Paul Armarego Special Counsel

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1 Paul Armarego Special Counsel

2 New technologies, new challenges Australian Government use of social media Copyright, data, privacy and other issues that may arise in usage of media technologies What constitutes unacceptable use of social media and the challenges of social media What are the legal and policy considerations on social media in the workplace Responses, domestically and internationally

3 Social media enablers: Cloud computing BYOD/CYOD Growth of smartphones and tablets Split devices and sandboxing Social media may be defined as may be defined as: "a group of internet-based applications that allow the creation and exchange of user generated content. - Andreas Kaplan, Professor of Marketing at the ESCP Europe Business School

4 Mobile web to rule by 2015 and it does Source: Morgan Stanley Study ; Mashable Technology

5 Broad range of Internet activities Texting Chat rooms s Blogging Videos Easily accessible Work computers Home computers Mobile smartphones and other devices See characteristics - later

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8 form of blogging differs from a traditional blog in that its content is typically much smaller, in both actual size and aggregate file size. a micro-blog entry could consist of nothing but a short sentence fragment, an image or embedded video. examples of micro-blogging: Twitter Google+ FriendFeed Posterous Tumblr

9 Social Media tools and their uses in a government context Source ACT Government Social Media Policy Guidelines

10 Facebook group has been created titled Facebook and Government which advises on the best ways for Government to use Facebook t?v=wall Discussion what does your department /agency use social media for? Which types? What are the risks and how are they managed? policies

11 Very public Immediacy Amplified (one to many, many to many millions) Global reach (instantaneously) Continuous live conversation driven by the consumer expectation of dialogue Permanent e.g. twitter kept by US Library of Congress Lacks much of the contextual information of traditional media and the checks and balances Boston marathon bombers identity - twitter

12 Facilitates open communication, leading to enhanced information discovery and delivery Allows employees to discuss ideas, post news, ask questions and share links with wide and diverse audience Provides an opportunity to widen business contacts Targets a wide audience, making it a useful and effective recruitment tool Improves reputation and client base with minimal use of advertising Expands market research, implements marketing campaigns, delivers communications and directs interested people to specific web sites

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18 Three Anderson KFC employees in hot water over for dip in restaurant s sink (USA) "haha KFC showers!" KFC learned of the photos, which had been posted publicly on the girl's MySpace.com social Web site, during the dinner rush today

19 Dominos employees fined over snot pizza (USA)

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22 Privacy issues Loss of and/or disclosure of confidential information IP use - copyright Discrimination Defamation Monitoring Brand, reputation and IT protection Ownership of social media accounts Confidential information and database theft Contact/solicitation of customers post employment via social media

23 Seafolly v Madden [2012] FCA 1346

24 Material put on social media and on your own platforms is material that you have to be responsible for even your CEO s tweets have a policy/framework to deal with this Review your own terms and conditions on your own platforms make sure they give you the flexibility you need to be able to take down and to regulate what users and consumers put up on your own platforms. Get your own intellectual property rights house in order that was why Seafolly was not able to make its IPR infringement claim good.

25 Fake Stephen Conroy Telstra employee March 2009 April 2009 SMH Article: He s such an anally retentive asshole Facebook wall Coles Supermarket, Edwardston SA, April 2010 Posted on a friends wall, so visible to visitors to that page Management alerted the same day. Management found up to six months worth of older Facebook posts that amounted to disparaging and untruthful remarks about another team member Good case studies Deloitte Australia participation communication transformation via a national social media council Coca-cola great social media participation managed via policy

26 MP Peter Slipper and James Ashby dismissal case involved texts and other forms of online communication shows how destructive the electronic trail could be for both employers and employees. Rising number of employers having to tackle workers making ''abusive comments about co-workers, threats, sexual remarks, racist remarks, often about managers'' on social media sites. ''The idea of someone having a grievance and raising it via social media to create a campaign to potentially seriously damage a [firm's] reputation - that is really in conflict with an employee's obligation to their employer''

27 Courts recognise that an employer has the right to discipline employees for conduct outside of working hours, if the misconduct: is likely to cause serious damage to the relationship between the employer and employee; damages the employer s business interests; or is incompatible with the employee s duty as an employee. Rose v Telstra Corporation Ltd [1998] IRCommA This general principle has been referred to in cases involving employees, after having been incensed by their employer's actions, venting their anguish through social media.

