (No 2),33 a judge in the District Court of New South Wales made an order for substituted service of a statement of claim on American rap music artist, Flo Rida, via email and via a post on Flo Rida’s Facebook page. Evidence before the court showed that process servers retained on behalf of Mothership Music had made numerous attempts to personally serve Flo Rida in both New South Wales and Victoria by attending a number of social engagements at which he was appearing, but due to the level of security surrounding Flo Rida, the process servers were prevented from getting close enough to him to serve him with a copy of the relevant legal documents. As part of its successful application for substituted service via Facebook, Mothership Music relied on a link located on Flo Rida’s official website to a Facebook page said to be that of the rap music artist. 7.55 Flo Rida failed to appear at the hearing and the court entered judgment in favour of Mothership Music. 7.56 On appeal, the NSW Court of Appeal in Flo Rida v Mothership Music Pty Ltd34 unanimously held that the order for substituted service ought not to have been made by the primary judge in the absence of evidence that the means of substituted service proposed were likely to bring service of the statement of claim to Flo Rida’s attention. The Court of Appeal found that the evidence before the primary judge did not establish, other than by mere assertion, that the Facebook page was in fact that of Flo Rida and did not prove to the requisite standard that a posting on it was likely to come to his attention in a timely fashion. [page 315] 7.57 Since the decision of MKM Capital Pty Ltd v Corbo35 in 2008 (discussed at [7.46], above), courts in the United Kingdom, the United States, Canada and New Zealand have followed Australia’s lead in utilising social media as a method

of substituted service.36 In 2009, a court in the United Kingdom went one step further by making an order permitting substituted service of an injunction against an anonymous Twitter user by way of a message being sent to the defendant’s Twitter account which included a link to the full text of the injunction.37

Cross-border disputes 7.58 An order for substituted service may, depending on the circumstances, be made in respect of a defendant while overseas. The requirements for service of legal documents on a party outside Australia are dealt with, for example, in Pts II and IIA of the UCPR.38 Under Pt II, the method of service is governed by the law of the country in which service is to be effected. As such, if that country is a jurisdiction that has embraced service by social media platforms (such as the United States or the United Kingdom), then substituted service via Facebook, Twitter or LinkedIn may be appropriate. Part IIA governs service in a Convention country under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters done at the Hague on 15 November 1965.

Issues of reliability and prejudice 7.59 The courts’ willingness to adopt new forms of technology is a logical step. However, as with the more traditional methods of substituted service, it is important to proceed with caution when seeking to utilise social media as a form of substituted service, to ensure that the primary purpose of bringing the documents to a party’s attention is likely to be met and to prevent a proliferation of applications seeking to set aside judgments as a result of a failure to effect service. [page 316]

SOCIAL MEDIA AS EVIDENCE 7.60

Just as the use of social media is becoming more and more prevalent in

society generally, social media content is increasingly forming part of evidence in legal proceedings, particularly in personal injury claims, defamation suits, family law cases and employment matters. 7.61 Captured within the meaning of a ‘document’,39 social media pages, posts and profile content, where relevant to a contested fact in issue in proceedings, now form part of the material that a party will need to prove in evidence, produce under subpoena or disclose as part of the discovery process.

Rules of evidence 7.62 The same evidentiary rules that apply to more traditional forms of evidence also apply to social media evidence,40 and the burden of proof lies with the party seeking to rely on the evidence. However, the dynamic and everchanging nature of social media sites, the often anonymous nature of profiles and posts and the relative ease with which they can be compromised or hijacked can make authentication more challenging than is the case for other forms of documentary evidence. 7.63 To demonstrate that a document is what it is said to be, authorship and timeliness of the social media content need to be authenticated.

What is a document? 7.64 The starting point for considering any document disclosure issue is the question, ‘What is a document?’. As technology has advanced and methods of communication have changed, the legislation and court rules have been modified to ensure that all things that contain material evidence can be relied upon and discovered. The law recognises that ‘… a transaction is not invalid merely because it took place wholly or partly by means of one or more electronic communications’.41 The term ‘document’ means any record of information, and includes:42 [page 317] (a) anything on which there is writing;

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph. 7.65 The definition of ‘document’ has been cast intentionally wide by the legislature, to ensure that all means of recording information are captured. The courts have held that the following things are ‘documents’: computer back-up files;43 emails or evidence of them in readable form on computers, including computer hard drives associated with a particular IP address;44 a mobile phone containing relevant material;45 an iPhone;46 and a DVD.47 To this list can be added any device that stores information in a readable form. In today’s world, this would include iPads and tablets, smart TVs that are internet-enabled and facilitate access to social media sites, and any gaming device that might also fulfil this function. 7.66 At this point, something needs to be said about the types of information that are typically stored in readable form on computers and mobile devices. It is important to understand this in order to know what information may be obtained from these and other sources. Users who create social-networking accounts, establish profiles and engage in social media communications (such as Messenger in Facebook, or tweets in Twitter) only have access to that information as it appears on their devices. They do not have access to the information in native format. Metadata associated with files may only be available from the social media site itself. [page 318] 7.67 That said, it is worth noting, in general terms, the categories of material that might be ‘documents’ and therefore subject to evidentiary process and discovery requests in a social media context, such as the following: (a) email accounts, instant-messaging services, blogging accounts, personal social-networking accounts (such as Facebook, Twitter, MySpace, etc), professional social-networking accounts (such as LinkedIn) maintained or used during a period of time; (b) username and email addresses associated with each account identified in (a)

(c) (d) (e)

(f) (g) (h)

above, including identification of any online identities or personas; copies of any posts or contributions made to any websites or blogs; copies of content created or stored on social media and other sites identified in (a) above; a copy of the Facebook history and account data available by operating Facebook’s ‘Download Your Information’ feature, including profile information, posts and images; server logs; information relating to email headers; and the computer hard drive or electronic device associated with an identified IP address.

7.68 Given the definition of ‘document’, a hardcopy of an electronic document is admissible as evidence, on the basis that it is a copy of at least part of the electronic document as extracted from the relevant device.48 7.69 Where necessary to assist with resolving issues of fact or understanding evidentiary matters in dispute, parties may apply to the court for permission to hold a demonstration of how any relevant social media platform operates. This could extend to how the site is accessed and used and its functionality.49

Preservation 7.70 In Australia, parties to litigation are under a general obligation to preserve evidentiary documents to ensure that those documents are available and usable for the purposes of proceedings.50 This general obligation extends to proceedings that are actually on foot, or within the contemplation of the party.51 Further, the obligation to preserve documents extends to ensuring that electronic documents are not deleted. In a social media context, this [page 319] would include ensuring that a relevant Facebook post or message, whether an image or text or both, is not deleted. A litigant will contravene preservation obligations by deleting relevant social media content once court proceedings are on foot, or are contemplated. In some cases, posts made on social media sites,

such as Twitter and Facebook, may even form evidence of document destruction.52 7.71 Each jurisdiction in Australia has specific rules empowering the court to impose sanctions in circumstances where it is determined that a litigant has intentionally, or unintentionally, destroyed evidentiary material.53 7.72 Where there is a legitimate concern that a party may seek to destroy evidence, a plaintiff can apply to the court for an ex parte order. Superior courts (such as a state Supreme Court and the Federal Court of Australia) can make an order in any proceedings, or in anticipation of proceedings, on an ex parte basis for the purpose of searching for or preserving evidence which may be, or is relevant to, a fact in issue.54 7.73 Evidence in the possession of a defendant would include all electronic documents on any computers and other devices located within the premises specified in the search order. As such, where a social media site has been accessed from a computer within the premises there will be evidence of that activity kept in the cache on a computer’s hard disk and in the computer’s random access memory (RAM). 7.74 Engaging in destroying potentially relevant documents might amount to perverting the course of justice or contempt of court. In New South Wales, s 61 of the Civil Procedure Act 2005 (NSW) empowers the court to make a wide range of orders where procedural non-compliance has occurred, including dismissing proceedings, striking out claims and pleadings, rejecting and disallowing reliance on evidence and costs orders. Section 131 of the same Act preserves the court’s power to commit for contempt.55 [page 320] 7.75 The general obligation is subject to an exception where the party to litigation has in place a document management system that allows for the appropriate and legitimate routine destruction of documents in the ordinary course of business or otherwise, as opposed to seeking to remove the documents from the jurisdiction of the court.56 The exception is unlikely to become relevant for an individual who uses social media. However, it is foreseeable that an individual might implement such a policy in certain circumstances; for example, if the person is a high user of social media and is

seeking to limit data-storage costs. It is more likely to be relevant to a company that uses social media platforms as channels to communicate and do business with its customers and the general public. 7.76 In an effort to ensure that evidence documents remain available for use in litigation, some jurisdictions in Australia had imposed obligations on legal practitioners not to be a party to destruction of documents and to ensure that parties to litigation are advised not to destroy documents that are of relevance to current or anticipated litigation.57 To do so amounted to professional misconduct. While this obligation has not been maintained in the new Legal Profession Uniform Law, it is considered that the obligation contained in the previous legislation properly embodies the obligation to which solicitors are subject pursuant to the common law, in any event. 7.77 When advising a client in respect of potentially offending posts on a social media platform, consideration needs to be given to this obligation. For instance, advising a client to remove or delete a potentially defamatory post may well be appropriate legal advice to the extent that it brings an end to the public exposure of the post. However, would doing so amount to advice to destroy a document potentially relevant to litigation? A copy of the post could be kept, but that copy may not be exactly the same as the electronic version of the deleted post and may not contain key features, such as metadata. 7.78 Solicitors are also required to certify that they have informed their clients of their discovery obligations and that all documents they are aware of that are required for discovery, have been discovered.58 7.79 Applying these general principles to social media gives rise to some interesting outcomes. For instance, if a Facebook profile is a ‘document’, does that mean that the profile cannot be updated or altered in any way for the duration of any litigation? The conservative position in answer to this question is probably ‘yes’. Given the breadth of the rules, efforts to ‘clean up’ a Facebook account, for example, would be in direct contravention of the obligation to preserve those ‘documents’. [page 321] 7.80 Judicial consideration of this point in Australia is scant. However, a case where such a finding has been made is the United States case of Lester v Allied

Concrete59 where a plaintiff was found to have engaged in spoliation60 by deleting certain images from his Facebook page that were relevant to his claim for damages. In another US case,61 the court also found that a plaintiff had engaged in spoliation when he deactivated his Facebook account after having agreed to provide the defendant with access to it. The account and all content relating to it had been deleted in accordance with Facebook’s policy of automatically deleting account information 14 days after deactivation of an account. 7.81 In this context, it is worth noting that there is a difference between deactivating and deleting a Facebook profile.62 When a Facebook profile is deactivated, Facebook states that ‘… your timeline and all information associated with it disappears from Facebook immediately. People on Facebook will not be able to search for you or view any of your information’.63 However, messages posted by that profile may still appear in their friends’ message boards and timelines. A deactivated account can be reactivated by using the profile owner’s username and password. However, if a Facebook account is deleted, the information associated with it is removed from Facebook with no option for reactivation or retrieval. The information is also removed even from a friend’s message boards and timelines.64 Accordingly, a Facebook user who has deactivated an account could legitimately be compelled to reactivate the account in order to retrieve the information associated with it. 7.82 Further, due to the manner in which websites are operated and the sharing nature of social media sites, deletion of a social media account may not give rise to complete deletion of the material on it. For example, deletion of an account may not fully remove content that may have been published from the social-media site’s systems because caching of, backups of, copies of or references to the account information may not be immediately removed. Further, activity on the account prior to deletion may remain stored on the [page 322] website’s servers and be accessible to the public (eg, as re-blogs of blog posts published to the account that has been deleted).65 7.83 In general terms, deletion of electronic data is a particularly difficult issue. It is common for parties to seek to remove evidence by utilising sophisticated ‘wiping’ software. This software is able to delete the chosen file and ensure all traces of it are also removed. While the data in the deleted file

itself may not be recoverable, a skilled forensic examiner will be able to compile circumstantial evidence — from reviewing directories, the naming conventions of certain files and details of the wiping software run — that will tend to confirm that the party engaged in the action of wiping the chosen file. This can sometimes be a valuable tool to attack the credit of a litigant in proceedings. 7.84 In order to aid the discovery of all relevant electronic information, the courts have made orders allowing forensic experts to access other parties’ computers and back-up files for the purpose of recovering deleted information, extracting information, converting information extracted into readable form and making copies of it.66 As a deleted computer file can be recovered using specific software, this raises the question: Is what remains of that deleted file on the computer a document that must be discovered and preserved? Given the definition of ‘document’, this is an arguable position. 7.85 As businesses use more social media platforms to communicate with clients and the public,67 and staff use multiple devices to discharge their work duties, it is important for businesses to have in place processes and systems to ensure that social media material that is potentially relevant to a dispute is able to be identified, accessed and preserved if that becomes necessary. This would require records being maintained of devices used by staff members, login and other details used to access social media sites, the ability to download and store relevant electronic material and rules and procedures to enable these things to occur. [page 323]

AUTHENTICATING SOCIAL MEDIA EVIDENCE 7.86 When seeking to authenticate electronically stored information the following questions must be considered: (a) (b) (c) (d) (e)

How was the evidence collected? Where was the evidence collected? What types of evidence were collected? Who handled the evidence before it was collected? When was the evidence collected?

7.87 The authenticity, and admissibility, of information gathered from social media sites can be established through testimony from the person who created the content, as evidenced by the printed screenshots from the socialnetworking site. In addition to oral testimony, details of how and when the relevant pages were accessed and printed must also be retained. 7.88

The main ways to authenticate social media evidence are:

(a) lay witness and expert testimony; and (b) document disclosure.

Testimony 7.89 The most straightforward way to authenticate a social media site or post is by testimony from the author themselves. Alternatively, evidence can be adduced from a recipient of a post or message and/or evidence that a particular individual commonly uses a nickname that corresponds with the online user profile in question. Generally, it will not be sufficient for an uninvolved third party to simply put screenshots into evidence in order to prove a fact or matter in issue. Expert evidence of how a particular social media site electronically stores information and how that information is created, acquired, maintained and modified may also be required. 7.90 In the absence of a witness that is available to give testimony to establish authorship, parties will need to look to expert forensic evidence to link a relevant post or message to a particular computer by obtaining information such as IP addresses, examining metadata and the content of computer hard drives. An investigation of a party’s computer or mobile telephone can be a valuable means of establishing whether the subject hardware included the actual devices used in originating the profile or post. 7.91 In some cases, the relevant social media material will be authenticated by testimony of the author or owner of the material in cross-examination.68 [page 324] This is a common means of proving surveillance recordings, and there is no reason why the process should be any different for social media material.69

Hearsay 7.92 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. The hearsay rules to exclude, or the exceptions to admit, social media content operate in the same way as with more traditional forms of evidence.70 Exceptions to hearsay include present sense impressions, excited utterances and then-suffered mental, emotional or physical conditions. 7.93 Tweets, status updates on Facebook and public posts and emails lend themselves to falling within exceptions to the hearsay rule. By its very nature and the ‘real time’ way in which they are designed to be used, it is foreseeable that social media content could increasingly be sought to be used as evidence of a party’s admissions, motive or intent, or state of mind (being the party’s state of mind at the time the post was made). Further, legal representatives are likely to find creative arguments to overcome hearsay objections to admissibility.

Document disclosure 7.94 Documentary evidence can be obtained in a number of different ways from parties and non-parties to proceedings by issuing subpoenas for production, obtaining orders for inter-party discovery, interrogatories, serving notices to produce and third party discovery. 7.95 Issuing a subpoena to the social media site in question, or obtaining an order for third party discovery, can elicit documents containing details of a purported user’s accounts and profiles to assist in linking the profile to the person. How to issue a subpoena to a social media site and the challenges associated with that process are addressed at [7.102], below. 7.96 In court proceedings, the term ‘discovery’ is used to describe the various processes available to the parties to obtain information and documents held by other parties, including third parties in some jurisdictions. The purpose of discovery is to ensure that parties to litigation fully understand the case that they must meet, and have access to relevant information to prove facts that may support their respective cases. [page 325]

7.97 Discovery encompasses interrogatories as well as the various processes by which parties disclose relevant documents to their opponents and make them available for inspection, and includes notices to produce. In recent years, the courts have moved away from allowing parties to litigation to require general discovery by notice. Rather, the entitlement is to orders for discovery only in relation to a document within a specified class or classes, or in relation to one or more samples of documents within such a class. This approach has been driven by the legislated purpose that court proceedings be just, quick and cheap.71 Hence, restricting rights in respect of discovery is seen as a way to avoid the potential for discovery to give rise to unnecessary and disproportionate costs, and to cause undue delay.

Relevance 7.98 Parties are not permitted to use subpoenas or the discovery process to gain access to information that is not relevant to a fact in issue in the proceedings. Subpoenas or categories for discovery which are too broad are liable to be struck out or set aside by the court. 7.99 The obligation is to disclose documents that can be taken to be relevant to a fact in issue in the litigation on the basis that they contain material that could rationally affect the assessment of the probability of the existence of that fact.72 Regardless of the type of document that is being considered, this threshold test must be applied. In this regard, comments made by the US District Court in Equal Employment Opportunity Commission v Simply Storage Management LLC73 are instructive. In this case, an employer was seeking broad discovery of social media content on a number of accounts in order to explore the ‘emotional health’ of an employee claimant. The court noted that discovery of social-networking sites:74 … requires the application of basic discovery principles in a novel context … At bottom, though, the main challenge in this case is not one unique to electronically stored information generally or to social networking sites in particular. Rather, the challenge is to define appropriately broad limits — but limits nevertheless — on discoverability of social communications in light of a subject as amorphous and emotional as mental health, and to do so in a way that provides meaningful direction to the parties.

[page 326]

7.100 The judge went on to agree that social media content may be relevant, but noted that, although ‘the contours of social communications relevant to a claimant’s mental and emotional health are difficult to define, that does not mean that everything must be disclosed’.75 7.101 Given that courts in many Australian jurisdictions are legislatively required to ensure litigation is just, quick and cheap,76 and noting how the courts have moved so far to limit the entitlement to and application of discovery in litigation,77 it seems most likely that, when it comes to consideration of discovery of social media content, the courts will apply the same principles and allow only targeted discovery, unless a good reason for more expansive discovery can be mounted.

SUBPOENAS TO SOCIAL MEDIA SITES 7.102 If a party to litigation is unable to obtain required information from a social media site by direct informal request, it will be necessary to consider serving a subpoena to the social media site. 7.103 If the social media site is located within the Australian jurisdiction, a valid subpoena served on the social media site in compliance with Australian service requirements will be effective and capable of enforcement subject to the usual rules that govern the form of subpoenas and other procedural requirements. 7.104 From an Australian litigation perspective, the efficacy of the subpoena process is impacted by the fact that many social media sites are based outside Australia and are therefore subject to the laws of the jurisdiction where they are located. 7.105 As an example of the complications that can arise when seeking to subpoena a social media site based outside Australia, we will consider the position as regards seeking information by subpoena from a social media site in the United States. 7.106 It should be borne in mind that, sometimes, overseas-based entities may operate in Australia through a locally registered company. For instance, Google’s ‘Blogspot’ site has, in the past, been operated in Australia through Google Australia Pty Ltd (ACN 102 417 032) rather than through the US-based entity, Google Inc. An Australian-registered company operating in Australia is

subject to Australian laws, so the process of obtaining information about [page 327] a particular ‘Blogspot’ site is more likely to yield results, and would easily be enforceable through the courts in Australia in that scenario.78 7.107 In general terms, when considering issuing a subpoena to an entity located outside of the Australian jurisdiction, a subpoena issued out of an Australian court will not be capable of being enforced on an entity located outside of Australia unless it is prepared in a manner that is consistent with the requirements of the relevant Australian jurisdiction and served in accordance with the requirements of the jurisdiction where the entity is located79 or in accordance with the Hague Convention requirements.80 In New South Wales, the subpoena must be issued with the leave of the Supreme Court of New South Wales, or at least with that court’s subsequent confirmation. Depending on how service is to be effected, enquiries will need to be made with a lawyer or other person with knowledge of what the local requirements are in the foreign jurisdiction so that these requirements can be met. 7.108 Apart from compliance with local Australian procedural requirements, applicable legislation in the jurisdiction where the entity is located may dictate that some or all of the material sought in the subpoena cannot be produced. This can be illustrated by considering the issues that arise when serving a subpoena on Facebook, which is located in the state of California in the United States. 7.109 Because Facebook is subject to the federal United States Stored Communications Act (SCA),81 it takes the position that it is prevented from disclosing user content, such as messages, timeline posts and photographs. The SCA is a law that prohibits ‘electronic communication service’ providers (such as Facebook) from disclosing electronically stored data of a private nature to any non-governmental entity. The SCA has its roots in the fourth amendment right to privacy enshrined in the US Constitution. [page 328]

7.110 Where the holder of an account is a party to litigation, the user is able to access account details and user content. Facebook states on its website that:82 Parties to litigation may satisfy party and non-party discovery requirements relating to their Facebook accounts by producing and authenticating the contents of their accounts and by using Facebook’s ‘Download Your Information’ tool, which is accessible through the ‘Settings’ drop down menu.

7.111 If a person cannot access their content, Facebook may, to the extent possible, attempt to restore access to deactivated accounts to allow the person to collect and produce their content; however, Facebook cannot restore account content deleted by that person. Facebook preserves account content only in response to a valid law enforcement request. 7.112 While Facebook accepts that it is prevented by federal US law from producing user content in response to a subpoena, it states on its website that Facebook may provide basic subscriber information (but not content) to a party to civil litigation where:83 (a) The requested information is indispensable to the case and not within the party’s possession. (b) A valid California or federal subpoena is personally served on Facebook. Where the subpoena is ‘out-of-state’, it must be domesticated in California and personally served on Facebook’s registered agent.84 (c) The account in respect of which subscriber information is sought must be identified by email address, Facebook user ID and vanity URL (if any). Facebook notes that names, birthdays and locations are insufficient to identify a Facebook account. 7.113 A Californian federal court case sheds some light on the position taken by Facebook that subpoenas are not enforceable to the extent that they seek private user content, as opposed to subscriber information. In Crispin v Christian Audigier Inc,85 the defendants served subpoenas on several social media sites, including Facebook, seeking production of the plaintiff’s ‘basic subscriber information’ as well as communications, some of which were with the defendants. The court held that the request for production of communications was in breach of the SCA and proceeded to set aside the subpoenas. The court found that the level of privacy settings utilised by a user was relevant to whether the social media profiles of the claimant should be [page 329]

disclosed in the proceedings. Given the provisions of the SCA, the subpoenas may well have been valid if they had been limited to production of basic subscriber information. 7.114 Other US-based social media sites will also be subject to the SCA. In the case of Twitter, there have been decisions in the United States to the effect that subpoenas requiring production of actual communications (‘tweets’) are valid on the basis that, on setting up an account, the user provides Twitter with a licence to distribute the tweets,86 and hence the maker of the communications can have no expectation that they are ‘private’ in nature. 7.115 A similar analysis can be applied to content posted on the blogging site, Tumblr. Tumblr’s Privacy Policy specifically notes that:87 Content published and shared publicly is accessible to everyone, including search engines, and you may lose any privacy rights you might have regarding that content.

7.116 Ultimately, there is no such thing as privacy on social media. Privacy settings do not prevent a court from making an order permitting discovery or issuing a subpoena to retrieve information on a social media site. As noted by a court in the United States:88 To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.

7.117 In determining the privacy interest of the social media user, courts may have regard to the level of privacy settings on the account itself. Many users ensure their social media accounts are of limited access to the general public by utilising internal controls, set at the discretion of the account holder, that limit the viewable content and the discoverability of the account. 7.118 The average number of ‘friends’ per Facebook user is 130.89 When considering the arguments around privacy, courts understandably have had regard to the number of individuals able to view the social media account in question. For example, in a US personal injury case, the plaintiff, whose Facebook account was viewable by 200 Facebook ‘friends’, only five of whom [page 330] were described as ‘close friends’, was ordered to provide the defendant with all

passwords, usernames and login names for any and all MySpace and Facebook accounts maintained.90 In another US case, the court stated that any privacy concerns were defeated by the very nature of social media sites, which means that any information contained on those sites would have previously been shared with at least one other person, if not many others.91 7.119 Having regard to these and other United States and Canadian decisions, it should be assumed that it will be increasingly difficult for an objecting party to successfully resist producing social media information on the grounds of privacy when users of social media affirmatively decide to place information about themselves on sites that are to be shared with others.92 7.120 Before contemplating serving a subpoena on a social media site for production of documents, each site’s terms and conditions of use will need to be considered. Not all social media sites provide users with the ability to access and obtain non-public information (such as communications with other users and IP logs) about their accounts.93 It appears to be standard practice not to provide any user account details to third parties unless a subpoena, court order or other valid legal process is served.94 ‘Valid’ in the context of most of the popular social-networking sites means compliant with the laws of the United States; accordingly, foreign subpoenas may need to be domesticated in order to be enforceable.

DISCOVERY IN PROCEEDINGS 7.121 The discovery obligation, as it relates to documents, is to disclose documents that are in the possession, custody or power of a party that can be taken to be relevant to a fact in issue in the litigation. A document will be considered to be relevant to a fact if it contains material that could rationally affect the assessment of the probability of the existence of that fact. 7.122 Social media discovery raises issues that do not occur where traditional hard forms of documents are concerned, but, in practice, document disclosure in a social media context requires nothing more than the application of basic discovery principles. This said, as electronically stored information becomes [page 331]

more and more prevalent, the number of documents that may need to be discovered has significantly increased and lawyers need to understand how to manage this.95 In this section, we touch upon some of the novel and interesting discovery-related issues that may be encountered in litigation. 7.123 It is worth mentioning that, while there are many similarities between discovery obligations in other countries that we often look to for guidance on new and emerging issues in the law (such as the United States, Canada and England), due to differences in the law in those jurisdictions, not all issues that have occupied practitioners’ and academics’ minds in those countries are necessarily relevant to practitioners in Australia. A good example of this is the tension in the United States between a person’s fourth amendment right to privacy and the extent to which document-discovery obligations in litigation can be enforced, particularly where the documents concerned are of a social media nature. In Australia, the issue does not arise because Australian citizens do not have any similar constitutionally enshrined right to privacy. For this reason, literature from other jurisdictions should be treated with caution.

Possession, custody or power 7.124 In a social media context, there is some complexity in determining in whose ‘possession, custody or power’ a specified document, or class of documents, may be. 7.125 The term ‘possession’ refers to the effective physical or manual control of a document.96 Someone has custody of a document where they have control or responsibility for that document,97 whether or not they have a right to physical possession, and whether or not the person is unable to deal with the document by a contractual obligation. A document is within the power of someone if that person has the legal right, authority or practical ability to obtain the document from a third party on demand. In traditional terms, this would include documents held by a person’s bank or a professional adviser. 7.126 In a social media context, generally any computer or electronic device used to participate in social media will be in the possession, custody or power of the party required to provide discovery. If it is given to someone else to mind, it would still be in the ‘power’ of the owner. Hence, any relevant data stored on those devices will need to be discovered. 7.127

However, the question can be more complex than simply looking at

the owner of content and the devices that they use for social networking. [page 332] For example, if a work server was used to engage in the social-networking activities, there may be relevant data on the server that is potentially discoverable. As the server is owned and controlled by a third party (the employer), depending on the terms of the employee’s employment, the employee may not be able to discover the material from the employer’s server as it may well be out of the employee’s ‘possession, custody or power’. 7.128 It seems reasonable to approach social media discovery on the basis that ‘possession, custody or power’ exists only where a user has access to and power to add, delete or modify their own social media content or as long as another user is prepared to allow the user access to their social media content. 7.129 In the United States, cases have considered the circumstances where a Facebook user will be compelled to produce relevant photographs and other material posted on a Facebook profile/timeline as well as all relevant photographs/material posted by other third party users in which the user is tagged and to which the user has access.98 This is an example of compelling discovery of social media content that the person can access and view, but cannot modify or delete. Accessing and viewing social media content may well, therefore, fall into the category of information over which a user has ‘possession, custody or power’, at least until the other user blocks access to it (eg, information that a ‘friend’ can view on another’s Facebook timeline). 7.130 While ‘knowledge’ of records stored on electronic devices is not specifically included in the test to be applied to the discovery obligation, in practical terms the extent of the user’s knowledge of where relevant records are stored on a computer or other device will be important when considering the degree to which discovery obligations have been complied with. For example, when visiting a website and viewing an image, the computer used to access the website uses its software to record the image so that if the user returns to the website, the image can be recovered by the computer without needing to download it again.99 A person skilled in the use of computers would be able to access and view the image on the computer without needing to again visit the website.100 If the image is relevant to discovery, then the image ought be extracted from the computer and discovered. However, if the litigant and user is

unaware of the existence of the image on their computer then is that party in breach of their discovery obligations? Probably, yes. In which case, it may be prudent for parties to litigation to employ experts to ensure that all relevant ‘documents’ have been produced and discovered. 7.131 A further difficult question is the extent to which an employer might be deemed to have ‘possession, custody or power’ over an employee’s social [page 333] media content if the social media activity has taken place on the company’s computer or on the company’s network server and is maintained as a cache copy on either of them. Arguably, in such circumstances, the employer would have sufficient control over the social media content to give rise to an obligation to preserve and discover it if required, at least after being notified of the issue and the existence of relevant documents. 7.132 As referred to above, only some information will be capable of being obtained from computers or other devices operated by a party to proceedings. The relevant data stored on the servers operated by the social media sites themselves will contain further information, or documents, that might be relevant to discovery obligations. 7.133 Of relevance here is the extent to which a party to litigation can exercise some form of control over a document by authorising or consenting to the release of information by an ISP or a social media site. Consenting to the release of information probably does not fall into the definition of having possession or custody of that information. However, there is an argument that consenting to or authorising the release of information is exercising ‘power’ over it, particularly if the terms and conditions of the relevant site or ISP allow for authorisation of the release of information to third parties. On this basis, it might be arguable that parties to litigation have an obligation to at least attempt to have relevant information released by social media sites in order to comply with their discovery obligations. Facebook’s terms and conditions deal with this by making available a copy of the Facebook history and account data and activity by operating Facebook’s ‘Download Your Information’ feature, including profile information, posts and images. Parties to litigation could be compelled to discover the results of this search. In most cases, this will be a quicker and cheaper method of authenticating the social media material in

question as opposed to seeking to obtain material from the social media platform pursuant to a subpoena.

NOTICES TO PRODUCE 7.134 Parties to proceedings are entitled to require other parties to the litigation to produce identified documents by service of a notice to produce. While there are minor variations in the rules governing notices to produce in each Australian jurisdiction, the fundamental obligation is to produce documents referred to in a pleading, affidavit or witness statement or any document or thing clearly identified in the notice.101 [page 334] 7.135 Where the notice requires production of documents referred to in a pleading, affidavit or witness statement, there is generally no issue as to identification of the document concerned and compliance with the notice. 7.136 However, often notices to produce seeking production of ‘any document or thing clearly identified’ are cast very broadly, and are open to objection on the basis that they seek categories of document, for example, rather than a particular document. 7.137 Given the specificity that is required to properly comply with the notice to produce requirements, where social media evidence and documents are concerned, care should be taken to identify the document that is required to be produced with as much precision as possible. In order to do so, an understanding of the types and forms of documents commonly dealt with in respect of social media is required. For instance, as referred to in [7.133], above, users of social media will be able to download and produce relevant social media material, and the accessible documents could be a target for a notice to produce.

PRELIMINARY DISCOVERY 7.138 In certain circumstances, parties to litigation are entitled to seek preliminary discovery. This is discovery of documents before actually

commencing proceedings against any party, to enable that party to obtain information necessary either to identify a potential defendant or determine whether to commence proceedings against a prospective defendant.102 7.139 As far as identification is concerned, the party seeking preliminary discovery must satisfy the court that: (a) having made reasonable enquiries, the party is unable to sufficiently ascertain the identity or whereabouts of the person concerned for the purposes of commencing proceedings against that person; and (b) some other person other than the party seeking discovery may have information or possession of a document or thing that tends to assist in ascertaining the identity or whereabouts of the person concerned.103 [page 335] 7.140 Reference should be made to [7.5], above, where issues relating to identification of users of social media and other forms of electronic communications are discussed. 7.141 The preliminary discovery proceedings are commenced by way of an originating application of some type depending on the jurisdiction, and a supporting affidavit setting out all investigations made to date. Such affidavits typically provide details of the relevant social media or other electronic communication the subject of the litigation, searches (such as ‘whois’, historical ‘whois’ and other registrar searches) performed to ascertain registration details for any domain names, and further enquiries conducted to attempt to contact and locate those persons and entities identified in the searches, commencing with informal written requests and including other more sophisticated enquiries made. Once the affidavit has established that reasonable enquiries have been made to ascertain the identity or whereabouts of the persons concerned, the material in respect of which discovery is sought will need to be identified. Such material may include correspondence to/from the target of the discovery order and the person concerned, details of usernames, profiles, accounts and passwords utilised by the person concerned, web-server logs maintained, backups and archives of content and content management logs. 7.142 In litigation where the responsible party has operated using social media and other forms of electronic web-based communication, there may be

more than one legitimate target for a preliminary discovery application. For example: (a) The registrant or the host of the website might be viable targets depending on the results of initial searches, where a blogger has anonymously posted material to a website. (b) The social media entity might be a viable target, in addition to the responsible account holder, as the social media entity holds information that will enable the account holder to be identified. 7.143 As a separate entitlement, where a party can identify a prospective defendant but has been unable to obtain sufficient information to decide whether or not to commence proceedings against that prospective defendant, the party may consider seeking preliminary discovery of documents or things from the prospective defendant that may assist in determining whether or not the party is entitled to make a claim for relief against it.104 The preliminary discovery process does not permit discovery from one identified party in order to determine the merit of pursuing claims against other parties. [page 336] 7.144 To successfully obtain an order for preliminary discovery to assess the entitlement to claim, the court must be satisfied that: (a) the party is entitled to make a claim for relief; (b) the party has made reasonable enquiries; (c) despite the enquiries made, the party is unable to obtain sufficient information to decide whether or not to commence proceedings against a prospective defendant; (d) the prospective defendant may have a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief; and (e) inspection of the document or thing will assist the party in making a decision whether or not to commence proceedings. 7.145 Again, such proceedings would be commenced by way of an originating application of some type, depending on the jurisdiction, and a supporting affidavit covering the required matters as set out above.

