At the time of their wedding over 12 months ago, the Duke and Duchess of Cambridge requested that their privacy be respected, while they settled into marriage.  Some sections of the media have now decided that the settling in period has ended  with the publication of photographs of a topless Duchess published in magazines and newspapers across France, Italy, Ireland, Sweden and Denmark.

The photos of a semi-naked Duchess, like those of an all but naked Prince Harry beforehand, sell magazines despite questions of taste, decency and invasion of  privacy. It is partly the voyeuristic curiosity of those who seek affirmation that the Royals, and the rich and the famous, who live extraordinary lives are as ordinary as the rest of us.

It is also partly the perversity of others who enjoy the substantial embarrassment that such images can cause. For the publishers, it is a matter of profits that can be earned despite the legal risk of damages, albeit a relatively low sum, and costs.

In a move that will be seen as laying down the gauntlet for the future, the Duchess  obtained an injunction from the French courts to restrain the sale or further publication of the photos by the French magazine Closer but such action did not
inhibit the other foreign publishers or chill the dissemination of the photos across the Internet and social media.

The frenzy that a naked image of famous people stirs (from Lara Bingle to Nick  Riewoldt of St Kilda AFL Club to Prince Harry and Kate Middleton) amongst those avid for scandal and base entertainment, challenges the law both in principle and in national reach.

The same frenzy has been seen with the incitement of racial hatred and lawlessness by social media leading to the London riots in 2011 and the recent Sydney riot in 2012. This article is a brief overview of the issues confronting us with social media.

New Technology

The law applies long established rules to new technology and has done so consistently over the last century to breathtaking changes in communication technology including radio, television, computer, mobile phone and now the Internet.

Ten years ago, it was argued in the High Court that the Internet was so revolutionary that there needed to be a root and branch review of the common law to deal with it.  The High Court declined to do so and applied centuries old law to the issue of publication.

Since then, it is astonishing to think of the new formats of publication which have  emerged and become used every day including Facebook in 2004, YouTube in 2005, Twitter in 2006, iPhone in 2007 and iPad in 2010.

The common law can be changed by legislation where necessary, if not adapted by the courts, and new causes of action can be introduced or developed accordingly.

The causes of action which arise from ‘publication’ at law include defamation; vilification, harassment and bullying under Anti-Discrimination legislation; breach of copyright; breach of data privacy; and misleading conduct under the Consumer Code.

There are a number of criminal offences which arise from publication including contempt of court; publication of indecent articles (NSW Crimes Act 1900, s578C) and menace, harass or cause offence by use of a carriage service (Commonwealth
Criminal Code s474.17).

Social Media

Social media was legitimised as part of mainstream media earlier this year, if not before, when Rupert Murdoch started tweeting on New Year’s Day.  He had previously described the Internet as a place for ‘porn, thievery and hackers’. His tweeting reflects something extraordinary about this new form of communication.

The most powerful media owner in the world is using social media to have his say directly with the public on issues of the day, albeit limited to 140 characters, and followers converse directly with him or follow his comments in real time.

Twitter had already shown its promise by breaking the news of the death of Bin Laden last year, while traditional media outlets were still in the process of checking their facts.

Traditional media now have Facebook and Twitter pages to link their news items.  Given its advantages, social media is likely to become people’s preferred source for news updates and headlines.

This phenomenon that we call social media is a misnomer, underplaying the enormity of the change that has occurred to the way in which we communicate and the emerging supremacy of this media over others.  ‘Social media’ is a misnomer for a ‘super media’, the all-embracing interactive media for the future. It is super fast, super easy to use, and super damaging when inflicted with the freedom it provides.

Place of Publication

The argument that took place before the High Court in Dow Jones and Company Inc v Gutnick ([2002] HCA 56) concerned the issue of where publication on the Internet occurs – is it where the matter is uploaded, in that case in New Jersey, or where it is downloaded?

Information on the internet has the capacity to be downloaded anywhere in the world at any point in time and continuously.

It was argued that if the downloading was the relevant place of publication, the law of any number of countries across the world, from Afghanistan to Zimbabwe, would apply and there would be the possibility of a multiplicity of actions from one upload.

The High Court held that the place of publication is where the damage to reputation occurs, namely where the information is downloaded and the reputation is harmed.

In that case Gutnick restricted his action to the harm caused to his reputation inVictoria and the applicable law was held to be the law of Victoria.

This judgment is vitally important not only to the place of publication but also to when the publication takes place and the jurisdiction in which the cause of action may be brought and where a defendant may be sued.

