Tuesday, February 5, 2013

"Well you, Sir, are just a big, fat bully!"

How long since you've reviewed your business' bullying policy?

As we really kick into the new year (I consider January the “warm-up” month), you may want to reassess your business’ practices and procedure surrounding bullying in the workplace. 

Recently, the Melbourne Magistrates Court fined an employer $100,000.00 including costs for bullying his employees to such an extent that he was deemed to have breached workplace health and safety laws.

While this particular employer, who bullied employees in his laundry business, dealt with his workers in a particularly harsh manner, it is important that all businesses consider their position in relation to bullying to protect themselves in the event that one of the business’ managers is found to have bullied any of their employees.
While as a business owner you are no doubt against bullying, a bullying policy will allow you to maintain a standard against which to judge your managers and other employees, so that you can limit the risk of being found vicariously liable for any bullying related actions undertaken by managers in your business.

In this day and age, it is also important to consider social media in your bullying policy. If you need help drafting such a policy, feel free to shoot me a line at rmurphy@somervillelegal.com.au . 

Monday, August 15, 2011


Today on the other side of the world US rapper 'The Game' has found himself in deep yoghurt over a tweet sent from his account, which he alleges was sent by a 'friend', The Game claiming to be a victim of status-hijack.

The Tweet in question advertised a potential opportunity to intern with the rapper by directing followers to call a particular phone number. The problem being that the number listed was instead the phone number for the LA Sheriff's Department. This hilarious prank* resulted in clogging up the Sheriff's phone lines and preventing important calls from getting through, thus delaying the Sheriff's response to several emergencies. 

Whether the tweet actually was sent by The Game or his phone was hijacked (as he claims), doesn't really matter. The fact is that he may now be facing misdemeanor charges for clogging up an emergency phone line, simply because he felt like being funny**.

So next time you're at a photo shoot for your upcoming hip hop album, keep your phone in your pocket. 

Remember, you don't want to come across like another stupid rapper.

*not hilarious
**still not funny

Thursday, August 11, 2011

The iiTrial and what it means for social media

Roadshow Films ("AFACT") v iiNet

As I type this, I'm sitting in the Sydney registry of the High Court of Australia, where AFACT have just been granted special leave to appeal to the High Court
in the matter of Roadshow Films & ors ("AFACT") v iiNet. This is a BIG case for Australian copyright law and basically turns on whether an Internet Service Provider (ISP) should be held accountable for the copyright breaches of its users. 

Currently ISP's are not responsible for their users' actions. One argument for this is that the company who provides the internet service should not be forced to prevent illegal activity from occurring on that service, in the same way that a road construction company is not forced to police their own highway, that's a job for the Police! 

Due to the anonymous nature of many of these downloads, however, AFACT have argued that the Australian courts must find SOMEONE liable for these wrongs, and that SOMEONE should be the ISPs.  

The actual date of the High Court hearing has yet to be listed, but one thing is for sure: if the Court finds in AFACT's favour, ISPs aren't the only ones who should be worried. Such a decision could extend the liability of copyright breach to social networking sites. It is not unfeasible to think that sites like Facebook, Twitter, LinkedIn, YouTube, Foursquare, Instagram (you get the picture) could be found similarly liable for the copyright breaches of their respective users. 

But for now, we're off to Canberra!

*I have included an asterisk because while some downloaders fundamentally disagree with the proposed illegality of their actions, the fact remains that such downloading is in breach of the Copyright Act, and is therefore (in Australia, at least), illegal.

Wednesday, February 16, 2011

HEY COLONEL, FACEBOOK ME THE 11 SECRET HERBS & SPICES: Protecting your intellectual property from the slimy fingers of social media.

I recall one particular Monday morning at the beginning of the 7th grade being sat down by our year advisor in the largest science lab to be told it was finally time to pick a topic for my individual project. Almost immediately, from nowhere, an idea popped into my head. And so it began, the next 3 months of pretending either I hadn't thought of an idea yet, or that my idea sucked (even though secretly I knew I was onto a winner). Why wouldn't I share? For the same reason as KFC has yet to reveal their 11 secret herbs and spices, I knew if someone else heard my idea they'd copy me, and maybe do it better. In short, I was scared someone might steal my idea.