DISCOVERY FROM THIRD PARTIES 7.146 In addition to the entitlement to seek preliminary discovery in order to identify a potential defendant or determine whether to commence proceedings against a prospective defendant, a party may also seek discovery from a third party not party to proceedings where it appears to the court that the third party may have in its possession documents that relate to a question in the proceedings.105 7.147 This further preliminary discovery provision was included to ensure that the court would be able to compel production of all documents necessary to enable consideration of matters to be determined by the court. With the courts limited to only subpoenas to produce to compel production from third parties, issues had arisen whereby such subpoenas had been set aside on the basis that the court rules did not allow such subpoenas to be used to obtain discovery from third parties.106 7.148 The courts are generally reluctant to order a third party to provide discovery in such circumstances, and will generally require persuading [page 337] by affidavit evidence that circumstances are sufficiently special to justify application of the third-party discovery rules, and the classes of documents that it is expected the third party possesses.107

GATHERING INFORMATION AND ETHICAL CONSIDERATIONS 7.149 Social media is becoming an increasingly valuable tool in litigation. Where a party fails to utilise available privacy controls, gathering social media evidence can be as easy as typing in a person’s name into a search engine, such as Google. However, in the absence of orders for discovery, where a user limits the viewable content of a page to ‘friends only’, gaining access to information on a party’s social media profile can require some creativity. Ways to access a party’s ‘private’ profile include: (a) searching the names of any known family and friends to ascertain whether

they have a social media profile. If they do, and their pages are public, then this may provide access to the party’s profile. Otherwise, material contained on the friend’s newsfeed may nevertheless be of assistance; (b) looking at any available photographs in which the individual has been ‘tagged’; (c) reviewing comments and posts made from or to the party by one or more of their ‘friends’; and (d) checking where the user has ‘liked’ a particular page. 7.150 A recent Supreme Court of New South Wales case108 is instructive in this regard. In that case, a claim had been made for total and permanent disability under a life insurance policy. The insurer obtained material from the plaintiff’s partner’s Facebook page that identified the plaintiff and showed the plaintiff engaging in activities that were contrary to the plaintiff ’s medical evidence in the proceedings. A notice to produce was issued to the plaintiff seeking production of her Facebook material. After the issue of the notice to produce, and because material on the Facebook page appeared to be diminishing, expert evidence was obtained attesting to the fact that someone with access to the Facebook account appeared to be deleting photographs. All of these matters were used by the insurer to obtain a favourable settlement of the claim. The insurer was only able to access the Facebook material in the first place because the plaintiff’s partner’s Facebook account was public. [page 338] 7.151 At the time of writing, there were no published Australian guidelines in respect of ethical recommendations or rules to be followed by legal practitioners seeking to gather information from a party’s social media profile for use in litigation. 7.152 That said, in keeping with a practitioner’s general ethical obligations, it should be assumed that a court will consider any information obtained by misleading or deceptive conduct (such as sending a ‘friend request’ from a fake social media profile) should not be admitted by the court and may even result in disciplinary action. For information to be of use in proceedings, practitioners must be careful as to how it is obtained and how it is preserved. 7.153

Other professional rules governing solicitors’ conduct are relevant to

social media. 7.154 We have referred to the positive obligation in relation to preserving documents relevant to litigation at [7.74]–[7.77], above. 7.155 Where a solicitor obtains access to inadvertently disclosed material of a confidential nature, perhaps on social media, the solicitor must: (a) not use the material; (b) delete the material upon becoming aware of it; and (c) notify the party of the disclosure and take steps to prevent inappropriate misuse of the material.109 7.156 Further, a solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.110 In a criminal matter, the scheduled trial of co-accused was vacated and rescheduled for a later date after the coaccused’s barrister posted material to his Twitter and Instagram accounts which had the potential to prejudice the trial.111 In that case, the judge referred the matter to the Registrar of the Common Law Division of the Supreme Court of New South Wales and directed the registrar to take advice from the Crown Solicitor for New South Wales to determine whether proceedings for contempt should be taken against the barrister. 7.157 In the context of copyright, the fair dealing exception to copyright infringement with respect to judicial proceedings or professional advice112 means that lawyers can access, reproduce, download and use copyrighted material to gather evidence, research factual and legal issues and provide clients with legal advice. [page 339]

CONCLUSION 7.158 In this chapter, we have examined the use of social media content as evidence in court proceedings. The use of social media in litigation has created a range of factual issues that are being grappled with, but few issues that cannot be handled with existing legal rules and principles. 7.159

Very real issues exist in respect of the ability to quickly and cheaply

identify users of social media to the standard required by the courts, whether they be potential defendants or witnesses of fact. The time and cost involved in doing so act as deterrents in many instances for parties involved in litigation or those contemplating court action. Practitioners in the Australian jurisdiction are beginning to more routinely embrace the use of social media content in litigation. The slower-than-expected use of social media content in litigation could perhaps be explained by the courts’ movement away from allowing general discovery, but might also be a reflection of the effort and cost that is required to properly prove social media content for forensic use. With social media now recognised as a mainstream channel for businesses and individuals alike, and the platforms available for use ever expanding, it is inevitable that the use of social media content in litigation will continue to increase, and with it the guidance to be gained from decided cases and interlocutory judgments in the area.

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PRACTITIONER TIPS •

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1. 2. 3. 4. 5. 6.

Ensure that you can prove the identity of the person actually responsible for the posting of any relevant social media material. This will be straightforward where admissions are made, but very difficult if the user has taken steps to ‘hide’ their identity. Ensure that you are familiar with the fundamentals of searching for details of the ownership and control of domain names and websites, email addresses and the linking of IP addresses to online activity. If seeking to use social media as a means of substituted service, ensure that you have sufficient evidence to prove that the documents will come to the attention of the person intended to be served. When considering social media material for use as evidence, ensure that you understand: – what categories of social media material are ‘documents’ for that purpose; – the issues that can arise in relation to preservation of social media material; – the different methods available to a litigant to compel production of documents from parties to proceedings and third parties, and the particular issues that complicate these processes when considering social media-created documents; and – how to go about proving social media material as evidence in court proceedings. In the absence of comprehensive Australian guidelines in respect of ethical recommendations or rules for legal practitioners when seeking to gather social media material for use in litigation, be mindful of relevant professional rules and legislation that does have application to aspects of this conduct.

As at 20 September 2015, 1.44 billion people were active Facebook users, with 48 per cent of them logging in daily. See the Facebook statistics available at . ICANN is an internationally organised non-profit organisation set up by the internet community. See . ICANN, About, . Above. Through registrar accreditation agreements (RAA); see Resources for Registrars and Registrants, available at . The right-most label or suffix of a domain name is called its ‘top level domain’ (TLD). Where the TLD consists of two letters, it is a country code TLD. Where it consists of three letters, it is a generic TLD: see Resources for Registrars and Registrants, available at . Note that ‘edu’ and ‘gov’ are not administered by ICANN.

7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

17.

18.

19. 20.

21. 22. 23. 24. 25.

26. 27. 28.

See Number Resources, available at . The IP address of a website is the unique identifier that enables it to be located and accessed. Many devices used to access the internet use the dynamic host configuration protocol (DHCP) that results in the device being assigned a new, unique IP address each time it joins a particular network. ISPs are private organisations that provide users with connection to the internet. They provide a range of services to their customers, such as facilitating domain name allocation, provision of email addresses, hosting services and technical assistance. See above. The regional internet registry for the Asia–Pacific region is the Asia Pacific Network Information Centre (APNIC), found at . For example, see the ‘Domain Search’ function available at . A technique developed by the United States Navy that hides the true IP address of a user on the internet by sending the information in an encrypted form through a number of randomly selected proxy servers before delivering it to the target destination: see . A free software implementation of second-generation onion routing. Free software, such as ‘SurfingTunnel’, is a personal proxy server that hides the real IP address by running the online activity through the Tor network. See . A network that allows users to anonymously send and receive messages to other users of the network: see . See, for example: SafeIP or Temonz. ‘Server logs’ of web server activity are maintained by ISPs and other organisations that provide internet-based services. Google, for instance, states that: ‘These “server logs” typically include your web request, Internet Protocol address, browser type, browser language, the date and time of your request and one or more cookies that may uniquely identify your browser’ and then provides an example of a typical log entry: see the ‘Key Terms’ page at . See, for example: Google’s Privacy Policy (available at ) or Tumblr’s Privacy Policy (available at ), which reserves the right to access, preserve and disclose information the organisation reasonably believes is necessary to, amongst other things, satisfy any law, legal process, government request or protect the rights of any third party or the public in general. Malware is ‘malicious software’ — for example, a ‘Trojan Horse’ virus that is designed to unknowingly be downloaded onto a computer when supposedly innocent files are accessed and to then perform certain actions automatically, such as accessing particular websites or exporting information from the computer’s hard drive, etc. R v Caffrey (Southwark Crown Court, UK, 17 October 2003, unreported). The email header contains data that records from whom the email was ‘Received: from’, including the IP address of the computer used, the ISP used and the date and time of receipt of the email. It may also include further ‘Received: from’ lines identifying servers through which the email passed or, in the case of spam email, fake ‘Received: from’ lines may be included. Such as Yahoo, Google’s ‘gmail’ or Microsoft’s ‘hotmail’. Available at . See, generally: A Krausová, ‘Identification in Cyberspace’ (2008) 2(1) Masaryk Journal of Law and Technology 83; and S Brands, ‘Secure User Identification Without Privacy Erosion’ (2006) 3(1) University of Ottawa Law & Technology Journal 205. Uniform Civil Procedure Rules 2006 (NSW) r 10.20. See also Federal Court Rules 2011 (Cth) r 10.23; Court Procedure Rules 2006 (ACT) r 6460; Supreme Court Rules (NT) r 6.09; Uniform Civil Procedure Rules 1999 (Qld) r 116; Supreme Court Rules (SA) r 66; Supreme Court Rules 200 (Tas) r 133; and Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 6.10; Rules of Supreme Court 1971 (WA) r 72.4. Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 at [38]. Byrne v Howard (2010) 239 FLR 62; [2010] FMCAfam 509 at [24]. (ACTSC, Master Harper, 12 December 2008, unreported).

29. Above. 30. Citigroup Pty Ltd v Weerakoon [2008] QDC 174. See also Graves v West [2013] NSWSC 641 in which the court made an order for service of documents via LinkedIn. In addition, see Penna v Lanza [2014] FCCA 278 and Hilton & Longhurst [2013] FamCA 511 where orders for substituted service by Facebook and LinkedIn respectively were made in the family law jurisdiction. 31. [2008] QDC 174. 32. Above, per Ryrie J. 33. [2012] NSWDC 111. 34. [2013] NSWCA 268. 35. (ACTSC, Master Harper, 12 December 2008, unreported). 36. See, for example: the Canadian case of Knott v Sutherland (Feb 5 2009), Edmonton 0803 02267 (Alta QBM); and the New Zealand case of Axe Market Gardens v Craig Axe (Case No CIV-2008-485-2676, High Court Wellington, Gendall A J, 16 March 2009). 37. Blaney v Persons Unknown (UK High Court Chancery Division, Lewinson J, October 2009, unreported). 38. See also Federal Court Rules 2011 (Cth) Pt 10; Court Procedure Rules 2006 (ACT) Div 6.8.9; Supreme Court Rules (NT) r 7.01; Uniform Civil Procedure Rules 1999 (Qld) Ch 4 Pt 7; Supreme Court Civil Rules 2006 (SA) r 41; Supreme Court Rules 2000 (Tas) r 147A; Supreme Court (General Civil Procedure) Rules 2005 (Vic) Pt 2; and Rules of Supreme Court 1971 (WA) O 10. 39. See [7.64], below, and following. 40. For example, the opinion rule (see ss 76–79 Evidence Act 1995 (Cth) and the state equivalents) applies to material posted to social media sites in the same way that it does to any other form of communication. 41. See, for example: Electronic Transactions Act 1999 (Cth) s 8; Electronic Transactions Act 2000 (NSW) s 7; Electronic Transactions Act 2000 (SA) s 7; Electronic Transactions (Victoria) Act 2000 (Vic) s 7. 42. See the definition of ‘document’ in the Dictionary to the Evidence Act 1995 (Cth). Clause 8 of Pt 2 of the Dictionary states that a document includes: any part of the document; or any copy, reproduction or duplicate of the document or of any part of Act 1995 (Cth) definition is imported into the definition of ‘document’ in Sch 1 to the Federal Court Rules 2011 (Cth) along with the further definition that a document includes ‘any other material, data or information stored or recorded by mechanical or electronic means’. The same definitions are included in the various state enacted Evidence Acts; for example, in the Evidence Act 1995 (NSW). The Interpretation Act 1987 (NSW) also contains the same definition. The UCPR defines ‘document’ as including ‘any part of a document and any copy of a document or part of a document’. The definition relies on the Interpretation Act 1987 (NSW) and the Evidence Act 1995 (NSW) for its meaning. 43. Sony Music Entertainment (Aust) Ltd v University of Tasmania [2003] FCA 724. 44. Grant v Marshall [2003] FCA 1161. 45. Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264. 46. Re Yu [2013] QSC 322. A case in which the court held that a series of notes made by the deceased on his iPhone shortly before his death constituted a ‘document’ and admissible evidence of an informal will. 47. In the Estate of Wilden (Dec’d) [2015] SASC 9 and Re Wai Fun Chan [2015] NSWSC 1107. Cases in which the court held that a DVD recording of a ‘video will’ constituted a ‘document’ and admissible evidence of an informal will. 48. See above, n 42. 49. See, for example: Evidence Act 1995 (Cth) s 53; Evidence Act 1995 (NSW) s 53; Evidence Act 2008 (Vic) s 53. 50. See British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197; and McCabe v British American Tobacco Australia Services Ltd (2002) VSC 73. 51. McCabe v British American Tobacco Australia Services Ltd, above.

52. See Palavi v Radio 2UE Sydney Pty Ltd, above, n 45, in which the plaintiff commenced proceedings for defamation against a Sydney radio station in response to statements made about her sexual conduct with rugby league players. The radio station sought discovery of mobile phones believed to have incriminating photos and texts stored on them. The plaintiff’s Facebook page contained the following entry: ‘This is gonna sound stupid but how do I get pics off my iphone that I don’t want? Like ones that have synced from computer?’ The court granted the radio station’s request. 53. See UCPR r 25.19 and Federal Court Rules 2011 (Cth) r 14.11. See also Court Procedure Rules 2006 (ACT) r 751; Supreme Court Rules (NT) r 37B.02; Uniform Civil Procedure Rules 1999 (Qld) r 261A; Supreme Court Civil Rules 2006 (SA) r 148; Supreme Court Rules 2000 (Tas) r 937J; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 37B.02; and Rules of Supreme Court 1971 (WA) O 52B.2. 54. Above. 55. See Federal Court of Australia Act 1976 (Cth) s 31 and Federal Court Rules 2011 (Cth) Pt 42 regarding the Federal Court’s powers with respect to committal for contempt. 56. British American Tobacco Australia Services Ltd v Cowell, above, n 50; and McCabe v British American Tobacco Australia Services Ltd, above, n 50. 57. See Legal Profession Regulations 2005 (NSW) r 177(1) and (2). 58. UCPR r 21.4. 59. (Case No CL.08-150, CL09-223, United States Circuit Court, Virginia State, 1 September 2011). 60. Spoliation is the act of rendering potential evidence invalid, either intentionally or through negligence. In the United States, a party that commits spoliation is subject to an inference against it that the evidence destroyed would not have been favourable to its case. 61. Gatto v United Air Lines (Case No 10-cv-1090-ES-SCM, United States District Court, District of New Jersey, 25 March 2013). 62. See the information page, ‘How Do I Deactivate My Account?’, available at . 63. Above. 64. See the information page, ‘What’s the Difference Between Deactivating and Deleting My Account?’, available at . 65. See Tumblr’s Privacy Policy, available at . 66. Sony Music Entertainment v University of Tasmania, above, n 43. See also Integrated Medical Technology Pty Limited and Anor v Gilbert and Ors [2015] QSC 124, a case where it was alleged that there had been copying and misuse of software source code and the court ordered production of electronic files beyond the software and source code itself (such as object, temporary, text, installation, executable, report and log files) because they could have evidentiary significance to the issues in the proceedings. 67. For example, staff use of LinkedIn for networking and use of Facebook ‘fan’ pages and Twitter pages to promote businesses. See Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2011] FCA 74 at [14] and following. 68. See, for example: Frost v Kourouche [2014] NSWCA 39 and Munday v Court (2013) 65 MVR 251. 69. UCPR (NSW) r 31.10 provides that where there is a legitimate forensic purpose, a party need not provide the opposing party with an opportunity before trial to inspect a photograph, video recording, plan or model that it seeks to tender. Depending on the circumstances, cross-examination would be a legitimate forensic purpose. 70. See Evidence Act 1995 (NSW) ss 59–61. 71. See Federal Court Rules 2011 (Cth) r 20.14; Court Procedure Rules 2006 (ACT) r 21; Civil Procedure Act 2005 (NSW) s 56; Supreme Court Rules (NT) r 1.10; Uniform Civil Procedure Rules 1999 (Qld) r 5; Supreme Court Civil Rules 2006 (SA) r 113; Supreme Court Rules 2000 (Tas) r 414A; Civil Procedure Act 2010 (Vic) s 7; and Rules of Supreme Court 1971 (WA) O 1.4B. 72. UCPR rr 21.1 and 21.2. 73. (Case No 1:09-cv-1223-WTL-DML, United States District Court, Southern District of Indiana, 11 May 2010).

74. 75. 76. 77. 78.

79.

80. 81. 82. 83. 84. 85. 86. 87.

88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.

Above, per Lynch J. Above, n 73. See, for example: Civil Procedure Act 2005 (NSW) s 56. See, for example: New South Wales Supreme Court Practice Note SC Eq 11. The use of an Australian company to operate the blogging site also increases the chances of having offensive material, such as defamatory material, removed from a blog operated on the service. As the site is subject to Australian laws, the potential exposure for a host of a site for maintaining allegedly defamatory material on the site after notification is higher than it would be for a company located in the United States. Hence, it is more likely that an Australian company will be persuaded by informal requests to remove the content or block the blogging site in order to avoid liability. As far as, Google Inc is concerned, it generally will only remove content or block sites in circumstances where a court order has been obtained in the relevant jurisdiction. See Google’s Blogger Content Policy, available at . See, for example: Federal Court Rules 2011 (Cth) r 10.46; Court Procedure Rules 2006 (ACT) r 6509; UCPR (NSW) r 11.6; Supreme Court Rules (NT) r 7.05; Uniform Civil Procedure Rules 1999 (Qld) r 129; Supreme Court Civil Rules 2006 (SA) r 41; Supreme Court Rules 2000 (Tas) r 147A; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 7.03; and Rules of Supreme Court 1971 (WA) r 10.10. Refer discussion at [7.58], above. 18 USC s 2701. See the ‘Help’ page, ‘May I Obtain Contents of a User’s Account from Facebook Using a Civil Subpoena?’, available at . Above. Facebook’s current agent for service in this regard is: Custodian of Records, Facebook, Inc, c/o Corporation Services Company, 2730 Gateway Oaks Drive, Suite 100, Sacramento CA 95833. (Case No CV 09-09509-MMM-JEMx, United States District Court, CD California, 26 May 2010). See, for example: People v Harris 36 Misc 3d 613, 945 NYS2d 505 (2012). Available at . See also Facebook’s Statement of Rights and Responsibilities, which states: ‘When you publish content or information using the Public setting, it means that you are allowing everyone, including people off Facebook, to access and use that information, and to associate it with you (ie your name and profile picture).’ Zimmerman v Weis Markets Inc (Case No CV-09-1535, United States Court of Common Pleas, Northumberland County, Pennsylvania, Saylor J, 19 May 2011). As of 20 September 2015. See the Facebook statistics available at . Frangione v Vandongen 2010 ONSC 2823. Equal Employment Opportunity Commission v Simply Storage, above, n 73. Particularly given that any number of the user’s friends may use the ‘Public’ setting. For example, Twitter does not. Tumblr notes in its Privacy Policy (available at ) that users can ‘… access and delete most information associated’ with their account by ‘logging into Services and checking [the] … Account Settings page’. This is a requirement of Twitter where law enforcement agencies are seeking account information, but it remains unclear from Twitter’s terms and conditions whether it will comply with civil subpoenas. See J Dysart, ‘Catch Up With Tech or Lose Your Career, Judges Warn Lawyers’, ABA Journal, 1 April 2014, available at: . P E Nygh and P Butt (eds), Butterworths Concise Australian Legal Dictionary, 2nd ed, Butterworths, Sydney, 1998, ‘possession’. Above, ‘custody’. Equal Employment Opportunity Commission v Simply Storage, above, n 73. See Director of Public Prosecutions v Kear (2006) 204 FLR 55; [2006] NSWSC 1145 for an analysis of these issues.

100. Above. 101. See UCPR r 21.10 and Federal Court Rules 2011 (Cth) r 20.31, which is limited to documents referred to in a pleading or affidavit only. See also Court Procedure Rules 2006 (ACT) r 620; Supreme Court Rules (NT) r 35.08; Uniform Civil Procedure Rules 1999 (Qld) r 222; Supreme Court Civil Rules 2006 (SA) r 140; Supreme Court Rules 2000 (Tas) r 391; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 35.08; and Rules of Supreme Court 1971 (WA) O 26.8. 102. See UCPR r 5.2 and Federal Court Rules 2011 (Cth) r 7.22. 103. See, for example: Airways Corporation of New Zealand Ltd v Pricewaterhouse Coopers Legal [2002] NSWSC 138 in which the plaintiffs sought and were granted an order for preliminary discovery to identify the transmitter(s) of some anonymous defamatory emails. 104. See UCPR r 5.3 and Federal Court Rules 2011 (Cth) rr 7.22 and 7.23. See also Court Procedure Rules 2006 (ACT) r 651; Supreme Court Rules 2000 (Tas) r 403C; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 32.05; and Rules of Supreme Court 1971 (WA) O 26A.4. 105. See, for example: UCPR r 5.4 and Federal Court Rules 2011 (Cth) r 20.23. See also Court Procedure Rules 2006 (ACT) r 650(5), (6), (7); Supreme Court Rules (NT) r 32.07; Uniform Civil Procedure Rules 1999 (Qld) rr 243–249; Supreme Court Civil Rules 2006 (SA) r 146; Supreme Court Rules 2000 (Tas) r 403E; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 32.07; and Rules of Supreme Court 1971 (WA) O 26A.5. 106. See Burchett J’s comments in Richardson Pacific Ltd v Fielding (1990) 26 FCR 188 at 188–90. 107. Above. 108. See ‘Facebook: A Reason for Insurers to “Like” It’, (accessed 19 April 2016). 109. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 31. 110. Above, r 28. 111. R v Rogerson; R v McNamara (No 14) [2015] NSWSC 1157. 112. Copyright Act 1968 (Cth) s 43.

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8 Social Media and Criminal Law Patrick George

OVERVIEW •

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The internet can be, and has been, employed for criminal purposes and, with the growth of social media, this has further enabled criminal conduct, such as bullying, stalking, harassment, blackmail and identity theft. The criminal law does endeavour to safeguard society from overt and covert criminal activity taking place on the internet by incorporating internet-based offences into the criminal law. Owing to the development of technology there is a constant need to review the provisions and further legislate in order to ensure that the law remains relevant. There has also been a movement to better educate society on what constitutes internetbased criminal activity in the hope that this will deter the behaviour.

INTRODUCTION 8.1 The internet has become a daily dependency for many people. As part of online activity, social media has opened up communication so quickly and easily that the days of postcards, telegrams and pen pals are now a distant memory of quaint things past. 8.2 The internet, however, has its limits as a socially benevolent tool. It can also be used for criminal purposes, and often is. It may be used to bully others,

steal their identities, stalk them, harass them or blackmail them. The real danger is that children have no restrictions on their access to social media and can be exposed to this underbelly of the cyberworld simply by logging onto a computer or using a mobile phone. [page 342] 8.3 It is reported that a website based in Latvia, , was one of the most popular sites among teenagers. They connected online, asking questions and posting answers. It was a website known for its anonymous, vicious and offensive postings and for subjecting its users to bullying. It has been linked to the suicide of at least 15 teenagers overseas.1 8.4 The online world provides a means of communication for the lonely and vulnerable. It also provides the means to say the unsayable and inflict damage anonymously when it would never be done face to face. A 15-year-old posted images of herself on Instagram showing self-harm. It attracted comments such as: ‘We love this, cut deeper’, ‘Go ahead and die then’ and ‘Just do it and stop talking about it’. The teenager subsequently took her own life.2 8.5 Women also seem to be the particular targets of obscene and violent abuse on the internet. To bring attention to this, the editors and writers of blogsite, , wrote:3 Many women who speak their minds are subject to the most vile abuse. Many of us receive death threats and rape threats. Many of us are abused online in the most vile, aggressive and putrid way. This is not new but it’s getting worse … we won’t call it trolling because that makes it sound somehow harmless, like an ogre in a fairytale with goats in it. This is abuse and its sole intent is to silence the women at whom it is so ferociously hurled.

8.6 On a practical level, it has been suggested that the victim should just ignore the abuse. Another suggestion is to ensure that employers have tighter social media policies so that staff know that sending anonymous, obscene, threatening or violent messages would result in strong discipline or even sacking. Further, it is suggested that social media websites should be lobbied to improve their complaint processes and protocols. If all this does not work, author Jane Caro suggested that victims try humour: ‘I once replied to someone who said that he would come over and kill me soon, by saying, “Lovely, I’ll pop the kettle on.” I never heard from him again…’.4 8.7

However, community concern reached a peak when Australian celebrity,

Charlotte Dawson, took her own life in 2014. This was attributed to cyber bullying and hate abuse directed toward her on Twitter. Criticism was levelled at social media platforms as a result, claiming that they should ban anonymous users and should have a better system of moderation of user content. Given the volume and popularity of social media, the criticism is not likely to force change. [page 343] 8.8 Social media has enabled the world to see the cruel and depraved behaviour of people who hide behind the mask of anonymity or who act in the moment without regard to the consequences. Such conduct, captured in time by the electronic and permanent form of the internet, is offensive to society and harmful to the victims. In some instances, the conduct may have occurred as a result of the novelty of social media and the intoxicating effect of approval from one’s post going viral. It is possible that, through better education or better experience of the criminal justice system, offenders will learn to change their behaviour and learn there are limits imposed by the rule of law to attentionseeking in this forum. 8.9 Online behaviour is subject to state and federal criminal laws which make it an offence to make harmful threats or cause harm through menacing, harassing or offensive conduct.

Internet offences 8.10 Section 51(v) of the Australian Constitution empowers the Commonwealth Government to legislate with respect to ‘telephonic, telegraphic and other like services’. 8.11 Internet-specific offences and general computer-related offences can be found in the Cybercrime Act 2001 (Cth) (Cybercrime Act). The Commonwealth Government’s Cyber Security Strategy defines ‘cyber crime’ as offences against computers and computer systems, such as hacking, malware intrusions, and denial of service attacks.5 However, the term can be used in a much wider sense to include technology-enabled crime. 8.12 The Cybercrime Act broadened the Commonwealth’s regulation of computer-related crime by amending the Criminal Code Act 1995 (Cth) and

introducing general offences concerning unauthorised access, modification and impairment of data. Most states and territories have mirrored the computer Model Criminal Code provisions6 of the Cybercrime Act. 8.13 The development of technology moves so quickly, however, that it is necessary to constantly review the provisions of internet offences to ensure they remain relevant and applicable to the types of offences that might be committed in the community. [page 344] 8.14 Australia also seeks to monitor and participate in international developments in this area, by becoming the 39th signatory to the Council of Europe Convention on Cybercrime (the Convention).7 The relevant legislation is the Cybercrime Legislation Amendment Act 2012 (Cth). 8.15 The Convention requires member states to criminalise four categories of offences: (a) offences directed at computers, including the confidentiality, integrity and availability of computer data and systems, hacking, illegal access to computer systems, illegal interception, data interference, system interference, malware and misuse of devices; (b) computer-enabled offences, including forgery, fraud and identity theft; (c) content-related offences, including child pornography, harassment and threats; (d) offences related to the infringement of copyright and other related intellectual property rights. 8.16 The Convention also aims to establish procedures for making investigations more efficient and to provide systems to facilitate international co-operation.

BULLY — MENACE, HARASS AND CAUSE OFFENCE 8.17 It is an offence under the Criminal Code Act 1995 (Cth) to use a carriage service to menace, harass or cause offence.

8.18 Section 474.17 of the Criminal Code (found in the Schedule to the Criminal Code Act 1995 (Cth)) provides that a person who is guilty of an offence, can be imprisoned for up to three years, if the person uses a carriage service and the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. 8.19 This is a content-related offence concerning the use of the internet and applies to the use of social media. It can occur by reason of the constancy of the use, or the content of the communication, or both. In R v Stephens,8 the offender was guilty of causing offence by sending several chat messages over a one-week period to a 14-year-old boy, discussing masturbation, anal sex and other related issues. [page 345] 8.20 In another case the offence caused was that, over a three-day period, the offender had sent images of himself masturbating to a person he believed to be a 15-year-old girl.9 8.21 The number of messages may amount to ‘harassing’ conduct. In R v Ogawa,10 the offender sent 83 emails during an 18-hour period to various email addressees at the Federal Court of Australia and made 176 phone calls to the Federal Court Registries and Chambers in the course of a month. In the context of that case, the quantity and frequency of the discrete uses of the carriage system was sufficient to amount to ‘harassing’ conduct. It can nevertheless be a breach of s 474.17 even if the content of the communication does not constitute harassment, if the quantity and frequency of the communication is such that a reasonable person would regard it as being, in all the circumstances, menacing, harassing or offensive.11 8.22 There have been a number of cases involving s 474.17 through the use of the telephone, which is relevant for understanding the conduct which might contravene the section. In Maier v Police,12 the offender made 26 telephone calls to nine separate women. He sometimes said nothing, sometimes asked the colour of their underwear, and sometimes told them he had their underwear or wanted it. 8.23

In Weinert v DPP (Cth),13 the offender had made six telephone calls to a

telephone number he had chosen at random. He either breathed heavily or hung up without saying anything. On one occasion, he made an offensive remark. The recipient of the calls was a 15-year-old girl, home from school because she was sick. She was frightened as a result of the calls. 8.24 In Birnie v Police,14 the offender telephoned two elderly women 42 times each, causing them severe mental distress. In Smith v Elliot,15 the offender telephoned a woman under the pretext of conducting a survey but the call then developed into personal and sexually intimate questioning. 8.25 Two male cadets at the Australian Defence Force Academy were found guilty of using a carriage service in an offensive manner by ‘skyping’ one of them having sex with a female cadet while six of his friends watched in a nearby room by means of a webcam. The woman discovered it later the same evening when she logged onto Facebook where this message was posted by the man: ‘about to root a girl n [sic] have a webcam set up to the boys in another room’. In sentencing, the judge said, ‘[n]o one expects that his or her [page 346] sexual partner would transmit their sexual encounter to the world at large. The offender broke his word … and exposed her to humiliation and ridicule’. In 2013, the offenders were put on 12-month good behaviour bonds. 8.26 In Rodriguez v DPP (Cth),16 the offender set up a Facebook profile under a false name. The police were suspicious of the offender’s activity and, using a covert profile on Facebook, sent a ‘friend request’ to the offender which had attached to it a photograph of a young teenage girl. The offender accepted the request and commenced communicating with the ‘girl’ on Facebook and by email. In the first Facebook message, he said he was attracted to the ‘girl’ and queried whether she was interested in getting to know an ‘older and mature guy’. He said he was from Los Angeles and later told her he worked in the ‘glamorous world of television production’. He told her that he was 29 and asked if she had ever been with an older guy ‘like in a sexual way’. The ‘girl’ asked him to send her some photographs of himself. The ‘girl’ told him she was 14. The offender made repeated requests for her to send a ‘special’ picture of herself. He proceeded to send images of himself of a sexual nature and he asked her to send pictures of herself just like the ones he had sent her. He persisted and repeated his requests over a period of time before the police proceeded to execute a

search warrant at the offender’s address, seizing his laptop computer and a USB. 8.27 The court observed that, while the conduct was clearly offensive, it was relevant that the offender came from a good normal family background with no previous trouble with the police. He had achieved well academically and been a well-respected teacher before securing an administrative job at a university. He had a relationship for seven years which ultimately broke down and the offender returned to live with his parents and became depressed, unhappy and socially isolated. It was at this low point in his life that he committed the offences.17 8.28 In another case, the offender sourced the phone numbers of his victims while he was working at a pool maintenance business. He was unknown to most of them but used the victim’s name in a message saying, ‘I would love to f… you in your pool’. He was sentenced to at least three years’ jail for sending the sexually explicit messages to nine women without their consent in breach of s 747.17 of the Criminal Code.18 8.29 A different kind of offensive conduct was evident in R v Hampson.19 Tribute pages had been established on Facebook for the deaths of a 12-year-old boy who had been stabbed at school in Queensland and an eight-year-old girl who had been taken from her bedroom in her home in Queensland and was [page 347] later found dead in a nearby stormwater drain. Many people subscribed to these pages and expressed sympathy and grief for the families. 8.30 Soon after the tribute pages were established, a number of posts which contained offensive and insulting material were posted to the tribute pages. A number of users were identified as having posted the offensive comments and material but only one user was identified as being within the reach of Australian police. 8.31 The offender subscribed to Facebook under an assumed name, ‘Dale Angerer’. He posted on the tribute page for the 12-year-old an image of the boy’s face with the words, ‘Woot I’m Dead’, superimposed on the image. Similarly, on the tribute page for the eight-year-old girl, he manipulated an image of a male giving a press conference with a superimposed speech bubble, ‘No new leads but the PERP can’t be far away’. He proceeded to post a series of comments of a sexual nature and images which depicted or described children in

sexual acts and depicted sadism of children. The court found that the conduct was ghoulish and disgusting by any reasonable standards and its inevitable consequence was to cause emotional pain and distress to grieving relatives and friends of the deceased children. The sentencing judge described it as ‘depraved’. It was also offensive conduct because it interfered with the legitimate use of the internet by members of the public and such conduct, if unchecked, could discourage the use of the internet for these purposes. 8.32 While the Queensland Court of Appeal considered the conduct was extremely serious, it did not warrant a custodial sentence which would be appropriate in cases involving conduct which was threatening or which caused genuine fear. The court observed that ‘the use of the internet to harass and bully to the extent that the victim suffered lasting psychological harm or was driven to suicide’20 may be thought to be a more serious category of offending. So, too, would be the use of the internet to publish false and defamatory matter leading to the loss of the victim’s good reputation and/or the collapse of a business.21 8.33 By majority in the Court of Appeal, the offender was sentenced to two years’ imprisonment but was released immediately upon entering into a recognisance in the sum of $1000 conditional on his being of good behaviour for two years. He had already spent 220 days in pre-sentence custody and the purpose of the order releasing him earlier than the full term of his sentence was to provide him with the opportunity to carry out the balance of his punishment in the community. The bond was conditional upon him being subject to the supervision of a probation officer for a period of two years and conditional upon him being of good behaviour. [page 348] 8.34 In his dissent on the sentencing appeal, Daubney J noted that the Criminal Code22 s 474.17(1)(b) imported an objective test of offensiveness but there were no fixed degrees of offensiveness. He considered that there may be some qualitative description used to describe material as ‘somewhat offensive’ or ‘mildly offensive’ at one end of the scale to ‘extremely offensive’ at the other. He noted the sentencing judge’s assessment of the objective degree of offensiveness of the conduct in this case as follows: One can only judge your conduct as being depraved. It was plainly conduct which was intended to offend those who were genuinely grieved by tragic events in their lives. No right thinking member

of the community could fail to be outraged by that sort of conduct.