28 What constitutes misconduct through Social Media misuse? depends entirely on the specific facts of the case a question of degree as to whether an employee's misuse of social media gives rise to a valid reason for dismissal Additional factors, not relating to the actual social media misuse, may affect the outcome of a dispute, such as: the employer's actions subsequent to discovering the misconduct; the employee's record of service; the nature of the employee's complaint; whether the disciplinary measure taken by the employer is proportionate to the misconduct; and whether the employer has communicated its social media policy to the employee.

29 Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544 Myspace post labelled employer "witch hunters" and accused it of "chasing dollars over safety". failure to remove blog entry employer request found by FWA to be a valid reason for termination Damian O Keefe v Williams Muir s Pty Limited T/A Troy Williams The Good Guys [2011] FWA 5311 Employee posted a Facebook status littered with profanities directed at his employer's payroll staff for paying him an incorrect sum of wages dismissal upheld Glen Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444 racially and sexually derogatory comments about 2 managers posted on Facebook Importance of a policy dismissal wrongful

30 Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358 (changed conduct) Dekort v Johns River Tavern Pty Ltd T/A Blacksmiths Inn Tavern [2010] FWA 3389 Social media is a rich medium of evidence gathering Lukazsewski v Capones Pizzeria Kyneton [2009] AIRC 280 Mayberry v Kijani Investments Pty Ltd t/as Subway [2011] FWA 3496 Richard O Connor v Outdoor Creations [2001] FWA 3081 (excessive use)

31 Wilson v Ferguson [2015] WASC 15 Mitchell J issued an injunction and awarded damages by way of equitable compensation against the Defendant in a claim brought in equity for the misuse of private information Facts Met May employed at Cloudbreak and worked in the same crew Break up 5 August 2013 Post with pictures, video and Happy to help all ya boys at home.. enjoy!! and Let this b a fkn lesson.. I will shit on anyone that tries to fk me ova. That is all!

32 The technological advances to which I have referred have dramatically increased the ease and speed with which communications and images may be disseminated to the world The process of capturing and disseminating an image to a broad audience can now take place over a matter of second and be achieved with a few finger swipes of a mobile phone In many cases, such as the present, there will be no opportunity for any injunctive relief to be sought or obtained between the time when a defendant forms the intention to distribute the images of a plaintiff and the time when he or she achieves that purpose p 80 Effectively damages for breach of privacy on equitable grounds Equitable compensation general damages of $35,000 economic loss of $13,404

33 Privacy settings do not protect the employee Courts have held that social media interaction is not private interaction and that privacy settings do not provide users legal protection against employer action. "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. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment. Fitzgerald v Smith, [2010] FWA 7358 Commissioner Bissett

34 ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 Federal Court of Australia Business held liable for misleading and deceptive statements posted on its website by third parties Found Allergy Pathways became the publisher of testimonials posted on Facebook wall as it was aware of them and did not remove them Wanted to take benefit of the praise re the services Allergy Pathway thought testimonials added legitimacy to its services Accuracy of content Positive monitoring and immediate removal

35 Related areas of laws relevant to social media use: WHS/OHS laws (employer failing to investigate cyber bullying); Unfair dismissal laws (termination of employment that is harsh, unjust or unreasonable); General protections laws (adverse treatment of an employee because the employee has made a complaint over a social media platform regarding a workplace right); Equal employment opportunity and anti-discrimination laws (employer discriminating against potential employee or existing employees based on social media content); Defamation laws (current or ex-employees defaming the employer through social media publications); and Advertising codes of conduct and practices (employers failing to monitor their own social media publications for unlawful content).

36 May 2010 Government response to the Final Report of the Gov 2.0 Taskforce, Engage: Getting on with Government 2.0. agreed to the report s central recommendation a declaration of open government which stated, in part: online engagement by public servants, involving robust professional discussion as part of their duties or as private citizens, benefits their agencies, their professional development, those with whom they are engaged and the Australian public. This engagement should be enabled and encouraged.