The truth is, I'm not alone. We as a society have always valued secrecy to some degree. Well, perhaps I'd be more correct in saying we have always valued the creation of new ideas. In turn, we have generally wanted the actual creators of those ideas to get the credit they deserve. And in that scenario we see outlined the concept of intellectual property.

IP. More than just a funny acronym, IP covers areas including (but not limited to) copyright, patents, trade secrets, designs, trademarks and passing off (please wipe that smirk off your face, it is a legitimate area of law…) So what do all these areas have in common? They each attempt to give the creator some level of protection over (and reward to) their idea. However, this whole landscape becomes tricky when we venture online, into our brave new world that is social media.

Remember that piece we wrote on being bound by the terms? Well, these terms become particularly relevant when we consider their impact on your Intellectual Property rights. Let's take Facebook as an example.

By agreeing to Facebook's "Statement of Rights & Responsibility", you have granted them a "non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook". Confused? Basically you have given them the right to do whatever they want with any content (or ideas) that you post on their site. This includes any music you have composed, any poetry you have written, any scientific discoveries you have made, any secret recipes you may have for fried chicken… basically any idea over which you hold intellectual property rights.

Now, Mark Zuckerburg is quick to reassure us that we retain the actual copyright over any self-created content (see Zuck's response here: http://on.fb.me/dFkeRj). Unfortunately, his reassurances mean very little.

Let's go back to our 7th grade example:

I settled on a particular project, and did quite well. So well, in fact, that my teacher came to me and suggested I properly report my findings, in book form. So (imagine) I wrote that book. Let's fast-forward a decade or two, to this online world of ours. Suppose before I had the chance to publish the book myself, I decided to upload each chapter to Facebook for my friends across the country to read. Now, suppose Zuck's army in their cruising and perusing of profiles came across my page. For some reason, they saw promise in my chapters, and decided to publish them, in their own book. I’d already given them my “approval” (see above), so as long as they attribute me as the author they don’t need to give me anything further[i]. I’ve got no say over the pictures that are put with my writing or any commentary that they may attach. And how much money am I entitled to? None. Nada. Nil. ZILCH. And they don't have to. I have already given them that right. And so have you.

But they wouldn’t do that…… Would they? Welcome to the law, my friend. As a private individual you have no say over when someone will enforce his or her legal rights. You don’t know what someone will do with the rights they hold. Legally they may choose to enforce their rights, or they may not, that’s part of the fun! The fact is, they can enforce that right, and therein we find the problem. If they choose to enforce their rights, you can’t stop them.

So what am I trying to say? BE CAREFUL what you post on social networking sites. If you compose a song, think carefully before uploading it to your band’s Facebook page. If you write poetry, consider whether there is a better place to publish that poetry than as a note on your page. If you take photos, consider using a ‘watermark’ so that even if your photo is reused it will be obvious to whom the artistic work belongs. While you may retain the official copyright after uploading, if you have given away an unrestricted, royalty-free right in the world of social media, you can very quickly limit any benefit that your copyright gives you. The power is in your hands. Now that you know, please be careful.

By the way, in case you were wondering, I aced my individual science project… and if anyone happens to know the Colonel’s recipe, you can tweet it to me @sociallylegal ;).

[i] Under section 193 of the Australian Copyright Act 1968 (Cth), an author will always maintain a moral right (or ‘droit morale’) of attribution, that is, the right to be known as the author. This cannot be assigned to another, at least not under Australian law.  In the US it is a more complicated situation, but is covered under 17 U.S.C. §106A among other areas (see http://bit.ly/i2ypYj or http://bit.ly/g5zlEZ).

Wednesday, February 9, 2011

CLICK HERE TO TRANSFER YOUR SOUL – what have you agreed to online?

The law. It has an impact on you. So what’s the problem? Well, what if you don’t know it’s affecting you? What if you are somehow bound by terms that you don’t even know exist?                                     

There are not many places in society where you can become legally bound simply by engaging in a conversation. Unfortunately, social media sites are the exception. How? Because like it or not, you’ve entered into a contract.

Hang on… I didn’t sign anything! Alright, chill out, I’m your friend, remember… Allow me to explain.