8.35 Daubney J observed that the offender’s conduct did not merely post the extremely offensive material to be received by an individual, or small group of people. It was posted on the tribute pages which had been set up to honour the memory of the two deceased children. These tribute pages were designed to be viewed by the public at large. While it did not involve private threats, it involved the vile desecration of the memories of the two deceased children in a manner which was not private to their families (although that would have been bad enough), but to the public at large.23 8.36 It is a more serious offence to cause another person to be in fear than it is to cause another person distress. Conduct which involves the creation of genuine fear is objectively a more serious crime. In Agostino v Cleaves,24 Mr Agostino had set up a profile under a pseudonym on Facebook as ‘Aubrey Heath’. His relationship with a young woman had ended in circumstances that were distressing to Mr Agostino. Another person who was a Facebook friend of Mr Agostino started a relationship with the same young woman and he began to receive threatening messages on his Facebook profile site from Aubrey Heath. A message read: ‘You’re a dead dog, you’re a f…ing bitch c… Don’t worry I will be taking you for a drive really soon. Don’t forget I know where you live.’ 8.37 The victim was frightened by this message and concerned for his safety, as well as the safety of his five-year-old daughter and other members of his household. 8.38 As a result, he ended the relationship with the young woman. Nevertheless, he continued to receive threatening messages from Mr Agostino which conveyed the impression that Mr Agostino intended to harm him. The victim knew who Aubrey Heath was as he and the victim had known each other for some years. The victim told his brother and his brother’s girlfriend, both of whom had Facebook profiles and who were Facebook friends of [page 349] Mr Agostino. The threatening messages continued to be posted on the victim’s profile site and also that of his brother’s girlfriend. The conduct continued and they caused the victim to fear for his life. He contacted the police and Mr Agostino was arrested and charged. Mr Agostino denied threatening to kill the

victim or any of his friends and denied harassing, menacing or causing offence to any of them. He subsequently pleaded guilty at the hearing, during which his criminal history was tendered and it showed numerous prior offences beginning with an assault when he was first dealt with in the Children’s Court, eight subsequent offences of assault and a conviction of robbery using force. He was convicted for breach of s 474.17 of the Criminal Code and sentenced to six months’ imprisonment. 8.39 In 2015, news reports referred to two high schools in Sydney which were the subject of police action following a number of social media posts. The posts, which offered support to the terrorist organisation Islamic State, were considered threatening by police.25 The posts resulted in so-called ‘lock-outs’ being imposed on both schools, under which people were allowed to leave but not to enter. The police reminded members of the public that ‘it is an offence to post threatening or violence-inciting messages on social media sites’.26 8.40 The use of social media for jokes and hoaxes is risky conduct and could breach the criminal law. 8.41 In the United Kingdom, in Chambers v DPP,27 the High Court of Justice was required to consider a case stated from a decision of the Crown Court upholding the conviction of Paul Chambers for sending a message of a ‘menacing character’ by a public electronic communication network, contrary to s 127(1)(a) of the Communications Act 2003 (UK). 8.42 Mr Chambers was registered with Twitter as @PaulJChambers, with a personal photograph as his account picture. He met another user of Twitter identified as @CrazyColours online who lived in Northern Ireland. Communicating by Twitter, a romance developed. Mr Chambers was due to fly to Belfast from Robin Hood Airport in Doncaster to meet his girlfriend. However, due to adverse weather conditions, it appeared that the airport might be closed. Mr Chambers sent two tweets to @CrazyColours: ‘I was thinking that if it does then I have decided to resort to terrorism’ and ‘That’s the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI’. Some two hours later, he heard that the airport had closed and tweeted, ‘Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!’. [page 350]

8.43 The message was posted to his Twitter account, which had some 600 followers. There was no evidence that any of the followers of Mr Chamber’s Twitter account or indeed anyone else who may have seen his timeline found it to be of a menacing character or, at a time when the threat of terrorism is real, even minimally alarming. In fact, nothing was done about it by anyone until five days later when the duty manager responsible for security at the airport, while off duty at home, found it while searching generally for any tweets which referred to Robin Hood Airport. 8.44 He gave evidence that he did not know whether the tweet was a joke or not but, even as a joke, it could cause major disruption and had to be investigated. He referred the tweet to his manager who decided it was a ‘non credible threat’ to the airport, partly because it featured Mr Chambers’ name and he noted that Mr Chambers was due to fly from the airport in the near future. However, in accordance with airport procedure, he passed the tweet to the airport police who took no action themselves but referred the matter to the local police. 8.45 Two days later, the local police arrested Mr Chambers on suspicion of involvement in a bomb hoax. Mr Chambers said in his interview that the tweet was a joke or meant to be a joke and not intended to be menacing. The police noted the interview as follows: ‘Male detained re making threats to Doncaster Robin Hood Airport. The male in question has been bailed and his phone/computer has been seized — there is no evidence at this stage to suggest that there is anything other than a foolish comment posted on Twitter as a joke for only his close friends to see.’ 8.46 The Crown Prosecution Service subsequently charged Mr Chambers with the offence under the Communications Act 2003 (UK) and he was convicted on the basis that the message was ‘menacing per se’ and that an ordinary person seeing the tweet would see it in that way and be alarmed. 8.47 The High Court of Justice considered that the message was not of a menacing character in breach of the legislation. In the court’s view, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, is not in breach of the section of the Communications Act 2003 (UK) for the simple reason that the message lacks menace. Accepting the word ‘menace’ as defined in the Shorter Oxford Dictionary as ‘a thing threatening danger or catastrophe; a dangerous or obnoxious thing or a person; a great inconvenience’, the court said it was difficult to see how this message could sensibly be described as a message of a

menacing character. If the persons who received or read it, or may reasonably be expected to receive or read it, would brush it aside as a silly joke, or a joke in bad taste, or as empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of menacing character.28 [page 351] 8.48 The court also noted that, before concluding that a message is criminal on the basis that it represents a menace, its precise terms and any inferences to be drawn from its precise terms need to be examined in the context in and the means by which the message was sent. The context here was public concern about acts of terrorism and the continuing threat to the security of the country from possible further terrorist attacks. However, in this context, the more one reflected on it, the clearer it became to the court that this message did not represent a terrorist threat or indeed any other form of threat. Accordingly, on an objective assessment, the court held that the tweet did not constitute or include a message of a menacing character. 8.49 A similar case arose in 2014, when Sarah, a 14-year-old Dutch girl, used Twitter under the Twitter handle ‘@Queen Demetriax’ to tweet ‘@AmericanAir hello my name’s Ibrahim and I’m from Afghanistan. I’m part of Al Qaeda and on June 1st I’m gonna do something really big bye’. American Airlines responded with their own tweet: ‘Sarah, we take these threats very seriously. Your IP address and details will be forwarded to security and to the FBI’. Sarah tweeted, ‘omfg I was kidding … I’m so sorry I’m scared now … I was joking and it was my friend not me, take her IP address not mine … I was kidding pls don’t I’m just a girl pls … and I am not from Afghanistan.’29 While Sarah may have enjoyed the joke at the time, the consequences were serious when the airline did not know whether she was joking or not.

POLITICAL AND GOVERNMENT SPEECH 8.50 The internet and social media are often used in the course of political debate. Particularly at election time, people express strongly worded views about politicians and governments and, in doing so, may run the risk of breaching the criminal law.

8.51 In the United Kingdom in Director of Public Prosecutions v Collins,30 the offender was convicted of sending messages of a ‘grossly’ offensive character by means of a public telecommunications system under the relevant UK legislation of the time. He had made a number of telephone calls over a two-year period and left recorded messages at the constituency and parliamentary offices of his local member of parliament. He held strong views on immigration and asylum policy and the provision of public support to immigrants and applicants for asylum. In the messages, he ranted and shouted and referred to ‘wogs’, ‘pakis’, ‘black bastards’ and ‘niggers’.31 [page 352] 8.52 Some of those who received the calls and heard the messages were shocked, alarmed and deeply hurt by the offender’s language. The argument in the case was whether the racist terms used by the offender which sprang from his frustration at the way his concerns were being handled, were offensive or ‘grossly’ offensive, the latter being the crime. 8.53 In the courts below, it was found that the messages were unquestionably offensive, but a reasonable person would not find the terms used to be ‘grossly’ offensive. In making this determination, the court held that it must apply the standards of an open and just, multi-racial society and the words must be judged taking into account their context and all relevant circumstances. There can be no yardstick of gross offensiveness other than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.32 8.54 In this case, the question was whether the offender was entitled as a constituent and taxpayer to make his views known and entitled to express them strongly and whether, in doing so, he used language which was ‘beyond the pale of what is tolerable’ in our society. In the House of Lords, it was held that some of the language used was highly abusive, insulting, pejorative and offensive in character and there was nothing in the content or tenor of the messages to soften or mitigate the effect of this language in any way.33 On this basis, the offender’s messages were grossly offensive and would be found by a reasonable person to be so.

8.55 In this context, the House of Lords observed that the statute was directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others and it went no further than was necessary in a democratic society to achieve that end.34 8.56 There are offences of sedition in Australia under the Criminal Code35 for extreme messages which urge the overthrow of the Constitutional Government,36 violence within the community,37 or interference in parliamentary elections.38 The offences amount to sedition and are extraterritorial in nature, applying to any person regardless of whether the conduct occurs in Australia or overseas. 8.57 The crime for urging violence within the community occurs when a person urges a group (whether distinguished by race, religion, nationality or [page 353] political opinion) to use force or violence against another group or other (as so distinguished) and the use of the force or violence would threaten the peace, order and good government of the Commonwealth. The offence carries a penalty of imprisonment of up to seven years. 8.58 The offences are subject to a good faith defence39 which provides protection, for example, for those urging reform or reporting on matters of public interest. 8.59 However, in Australia, the law is subject to the implied freedom of political communication in the Commonwealth Constitution.40 Legislation will be invalid by virtue of this implied freedom if it effectively burdens freedom of communication about government or political matters either in its terms, operation or effect and is not reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutional prescribed system of representative and responsible government.41 8.60 This implied freedom was tested in the context of a charge for the offence of the use of postal services in a way that ‘reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive’.42

8.61 The case arose out of letters sent by the accused to parents and relatives of soldiers killed on active service in Afghanistan which were critical of Australia’s involvement in that country and reflected upon the part played in it by the deceased soldiers. The accused argued that the law was invalid in exceeding the limit of the legislative power of the Commonwealth Parliament because it impermissibly burdened freedom of communication about government or political matters. 8.62 The High Court considered the issues in Monis v R; Droudis v R.43 The court divided equally on the issue, with three judges declaring the law valid (Crennan, Kiefel and Bell JJ) and three against (French CJ, Hayne and Heydon JJ).44 In this circumstance, the decision of the court below (that the law was valid) was affirmed.45 [page 354] 8.63 The offence relevant to the use of social media is s 474.17 of the Criminal Code to use a carriage service to menace, harass or cause offence. It is an offence in very similar terms to that relating to postal services. 8.64 In Starkey v DPP (Cth),46 the offender used a pseudonym to send 88 emails to 107 recipients who were all copied to each email. The majority of the recipients were either federal or state politicians and various media organisations as well as political and government organisations. 8.65 The first email stated, for example, that the ‘Labor and Greens parties should be eliminated from existence’ and that ‘certain conspirators’ should face charges of treason ‘including Gillard, Rudd, Brown, Turnbull’. The second email stated, ‘We want our guns back. Australians need to arm themselves against this threat to our species posed by the Labor and Greens parties who are the puppets of the trillionaire, criminal, global banking families who are conspiring to World Ownership/World Government run by the United Nations’. The last email referred to the ‘Rothschild Global Zionists as being the people “who organised 9/11 and blamed it on the Muslims” and that 9/11 has resulted in over 1 million human deaths’ and that they are ‘fully into the pagan rituals including child sacrifice’. It asserted that ‘The Australian Government, elected and staff, are riddled with Rothschild Globalists/Zionists’ and that ‘Humanity has to declare war on all of them and deal with this treasonous filth appropriately’.

8.66 Other emails referred to ‘kill’ and ‘killing’, saying ‘Humanity has “only one choice. (Kill these criminal families before they take away our freedom and kill us”)’ and ‘Humanity must fight against this global criminal organisation who threatens the future of the human species, by killing every member and all the lineage of these above families’. 8.67 The majority of the High Court in Monis v R; Droudis v R47 observed that the test to be applied to the relevant use of a carriage system under s 474.17 is objective and requires consideration of whether reasonable persons would regard the content and the method of such communications — and even both — as being relevantly menacing, harassing or offensive. It is the view of a ‘reasonable person taking into account all of the relevant circumstances’ that must be applied.48 While a communication which has the quality of being menacing or harassing could be seen to be personally directed and deliberately so, an offensive communication may have those qualities but it may not.49 8.68 The majority observed that the grouping of the three words ‘menacing, harassing or offensive’ in s 474.17 and the application of the same objective standard of assessment for the purpose of the offence suggests that what is [page 355] ‘offensive’ will have a quality at least as serious in effect on a person as the other words convey, and that the words ‘menacing’ and ‘harassing’ imply ‘a serious potential effect upon the addressee’, one which causes apprehension, if not a fear, for that person’s safety.50 Further, to be ‘offensive’, a communication ‘must be likely to have a serious effect upon the emotional wellbeing of an addressee’.51 It is unlikely that parliament intended to prohibit all communications which happened to contain matter which may cause ‘some’ offence. The application of the objective standard of the reasonable person would involve a person ‘who may be taken to reflect contemporary societal standards, including those relating to robust political debate’.52 One would expect an offensive communication as reflecting the level of seriousness of the offence ‘to be likely to cause a significant emotional reaction or psychological response’ with the former ranging from ‘shock through to anger, hate, disgust, resentment or outrage’ and the latter as potentially including ‘provocation, anxiety, fearfulness and insecurity’ and that communications with such serious effects ‘may be contrasted with those which may cause mere hurt feelings’.53

8.69 Following an objective assessment of the conduct in all the circumstances, it must also be proved that the defendant ‘either intended that it be so or was reckless as to that fact.’54 The requirement of proof of fault excludes from the scope of the offence those cases where the conduct could not be said to be intentional or reckless.55 A person may be reckless if he or she is at least unaware of a ‘substantial risk’ that reasonable persons would regard the use as menacing, harassing or offensive, where it is unjustifiable to take that risk.56 In addition, intention or knowledge would also satisfy the fault element of recklessness.57 8.70 Applying these principles, in Starkey v DPP (Cth),58 the court held that the conduct was not proved beyond reasonable doubt to be ‘menacing’ in the sense of having a serious potential effect upon a recipient, being one which causes apprehension, if not a fear, for the recipient’s safety. The court did not regard the degree of menace at the high end of the spectrum, taking into account the effect on the reasonable person of contemporary societal standards. On an objective basis, considering the terms of the emails and the frequency of the emails, the court commented that the only significant concern was whether to consign each of the emails to the deleted folder or to the spam folder. It took into account the nature of the recipients of each [page 356] email, all the circumstances as background to where the references of killing were made in the content and in the context, and that there had been no physical manifestation of any kind from the sender concerning the recipients. The court held it was not sufficient for conviction of ‘menacing’. 8.71 In relation to whether the conduct was ‘harassing’, the court took into account not only the content of the communication but the method of use, namely the sending of 88 emails in total, having regard to their quantity and frequency. The court considered that the group of recipients in this case would be seen by a reasonable person to be people who daily engaged in robust political debate or reported it or otherwise were involved directly or indirectly in it; thus, the level of harassment was not of such severity or seriousness that it caused the relevant apprehension or fear for safety as required. 8.72 In relation to whether the conduct was ‘offensive’, the court applied the standards of morality, decency and propriety generally accepted by reasonable

adults, and noted that the words ‘very’, ‘seriously’ or ‘significantly’ offensive were required in the application of those standards to the facts here. The court found it could be easily accepted that a wide interpretation would mean that the conduct was offensive. However, the court took into account that the recipients of the email were used to robust political debate and it would need to be shown that the effects were beyond mere hurt feelings. The court concluded that it was not satisfied beyond reasonable doubt that reasonable persons would regard, even taking both content and method into account, that the actual use of the carriage service in a relevant criminal sense was ‘offensive’.59

THREATS AND BLACKMAIL 8.73 It is an offence to use a carriage service to make a threat to kill a person (where there is an intention to cause fear that the threat will be carried out) under s 474.15(1) of the Criminal Code.60 In a prosecution for this offence, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.61 8.74 Alternatively, it is an offence to use a carriage service to make a threat to cause serious harm to another person (where there is an intention to cause fear that the threat will be carried out) even though the person receiving the threat did not actually fear that the threat would be carried out. [page 357] 8.75 In both sections, ‘fear’ includes ‘apprehension’, and ‘threat to cause serious harm to a person’ includes a ‘threat to substantially contribute to serious harm to the person’. 8.76 A threat to kill carries a penalty of imprisonment up to 10 years while a threat to cause serious harm carries a penalty of imprisonment up to seven years. 8.77 In R v Ogawa,62 the offender made a threat to a barrister and an associate to the Chief Justice of the Federal Court to kill two Federal Court registrars with whom she had previously dealt and was currently dealing. In the phone call with the barrister, she had said, ‘I will kill somebody. I will kill Jane Mussett. I will kill Tim Connard. I’ve reached the limits’. This was in the context

of proceedings she had commenced in the Federal Court which had been removed from the docket of a certain judge in South Australia to another judge in Victoria. 8.78 The offence is wide enough to cover not only a threat to kill the person to whom the message is sent but a third person about whom the person making the threat is making reference. 8.79 In Agostino v Cleeves,63 Mr Agostino was charged with using the internet to make a threat to the victim to kill him but, in the course of plea bargaining, that charge was withdrawn. 8.80 It is an offence to blackmail a person by making an ‘unwarranted’ demand with menaces with the intention of obtaining a gain or of causing a loss.64 In Victoria, a demand with menaces is ‘unwarranted’ unless the person does so in the belief that there are reasonable grounds for making the demand and that the use of the menaces is a proper means of reinforcing the demand.65 8.81 Accordingly, the threat to disclose something about a person with the intent to obtain a benefit may be a criminal offence. 8.82 A related offence is extortion, when a person dishonestly makes a demand on another for property and the demand is accompanied by threat or force.66 It is not necessary that the victim of extortion should actually give way to the threat or force or hand over the property to the person making demand. 8.83 The circumstance of a threat to disclose embarrassing information about another on social media gives rise to the issue of whether an offence has occurred. Subject to the laws of privacy and/or confidentiality, a person is free to publish embarrassing information about another person. However, it may amount to the criminal offence of blackmail if a person demands money or property in exchange for not revealing embarrassing information about [page 358] another. In the context of court proceedings, the threat to publish allegations of gross impropriety against the other party unless they settle the proceedings might amount to a contempt of court.67

CRIMINAL DEFAMATION 8.84 It is a criminal offence for a person, without lawful excuse, to publish matter defamatory of another living person (the victim):68 (a) knowing the matter to be false; and (b) with intent to cause serious harm to the victim or any other person or is reckless as to whether such harm is caused. 8.85 This is an indictable offence and proceedings may only be instituted (in New South Wales) with the written consent of the Director of Public Prosecutions.69 It has been held that a prosecution is justified only where the subject of the prosecution is such as to affect the community and it does not concern the vindication or protection of the reputation of the person defamed.70 8.86 The subject matter of trolling and the use of social media to defame victims, particularly where the offender hides behind anonymity, is something which has been seen as affecting the community in a significant way. The targeting of women and children is particularly obnoxious and it might be expected that a prosecution in these circumstances will be justified, as affecting the community, and the penalty imposed upon the offender be made as a general deterrent to this behaviour in the community. In New South Wales, the offence carries a prison term of up to three years or a fine not exceeding 1000 penalty units, instead of or in addition to a term of imprisonment. 8.87 The law in the Northern Territory is governed by the Criminal Code Act 1983 (NT) s 204, while in Victoria, the common law offence of criminal libel still operates but there is a statutory offence of publication of defamatory libel ‘knowing it to be false’.71 [page 359]

CYBER STALKING 8.88 Stalking is understood as an act of repeated and persistent unwanted communications and/or approaches with the intention of intimidating the victim or causing them to fear for their safety or the safety of others.72 Cyber stalking involves the use of the internet or social media for this purpose.

8.89 Any conduct which could reasonably be likely to arouse an apprehension of fear in the victim is an offence under legislation in each state and territory.73 There is specific legislation in Victoria against cyber stalking under the Crimes (Stalking and Family Violence) Act 2003. The conduct prohibited includes sending obscene or harassing emails, posting false information or doctored images of people on the internet, and assuming the identity of another person. An essential feature of the offence is that the victim need not be aware that they are being stalked by the offender. 8.90 A 17-year-old boy took his own life by leaping from the Westgate Bridge in Melbourne after receiving a series of text messages over a 24-hour period from a former friend. The offender, Shane Gerarda, sent SMS (text) messages to Allem Halkic, which included, ‘I’ll put you in hospital. Don’t be surprised if you get hit sometime soon’ and ‘You’re a f…ing bitch. I’ll put you in hospital. It’s payback time’. 8.91 Before leaping from the bridge, Halkic sent Gerada a message, ‘I need your help. You may not give a f… about me but just answer your phone tomorrow’. 8.92 Gerada was charged with stalking under Victorian legislation and pleaded guilty. The magistrate sentenced him to an 18-month community- based order, and said:74 It just demonstrates SMS messages or Internet communication may have severe consequences on intended victims whether it was meant to or not. People really should think about what they are doing instead of just hammering some message of hate or aggression.

8.93 In practical terms, stalking is usually dealt with by apprehended violence orders (AVOs) or intervention orders, the breach of which may result in imprisonment. 8.94 In 2015, a man was convicted of stalking Australian singer and celebrity, Sophie Monk. Over a period of three years, he sent countless Twitter messages [page 360] in which he included references to Satan and bestiality and requested sex with Ms Monk. She became concerned when the messages started to threaten members of her family. After trying to block his messages, she reported the matter to police. The man was convicted and received an eight-month

suspended jail sentence, required to undergo psychiatric treatment and assessment, and submit for drug testing, ordered not to have further contact with Ms Monk, not to go within 200 metres of her, and not to leave Tasmania. The magistrate found that the man’s condition meant he was not fit to serve jail time due to mental illness and a history of abusing illegal drugs. 8.95 Psychiatrists have suggested that there are five primary types of stalkers:75 (a) ‘Intimacy Seekers’, who respond to loneliness by attempting to establish a close relationship. They tend to be prolific letter writers and gift senders and are often impervious to legal sanctions, believing such sanctions to be the price of true love. (b) ‘The Resentful’, who respond to a perceived insult or injury by conduct aimed not just at revenge but at vindication. They are the most likely to threaten but the least likely to proceed to an actual assault. They are usually self-righteous and are difficult to engage in treatment, but will often withdraw from stalking when faced with legal sanctions. (c) ‘The Rejected’, who respond to an unwelcome end to a close relationship. They seek reconciliation or reparation or both. They use the widest range of stalking behaviours and are the most responsive to threats or the reality of legal sanctions. (d) ‘The Predatory’, who pursue sexual gratification and control both in and through their stalking. They concentrate almost exclusively on furtively following and maintaining surveillance of their victims, and their stalking behaviour is intended as predatory to assault, usually sexual — upon the victim. They form a small subset of stalkers, and treatment may be difficult because of the existence of sexually aberrant behaviour. (e) ‘The Incompetents’, who are would-be suitors. They seek a relationship by methods that are at best counterproductive and at worst terrifying. They can usually be persuaded to abandon their stalking of a particular victim but the challenge is preventing them latching on to a new victim.76 The motives attributed to these persons are also relevant to other offences in this chapter. [page 361]

REVENGE 8.96 Social media has been used as a means to carry out revenge after the breakup of a relationship, known as ‘revenge porn’. It is intended to distress and intimidate the victim, usually female, by distributing through social media, naked or sexually explicit images, typically by a current or former partner to whom they were provided by consent. This was particularly exploited by a website, , set up by Hunter Moore in the United States. Moore posted on the website compromising nude photographs and videos submitted anonymously to him of persons, mainly women, with their names, geographic locations, occupations, addresses if possible, and links to their Facebook or social media pages. 8.97 ‘User-generated content’ was sent to Moore by ex-boyfriends, exhusbands and ex-girlfriends who set out to humiliate their one-time partners. The content was often collected during the course of a trusted relationship with the victim’s consent but was disclosed to Moore without consent after the relationship had ended. The posting of this material served to embarrass, hurt and compromise the victim personally and professionally. Moore proudly called himself ‘a professional life ruiner’. He was featured in Rolling Stone magazine, which only encouraged him to find more victims and conduct himself more outrageously. The website grew in popularity. In some instances, the content sent to him was from hacked sources. Facing charges of conspiracy and hacking, he withdrew the website. He was aptly described as a ‘nobody from nowhere [who could] reach a global audience’.77 He was subsequently sentenced to two years and six months in prison. 8.98 In one of the first cases in Australia of this kind, a young man in New South Wales was prosecuted for publishing an indecent article78 in circumstances where he posted six photographs of his ex-girlfriend on his Facebook page as an act of revenge. The photographs showed her while she was nude and clearly showed her breasts and genitalia. She reported him to the police. When interviewed, he confessed to uploading the photographs because he had been hurt by his ex-girlfriend and it was the only thing he could do to hurt her.79 8.99 The man pleaded guilty to the offence, which carried a maximum penalty of imprisonment for a period of 12 months together with a fine of up to $11,000. The offender was sentenced to six months’ home detention (later

[page 362] suspended on appeal).80 The Deputy Chief Magistrate noted that the offence was pre-meditated and that there was:81 … [a] need to prevent crime by deterring both the offender and the community generally from committing similar crimes. This is a particularly relevant consideration in a matter such as this where new age technology through Facebook gives instant access to the world. Facebook as a social networking site has limited (sic) boundaries. Incalculable damage can be done to a person’s reputation by the irresponsible posting of information through that medium. With its popularity and potential for real harm, there is a genuine need to ensure the use of this medium to commit offences of this type is deterred. While there has not been a victim impact statement given in these proceedings, the harm to the victim is not difficult to contemplate: embarrassment, humiliation and anxiety at not only the viewing of the images by persons who are known to her but also the prospect of viewing by those who are not. It can only be a matter for speculation as to who else may have seen the images, and whether those images have been stored in such a manner which, at a time the complainant least expects, they will again be available for viewing, circulation or distribution.

8.100 A survey released in October 2015 showed that one in 10 Australian adults had had a sexually explicit image of them sent to others without permission or had someone threaten to share such an image. A Senate inquiry in 2016 was considering whether new criminal offences should be created to deal with offenders.82 Victoria and South Australia have already created criminal offences prohibiting the conduct, with a maximum two years in prison.83 New South Wales has a similar offence for publishing indecent articles.84 The Commonwealth prohibition in s 474.17 of the Criminal Code may be broad enough to capture the conduct.85 8.101 In a case in New South Wales, a 24-year-old man befriended young girls on Facebook by telling them that he was a famous actor and photographer and offering gifts and cash before asking them to send him naked images. The man spoke to more than 50 underage girls. Once he had received the naked images, he threatened to expose the girls and their photographs online and to friends and family if they refused to send more or meet him. He told one [page 363] girl: ‘I’m out the front of your house now. If you don’t have sex with me I am going to kill your family and set your house on fire.’ He told another: ‘If your

little brother does not come home from school one day, blame it on your f…ing selves.’ On one occasion, he raped a 14-year-old girl after she agreed to meet him. He had promised her that images she had sent him would not be sent to family or posted online. The girls were predominantly aged between 13 and 17 years. The man was sentenced to 16 years’ imprisonment with a non-parole period of 11-and-a-half years, having been convicted of five counts of aggravated sexual assault, one count of indecent assault, one count of procuring a child for unlawful sexual activity and a series of charges relating to grooming, soliciting child pornography and using a carriage service to threaten serious harm.86

SURVEILLANCE 8.102 Under the Telecommunications (Interception and Access) Act 1979 (Cth), it is a criminal offence to intercept a communication ‘passing over a telecommunications system’.87 8.103 ‘Interception’ is defined as listening to, or recording, by any means, a communication in its passage over a telecommunications system, without the knowledge of the person making the communication.88 8.104 A communication is taken to be passing over a telecommunications system from the moment it is sent or transmitted until it is accessible to the intended recipient.89 8.105 The offence relates to the interception of real-time communications, such as phone calls, and extends to any type of electronic communication in transit over a telecommunications network. 8.106 It is also a criminal offence to access a stored communication, being a communication that is not passing over a telecommunications system and is held on equipment operated by a telecommunications carrier without the knowledge of the sender or recipient.90 8.107 This applies to communications that have completed their passage over a network and are therefore not able to be ‘intercepted’. Emails, text [page 364]

messages and voicemail stored on a carrier’s equipment could all be considered ‘stored communications’.91 8.108 There are also prohibitions in each state and territory against devices which may be used for ‘surveillance’. The prohibitions are not uniform but provide a patchwork of laws for people when they communicate across state and territory borders. There are provisions for listening devices, optical surveillance devices, tracking devices and data surveillance devices. 8.109 In 2014, more than 100 female celebrities had their private nude images stolen from data storage facilities and published online, including, most famously, the Academy Award-winning actress, Jennifer Lawrence. The images were first uploaded by an anonymous member of the internet platform, 4chan, and disseminated across platforms such as Reddit and Twitter. This incident was followed in 2015 with the hacking of the Ashley Madison website and the release of the names, credit card details and other data of subscribers. Ashley Madison is an online dating service marketed to people who are married or in a committed relationship with the slogan, ‘Life is short. Have an affair’.

