Saturday, 8 February 2014

Digital Legal Wrap 2013; and into 2014…

Around this time last year I wrote an article Legal Social Media Roundup 2012 and thought it about time I did something similar for 2013…

So, although the legal position hasn’t dramatically changed during the twelve of so months per se, law in the digital realm has been developing gently, and amongst a few key points, data privacy shot to the top of mind with Prism, whistle-blower Edward Snowden and America’s creepy spying-on-everyone including the UN program. In South Africa, Oscar Pistorius dominated legal media related stories and this theme will continue into 2014 with our celebrity trial, sure to consume all facets of local social media.

Around a year has passed since I took the screen shot below illustrating the exponential growth of social media (coinciding with phenomenal growth of Google and the Internet as a serious tool for business and communication):

Google trends 2012/2013

Today, that picture continues to steadily evolve and grow; and is self-explanatory:

Free Speech is still King in the United States!

In Seaton v Trip Advisor LLC (via the digital media law project), a United States Court of Appeals for the Sixth District confirmed the obvious statement above.  It decided that a trip advisor list of the ‘dirtiest hotels’ did not constitute enough for an actionable claim of defamation as it was based on disclosed facts and a reasonable expression of opinion.  Ultimately, Trip Advisor published opinion which contained names of certain hotels.  If opinion is informed by visiting a number of hotels and rating them on similar methodology  (incorporating opinion from fellow travellers), then an expression that follows, regarding dirty hotels, is totally reasonable and probably required. Trip Advisor avoided liability.  Bravo DMLP!

South Africa’s media law differs slightly, clearly, but in my view a similar claim would find similar results, with the proviso that the publisher of the list took reasonable steps to ensure the information is accurate and the publication is reasonably informed. 

Employee Rights and Social Media

The existence of social media policies and an accepted form of practice is a bit old-hat for larger organisations, particularly foreign business entities, but many small to medium enterprises in South Africa still operate with very little to no policy or framework in place – perhaps, at most, vague reference in an employment agreement. This is not ideal and is recipe for abuse and potential labour issues…

In any event, most employees will use social media; the question that may have lingered was whether an employer might force access to a particular social media account.  That would stretch even the most liberal persons view of full access for employers and almost obviously, an employer cannot compel an employee to disclose a password to a social media account.

However, and this is becoming a common phenomenon all around the globe, if an employee defames her employer on Facebook or any other form of social media, even if in the heat of the moment, the consequences may be dire and result in dismissal – even with South Africa’s administratively intensive and challenging labour regime.

Facebook defamation

Defamation claims in the social media space continue unabated – the ‘faceless’ element and a perception of no accountability leads to a ‘chaotic and cacophonous space. 

First, a technical point that may be of interest while I climb on my academic horse.  Defamation (this is what we call it in South Africa) is simply an action to protect your personality (reputation) rights and as pointed out by NGO Article 19, should strike a balance between protection of individuals’ reputation and freedom of expression.  It includes both slander (verbal) and libel (written) – both are forms of defamation and, put differently, you cannot slander someone with the written word, and vica versa. Please take note City Press and News24 Nigeria

In any event, the staggering rise of Facebook (it turned 10 just the other day) means that being ‘tagged’ in a post or photograph is part of our daily lexicon.  An angry and emotional women, following on a series of legal proceedings including divorce and a form of restraining order, posted this statement on Facebook:

‘To all moms and dads… what do you think of people who allow step-brothers to bath their little sisters each night, simply because it would make the mother’s life easier???’

In addition, the ex-husband was ‘tagged’ in the above post and he was, along with the author of the post, held liable for to pay R40 000,00 (about $4000) damages.

The judge ruled that although the ex-husband was not the author of the post, he passively condoned the conduct and was deemed to have known about the post and willingly allowed his name to be associated with the defamatory statements. 

This may have repercussions for many people going forward.  At some stage or another I am sure you have all stumbled upon a Facebook or other form of social media ‘hate group’ where one person / celebrity / entity / thing is defamed and all sorts of normally rational people seem to lose the plot entirely and get stuck in.  Careful, that could have potentially dire consequences…
POPI Act / Data Privacy

The Act was signed into law on 9 November 2013 and published in Government Gazette number GG 37067 on 26 November 2013.  It is South Africa’s answer to the global trend of protecting personal information and sensitive data in our increasingly digital lives. The POPI Act has been on the agenda for quite some time and has a one-year implementation stage and a date (to still be announced) on which it will be fully effective and enforceable.  This will, most probably, be the end of 2014 or into 2015.   To simplify it, the thrust of this Act is protect South African citizens (read: you and me) from having their personal information ‘processed’ without i) our consent; and, ii) if our information is used, stored or passed on, it must be done in a reasonable manner and having used accepted methodology. For example, banks, insurance companies, anyone who needs and uses personal information to perform their function (as s service provider) or; to attempt to sell us stuff at annoying times, need to clean up and do it properly! The POPI Act and South African’s Consumer Protection Act places the average consumer in a position of power (on paper in any event…)

As an aside, don’t confuse POPI with the nefarious ‘Secrecy Bill’; they are different pieces of law with entirely opposed goals. The Protection of State Information Bill, which has garnered much negative publicity, seeks to protect State information.  They are often confused, but in my view, POPI equals a protection of citizen information, which is basically good (if administratively intensive and potentially costly), and a required change to our law.  The Secrecy Bill, on the other hand, is legislation designed to protect State information (under the guise of protecting State interests), but can easily be manipulated to hide corruption or negligence on behalf of the State and this is concerning for many.  

Oscar Pistorius

South Africa’s own version of a celebrity trial, a bit like fallen American football hero of the mid-nineties - OJ Simpson.  Ultimately, OJ got off because of a dodgy glove; will Oscar be so lucky?  Only time will tell, but we all wait with interest. 

Sochi Olympics and Gay rights

On the face of it, wanting to protect na├»ve and innocent children from pornography is a noble cause.  That is potentially the only positive ‘spin’ one can put on Russia’s anti-free speech laws that criminalize information relating to homosexuality. The evil Gays are not permitted to talk to children for their own safety. Essentially, while in Russia, it is an offence to communicate any form of material concerning homosexuality.  ‘They’ mustn’t talk about sexual orientation and it is a criminal offence to, for example, have a rally, speech or march.  The IOC then follow with the mandatory ‘we love and accept everyone’ – the Olympics were awarded to Russia prior to the passing of the law to be fair to the IOC, but these sorts of laws should be vehemently opposed, both on a moral and on a legal basis.

Law Society of South Africa's Advanced Electronic Signature Pilot

Finally, the LSSA spent much of the later half of 2013 pushing forward technology in the practice of law.  In the next few months attorneys in Gauteng and KZN are to pilot advanced electronic signatures – basically, an extremely secure digital signature. 

Changes will be made to court rules to facilitate electronic litigation and property transactions can be fully completed digitally. Forward thinking and far from the frumpy, grey old men they are often painted out to be. Again, bravo!

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