Tag Archives: social media law

September 23, 2011 · 10:21 am

Judges and social media – lessons from the Canadian CJ’s oration: #law

My journalism law students were treated to a rare excursion in their first week of semester last Thursday (September 15) when we took the train to Brisbane to hear Canadian Chief Justice Beverley McLachlin speak on ‘Courts and the Media’.

It was the annual Supreme Court Oration, hosted by Queensland Chief Justice Paul de Jersey who my students heard speak on a similar topic in February this year at Bond University.

Chief Justice de Jersey has been a pioneer in embracing new technologies and advancing open justice and has allowed journalists’ recording of proceedings for accuracy purposes (not broadcast) as the default position in Queensland courts.

He gave us advance approval to report McLachlin CJ’s oration via a live Twitter feed to the #cjcqld stream which some of you might have followed.

It was a superb introduction to the subject for my students, as McLachlin CJ traced the basic principles of open justice and assessed the best and worst aspects of the relationship between the judiciary and the media.

It was interesting that the speech seemed to receive no media coverage – or at least none that I can find over the past week – so our Twitter feed seems to be the only record of the speech until the Chief Justice’s staff process and release the full text after her return to Canada.

I have republished all my own tweets from the speech below for your gratification. I deleted my students’ tweets simply because I wanted to get this blog posted and would want to seek their permission before posting them, but you might find them by searching for the #cjcqld hashtag within Twitter. (The tag stands for “Chief Justice of Canada in Queensland” but coincidentally echoes the acronym of a former anti-corruption body in this state – the Criminal Justice Commission.)

You can get the gist of the oration from the tweets below, but here I wanted to draw your attention to the only tweet where I editorialised on the Chief Justice’s comments.

It came at a point where she was questioning whether accuracy and fairness in the reporting of court proceedings would suffer in the era of new technologies and social media.

I tweeted: “McLachlin CJ: How can 140 characters of Twitter report a complex High Court case effectively? #cjcqld (Like this, CJ!)”

The chief justice admitted on several occasions during her insightful address that she did not claim expertise in new technologies – particularly social media.

But this particular comment proved the point. We proved it was quite feasible to report her oration via Tweets posted to a hashtag where anyone following could take in the complexities of her argument, albeit in bite-sized capsules.

We do not claim to be trailblazers – conference presentations are being covered via hashtags on Twitter throughout the world as you read this.

The same approach can quite easily apply to a complex court case, and has indeed already been allowed, pioneered here in Australia by a Federal Court judge in the iiNet piracy case in Sydney two years ago.

Picking up on this small point might appear pedantic, and certainly no disrespect to McLachlin CJ is intended.

I am in awe of the level of specialist knowledge senior judges need to absorb in almost every case in the modern era. They need to come to grips with the most technical aspects of obscure areas of the law, along with much of the expert knowledge so crucial to understanding the context of the facts and expert witness testimony in a host of areas.

New technology presents yet another challenge for them in what is already a daunting learning curve.

As Reuters has reported, US Supreme Court Justice Stephen Breyer set up both Facebook and Twitter accounts, which he used to monitor discussion rather than participate himself. But Justice John Roberts was reported in the Huffington Post in June this year admitting he did not even know what a tweet was.

Slate has followed the debate in the judiciary over the use of social networking.

Given the rate of uptake of social media in its various forms globally over the past five years, it is worrying that some leading judges in our highest courts remain relatively ignorant of its basic functions and applications.

We cannot expect them to become instant experts on everything, but they at least need to have a working lay knowledge of new technologies if we are to remain confident that they will make informed decisions when legal issues arise.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

@journlaw tweets of Canadian Chief Justice Beverley McLachlin’s Supreme Court of Queensland Oration on Thursday, September 15, 2011:

Canadian CJ Beverley McLachlin about to speak on ‘Courts and the Media’ in Brisbane. Coverage at #cjcqld

Qld CJ de Jersey introducing Canadian CJ McLachlin: Canada: ‘that other great democracy of the northern hemisphere’ #cjcqld

McLachlin CJ: court-media relationship not always comfortable: sometimes concentrate on prurient and sensational #cjcqld

McLachlin CJ: free press and independent judiciary combine to foster the rule of law. Media helps build confidence in judiciary #cjcqld

McLachlin CJ: “public confidence in the judiciary is essential to the rule of law” #cjcqld

McLachlin CJ: speaking about the Rule of Law Index and what it says about nations’ cultural acceptance of rule of law #cjcqld

McLachlin CJ: judiciary’s power rests in the confidence of the people #cjcqld

McLachlin CJ: fundamental to building confidence is to publicise what the courts and justice do. #cjcqld

McLachlin CJ: open justice helps educate the public and ensure judges’ accountability and has a therapeutic function #cjcqld

McLachlin CJ: qld cj is leading champion of open justice #cjcqld

McLachlin CJ: open courts principle works because of the media … the means of communicating proceedings to the public at large #cjcqld