Damage

The volume of publications of social media, which can be measured on the Internet, is staggering – 400 million tweets sent daily, 3.2 billion likes and comments on Facebook daily, and 2 billion YouTube plays per day.

Publication on the Internet is instantaneous and worldwide. If it goes ‘viral’, the potential for damage can be catastrophic to a person’s reputation and sense of wellbeing.

There is a cap on damages for defamation for non-economic loss within Australia of Aus$339,000 (under s35 of the Defamation Act 2005).

The publication also has the potential to last forever as a result of being stored electronically and located later through powerful search engines.

There is an old distinction in the law between oral and written defamations, between slander and libel. It was necessary at common law to prove actual damage caused by slander (except in certain defined categories).

Libel did not require damage to be shown because it was considered that writing was permanent and therefore had the capacity to cause damage indefinitely. (The Defamation Act 2005 makes no distinction over the form of the publication and damage to reputation is presumed from the publication of defamatory matter.)

Once a message is uploaded on the Internet, it may not be removed easily and may retain this quality of permanence.
There can arguably also be a fresh publication each day it is downloaded which extends the limitation period of one year from the first date of publication.

Strict Liability

Causes of action such as defamation carry great risk to users of social media as the action is a strict liability tort. Anyone who participates in the publication is strictly liable at common law. Re-tweeting someone else’s defamatory statements carries that risk.

Legislation in Australia has to some extent relieved businesses that provide platforms, such as Facebook and Twitter, of such liability unless they are aware of the defamatory nature of the publication and do not remove it.

These platforms are however located in other countries and not only does that make it difficult to serve them with due process but also difficult to make them amenable to Australian law.

Vicarious Liability

Employers face the risk of employees using their computers at work for social media. It is questionable whether such use is within the course of employment. Employers who permit this use should ensure they have social media policies as part of the contracts of employment to limit or avoid their potential vicarious liability.

Anonymity

Significantly, with these risks of liability and potential criminal offences, many choose to publish anonymously so as not to be able to be tracked down and sued or prosecuted.

It is also likely that many are unaware of these risks but take the opportunity to protect their real identity by using social media anonymously or under a pseudonym.

People can hide behind their anonymity which brings out a certain viciousness and spite in some to say the unsayable. Social media has shown its potential to be used to harm others.

‘Trolls’ bully, threaten and offend others with abuse and vitriol. Encouraged by their secret identities and goaded by the support of others, trolls tweet the extremes of invective. Such vilification and bullying give free speech a bad name.

Recent examples of insults and abuse on Twitter of celebrity Charlotte Dawson (‘Go hang yourself’) and footballer Robbie Farah (concerning his dead mother) brought strong public condemnation of the trolls and demands for criminal sanctions.
Another example in the UK concerned a single mother, Nicola Brookes, who found herself targeted by anonymous trolls after she supported a former X Factor contestant on Facebook.

He had received hate mail on his Facebook page and she posted a message: “Keep your chin up, Frankie, they’ll move on to someone else soon.”  She not only received ‘vicious and depraved’ abuse on Facebook but a fake Facebook profile account was set up in her name using her picture to post explicit comments and suggest she was a paedophile. She succeeded in obtaining a court order requiring Facebook to disclose the identities of the trolls.

Privacy

In this context, commentators have suggested that trolls should be named and shamed.

It is ironic that trolls benefit from the privacy that anonymity on the Internet gives them. However, the owners of platforms such as Twitter, Facebook and Google have the power to remove their messages and trace these people and name them notwithstanding the breach of privacy that that would involve.

Whether they would do so is debatable, particularly in the absence of court order, but it raises the issue of whether there is a law protecting this privacy and if so, the law of which country applies.

Some have argued that the use of the Internet necessarily involves a waiver of one’s privacy and that privacy on the Internet is a contradiction in terms in any case.

It is questionable whether people have given up their privacy willingly or with a full understanding of the implications of using social media.

Perhaps we should now expect that to be the case given that social media is accessible by third parties who are unknown to us.

People freely divulge personal information and images of themselves, friends and acquaintances. This information is easily accessible electronically in database format and stored and retrieved as required.

If a third party accesses private information about a person from Facebook or Twitter or other social media, the law is unclear in Australia about the rights of privacy available to the person to stop its dissemination.

Surveillance/Interception

Much of what is being discussed concerns the risk from publication and disclosure. The Internet also carries great risk from the collection, surveillance and interception of information, which is another topic in itself and left aside for present purposes.

