First published in Mojo January 2013.
BLOGGERS, Tweeters and Facebookers beware. You might think your online chatter is as harmless as a conversation down the pub. But media laws – as strict as those that apply to newspapers, radio and television – apply to all social media.
Armed with a readily available smart phone and fuelled by the perceived anonymity the online world provides, trolls, malicious and abusive posts seem to be unstopabble. Though some trolls have been tracked and prosecuted, many more have been protected from exposure by the privacy rules of social networking sites.
That tide seems to be turning. The days of a presumption of privacy and the assumption of freedom of expression without repercussion may be coming to an end. And social media users will increasingly need to see themselves as publishers, with the same legal obligations as large media organisations.
The Federal Government and social networking sites, including Facebook, Google (YouTube), Yahoo! and Microsoft, moved this week to step up education and awareness about cyber bullying and harassment online.
Melbourne barrister Sandip Mukerjea, an expert in defamation, media and entertainment law said the law was clear, but difficult to apply in practice.
“With social media it can be difficult, impossible and painstaking to find out who is responsible for publishing because they [social media websites] are often run by overseas corporations meaning that we are not in a position to impose and enforce penalties.
“You can focus on individual users but who are they and where are they and how do you serve them?”
But, he added: “The same [legal] rules apply to material published on social media as published in more traditional formats.”
While journalists working in the mainstream media have a working understanding of the key laws governing publishing – defamation and contempt of court – most social media users do not.
Defamation is defined as lowering a person’s reputation amongst ordinary people, being exposed to hatred, ridicule or contempt or causing someone to be shunned or avoided. In order to sue, the person defamed must prove they have been identified in the publication and that the defamation has been communicated to at least one other person. Libel is defamation in a permanent form such as comments reported in print and online.
South Australian man Christopher Cross was 19 when found guilty of criminal defamation in 2009 for comments he made about a police officer on Facebook. Cross was convicted, fined and placed on a good behaviour bond and faced a jail sentence if he breached the bond.
And in a 2011 tweet, author and blogger Marieke Hardy falsely accused Joshua Meggitt as the author of a hate blog about her. Her post was re-tweeted by some of her thousands of followers and prompted comments from others. Meggitt sued Hardy for defamation and a confidential settlement was reached after Hardy issued a public apology on her blog and removed the offending tweets.
In a test case last February, which is ongoing, Meggitt sued Twitter as the publisher of the tweets for damages under Australian law. But as the company is based in San Francisco, even if the company were held responsible, it may be difficult to enforce any potential penalties that may result.
Legal liability for online comments extends to any jurisdiction world-wide where a blog, post or tweet is seen and downloaded. Different rules apply in different countries and penalties for breaking the law can range from a fine to imprisonment. Anyone who re-posts or re-tweets defamatory material can face the same penalty.
In 2011, The Guardian newspaper reported a rise in defamation cases stemming from social media. Last October Indian Premier League player Lali Modi lost an appeal against £90,000 damages he was ordered to pay to retired New Zealand cricketer Chris Cairns who sued Modi for libel over match-fixing allegations he posted on Twitter.
Social media libel law is now taught to teenage students at Taunton School in Somerset, South West England.
Social media posts that threaten and incite hatred of alleged offenders charged with serious crimes have also highlighted the need to educate social media users on the legal principles of contempt of court. Discussion of an accused person’s guilt or innocence after an arrest is made and throughout a trial is prejudicial and can potentially influence the jury’s verdict.
Subjudice, meaning ‘under justice’ in Latin, applies once a suspect in a criminal investigation is arrested and ends when the verdict is announced. Court restrictions on reporting require that information that may affect jurors’ decisions and the outcome of a criminal trial may not be published during this time.
A defendant’s previous convictions must not be published before a verdict is announced as this information can also prejudice the outcome of a trial. If these rules are broken, a publisher – or social media user – could be charged with contempt of court.
The Australian legal system is based on the presumption of innocence until proven guilty and the right to a fair trial. That means a jury determines guilt or innocence, based on evidence presented in court alone. A judge can also direct the jury to ignore news reports and refrain from using the internet to research the case although policing this is difficult.
“There is an increasing view that jurors should be trusted to abide by the oath not to read about the case or use the internet to seek out information on cases,” said Mukerjea. “The view is that jurors can be trusted to be robust.” Penalties apply if jurors are found to breach the oath.
If a juror is found to have breached this rule and depending on the severity of the breach, a new trial may be granted at great financial cost to the state, and prolonged emotional cost to victims and witnesses. In the worst breach of the rule, the accused can avoid being brought to trial if the court believes a trial before an unbiased jury is not possible.
While juries must not use the internet for research, the legal profession and police regularly use online forums to source personal information and activities of defendants and witnesses in both criminal and civil cases and what they find can be used as evidence in court.
Historically, traditional media were affected by court suppression orders during trials. This now extends to social media. While mainstream media does push the boundaries of publication, social media users generally do not understand where the limits apply.
In several recent cases, Victoria Police have asked Facebook to shut down sites that have the potential to interfere with criminal investigations but debate over the privacy of administrators of these pages and the responsibility of Facebook to continue to host these pages continues.
Examples of contempt of court relating to social media and suppression of names “are few and far between” said Mukerjea, citing the 2011 UK super-injunction to gag media from naming married UK Premiership soccer player Ryan Giggs for his affair with a reality TV personality, and a 2006 Supreme Court of Victoria injunction which gagged media from publishing the names of AFL footballers who used illicit drugs.
In the UK case, the court refused the newspaper publisher’s argument that the injunction should be lifted as the player’s name was already in the public domain due to thousands of people naming him on Twitter.
In the AFL case, the players’ names remained confidential thanks to AFL policy.
Across the globe, an increasing number of people are charged and prosecuted for publishing information on line that is required by law to be withheld.
Last year in the United Kingdom, nine footballers were charged with naming a rape victim on Facebook and Twitter and ordered to pay her compensation.
In Australia, efforts are underway to govern the use of social media leading up to and during court proceedings.
Last October, Australia’s attorneys-general met to discuss the implementation of guidelines for regulating prejudicial posts and trial by social media. Also under discussion were methods to simplify judges’ jury directions and laws relating to jury misconduct and the use of social media.
The NSW Parliament is to debate a bill introduced by NSW Attorney-General Greg Smith that proposes to ban media from tweeting and blogging from inside the courtroom during court proceedings.
Despite the difficulties, there are many benefits to publication of information on social media. Social media is able to reach a wide audience quickly. Information published on these sites can go viral in a matter of minutes. This has been invaluable in times of disaster, and in helping police gather information in ongoing criminal investigations.
But anyone using Facebook, Twitter, Instagram, YouTube, Tumblr, Flickr, Pinterest, Linked In and the myriad of other social networking sites should now take care that they know the rules, and do not end up on the wrong side of the law.