McLachlin CJ: paradoxically media also uniquely placed to undermine public confidence in judiciary #cjcqld

McLachlin CJ: gives Canadian child pornography decision where media focussed on judge rather than issues. #cjcqld

McLachlin CJ: sensationalised media trials run parallel to courtroom trials #cjcqld

McLachlin CJ: Uses example of media coverage of Casey Anthony trial and impact on Florida justice system implying jury got it wrong. #cjcqld

McLachlin CJ: they promoted the tv verdict over the court verdict #cjcqld

McLachlin CJ: Where justice is sensationalised or trivialised the damage to confidence can be profound #cjcqld

McLachlin CJ: need to encourage fair and accurate coverage. Restricting info won’t work #cjcqld

McLachlin CJ: Holding reporters in contempt won’t build confidence either #cjcqld

McLachlin CJ: needs positive interactive approach to the media … Not seeing media as enemy to be avoided at all costs #cjcqld

McLachlin CJ: Court info officers play a useful role #cjcqld

McLachlin CJ: Canada has court-press liaison committee to foster positive relationships and improved coverage #cjcqld

McLachlin CJ: need coverage that is accurate, prompt and complete#cjcqld

McLachlin CJ: Canadian Executive Legal Officer has press briefings function as source of info and background briefings. 3yr term #cjcqld

McLachlin CJ: whatever cts can do to help journalists report accurately can only improve public confidence in justice #cjcqld

McLachlin CJ: Promptness vital to press. Canada has media ‘lockups’ where media allowed to arrive an hour early and read judgments #cjcqld

McLachlin CJ: third mutual interest: appropriately complete reporting of proceedings and decisions #cjcqld

McLachlin CJ: Qualified completeness because some restrictions needed on children, sexual matters etc #cjcqld

McLachlin CJ: Media technology in courts must not impact in any negative way on admin of justice #cjcqld

McLachlin CJ: TV cameras in court: gives several reasons against … Privacy, intimidation, disturbance, sensationalising #cjcqld

McLachlin CJ: But cameras also allow public to see and experience the court … Maximum open justice #cjcqld

McLachlin CJ: Canadian practice is to not allow tv cameras in trial courts, but allow stationary cameras in Supreme Court #cjcqld

McLachlin CJ: Appellate courts started to allow cameras, but networks not that interested #cjcqld

McLachlin CJ: closing on cautionary note: identifying which media to work with is becoming more difficult as social media takes off #cjcqld

McLachlin CJ: Profound cultural shift in how media is communicate signals shift in who reports court proceedings #cjcqld

McLachlin CJ: anyone with a keyboard and a blog can report their version of a court case and who is to say they shd not? #cjcqld

McLachlin CJ: blogs not always objective or thoughtful and sometimes hurtful. Will accuracy and fAirness be casualties of new era? #cjcqld

McLachlin CJ: How can 140 characters of Twitter report a complex High Court case effectively? #cjcqld (Like this, CJ!)

McLachlin CJ: “It is crucial we understand the technology and how it is being used.” “Personally, I struggle with it” #cjcqld

McLachlin CJ: relationship betwn crts and media “is one of inescapable interdependence” #cjcqld

McLachlin CJ: The media and the courts are locked in a sometimes uncomfortable embrace. #cjcqld

McLachlin CJ: “What is at stake is nothing less than the rule of law.”#cjcqld

Bond student @fionaself asked about the impact of social media on defamation. CJ: should be no relaxation in law for new media. #cjcqld

McLachlin CJ: Talks about the prickly issue of defamation via hyperlinks … Doesn’t know how it will be decided. #cjcqld

McLachlin CJ: We do not have a court blog. Consensus in Canada is that judges should not be on Facebook, but some pushing boundaries #cjcqld

Applegarth, J. asks whether instant access to transcripts shd be available via live streaming. She says maybe but cautious re impact#cjcqld

McLachlin CJ: Juries researching on web … We hope juries will follow instructions not to. Problems in jurors contacting accused #cjcqld

Q on judges becoming celebrities like Judge Judy. McLachlin CJ: Canada being what it is, I’m not a celebrity and am not recognised. #cjcqld

McLachlin CJ: “Courts are there to serve the public so they have to account to the public.” #cjcqld

McLachlin CJ oration has ended and so has our live Twitter stream. Thanks for following! : #cjcqld

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September 6, 2011 · 10:01 am

Ancient lèse majesté laws an anachronism in the cyber era

By MARK PEARSON Follow @Journlaw

Australian writer Harry Nicolaides was about to board the midnight flight from Bangkok to Melbourne on August 31, 2008 for a job interview with a major hotel group.

Officers approached him at passport control and he was then arrested and interrogated.

He recounted in The Monthly what happened next:

“In a dark, damp cell I stripped off my clothes and laid them on the floor, fashioning a bed with my shoes as a pillow. Sleep was impossible: I was thirsty and hungry, confused and alone.