CHILDREN 8.110 The growing number of Australian children accessing the internet and social media is significant and has led to the call for the Australian Government to undertake measures to enhance online safety for children.92 In response, the government established the Office of the Children’s eSafety Commissioner in 2015, as a single point of contact for online safety issues for industry, Australian children and those charged with their welfare. The office provides a comprehensive complaints system to assist children who experience serious cyber bullying — see . 8.111 Research by Nielson Online indicates that 1.49 million Australian children were online during April 2015, of which 70 per cent, or 1.04 million children, accessed social media or gaming sites. During that period, Australian children accessed 107,253,000 pages on social media sites.93 8.112 In relation to cyber bullying, research by the Australian Communications and Media Authority (ACMA) indicated that, as at 2013, [page 365]

4 per cent of 8–9 year olds, 21 per cent of 14–15 year olds and 16 per cent of 16–17 year olds reported being cyber bullied.94 8.113 A study into cyber bullying defines it as ‘any communication, with the intent to coerce, intimidate, harass or cause substantial emotional distress to a person, using electronic means to support severe, repeated and hostile behaviour.’95 Cyber bullying among young children has caused such significant emotional stress that, in a number of reported incidences, it has resulted in young people taking their own lives. 8.114 Cyber bullying includes spreading rumours about the victim, sending threatening messages, posting photographs or videos online to embarrass the victim and posting content to damage the reputation or friendships of the victim. 8.115

A report in Nova Scotia, Canada, summarised the problem well:96

Traditional bullying tends to take place in secluded places, like wash rooms, hallways and school buses, where there is little adult supervision. The cyber world provides bullies with a vast unsupervised public playground, which challenges our established methods of maintaining peace and order — it crosses jurisdictional boundaries, is open for use 24 hours a day, 7 days a week, and does not require simultaneous interaction … The immediacy of online transactions encourages impulsive acts with no thought to the consequences, a behaviour pattern that is already common in many youths, and peer pressure may further promote harmful deeds that unfortunately have instant and powerful impact with no effective retraction possible.

8.116 Since 2013, a protocol has been in place for the Cooperative Arrangement for Complaints Handling on Social Networking Sites.97 Compliance with the protocol by industry is voluntary and signatories include Facebook, Google (YouTube), Yahoo!7 and Microsoft. The arrangements are not legally binding and there are no sanctions or consequences for failure to comply with the protocols. These bodies have also joined with the Office of the Children’s eSafety Commission to provide safety measures in relation to cyber bullying targeted towards children.98 [page 366] 8.117 The Broadcasting Services Act 1992 (Cth) sets out prohibited online content in the Online Content Scheme, which regulates illegal and offensive online content in Australia with reference to the National Classification Scheme. 8.118 Prohibited content is content that has been classified by the Classification Board as Refused Classification (RC), X18+, R18+ and MA15+

content in certain circumstances. 8.119 In particular, child pornography is prohibited on the internet and from being broadcast generally under the Broadcasting Services Online Services Amendment Act 1999 (Cth). It is also prohibited under ss 474.19–474.24C of the Criminal Code99 which would relate to social media. 8.120 The offences relate to the use of a ‘carriage service’, which is defined in the Telecommunications Act 1997 (Cth) s 7 as including the carriage of communications by means of electromagnetic energy which applies to mobile telephones and the internet. 8.121 Under s 474.19 of the Criminal Code, it is an offence for a person to use a carriage service to either access material, cause material to be transmitted to the person, transmit material, make material available or publish or otherwise distribute material, or advertise, promote or solicit the material where the material is child pornography and the person does so using a carriage service. 8.122 ‘Child pornography material’ is defined in s 473.1 of the Criminal Code and, in general, means that the material is of a sexual and offensive nature (ie, a sexual pose or sexual activity) involving persons under the age of 18 years. It includes material where the dominant characteristic of the material is the depiction, description or representation for a sexual purpose of the sexual organ or anal region of a person or breasts of a female who is or appears to be under 18 years of age. It must meet a threshold test of whether ‘reasonable persons’ would regard it as being, in all the circumstances, offensive. 8.123 It is notable that the age level for child pornography is two years higher than the age at which a child may consent to sexual activity. The penalty is imprisonment of up to 15 years. 8.124 Similarly, s 474.20 of the Criminal Code makes it an offence to possess, control, produce, supply or obtain child pornography material for use through a carriage service. A person commits an offence if the person possesses, controls or produces, supplies or obtains child pornography material and the person intends that the material be used in committing an offence under s 474.19. 8.125 Section 474.21 of the Criminal Code provides defences to the offences set out in ss 474.19 and 474.20, including a general public benefit defence.

[page 367] 8.126 Concerns have been raised about the prosecution of children under these laws for ‘sexting’. Under the Criminal Code, the permission of the Attorney-General is required before a child can be prosecuted under child pornography laws. The concern arises from the use of ‘sexting’ amongst children or teenagers where they send emails, text messages and other forms of electronic communication that contain sexual material, such as a suggestive or provocative text, or images that are of a sexual nature or of people who are nude or nearly nude. 8.127 The ease with which images and videos of sexual poses or activity can be self-produced or obtained and transmitted by electronic communication has caused community concern, particularly where it involves children or is used to bully or humiliate or shame. 8.128 The first case to involve a prosecution of ‘sexting’ in Australia concerned Damien Eades, who was 18-years old and working in a fast-food outlet in Western Sydney. He struck up a friendship with a 13-year-old girl who, following the exchange of sexually suggestive text messages, sent Eades a nude picture of herself. The girl’s father discovered the photo when checking her phone and also found the text messages in which Eades encouraged the girl to send him ‘hot, steamy’ photos. 8.129 Eades was charged with inciting a person under 16 years to commit an act of indecency towards him under s 61N(1) of the Crimes Act 1900 (NSW) (NSW Crimes Act) and with the possession of child pornography under the then relevant section of the NSW Crimes Act. The magistrate found that the naked photo was not ‘indecent’ and did not amount to child pornography because there were no posing aspects of the photograph which were sexual in nature or suggestion.100 8.130 The Director of Public Prosecutions appealed the decision and the Supreme Court upheld the appeal considering the sexual nature of Eades’ intent and the content of the text messages.101 Eades was ultimately found guilty of the offence having incited an act of indecency but the conviction was not recorded and he was given a good behaviour bond. 8.131 Under s 474.22 of the Criminal Code, it is an offence to use a carriage service for child abuse material. Such material is defined in s 473.1 as material

depicting a person under 18 years of age who is or appears to be a victim of torture, cruelty or physical abuse, in a way that reasonable persons would regard as offensive. 8.132 It is an offence for a person to access material, transmit material, make material available, publish, distribute, advertise or promote child abuse material using a carriage service in contravention of s 474.22 of the Criminal [page 368] Code. Section 474.23 makes it an offence to possess such material, in terms similar to s 474.20. 8.133 Section 474.24 of the Criminal Code provides defences in respect of child abuse material. 8.134 Section 474.25 of the Criminal Code sets out the obligations of internet service providers and internet content hosts in respect of these offences. 8.135 There are also specific child sexual offences in Div 474, Subdiv F ss 474.25A–474.29 of the Criminal Code which relate to the use of carriage services to groom or prey upon children, usually involving adults posing as children.

IDENTITY 8.136 Social media will be the subject of the same kinds of fraudulent activity as seen more generally on the internet. This will include conduct intended to obtain information about or access to a person’s secure financial information. 8.137 The term ‘phishing’ involves the speculative baiting of victims in order to entice them to reveal details of their online identity.102 Typically, a person will receive an email purporting to be from a financial institution and requesting the recipient to click on a hyperlink contained in the email which will lead to a fake internet banking site to input his or her online banking information. As a result, the offender obtains this information to steal the victim’s funds from the actual online banking institution.

8.138 Similarly, ‘keylogging’ does not involve direct contact with the victim but his or her computer is infected over the internet with a ‘Trojan Horse’ or other malware which captures and relays the keystrokes of the victim to the offender’s computer. 8.139 These activities will also enable the offender to use the identity of the victim to open bank accounts or obtain loans by way of ‘identity theft’. 8.140 Under Pt 10.8 of the Criminal Code,103 such practices are prohibited. Under s 480.4 of the Criminal Code, it is an offence for a person to dishonestly obtain or deal in personal information without the consent of the person to whom the financial information relates. It is punishable by up to five years’ imprisonment. ‘Personal financial information’ is defined in s 480.1 of the Criminal Code as information relating to a person that may be used to access funds, credit or other financial benefits. [page 369] 8.141 There is no prohibition against persons using a false identity or a fictitious identity to establish an internet or social media account which is left as a matter of contract between the person and the website or social media platform. 8.142 However, this is seen as a potentially serious problem by the appropriation of photographs and personal information from online social media sites and the establishment of social media accounts using someone else’s identity and falsely communicating as that person. 8.143 Under Pt 9.5 of the Criminal Code relating to identity crime, it is an offence to deal in identification information (s 372.1), possess identification (s 372.2) and possess equipment that can create identification documentation (s 372.3). 8.144 ‘Identification information’ is defined in s 370.1 of the Criminal Code to mean information or a document relating to a person (whether living, dead, real or fictitious) that is capable of being used (whether alone or in conjunction with other information or documents) to identify or purportedly identify the person including such things as the name or address, date or place of birth, driver’s licence, passport, credit or debit card (s 370.1).

8.145 There are similar identity crime laws under some but not all state and territory legislation.104 8.146 Stolen usernames and passwords for social media accounts, such as Twitter and Facebook, now have significant currency on the black market. Access to a person’s Twitter account can provide substantial information about a victim’s online identity which:105 … provides an entry point to launch attacks of that person’s accounts on a number of other sites given the tendency to use the same username and password, particularly for online banking or ecommerce accounts. It can also be used to ‘spear-phish’ the accounts of friends, family and coworkers.

CONTEMPT OF COURT 8.147 The publication on social media of allegations made in proceedings or in court may constitute a contempt of court. The publication must have a real or clear and definite tendency, as a matter of practical reality, to interfere with the administration of justice in a particular case. This means it might [page 370] prejudice a fair trial or impede the course of justice in the proceedings by deterring potential witnesses from giving evidence.106 8.148 Once there are proceedings before the court, they are sub judice107 (ie, under judicial consideration and therefore prohibited from public discussion elsewhere) and a report of those proceedings carries the risk of contempt. While judges and magistrates are less likely to be influenced by pre-trial publicity or reports of proceedings, jurors have been regarded as potentially influenced, which carries the risk of affecting an impartial trial and verdict. In the current day, however, jurors are expected to approach their task properly, being true to their oath and complying with the trial judge’s directions, in particular to determine guilt only on the evidence before them.108 8.149 In the United Kingdom during the trial popularly known as the ‘phone hacking trial’ (involving Rebekah Brooks, former editor of the News of the World newspaper, and others as defendants), Condé Nast Publications Limited published an issue of GQ Magazine with the front cover, ‘Hacking Exclusive!

Michael Wolff at the Trial of the Century’. 8.150 Condé Nast was charged with contempt of court under the strict liability rule under s 2(2) of the Contempt of Court Act 1981 (UK). It is a contempt under that section to publish ‘a publication which creates a substantial risk that the cause of justice in the proceedings in question will be seriously impeded or prejudiced’. The court found that the article was very seriously prejudicial in that it implied that Rupert Murdoch was a participant in the phone hacking, that the defendants must have been aware of the phone hacking, that the defence was being funded by him and conducted on the defendants’ instructions so as to protect his interests but in a way that might also secure their acquittal.109 Condé Nast was found in contempt of court and fined £10,000. 8.151 The disclosure of jury deliberations on social media would be in contempt and in breach of the jurors’ oath.110 8.152 Jurors must reach their decision based on the information they receive in the court room; that is, the evidence and submissions presented and the instructions given to them by the trial judge. They must only discuss the case with their fellow jurors and are prohibited from sharing information about their deliberations beyond the jury room. The use of social media [page 371] therefore by jurors for online research or disclosure of deliberations in the course of a criminal trial is potentially a contempt. 8.153 In one case in the United Kingdom, a juror was sentenced to eight months’ prison for contempt of court after she exchanged Facebook messages with the accused in a criminal trial. She had also searched online for information about another defendant while she and the other jurors were still deliberating. This conduct occurred in breach of a judicial instruction to avoid using the internet during the trial. In another case, a UK juror asked her Facebook friends to help her decide on a verdict in a child abduction and sexual assault trial. She said, ‘I don’t know which way to go, so I am holding a poll.’ She was removed from the jury. 8.154 Statements about the guilt (or innocence) of an accused in pending criminal proceedings are likely to be in contempt.111 Likewise, the publication of

prior convictions, which are usually not admissible as evidence in the trial, is likely to be in contempt.112 8.155 Such matters have been controversial on social media after a person has been arrested and charged, this being the operative time from which proceedings are sub judice. Prior convictions or expressions about their guilt have often been posted without any inhibition. 8.156 It is a particular phenomenon of social media that, following breaking news of an event, there will be public outpouring of rage and grief. Statements of guilt about persons are made before any lawful process is instituted and often before any arrest is made. 8.157 In the United States, on the day of the Sandy Hook Elementary School shooting massacre in 2012, the brother of the murderer was on his way home when Twitter and Facebook carried his name as the perpetrator instead of his brother. This came about as a result of a mistake by a law enforcement official who had wrongly identified him. Online social media contained threats to kill him, and people posing as him posting false information about the shootings. He tweeted, ‘Everyone shut the F … up. It wasn’t me. I am on the bus home now. It wasn’t me.’ 8.158 Similar social media reactions can be seen when police distribute photographs of persons wanted for questioning. Social media evidences the willingness of people to be irresponsible and malicious in identifying the wrong persons. At this stage in the criminal process, it may not be a contempt of court but it could certainly be defamatory. The bravado shown in such circumstances is probably due to the fact that users are hiding behind their anonymity to make such wrongful identifications. [page 372] 8.159 Publications in breach of a suppression order or an injunction to restrain publication are likely to be a contempt. 8.160 Radio broadcaster Derryn Hinch was found in contempt of court by breaching a suppression order concerning the man accused, later convicted, of the murder of Jill Meagher in Victoria. Despite a wide-ranging suppression order, Hinch disclosed in a blog post on his website, ‘Human Headline’, and on Twitter the prior convictions of the accused, which included lengthy sentences

in jail for separate convictions of rape. Hinch was ordered to pay a fine of $100,000 within 90 days or spend 50 days in jail. He opted for the latter. ‘Human Headline’ had previously named two sex offenders at a public rally in breach of a court order, with Hinch sentenced to five months in home detention. 8.161 In New South Wales, the publisher of a website under the name ‘Kangaroo Court of Australia’ was injuncted on an ex parte basis from publishing or disclosing the existence of defamation proceedings brought against him by the plaintiffs until the matter returned to court. When served with the orders, he proceeded to post the suppression order itself on the website, describing it as ‘one of the most dangerous documents I have ever read’. Despite the injunction, he described the nature of the proceedings and provided links to the court orders and affidavits and court documents the subject of the ex parte orders. The plaintiffs proceeded to file a statement of charge alleging that the disobedience or disregard for the court orders amounted to a contempt of court.113 8.162 In the United Kingdom, two men were convicted of contempt of court for posting images, said to be of child-killers Jon Venables and Robert Thompson, on Twitter and Facebook in breach of an injunction. Venables and Thompson were only 10-years old when they abducted, tortured and murdered a two-year-old boy. They were released on licence and given new identities protected by an injunction granting them lifelong anonymity for fear of revenge attacks. The injunction prohibited the publication of any information purporting to identify the physical appearance, whereabouts, movements or new identities of Venables and Thompson. The Attorney- General prosecuted the offenders because there were many different images circulating online claiming to identify Venables and Thompson, and potentially innocent individuals might be wrongly identified as being one of the two men and therefore placed in danger. The injunction and the enforcement for breach was intended to protect not only Venables and Thompson but also those members of the public who had been incorrectly identified as being one of the two men. The offenders, Harkins and Little, admitted their contempt and were given suspended jail sentences. 8.163 Peaches Geldof apologised for tweeting in 2013 to nearly 160,000 followers the identity of the mothers who had allowed their babies to be abused by

[page 373] convicted paedophile Ian Watkins in breach of the lifetime anonymityprotection orders that exist for victims of sexual abuse. Geldof apologised: I deleted my tweets … and apologise for any offence caused as at the time of tweeting I had only seen everyone tweeting the names at me so had assumed as they were also up on news websites and the crown court’s public file that they had been released for public knowledge … Will check my facts before tweeting next time. Apologies and lesson learned.

8.164 It is important, however, for charges of contempt by publication to be balanced against the competing public interests in freedom of speech and in the administration of justice.114 8.165 Statements which criticise judges or courts are tolerated to a degree but not if they shake the confidence of litigants and the public in the decisions of the court and weaken the spirit of obedience to the law.115 Contempt is more likely if the criticism is that a judge has acted with bias or with impropriety.116 8.166 In New South Wales, it is a criminal offence to use social media to transmit sounds, images or information forming part of the proceedings of a court from a room or place where a court is sitting to a place outside that room or place.117 The penalty is a fine of up to $2200 and/or 12 months’ prison. However, lawyers and journalists are exempt from the application of the Act.118

DATA RETENTION 8.167 In October 2015, the Australian Government established a mandatory data-retention scheme requiring telecommunications service providers to retain certain metadata of their users for two years.119 The regime imposed under the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 was justified by the government on the basis that data retention is necessary to assist criminal law-enforcement agencies in dealing with serious crimes, such as terrorism and human trafficking.120 The Australian [page 374] Federal Police, the Australian Security Intelligence Organisation (ASIO) and the

Australian Crime Commission (ACC) have asserted that their investigations would be aided by the ability to access metadata under the Act.121 8.168 However, the data-retention regime has been criticised in relation to its impact on the privacy of Australian citizens,122 as it enables the state to intercept and access the electronic data of citizens even when they are not a criminal suspect.123 Although privacy is not an absolute right in Australia, critics argue that the Act intrudes too far into the private lives of Australians and that its utility in assisting law enforcement is limited.124 8.169 Although several European countries have enacted data-retention laws, no other advanced democracy has implemented legislation as far-reaching as the Australian Act.125 A similar regime under the European Union’s Directive on Data Retention126 was invalidated by the Court of Justice of the European Union in April 2014. The court stressed that allowing the state to access data retained by electronic communications services and public communications networks ‘interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data’.127 Despite the court’s ruling, several European countries have enacted data-retention regimes, including the United Kingdom, France, Poland and Greece. The various European regimes differ from Australia’s in that they generally involve shorter periods of mandatory retention and have additional privacy protections and judicial oversight in place.

CONCLUSION 8.170 This chapter concerns the criminal law as it applies to social media. Criminal law is intended to protect society and maintain law and order. A suspected breach of the criminal law is investigated by the police and prosecuted by the state. Investigative powers of this nature are extensive. Penalties for breach may involve fines or imprisonment. The breach is not only concerned with the effect on the victim but also the effect on society generally for which, in sentencing, a penalty may often include a deterrent factor. [page 375] 8.171

It is important to understand that a breach of the criminal law must be

proven beyond reasonable doubt. This is a higher standard of proof than is required under the civil law (on the balance of probabilities) and is highly dependent upon the nature of the evidence available to prove the crime. 8.172 This chapter has set out various ways in which harmful communications may breach the criminal law. It concerns overt behaviour of a criminal kind and also covert behaviour of that kind, such as stalking or fraud. Given the developing technology enabled to deliver social media, it can be expected that more specific criminal laws will be legislated in the future to inhibit criminal behaviour offensive to society generally. 8.173 It is important to bear in mind that the restrictions the criminal law seeks to impose upon our freedom of speech by the use of social media and the internet are, of course, subject to the implied freedom inherent in the Constitution that invalidates any law in Australia that unreasonably restricts freedom of political and government discussion. 8.174 Much of what is offensive to the community and a breach of the criminal law does not concern discussion of that kind but, rather, is personal, nasty and vindictive abuse which is now too easily able to be published on social media with intent to harm others, or with reckless indifference to whether it does or not.

[page 376]

PRACTITIONER TIPS • •

•

Users of social media should be aware that online and social media communications can contravene criminal laws in circumstances where a traditional publication would not. This area of law is rapidly changing and so, too, is government’s willingness to adapt to it; therefore, it is important that practitioners and users regularly review and familiarise themselves with ongoing legislative changes. The following table sets out relevant legislation, and is current at the time of writing. Social media and criminal offences Behaviour

Cyber bullying

Offence

Maximum penalty

Threat to kill or cause serious 10 years (threat to kill); 7 years harm: s 474.15(1) Criminal Code (threat to harm) (Cth) Menace, harass or cause offence in 3 years use of carriage service: s 474.17 Criminal Code (Cth)

Virtual mobbing

Menace, harass or cause offence in 3 years use of carriage service: s 474.17 Criminal Code (Cth)

Trolling

Menace, harass or cause offence in 3 years use of carriage service: s 474.17 Criminal Code (Cth)

Revenge pornography

Crimes Act 1900 (NSW) s In the case of an individual, 100 578C(2) (Publishing indecent penalty units or imprisonment for articles) 12 months (or both); and, in the Summary Offences Act 1958 (SA) case of a corporation, 200 penalty units s 26C(1) Summary Offences Act 1966 (Vic)

$10,000 or 2 years

s 41DA (Distribution of intimate image) 2 years s 41DB (Threat to distribute intimate image) 1 year Related offences:

Criminal Code 2002 (ACT) s 342

1400 penalty units, imprisonment for 14 years or both

[page 377]

Social media and criminal offences Behaviour

Offence

Maximum penalty

Criminal Code Act (Qld) 1899 s 14 years 415 14 years Criminal Code 1983 (NT) s 228 s 389: Maximum is 21 years or by Criminal Code 1924 (Tas) s 192 fine or by both, and shall be such Criminal Code Act Compilation as the judge of the court of trial Act 1913 (WA) s 338 A (Threat shall think fit in the circumstances of each particular case. with intent to gain) 7 years Stalking

Crimes Act 1900 (ACT) s 35 (a)(i) (Conduct contravened a 5 years court order or (ii) was in possession of an offensive weapon) 2 years (b) (Any other case) Crimes (Domestic and Personal 5 years or 50 penalty units or both Violence) Act 2007 (NSW) s 13 Criminal Code 1983 (NT) s 189 (2)(a) 2 years (2)(b)(i) (Conduct contravened a court order or (ii) was in possession of an offensive weapon) 5 years Criminal Code (Qld) 1899 s 359E(2) 5 years (3)(a) (Uses or intentionally threatens to use, violence against anyone or anyone’s property or 7 years (b) possesses a weapon) Criminal Law Consolidation Act 2 years 1935 (SA) s 19AA Criminal Code 1924 (Tas) s 192

s 389: Maximum is 21 years or by fine or by both, and shall be such as the judge of the court of trial shall think fit in the circumstances

of each particular case.

[page 378]

Social media and criminal offences Behaviour

Offence Crimes Act 1958 (Vic) s 21A(1)

Maximum penalty 10 years

Criminal Code Act Compilation 8 years Act 1913 (WA) s 338E (a) (Offence is committed in 2 years and a fine of $24,000 circumstances of aggravation) Summary conviction for (a)

3 years (b) (In any other case) Summary 18 months and a fine of $18,000 conviction for (b) Blackmail

Criminal Code 2002 (ACT) s 342 Crimes Act 1900 (NSW) s 249K Criminal Code 1983 (NT) s 228 (Blackmail and extortion) Criminal Code 1899 (Qld) s 415

1400 penalty units, imprisonment for 14 years or both 10 years or 14 years (indictable offence) 14 years Life imprisonment

(a) (If carrying out threat causes serious personal injury)

Life imprisonment (b) (If carrying out threat causes 14 years substantial economic loss in an industrial or commercial activity conducted by a person or entity) 15 years or 20 years (aggravated offence) (c) (Otherwise) Criminal Law Consolidation Act s 389: Maximum is 21 years or by 1935 (SA) s 172 fine or by both, and shall be such Criminal Code 1924 (Tas) s 241 as the judge of the court of trial shall think fit in the circumstances Crimes Act 1958 (Vic) s 87 of each particular case. Criminal Code Act Compilation 15 years Act 1913 (WA) s 338 A (Threat with intent to 7 years gain)

[page 379]

Social media and criminal offences Behaviour

Offence

Maximum penalty

s 398 (Threats with intent to stalk) 14 years Extortion

Criminal Code 2002 (ACT) s 342 Crimes Act 1900 (NSW) s 99 Criminal Code 1983 (NT)

1400 penalty units, imprisonment for 14 years or both 14 years

s 205 (Publish defamatory material 3 years to extort) 14 years s 228 (Blackmail and extortion)

Life imprisonment

Criminal Code 1899 (Qld) s 415

Life imprisonment

(a) (If carrying out threat causes 14 years serious personal injury) 15 years or 20 years (aggravated (b) (If carrying out threat causes offence) substantial economic loss in an industrial or commercial activity conducted by a person or entity) s 389: Maximum is 21 years or by fine or by both, and shall be such Criminal Law Consolidation Act as the judge of the court of trial 1935 (SA) s 172 shall think fit in th circumstances Criminal Code 1924 (Tas) s 241 of each particular case. (c) (Otherwise)

Crimes Act (Vic) s 27(Threat to kill) s 28 (Threat to destroy property) Criminal Code Act Compilation

15 years 10 years

Act 1913 (WA) s 397 (Demanding property with 14 years threats with intent to extort or gain) s 398 (Threats with intent to stalk) 14 years (3)(e) (A solicitation or threat offered or made to any person as an inducement to commit or

permit the commission of any of 20 years the offences aforesaid)

[page 380]

Social media and criminal offences Behaviour

Criminal defamation

Offence

Maximum penalty

s 338 A (Threat with intent to gain)

7 years

Crimes Act 1900 (ACT) s 43

300 penalty units, imprisonment for 3 years or both.

Crimes Act 1900 (NSW) s 529(1)

3 years Criminal Code 1983 (NT) Div 7 s 204 3 years Criminal Code 1899 (Qld) s 365

3 years

Criminal Law Consolidation Act 3 years 1935 (SA) s 257 s 389: Maximum is 21 years or by Criminal Code Act 1924 (Tas) s fine or by both, and shall be such 196 as the judge of the court of trial shall think fit in the circumstances Wrongs Act 1958 (Vic) of each particular case. s 10(1) (Publishes any defamatory libel knowing the same to be false) Fine or 2 years Fine or 1 year s 10(2) (Publishes any defamatory libel) 3 years or summary conviction Criminal Code Act Compilation penalty: imprisonment for 12 months and a fine of $12,000 Act 1913 (WA) s 345

1. 2. 3. 4. 5.

C Marriner, ‘Seeking Answers on Ask.fm Breeds Bullying Online for Australian Teenagers’, Sydney Morning Herald, 13 April 2014. C Mardon, ‘“Cut Deeper”: Teenager Was Taunted Online before her Death’, Sydney Morning Herald, 12 March 2014. J Baird, ‘No Happily Ever After with Trolls’, Sydney Morning Herald, 15–16 February 2014. Above. Australian Parliament, House of Representatives Standing Committee on Communications, Hackers, Fraudsters and Botnets: Tackling the Problem of Cybercrime, Commonwealth of Australia, Canberra, 21 June 2010, p 3, available at .

6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48.

See Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Report: Model Criminal Code — Chapter 4 — Damage and Computer Offences, January 2001, available at . Signed 23 November 2001. See Convention on Cybercrime, Budapest, 23.XI.2001, 1 July 2004, available at . [2009] VCC 696. R v Dimech (County Court of Victoria, Jenkins J, 29 April 2010, unreported); see also Director of Public Prosecutions (Vic) v Johanson [2012] VCC 708. [2011] 2 Qd R 350; [2009] QCA 307. See also [8.77], below. Section 474.17 Criminal Code, Schedule to the Criminal Code Act 1995 (Cth). [2004] SASC 367. [1999] SASC 34. [2006] SASC 263. [2007] ACTSC 65. [2013] VSCA 216. Director of Public Prosecutions v Rodriguez [2012] VCC 1216 at [16]. R Ison, ‘NSW Man the First to be Jailed for “Sexting”’, Sydney Morning Herald, 11 September 2014. [2011] QCA 132 (R v Hampson). Above, at [34]. R v Hampson, above, n 19. The Criminal Code can be found in the Schedule to the Criminal Code Act 1995 (Cth). Above, n 19, at [54]. [2010] ACTSC 19. See also [8.79], below. ‘Two Sydney High Schools Reportedly in Lockdown’, Yahoo 7 News, 20 October 2015, available at . Above. [2012] All ER (D) 346 (Jul); [2013] 1 All ER 149; (2012) 176 JP 737; [2012] EWHC 2157. Above, at [30]. J McCully, ‘Terror on Twitter’, Inforrm, 29 April 2014, available at . [2006] All ER (D) 249 (Jul); [2006] UKHL 40; [2006] 4 All ER 602; [2006] 1 WLR 2223. Above, at [2]. Above, n 30, at [9]. Above, n 30, at [13]. Above, n 30, at [14]. The Criminal Code can be found in the Schedule to the Criminal Code Act 1995 (Cth). Criminal Code s 80.2(1). Criminal Code s 80.2(5). Criminal Code s 80.2(3). Criminal Code s 80.3(1). Lange v Australian Broadcasting Corp (1997) 189 CLR 520; 145 ALR 96; 71 ALJR 818; [1997] HCA 25. Above, CLR at 567; Coleman v Power (2004) 220 CLR 1; 209 ALR 182; 78 ALJR 1166; [2004] HCA 39 at [196]. Criminal Code Act 1995 (Cth) s 471.12. (2013) 249 CLR 92; 295 ALR 259; 87 ALJR 340; [2013] HCA 4. The appeal was heard in the interstice marking the retirement of Gummow J and the appointment of Gageler J. Monis v R, above, n 43; Droudis v R (2011) 256 FLR 28; 215 A Crim R 64; [2011] NSWCCA 231. [2013] QDC 124. Monis v R, above, n 43. Above, n 43, at [261].

49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73.

74. 75. 76. 77. 78. 79. 80. 81. 82. 83.

84.

Above, n 43, at [310]. Above, n 43. Above, n 43. Above, n 43, at [336]; see also Starkey v DPP (Cth), above, n 46, at [12]–[16]. Monis v R, above, n 43, at [338]. Crowther v Sala [2008] 1QdR127 at 136. Monis v R, above, n 43, at [341]. Above, n 43, at [341]. Above, n 43, at [341]. Starkey v DPP (Cth), above, n 46. Above, n 46, at [51]. The Criminal Code can be found in the Schedule to the Criminal Code Act 1995 (Cth). Criminal Code s 474.15(3). [2011] 2 Qd R 350; [2009] QCA 307. See also [8.21], above. [2010] ACTSC 19. See also [8.36], above. Crimes Act 1900 (NSW) s 249K. Crimes Act 1958 (Vic) s 87. Crimes Act 1900 (NSW) s 99. Y v W (2007) 70 NSWLR 377; [2007] NSWCA 329. See Crimes Act 1900 (ACT) s 439; Crimes Act 1900 (NSW) s 529(1); Criminal Code 1983 (NT) Div 7 s 204; Criminal Code 1899 (Qld) s 365; Criminal Law Consolidation Act 1935 (SA) s 257; Criminal Code Act 1924 (Tas) s 196; Wrongs Act 1958 (Vic) s 10; and Criminal Code 1913 (WA) s 345. Crimes Act 1900 (NSW) s 529(7). Spautz v Williams [1983] 2 NSWLR 506 at 539–40; Williams v Spautz (1992) 174 CLR 509; 107 ALR 635; 66 ALJR 585; [1992] HCA 34; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 287–9. Wrongs Act 1958 (Vic) s 10(1). ‘Stalkers and Their Victims’, Psychiatric Times, 25 August 2006, available at . See Crimes Act 1900 (ACT) s 35; Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13; Criminal Code 1983 (NT) s 189; Criminal Code 1995 (Qld) s 359A; Criminal Law Consolidation Act 1935 (SA) s 19AA; Criminal Code 1924 (Tas) s 192; Crimes Act 1958 (Vic) s 21A(2)(b); and Criminal Code 1913 (WA) s 338D. S Milovanovic, ‘Man Avoids Jail in First Cyber Bullying Case’, The Age, 9 April 2010. P Mullen, M Pathe and R Purcell, Stalkers and Their Victims, 2nd ed, Cambridge University Press, Cambridge, 2008. S Bronitt and B McSherry, Principles of Criminal Law, 3rd ed, Lawbook Company, Sydney, 2010 at [10.180]. C Cadwalladr, ‘Charlotte Laws’ Fight with Hunter Moore, the Internet’s Revenge Porn King’, The Observer, 30 March 2014. Crimes Act 1900 (NSW) s 578C. Police v Usmanov [2011] NSWLC 40 at [6]. Usmanov v R [2012] NSWDC 290. Police v Usmanov, above, n 79, at [19]–[20]. N Hasham, ‘I Felt Like a “Performing Donkey” when Pictured with Prostitute’, Sydney Morning Herald, 20 January 2016. Summary Offences Act 1953 (SA) s 26C (invasive image without consent), s 26D (indecent filming); Summary Offences Act 1966 (Vic), s 41DA (distribution of an intimate image), s 41DB (threat to distribute intimate image), where distribution would be ‘contrary to community standards of acceptable conduct’. Crimes Act 1900 (NSW) s 578C.

