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Beware anti-social media

Beware anti-social media

By Fabian Horton

Social Media Technology 

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Social media should not be considered a limited issue. Since it can move between the professional and the personal as well as the private and the public, most areas of law can be affected. Lawyers need to be aware of how social media can affect their practice area as well as their practice.

Thousands of communications occur every minute with the potential to be legally significant. Even so, some lawyers may consider social media to be limited to a few practice areas.

Social media is a form of communication. As a communication tool it cuts across social, economic, employment and cultural divides. Any aspect of our lives can be reduced to bits and bytes and served up for electronic consumption. This ranges from posting an image of what one had for breakfast (a social networking faux pas by some standards) to organising grass-roots political movements such as the “my.barackobama.com” campaign. Social media use has become so prevalent and ingrained in our everyday existence that an acronym has emerged referring to the fear of being disconnected from social media; FOMO: the Fear of Missing Out.1

The use is not just limited to teenagers in advanced Western economies. Research shows that in 2013, 72 per cent of online US adults used social networking sites, up from 8 per cent in 2005.2 In addition, countries such as India and China have seen a massive uptake in social networking with sites such as Facebook and Renren being extremely popular.

Practice areas – the obvious suspects

With so many people using social media it is not surprising it has affected the application and practice of law. Some practice areas such as privacy, defamation and intellectual property have a long and well documented relationship with the web. They have become almost synonymous with the internet and by extension social media. It is these “traditional areas” of internet law that many lawyers erroneously believe the issue of social media is contained within. However, with the growth of a more interactive web, issues arising from the use of social media have crept into practice areas not traditionally seen as part of the social media landscape. Recent years have seen areas such as family law, criminal law and employment law becoming notorious for their interaction with social media.

Family law

In family law perhaps the most provocative case involving social media is that of the “four Italian sisters”. This 2012 matter surrounded the return of four girls to their father in Italy. There was much media and public discussion in print, broadcast and social media about the case. A major issue was the production of a Facebook page entitled “Kids Without Voices”. The page claims to have been started by the children at the centre of the matter.3 The page continued to publish information about the sisters even after they were returned to Italy.

Criminal law

An area of concern for individuals and governments is criminal law. Online bullying, stalking, harassment and pornography have become prevalent. Many of these issues have created much public concern and debate. An example of a government response came in May 2013 with the tabling of the Victorian Parliament’s Law Reform Committee report on the Inquiry into Sexting.4 Sexting refers to the sending of sexually explicit images by mobile phone or social media. In many instances these images are sent or received by a minor, thus creating a clash with child pornography laws. The Victorian Government tabled its response on 10 December 2013,5 accepting in whole or in principle most of the recommendations made by the committee. These included the introduction of a specific sexting offence and the creation of appropriate defences to offences to ensure that the policy objectives of the committee’s report were met.

Employment law

There are regularly reports in the media regarding claims for unfair dismissal resulting from a social media post. The matter of Banerji v Bowles6 is interesting for the issues of private life verses public life. Here Michaela Banerji was employed by the Department of Immigration. She posted critical tweets of the government’s immigration policy. While the matter was decided on several issues such as “no implied right (or freedom) of political expression” in terms of social media this case highlights the fact that even anonymous posts can lead to termination of employment. The matter is ongoing.7

Practice areas – the not-so-obvious suspects

The way in which some practice areas have obtained much of the spotlight in relation to social media can lead to the false impression that social media still has limited reach into the practice of law. However, as social media takes on a larger role not only in our personal lives but also in our business lives, unexpected practice areas are now having to grapple with the intricacies of social media.

Business law: Social media and goodwill

Businesses now invest heavily in social media, not only as a marketing tool but as a primary means of communicating with customers. As a consequence, novel issues have arisen in relation to ownership of accounts on sites such as Twitter, LinkedIn and Facebook. What could be described as “social media personas”, these accounts can represent a large amount of a business’s social media capital. In early 2013 Jim Roberts, an editor with The New York Times, changed his Twitter account name (commonly known as a handle) from @nytjim to @nycjim. In doing this, when he left The New York Times he retained his 75,000-odd Twitter followers. Roberts subsequently took a position as executive editor at Reuters Digital, no doubt giving them the benefit of his followers. In response to the issue, The New York Times stated that it did not have a “specific policy in place”.8 This has more to do with The New York Times’ informal approach to their journalists’ use of social media9 as opposed to any actual policy neglect. However, it should be noted that while there is a close connection here to employment law, more and more social media personas are linked to a business brand.

For some businesses, especially small businesses, this issue may have implications for the sale of goodwill. It is noted that the Standard Contract for the Sale of Business (VIC 2010) does not deal with the issue of social media personas. There are parts that deal with the transferring of internet domain names and internet websites but this is where the matter ends.