“In the morning I made a short court appearance, before being handcuffed and shuffled onto an overcrowded prison bus bound for the Bangkok Remand Prison.”

Nicolaides was carrying no drugs or firearms and was not laundering money for international crime syndicates. As I wrote in The Australian at the time, his crime was that he had written a just few sentences deemed to be insulting to Thailand’s crown prince in a self-published work of fiction that had sold just a handful of copies.

Those words typed on a computer keyboard earned him a traumatic six month stay in an overcrowded ‘Bangkok Hilton’ as he tried to navigate court appearances and brief lawyers and diplomats trying to negotiate his freedom. He was ultimately released on a royal pardon.

Welcome to the law of lèse majesté – a crime dating back to Ancient Rome punishing a range of behaviours seen as insulting to a sovereign.

Other nations have lèse majesté laws or similar. Journalist Bashar Al-Sayegh spent three days in jail in 2007 just because someone else had posted insulting comments about the emir of Kuwait on his website. And Australian woman Nasrah Al Shamery spent five and a half months in prison in the same country in 2009 because she had allegedly insulted the emir during an argument in an airport terminal.

Brunei, Denmark, Netherlands, Spain and Morocco also have lèse majesté and each has used them to prosecute insults to their royal families in recent years.

Poland, Germany, Switzerland, the Maldives, Egypt, Syria, Kazakhstan, Belarus, Zimbabwe and Greece have crimes related to the denigration of heads of state of foreign countries or their own. They have been used several times this century, as the BBC has reported.

But the country most active in its lèse majesté prosecutions has been Thailand, a nation with an otherwise free and vibrant media.

As many as 100 people a year have been charged with the offence there in recent years, with several unsuspecting foreigners languishing in jail because of their published criticisms of royalty. US-Thai resident Joe Gordon from Colorado was formally charged in August after being detained for 84 days on a charge of translating an unauthorised biography critical of the king.

The prosecutions are so harsh and random that foreign academic experts who have criticized the law have decided not to visit Thailand for fear of arrest over their publications and statements.

US academic David Streckfuss has written a book on the issue and has criticised the political nature of the charge in the modern era, describing it as anachronistic and “a tawdry and naked attempt to use the institution to suppress views”.

He has called for its use only with the king’s consent because it directly contradicts the Thai constitution’s guarantee of free expression.

“Otherwise, the lèse majesté law in Thailand will ever be ready at hand to serve as a weapon in the political arena, always to the detriment of the institution the law intends to protect,” he wrote.

The critics point out that it is not the monarchy itself that pursues the lèse majesté charges, but rather the government of the day via its agencies.

Thailand has a complex political structure, with democracy, the military and royalty all in the mix. Its citizens have such a strong devotion to the royal family that lèse majesté arrests can be used as political devices to win popular support for those pressing the charges.

In an era of globalised products and a certain sameness about many travel experiences we celebrate distinctive cultural differences about countries like Thailand.

But sometimes we must take an international stand against laws that are depriving both the citizens of these countries and visiting foreigners of their liberty because something they have written or said has been targeted for political purposes.

In the meantime, if you are an author, academic, blogger or journalist who has written about lèse majesté – or, worse still, if you have criticised the monarchy in any of these countries – you should review your next travel itinerary carefully. Like Harry Nicolaides, you might not rate your stay at the ‘Bangkok Hilton’ very highly.

© Mark Pearson 2011

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Tagged as blogging, defamation, First Amendment, free speech, law, lese majeste, media, royal, social media law, Thailand, travel warning

August 29, 2011 · 10:58 am

Why I just wrote my last #LinkedIn recommendation

The trendy online reference seems flawed – both professionally and legally.

By MARK PEARSON Follow @Journlaw

I see it as an important responsibility of my position as a professor to act as a referee for my former students and colleagues when they are job hunting.

I stopped writing formal general references many years ago because the practice seemed to have lost almost all credibility with employers.

Instead, I now agree to be a ‘referee’ and will only write a formal reference when an employer requests one.

But over the past couple of years I have been getting more requests for ‘recommendations’ from my connections on the social-professional network LinkedIn.

Not wanting to offend my former students and colleagues, I have obliged. Until now. I’ve investigated it further and have just written my final LinkedIn recommendation.

There are all the standard HR reasons why such recommendations are not worth a pinch of salt: they are time consuming, too general, and always glowing.

In 2009, Silicon Valley web strategist Jeremiah Owyang described LinkedIn recommendations as ‘puffery’.

“When I see recommendations on LinkedIn, my alarm goes off,” he blogged.

“I know most are not objective.”

LinkedIn responded to his criticisms on their official blog, with Adam Nash highlighting the benefits that can come from recommendations. He claimed the process could be mutually rewarding for the recommender and recommendee.

Perhaps so, but others have explored the employment law issues of the practice.

Employment attorney Shay Zeemer Hable offers a host of reasons why such references are fraught in labor law – with claims of defamation and unfair dismissal heading the list.