85. See also Criminal Code Amendment (Private Sexual Material) Bill 2015, proposing to amend the Criminal Code to insert ss 474.24D–474.24J concerning an offence for using a carriage service for private sexual material and related offences. 86. D Proudman, ‘Hunter Man Gets 16 Years Jail for Facebook Sex Crimes’, Sydney Morning Herald, 12 February 2016. 87. Section 7(1). 88. Telecommunications (Interception and Access) Act 1979 (Cth) s 5(1). 89. Above, s 5F (see also s 5H). 90. Above, n 88, ss 5 and 108(1). 91. See also the definition of ‘access’ in s 6AA, which includes listening to, reading or recording such a communication. 92. Department of Communications, Enhancing Online Safety for Children, discussion paper, Commonwealth of Australia, Canberra, January 2014, available at . 93. Nielson Online, April 2015, published by the Office of the Children’s eSafety Commissioner, available at ). 94. Australian Communications and Media Authority, Quantitative Research Report: Like, Post, Share: Young Australians’ Experience of Social Media, Commonwealth of Australia, Canberra, 2013, p 10, available at . 95. Megan Meier Cyberbullying Prevention Act (2009) US s 881a, cited in A Srivastava, R H Gamble and J Boey, ‘Cyberbullying in Australia: Clarifying the Problem, Considering the Solutions’ (2013) 21 International Journal of Children’s Rights 25; Enhancing Online Safety for Children, above, n 92, p 3. 96. Nova Scotia Task Force on Bullying and Cyberbullying, Report: Respectful and Responsible Relationships: There’s No App for That, Nova Scotia, 29 February 2012, p 12. 97. Enhancing Online Safety for Children, above, n 92, p 10. 98. See Office of the Children’s eSafety Commissioner, ‘Social Media Partners’, . 99. The Criminal Code can be found in the Schedule to the Criminal Code Act 1995 (Cth). 100. Director of Public Prosecutions (NSW) v Eades [2009] NSWSC 1352 at [13]. 101. Above, at [58]. 102. T Krone, ‘Phishing’ (2005) 9 High Tech Crime Brief. 103. The Criminal Code can be found in the Schedule to the Criminal Code Act 1995 (Cth). 104. Crimes Amendment (Fraud) Identity and Forgery Offences Act 2009 (NSW); Criminal Code 1899 (Qld) s 408D; Criminal Law Consolidation Act 1935 (SA) s 144B; Crimes Amendment (Identity Crime) Act 2009 (Vic). 105. M Sparkes, ‘Stolen Twitter Passwords Worth More Than Credit Card Details: Study’, Sydney Morning Herald, 29 March 2014. 106. Attorney-General v MGN Ltd [2011] All ER (D) 06 (Aug); [2012] 1 WLR 2408; [2012] 1 Cr App Rep 1; [2011] EWHC 2074. 107. ‘Under judgment’. 108. John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; 50 ACSR 380; 148 A Crim R 522; [2004] NSWCA 324; Attorney-General v Fraill [2011] EWHC 1629. 109. Her Majesty’s Attorney General v The Condé Nast Publications Limited [2015] EWHC 3322 (Admin). 110. See also Jury Act 1977 (NSW) s 68B. 111. Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCCA, Priestley, Meagher and Powell JJA, 16 October 1997, unreported, BC9705208). 112. Hinch v Attorney-General (Vic) (1987) 164 CLR 15; 74 ALR 353; 61 ALJR 556; [1987] HCA 56. 113. Munsie v Dowling [2014] NSWSC 458. 114. Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249; 54 WN (NSW) 98; Y v W (2007) 70 NSWLR 377; [2007] NSWCA 329 at [5].

115. R v Dunbabin; Ex parte Williams (1935) 53 CLR 434; [1935] ALR 232; (1935) 9 ALJR 74; Gallagher v Durack (1983) 152 CLR 238 at 241–5; 45 ALR 53; 57 ALJR 191; [1983] HCA 2; Munsie v Dowling, above at [20], [53]. 116. R v Dunbabin, above, CLR at 442. 117. Court Security Act 2005 (NSW) s 9A. 118. Court Security Regulation 2011 (NSW) reg 6B. 119. D McConnel, ‘Implications of National Security Law Reform’ (2015) 37(1) Bulletin (Law Society of South Australia) 18 at [20]; G Williams and K Hardy, ‘National Security Reforms Stage Three: Metadata’ (2015) 2(1) Law Society of New South Wales Journal 8 at [70]. 120. P Leonard, ‘Mandatory Internet Data Retention in Australia — Looking the Horse in the Mouth after It Has Bolted — May 2015’ (2015) Journal of the Intellectual Property Society of Australia and New Zealand 101 at [43]. 121. J Kennet, ‘Who’s Watching’ (2013) About the House 47 at [20]. 122. G Williams and K Hardy, ‘National Security Reforms Stage Three: Metadata’ (2015) Law Society of New South Wales Journal 8 at [70]. 123. McConnel, above, n 119, at [20]. 124. Leonard, above, n 120, at [43]–[44]. 125. Leonard, above, n 120, at [43]. 126. Directive 2006/24/EC. 127. Court of Justice of the European Union, ‘The Court of Justice Declares the Data Retention Directive to be Invalid’, 3 April 2014, .

[page 381]

9 Social Media Before and After Death Gerard Basha and James Whiley

OVERVIEW •

•

• •

Prudent planning for social media assets and accounts in the event of incapacity or death can be undertaken by an individual only after preparation of a detailed inventory of those assets and accounts. The inventory should be kept current and in a safe place. Estate-planning documents should include provisions that clearly authorise the legal personal representative to access, deal with and manage an individual’s social media assets and accounts. An individual who has an interest in a business connected with social media will have additional documents and issues to consider. Estate planning needs to be undertaken with a view to minimising the potential for legal disputes before and after death.

INTRODUCTION 9.1 A prudent individual plans for what should happen to their assets and affairs in the event of their incapacity or death. 9.2 This planning should consider all forms of wealth and asset ownership as these evolve and change. The digital age has impacted on our day-to-day lives and created new forms of wealth and asset ownership. Digital assets, such as

social media assets and accounts, have emerged. They need to be considered. [page 382] 9.3 This chapter addresses the importance of properly dealing with social media assets and accounts in an individual’s estate plan and in the estate of a deceased individual. 9.4 Planning for incapacity covers the possibility that in the future an individual will lose the legal capacity to manage their own assets and affairs. Legal documents such as an enduring power of attorney may be required.1 9.5 Planning for what should happen to an individual’s assets and affairs in the event of their death requires considering their will and other documents. 9.6 An effective estate plan will involve reviewing existing assets and structures. It will help protect against: (a) the potential for costly disputes; (b) family division; and (c) the failure of or disruption to any social media business. 9.7 After the death of an individual, there will be a need to deal with that person’s social media (with or without an effective estate plan) and any disputes that may arise. 9.8 In this chapter, the term ‘legal personal representative’ will, as the context requires, mean: (a) an individual’s attorney/manager on incapacity; or (b) an individual’s executor/administrator on death.

WHAT IS SOCIAL-MEDIA ESTATE PLANNING? 9.9 An individual’s social media profile will form part of their digital wealth and therefore their estate. In order to understand social-media estate planning, it is first necessary to consider what is estate planning generally. 9.10

Estate planning is not just preparing an enduring power of attorney to

cover incapacity or preparing a will to cover death. [page 383] 9.11 Estate planning is an involved process. Many people have complex personal and business affairs. A comprehensive understanding of social media, technology, tax, superannuation, legal incapacity, probate, estate administration, business structures and transfers of control of wealth (including family-run businesses owning social media), is required. It is only after considering such issues that estate-planning advisers can recommend prudent strategies and structures. For example, part of the process may involve considering a discretionary trust holding a social media business; the aim will be to ensure that control of the trust is passed in accordance with the individual’s wishes. 9.12

Common concerns and issues may include the following:

(a) What happens if an individual loses their mental capacity? Estate planning for incapacity usually includes preparing an enduring power of attorney. This allows a nominated legal personal representative to deal with financial decisions, including decisions concerning social media for the incapacitated person. It may also include preparing an appointment of enduring guardian. This allows a nominated legal personal representative to deal with medical and lifestyle decisions for the incapacitated individual, such as whether to turn off life support. (b) Who are going to be the legal personal representatives and who will advise them? The individual may want members of their immediate family to be their legal personal representatives. However, these members may lack the necessary social-media, legal, financial and/or tax knowledge. It may therefore be necessary to name a specialist in social media to act as a legal personal representative or to advise the legal personal representatives on social media. Other professionals may be named to advise on tax, financial and legal issues. (c) Who does the individual want to benefit? For example, they may want to leave gifts of certain social media assets to specific individuals. After making these gifts, they may want to leave the residue of their estate to their spouse and then to their children. (d) Does the individual want to treat children equally or, if not, why? It is open

to an individual to leave an estranged child out of their will or to treat their children differently. However, it is necessary that the adviser establish the individual’s reasons for doing this and advise the individual on the prospect of a child making a family-provision claim against their estate. This should include advice on the notional estate regime which operates in New South Wales, and which can leave structures that fall outside of the estate, such as family discretionary trusts, potentially open to challenge. The same issues can apply regarding children from previous relationships and step-children. Such considerations are especially important because, if family relationships are already strained, the death of an individual can cause disputes to arise. [page 384] (e) When will children be old enough to manage their inheritance? If an individual makes an outright gift in their will to their children (eg, of a social media business), the children will legally be entitled to this on attaining 18 years of age. The individual may prefer to delay the gift so that their children receive it when they are older (eg, at age 30) when the individual believes the children will be more financially responsible. A related issue concerns a child who has substance-abuse problems or is unable to manage finances or has difficulty maintaining a long-term relationship. Rather than gifting an inheritance to a child outright, it may be appropriate for the individual’s will to set up a trust for the child, wherein income and/or capital is provided for the child. However, the child does not control the trust, a measure which protects both the assets of the trust and the child’s welfare. (f) If an individual’s child is considering investing in a social-media business venture, it may be appropriate for funds to be lent to the child instead of being gifted outright. This should be pursuant to a written loan agreement, which affords a degree of protection for the funds should the business fail. If desired, the parent’s will can forgive the loan on death and include equalisation mechanisms. These should ensure that any other children, who have not received such assistance, do not feel left out. (g) In the event of death, who will look after minor children and how will this be funded? It is necessary for an individual to appoint legal guardians of their minor children. This is in case both parents die before their children attain 18 years of age. It is also necessary to include terms in their wills to ensure that the guardian is not left out-of-pocket for personal expenses to

do with the care of the children; for example, the guardian may need to purchase a larger vehicle or extend their house, but cannot afford to do so through their own wealth. (h) How is the family home owned? If the home is owned as joint tenants then, on the death of the first spouse, their share will pass automatically to the surviving spouse. If this is not desired, it will be necessary to sever the joint tenancy to create a tenancy in common, so that the individual’s share can pass according to the terms of their will. For example, the individual may, for asset-protection reasons, want to create in their will a life interest in their share for the survivor. In taking such steps, however, care must be taken that the individual does not accidentally undo lifetime asset-protection planning; for example, in the situation where one spouse works in an at-risk profession, the home may be owned in the name of the spouse with the lower risk, in order to provide greater asset protection. However, if the couple prepare simple wills, each gifting everything to the survivor, this will undo the lifetime asset-protection planning. (i) In a family-disaster scenario where the individual and all of their immediate family die, who does the individual want to benefit (eg, other family members and/or charities)? [page 385]

Testamentary trusts 9.13 For individuals with substantial wealth, including social media wealth, the use of testamentary trusts in their will may be appropriate. However, in determining when to use a testamentary trust, often the wrong question is asked. The question is not: ‘How much is there in the estate?’ but, rather: ‘How might the beneficiaries use a testamentary trust for their protection and tax-saving opportunities, and what type of testamentary trust is best for them?’. The advantages of testamentary trusts also need to be weighed up against the disadvantages. This will determine whether a testamentary trust is appropriate. 9.14

The advantages of a testamentary trust include that they:

(a) enable an individual (to some extent) to dictate the manner in which their assets are managed after their death;

offer (depending on how the trust is structured) greater protection of assets (b) from trustees in bankruptcy and, potentially, from a relationship breakdown; (c) offer favourable tax treatment for income distributions to beneficiaries who are minors (compared with lifetime trusts) due to the excepted trust income exemption;2 (d) allow for potential capital-gains tax savings for beneficiaries. This is because the capital gain or loss that arises when an asset of a deceased person passes to the ultimate beneficiary of a trust created under their will is ignored;3 (e) offer the potential for distributing income and gains to related company beneficiaries or domestic partners (if the trust allows this) to save tax; and (f) can last for up to 80 years from death (and longer in South Australia). They can therefore provide asset protection and tax advantages for many generations. 9.15

The disadvantages of a testamentary trust include that they:

(a) make the will more complicated. Such complexities need to be explained to and understood by the willmaker; and (b) mean that initial legal fees incurred in preparing the will and, on death, in administering the will and ongoing testamentary trusts will be higher. The legal personal representative will also need ongoing assistance. [page 386]

SOCIAL-MEDIA BUSINESS SUCCESSION 9.16 An individual may own a social media business. They may also own a traditional business where the business has been built up by using social media to develop its social media profile. 9.17 For tax and asset-protection reasons, such businesses are commonly held through trust structures. An individual may also have a self-managed superannuation fund. This fund may own the premises from which the social media business operates. 9.18 It is necessary to consider the impact of the individual’s incapacity or death on the trust structure, the social media profile of the business, succession to the business and the self-managed superannuation fund.

Lifetime trusts and corporate trustees 9.19 Assets held in a discretionary trust do not form part of an individual’s estate. However, pursuant to the terms of their will, an individual can pass: (a) the shares in a company that may be acting as a corporate trustee of a trust. However, the terms of the company constitution must allow this. The constitution may contain restrictive share-transfer rights or the company may have special classes of shares; and (b) control of the trust (by virtue of the power of the appointor). However, the trust deed must allow this; it may be the case that it does not. Alternatively, there may already be provisions in the deed to state who will become the successor appointor, which may not be satisfactory. 9.20 It is therefore necessary to carefully review the company constitution and trust deed. They may need amending to achieve the individual’s objectives. The review of the trust deed should also include checking: (a) whether the trust deed includes sufficient powers for the trustee to deal with social media assets and accounts; (b) whether amendment to the trust deed is required to embed the intended appointor succession intentions in it. This should ensure a future will does not accidentally undo the succession planning; (c) what happens if the trustee or appointor resigns, loses mental capacity or dies; (d) what happens if the trustee or appointor goes bankrupt or insolvent; (e) what happens if there is more than one appointor (eg, whether decisions are to be made unanimously or jointly and if there are terms to resolve any disputes or deadlocks); [page 387] (f) the extent of appointor consent provisions to trustee powers and whether these are sufficient (eg, do distributions of income and capital and variations of the trust deed require appointor consent?); (g) whether there are specific powers to stream different categories of income and capital for tax reasons;

(h) whether taxable capital gains can be recognised as trust income; (i) whether there are specific powers to allocate income or capital to be held on trust for beneficiaries; and (j) whether there are powers to enable distinguishing between different types and categories of expenses. 9.21 Other succession-planning issues with such structures may include the following: (a) Trust assets being inadvertently drawn into the individual’s estate. This may occur where there are unpaid present entitlements or credit loan accounts owing to a beneficiary of a lifetime trust. These will usually need to be paid out on the individual’s death. If there are insufficient liquid assets in the trust, this could result in the trustee having to sell the trust’s main asset (such as the social media business). (b) Protecting the trust in the event of a future relationship breakdown after the individual’s incapacity or death. This is a complex issue, but will primarily depend upon the extent and reality of control and the history of how the trust has been managed. (c) Are there enough shares in the corporate trustee to pass one share to each intended beneficiary? If not, more shares may need to be issued or the existing shares split. (d) Are the corporate trustees of different trusts the same? If they are and the individual wants to pass control of different trusts to different individuals, then a new corporate trustee may need to be appointed, so that each trust has a different trustee. (e) Is an agreement required between family members regarding what happens to the structure after the incapacity or death of the individual? A discretionary beneficiary has merely a hope that the discretion will be exercised in their favour. The family may want more certainty than this. Amendments to the trust deed, together with a bespoke trustee company constitution, shareholders’ agreement and/or trustee resolution, may need to be prepared to achieve this. (f) Would a corporate appointor be appropriate for more complex structures and families? The advantage of a corporate appointor is that (unlike a person) it does not die. However, even with a corporate appointor, there are still issues regarding incapacity or death of shareholders and directors. A bespoke shareholders’ agreement and company constitution will be required

to deal with these issues. [page 388]

Social-media business succession planning 9.22 Established businesses are increasingly relying on social media presence to promote their brand. At the same time, a trend is for the baby boomer generation, who tend to own such businesses, to look to retire. The issues affecting their family succession plan include not only personal estate planning, but also the ongoing viability of the family business. However, for young socialmedia businesses owners, such retirement succession plans may not be at the front of their mind. That said, they still need to consider what effect their incapacity or death will have on their business. This is particularly important if they own the business with non-family investors. 9.23 Business succession planning is important due to the potential for disruption to a social media or other business caused by the owner’s incapacity or death. Prudent planning can help to avoid disputes that can ultimately lead to the failure of an otherwise successful business: only 3 per cent of family businesses survive to the fourth generation.4 However, most family businesses have no formal governance procedures in place. A well-considered succession plan can also potentially increase the value of the business. In addition, the business may also be able to source reliable, lower-rate finance by having a plan to prove its viability after the owner’s incapacity or death. 9.24 Business succession planning involves taking steps during an individual’s lifetime to ensure smooth succession for the business. The aim should be to ensure that the individual’s retirement or incapacity or death does not adversely affect the business. The steps will differ depending upon at what stage in life the owner of the business is, as outlined below. (a) For a young entrepreneur owning a social media business with other nonfamily investors, steps may include preparing a buy/sell deed. The aims of a buy/sell deed include ensuring that, in the event of the incapacity or death of an owner: (i) there is fair value for the continuing owners; (ii) the assets of the exiting incapacitated or deceased individual are protected;

(iii) the business is protected for the benefit of the continuing owners. This includes avoiding the situation where the spouse and/or children of the incapacitated or deceased individual inadvertently become involved in the business when they may know nothing about it. For example, if the spouse and/or children inherit the deceased’s shares in the company and there was no buy/sell deed in place, they may be able to appoint themselves as director(s) of the company and sit on the board, which the other owners may not want; [page 389] (iv) there is funding to fund the exit of the individual. Usually, the owners will need to take out appropriate total and permanent disability and life insurance. This ensures that, if an owner becomes incapacitated or dies, their interest in the business can be bought out by the other owners using the insurance payout; (v) there is certainty, with a smooth and efficient process put in place for the exit of the individual. It may also be necessary to prepare a shareholders’ agreement to deal with what happens if one of the investors wants to leave the business or buy the others out. This would not usually be related to any insurance or to the incapacity or death of an owner; and (vi) the exit of the incapacitated or deceased individual is tax- and cost efficient. (b) For an individual looking to retire from an established family business, who may have built it up using social media, the steps vary depending on their circumstances. This is discussed at [9.29]–[9.32], below. 9.25 From a social-media profile perspective for both types of individual, the steps should include: (a) Keeping usernames and passwords to online business accounts, websites and social media accounts safe and secure. A trusted individual should also be provided with access to these. This is because significant problems can arise if a business owner dies without providing another with the ability to access their online business. For example, the family may not be able to access bank accounts, resulting in debts falling to the estate and, potentially, the business failing.

(b) Separating business ownership and business succession. Ensuring that there is a business successor who can operate the business is just as important as ensuring that the correct ownership-succession structure is in place. One of the challenges of any family-owned business, including a social media business, is that parents can often be paternalistic/maternalistic in determining the ability, from an operational perspective, of their children to be the business successor.

Business succession planning — operational perspective 9.26 From a social-media business operational perspective, steps should be taken to ensure that there are trusted individuals in the business who understand its social media profile and how to use social media to make the business successful in the event of the incapacity or death of key individuals. These may be different individuals to the intended owners. If there is nobody appropriate to take on this role upon the incapacity or death of the individual, a strategy should be developed to ensure that such persons can be found. [page 390] 9.27 If it is not intended to continue the business following the owner’s retirement or incapacity or death, a strategy should be developed to ensure that the business is sold at the best possible price. This should include determining the appropriate market for a sale and the best method of sale. Possible sale methods may include a trade sale, an initial public offering (IPO) or listing or a private equity or management buyout. 9.28 If it is intended to continue the business following the owner’s retirement or incapacity or death, the key skills that a successor should possess need to be identified. In general terms, a successor for either a social media business or an established family business (which may have been built up using social media) should possess the following characteristics: (a) a knowledge of the social media and other activities of the business which may be gained as a result of: (i) experience working in the actual business; (ii) experience working in a business within the same industry; (iii) experience working in a business within a related industry; or

(iv) a combination of the above. (b) specific social media and other skills relevant to the conduct of the business gained as a result of: (i) experience, as discussed above; (ii) training, education and qualifications; or (iii) a combination of the above. (c) as far as can reasonably be determined, a demonstrated ability and commitment to longevity of conducting the business; and (d) hold such qualifications as are required by law or by the relevant industry bodies to allow them to conduct the business.

Business succession planning — ownership perspective 9.29 From a business-ownership succession perspective, it is necessary to consider who is going to own the business in the event of the retirement or incapacity or death of the owner. 9.30 Once the successors are identified, the specific business-succession planning principles involving ownership succession, management succession (so that key people and key skills can be attracted and retained), relationship succession (so that relationships with suppliers, customers, financiers and referrers can be retained) and financial succession (so that there are no issues in regard to external debt and cash flow) should be developed. These should be implemented in conjunction with the identified successors. It is important that the identified business successor be involved in the succession-planning process in each of these areas. This should ensure that ultimately the business [page 391] successor will, as much as possible, be in control of a business they are comfortable with and understand. 9.31 The owner of an established family business (which may have been built up using social media) will eventually look to retire from it. It is necessary to develop a strategy to determine the best way for them to exit the business successfully, either due to their retirement, incapacity or death. The strategy will depend on:

(a) (b) (c) (d) (e) (f)

the maturity cycle of the business; the nature of the business; the maturity of the owners/management team; whether it is a first-, second- or third-generation family business; the timing of the passing of control; taxation issues, including whether to provide for the children pre or post death; (g) the family’s priorities (eg, do they put the family or the business first?); (h) the owner’s retirement funding, including their desire to maintain an income stream in retirement. This is because many business owners consider their business to be their personal superannuation and, as such, rely upon it to fund their retirement; (i) asset-protection issues and possible claims to the family business through family provision claims. These may be made by a second partner/spouse, step-child or adopted child (eg, where there is a blended family relationship). A claim may also result from a child who feels they have not been treated equally or fairly by their parents; (j) the expectation of the children to benefit from the estate of their parent in equal proportions; (k) the expectation of the children who are involved in the family business (who may have built it up further and sacrificed other aspects of their lives in order to do so) to benefit to a greater degree than their siblings or other beneficiaries; (l) the expectation of the children who are not part of the business to benefit from the greater family assets, even though they know very little about the business or the greater family assets; (m) the expectation/necessity of the children who are in the family business to obtain ownership as soon as possible in order to obtain financial certainty. For example, a child may have been given reassurances by the owner that they will be the natural successor to the business due to their hard work. As a result, they may not have followed another career. However, that child may have no ownership and/or control of the business and may want to establish an element of control and ownership to ensure their continued involvement and commitment to the business;

[page 392] (n) the family law/de facto relationship property-settlement risks that arise if a child has obtained an ownership interest in the family business; and (o) the ongoing utilisation of existing discretionary family trusts which may be vesting in the foreseeable future, or otherwise may be inappropriate, having regard to modern taxation rules. 9.32 Although there is no set strategy, it is recommended that the following steps, as appropriate, are adopted. These may assist to determine the best way for the owner to exit the business successfully. (a) It should be determined how the business is structured. A detailed review of the trust deeds, company constitutions, shareholder and partnership agreements is required. (b) The family members should ensure that they communicate with each other as well as possible. Ideally meetings should be held between the owner and their children to determine: (i) where do they want to go both individually and as a family, including in relation to the issues discussed at [9.31], above. For example, who is going to run the business? Is the business to continue? One child may be involved in the business, but others may not be interested. Sometimes, the owner assumes that their children will want to run the business, but has not discussed this with them. Then, when they have such discussions, they discover that none of their children wants to be involved. In this situation, it is better to develop a strategy to get the business ready for sale at the best price; for example, a mini duediligence exercise could be carried out to make the business more saleready; (ii) an agreed business succession plan. ‘Buy in’ from all of the family members should then be sought; and (iii) how the family members work together to implement their succession plan. This may involve identifying the issues, values and vision of the family. Appropriate strategies can then be designed incorporating these points. (c) The individual’s personal estate planning and business succession planning should be kept separate but still need to be considered together. This may involve creating separate forums for family and business decisions and

conflict-management processes. (d) Good corporate governance, reporting and accountability mechanisms should be agreed and implemented. (e) The family needs to establish agreed rules. The rules may deal with: (i) the involvement and/or training of the next generation; (ii) what happens if a family member wants to leave the business or is not performing satisfactorily; [page 393] (iii) the dividend and reinvestment policies of the business; (iv) the remuneration policies of the business for members of the family who are actively involved in the business compared to those who are not; and (v) the philanthropic intentions of the family and the business. (f) Once this has been done, the family then need to engage advisers to legally document the agreed rules. This may be done through preparing wills and also enduring powers of attorney, potentially with one for business decisions and another for personal financial decisions. Other relevant documents may include a shareholders’ agreement, bespoke company constitutions, trust deeds and/or a family constitution. A family constitution is a document which specifies the relationship between the family members and the business. It sets out guidelines for resolution of issues, principles and practices on how the business is to be managed. However, it is not usually legally binding.

Superannuation 9.33 Assets held in superannuation (as for assets held in a trust) do not form part of an individual’s estate. Although a self-managed superannuation fund (SMSF) is unlikely to hold a social media or other business, it may, for example, own the premises from which the business operates. 9.34 Superannuation must be considered as part of the estate-planning process. Common issues include:

(a)

(b)

(c)

(d)

If the SMSF owns the premises from which the social media business operates, are there sufficient other liquid assets to pay out a deceased member’s benefit without forcing the sale of the property? If not, the individual may need to reconsider their superannuation strategy. Does the individual have a valid binding death benefit nomination (BDBN) in place to ensure that the superannuation benefit passes as intended on their death? Without a BDBN, the trustee will usually have discretion as to which beneficiary to pay the benefit to. This may not be the beneficiary that the individual intended. If a BDBN is in place, is it still valid? If a BDBN is non-lapsing, it will not usually need to be renewed every three years. If the BDBN is lapsing, it is necessary to consider whether to amend the trust deed to permit nonlapsing BDBNs. The deed may also need to be updated to ensure it complies with current superannuation legislation. A BDBN may need updating if the individual’s circumstances have changed; for example, if, because of divorce, the pension has gone into reversionary pension stage or because a beneficiary under the BDBN may no longer be a tax dependent. [page 394]

WHY IS SOCIAL-MEDIA ESTATE PLANNING NECESSARY? 9.35 Social media is increasingly becoming the normal way for individuals to communicate. In Australia, there are:5 (a) (b) (c) (d)

14 million Facebook users; 5 million Instagram users; 3.75 million LinkedIn users; and 2.8 million active Twitter users.

9.36 An online survey by Lonergran Research for the NSW Trustee and Guardian found that:6 (a) nine out of 10 Australians have a social media account; (b) 83 per cent have not discussed with their loved ones what they want to happen to their accounts when they die; and

(c) only 3 per cent of Australians who have a will have decided what to do with their social media assets and accounts after their death. 9.37 It is necessary to consider social-media estate planning for the following reasons: (a) The information may have emotional value. Many individuals no longer keep boxes of letters from loved ones and friends. They also do not keep hardcopy photographs of key life events. Instead, they communicate online and save photographs using social media. (b) Social media accounts and information can cause stress to an individual’s family after their death. For example, family members may be sent reminders for a deceased individual’s birthday. In some cases, they may be able to see negative comments about the individual or themselves. (c) The information may have financial value. The information may include digital photographs, a social media business, a social media domain name or a social media blog which generates a high volume of advertising revenue. A survey conducted by McAfee estimated the average value of digital assets to be over US$35,000.7 However, digital assets can be of no value if no one knows they exist. [page 395] (d) The information may contain private information which the deceased would not want other family members to know of; for example, it may reveal an affair they were having through Facebook or a dating website. The Ashley Madison hacking scandal provides a good example of how such private information on social media can get into the wrong hands and the distress that it can cause to families. An analogy can be drawn on the death of an individual.8 (e) The information may create a security risk. This is because it could be used to steal the individual’s identity; for example, a criminal could use the information to set up fake credit-card accounts in the name of the deceased. Such identity theft tends to be more likely to occur on incapacity or death of an individual when the individual is unable to find out it is going on and take steps to prevent it. Identity theft may also jeopardise digital assets and lead to a loss for the estate beneficiaries.

(f) It will make the job of the legal personal representative easier as it provides for a trusted individual to have access to online usernames and passwords in the event of an individual’s incapacity or death. Prudent individuals keep passwords secret — indeed, we are told not to write passwords down — which can cause problems if such accounts cannot then be accessed or even found. In addition, if the information cannot be decrypted it may be permanently unavailable.

WHAT HAPPENS TO SOCIAL MEDIA ON INCAPACITY OR DEATH? 9.38 In order to advise an individual concerning what happens to their social media on their incapacity or death, it is necessary to determine which law or laws properly apply to the information. This, in turn, depends on where the social media information exists. The information can exist locally on the individual’s digital device and/or in a social media cloud. Cloud-based socialmedia service providers will usually seek to include standard terms and conditions in their service agreement. However, these can vary significantly and, often, the user may not have read these, having simply clicked an ‘accept’ button. 9.39 The globalised nature of social media assets and accounts also means it may not be easy to determine the proper law which applies to the information; it can be that several laws may apply. In addition, only the rights to the social media information — rather than the information itself — vest in the individual’s legal personal representative. [page 396] 9.40 As an example, on their death, an individual may want to gift photographs which are viewable on social media. Whether they can do this in their will depends on where the photographs are stored: (a) If they are saved on the digital device (such as a digital photo frame or computer), the individual can gift the photographs by gifting the device. (b) If they are saved in a social media cloud (such as Flickr), the position is

more complex. The individual is unlikely to be able to gift the photographs in their will. As photographs are intangible property, they would appear to be governed by the law where the deceased was domiciled. However, if the storage of the photographs is governed by a social-media provider’s account terms and conditions, these may determine the proper law to apply and what happens to the information on the individual’s incapacity or death. 9.41 It is therefore necessary to investigate what information is stored on the devices and what is stored in social media clouds. However, if the deceased or incapacitated individual does not leave a list of social media accounts, the details stored on the device may be the only evidence to the existence of the information stored in a social media cloud. The legal personal representative must therefore investigate what information is stored on the devices. They may need to seek professional advice on how to access the devices and social-media cloud services. 9.42 If the information is stored in a social media cloud, the applicable terms and policies of the social media accounts must be determined to work out what rights and obligations are associated with the information. This is because although social media cloud services store digital information, the rights associated with the information are contractual rather than digital in nature. Such contractual rights pass automatically to the legal personal representative as part of the personal estate of the deceased. Professional advice may also be required at this stage. This is because even if the legal personal representative manages to find the accounts and passwords, the account policy may not allow the legal personal representative to access the account. 9.43 In terms of the legal personal representative’s duties when dealing with social media accounts, a comparison can be drawn with traditional memberships, such as football club memberships. In that case, the legal personal representative must consider the rules of the club and what they state is to happen to the individual’s membership on their incapacity or death. The legal personal representative has a similar duty in relation to social media accounts. However, as shown by the summary of common social media platforms (see [9.44]–[9.74], below), the rules can be very different, depending on the provider. This makes the legal personal representative’s investigative duty more difficult and time consuming. There is also the problem that social media platforms frequently amend their terms and conditions and policies.

[page 397] The following paragraphs therefore provide only a summary of the current position. This will likely change as technology and the law develops further regarding social media.

Facebook 9.44

Facebook allows action to be taken on the incapacity or death of a user.

9.45 On the incapacity of an individual, a family member or friend can request that the individual’s Facebook account be removed. The request must be supported by documents such as a power of attorney or court order. If the person’s condition is reversible, the account can be deactivated and not removed. It can then be reopened if or when the person recovers.9 However, it is possible Facebook may not agree to a request, especially if there is no or inadequate supporting documents. 9.46 Users can decide prior to their death whether they would like to have their account memorialised or permanently deleted.10 9.47 If users want their account memorialised, they can appoint a legacy contact to manage their account after they die. The legacy contact will have limited rights in relation to the account. 9.48 A memorialised account has the word ‘remembering’ shown next to the person’s name. Depending on the privacy settings, friends can share memories on the memorialised timeline. Content that the deceased individual shared (such as photographs and posts) stays on Facebook and cannot be deleted. It is visible to the audience it was shared with. However, memorialised profiles do not appear in public spaces, such as in suggestions for birthday reminders. No one can log into a memorialised account so this helps keep it secure. If the deceased added a legacy contact to their account, though, the legacy contact can change the person’s profile picture and cover photo. They can also write posts on their timeline and respond to new friend requests. If no legacy contact has been appointed, but the deceased appointed a ‘digital executor’ in their will, Facebook may allow that individual to have the same powers as a legacy contact. 9.49 Even if an account is permanently deleted, some of the things that a deceased member has done on Facebook are not stored in their account. For

example, a friend of the deceased may still have messages from the deceased and these are not deleted. It may also take up to 90 days to delete all of the things that the deceased has posted. However, during this time, the material [page 398] is inaccessible to other people using Facebook. In addition, copies of some material (eg, log records) may remain in Facebook’s database for technical reasons. 9.50 If the deceased did not make a decision before they died as to which option to choose, their friends and/or family can decide. When Facebook is made aware that a person has passed away, it is their standard policy to memorialise the account at the request of such individuals. The individual can submit a request online with certain information, including the deceased’s Facebook uniform resource locator (URL), date of death and an obituary. However, only verified immediate family members may request the removal of a deceased member’s account. 9.51 In terms of ownership of the information posted on Facebook, Facebook’s Statement of Rights and Responsibilities provides that an individual owns the information they post on Facebook. It provides that:11 You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition for content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

9.52 Since it is possible for an individual to direct their legacy contact (either in their will or in a separate letter of wishes) as to what they want to happen to their content and information, it would therefore appear possible for the individual to ask their legacy contact to make copies of certain photographs and gift these to named individuals. This possibility arises because a legacy contact is able to change the profile picture and cover photo of a deceased member’s account, and so would appear to have access to all of the deceased’s photographs posted on Facebook.12 However, Facebook’s terms and policies do not expressly state that this is possible.