Company Law: Tweeting company information

In April 2013 the US Securities and Exchange Commission issued a ruling allowing companies to use social media sites such as Facebook and Twitter to communicate company announcements.10 It is unlikely that there will be a similar announcement in Australia because of the current ASX listing rule requiring first disclosure to the market to be made through ASX’s Market Announcements Platform. This does not mean that the ASX is not concerned with the effects of social media on market sensitive information and corporate disclosure obligations. In their reissued Guidance Note 8 on Continuous Disclosure, the ASX strongly encourages that under certain circumstances a listed entity should monitor “any investor blogs, chat sites or other social media it is aware of that regularly post comments about the entity”.11

Consumer law: False reviews

Social media is further complicating matters for businesses by giving consumers the ability to openly, widely and often anonymously discuss products and services. Businesses can take advantage of good reviews posted by customers in the hope of attracting more business. This practice has created concern for regulators and business in that some businesses either post fake reviews or allow misleading reviews to remain active on their own website. Justice Finkelstein stated in ACCC v Allergy Pathway Pty Ltd12 that the company was responsible for misleading reviews that customers had written on the company’s Facebook page because the company knew of the Facebook posts, had the power to remove them and did not take steps to do so.

The social media paradigm shift

As with the introduction of many technologies before it, the intricacies of social media might take time for some people (lawyers included) to get used to. The technology requires a shift in thinking in that never before have the boundaries of our private, professional, business and cultural lives been so blurred. One problem regularly identified is that the personal nature of social media leads some people to believe it is a private affair. They therefore post comments they would not normally make in a public arena. In some cases this ignorance has been used as an excuse for posting improper material. It has already been noted that the excuse of ignorance about the technology might not last. In Linfox Australia Pty Ltd v Glen Stutsel13 the Full Bench of Fair Work Australia noted that “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”.

New legal issues

To make matters even more complicated, the ever-changing nature of social media and the technology behind it keep creating new issues that the law must contend with. Social media can incorporate information from other technologies. Because of the popularity of social media, as new technologies develop it is highly likely that they will have some sort of social media interconnection. New and developing technologies that will no doubt have an impact include facial recognition (for photo sharing), geo-location and check-in services such as Foursquare,14 and wearable technologies such as smart watches and Google Glass.

Conclusion

With the ever expanding presence of social media, some take-home points should be remembered:

  • Lawyers need to be mindful of the reach that social media has into every aspect of people’s lives and therefore the law affecting them.
  • Social media can benefit people in many ways, but there are hidden legal traps for the unsuspecting. Those traps are not just for people who are unfamiliar with social media. Because of the fast changing nature of the technology and its application, long-time users of social media should not become complacent.
  • New technologies are constantly coming on the market and the ways of using technology are continually evolving. Lawyers must be diligent in understanding the risks social media poses to their particular practice area.
  • Expert advice should be sought if a practitioner is unsure of the use of the technology or its impact on the law.

While the implications of social media and its effect on the law can be a paradigm shift for lawyers, it should be remembered that in essence there is little new law surrounding these issues. Most of the issues can be dealt with through the application of existing laws to new technologies.

Fabian Horton is a lecturer at the College of Law Victoria. He is also the director of the online legal practice ConnectLaw Australia.

1. See Pei-Sze Cheng “FOMO: The Unintended Effects of Social Media Addiction” www.nbcnewyork.com/news/local/Social-Media-Is-Causing-Anxiety-and-Depression-122260279.html 20 May 2011. Accessed 23 December 2013. And: International Center for Media & the Public Agenda (University of Maryland) “The World Unplugged” theworldunplugged.wordpress.com. Accessed 23 December 2013.

2. Joanna Brenner and Aaron Smith “72% of Online Adults are Social Networking Site Users” Pew Research Centre. 5 August 2013, pewinternet.org/Reports/2013/social-networking-sites.aspx Accessed 12 September 2013.

3. Facebook page “Kids without voices” accessed 23 December 2013.

4. www.parliament.vic.gov.au/images/stories/committees/lawrefrom/isexting/LRC_Sexting_Final_Report.pdf. Accessed 26 September 2013.

5. See www.parliament.vic.gov.au/images/stories/Govt_Response_Sexting_Inquiry.pdf. Accessed 24 December 2013.

6. [2013] FCCA 1052 (9 August 2013).

7. ABC “Tweeting public servant rejects offer to settle out of court”, ABC online, 15 January 2014, http://www.abc.net.au/news/2014-01-15/tweeting-public-servant-rejects-offer-to-settle-out-of-court/5201986>, Accessed 21 January 2014.

8. Jeff John Roberts “New York Times editor to take 75,000 Twitter followers out the door with him”. 24 January 2013 http://paidcontent.org/2013/01/24/new-york-times-editor-to-take-75000-twitter-followers-out-the-door-with-him/. Accessed 18 May 2013.

9. Jeff Sonderman “Why The New York Times eschews formal social media guidelines” 11 July 2012. www.poynter.org/latest-news/mediawire/180455/why-the-new-york-times-eschews-formal-social-media-guidelines-for-staff/ Accessed 28 January 2014.

10. Joshua Gallu “SEC Approves Using Facebook, Twitter for Company Disclosures”. Bloomberg (online), 4 April 2013 www.bloomberg.com/news/2013-04-02/sec-approves-social-media-use-for-companies-material-disclosure.html.

11. ASX “ASX Listing Rules Guidance Note 8 – Continuous Disclosure: Listing Rules 3.1 – 3.1B” Reissued 1 May 2013 www.asx.com.au/documents/rules/gn08_continuous_disclosure.pdf. Accessed 23 November 2013.

12. (No 2) [2011] FCA 74.

13. [2012] FWAFB 7097 at 34. Note: A judicial review of this decision [FCA-NSD1623 /2012] is pending though the writer contends that this does not diminish the sentiment of the statement quoted.

14. Foursquare.com.


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