“Every discrimination plaintiff seeks to prove his employer is lying about the reason for the firing,” he writes.

“As a result, savvy attorneys will search the Internet for any comment that is inconsistent with the company’s official message about the reason for the termination.

But the area that concerns me most is defamation.

It’s not because of the risk of defaming the person you are recommending. My understanding is that they have to approve your recommendation before posting it, so I can’t imagine someone letting a disparaging comment slip through.

My concern is more with the impact of a glowing LinkedIn recommendation on the defamation defence you need to protect your harsh comments in the real reference you give later.

What happens if you later contradict your original glowing recommendation in your frank verbal or written advice to the employer when they contact you about this person you have recommended?

Australian law provides a strong qualified privilege defence for the negative job reference -restricted to those who have a genuine legal interest in knowing the your truthful opinion about a prospective employee.

But, as the Legal Services Commission of South Australia explains, it requires the ‘publisher’ – he or she who has written the reference – to have acted in good faith and without malice. You also need to believe in the truth of the material you are providing about the individual.

That could be damaged in a major way if the plaintiff can point to your contradictory glowing recommendation on LinkedIn, particularly if it covers the same aspects of their character.

A court would be hard pressed to find you have acted in good faith if you have offered conflicting versions of your opinion about the employee in separate ‘publications’. Exactly when were you giving your honest opinion?

I might be drawing a long bow here – and perhaps some readers can point me to some cases where this has been tested – but for the moment I certainly won’t be writing any more LinkedIn recommendations, and I will be directing my colleagues and students to this blog to read my reasons.

I’d be interested to hear your views.

© Mark Pearson 2011

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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August 23, 2011 · 9:48 am

First Amendment doesn’t have a passport #law #blogging #media #defamation #censorship

By MARK PEARSON Follow @Journlaw

It might only be 45 words long, but if you are an American journalist, blogger or social media user you can’t pack the First Amendment in your luggage when you travel abroad.

The famous 14 word portion protecting free expression in the United States – ‘Congress shall make no law … abridging the freedom of speech, or of the press’ – does not travel well when your Web 2.0 material is viewed in foreign lands.

That shouldn’t worry you if you have published within US law and are happy to sit at home in North Dakota or Hawaii tapping away on the device of your choice.

But you should think twice before stepping on an aircraft and touching down in a jurisdiction where there are tougher gags on free expression.

Of course, you don’t have carte blanche at home, either. Even the US draws the line at criminal publications involving prohibited materials like child pornography or engaging in criminal activity such as fraud or terrorism.

But there are many things you can publish on social media or on blogs in America that can trigger lawsuits, harsh fines or jail terms in some countries.

Here are some situations where your First Amendment won’t help out:

Hate speech: A US District Court decision in 2011 reinforced the strong protections for angry and inflammatory words under the First Amendment. Judge Lynn Adelman had to consider the free expression rights of neo-Nazi Bill White who was charged over using a website to advocate violence against the ‘enemies’ of white supremacy, including a juror in the trial of a fellow extremist. Judge Adelman allowed his appeal on the grounds that he had not made a direct call to violence against the juror and that White’s speech had First Amendment protection. Judge Adelman explained that the US Constitution ‘…protects vehement, scathing, and offensive criticism of others, including individuals involved in the criminal justice system, such as Juror Hoffman’. He ruled that even speech advocating law-breaking was protected unless it was directed at inciting immediate lawless action and likely to prompt it. The decision sits with earlier Supreme Court hate speech judgments which have found that all but communications integral to criminal conduct – fighting words, threats and solicitations – have free expression protection in America. This is not the case in most other countries, where such comments can see you fined or jailed under laws of blasphemy, vilification or race hate. Australian historical revisionist Fredrick Toben was jailed in Germany for publishing Holocaust denial material on the Internet. In Nigeria, Algeria, Egypt, Tunisia, Sudan and some Middle Eastern countries offenders can be jailed or even executed for blasphemous statements or actions.
Immunity for comments of others: In the US, s. 230 of the US Communications Decency Act (1996) gives immunity to anyone hosting the comments of third parties. It states clearly: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Internet service providers (ISPs) and bloggers are protected from actions over material published without their knowledge on sites they host. This is not the case in many other countries. Earlier this year an Australian Federal Court found a health company was responsible for Facebook and Twitter comments by fans on its accounts in defiance of a court order that the company not make misleading claims about its allergy treatments. The court ruled that the company should have taken steps to remove the comments as soon as it had become aware of them, as Addisons Lawyers explained. The company and its director were fined $7500 each. In the Middle East, anonymous political comments by a blogger on the website of Bashar Al-Sayegh landed the Kuwaiti journalist in jail for three days in 2007. He was charged with insulting the emir of Kuwait and called upon to explain how he allowed the comments to remain on his site for several hours.
Defamation: Under special US protections, you can get away with false publications about celebrities and other public figures as long as you are not being malicious in your attacks. Again, you need to be wary of less forgiving laws in other places, particularly if the celebrity has a reputation they wish to defend elsewhere – people like British actor Hugh Grant or New Zealand film-maker Peter Jackson. The strong US defence stems from New York Times v. Sullivan (1964), where the Supreme Court invoked the First Amendment to rule that public officials had to meet tough new tests before they could succeed in a defamation action, even if the allegations were false. In the US, plaintiffs need to prove the falsity of the material, while in the UK and its former colonies the burden is on the publisher to prove the truth of libellous material. ‘Public figures’ in the US also have to prove the publication was malicious before they can win their cases. All this means you face much less chance of libel action in the US over your writing on important public matters, but you need to be careful if you are posting scandalous material about private citizens, particularly if you know the allegations are untrue. Rock icon Courtney Love learned this $430,000 lesson earlier this year. In Canada, the UK and Australia the ‘responsible communication’ or ‘qualified privilege’ defence requires the publisher to demonstrate that they made proper inquiries in the lead-up to their defamatory expose of an issue of public concern, even though they were ultimately unable to prove its truth.
Exotic foreign laws: The countries of the world with the highest level of censorship maintain tight control over expression and take firm action against online writers who use the Internet to question their authority. This is when the blogger becomes a ‘dissident’ and any use of new media for political expression – or even the use of certain media at all – can land the offender in jail. Reporters Without Borders has released a list of enemies of free Internet speech (pdf file): Burma, China, Cuba, Iran, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan and Vietnam. They are countries where bloggers, journalists and other ‘dissidents’ have been imprisoned or tortured for daring to write what they think or for encouraging others to do so. Even Thailand, a nation with a relatively free and vibrant media, issues lengthy jail terms under its ‘lese majeste’ laws for any material critical of its royal family. Colorado resident Joe Gordon was detained for 84 days in Thailand this year and faces a charge of translating an unauthorised biography critical of the king.