Remember when you first checked out Facebook, Twitter, LinkedIn, Myspace, Flixster, Youtube, Bebo (the list goes on…)? You wanted to check out your friend’s photo/status/blog but it said you needed a login to access the content, so you typed in your name/email/password and (in a hurry) ticked the box that said c I have read and agree to the terms and conditions of this site. In fact, on some social media sites you may not have even needed to tick a box. The new Facebook, for example, uses the phrase By clicking Sign Up, you are indicating that you have read and agree to the Terms of Use and Privacy Policy.” By ticking the box/clicking ‘sign up’/entering the site, you have just agreed to be bound by the terms and conditions of the site; and you know what that means? You are in a contract.

Don’t remember signing anything? You didn’t need to, it’s called acceptance by conduct. It’s existed for many years in common law jurisdictions (such as the USA, Australia and the UK) and is an accepted fundamental of contract law.

Let’s use an example: You’re a builder. Say a landowner comes to you and asks you to build her a new home for $1 million dollars. You’re so excited you don’t even say ‘Yes,’ you just get straight to building, on her land, and she’s stoked that her new home is underway.[i] By building, you are signing. It’s the same idea with social media.

So, hang on, if it’s a contract, can I negotiate the terms? Hahahahahaha, don’t be silly (sorry about the excessive laughter)… these guys are running a business. If you don’t agree with their terms, feel free to not use their site. In 2010 Social media made an estimated $US935 million, a figure expected to grow to upwards of $US3.1 billion by 2014 (http://on.mash.to/ffzBsk). This is BIG business. And they make the rules. 

So are the rules unfair? Maybe. But hey, it’s not personal. You don’t want to play by their rules? You might just have to pick a different sport.

Well then, what unfair terms have I agreed to?
There’s no telling really. If you don’t read the conditions of your contract, you may be bound by any number of terms that you aren’t aware of. In fact, you could have just transferred the legal ownership of your soul. Hey, it’s been done before: (http://fxn.ws/gwMGkH)

In 2010 a UK computer game retailer decided to change their Terms & Conditions to include an ‘immortal soul’ clause, you know, just for a bit of April Fools fun (I guess?!)… Over the next few days any orders placed online were asked to agree to the new terms & conditions of the site, which included a clause agreeing to effectively transfer the soul of any purchaser to the gaming company, for eternity. Within a few days they had legally acquired over 7,500 souls. They even reserved the right to give their notice in 6-foot high letters of fire, but refused to be held liable if that fire happened to cause injury to person or property (how typically legal of them).

Luckily, the company came out to say they would not be enforcing their newly acquired rights over the thousands of innocent (albeit, lazy) shoppers. Lucky indeed.

It does make you think though, what have I agreed to by simply not taking the time to read a few pages?

The point is, you can transfer just about anything through written contract, and if you don’t read the contract, how will you know the terms to which you are agreeing?

Please, please, please read the terms. Who knows, by doing so, you may just save your soul.

[i] Now, please don’t complain that I’ve forgotten about the requirement for building contracts over $1,000 to be in writing (under NSW law), or the array of conveyancing/planning laws of which this scenario is in breach… As a general principle it works, just go with me here. 

Friday, January 28, 2011

ARE YOU LIBEL TO TWEET? Defamation in 140 characters or less...

Listen up: Your ‘private’ tweets and status updates could get you sued for defamation, which could cost you thousands, even millions of dollars in damages.

What? How? We’re talking the internet… aren’t I allowed to say what I feel? Isn’t that the whole point of the interwebs?? Maybe. But please know (as is the point of this blog) that just because you say/do something on the internet, you are not immune from the LAW.

Ok, let’s start simple: what is DEFAMATION?

Defamation occurs when one person communicates material that has the effect or tendency of damaging the reputation of another. The concept has existed since Roman times, and aims to protect personal reputation.

