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The privacy laws behind facebook

01 Sep 2011

Websites like Facebook, MySpace and Twitter have become so commonplace in the last few years that it is easy to cast aside the age-old fears of identity theft, online predators and hackers that were originally associated with social networking in the early 2000s.  There are currently 750 million people using Facebook worldwide, 50% of whom log on daily. In an age where social networking is as routine as reading the morning paper, the fear of the unknown has been replaced by the warm embrace of the familiar. But is it possible that we have been too quickly seduced? At the risk of fear mongering, I would like to remind some of those 750 million of the serious privacy issues that have recently arisen surrounding online social networking. One such privacy risk is the potential damage to your reputation. My grandma used to tell me that in the 1940s when a girl was caught with her nylon seams out of sorts her reputation was ruined and hopes of getting a husband became grim. Well what about the girl caught on camera with her undies around her ankles vomiting into a bathtub? How does her reputation look, Nan? In our day and age a new kind of reputation is emerging: the online reputation. While a negative net-rep may affect one’s ability to get a husband, the leading concern for most people is the effect it could have on employment opportunities. In 2010 an Australian hairdresser was dismissed from her position due to inappropriate Facebook comments regarding dissatisfaction with her employer. The employee took the matter to a tribunal claiming wrongful dismissal. Although the Facebook comment was not held to be a legitimate reason for dismissal in this particular case, the door was left open by the commissioner for the use of Facebook behaviour as grounds for release. It was stated that: "a Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see...It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.” Similarly, in 2010 an employee of Wellington Ambulance Services was dismissed due to conflict between herself and another employee that continued onto Facebook after work hours. Her compensation for the dismissal was reduced by 60% largely because of her behaviour on the social networking site. During the hearing it was stated that "Also significant is Ms Adams’ failure to understand that her interactions on Facebook were legitimate areas of concern for her employer. In many ways her actions outside of work (via text with the non-WFAS employee witness and by Facebook with Mr Robinson) were more serious because they showed that her reactions to work incidents were not left at work, but rather she decided to continue the issues in what she believed to be a private forum.” Both these cases set precedents that muddy the line between work and leisure and turn all online activity into ammunition for employers looking to make cut backs. While you may think that your online activities are private, in reality, the way that you present yourself online can have a direct effect on your career.Now if the risk of losing your job is insufficient to alert you to the dangers of social media, what about losing your freedom? Another risk to social networking is the potential legal ramifications of your online activities. Law enforcement officials have found a goldmine of evidence online and recently, activity posted on Facebook has been admitted as evidence in several court proceedings.  In R v Acar, the accused was convicted of murdering his daughter evidenced by the fact that Mr Acar, shockingly, set his Facebook status to "Bout 2 Kill ma kid” followed by "It’s ova I did it.” While one would think most people would be intelligent enough not to post murder plots and confessions on their Facebook accounts, this case does highlight the fact that Facebook is now used frequently by the authorities to gather evidence. The law abiding readers may dismiss this cautionary tale as irrelevant. However, judgments of this kind mean that every Facebook status is admissible in court. Posts taken out of context may not reflect the true intention of the publisher but still may be used against him or her in a court of law. A status intended as a joke could be taken seriously or misunderstood. These concerns should prompt us to be more wary of the kinds of things we post online even if we have nothing to hide. It is, after all, easy enough to avoid posting incriminating information on your own page. This however, brings up another troubling legal aspect of social networking.  It is possible that you can actually be held responsible for materials that other people post on your social networking page. In a recent court case a homeopathic allergy medicine company was banned from posting advertisements of any kind because the success of their product was deemed to be untrue, misleading and dangerous. They were subsequently held to be in contempt of court because testimonials were posted on their company Facebook fan page by other Facebook users. Despite the fact that the company itself had not made the comments, it was held that the failure to remove the posts after having seen them was akin to publication and thus a violation of their court order. This could mean that people will be held responsible for anything posted on their facebook wall even if it wasn’t posted by them. Potentially illegal materials like child pornography or defamatory statements could lead to criminal charges even if these posts were not made by the accused person. With all this alarming new information about the risks of online social networking, you may ask why your local legislators have not taken more of an active role in controlling these sites. The reason is that, from a legislative perspective, social networking sites pose a substantial challenge.  These sites are largely unregulated mostly due to the impracticality of doing so. In an Australia Law Reform Commission report regarding social networking and privacy law, the ALRC decided not to propose the imposition of regulatory legislation on social networking sites mostly due to the constantly changing landscape. Instead, they suggested an education campaign targeting young people, parents and teachers in order to better inform the public of the dangers of sharing information online.  For the average Facebook user this means one must be aware that privacy laws may not be able to protect you on the internet. While the Privacy Acts of Australia and New Zealand offer some protection for children, they are not particularly useful for adults. As we become more comfortable online it’s only natural that our defences will be lowered. However, the risks associated with online social networking are changing as quickly as the sites themselves. While the main concern used to be online predators, now people need to be protected from their own online actions. Your online reputation can have detrimental effects to you professionally and personally and there is little legislation that can protect you. The best you can do is protect yourself. Make sure you are well aware of your privacy settings, don’t accept friends you don’t know and be careful of any posts made that can be traced back to you. We may have embraced social networking but that does not mean we need to embrace unemployment or incarceration.

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