So, what does it all mean for the average American journalist, blogger or microblogger? Quite simply: think before you publish, and think before you travel.

You won’t be extradited and tried by aliens if you keep within the law of your own country. But you should revise your travel itinerary to avoid countries whose governments or citizens may have been offended by your blogs or postings.

If you have been particularly provocative in your writing and you really must travel then consider your other 54 US state and territory jurisdictions or perhaps pack your bags for a Scandinavian vacation. While they don’t have a First Amendment, those countries usually come in well ahead of the US on the Freedom House and RSF free expression rankings.

© Mark Pearson 2011

Why the #law stops you venting on #Facebook and #Twitter about the #Morcombe case

By MARK PEARSON Follow @Journlaw

[For readers outside Australia, please see background and coverage links in the Courier-Mail]

Child sex crimes rank among the most offensive and upsetting actions of human beings upon each other, so it is little wonder that people want to vent on social media when an arrest occurs in a high profile case like the Daniel Morcombe murder.

Ordinary citizens need to realise that their comments on Facebook, Twitter and other websites are ‘publications’ in the eyes of the law, and there are three types of restrictions in Queensland applying to such cases.

1. Suppression order on identities of witnesses. In this case the main factor limiting publication of the accused’s identity was a non-identification order placed on the names of witnesses during an earlier inquest into the victim’s disappearance. The Queensland Coroner lifted this ban on the identification of the accused on the afternoon of August 16, after media representation, so he can now be named as part of a fair and accurate report of court proceedings. See: http://www.abc.net.au/news/2011-08-16/morcombes-alleged-killer-named/2842126

2. Ban on identification of the accused in certain sex cases. The law in Queensland is similar to that of South Australia, which I have blogged about previously. In Queensland, the preliminary proceedings can be reported, but the identity of the accused must remain secret until after they have been committed for trial (Criminal Law (Sexual Offences) Act 1978, s. 7). It carries a two year jail term. The laws differ from those in other Australian states and territories where only the identity of the sex crime victim is suppressed. (In other states and territories, the accused in a sexual crime can be identified unless their identity might lead to the identification of the victim or unless a judge or magistrate decides to suppress the identity on other public interest grounds.)

3. Ban on prejudicial coverage. Once a suspect has been arrested OR charged with a crime, there are tough restrictions about what can be published about the matter in that jurisdiction. This is because our justice system works on the assumption that an accused is innocent until PROVEN guilty in a court of law. Just because police have arrested someone does not mean that person is guilty. There are too many examples of miscarriages of justice over the years for us ever to assume that an arrest means guilt. Until the person has been either convicted or acquitted, the matter is ‘sub judice’ (Latin for ‘under a judge’). You face serious fines and jail terms for sub judice contempt, as talkback hosts Derryn Hinch and John Laws have learned.

As we explain in The Journalist’s Guide to Media Law, the main areas of concern during the sub judice period include: any indication of prejudgment (whether as to guilt or innocence), publishing potentially inadmissible evidence, publishing witnesses’ statements beyond what is given in evidence in court, revealing criminal records and alleged confessions of the accused, or identification of the accused where it may be an issue in the trial (always assume it will be).