LinkedIn 9.53 LinkedIn allows action to be taken on the death of a user. It does not have a specific policy concerning the incapacity of an individual. However, it is possible for someone to access and close the account of an individual who has lost capacity if the person has their username and password. That person [page 399] will then be able to access the individual’s privacy and settings and then close the account.13 Consideration should be given to whether such disclosure of the individual’s username and password may breach privacy legislation in the relevant jurisdictions. 9.54 On the death of an individual, LinkedIn offers the ability only to remove the profile of a deceased member and not to memorialise it. Once an account is removed, the deceased’s profile will be deleted. No one will be able to access the individual’s LinkedIn information, including their connections, recommendations and endorsements. However, internet search engines, such as Google, may still display the information temporarily due to the way they collect and update their search data. 9.55 Colleagues as well as the deceased’s family can request that the account be closed, provided that they are able to supply:14 (a) (b) (c) (d) (e) (f) (g)

the member’s name; the URL to their LinkedIn profile; details of their relationship to the member; the member’s email address; the date of death; a link to their obituary; and the name of the company where the individual most recently worked.

Twitter 9.56

Twitter allows only for a deceased user’s account to be deactivated. It

does not have a specific policy to cover incapacity of an individual. However, accounts may be permanently removed due to prolonged inactivity in excess of six months.15 It is also possible for someone to access and deactivate the account of an individual who has lost capacity if that person has the individual’s username and password. This can be done through the individual’s account settings.16 However, issues regarding disclosure of private information should be considered. 9.57 As regards death, Twitter will work with a legal personal representative or with a verified immediate family member of the deceased to have an account [page 400] deactivated.17 A request is made online. Once submitted, Twitter will email the person with instructions for providing more information, including information about the deceased, a copy of an identification document of the person acting on behalf of the deceased and a copy of the deceased’s death certificate. 9.58 Twitter is unable to provide account access to anyone other than the user, regardless of their relationship to the deceased. However, if requested by immediate family members and other authorised individuals, Twitter will remove images and/or videos of the deceased from when critical injury occurs to the moments before or after death. When reviewing such requests, Twitter considers public interest factors, such as the newsworthiness of the content. Twitter may also not be able to honour every request.

Google 9.59 Google has a program, Inactive Account Manager,18 which can deal with incapacity and death. In the event the account is left unattended for a certain chosen period, the individual’s nominated trusted contact (who may be their legal personal representative) is notified and given access to selected parts of the individual’s Google account. Inactive Account Manager allows the user to decide who should have access to the individual’s information and whether the user wants the account to be deleted. 9.60 Google also recognises that many people die without leaving clear instructions about how to manage their online accounts. Google will work with

immediate family members and legal personal representatives to close online accounts. In certain circumstances (which are not specified), Google may provide content from a deceased user’s account. However, Google is not able to provide passwords or other mechanisms that would enable anyone to log in to a user’s account. Copies of the death certificate and of an identification document for the person making the request must be provided.

YouTube and Gmail 9.61 YouTube and Gmail are owned by Google and operate as subsidiaries. They are therefore covered by the same policies as Google (as discussed at [9.59], above), including the program, Inactive Account Manager.19 [page 401]

Flickr and Yahoo! 9.62 Flickr and Yahoo! (which are both governed by Yahoo!’s terms) do not state what will happen in the event of a user’s incapacity. However, subject to issues regarding disclosure of private information being considered, it should be possible for someone to access and/or delete the account of an individual who has lost capacity if that person has the individual’s username and password.20 9.63 In order to close a Flickr or Yahoo! account on the death of a user, a copy of the user’s death certificate, the URL and screen name of the deceased must be provided. It appears that an account cannot be memorialised. The terms and conditions provide21 that there is no right of survivorship, no transferability and that any rights to the deceased’s identification or the contents within their account terminate upon death. Upon receipt of a copy of a death certificate, the account may be terminated and all contents in the account permanently deleted. Yahoo!’s policy is also that a deceased’s account cannot be accessed by their family or legal personal representative unless a court has ordered this. 9.64 This is concerning as an individual may have stored many personal photographs on Flickr and important emails on Yahoo! without saving them elsewhere. If the individual does not want to lose access to this material, and

subject to issues regarding disclosure of private information being considered, it would be prudent for the individual to leave their username and password with their legal personal representative. The legal personal representative can then hopefully access the individual’s account and save items, such as photographs — even though this is in apparent violation of Yahoo!’s policy.

Instagram 9.65 Instagram does not state what will happen in the event of a user’s incapacity. However, subject to issues regarding disclosure of private information being considered, it should be possible for someone to access and/or temporarily disable or delete the account of an individual who has lost capacity if that person has the individual’s username and password.22 9.66 As regards death, Instagram accounts can be memorialised by anyone who has known the deceased. This can be done by the person making a request and providing proof of death of the individual, such as a link to [page 402] an obituary or news article.23 Accounts can also be removed by immediate family members providing proof that they are an immediate family member. Such proof includes the deceased’s birth or death certificate or proof of authority under local law that the family member is the lawful legal personal representative. 9.67 Instagram tries to prevent references to memorialised accounts from appearing in ways that may be upsetting to the person’s friends and family. However, they cannot provide login information for a memorialised account. Memorialised accounts also cannot be changed in any way. This includes changes to likes, followers, tags, posts and comments. However, posts the deceased person shared (eg, photographs and videos) remain on Instagram and are visible to the shared audience.

iCloud

9.68 iCloud’s terms and conditions do not deal with incapacity of a user. However, they provide that an account is non-transferable and that any rights to the individual’s Apple ID or content within their account terminate upon their death.24 9.69 Upon receipt of a copy of a death certificate, the individual’s account may be terminated and all content deleted. Subject to issues regarding disclosure of private information being considered, if the individual does not want this to happen, it would be prudent for them to leave their Apple ID, Apple password and device passwords with their legal personal representative. The legal personal representative can then access the iCloud account and save photographs, videos and documents. 9.70 The deceased or incapacitated individual may forget to leave their Apple ID, Apple password and device passwords with someone and the family does not want the iCloud account deleted. In this situation, the legal personal representative may need to obtain a court order to access the device and iCloud account.25 9.71 The deceased or incapacitated individual may have an iCloud subscription service to increase their standard storage facility. The legal personal representative should also ensure that this is paid until they are ready for the account to be deleted. [page 403]

iTunes 9.72 iTunes’ terms and conditions do not deal with the death or incapacity of a user. However, they provide that the user cannot rent, lease, lend, sell, transfer, redistribute or sublicense the iTunes application and, if the user sells their Apple device to a third party, they must remove the application from it before doing so.26 This seems to imply that the licence is personal and that an individual’s iTunes account terminates (or at least becomes useless) on their death or incapacity. The ownership of the content of iTunes on death and an apparent dispute regarding this are discussed at [9.123], below. 9.73 Subject to issues regarding disclosure of private information being considered, an individual could leave their Apple ID and password with their

legal personal representative or a family member. The latter can then update the name, email address, password and payment details of the account, making it, in effect, a new account with all of the previously downloaded music still on it. 9.74 If a person has a two-step verification turned on by Apple (typically this is on the deceased’s iPhone or iPad), they should leave the passcode for their devices along with their Apple ID and password. If they do not, their legal personal representative may not be able to unlock or use the devices without a court order.27

LEGAL RESPONSE TO DATE 9.75 Few jurisdictions have passed legislation to expressly deal with socialmedia or other digital wealth after incapacity or death. In Australia, no legislation currently exists. 9.76 The situation elsewhere in the world is similar to Australia. This lack of legislative action may be due to the: (a) fact that legislators tend to lag behind technological developments. Therefore, by the time the legislators have drafted legislation in such a fastmoving area as social media, the technology has changed; (b) international nature of social media assets and accounts; and (c) fact that digital assets fit uncomfortably amongst traditional legal concepts of property due to their intangible nature and as they may change in form. Are they a form of intangible personal property or a form of intellectual property? [page 404] 9.77 This situation means that a global approach will likely be required by countries to deal with matters of intellectual property, estate administration, privacy law and ownership of digital assets, including social media assets and accounts. 9.78 The lack of legislative action explains why companies, such as Facebook, have had to create their own terms on how to deal with the death or

incapacity of a user. However, this lack of legislative clarity and the variation in social-media account policies makes social-media estate planning more difficult. In addition, not only is the law uncertain, but a user’s social media information may be stored on one or more computing devices located outside of Australia. The cloud-account provider may also be located in another different jurisdiction, which complicates matters further. 9.79 One of the exceptions is the United States, which has legislated in relation to what happens to digital assets and accounts after incapacity or death. The Uniform Fiduciary Access to Digital Assets Act (UFADAA) was approved on 16 July 2014 by the Uniform Law Commission. The purpose of the UFADAA is to deal the problem of lack of access, control or copies to and of digital assets and accounts by fiduciaries. It is recommended that the UFADAA is adopted across all US states. However, not all states have enacted it; Delaware is one of the few states that has.28 9.80 (1) (2) (3) (4)

The UFADAA governs four common types of fiduciaries:

personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees.

9.81 The UFADAA defers to an account holder’s privacy choices as expressed in a document (such as a will or trust) or online by an affirmative act separate from the general terms of the service agreement. Therefore, an account holder’s desire to keep certain social media accounts private will be honoured under the UFADAA.

HOW TO APPROACH SOCIAL-MEDIA ESTATE PLANNING 9.82 Social-media estate planning presents a number of challenges which traditional estate planning does not face. [page 405] 9.83

The social media arena is changing rapidly and it is difficult to predict

the future. It is clear that social media communications will increase, as will the number of account providers. However, there is a lack of legal conceptual understanding of the technical issues. It would have seemed absurd to be considering social-media estate planning only 10 years ago; now, it is essential and will become more so. The onus is on advisers to consider social-media estate planning and there will no doubt be cases where advisers will be held to be negligent for not doing so. An individual’s will must therefore be flexible and kept up to date, especially as digital information (unlike human beings) does not have an expiry date. 9.84 Social media is intangible so is easily overlooked by advisers let alone their clients. Many solicitors do not include references to social media assets and accounts in their documents and do not raise these issues with their clients. This may be partly due to social media assets not yet being a priority for most people, particularly older individuals. 9.85 The intangible and international nature of social media means that it can be difficult to determine the ‘proper law’. There may be conflicts as to which law applies. If the ability to transfer such information is restricted by the ‘proper law’ or by the account terms and conditions, then a provision in either an enduring power of attorney or a will dealing with such information and accounts may be unenforceable. 9.86 Individuals may be hesitant because of security concerns to write down their social media usernames and passwords in case these fall into the hands of the wrong person either during their lifetime or on their incapacity or death. They may also consider the hassle of constantly keeping such digital inventories up to date yet, at the same time, secure to be not worth the effort. Companies which offer such services to facilitate this process may also be subject to hacker attacks. However, most families do not even know which accounts their incapacitated or deceased relative had, let alone their login details. 9.87 Individuals may consider that they can easily and cheaply sort out some of their social-media estate planning affairs online using a homemade e-will. However, a comparison can be drawn to the traditional home made will and the problems that these can create. Such wills often fail to lead to a smooth transition of a deceased person’s assets. In Gray v Gray, Master Sanderson noted:29 Home made wills are a curse … There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent.

9.88 Despite the above, social-media estate planning is an extension of traditional estate planning. [page 406] 9.89 Advisers should raise the issue of ownership of social media assets and accounts with clients. The issue can be raised in an initial conference or can conveniently be raised with clients by way of an estate-planning questionnaire or fact-finder document that they are asked to complete. The information provided by the client will form the basis of the initial general advice. 9.90 Advisers need to be familiar with what can and cannot be done under the different social-media user agreements in the event of incapacity or death. This will include keeping up to date with new forms of social media as well as any relevant changes to terms of existing social-media user agreements. Advice should be given to clients on what happens to an individual’s social media profile on their incapacity or death and the benefits of dealing with social media assets and accounts in their estate plan. 9.91 Clients wishing to deal with their social media in their estate plan should be advised to prepare a detailed inventory. It must identify the location of social media assets and accounts, usernames, passwords and security questions and answers. This will facilitate access and action, if and when required. 9.92 There are numerous commercial service providers offering online inventories or registers where usernames and passwords can be saved; two examples of such businesses are SecureSafe and Zoho Vault.30 However, clients can easily and simply prepare their own digital inventory document or prepare a hardcopy document. 9.93 Advisers need to encourage clients to regularly review and update their inventory as their social media profile and access details change. 9.94 Clients need to be advised about the safe and secure storage of their social media inventory to minimise the risk of identity theft or other unlawful dealings. Secure places include a bank deposit box, a lawyer’s safe-custody room or with a commercial service provider. 9.95 The secure storage of the inventory can also be enhanced by separating usernames and passwords and storing them at different locations. Alternatively,

the inventory can be encrypted and the access details stored at a separate secure location. Clients can also back up the inventory to a CD, DVD or flash drive. The disc or drive can be kept in a secure location. 9.96 The secure storage of the social media inventory needs to be balanced with other considerations, such as the anticipated continuity of a commercial service provider and easy access for updating purposes. 9.97 As with other important documents, clients need to communicate the location of their social media inventory to trusted family members and/or advisers. This will facilitate easy and quick access by the legal personal representative at the required time. [page 407] 9.98 The appointment of a legal personal representative (attorney/manager; see [9.8], above) in the event of incapacity is an important consideration. The appointment by naming agents to manage assets and financial affairs in the event of incapacity is best made in the client’s enduring power of attorney. The attorneys to be appointed are usually trusted family members/advisers of the client. Statutory trustees or trustee companies (such as the NSW Trustee and Guardian; Perpetual Trustees; or Equity Trustees) can also be appointed to act as an individual’s legal personal representative where the appointment of family members/advisers may not be appropriate. A client with a significant social media profile and social media assets may need to appoint an expert. This is to ensure that, as far as possible, the profile and assets are properly protected and managed. 9.99 The next consideration is authorising access by the client’s legal personal representative. This authority assumes access is permitted by the terms of any applicable social-media user agreements. 9.100 Permitted access by the legal personal representative in the event of incapacity is best authorised through specific enabling provisions in the client’s enduring power of attorney. 9.101 The provisions can incorporate social media assets and accounts as part of a wider definition of digital assets, devices and accounts. For example, the enduring power of attorney can include definitions such as:

‘Digital assets’ means files, including but not limited to, emails, documents, images, audio, video, and similar digital files which currently exists or may exist as technology develops or such comparable items as technology develops, stored on digital devices, including, but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones and any similar digital device which currently exists or may exist as technology develops or such comparable items as technology develops, regardless of the ownership of the physical device upon which the digital asset is stored. and ‘Digital accounts’ means, but is not limited to, email accounts, software licenses, social network accounts, social media accounts, file-sharing accounts, financial management accounts, bank accounts, domain registration accounts, domain name service accounts, web-hosting accounts, taxpreparation service accounts, online stores, affiliate programs, other online accounts which currently exist or may exist as technology develops or such comparable items as technology develops.

9.102 The legal personal representative will then be given specific power to manage and deal with those assets and accounts. For example, the following enabling provisions can be included: My attorneys may access, handle, manage, sell, lease, exchange or otherwise dispose of any digital assets and/or digital accounts that I own fully or partly,

[page 408] directly or indirectly, or have a licence or agreement to access, handle, manage, sell, lease, exchange or otherwise dispose of. and My attorneys may carry on any business holding digital assets and/or digital accounts which I own directly or indirectly.

9.103 The enduring power of attorney can be supported by a detailed letter of wishes or directions from the client. This document can assist with locating social media assets and accounts and provide wishes/instructions on dealing with them. A provision similar to the following can be included: My attorneys should note that on my incapacity there may be in force a letter of wishes in relation to my digital assets and/or digital accounts and, as a result, I direct my attorneys to become familiar with and do all in their power to ensure that the terms of the letter of wishes is implemented.

9.104 There may be limitations with the operation of an Australian enduring power of attorney and supporting letter of wishes or directions. The ability of a legal personal representative to access an individual’s social media assets and accounts may, in fact, be determined by the terms of the user agreement. It may also be determined by the law of any overseas jurisdiction that applies to the

relevant social media asset or account.31 9.105 It is still prudent to include access provisions for the legal personal representative in an Australian enduring power of attorney even though the provisions may be unenforceable. Including access provisions will provide evidence of the clear intentions of the incapacitated individual in any required overseas court/tribunal application. The clear written intentions of the individual may also induce social-media service providers to accede to the request of an Australian legal personal representative.32 9.106 If a client does not sign an enduring power of attorney document and loses capacity, the legal personal representative (manager) of the client will be determined by the applicable law. Statutory law and general law in Australia allow courts/tribunals to appoint an authorised manager for an incapable individual to manage that individual’s assets and financial affairs.33 Statutory trustees or trustee companies can be appointed as authorised [page 409] managers, with agreed individuals undertaking the day-to-day management under their supervision and guidance. In any application for the appointment of an authorised manager, it will need to be established by evidence that the appointment is necessary and in the best interests of the incapable individual. 9.107 A court- or tribunal-authorised legal personal representative will face the same issues as the appointed legal personal representative. The major difference will be the source of the authority and powers of the court-/tribunalauthorised legal personal representative. They will not be found in one document. They will be found in the court/tribunal orders and authorities, as well as in the applicable statutory law and general law. 9.108 The incapacity of an individual may also impact on that person’s role in existing companies, trusts and businesses. For example, the person may be involved with a social media business or a traditional business that is heavily reliant on its social media profile. As discussed earlier (see [9.9]–[9.34], above), prudent planning involves reviewing these entities and structures to ensure a viable business succession and the transfer of key roles (such as the power of appointment) in the event of incapacity. 9.109

The appointment of a legal personal representative in the event of

death has similar considerations to the appointment in the event of incapacity. 9.110 Prudent planning would involve preparation of a will for the client. It would also require a review of the client’s position in relation to existing companies, trusts and businesses as well as superannuation. 9.111 On the death of an individual, that person’s nominated legal personal representative has a duty to identify, secure and realise/transfer assets (which will include social media assets) in accordance with the individual’s will. 9.112 The process of identifying and securing an individual’s social media assets and accounts will be made easier if the individual has prepared a detailed inventory that has been regularly reviewed and updated. The inventory needs to be kept in a secure place. Its existence should be communicated to trusted family members/advisers. The inventory should not be included in the will as the will becomes a public document if and when probate is granted. 9.113 As with incapacity, the appointment of the legal personal representative will be an important consideration. The appointment is usually made in the client’s will. The legal personal representative will need to access the deceased’s social media assets and accounts. If a detailed inventory has not been prepared or access is not available, the legal personal representative will need to have the expertise to overcome those hurdles or at least understand the need to obtain expert assistance. 9.114 Statutory trustees or trustee companies can be appointed legal personal representative in the client’s will. This may be appropriate where there is conflict in the family or where particular expertise is required (such as [page 410] dealing with social media assets or a social media business). There will be fees and commission payable for their looking after a deceased estate. 9.115 The advantages with appointing statutory trustees or trustee companies include that they will continue to exist. This will be the case even were they to amalgamate, merge or change their name, because legislation will ensure their continuity in some shape or form. They can undertake all the work required to administer an estate, such as legal, taxation and investment. Also, as they are in the business of providing trustee services, the law imposes a higher

duty of care on them. 9.116 Access by the deceased’s legal personal representative can be facilitated by specific enabling provisions in the deceased’s will. Such provisions will be subject to the relevant applicable law and the terms of the terms of any applicable social-media user agreements. Despite that uncertainty, it is still considered prudent to insert specific provisions in the will so that the deceased’s testamentary intentions are clear. 9.117 Definitions of ‘digital assets’ and ‘digital accounts’ similar to the definitions referred to at [9.101], above, can be included in the will. 9.118 The normal, broad administration powers given to legal personal representatives in a will are probably enough to authorise dealing with the deceased’s social media assets. However, it can only assist to include specific provisions in the will. These will make the deceased’s testamentary intentions clear. They may also induce social-media service providers to cooperate with the legal personal representative. 9.119 Powers similar to the following can be included in the will for legal personal representatives: (a) access, handle, manage, sell, lease, exchange or otherwise dispose of any digital assets and/or digital accounts that I own fully or partly, or have a licence or agreement to access, handle, manage, sell, lease, exchange or otherwise dispose of; and (b) carry on any business holding digital assets and/or digital accounts which my estate owns.

9.120 Specific gifts of social media assets in the will require careful consideration and drafting. For example, photographs saved on a digital device, such as a computer or digital photo frame, can be the subject of a specific gift. Prudent drafting would need to cover the possibility that the particular digital device may change between the date of the will and the date of death. 9.121 The position is more complicated for photographs stored with a social-media service provider, such as Flickr. The individual is unlikely to be able to gift the photographs in their will. This is because the photographs are intangible property. They are governed by the law where the deceased was domiciled. If the storage of the photographs is regulated by a social-media [page 411]

user agreement, the proper law may be different depending on the terms of the agreement. Such social media accounts are usually only a bundle of contractual rights, so normally the contract and/or account policy will determine what happens to the information on the individual’s death. 9.122 The will can be supported by a separate detailed statement of wishes or directions from the individual. The statement can be referred to in the will with a direction that the legal personal representatives do their best to ensure the wishes/directions are implemented. This document can assist with locating social media assets and accounts and provide wishes/instructions on dealing with them. The document may assist in overcoming jurisdictional problems with the correct applicable law. 9.123 The issues surrounding social-media estate planning are best exemplified by the media coverage surrounding actor Bruce Willis and iTunes34 (even though iTunes is not considered to be social media). It appears there was an unsubstantiated rumour that Willis was considering suing Apple. Willis was said to be angry that he could not leave his valuable iTunes music collection to his three daughters after his death. 9.124 The subsequent media coverage was relevant in that it focussed on digital assets that are not owned by the individual (which includes social media assets and accounts). In the Willis and iTunes coverage, solutions were suggested that might overcome some of the issues for Willis. 9.125 It was suggested that Willis could use Apple’s sharing service. After acquiring and downloading the music, it would allow Willis to authorise up to five other computers to play the music. The sharing service only applies to computers and not to iPhones, iPads, iPods or Apple TV. 9.126 Another suggested solution was for Willis to leave his computer and password to his daughters. They could then listen to his iTunes music after his death. This is technically likely to be a breach of the user agreement with iTunes but it is a practical solution that some people may use.35 9.127 A person may also have significant social media assets in different jurisdictions. Alternatively, the person may own a substantial social media business or a business heavily reliant on social media that operates in different jurisdictions. In these circumstances, it may be prudent for the person to consider having wills in different jurisdictions to facilitate access and dealings. 9.128

Another estate plan option for a person with significant social media

assets may be to establish a discretionary trust to hold and deal with those assets. The appointment of the trustee will have similar considerations to the [page 412] appointment of a legal personal representative. It is an expensive option that would only be warranted if there were significant wealth attached to the social media assets. The advantages of this option include the ease with which the assets and information can be accessed by and dealt with by the trustee. It will be a simpler process than having to establish the proper authority of a legal personal representative. 9.129 The death of an individual may also impact on that person’s role in existing companies, trusts and businesses. For example, the person may be involved with a social media business or a traditional business that is heavily reliant on its social media profile. As discussed earlier (see [9.9]–[9.34], above), prudent planning involves reviewing these entities and structures to ensure a viable business succession and the transfer of key roles (such as the power of appointment).

DEALING WITH SOCIAL MEDIA AFTER DEATH 9.130 A legal personal representative (executor) has duties and responsibilities after the death of the individual who appointed them. A legal personal representative (administrator) may agree to take on the role because of the unwillingness, incapacity or death of the named executor. 9.131 The duties and responsibilities of the legal personal representative include formally proving the will as the deceased’s last will where a court grant is required to administer the estate. The legal personal representative must identify and get in the assets of the estate. They must also pay debts, funeral and testamentary expenses and administer the estate in accordance with the deceased’s will. 9.132 The deceased’s social media profile may be relevant to the legal personal representative’s application to the court for a grant of representation to administer the estate. For example, in some cases, a grant of representation will need to be obtained in an estate on the presumption of the death of a person

missing presumed dead. 9.133 The evidence usually required by the court in presumption of death applications for a grant is the failure of the missing person to access bank accounts over a long period of time. In the digital age, appropriate evidence in support of such applications may be the failure of the missing person to access social media where they had an active social media profile before their disappearance. 9.134 An important part of the probate and estate-administration process is identifying and securing the assets of the estate. This task will be made easier if the individual has prudently planned their affairs because the will and other estate-plan documents will guide the legal personal representative. [page 413] 9.135 An effective estate plan will have a carefully prepared and reasonably current inventory detailing digital assets such as social media assets and accounts. The inventory will accompany the will but not be part of it. The will itself will have definitions that include social media assets and will give the legal personal representative power to deal with those assets. Ideally, there will also be a separate statement of wishes or directions that assist with locating those assets and what should be done with them. 9.136 A review of the will and any other related documents may reveal no estate plan or an inadequate plan. In this situation, the legal personal representative will need to be advised about the issues and risks associated with not properly considering the deceased’s social media. After consultation with any relevant estate beneficiaries, the legal personal representative may decide not to pursue the issue of social media and other digital assets. The advice given and the decision of the legal personal representative should be confirmed in writing. 9.137 Where the issue of the deceased’s social media assets and profile is important to family members and/or relevant beneficiaries, the work of the legal personal representative becomes more onerous. 9.138 In the absence of proper planning, advisers and legal representatives will need to work together to prepare an inventory that identifies social media assets and accounts. The work may include attempting to access the deceased’s computer and other digital devices to see if relevant information can be

obtained. It is possible that accessing these devices may also reveal an informal digital will or other document purporting to embody the testamentary intentions of the deceased. Enquiries may need to be made of family, friends and work colleagues of the deceased. It may also be necessary to obtain the advice and assistance of a person with the appropriate technical expertise to access and obtain any relevant information or documents. 9.139 Once it is clear what information and documents are available, the next step is to review that information and ascertain what social-media user agreements were entered into by the deceased. Advisers will need to be generally aware of the terms of those agreements and what action can be taken by the legal personal representative after death. 9.140 Taking action may prove problematic because of the uncertain legal position. Social media has evolved and developed at a rapid pace. There will be a delay before legislation and the general case law remove that uncertainty and comfortably accommodate social media. In the meantime, legal personal representatives can only take action that is cost-effective and permitted by the social-media service providers. 9.141 There are commercial organisations that will assist legal personal representatives to deal with a deceased person’s social media profile. One such organisation is a business called eClosure; on payment of a required fee, [page 414] eClosure can assist with locating and closing the deceased’s social media accounts.36 9.142 In the absence of an effective estate plan, advisers can still have the legal personal representative take a simple step with minimal cost. The legal personal representative can sign a general authority and direction to deal with the deceased’s social media accounts. The signed authority and any other supporting documents duly authenticated by a public notary in Australia may assist in dealing with some accounts. However, these will help only if any social media accounts can be located. 9.143 There are other steps which may need to be taken in the administration on the estate. Action may be needed to carry on any social media business or other business operated by the deceased or which the deceased had

an interest in at the date of their death. Liabilities relating to that business and the estate (eg, taxation liabilities) will need to be ascertained and paid in order to avoid problems or additional expense. 9.144 The legal personal representative may need to take action to protect the deceased’s privacy by preventing access to the deceased’s social media accounts by unauthorised people. Passwords may need to be changed. Accounts may need to be closed, deactivated or memorialised (where possible). 9.145 The terms of the deceased’s will need to be carefully considered to ensure any specific gifts of social media assets and information are capable of being actioned. All estate liabilities need to be ascertained, provided for or paid. The legal personal representative must then distribute the assets and transfer the information in accordance with the terms of the will.37 9.146 The estate-administration process may be affected by jurisdictional issues, with social media and the internet having a global reach. The legal personal representative may need to deal with social media assets and accounts overseas because, for example, these have significant emotional or financial value. In these situations, the legal personal representative may need to reseal the Australian grant overseas (if possible) or obtain another grant in the overseas jurisdiction to obtain the required legal authority to deal with the social media assets and accounts.

SOCIAL MEDIA DISPUTES AFTER DEATH 9.147 The digital age and the increasing use of social media have led to disputes relating to social media after the death of an individual. The pervasive nature of social media is expected to lead to an increase in the number of disputes before the courts. The types of disputes will vary. They will include, [page 415] for example, the legal personal representative or family members seeking access to a deceased person’s photographs or their Facebook profile for emotional or legal purposes. 9.148

There has been a lack of legislative intervention to date to clarify

uncertain issues relating to social media, such as the proper law to apply, privacy, ownership and access. The development of general case law will help clarify some issues and establish parameters in which social media operates. However, the problem with relying only on case law developments is that it will be a slow and piecemeal process. 9.149 The recent Canadian case of Nova Scotia (Public Safety) v Lee38 involved the misuse of social media in the context of a dispute surrounding a deceased estate. 9.150 A dispute arose between a brother (Lee) and a sister (Murray) in relation to their mother’s estate. Prior to the mother’s death from cancer, Murray (a nurse) and her family moved in with her mother to look after her. The mother died on 8 June 2014 and Murray was the sole beneficiary under her mother’s last will. 9.151 Upon learning that their mother had left everything to Murray, Lee began abusing Murray on social media. Lee initially sent Murray an abusive text message and accused her of elder abuse, fraud and breach of trust. This was followed by a number of posts by Lee on Facebook. On 9 August 2014, Lee posted on Facebook that Murray, who was their mother’s carer, took their mother to the offices of a lawyer just before the mother died from brain tumours. The post went on to say that Murray had their mother sign over everything she owned to Murray.39 9.152 Lee obviously had concerns about the validity of their mother’s last will. However, the court noted there were legal options available to Lee in relation to those concerns. The court dealt with the issue under existing legislation aimed at preventing cyber bullying. An order was made prohibiting Lee from engaging in cyber bullying of or communication with Murray.40 9.153 It is not difficult to imagine that the above scenario could happen in relation to a deceased estate in Australia. If the estate was also subject to family provision litigation in Australia, the misuse of social media could be a relevant matter for the court in considering a family provision claim. In all Australian jurisdictions, the character and conduct of the person making the claim or, in some jurisdictions, the character and conduct of any other person, may be a relevant matter. The court may have regard to that conduct [page 416]

in determining whether to make a family provision order.41 The poor conduct by the applicant for family provision via the misuse of social media could lead a court to limit or make no order for that applicant’s provision. 9.154 A social media dispute also arose in the estate of the model, Sahar Daftary. In 2008, Daftary died after falling from the twelfth floor of the apartment building in Manchester, England, where her former boyfriend lived. After the death, there was the customary coronial inquest to determine the cause of death and the circumstances surrounding the death. 9.155 The executors of the estate sought access by way of subpoena to Daftary’s Facebook account and records. The executors disputed the belief that Daftary committed suicide. They believed the Facebook records would provide evidence for the coronial inquest of Daftary’s state of mind in the days leading up to her death. 9.156 In the US court, Facebook moved to quash the civil subpoena on the grounds that it violated US privacy-type legislation. In releasing the information, Facebook submitted it could be subject to penalties for breaching the relevant US legislation. 9.157 The US court granted Facebook’s motion to quash the subpoena. The court also held that it lacked jurisdiction to address the issue of whether the executors could consent on behalf of Daftary so that Facebook could disclose the records voluntarily. The court also stated that Facebook could itself conclude that the executors had the required standing to consent on the deceased’s behalf and voluntarily provide the requested information.42 9.158 There was another US case involving social media and suicide. The parents of 21-year-old man had an emotional need to understand the reasons behind their son’s suicide. They sought court orders against Google and Facebook.43 9.159 It is expected that a deceased person’s social media profile and records will be relevant to disputed estates in Australia. This will include suicide cases similar to those referred to above. It may be important not only for emotional reasons but also for life-insurance claims to establish that suicide was not the cause of death. [page 417]

FUTURE DEVELOPMENTS 9.160 It always takes some time before the existing legal structures (legislation and general case law) develop to take into account new forms of wealth and asset ownership. This will certainly be the case with social media assets and other digital assets. 9.161 The present uncertainty surrounding the application of the proper law to apply to social media assets will need to be addressed in a uniform way across different jurisdictions. In Australia, it would be ideal if the state and Commonwealth law reform commissions were to conduct a review. The review would focus on the legal impediments to the dealing with or disposition of an individual’s social media assets and accounts upon incapacity or death. Recommendations to overcome the legal impediments could be developed as a result of that review. 9.162 •

•

Recommendations in Australia could include:

the development of consistent policies by social-media service providers (perhaps based on a cooperative global approach) to deal with incapacity and death; and clear recognition of the legal right of an individual’s nominated legal personal representative to deal with social media assets and accounts.

