Social media and the law

597 Pages·2016·3.864 MB·English

by  Patrick Thomas George, Patrick Thomas George (editor)

Social Media and the Law
2nd Edition
Patrick George, Kennedys
BA (SYD), LLB (UNSW)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES
Monica Allen, ACA Lawyers
LLM (SYD)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES
Gerard Basha, Bartier Perry,
BEc (MACQ), LLM (SYD), LLM (APPLIED LAW)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES
Stefanie Benson, Allen & Overy
BA (SYD), LLB (UNSW)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES
Joseph Collins, National Rugby League
LLB (HONS) (UTS)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES
James B Mattson, Bartier Perry
BA (UNSW), LLM (SYD)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES
Justine Munsie, Addisons
BA (UNSW), LLB (UNSW)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES
Gabriella Rubagotti, Selborne Chambers
BA (HONS) (UNSW), LLB (UNSW)
MEMBER OF THE NEW SOUTH WALES BAR
Gavin Stuart, Bartier Perry
BSc, LLB (UTS)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES
James Whiley, Bartier Perry
BSc (CHEMISTRY & LAW JOINT HONOURS) (BRISTOL UNIVERSITY, UK)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES AND SOLICITOR, SENIOR
COURTS OF ENGLAND AND WALES
LexisNexis Butterworths
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2016
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National Library of Australia Cataloguing-in-Publication entry
Author: George, atrick Thomas.
Title: Social Media and the Law
Edition: 2nd Edition.
ISBN: 9780409343380 (pbk).
9780409343397 (ebk).
Notes: Includes index.
Social media — law and legislation —
Australia.
Subjects:
Online social networks — law and
legislation — Australia.
Allen, Monica. Basha, Gerard. Benson,
Stefanie. Collins, Joseph. Mattson, James
Other Authors/Contributors:
B. Munsie, Justine. Rubagotti, Gabriella.
Stuart, Gavin. Whiley, James.
Dewey Number: 343.94099
© 2016 Reed International Books Australia Pty Limited trading as
LexisNexis.
1st Edition 2014.
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About the Authors
Patrick George (General Editor) is the author of Defamation Law in
Australia, which is now in its 2nd edition. He is the Senior Partner at Kennedys
in Australia. Patrick has acted in many high-profile defamation and media-
related cases and complex commercial cases over a 30-year period.
Monica Allen is a Senior Associate at ACA Lawyers and is a commercial
litigation lawyer with extensive experience managing large-scale litigation in the
Supreme Court of New South Wales and the Federal Court of Australia. She is
experienced in a wide range of commercial disputes and has a practice
predominantly involving NSW Supreme Court and Federal Court of Australia
litigation. Monica holds a Master of Laws and has special interests in cross-
border issues, international arbitration and technology-related disputes.
Gerard Basha is an Executive Lawyer at Bartier Perry, specialising in estate
planning, and in contested and uncontested probate and estate litigation. He is
an Accredited Specialist in Wills and Estates Law. His principal practice areas
include equity and trusts as well as capacity applications before the Guardianship
Division of the New South Wales Civil and Administrative Tribunal. Gerard has
also advised and been involved as an expert witness in succession law cases in
the Supreme Court of New South Wales.
Stefanie Benson is a Senior Associate in the Competition practice at Allen &
Overy. She specialises in competition and consumer law, including cartel
investigations, misuse of market power, mergers, joint ventures, infrastructure
access and the Australian Consumer Law. Stefanie acts for clients in the media,
technology, communications and retail industries and has a particular interest in
cross-border matters and the growth of competition regimes in the Asia–Pacific
region.
Joseph Collins is Senior Legal Counsel at the National Rugby League.
Previously, he was a Senior Associate in Clayton Utz’s Litigation and Dispute
Resolution practice, where he acted in a broad range of large-scale commercial
disputes.
James B Mattson is an Executive Lawyer at Bartier Perry, leading its
Workplace Team. He is an Accredited Specialist in Employment Law and
Industrial Relations. James regularly appears in administrative and industrial
tribunals, as well as in courts, representing employers.
Justine Munsie is a Partner at Addisons, specialising in media and intellectual
property law. Justine acts for clients operating in the media, entertainment,
advertising and gaming industries, as well as other brand owners whom she
advises on a range of issues relevant to content, branding, reputation and
marketing.
Gabriella Rubagotti is a barrister admitted to the New South Wales Bar and
holds degrees in arts and law from the University of New South Wales. She
practises in the areas of defamation, intellectual property, constitutional and
corporate law. Since her commencement at the Bar, Gabriella has appeared in a
number of high-profile cases concerning media law and the constitutionally
implied freedom of political communication.
Gavin Stuart is an Executive Lawyer in Bartier Perry’s Commercial Litigation
and Dispute Resolution group. He has over 19 years’ experience providing
commercial dispute advice and appearance services covering domestic and
cross-border contractual disputes involving jurisdictions such as England, New
Zealand, India and the United States of America. He also has extensive
experience in finance-related issues, intellectual property, information
technology, and corporate and regulatory matters. Gavin has a wealth of
experience in the conduct of proceedings in the Supreme Court of New South
Wales and other states and territories, the Federal Court of Australia as well as
specialist tribunals.
James Whiley is a Senior Associate at Bartier Perry. Since being admitted as a
solicitor in England and Wales in September 2008 and in New South Wales in
2015, he has specialised in providing estate- and succession-planning services to
high-net-worth individuals and families in Australia, the United Kingdom and
offshore, including structuring, Australian and UK tax planning, creating
tailored strategies for clients with complex personal and business circumstances
and the implementation of all relevant documentation to achieve their intentions
in relation to their private wealth, to their business, or to both. James also
specialises in resolving trust and estate disputes and has extensive experience in
cross-jurisdictional issues.
Preface
Social media has established itself as the medium of choice for everyday
exchanges. As such, it is a world where free speech may truly exist. It enables
the free flow of communication at any time of the day or night by anyone to
anyone.
The benefit of that freedom has been seriously challenged by the harm
caused to those who are abused on social media for malicious, unlawful or
criminal purposes. Many who engage in that abuse choose to speak with spite
and cruelty, often behind the mask of anonymity. Many choose not to exercise
restraint and speak about others without inhibition or care.
Imposing restraint by law has been difficult and, at times, futile.
The publication of statements on social media is subject to defamation law
(Chapter 4) and, in more extreme cases, subject to the criminal law (Chapter 8).
If the communication is made in the course of employment, it may be
subject to employment law (Chapter 2). If made on social media in trade or
commerce, it may be subject to competition and consumer laws (Chapter 5).
Given the free flow of communication, the use of the work of others and the
protection of works on social media under copyright law is a matter of
developing concern (Chapter 6).
The ownership of a person’s social media accounts and disclosure of
messages on those accounts after death is another matter of developing concern
(Chapter 9).
If communications on social media invade the privacy of others or disclose
confidential information, they may be subject to laws being developed that
protect those rights (Chapter 3).
At the time of writing, the United Kingdom Supreme Court has just
delivered judgment in PJS v News Group Newspapers Ltd [2016] UKSC 26. In that