It is no defence to your sub judice contempt charge that others did the same thing (just as it is no defence to a speeding charge to say that you were following a car going 20 km/h faster).

Adverse publicity can even result in a mistrial or even an acquittal, which is the last thing most social media commentators would want in a sex or murder trial.

It is especially difficult for social media users and bloggers untrained in media law to navigate all these rules so the best policy is to avoid comment on any matters before the courts until the justice process has run its course. Leave that to the trained, professional journalists who report with the backing of experienced editors and legal advisers.

© Mark Pearson 2011

How #bloggers can apply the Kipling formula to social media #law

By MARK PEARSON Follow @Journlaw

Rudyard Kipling explained the secret to good writing in his poem The Elephant’s Child:

“I keep six honest serving-men (they taught me all I knew);

Their names are What and Why and When and How and Where and Who.”

A century later, we still use those serving-men to teach news writing but they can also be used as a lens to consider cyberlaw and how it applies to the online writer. Each raises legal questions and highlights the risks you face.

Who? #YesYouAreLiable…

There are several ‘who’ elements to the online writing enterprise – and each can have an impact on your legal liability for what you write.

Identity and anonymity are important issues in the law of online authorship, and I devoted my last blog to the way courts have considered the latter.

Most bloggers cherish their independence, but this comes at a price. If you are the sole publisher of your material, then prosecutors and litigants will come looking for you personally. Those who write for larger organisations or companies share that responsibility. A litigant can still sue you as the writer, but they might choose to target your wealthier publisher – particularly if you are an impoverished freelancing blogger. In the 20^th century, large media organisations would usually cover the legal costs of their reporters or columnists if they were sued and give them the services of their in-house counsel to guide them through any civil or criminal actions. Most of the so-called ‘legacy media’ still do that today, so if you are a mainstream journalist or columnist thinking of going solo with your blog you might factor this into your thinking. Another advantage of writing for a mainstream publisher is that your work will be checked by editors with some legal knowledge and perhaps reviewed by the company’s lawyers before being published.

A crucial ‘who’ element is your audience. Many areas of the law only require your publication to reach single person for you to be liable for its content. (In the case of libel, it needs to be a third person beyond you and the person you are defaming.) You might think you are just corresponding with your cosy group of Twitter followers or Facebook friends – all with a shared sense of humour or sarcasm – but your remark can be detected when it is forwarded or retweeted to someone else and can go viral very quickly. As soon as it comes to the attention of the authorities or counsel for the person you have offended, the courts will only look to the fact that you were responsible for the original publication.

If others add to your words with more inflammatory material of their own, they carry responsibility for the new publication. Think twice before retweeting or forwarding the legally dubious material of others, because this becomes a new publication under your own name, so at the very least you will share the legal liability with the original publisher. And of course never retweet, ‘like’ or forward anything without reviewing it thoroughly first.

Of course then there is the ‘who’ element related to the people you name in your blog or social media posting. These can present legal risks. Sometimes people cannot be named because their identities are protected under legislation because they are children, victims of sex crimes, or vulnerable in some other way. Courts can also suppress people’s identities for other reasons, and sometimes even suppress the fact that they have issued a suppression order, known as a ‘super injunction’, as journalists and Tweeters in the UK are well aware.

What? #…ForAlmostAnything

Lawyers and prosecutors will of course look closely at ‘what’ has been published to decide whether your work is a criminal offence or might be subject to a civil action.

Throughout the world all kinds of online material has been the subject of legal action. This has included the publication of words, symbols, still and moving images, sounds, illustrations, headlines, captions and links. Sometimes it is the very words alone that are banned (such as the name of a victim of a sex crime) while on other occasions it is the totality of the coverage that gives rise to a meaning that damages a reputation or intrudes (such as a photograph of someone accompanying a negative story). In some countries it is the publication without a licence that is banned.

When? #…NowAndThenAndForever?…

The instant nature of new media does not mix well with an online writer’s impulsiveness, carelessness or substance abuse. There is an old saying: ‘Doctors bury their mistakes. Lawyers jail theirs. But journalists publish theirs for all the world to see’. That can be applied to anyone writing online today. At least in bygone times these mistakes would gradually fade from memory. While they might linger in the yellowing editions of newspapers in library archives, it would take a keen researcher to find them several years later. Now your offensive or erroneous writing is only a Google search away for anyone motivated to look.

British actor Stephen Fry learned this in 2010 when he tweeted his two million followers, insulting Telegraph journalist Milo Yiannopoulos over a critical column.

“Fry quickly deleted the tweet once others started to latch on to it, but as we know that rarely helps when you’ve posted something injudicious online: the internet remembers,” Yiannopoulos wrote.