9.163 Recommendations based on a review would be a useful starting point in clarifying the present uncertainty. It is essential that legislators recognise the problem and have the political support and necessary resources to attempt to overcome the uncertainty. In the absence of political will and devoted resources, social media assets and accounts will continue to be dealt with in a slow and haphazard way within the existing legal structures. This will only make prudent estate planning by individuals more difficult and expensive.

[page 418]

PRACTITIONER TIPS Best-practice checklist for social-media estate planning and succession planning 1. Consider the individual’s existing estate-planning arrangements and documents to establish the current position. An individual who has an interest in a social media business or a business connected with social media will have additional documents and issues to consider. 2. Ask the individual to provide a detailed inventory of their social media assets and accounts, together with details of their other assets, liabilities and wealth structures. This inventory and information should be kept current and in a safe place. 3. Ascertain the individual’s intentions as regards their: • social-media estate planning; • general estate planning; and • business succession planning. 4. Understand the family dynamics and issues to establish the current views and feelings of the individual and their children (if any). This should help minimise the potential for legal disputes before and after death. 5. Conduct a thorough investigation and verify everything that the individual has provided. This should include considering what happens to their social media assets and accounts on their incapacity and death. 6. Review any legal structures holding social media businesses and/or other assets. The individual’s estate planning needs to work with the structure for effective succession. A detailed review of any trust deeds, company constitutions, shareholder and partnership agreements is required. This should include considering whether the documents have satisfactory provisions in them to deal with social media assets, accounts and businesses. 7. Discuss with the individual any issues highlighted by the investigation and the review of legal structures, and provide recommendations to resolve these. 8. Agree the relevant strategy with the individual and any other family members involved. 9. Prepare appropriate legal documents to reflect the individual’s intentions, agreed strategy and the current legal position. These may include: • wills which include provisions that clearly authorise the executors to access, deal with and manage an individual’s social media assets and accounts; • enduring powers of attorney to deal with financial decisions in the event of a loss of capacity. These should include terms to deal with social media assets and accounts; • letters of wishes regarding social media assets and accounts; • superannuation binding death benefit nominations; [page 419]

•

business-succession documents; for example, a shareholders’ agreement and a family constitution; • amending trust deeds and company constitutions to implement any recommendations; and • documents to incorporate new entities, transfer shares, sever joint tenancies and action any other recommendations. 10. Arrange a meeting with the individual to carefully explain the legal documents to them and to arrange signing. 11. Finalise documentation review and retention. This will involve obtaining copies and originals of all relevant documents and arranging for secure storage of original documents. 12. Arrange a family meeting (if appropriate) to explain the arrangements and documents to the attendees. This mitigates against the chance of disputes arising in the future. 13. Conduct reviews regularly (at least every three years), on the occurrence of significant life events (such as the birth of a child or receipt of a significant inheritance) and on any substantial changes in the individual’s wealth structure.

1.

We refer to ‘enduring power of attorney’. This is the name used in the Australian Capital Territory, New South Wales, Queensland, Victoria and Western Australia. See Powers of Attorney Act 2006 (ACT) s 8; Powers of Attorney Act 2003 (NSW) s 19(1); Powers of Attorney Act 1998 (Qld) s 32; Powers of Attorney Act 2014 (Vic) s 22; and Guardianship and Administration Act 1990 (WA) s 104. In Tasmania, these tools are called ‘general enduring powers of attorney’ or ‘particular enduring powers of attorney’. See Powers of Attorney Act 2000 (Tas) ss 30 and 31. In the Northern Territory, laws allowing for enduring powers of attorney were repealed in 2014. Instead, an individual can prepare an advance personal plan to cover health, financial and lifestyle decisions; see Advance Personal Planning Act 2013 (NT). 2. Income Tax Assessment Act 1936 (Cth) s 102AG. 3. Income Tax Assessment Act 1997 (Cth) Div 128. 4. Australian Financial Review, ‘Only 3% of Family Businesses Make the Fourth Generation: Here Are 4 Essentials to Getting There’, , accessed 8 January 2016. 5. D Cowling, ‘Social Media Statistics Australia — October 2015’, SocialMediaNews.com.au, 1 November 2015, available at , accessed 30 November 2015. 6. J Southward, ‘Death and Your Digital Data’ (2015) Law Society Journal of NSW April 2015 38 at 39. 7. R Siciliano, ‘How Do Your Digital Assets Compare?’, McAfee Blog Central, 14 May 2013, available at: , accessed 30 November 2015. 8. L Carne, ‘“It Wasn’t Me!” — Ashley Madison Cheaters Named in Hacking Scandal Scramble to Save their Reputations’, The Daily Telegraph, 21 August 2015, available at , accessed 11 January 2016. 9. Facebook, ‘Account Removal Request for Someone Sick, Injured or Otherwise Incapacitated’, , accessed 8 January 2016. 10. Facebook, ‘What Will Happen to My Account if I Pass Away?’, , accessed 30 November 2015. 11. Facebook, ‘Statement of Rights and Responsibilities’, , accessed 30 November 2015.

12. Facebook, ‘I’m a Legacy Contact. How Do I Manage a Memorialized Profile?’, , accessed 18 January 2016. 13. LinkedIn, ‘Closing Your Account’, , accessed 8 January 2016. 14. LinkedIn, ‘Deceased LinkedIn Member — Removing Profile’, , accessed 30 November 2015. 15. Twitter, ‘Inactive Account Policy’, , accessed 8 January 2016. 16. Twitter, ‘Deactivating Your Account’, , accessed 8 January 2016. 17. Twitter, ‘Contacting Twitter about a Deceased User or Media Concerning a Deceased Family Member’, , accessed 30 November 2015. 18. Google, ‘About Inactive Account Manager’, ; Google, ‘Choose Privacy Settings that are Right for You’, , accessed 8 January 2016. 19. Google, ‘Products’, ; Google, ‘Submit a Request Regarding a Deceased User’s Account’, , accessed 8 January 2016. 20. Yahoo!, login page, , accessed 8 January 2016. 21. Yahoo!, ‘Yahoo7 Terms of Service’, , accessed 30 November 2015. 22. Instagram, ‘Delete Your Account’, , accessed 8 January 2016. 23. Instagram, ‘How Do I Report a Deceased Person’s Account on Instagram?’, , accessed 30 November 2015. 24. Apple, ‘iCloud Terms and Conditions’, , accessed 8 January 2016. 25. N Donovan and K Core, ‘Apple Security Rules Leave Inherited iPad Useless, Say Sons’, BBC News, 5 March 2014, available at , accessed 8 January 2016. 26. Apple, ‘Terms and Conditions’, , accessed 8 January 2016. 27. L Hattersley, ‘How to Access an iTunes Account after Death; Recover Your Loved-Ones Music, Movies and Apps’, Macworld, 18 March 2014, available at , accessed 8 January 2016. 28. Decedents’ Estates and Fiduciary Relations Part V Chapter 50 — Fiduciary Access to Digital Assets and Digital Accounts, , accessed 30 November 2015. 29. Gray v Gray [2013] WASC 387. 30. B Castell, ‘Digital Assets and Estate Planning — Life and Death in the Digital Age’ (2014) 17 Retirement & Estate Planning Bulletin 34 at 36. 31. G W Beyer, ‘Estate Planning in the Digital Age’ (2013) Texas Tech University School of Law 1 at 6–12; K Martin, ‘How to Deal with Digital Estates in Estate Planning and Estate Administration’ (2015) 79 Wills & Probate Bulletin 3 at 4–6. 32. Above. 33. See Guardianship and Management of Property Act 1991 (ACT) s 8; NSW Trustee and Guardian Act 2009 (NSW) s 41; Aged and Infirm Persons’ Property Act (NT) s 11; Guardianship and Administration Act 2000 (Qld) s 8; Guardianship and Administration Act 1993 (SA) s 35; Guardianship and Administration Act 1995 (Tas) s 51; Guardianship and Administration Act 1986

(Vic) s 46; Guardianship and Administration Act 1990 (WA) s 64. 34. M Bowman, ‘Dear Bruce Willis: Here’s How to Leave your iTunes Collection to your Kids’, Business Insider, 13 September 2012, available at , accessed 7 January 2016. 35. Above. 36. eClosure, , accessed 11 January 2016. 37. Martin, above, n 31, p 6. 38. 2015 NSSC 71, Supreme Court of Nova Scotia. 39. Above, at [7] and [11]. 40. Above, n 38, at [3] and [32]. 41. See Family Provision Act 1969 (ACT) s 8(3)(a) and (k); Succession Act 2006 (NSW) s 60(2)(m) and (n); Family Provision Act (NT) s 8(3); Succession Act 1981 (Qld) s 41(2)(c); Inheritance (Family Provision) Act 1972 (SA) s 7(3); Testator’s Family Maintenance Act 1912 (Tas) s 8(1); Administration and Probate Act 1958 (Vic) s 91A(k); Family Provision Act 1972 (WA) s 6(3). 42. In re Facebook, Inc 923 F.Supp. 1204 (2013); N Cahn, ‘Probate Law Meets the Digital Age’ (2014) 67 Vanderbilt Law Review 1697 at 1717–18. 43. Beyer, above, n 31, p 18.

Index References are to paragraphs

A ACCC see Australian Competition and Consumer Commission (ACCC) ACL see Australian Consumer Law (ACL) advertising advertising and/or marketing communication, meaning …. 5.55 Australian Competition and Consumer Commission v TPG Internet Pty Ltd …. 5.96–5.99 brand owner’s Facebook page …. 5.54 comments on Facebook page as advertisement …. 5.65, 5.66 compliance with sites’ terms and conditions …. 5.122–5.125 Diageo Australia Ltd decision …. 5.53–5.66 dominant message …. 5.96–5.99 Facebook, minors and advertising standards …. 5.65, 5.66 anonymity see also identity identifying anonymous users …. 7.8–7.11 impersonation …. 1.50 litigation proxy servers …. 7.26 ‘whois’ search …. 7.22 overview …. 1.49 plaintiff…. 4.82, 4.83, 4.85, 4.86 preliminary discovery …. 4.78 court rules …. 4.81 tracing identity United Kingdom Applause Store case …. 4.79, 4.80

proceedings against ‘persons unknown’ …. 4.84 antitrust laws ACCC see Australian Competition and Consumer Commission (ACCC) Asia-Pacific region …. 5.135 legal framework bid rigging …. 5.156 cartel conduct see cartel conduct competitors, definition …. 5.140, 5.141 customer allocation …. 5.156 market definition …. 5.138, 5.139 misuse of market power …. 5.157, 5.158 penalties …. 5.170, 5.171 objective …. 5.136, 5.137 output restriction …. 5.156 price fixing …. 5.153–5.155 overview …. 5.134, 5.135 penalties …. 5.170, 5.171 purpose …. 5.134 social media …. 5.159, 5.160 adapting laws to …. 5.159 conduct involving competitors anti-competitive risks …. 5.161, 5.162 ‘concerted practices’ (European concept) …. 5.164–5.166 conduct amounts to ‘understanding’ …. 5.162, 5.163 price leadership …. 5.161 price signalling …. 5.161 penalties …. 5.170, 5.171 unilateral conduct misuse of market power …. 5.167–5.169 Apple Bruce Willis’s iTunes library bequest trouble …. 9.123–9.126 death or incapacity iCloud …. 9.68–9.71 iTunes …. 9.72–9.74 Australian Association of National Advertisers Code of Ethics advertising and/or marketing communication, meaning …. 5.55 brand owner’s Facebook page …. 5.54 Diageo Australia Ltd decision …. 5.53–5.66 Australian Competition and Consumer Commission (ACCC)

education, advice and persuasion …. 5.174 enforcement powers …. 5.182, 5.196 court proceedings …. 5.195–5.197 dawn raids …. 5.184 infringement notices …. 5.191–5.193, 5.197 investigation powers …. 5.183 public warning notices …. 5.194 substantiation notice …. 5.185–5.190, 5.196 formation …. 5.172 function …. 5.172 overview …. 1.92–1.94 regulators, other jurisdictions …. 1.77, 1.78, 5.198 European Commission …. 5.207 UK Competition and Markets Authority (UK CMA) …. 5.208 US Federal Trade Commission …. 5.199, 5.200 role …. 5.173 social media guidelines …. 5.175–5.181 business obligations …. 5.219, 5.220 structure …. 5.172 Australian Consumer Law (ACL) ACCC see Australian Competition and Consumer Commission (ACCC) antitrust laws see antitrust laws background …. 5.16 industries, applicable …. 5.17 legal framework …. 5.20, 5.21 misleading or deceptive conduct and representations see misleading or deceptive conduct and representations objectives …. 5.18, 5.19 overview …. 5.10, 5.15 pricing display contraventions see pricing prohibitions see misleading or deceptive conduct and representations social media application …. 5.43 misleading or deceptive conduct and representations see misleading or deceptive conduct and representations Australian Privacy Principles (APPs) …. 3.169, 3.170 anonymity and pseudonymity (APP2) …. 3.172 APP entities …. 3.157 direct marketing (APP7) …. 3.177

employers’ obligations …. 2.12 government-related identifiers, adoption/use/disclosure (APP9) …. 3.179 personal information access to (APP12) …. 3.182 collection notification (APP5) …. 3.175 correction (APP13) …. 3.183 cross-border disclosure (APP8) …. 3.178 open/transparent management (APP1) …. 3.171 quality (APP10) …. 3.180 security (APP11) …. 3.181 solicited, collection (APP3) …. 3.173 solicited, use of disclosure (APP6) …. 3.176 unsolicited, dealing with (APP4) …. 3.174 pseudonymity and anonymity (APP2) …. 3.172

B blackmail threat to, by ‘unwarranted’ demand …. 8.80 threat to disclose …. 8.81, 8.83 blogs …. 1.22 breach of confidence cause of action, elements …. 3.121, 3.122 confidence obligation …. 3.130–3.135 confidence quality …. 3.123–3.129 loss — public domain …. 3.137–3.140 iniquity …. 3.141–3.144 sexting …. 3.135 specificity of confidential information …. 3.122 unauthorised use or misuse of information …. 3.136 classes of information protected …. 3.119 equitable action …. 3.116 origins …. 3.117, 3.118 protected information …. 3.119, 3.120 remedies …. 3.145 damages, social media …. 3.146 injunctions …. 3.147 third parties …. 3.148 suitability as privacy protection …. 3.149–3.151

United Kingdom misuse of private information …. 3.41 public interest defence …. 3.49–3.52 social media, remedies for breach …. 3.66–3.69 bullying see also cyber bullying; workplace bullying menace, harass or cause offence content-related offence …. 8.19, 8.20 Criminal Code (Cth) …. 8.17, 8.18 false Facebook profile …. 8.26, 8.27 fear, conduct creating …. 8.36 Agostino v Cleaves case …. 8.36–8.38 harassment by number of messages …. 8.21, 8.22, 8.24 jokes and hoaxes …. 8.40 Twitter airline threat …. 8.49 Twitter airport threat, UK case …. 8.41–8.48 menacing, UK airport case …. 8.41–8.48 postal service offence, social media similarity to …. 8.63 Skyping sexual encounter, ADF case …. 8.25 telephone calls, offensive …. 8.21–8.24, 8.28 UK …. 8.51–8.55 threatening or violence-inciting messages …. 8.39 tribute pages, abuse of causing distress …. 8.29–8.35 business carrying on, within Australia …. 5.211 meaning …. 5.212 monitoring and compliance obligations …. 5.219, 5.220 social media …. 5.1–5.9 business succession death preparation …. 9.129 incapacity preparation …. 9.108 lifetime trusts and corporate trustees …. 9.19–9.21 overview …. 9.16–9.18 planning …. 9.22–9.25 operational perspective …. 9.26–9.28 ownership perspective …. 9.29–9.32 superannuation …. 9.33, 9.34

C

cartel conduct arrangements …. 5.142, 5.149–5.151 cartel arrangements …. 5.142 attempt to make or give effect to …. 5.143 cartel provision …. 5.145 making or giving effect to …. 5.144 purpose condition …. 5.147, 5.156 purpose/effect condition …. 5.146, 5.153–5.155 Competition and Consumer Act provisions …. 5.142 competitors, definition …. 5.140, 5.141 contract …. 5.142, 5.148 penalties …. 5.170, 5.171 understandings …. 5.142, 5.149–5.152 CCA see Competition and Consumer Act 2010 (Cth) (CCA) child pornography age level …. 8.123 ‘child pornography material’, definition …. 8.122 Criminal Code (Cth) defences …. 8.125, 8.133 obligations of ISPs and ICHs …. 8.134 offences …. 8.121, 8.122, 8.124, 8.131, 8.132, 8.135 Facebook contact …. 8.101 prohibition …. 8.119 use of carriage service …. 8.120, 8.121 children see also child pornography cyber bullying reported by …. 8.112 internet use statistics …. 8.111 online safety …. 8.110, 8.116 sexting amongst …. 8.126 prosecution …. 8.128–8.130 civil penalty orders …. 3.193–3.195 commercial enterprise meaning …. 5.213 Commonwealth Constitution implied freedom of political communication …. 8.59 case testing …. 8.60, 8.61 ‘telephonic, telegraphic and other like services’ legislation power …. 8.10 communications new frontier …. 1.20

social media …. 1.9–1.13 traditional …. 1.6–1.8 Competition and Consumer Act 2010 (Cth) (CCA) see also Australian Consumer Law extra-territorial application …. 5.209 business, meaning …. 5.212 carrying on, within Australia …. 5.211 commercial enterprise, meaning …. 5.213 conduct in ‘trade or commerce’ …. 5.210 ministerial consent, for seeking damages …. 5.214 purpose …. 5.8 social media enforcement challenges …. 5.215–5.218 consumer law see Australian Consumer Law contempt of court criticism of judges/courts …. 8.165 public interest …. 8.164 social media breaking news …. 8.156–8.158 Derryn Hinch, suppression order breach …. 8.160 jurors …. 8.151–8.153 pending proceedings …. 8.154 publication allegations in court, of …. 8.147–8.150 breach of injunction restraining …. 8.159, 8.162 breach of lifetime anonymity protection order, UK …. 8.163 breach of suppression order …. 8.159–8.161 public interest …. 8.164 suppression order, of …. 8.161 transmit proceedings of a court …. 8.166 content communities …. 1.23 copyright ALRC proposed reforms …. 6.67 fair use examples …. 6.68 ‘social use’ concept …. 6.69, 6.70 infringement remedies see copyright remedies licensing under Copyright Act exclusive licence meaning …. 6.73, 6.74 granting licence …. 6.71 implied licence …. 6.75 licences …. 6.73

successor in title …. 6.72 types of licence …. 6.75 moral rights exceptions and consents …. 6.54 online content …. 6.52 right against false attribution …. 6.53 right of attribution …. 6.53 right of integrity …. 6.53 ‘originality’ and social media site text’s copyright subsistence headlines, Fairfax case …. 6.35–6.41 headlines, UK decision in Meltwater …. 6.42–6.49 ‘original’, definition …. 6.32 originality, concept …. 6.14 originality, literary works …. 6.33 relevant considerations …. 6.34 tweets and similar content …. 6.35 overview …. 1.95–1.98, 6.1–6.6, 6.174–6.177 ownership of social media content see copyright ownership of social media content remedies for unauthorised use of social media content see copyright remedies social media content usage …. 6.55 exclusive rights …. 6.56 authorisation right …. 6.57 table …. 6.56 fair dealing exceptions …. 6.58–6.60 BuzzFeed, US case …. 6.64–6.66 examples …. 6.62 general rule …. 6.63 The Panel case …. 6.61 implied licence to use user-generated content …. 6.83 Agence France Presse v Morel …. 6.84–6.104 photograph used without permission, UK …. 6.105 ‘Instagram Act’ …. 6.124 liking, sharing and retweeting …. 6.106 implied licence not extending …. 6.108 permission or licence for users …. 6.107 linking to third parties …. 6.109 authorising infringement …. 6.110

BitTorrent …. 6.111 Columbia Pictures Industries v Fung …. 6.111–6.119 deep-linking …. 6.110 framing …. 6.110 orphan works …. 6.120–6.127 site terms and conditions and user-generated content use …. 6.76, 6.77 Facebook …. 6.78–6.80 non-exclusive licences …. 6.82 Twitter …. 6.81 unauthorised use see copyright remedies social media hosts’ liability Digital Millennium Copyright Act (US) …. 6.165–6.167, 6.171–6.173 infringement claims on their sites …. 6.156 safe harbour (notification and takedown scheme) …. 6.157 carriage service provider, exclusions from definition …. 6.158 proposed rectification of limited scope of protection …. 6.159, 6.160 protections, in US …. 6.161, 6.162 Viacom International Inc v YouTube Inc …. 6.163–6.170 social media sites’ terms and conditions use of user-generated content …. 6.76, 6.77 Facebook …. 6.78–6.80 non-exclusive licences …. 6.82 Twitter …. 6.81 social media sites’ terms of service …. 6.50, 6.51 copyright ownership of social media content …. 1.63–1.65, 6.7, 6.8 Copyright Act, under assignment of copyright …. 6.27–6.31 author/maker of social media content animal as author …. 6.23–6.26 author …. 6.17, 6.21 expression of ideas …. 6.18, 6.19 first owner …. 6.21 identity of ‘maker’ …. 6.20 ‘Naruto the Macaque’ case …. 6.23–6.26 online posting — effect on copyright …. 6.22 photographs …. 6.17 owner of copyright in subject matter author of a ‘work’ …. 6.15 existence before or after commencement of Copyright Act …. 6.16 maker of ‘a subject matter other than a work’ …. 6.15

subject matter subsisted in copyright …. 6.9–6.11 originality, concept …. 6.13, 6.14 social media content …. 6.12 deceased users …. 1.09—1.111 copyright remedies Copyright Act additional damages …. 6.136 wilful violation, for …. 6.137–6.141 Agence France Presse v Morel …. 6.137–6.141 copyright infringement …. 6.128–6.131 copyright infringement by other users accessorial liability …. 6.147, 6.148 authorisation …. 6.142–6.146 innocent infringement …. 6.132–6.135 limitation period on infringement actions …. 6.129 practical protection measures …. 6.155 takedown procedures …. 6.149–6.154 Council of Europe Convention on Cybercrime …. 8.14–8.16 offence categories criminalised under …. 8.15 crime cartel conduct see cartel conduct internet see internet crime crowd-funding …. 1.72 crowd-sourcing …. 1.72 cyber bullying see also bullying; workplace bullying children, of …. 8.112 Cooperative Arrangement for Complaints Handling on Social Networking Sites …. 8.116 definition …. 8.113 difficulties controlling …. 8.115 employers’ duty …. 2.25 Fair Work Act …. 2.27 problem …. 8.115 rumours …. 8.114 social media use …. 2.28 what constitutes …. 8.113, 8.114 workplace …. 2.24–2.28 cyber crime see also internet crime Commonwealth acts …. 8.11, 8.12, 8.14

Council of Europe Convention on Cybercrime …. 8.14–8.16 offence categories criminalised under …. 8.15 definition …. 8.11 cyber stalking …. 8.88–8.95 types of stalkers …. 8.95

D damages breach of confidence …. 3.146 Competition and Consumer Act, under …. 5.214 Copyright Act, additional damages under …. 6.136 wilful violation, for …. 6.137–6.141 defamation see defamation damages misleading or deceptive conduct and representations …. 5.119–5.121 compensation …. 5.119 data protection see information privacy data retention criticism …. 8.168 mandatory scheme …. 8.167 privacy …. 8.168 worldwide comparison …. 8.169 death see also social media before and after death dealing with social media after …. 9.130–9.146 social media, impact on …. 9.38–9.43 Facebook …. 9.44–9.52 Flickr …. 9.62–9.64 Gmail …. 9.61 Google …. 9.59, 9.60 iCloud …. 9.68–9.71 Instagram …. 9.65–9.67 iTunes …. 9.72–9.74 LinkedIn …. 9.53–9.55 Twitter …. 9.56–9.57 Yahoo! …. 9.62–9.64 YouTube …. 9.61 social media disputes after …. 9.147–9.159 defamation anonymity order …. 4.78–4.86, 4.292

arrest and charge …. 4.142 cases …. 4.50–4.55, 4.59–4.63 cause of action see defamation and cause of action common law, tiers of gravity …. 4.143 communication habits/behaviours …. 4.136–4.139 criminal …. 4.294, 4.297, 8.84 indictable offence, NSW …. 8.85 penalty …. 8.86 social media used to defame …. 8.87 statutory offences …. 8.87 trolling …. 8.87 defences see defamation defences Facebook …. 4.169, 4.170 geographical challenge …. 4.295 gravity of …. 4.143 indictable offence, NSW …. 8.85 law, overview …. 4.19–4.25 meaning see defamatory meanings overview …. 1.68, 1.88–1.91, 4.1–4.18, 4.293–4.297 publication see defamation publication remedies see defamation remedies tiers of gravity …. 4.143 defamation and cause of action abuse …. 4.182, 4.183 Piscioneri v Brisciani …. 4.190–4.192 tests of defamatory meaning …. 4.185 UK Facebook case …. 4.189 vulgar abuse, defamatory meaning …. 4.184, 4.186–4.188 arrest and charge …. 4.142 Cairns v Modi …. 4.129–4.131 cases …. 4.50–4.55, 4.59–4.63 general community standards, application of …. 4.127 leaping to conclusions …. 4.167 form of words …. 4.157 identification of alleged wrongdoers …. 4.156 Lord McAlpine case …. 4.144–4.155, 4.159–4.166 repetition of allegation …. 4.141 tiers of gravity …. 4.143 two possible meanings …. 4.158

meaning see defamatory meanings overview …. 4.26 publication see defamation publication ridicule Cornes case …. 4.173–4.177 Facebook …. 4.169, 4.170 honest opinion defence …. 4.177, 4.178 humour …. 4.168, 4.172 ordinary reasonable person test …. 4.168 Smith v Lucht …. 4.179–4.181 rumours …. 4.140 standards, general community …. 4.127 test for …. 4.109, 4.110, 4.126 combined formulation of these tests …. 4.134 defamation despite no imputation or fault attributed …. 4.132 ‘exposes the plaintiff to hatred, contempt or ridicule’ …. 4.133 untruth proof unnecessary …. 4.135 Twitter …. 4.128 defamation damages see also defamation remedies amount …. 4.256–4.263 aggravated damages …. 4.278–4.280 apology …. 4.282, 4.283 correction …. 4.282 damages awarded …. 4.273, 4.274 Duffy v Google Inc …. 4.272 economic loss claim …. 4.277 exemplary damages …. 4.281, 4.295 ‘grapevine effect’ …. 4.275, 4.276 punitive damages …. 4.281 seriousness of imputations …. 4.271 Trkulja v Yahoo! Inc …. 4.264–4.270 defamation defences innocent dissemination ‘any degree accessory’ …. 4.231 intermediary’s role …. 4.229 see also defamation intermediaries ISP or ICH using defence of …. 4.236 notice of defamatory content …. 4.235 participation limited …. 4.232 ‘passive instrumental role’ …. 4.228

statutory defence …. 4.233 ‘subordinate distributor’ …. 4.234 time taken to remove material …. 4.230 offer of amends …. 4.249–4.252 opinion …. 4.223 McEloney v Massey …. 4.224–4.227 overview …. 4.193, 4.194 privilege absolute …. 4.208 fair and accurate reports of proceedings …. 4.222 public interest or public function …. 4.221 qualified …. 4.208 common law …. 4.209–4.216 defeated by malice …. 4.218 Lange defence …. 4.219 statutory …. 4.220, 4.221 terms and conditions, registration with web platform …. 4.217 time limitation, period …. 4.248 triviality …. 4.237–4.247 thread …. 4.241 truth breaking news …. 4.200 contextual …. 4.202, 4.203, 4.207 facts, dependent upon …. 4.196 General Speidel case …. 4.204–4.206 indefensible as truth at later time …. 4.197 sacrificed in rush to find guilt …. 4.198 state variations …. 4.207 substantial truth of defamatory imputations …. 4.195 defamation intermediaries …. 4.87, 4.88 advertisers’ misleading and deceptive conduct …. 4.98 Australian judgment enforceable in US …. 4.108 innocent dissemination see defamation defences internet search results, intention to publish …. 4.100–4.105 ordinary reasonable recipient …. 4.99 passive publication …. 4.96, 4.106, 4.107 proceedings against local entities …. 4.89–4.93 proceedings served outside of Australia …. 4.94 publisher, neither primary nor secondary …. 4.97

search engines …. 4.87 passive role claim …. 4.96 publisher at law liability …. 4.95 web platforms …. 4.87 defamation publication cause of action, as …. 4.27 date …. 4.66 later publication …. 4.67 recipient comprehension date …. 4.66 defamed persons/entities …. 4.70 defendant’s intention …. 4.69 groups …. 4.70 living persons …. 4.70 organisations …. 4.70 plaintiff identified in publication, proof …. 4.68 defamer see publisher below form of, social media as …. 4.29 defamatory meaning …. 4.117 hyperlink …. 4.31 non-written form …. 4.30 republication of another’s publication …. 4.32 set time for publication …. 4.34 store or retain …. 4.33 location determination of whole controversy …. 4.62 inappropriate forum …. 4.63 multiplicity of actions claim …. 4.62 place where damage occurs …. 4.61, 4.64 receipts separate …. 4.58 substantive law applies, closest connection to harm caused …. 4.65 upload place/time …. 4.59 publisher …. 4.71–4.74 anonymity …. 4.78–4.86 contributing material …. 4.73 intermediaries …. 4.87–4.108 liability …. 4.71 participation in publication …. 4.72 purpose — defamatory meaning …. 4.125 repetition or republication, liability for …. 4.74

republishers’ liability …. 4.74–4.77 questions arising …. 4.27, 4.28 recipients Australian case …. 4.50–4.55 capable of being understood …. 4.38 control and recall …. 4.45 ‘copy paste’ content …. 4.43 Facebook content public …. 4.42 ‘grapevine effect’ …. 4.56 hacked communication …. 4.57 inference of recipient numbers …. 4.48 information exchange and communication …. 4.40 openness of websites …. 4.39 proof it was read by others …. 4.37 propagation of publication …. 4.44 protection in the eyes of others …. 4.35 recall …. 4.45 share mechanism recording recipients …. 4.49 third-party comprehension …. 4.36 tweets, visibility …. 4.41 understandable …. 4.38 UK case …. 4.46 US case …. 4.47 rumours …. 4.140 time and duration later publication …. 4.67 publication date …. 4.66 recipient comprehension date …. 4.66 defamation remedies …. 4.253 compensation …. 4.253 damages amount …. 4.256–4.263 aggravated damages …. 4.278–4.280 apology …. 4.282, 4.283 correction …. 4.282 damages awarded …. 4.273, 4.274 Duffy v Google Inc …. 4.272 economic loss claim …. 4.277 exemplary damages …. 4.281, 4.295 ‘grapevine effect’ …. 4.275, 4.276

punitive damages …. 4.281 seriousness of imputations …. 4.271 Trkulja v Yahoo! Inc …. 4.264–4.270 injunctions …. 4.284 anonymity order …. 4.292 interim …. 4.291 public interest …. 4.286 Tate v Duncan-Strelec …. 4.287–4.290 purpose …. 4.254 vindication …. 4.256 defamatory meanings …. 4.109 Abbott and Costello case …. 4.123 capacity for dispute …. 4.122 determination by trial …. 4.114 differences as to …. 4.112, 4.113 form of publication …. 4.116 social media …. 4.117 intended …. 4.114 ‘natural and ordinary meaning’ …. 4.111 ordinary reasonable person’s consideration …. 4.118, 4.124 limit of reasonableness …. 4.115 publication considered in context …. 4.119 purpose of publisher …. 4.125 reasonableness limit …. 4.115 test for …. 4.109, 4.110, 4.126 trial to determine …. 4.114 tweets containing hyperlinks …. 4.121 web pages, separate suits …. 4.120 defamatory statements oral (slander) …. 4.6 written (libel) …. 4.7 definitions advertising and/or marketing communication …. 5.55 business …. 5.212 child pornography material …. 8.122 commercial enterprise …. 5.213 competitors …. 5.140, 5.141 cyber bullying …. 8.113

cyber crime …. 8.11 interception …. 8.103 market …. 5.138, 5.139 original …. 6.32 personal information …. 3.165 possession …. 7.125 prices …. 5.154 privacy …. 3.9 sensitive information …. 3.166 sexual harassment …. 2.29 social media …. 1.4, 1.5 workplace bullying …. 2.29 direct marketing …. 3.177 discovery documents …. 7.96, 7.97 preliminary …. 4.78, 7.138, 7.141 affidavits …. 7.141 commencement …. 7.141, 7.145 court order …. 7.144 court rules …. 4.81 entitlement …. 7.138, 7.143 identity …. 7.139, 7.140 multiple legitimate target …. 7.142 prospective defendant …. 7.143 requirements …. 7.144 proceedings see discovery in proceedings third parties …. 7.146–7.148 UK orders for …. 3.62–3.65 discovery in proceedings documents …. 7.121 ‘possession, custody or power’ computer or electronic device …. 7.126 consenting to the release of information …. 7.133 data on third-party devices …. 7.127 determination …. 7.124 employer, of …. 7.131 existence …. 7.128 Facebook, US cases …. 7.129 possession, definition …. 7.125 server data …. 7.132

user’s knowledge …. 7.130 principles …. 7.122 privacy right in US …. 7.123 discrimination laws Commonwealth …. 2.7 Fair Work Act 2009 …. 2.8 job applicants’ protection …. 2.9 social media …. 2.31 vilification …. 2.31 dismissal determination criteria …. 2.54 employees need for caution …. 2.75 employers, elements to justify dismissal …. 2.75, 2.76 out-of-hours conduct …. 2.57–2.59 reasons for …. 2.55 excessive/improper use of social media …. 2.56 unfair see unfair dismissal disputes capacity for …. 4.122 death, social media disputes after …. 9.147–9.159 employment settlements …. 2.77 unfair dismissal cases see unfair dismissal service — cross-border disputes …. 7.58 document disclosure …. 7.94–7.97 discovery …. 7.96, 7.97 subpoena …. 7.95 discovery in proceedings …. 7.121 Facebook profile as …. 7.79 notices to produce …. 7.134–7.137 relevance as evidence …. 7.98–7.101 what constitutes …. 7.64–7.69 domain names …. 7.12–7.22

