Social Media and Legal Ethics

Anthony WongAnthony WongPresidentPresident

ACS Computer Society ACS Computer Society

Chief ExecutiveChief ExecutiveIT, IP and Commercial Lawyers

& Consultants AGW Consulting Pty LtdEmail: [email protected]

Skype: Skypeanthonywong

Mobile: 0414 881171 

Presentation to Sydney University Ethics Committee

3 August 2010

“New Social Media and the implications for

Intellectual Property and Privacy"

The New Social Media

Facebook, MySpace and online forums – the new meeting place

For conversations with friends, colleagues or acquaintances in a casual setting

But published online – in a more permanent form ● copied by users ● stored in cache ● archived copies

No security measures are perfect

Issues arising from New Social Media - Publication

What law governs the New Media

Subject to the same laws

Emerging laws and codes specific to the Internet and new media

Possibly the laws of other countries

International law

Evidence from recovered data

Legal risk and admissibility of electronic documents and

records

critical to establish a thorough records management system

necessary to provide documentary evidence if there is a business dispute and also to satisfy statutory requirements regarding the retention of records

are electronic documents sufficient?

Evidence Act 1995 (Cth)–original document rule abolished and copies are as good as the originals but must keep evidence of integrity of process used to produce the copy

Documents–Electronic Transactions Act 1999 (Cth) production of documents– Section 11. Requirement to produce a document is met if the person produces an electronic form of the document provided the conditions that a reliable means of assuring the integrity and ready accessibility and useability for subsequent reference are met

Evidence

Australia First to Allow Service by Facebook

Facebook used to serve paternity test order

Facebook Sign Up – Terms & Privacy

Website Terms & Conditions–

possibilities

‘This contract is subject to our standard terms and conditions’- chance to read it?

reference statement with hyperlink– reference statement linked to a page with terms and conditions

display terms at bottom of order form or page dialogue box–user scrolls through terms

before clicking ‘I agree’

Terms and Conditions of use

Australian e-commerce legislation

Electronic Transactions Act 1999 (Cth) - secure electronic transactions

Copyright Amendment (Digital Agenda) Act 2000 (Cth) - intellectual property

Privacy Act 1988 & Privacy Amendment (Private Sector) Act 2000 (Cth)

Cybercrime Act 2001 (Cth)

Spam Act 2003

Telecommunications (Interception) Act 1979 (Cth)

Trade Practices Act 1974 (Cth)

Jurisdiction Issues in relation to Social Media

Some of the challenges: Identifying the location where the alleged offence was

perpetrated (eg. using a computer where offender is located) and the location where the harm resulted (eg. victims or damage to computers)

Deciding which sovereign nation and courts should have jurisdiction over a case

Deciding which law applies to what conduct eg. IP infringement, privacy, defamation, spam, fraud and deception

Jurisdiction

jurisdiction is dependent on the sovereignty of a government

concept evolved in relation to geographical boundaries or territories

on premise that each state or country has absolute power to control persons and things located within its boundaries or territories

internet challenges these territorially based principles law re jurisdiction in cyberspace is unsettled

Where is Facebook located?

Operates out of the US

No physical presence in Australia

Difficulties in accessing and discovery of documents as evidence

Facebook

Global context of privacy laws

New technologies increasingly erode privacy rights Privacy has emerged as a key issue in the legal context of

social media Problem of potential for personal information to flow from

jurisdictions with strong privacy regulation to jurisdictions with little privacy regulation.

Most significant privacy legislation European Union Directive on data protection (EU Directive)

EU Directive establishes comprehensive protection of personal information and is now the international benchmark for privacy protection

Countries without an “adequate” level of data protection will be excluded from personal information flows

Privacy and data protection in Australia

co-regulatory approach

legislation e.g. the Privacy Act 1988 (Cth) and the Privacy Amendment (Private Sector) Act 2000 (Cth)

equitable and common law duties regarding confidential information

State privacy legislation (State laws)

Various Codes of Conduct

EU Directive (international laws)

Privacy Amendment (Private sector) Act 2000

amends the Privacy Act 1988 which covered public sector agencies

amendments mean Privacy Act now also covers private sector aim of privacy legislation is to protect individuals from unfair or

unauthorised use of their personal information. Protects individual’s right to control this.

2000 amendments extend National Privacy Principles (NPPs) to the private sector–these set out minimum standards for handling of personal information

aim of 2000 amendments is to encourage privacy in e-commerce

24 June 2010, Federal released exposure draft legislation to implement its first stage response to recommendations of the Australian Law Reform Commission

Australian wide Private Sector Privacy Laws

There are 10 National Privacy Principles (NPPs) of application in the private sector:

● NPP 1 – collection, the purpose of collection, that the person can get access to their personal information

● NPP2 – the use and disclosure of personal information● NPP 3 –data quality● NPP 4 – data security; where reasonable steps to protect personal

information from misuse and loss and unauthorised access, modification or disclosure

● NPP 5 – openness● NPP 6 – access and correction● NPP 7 – prohibit the use of Federal government identifiers in the private

sector eg. Tax File Number ● NPP 8 – anonymity● NPP9 – the transfer of data to another country● NPP 10 – the use and disclosure of sensitive information (about individual

racial, political or religious beliefs, health, membership etc)

Recent Social Media controversies

Collection and use of private data by corporations like Google and Facebook

Increasing public concern about changes to Facebook's privacy settings - for making it difficult for users to put limits on how far the information they upload is shared

Google's collection of wireless connection data it gathered while compiling images for its Street View service

Government plans to monitor web users’ internet communications

Prompted a Senate inquiry into the adequacy of privacy laws

A task force is due to hand down its report in October 2010

Copyright

is the right to copy a form of expression is the right to control the copying, distribution,

adaptation of literary and other works protects the form of original expression of an idea

and not the idea itself Aust–vests automatically and no need for registration requires that the work has a sufficient level of

originality and has been reduced to a material form protects copyright works from being reproduced or

adapted.

Legislation

Copyright Act 1968 (Cth)

Copyright Amendment (Digital Agenda) Act 2000

The Digital Agenda Act updates the Copyright Act to take account of technological developments such as the Internet

Copyright protection - Works

Works:● literary works (including computer programs)● dramatic (including a scenario or script for a film)● musical● artistic works

Secondary Works (derivatives of Works):● sound recordings● films● broadcasts (sound or TV)● published editions (typesetting, layout and arrangement)

Website that provided links to music recordings

Rights of the copyright owner

Exclusive right to:● reproduce the work in a material form (copy)● made adaptation of the work● publish the work● communicate the work to the public

active communication by broadcasting and cable transmission

passive communication by having material on website

● perform the work in public

may grant a licence to others to use the work subject to copyright.

Decision - Kazaa

Judgment September 5, 2005

Australian record industry won case against online music-swapping service Kazaa

Future versions of Kazaa will need to include filters to prevent copyright infringement

Kazaa's owners would have to apply "maximum pressure" on existing users to upgrade their software to the new, filtered version

The music industry was also awarded damages