But how does that work with free speech? Good question. While the premise of defamation law does appear to work against the concept of free speech, Governments have generally been in favour of imposing at least some level of protection against defamation for the public benefit that these laws are seen to bring. (It should also be noted that while the Americans among us may be protected by their wonderful First Amendment, we in Australia actually have no formal right to “free speech”, but that’s a whole other blog post, stay tuned…)

While the law is generally slow to react to new developments in our society (ie the internet), it is catching up where defamation is concerned. The case of Chris Cairns v Lalit Modi is proof. This is a recent suit involving New Zealand cricketer, Cairns (these types of cases often involve “famous” people), and ‘tweets’ posted by a commissioner of the Indian Premier League (Modi). Modi’s comments alleged that Cairns was a cheat, and involved in match fixing. Cairns won the case and was awarded a LOT of money, however, it is not over yet. The UK High Court has left open the option to sue further media outlets who may have reproduced the comments and therefore spread the damage suffered. (For those interested, you can read the full judgment at http://bit.ly/eH0cAw, or a good summary at http://bit.ly/eLgl3e)

So there’s a good example of how you can be brought down by one or two ill-thought out sentences on Twitter. Some more bad news? Legal action is not limited to your tweets, as Courtney love has found out. The rock-star and former singer of Hole is being sued for statements made across platforms Twitter, Myspace and Etsy.com in 2009 (http://bit.ly/eX7oUt - Remember, it was 2009, Myspace was still cool). She went on a rant against a fashion designer to whom she allegedly owed a few thousand dollars. Now, I won’t repeat all that was said (to protect my own behind), but I’m sure you will find it quite easily through our friend Google ;) - and let me warn you, the statements were pretty harsh. 

Word on the (legal) street is that this could become a landmark case for what will amount to online defamation (we’ll keep you posted).

Please note, that in Australia (see: http://bit.ly/gJ1c0k), the steps for defamation are not that difficult to prove. As long as a judge is satisfied that there has been:
-                    a statement which may be capable of conveying certain imputations to the ordinary, reasonable reader/listener/viewer; and
-                    those imputations are capable of bearing some defamatory meaning;
 the question will be handed over to the jury.

What we need you to understand is that what you type online is NOT private information. Even your ‘private’ messages online may be used by Facebook, or used as evidence in a law suit (we will address this in a later post on privacy).

Twitter is not an online lock-box to store secrets, as Jake and Amir may like you to believe: http://bit.ly/fjyWad. And its influence is not limited to online, instead (as Jake discovered), your tweets can smash your social life: http://bit.ly/eWKYo7.

SO, what to do? Firstly, if you think of something, and you wouldn’t say it to the person, you may not want to post it online. Sure, you can risk posting it and deleting later, but keep in mind Modi’s comments were only up for 16 hours before he “deleted” them. All it takes is for one person to take a screen shot and your 140 characters can exist forever. And be careful with ‘Retweets’. Just because you didn’t author the statement, doesn’t mean you can’t get done for spreading it.

Above all remember, you are what you tweet.

Thursday, January 27, 2011

Let's start at the very beginning (a very good place to start)...

Let’s start at the very beginning (a very good place to start)…

SOCIAL MEDIA. The new black. But is it just a fad, or could it actually represent the biggest shift in our lives since the Industrial Revolution? (http://bit.ly/fRwwTI)

One thing is for sure; we are all jumping on board.  By way of comparison, LinkedIn now has a population four times the size of Australia (http://press.linkedin.com/, http://bit.ly/auspopn); If Facebook were a country it would have overtaken the USA as the third largest country in the world (http://on.fb.me/hJznL5, http://bit.ly/facepopn), and despite Myspace now apparently being a place for Justin Bieber fans it still boasts an impressive 125 million users (http://bit.ly/myspopn). So whether you have previously been one to enjoy a fad or not, social networking is here to stay, and it is going to legally affect us all. 

So what IS social media? Big question. For the purposes of this blog, we’ve defined it as any place (website etc) involving the interaction between people (social), in an online setting (media). That’s a pretty broad definition, and yes, it includes sites like YouTube (see: hilarious comment wars), and StumbleUpon (a site that sends you links based on your interests). But we can’t just limit our definition to these “fun” sites (see http://www.funnyordie.com/ or http://failblog.org/); it’s much broader than that.

In fact, you can find an online network for almost anything, whether you are concerned about global warming (http://oneworldgroup.org/oneclimate), or just need help with your maths homework (http://mathforum.org/students/). So…? Isn’t that just the world we live in? Exactly.

This IS the world we live in. And like our offline world, and such, it’s governed by laws. The problem arises when these laws affect us in ways that we aren’t even aware.

Welcome to socially-legal.com. Over the next few months, this blog will attempt to outline how we are all affected by the law in this new (online) world that we live in, and what we can do about it.