E emails Gmail, death or incapacity …. 9.61

offensive, Starkey v DPP case …. 8.64–8.72 sender identification …. 7.36–7.38 employees cautious use of social media …. 2.75 confidentiality obligations …. 2.20 cyber bullying …. 2.24–2.28 general protections …. 2.40–2.43 privacy protection …. 2.11, 2.12 ex-employees …. 2.14 protections under Fair Work Act 2009 …. 2.40 social media activities at work …. 2.2, 2.3 unfair dismissal see unfair dismissal employers disciplining employees’ social media misuse …. 2.44 contractual powers …. 2.45–2.47 public sector …. 2.48–2.52 dismissal justification …. 2.75, 2.76 employee protections …. 2.41 managing employees’ social media use …. 2.15, 2.96–2.102 blocking website access …. 2.22 computer surveillance …. 2.22, 2.23 confidentiality …. 2.20 cyber bullying …. 2.24–2.28 education and training …. 2.19 employment contract …. 2.16 induction …. 2.19 lawfully monitoring …. 2.21 policy …. 2.17, 2.18, 2.96–2.102 sexual harassment …. 2.29 liability of employers …. 2.29, 2.30 sick leave claims, challenging …. 2.32 strategy …. 2.96–2.102 vilification …. 2.31 workers’ compensation, challenging …. 2.32 workplace investigations …. 2.33 workplace surveillance …. 2.21–2.23 post-employment matters cases restrictions, other …. 2.89 solicitation …. 2.86–2.88

stealing clients/confidential information …. 2.82–2.85 common law obligations …. 2.90–2.95 customer list protection …. 2.78 ownership of connections and followers …. 2.81 ownership of social media accounts …. 2.79, 2.80 restraints of trade …. 2.90–2.95 social media activities at work …. 2.2, 2.3 social media impacts …. 2.3 unfair dismissal see unfair dismissal unions, using social media against …. 2.37 employment disputes settlements …. 2.77 unfair dismissal cases see unfair dismissal employment law …. 1.80–1.82, 2.4 enterprise agreements better off overall test …. 2.35 social media …. 2.35 estate planning overview …. 9.1–9.8 social media see social-media estate planning superannuation …. 9.34 ethics advertisers’ code see Australian Association of National Advertisers Code of Ethics gathering information …. 7.149–7.157 European Commission …. 5.207 evidential use of social media …. 7.60, 7.61 authenticating …. 7.86–7.88 document disclosure …. 7.94–7.97 discovery …. 7.96, 7.97 subpoena …. 7.95 hearsay …. 7.92, 7.93 main methods …. 7.88 questions to ask …. 7.86 relevance of documents …. 7.98–7.101 testimony …. 7.89–7.91 document, what constitutes …. 7.64–7.69 categories of material …. 7.67 evidentiary rules …. 7.62, 7.63

information types stored in computers …. 7.66 preservation of social media content as evidence businesses’ processes and systems …. 7.85 court rules …. 7.71 deletion electronic data …. 7.83 Facebook profile …. 7.81 social media account …. 7.82 destruction of evidence …. 7.72, 7.74, 7.76 Facebook deactivation and deletion, distinguished …. 7.81 document, as …. 7.79 US case …. 7.80 forensic retrieval of deleted data …. 7.84 general obligation …. 7.70 exception …. 7.75 legal practitioners’ obligations …. 7.76–7.78 search orders …. 7.72, 7.73 rules of evidence …. 7.62, 7.63

F Facebook …. 4.169, 4.170 death or incapacity …. 9.44–9.52 evidentiary use Facebook profile as document …. 7.79 Facebook profile deactivation/deletion, distinguished …. 7.81 US case …. 7.80 ‘Facebook fired’ …. 2.3 insurance case …. 7.150 privacy …. 7.118 Statement of Rights …. 5.123 subpoena …. 7.108–7.113, 7.118 terms and conditions and user-generated content use …. 6.78–6.80 Facemash …. 4.169 Flickr death or incapacity …. 9.62–9.64 free speech …. 3.108, 4.296 misuse of private information (US) …. 3.90

privacy protection …. 3.109–3.115 future of social media …. 1.112–1.115

G gaming social …. 1.23 Google see also search engines death or incapacity …. 9.59, 9.60 Gmail and YouTube …. 9.61

H High Court privacy cases …. 3.17–3.26 Lenah Game Meats case …. 3.19–3.26, 3.39 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor case …. 3.17, 3.18 hosted communities …. 1.23

I iCloud death or incapacity …. 9.68–9.71 identity deceased users …. 1.09-1.111 false/fictitious identity …. 8.141, 8.142 fraudulent activity involving social media …. 8.136 identity theft …. 8.139, 8.142 Criminal Code (Cth) …. 8.140, 8.143, 8.144 keylogging …. 8.138 overview …. 1.47–1.52 phishing …. 8.137 state and territory identity crime laws …. 8.145 user name and password theft …. 8.146 verification …. 1.47, 1.51 identity and litigation discovery see discovery proceedings see discovery in proceedings evidence see evidential use of social media gathering information and ethical considerations …. 7.149–7.157

identification …. 1.99–1.104, 7.5–7.11 anonymising tools …. 7.27, 7.28 linking IP addresses to users’ activity …. 7.29–7.35 domains and websites anonymising tools …. 7.27, 7.28 anonymity …. 7.22 domain name system …. 7.12–7.22 emails, identifying senders …. 7.36–7.38 identity of specific users …. 7.21 IP address information release …. 7.29 IP address searches …. 7.31 IP address subpoenas …. 7.30 IP address tracing …. 7.32–7.34 IP addressing systems …. 7.13 investigations …. 7.12 malware …. 7.35 proof of identity …. 7.20 proxy servers …. 7.23–7.26 searches …. 7.17–7.19 ‘user-related information’ …. 7.39 user’s ‘identifiers’ …. 7.39 email senders …. 7.36–7.38 proxy servers …. 7.23–7.26 notices to produce …. 7.134–7.137 overview …. 1.99–1.104, 7.1–7.4, 7.158, 7.159 service and substituted service cross-border disputes …. 7.58 personal service …. 7.40 reliability and prejudice …. 7.59 service via social media sites …. 7.46–7.49 substituted service …. 7.41–7.45 requirements for …. 7.50–7.57 social media evidence see evidential use of social media subpoenas to social media sites …. 7.102, 7.103 privacy and …. 7.116–7.119 site terms and conditions …. 7.120 sites based outside Australia …. 7.104–7.108, 7.114–7.116 Facebook …. 7.108–7.113, 7.118 impersonation …. 1.50 incapacity see also social media before and after death business/company/trust, impact on …. 9.108

social media, impact on …. 9.38–9.43 Facebook …. 9.44–9.52 Flickr …. 9.62 Gmail …. 9.61 Google …. 9.59 iCloud …. 9.68 Instagram …. 9.65 iTunes …. 9.72 LinkedIn …. 9.53 Twitter …. 9.56 Yahoo! …. 9.62 YouTube …. 9.61 industrial relations social media impacts …. 2.34 employers using as evidence …. 2.37 enterprise agreements …. 2.35 industrial action threatened/pending …. 2.37 union not bargaining in good faith …. 2.38 unions garnering support …. 2.36 Information Commissioner breaches and powers assessments …. 3.186 civil penalty orders …. 3.193–3.195 complaints mechanism …. 3.184 interferences with privacy …. 3.184, 3.185 investigations …. 3.189–3.192 social media organisations, impact on …. 3.196–3.200 undertakings …. 3.187, 3.188 information privacy Australian Privacy Principles see Australian Privacy Principles (APPs) overview …. 3.152–3.154 Privacy Act 1988 (Cth) amendments …. 3.156 applicability entities …. 3.157–3.161 information …. 3.164–3.168 APP entities, application to …. 3.157 exemptions …. 3.158 extra-territorial application …. 3.162, 3.163 Information Commissioner, breaches and powers assessments …. 3.186

civil penalty orders …. 3.193–3.195 complaints mechanism …. 3.184 interferences with privacy …. 3.184, 3.185 investigations …. 3.189–3.192 social media organisations, impact on …. 3.196–3.200 undertakings …. 3.187, 3.188 information it applies to …. 3.164–3.168 objects …. 3.155 small business operator …. 3.158, 3.159, 3.163 Information Privacy Principles (IPPs) see Australian Privacy Principles (APPs) Instagram death or incapacity …. 9.65–9.67 interception definition …. 8.103 telecommunications, offence …. 8.102–8.109 internet crime blackmail threat to, by ‘unwarranted’ demand …. 8.80 threat to disclose …. 8.81, 8.83 bully, menace, harass or cause offence content-related offence …. 8.19, 8.20 Criminal Code (Cth) …. 8.17, 8.18 false Facebook profile …. 8.26, 8.27 fear, conduct creating …. 8.36 Agostino v Cleaves case …. 8.36–8.38 harassment by number of messages …. 8.21, 8.22, 8.24 jokes and hoaxes …. 8.40 Twitter airline threat …. 8.49 Twitter airport threat, UK case …. 8.41–8.48 menacing, UK airport case …. 8.41–8.48 postal service offence, social media similarity to …. 8.63 Skyping sexual encounter, ADF case …. 8.25 telephone calls, offensive …. 8.21–8.24, 8.28 UK …. 8.51–8.55 threatening or violence-inciting messages …. 8.39 tribute pages, abuse of causing distress …. 8.29–8.35 child pornography age level …. 8.123

‘child pornography material’, definition …. 8.122 Criminal Code (Cth) defences …. 8.125, 8.133 obligations of ISPs and ICHs …. 8.134 offences …. 8.121, 8.122, 8.124, 8.131, 8.132, 8.135 prohibition …. 8.119 use of carriage service …. 8.120, 8.121 children cyber bullying reported by …. 8.112 internet use statistics …. 8.111 online safety …. 8.110, 8.116 sexting amongst …. 8.126 prosecution …. 8.128–8.130 constitutional power to legislate against …. 8.10 contempt of court criticism of judges/courts …. 8.165 public interest …. 8.164 social media breaking news …. 8.156–8.158 Derryn Hinch, suppression order breach …. 8.160 jurors …. 8.151–8.153 pending proceedings …. 8.154 transmit proceedings of a court …. 8.166 social media publication allegations in court …. 8.147–8.150 breach of injunction restraining …. 8.159, 8.162 breach of lifetime anonymity protection order, UK …. 8.163 breach of suppression order …. 8.159–8.161 public interest …. 8.164 suppression order …. 8.161 cyber crime see offences below cyber stalking …. 8.88–8.95 data retention …. 8.167–8.169 defamation, criminal see defamation extortion …. 8.82 identity deceased users …. 1.09—1.111 false/fictitious identity …. 8.141, 8.142 fraudulent activity involving social media …. 8.136 identity theft …. 8.139, 8.142 Criminal Code (Cth) …. 8.140, 8.143, 8.144

keylogging …. 8.138 phishing …. 8.137 state and territory identity crime laws …. 8.145 user name and password theft …. 8.146 offences Commonwealth Acts …. 8.11, 8.12, 8.14 constitutional power to legislate against …. 8.10 Council of Europe Convention on Cybercrime …. 8.14, 8.15 offence categories criminalised under …. 8.15 cyber crime …. 8.11, 8.12, 8.14 definition …. 8.11 review necessity …. 8.13 overview …. 8.1–8.9, 8.170–8.174 political and government speech see political and government speech prohibited online content …. 8.117, 8.118 revenge porn criminal offence …. 8.100 Hunter Moore case, US …. 8.96, 8.97 NSW cases …. 8.98, 8.99, 8.101 surveillance offence of interception of telecommunications …. 8.102–8.109 threats blackmail …. 8.80, 8.81, 8.83 extortion …. 8.82 seriously harm …. 8.75 threat to kill …. 8.76 Agostino v Cleeves case …. 8.79 R v Ogawa case …. 8.77 third person …. 8.78 threatening or violence-inciting messages on social media …. 8.39 use of carriage service for …. 8.73, 8.74 internet protocol (IP) addresses information release …. 7.29 searches …. 7.31 subpoenas …. 7.30 systems …. 7.13 tracing …. 7.32–7.34 iTunes

Bruce Willis’s library bequest trouble …. 9.123–9.126 death or incapacity …. 9.72–9.74

J job applicants prescribed protected attributes …. 2.9 statutory protection from discrimination …. 2.7–2.9 vetted through social media …. 2.5, 2.14 warning …. 2.14

L libel …. 4.7 LinkedIn customer list …. 2.78 death or incapacity …. 9.53–9.55 live tweeting …. 1.23

M market definition …. 5.138, 5.139 misuse of market power …. 5.157, 5.158 penalties …. 5.170, 5.171 misleading or deceptive conduct and representations ACL prohibitions …. 5.22–5.26 conduct leading to error …. 5.24, 5.34 conduct under ACL …. 5.27–5.29 false or misleading representations …. 5.25 ‘in trade or commerce’ …. 5.30–5.33 conduct which is misleading or deceptive …. 5.34–5.36 dominant message …. 5.96–5.99 social media compliance with terms of usage …. 5.122–5.125 damages …. 5.119–5.121 compensation …. 5.119 innocent carriage of information …. 5.68–5.76 representation, making …. 5.44, 5.45 third-party comments, treatment …. 5.46–5.49 ACCC approach …. 5.67

Advertising Standards Bureau decision re Diageo Australia Ltd …. 5.53–5.66 Allergy Pathway case …. 5.50–5.52 Twitter advertising trademark policy …. 5.124 usage terms, compliance …. 5.122–5.125 when conduct is misleading …. 5.77 appearance within confined space …. 5.92 comments …. 5.78–5.84 disclaimers …. 5.90–5.95, 5.97 endorsements …. 5.105–5.107 misleading by silence …. 5.109, 5.110 opinion …. 5.85–5.89 Seafolly case …. 5.78–5.84 testimonials …. 5.106, 5.107, 5.108 when is conduct trade or commerce? business has ceased …. 5.114 consumers, actual/potential …. 5.114 Nextra Australia Pty Ltd v Fletcher …. 5.115–5.118 Seafolly case …. 5.111–5.113 supply of goods …. 5.114 misuse of private information New Zealand causes of action …. 3.70 defences …. 3.77 remedies …. 3.78 social media, relevance …. 3.79, 3.80 unauthorised intrusion upon seclusion …. 3.74–3.76 unjustified publication of private facts …. 3.71–3.73 United Kingdom breach of confidence …. 3.41 defences …. 3.49–3.52 Human Rights Act 1988 …. 3.42–3.44 remedies …. 3.53–3.55 social media loss of privacy protection …. 3.57–3.61 orders for discovery …. 3.62–3.65 relevance to …. 3.56 remedies for breach …. 3.66–3.69 test of …. 3.45–3.48

United States …. 3.81–3.83 causes of action …. 3.83 defences …. 3.88 free speech jurisprudence …. 3.90 remedies …. 3.89 social media, relevance to …. 3.91–3.93 unreasonable intrusion upon seclusion …. 3.84, 3.85 unreasonable publicity to another’s private life …. 3.86, 3.87 moral rights see copyright

N National Consumer Policy Objective importance of to social media …. 5.19 National Privacy Principles (NPPs) see Australian Privacy Principles (APPs) New Zealand misuse of private information causes of action …. 3.70 defences …. 3.77 remedies …. 3.78 social media, relevance …. 3.79, 3.80 unauthorised intrusion upon seclusion …. 3.74–3.76 unjustified publication of private facts …. 3.71–3.73

O orphan works …. 6.121

P personal information access …. 3.182 anonymity …. 3.172 Australian Privacy Principles (APPs) see Australian Privacy Principles (APPs) collection notification …. 3.175 solicited information …. 3.173 correction …. 3.183 cross-border disclosure …. 3.178 data retention …. 8.168, 8.169

definition …. 3.165 direct marketing …. 3.177 disclosure cross-border …. 3.178 solicited information, use of …. 3.176 government-related identifiers, adoption/use/disclosure …. 3.179 management …. 3.171 misuse of private information see misuse of private information notification of collection …. 3.175 privacy laws …. 2.11 pseudonymity …. 3.172 quality …. 3.180 security …. 3.181 social media accounts containing …. 2.10 solicited collection …. 3.173 use of disclosure …. 3.176 unsolicited …. 3.174 political and government speech good faith defence …. 8.58 implied freedom of political communication …. 8.59 case testing …. 8.60, 8.61 offence telephone messages, UK …. 8.51–8.55 offensive emails, Starkey v DPP case …. 8.64–8.72 sedition offences in Australia …. 8.56 social media and internet …. 8.50 urging violence, as offence …. 8.57 post-employment obligations cases restrictions, other …. 2.89 solicitation …. 2.86–2.88 stealing clients/confidential information …. 2.82–2.85 common law obligations …. 2.90–2.95 customer list protection …. 2.78 ownership of connections and followers …. 2.81 ownership of social media accounts …. 2.79, 2.80 restraints of trade …. 2.90–2.95 pre-employment vetting candidates via social media …. 2.5, 2.14

UK and US …. 2.6 preservation of evidence businesses’ processes and systems …. 7.85 court rules …. 7.71 deletion electronic data …. 7.83 Facebook profile …. 7.81 social media account…. 7.82 destruction of evidence …. 7.72, 7.74, 7.76 Facebook deactivation and deletion, distinguished …. 7.81 document, as …. 7.79 US case …. 7.80 forensic retrieval of deleted data …. 7.84 general obligation …. 7.70 exception …. 7.75 legal practitioners’ obligations …. 7.76–7.78 search orders …. 7.72, 7.73 pricing advertising dominant message …. 5.96–5.99 prohibitions …. 5.37 price fixing …. 5.153–5.155 pricing display contraventions Australian Competition and Consumer Commission v Jetstar Airways Pty Limited …. 5.100–5.104 displayed pricing …. 5.40–5.42 single pricing …. 5.38, 5.39 social media multiple price …. 5.132, 5.133 single pricing …. 5.126–5.131 failure to display the full price …. 5.96–5.99, 5.129 US consent orders, Twitter …. 5.130 privacy see also information privacy accessing private social media profile …. 7.149, 7.150 Act see Privacy Act 1988 (Cth) Australian Privacy Principles (APPs) see Australian Privacy Principles (APPs) Australian protection overview …. 3.1, 3.2 breach of confidence see breach of confidence

common law unjustified intrusion upon seclusion …. 3.39 unjustified invasion of privacy …. 3.16 cases …. 3.17–3.40 corporations, of …. 3.25, 3.26 development in Australia …. 3.27–3.38, 3.40 future developments …. 3.94–3.99 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor case …. 3.17, 3.18 concept …. 3.7–3.10 corporate privacy …. 3.25, 3.26 data retention …. 8.168, 8.169 definition …. 3.8, 3.9 Doe v ABC case …. 3.31–3.36 Doe v Yahoo!7 Pty Ltd; Wright v Pagett case …. 3.37, 3.38 employees …. 2.11, 2.12 ex-employees …. 2.14 free speech …. 3.108–3.115 Grosse v Purvis case …. 3.28, 3.29, 3.39 human rights in UK and …. 3.42–3.44 job candidates vetted via social media …. 2.6, 2.14 legislation see Privacy Act 1988 (Cth) Lenah Game Meats case …. 3.19–3.26, 3.39 misuse of private information, NZ causes of action …. 3.70 defences …. 3.77 remedies …. 3.78 social media, relevance …. 3.79, 3.80 unauthorised intrusion upon seclusion …. 3.74–3.76 unjustified publication of private facts …. 3.71–3.73 misuse of private information, UK breach of confidence …. 3.41 defences …. 3.49–3.52 Human Rights Act 1988 …. 3.42–3.44 remedies …. 3.53–3.55 social media loss of privacy protection …. 3.57–3.61 orders for discovery …. 3.62–3.65 relevance to …. 3.56 remedies for breach …. 3.66–3.69

test of …. 3.45–3.48 misuse of private information, US …. 3.81–3.83 causes of action …. 3.83 defences …. 3.88 free speech jurisprudence …. 3.90 remedies …. 3.89 social media, relevance to …. 3.91–3.93 unreasonable intrusion upon seclusion …. 3.84, 3.85 unreasonable publicity to another’s private life …. 3.86, 3.87 objects …. 3.10 overview …. 1.53–1.58, 1.83–1.87, 3.201–3.203 personal information protection …. 2.11, 2.14 private sector employer …. 2.12 protection overview …. 3.1, 3.2 social media impacts …. 3.11–3.15, 3.203 social media issues …. 3.3–3.6 social media organisations improper use of personal information …. 3.14 privacy policies …. 3.14 social media profile, accessing private …. 7.149, 7.150 statutory cause of action unjustified invasion of privacy …. 3.100 Australian Law Reform Commission recommendations …. 3.101–3.107 subpoenas to social media sites …. 7.116–7.119 television as threat …. 3.202 Tumblr policy …. 7.115 unjustified invasion of privacy common law …. 3.16 cases …. 3.17–3.40 corporations, of …. 3.25, 3.26 development in Australia …. 3.27–3.38, 3.40 future developments …. 3.94–3.99 statutory cause of action …. 3.100 Australian Law Reform Commission recommendations …. 3.101–3.107 Privacy Act 1988 (Cth) amendments …. 3.156 applicability entities …. 3.157–3.161

information …. 3.164–3.168 APP entities, application to …. 3.157 exemptions …. 3.158 extra-territorial application …. 3.162, 3.163 Information Commissioner, breaches and powers assessments …. 3.186 civil penalty orders …. 3.193–3.195 complaints mechanism …. 3.184 interferences with privacy …. 3.184, 3.185 investigations …. 3.189–3.192 social media organisations, impact on …. 3.196–3.200 undertakings …. 3.187, 3.188 information it applies to …. 3.164–3.168 objects …. 3.155 small business operator …. 3.158, 3.159, 3.163 public servants misuse of social media …. 2.48–2.52 publication see defamation publication

R regulation of social media Australia see Australian Competition and Consumer Commission (ACCC) other jurisdictions …. 1.77, 1.78, 5.198 European Commission …. 5.207 UK Competition and Markets Authority (UK CMA) …. 5.208 US Federal Trade Commission …. 5.199, 5.200 reputation …. 1.59–1.62

S search engines defamation intermediaries, as …. 4.87 advertisers’ misleading and deceptive conduct …. 4.98 internet search results, intention to publish …. 4.100–4.105 passive role claim …. 4.96 proceedings against local entities …. 4.89–4.93 proceedings served outside of Australia …. 4.94 publisher, neither primary nor secondary …. 4.97 publisher at law liability …. 4.95

sedition offences in Australia …. 8.56 sensitive information definition …. 3.166 service cross-border disputes …. 7.58 personal service …. 7.40 service outside Australia defamation intermediaries …. 4.94 social media sites, via …. 7.46–7.49 reliability and prejudice …. 7.59 substituted service …. 7.41–7.45 cross-border disputes …. 7.58 requirements for …. 7.50–7.57 sexting breach of confidence …. 3.135 children, amongst …. 8.126 prosecution …. 8.128–8.130 sexual harassment see also bullying employers’ liability …. 2.29, 2.30 out of hours, leading to dismissal …. 2.58 social media use …. 2.29 statutory definition …. 2.29 slander …. 4.6 social bookmarking and collections …. 1.23 social gaming …. 1.23 social media accessing private profile …. 7.149, 7.150 account ownership …. 1.63–1.65 deceased users …. 1.09—1.111 business-related activities …. 5.1–5.9 crime see internet crime dangers …. 4.198 death, before and after see social media before and after death definition …. 1.4, 1.5 evidence see evidential use of social media fraudulent activity …. 8.136 free access …. 1.26 future …. 1.112–1.115 growth …. 5.3

law …. 1.14–1.19, 1.79 criminal …. 1.105–1.108 employment …. 1.80–1.82 litigation …. 1.99–1.104 location …. 1.38–1.40 networking …. 1.28–1.32 openness …. 1.30 overview …. 1.1–1.3, 1.9–1.13 permanence …. 1.41–1.43 platforms …. 1.21–1.25 referral content …. 1.32 regulators …. 1.77, 1.78 users …. 1.44–1.46 veracity of information …. 1.52 social media before and after death business succession see business succession death, after dealing with social media …. 9.130–9.146 social media disputes …. 9.147–9.159 estate planning see estate planning; social-media estate planning future developments …. 9.160–9.163 legislation …. 9.75–9.81 overview …. 1.109–1.111 testamentary trusts …. 9.13 advantages …. 9.14 disadvantages …. 9.15 social-media estate planning …. 9.9–9.11, 9.88 advisers …. 9.89, 9.90 Bruce Willis’s library bequest trouble …. 9.123–9.126 businesses, companies or trusts client’s position re …. 9.110 impact of incapacity on …. 9.108 challenges …. 9.82, 9.83 common concerns and issues …. 9.12 discretionary trust for assets …. 9.128 e-wills …. 9.87 homemade wills …. 9.87 intangibility of social media …. 9.84, 9.85 inventory of assets …. 9.91 commercial services …. 9.92

location communicated to trusted persons …. 9.97 secure storage …. 9.94, 9.95, 9.96 updating and securing …. 9.86, 9.93 jurisdictional problems …. 9.127 necessity …. 9.35–9.37 overlooking …. 9.84 procedure death …. 9.109–9.122 incapacity …. 9.98–9.108 ‘proper law’ to apply …. 9.85 security concerns …. 9.86 testamentary trusts …. 9.13 advantages …. 9.14 disadvantages …. 9.15 updating and securing information …. 9.86, 9.93 social media organisations consenting to the release of information …. 7.133 improper use of personal information …. 3.14 intermediaries, as …. 4.87, 4.88 advertisers’ misleading and deceptive conduct …. 4.98 Australian judgment enforceable in US …. 4.108 internet search results, intention to publish …. 4.100–4.105 ordinary reasonable recipient …. 4.99 passive publication …. 4.96, 4.106, 4.107 proceedings against local entities …. 4.89–4.93 proceedings served outside of Australia …. 4.94 publisher, neither primary nor secondary …. 4.97 search engines …. 4.87 passive role claim …. 4.96 publisher at law liability …. 4.95 web platforms …. 4.87 internet search results, intention to publish …. 4.100–4.105 privacy policies …. 3.14 terms and conditions …. 1.33–1.37 social media users accessing private profile …. 7.149, 7.150 communication habits/behaviours …. 4.136–4.139 empowerment of …. 1.71–1.76 exposure to liability …. 1.67–1.71

see also defamation improper use of others’ personal information …. 3.15 liability, exposure to …. 1.66–1.70 social networking …. 1.23 stalkers cyber stalking …. 8.88–8.95 types …. 8.95 subpoenas to social media sites …. 7.102, 7.103 privacy and …. 7.116–7.119 site terms and conditions …. 7.120 sites based outside Australia …. 7.104–7.108, 7.114–7.116 Facebook …. 7.108–7.113, 7.118 succession see business succession; social media before and after death superannuation estate planning …. 9.34 self-managed superannuation funds …. 9.33, 9.34

T telephone calls offensive …. 8.21–8.24, 8.28 UK …. 8.51–8.55 threats blackmail …. 8.80, 8.81, 8.83 extortion …. 8.82 seriously harm …. 8.75 threat to kill …. 8.76 Agostino v Cleeves case …. 8.79 R v Ogawa case …. 8.77 third person …. 8.78 threatening or violence-inciting messages on social media …. 8.39 use of carriage service for …. 8.73, 8.74 trusts discretionary trust for social media assets …. 9.128 lifetime trusts and corporate trustees …. 9.19–9.21 testamentary trusts …. 9.13 advantages …. 9.14 disadvantages …. 9.15 Tumblr

Privacy Policy …. 1.30, 7.115 Twitter …. 4.128 advertising trademark policy …. 5.124 airport threat cases …. 8.41–8.49 death or incapacity …. 9.56–9.57 live tweeting on television …. 1.23 terms and conditions and user-generated content use …. 6.81 US consent orders …. 5.130

U unfair dismissal access to jurisdiction …. 2.53 cases abuse, bullying and inappropriate conduct …. 2.68–2.72 business identification requirement …. 2.60, 2.61 complaint re workplace matters …. 2.62, 2.63 employer’s business/product, criticism …. 2.64, 2.65 ‘liking’ and/or ‘retweeting’ …. 2.66, 2.67 private matters not to concern employers …. 2.73 triviality …. 2.74 determination criteria …. 2.54 employees need for caution …. 2.75 employers, elements to justify dismissal …. 2.75, 2.76 out-of-hours conduct …. 2.57–2.59 unions employers using social media against …. 2.37 use of social media …. 2.36–2.39 US case …. 2.42 United Kingdom Competition and Markets Authority (UK CMA) …. 5.208 contempt of court — social media publication breach of injunction restraining publication …. 8.162 breach of lifetime anonymity protection order …. 8.163 defamation Lord McAlpine case …. 4.144–4.155, 4.159–4.166 private publication going public …. 4.46 ‘Instagram Act’ …. 6.124 job candidates vetted via social media …. 2.6

offensive telephone calls …. 8.51–8.55 orphan works …. 6.123, 6.124 privacy breach of confidence …. 3.41 Human Rights Act 1988 …. 3.42–3.44 misuse of private information …. 3.41–3.69 defences …. 3.49–3.52 remedies …. 3.53–3.55 test of …. 3.45–3.48 social media loss of privacy protection …. 3.57–3.61 orders for discovery …. 3.62–3.65 relevance to …. 3.56 remedies for breach …. 3.66–3.69 Twitter airport threat case …. 8.41–8.48 United States Agence France Presse v Morel …. 6.84–6.104, 6.137–6.141 death/incapacity, digital wealth after …. 9.80, 9.81 defamation — ‘Twibel’ case …. 4.47 Federal Trade Commission .com Disclosure Guidelines …. 5.201–5.205 endorsements and testimonials in advertising, guidelines …. 5.206 FTC Act …. 5.199, 5.200 job candidates vetted via social media …. 2.6 misuse of private information …. 3.81–3.83 causes of action …. 3.83 defences …. 3.88 free speech jurisprudence …. 3.90 remedies …. 3.89 social media, relevance to …. 3.91–3.93 unreasonable intrusion upon seclusion …. 3.84, 3.85 unreasonable publicity to another’s private life …. 3.86, 3.87 privacy right in US …. 7.123 revenge porn …. 8.96, 8.97 Uniform Fiduciary Access to Digital Assets Act …. 9.80, 9.81 user-generated content …. 1.27 implied licence to use …. 6.83 Agence France Presse v Morel …. 6.84–6.104 photograph used without permission, UK …. 6.105 site terms and conditions and use of …. 6.76, 6.77

Facebook …. 6.78–6.80 non-exclusive licences …. 6.82 Twitter …. 6.81

V vilification …. 2.31 virtual worlds …. 1.23

W websites access blocked by employers …. 2.22 defamation openness of websites …. 4.39 separate suit for each page …. 4.120 identification of domains and websites anonymising tools …. 7.27, 7.28 anonymity …. 7.22 domain name system …. 7.12–7.22 emails, identifying senders …. 7.36–7.38 identity of specific users …. 7.21 IP address information release …. 7.29 searches …. 7.31 subpoenas …. 7.30 tracing …. 7.32–7.34 IP addressing systems …. 7.13 investigations …. 7.12 malware …. 7.35 proof of identity …. 7.20 proxy servers …. 7.23–7.26 searches …. 7.17–7.19 ‘user-related information’ …. 7.39 user’s ‘identifiers’ …. 7.39 IP addressing system …. 7.13 search engines see search engines whistleblowing …. 2.56 Wikipedia …. 1.23, 1.52 workplace

computer surveillance, NSW …. 2.22, 2.23 investigations …. 2.33 evidence preservation …. 2.33 social media impacts …. 2.3 surveillance legislation in NSW …. 2.22 workplace bullying see also bullying; cyber bullying definition …. 2.29

Y Yahoo! death or incapacity …. 9.62–9.64 YouTube death or incapacity …. 9.61 Digital Millennium Copyright Act (US) in NSW …. 6.171–6.173 ‘Mean Tweets’ videos …. 6.171 Viacom International Inc v YouTube Inc …. 6.163–6.170