Suffice it to say there are criminal offences for filming a person’s ‘private parts’ (s91L NSW Crimes Act 1900), peeping or prying (s547C NSW Crimes Act 1900), telephone interception, computer interception and use of surveillance devices.

Businesses (excluding the media and small businesses) and governments in Australia are subject to the Privacy Act 1988 which imposes sanctions for breach of privacy principles relating mainly to the collection, use and disclosure of private data.

These sanctions are about to increase with reforms proposed providing fines of up to Aus$220,000 for individuals and Aus$1.1 million for companies.

The extent to which the Privacy Act will impact on social media, where it is used in the course of business or government, remains to be seen.

Breach of Confidence

In Australia, the disclosure of confidential information may be injuncted through an action for breach of confidence.
It has had limited use to date in the context of private information (see Giller v Procopets [2008] VSCA 236). The action has been developed further by the courts in the UK and recognised as an action for misuse of private information.

Australian Law Reform bodies, Commonwealth and State (NSW and Victoria), have proposed legislation to impose a statutory cause of action for breach of privacy but momentum has been slow to change the law by way of legislation and the proposal faces stiff opposition from those advocating the impact it would have on freedom of speech, notwithstanding how the excesses of social media have undermined that argument.

Without legislation, it is possible that the action for breach of privacy will be developed at common law through the courts.

There is a judgment pending in the New South Wales Supreme Court (Saad v Chubb Security Australia) which concerns publication of CCTV footage of a female employee at work, uploaded to a fake Facebook page in her name with offensive comments purporting to be made by her about her own image.  The plaintiff has sued her employer and the company, responsible for security of the footage, for breach of privacy at common law.  The court has reserved judgment as to whether the action should be struck out as an action not known to the law in Australia.

Injunctions

The threat of damage from disclosure of private information led the courts in the UK to develop a ‘super injunction’ to restrain not only the disclosure of the content of the information, but also the fact that the injunction was granted.

These powerful orders were usurped by Twitter users, contemptuously disclosing the names of celebrities and their private affairs, in breach of super injunctions.

The enforceability of injunctions, super or otherwise, now is doubtful in the context of multinational disclosure on the Internet. The New South Wales Court of Appeal recently set aside a suppression order on the basis that it was futile and ineffective because the prejudicial material could be accessed by people living in New South Wales on the Internet and that access could not be prevented and the material on the global web site could not be removed: Fairfax Digital Australian and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125.

International Law

The WikiLeaks disclosure of highly confidential security information highlighted a number of fundamentals about the Internet generally.

If confidential information is accessible by an unauthorised party (whether accessed electronically or not), it can be disseminated on the Internet instantly and globally.

Injunctions to stop disclosure of confidential or private information are usually futile once the horse has bolted.
The publication will be available worldwide and harm is likely to be extensive (however that is measured in a particular case). Once the information is disclosed publicly, confidentiality or privacy cannot be restored. Damages in compensation are often inadequate or even derisory.

It is conceivable in the social media context that courts will need to find or develop alternative remedies where injunctions are futile and damages inadequate.

Exemplary damages to deter wrongdoers was the usual means at common law for defamation to show that ‘tort does not pay’ but that has been excluded under s37 of the Defamation Act 2005.

It is possible that a plaintiff with a recognised reputation inside and outside Australia could bring proceedings for defamation in Australia claiming damages for publications worldwide under international laws and not limited to Australian law (see Dow Jones and Company Inc v Gutnick at [152]).

The plaintiff may seek to rely upon relevant foreign law for the damage caused to his/her reputation outside Australia by social media published to the world at large.

This may be particularly effective where both the plaintiff and defendant reside in Australia where arguments about the appropriate forum may not be relevant. In such cases damages may not be capped under international law for publication outside Australia and exemplary damages may likewise be available.

It is also conceivable that the courts, or the legislature, may develop the equitable remedy of account of profits or award damages measured by the profits made by the defendant (see for example Attorney General v Blake [2001] 1 AC 268 at 285 in the context of contract and breach of confidence).

This may be particularly appropriate in circumstances where the defendant consciously and cynically commits the wrong in the knowledge that the profits received are likely to outweigh anything required to be paid by way of compensation.

The speed and extent of publication and hence the infliction of damage caused by the misuse of social media are challenging the principles of law that have stood for a very long time and the remedies available.

Whether social media is subject to the rule of law or continues to provide uninhibited freedom to speak is a matter for the international community to resolve just as much as any individual country.

It reflects the fact that we have become globally connected as a society by a super media.

Patrick George is the senior partner at Kennedys in Sydney and one of Australia’s leading defamation lawyers.