This also creates problems for digital archives – because if the material remains on the publisher’s servers it is considered ‘republished’ every time it is downloaded. This means that even where there might be some statutory time limitation on lawsuits, under some interpretations the clock starts ticking again with each download so you do not get to take advantage of the time limit until you have removed the material from your site.

A New York District Court considered whether material was actually ‘published’ when it was posted to the Internet. In Getaped.com Inc v. Cangemi, a motor scooter business claimed parts of its website had been copied. Cangemi argued the website was not a publication, but rather like a ‘public display’ or performance. Judge Alvin Hellerstein said ‘when a webpage goes live on the Internet, it is distributed and “published”’.

Where? #…JustAboutAnywhere…

The Dow Jones v. Gutnick decision by Australia’s High Court in 2002 showed just how long the arm of cyberlaw could be. In that case it stretched all the way from Melbourne, Australia, to allow a businessmen to take suit against a publisher based in New Jersey, USA. The same kind of thing happened this year when a Californian court ordered US-based Twitter to hand over the name, email address and phone number of a British-based local government councillor whose council wanted to sue him for defamation over comments he had allegedly posted anonymously. A year earlier the same South Tyneside council had also managed to have Google and the blogging site WordPress ordered to hand over IP addresses to identify a whistleblower.

While foreign countries cannot normally enforce their laws beyond their borders, you might be called to account for your blogs and postings under their laws if you happen to travel there. And citizens in other countries can go to court and get a declaration against you in your absence, perhaps ordering you to pay a certain sum in damages for something you have published.

Depending on the international legal agreements in place, the courts in your jurisdiction might be empowered to apply the laws of another state or territory in a case against you. The landmark US case in the field centred around two companies’ dispute over the use of the name ‘Zippo’ – one a manufacturing company and another an Internet news service provider. A Pennsylvania court developed a sliding scale to help it decide whether the web news service had enough commercial dealings in the state for the court to have jurisdiction.

Not that long ago you had to be served personally with a summons for a criminal charge or a writ for the launch of a civil action against you. In many places this can be done online – via email or even via a message to your social media account. The Supreme Court of the Australian Capital Territory became one of the world’s first courts to allow legal documents to be served on defendants via a personal message on their Facebook pages when they had defaulted on their home loan payments. Other methods of contacting them had failed and their house was about to be taken from them.

Why? #…EspeciallyIfYouAreMalicious…

Lawyers, prosecutors and judges will also look to your motives for publishing the material you have written. The motivation that will work against almost any defence in a publishing case is malice. Even the United States, which has one of the strongest defamation defences in the world under its First Amendment freedom of the press protection, will not excuse a slur against somebody if it can be proven to be false and malicious. Malice has a wide range of definitions in international law. Your online behaviour can be used as evidence in court, as well. Lawyers will dig for all kinds of proof that you have been less than honest about your behaviour or have shown a lack of good faith or malice in your dealings.

How? #…SomeMediaAreRiskier

Your method and your medium can be important factors in your legal exposure. The simple fact is that some publishing mechanisms are more law-friendly than others. Sometimes this will depend on the type of material you are publishing. For example, there is an argument that Twitter users may be less prone to copyright infringement because the very nature of the medium limits the amount of another person’s work they can borrow and the retweeting function implies that everyone expects their work to be recycled by others. Photographers and a US District Court judge disagree with this, however. Twitter users might leave themselves more exposed in the area of defamation because there is so little space in which to give context and balance to their criticism of others. Tweeting from an event as it unfolds, such as a conference or a court case, has its dangers because your tweets might contain errors in the quotes of others or might be taken out of context by someone just reading a tweet rather than the overall coverage.

The ‘How?’ legal element can be crucial to several defences. If you have written your blog fairly and accurately it can go a long way to establishing a defence to defamation or a contempt of court charge over a report of a court case.

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You might like to look back over some of your recent blogs, tweets and Facebook postings and apply the 5Ws and the H of legal analysis to them. How well do they shape up? …And who is that knocking at your front door? 😉

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Tagged as anonymous, blogging, courts, Facebook, First Amendment, free speech, law, media, social media law, Twitter

June 20, 2011 · 10:35 am

Police Facebook wall raises fair trial questions

By MARK PEARSON Follow @Journlaw

Sunday Mail reporter Anthony Gough called me last week seeking my views on a Queensland Police Service Facebook site featuring public comments on crimes and arrests.

Of course, before making a media comment on the matter I took a closer look at the site.

I quickly formed the view that it seemed an excellent community policing tool and a great way for police to get information about unsolved crimes but that many comments crossed the line once suspects had been arrested.

One comment called for a firing squad for a suspect charged over an assault on a police officer. A common view was that despite good police work in making an arrest, justice would not be done in the courts and the suspects would get off with a mere ‘slap on the wrist’.

My interview featured in an article in the Sunday Mail yesterday (June 19) headed ‘Police social media site a disgracebook’.

The article became the most viewed item on the newspaper’s site yesterday and remains in the top ten most popular items this morning (June 20).