37 All the private sector issues, magnified Business need Appropriate content Employee behaviour Adhesive terms of use Privacy Accessibility And more Public disclosure Records retention

38 Use of social media websites by public servants is governed by Public Service Act 1999 esp sec 13 APS Code of Conduct; and APS Values: section 10(1) of the Public Service Act 1999 Same standards as elsewhere being apolitical, impartial and professional behaving with respect and courtesy, and without harassment dealing appropriately with information, recognising that some information needs to remain confidential being sensitive to the diversity of the Australian public taking reasonable steps to avoid conflicts of interest making proper use of Commonwealth resources upholding the APS Values and the integrity and good reputation of the APS

39 Public Service Regulation 2.1 not to disclose certain information without authority also required to abide by agencies policies relating to clearance of material for public release APSC s social media guidance, at Official v unofficial Circular 2009/6: Protocols for online media participation withdrawn

40 Requirement to keep records

41 Terms of use contract Indemnification Limitations on liability Endorsement or advertising Governing law, venue Copyright and other IPR considerations Use rights Privacy and data gathering practices Take down Others

42 Records retention public disclosure, discovery Appropriate employee use\identity hijacking/fraud Publicity rights Accessibility, non discrimination Privacy / stewardship of data Electronic discovery issues A new kind of electronically stored information (ESI) Social media data is typically not stored on employer s network or system

43 Under section 127 of the Communications Act it is an offence if someone "sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character". "spontaneous" offensive messages on social media websites such as Twitter taken down quickly may not be prosecuted relevance of apology threatening or racist messages, or those that breached court orders likely to be prosecuted Daniel Thomas - Olympic divers Tom Daley and Pete Waterfield Paul Chambers tweet that he would "blow [Nottingham Airport] sky high" when adverse weather threatened to delay his flight.

44 Defamatory messages could still be liable for damages in the civil courts even if comments were removed quickly, particularly if they had already been redistributed by other users of the site or service Where a tweet is defamatory in nature the fact that it has quickly been removed may not be of any significance if it has been re-tweeted or otherwise further made available online. A new cause of action arises each time a defamatory statement is published, the damage resulting from a defamatory tweet could be substantial even in circumstances where it is quickly removed Lord McAlpine case

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46 Develop a policy now don t wait for the crisis Importance of consultation Convene working group to draft Involve Multi-disciplinary Team (HR, Legal, Marketing, and Executive) Duty to consult with staff and/or bargain with unions regarding policy?

47 Who is responsible for developing/implementing social media policy in the agency? What is your culture? What are your needs? Nature of conduct that the employer seeks to protect itself against Legal review of proposed employee terminations for social networking activity Educate Monitor and enforce Examples

48 Special government considerations the apolitical character of the APS - The role of APS employees in referring to government policy is to help to explain it, or to provide information about its implementation rather than to promote or market a policy or initiative the requirement for all APS employees to act honestly, professionally, and with respect and courtesy Special considerations for statutory office holders

49 Policies provide limited protection Offer some enforcement mechanisms Don t Ignore 3 rd Party Policies How will agency manage its presence (Internally & Externally) Try to maintain consistent approach across platforms & networks How will IP and privacy be protected Consider level of monitoring Correct inaccuracies and abuses Take care with collecting (WPPs)

50 Consider shelf-life of archived content Consider (internal & external) collaborative efforts involving social media Outline best practices for publishing material on social media Avoid use of inappropriate online names/identifiers Identify limits on acceptable use of agency resources How will content remain accurate, truthful & legal Communicate policy Update in line with developments in law and technology

51 How do you monitor? Workplace Surveillance Act, 2005 (NSW) requires employees to be notified in an appropriate forum if there is a plan to monitor them Cannot monitor employees when they are not at work Cannot block internet access to particular websites unless you are acting in accordance with a policy already in place

52 Consider language and etiquette good manners Every post is public Not a relationship between you and your computer; Consider the information being posted. Is it confidential or private in any way? What are the consequences of being quoted out of context Systems for dealing with negative events

53 What is social media? Social media in plain English Twitter in plain English Social media in plain English Wikis in plain English dnl00tdmlyandfeature=channel\ The social media guide Social media https://www.facebook.com/ Microblogging https://twitter.com/signup Blog Google Reader https://www.google.com/accounts/

54 Paul Armarego Level Marcus Clarke Street Canberra ACT 2601 T: F:

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