It has already generated almost 400 ‘likes’ and comments on the police Facebook wall where it was republished with the warning: “A timely reminder why we ask you to familiarise yourself with the terms of use of the QPS page, and to be circumspect in your comments.”

Gough quoted me as saying some of the public comments about arrests could jeopardise convictions and perhaps even lead to acquittals.

“Police need to be concerned about this because prejudicial comments about arrests can actually finish up jeopardising the trial,” I told him.

“It may be counterproductive for a conviction or it may cause a delay.

“Either way it’s a huge cost to the community and I’m surprised the minister for police and the attorney-general are allowing this to continue.”

I questioned whether it was appropriate for the police service to be hosting a site with such comments and suggested it could prompt actions for contempt of court or defamation suits.

Criminal defence lawyer Bill Potts shared my concerns.

QPS media director Kym Charlton was quoted as saying the police were aware of the legal issues but felt the benefits outweighed the risks and the site was monitored and the users educated on appropriate use.

It was only after I revisited the QPS Facebook site after the interview that I found even more concerning material.

A 19-year-old man had been charged with armed assault after allegedly hitting a five-year-old boy with a golf club. The police report outlined the basic facts, then the public let fly with scores of comments:

“HITTING A 5 yo WITH A GOLF CLUB? You totally disgusting, lowlife scumbag.”

“Any one who can attack a young child like that needs to be put in the prison system and not protected lets see him be such a big man when other prisnors find out he injured a 5 year old boy, i got to say i do not think they will be treating him withh open arms….justice i think…”

“HITTING A 5 yo WITH A GOLF CLUB? You totally disgusting, lowlife scumbag. HOW DARE YOU! It’s people like you that make me sick to the stomach.”

A relative of the victim entered the fray: “No Jason and Julia – He is just pure scum and the facts are all there. Agree with Steph. It was not on the backswing and our nephew was not in the way. Totally unprovoked attack. I hope this horrible man gets everything he deserves.”

A Queensland police moderator called for restraint: “We understand the emotion that incidents like this evoke. Please keep it civil. Offensive language posts deleted.”

The following day the boy’s father entered the discussion: “Just to clear things up for everyone, it was my boy who was hit & this was no accident. The guy was standing near the door of the shop at the range and as we walked in he held the club up as to hit me but he side stepped me and took a full “baseball style” swing which hit my son in the neck. [deleted] you will be pleased to know i used the clause in the law you described. My son is recovering & we can only hope justice is done to keep this freak from harming anyone else. For all the people who are commenting on the two sides to every story i agree, i don’t know what his side of the story is, all i can say is we had never seen this man before, we did not speak to him, it was a totally random, violent & cowardly attack. It is pure luck that my sons injuries were not more serious.”

In the interim the accused had appeared in court on the serious charges and had been refused bail.

From the moment of his arrest, the matter had become part of the justice process, when public comment has traditionally been restricted to fair and accurate reports of what occurs in the courtroom – along with the basic undisputed facts of the matter.

The traditional media still have to work within these rules or face charges of sub judice contempt of court for posing a substantial risk to the fair trial of the accused. It is a charge that has seen Australian journalists fined and jailed.

There is particular sensitivity about comments going to the guilt or innocence of the accused, and many of the police media site comments do exactly that.

Another important aspect of this law is that the comments of witnesses should not be published during the sub judice period so it does not affect their testimony when given as evidence in court.

Witnesses are not expected to know this themselves but here the Queensland police site provides the platform for them to vent their views and give their versions of events that should be reserved for the appropriate time in the courtroom.

In this matter the father was a key witness and mainstream media would have held back on publishing his comments unless as a fair and accurate report of his testimony in court.

Another factor is that child victims and witnesses cannot be identified. By hosting the publication of the father’s comment under his name, the police Facebook page is indirectly identifying the child.

The QPS Facebook site has an audience of more than 200,000, higher than most daily newspapers. Other law enforcement agencies with a social media presence. Examples are the Northern Territory Police Force, SA Police News, Victoria Police Forcebook, and NSW Police Force.

They are a wonderful emergency communication tool and the Queensland Police site was used to great effect during last summer’s floods.

They are also an excellent vehicle for police to get information on unsolved crimes. Postings before a suspect has been arrested are not subject to contempt laws, although there is always the ongoing risk of defamation.

Apparently the technology does not allow for certain items to be comment-free, so the personnel monitoring the site need to delete offensive comments already posted.

I suggest they restrict items to the emergency, community information and intelligence seeking functions, deleting the announcements of arrests -unless a mechanism can be found for running them without comments.

The alternative would be a major overhaul of the justice publicity rules to accommodate the social media era, which would give us a system closer to that in the US where there is much more freedom to comment on cases in progress.

But such a change would need to come via legislative changes across Australia’s nine state, and territory and federal jurisdictions, not through via the communication offices of police forces.

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Tagged as contempt, Facebook comments, fair trial, media law, police communications, police facebook, police PR, Queensland police, social media law