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Australia: David Galbally vs Social Media


I think that one of the issues that David Galbally, QC and other lawyers of his ilk is that because they don’t understand social media, they don’t understand where it’s going.

So calls to turn Facebook off in Victoria or to insist Facebook removes photots and videos and material relating to alleged suspects is niave at best. Irrespective what the courts say.

Everyone had an opinion on what I should’ve said during the 7 minute piece in which I got about 3 minutes 😛  Including: people can bypass with proxies, they will use other services and so on.

But it occurred to me last night while doing a podcast with Ben Grubb and Peter Black QUT that what I could’ve done before is shown this:

david-galbally-google

1,200 returns on search for David Galbally

These figures are very low for someone who is Australia’s top lawyer, and the son of a famous lawyer. But quite high for someone of his generation.

In 2005 when you googled “laurel papworth” you got about 25 links to me. Most were traditional media including a newspaper article in Dutch from when I was working in Amsterdam. And a few old Usenet (now Google groups) links back to 1991-ish. But what about today? Remember, you’ve heard of me, but the majority of the world hasn’t. I’m not a top lawyer or doctor, I’m not even a social media expert – just a plain ol’ social network strategist. 😛

laurel-papworth-google2005 – about 20 returns on search. 2008 – 88,000 returns on search.

Why? Why is it that David Galbally QC who is invited regularly onto show’s like the Einstein Factor, and me, who gets invited to free drinks at social networking events have such different returns on Google searches?  He should really be 10x or 20x higher than anything I can get right? I mean, his links are traditional media, or important law sites. Mine are just you lot 😛

And that’s the problem. You lot.

laurel-papworth-identitiesI might create a few profiles. On Facebook and Twitter, but ignore Bebo and MySpace. I might be on YouTube but you are on Metacafe. I’m on Flickr you are on Photobucket.

And – God forbid – I ever end up in court with an injunction or gag order (me? gagged? o.O) Because removing 80k of links, photos, videos, slideshows that might or might not reveal personal information will make some lawyer very rich. I wonder if they do bulk billing?

How many links will I have in another 3 years? A million? And what about the upcoming generation? Removing their baby photos, graduation videos whenever they end up in court? The photos their relatives and friends and strangers have taken? Even if YOU don’t use Facebook, someone in your social network does – betcha they have a birthday party photo with you in it.

Do my advice is: don’t do anything. Three years ago, YouTube, MySpace, Facebook were barely a blip on the horizon. Now they have 100’s of millions of members.  In a couple of years, it will be so obvious, and so many people will have so much content online, that even the journo’s won’t have a gag order.

Laurel Papworth

Named by Forbes™ Magazine in the Top 50 Social Media Influencers globally, named Head of Industry, Social Media (Marketing Magazine™) and in the Power150 Media bloggers (AdAge™). CERT IV Training and Assessment certified trainer (Diplomas and Certificates etc) Adult Education. Laurel has manager Facebook Pages for Junior Masterchef, Idol, Big Brother etc. and have consulted on private online communities for banks Westpac, not for profits UNHCR & governments in SE Asia. Lecturer, social media, University of Sydney for 10 years and Laurel has 11,000 online students. Laurel Papworth personally connects to 6 million followers online and has taught around 100,000 people in the last 10 years how to be social media managers.

60 thoughts on “Australia: David Galbally vs Social Media

  1. Which is all well and good. But, taking this flood of now-public conversation on board — yes, accepting that reality — how do we ensure that those accused of crimes get a fair trial in the face of malicious gossip and vigilante-style calls for revenge? How do we keep their families safe from the braying hordes?

    It isn’t be good enough to say, “Well, that’s the lawyers problem to sort that out.” One, most lawyers don’t yet “get it”. Two, if it’s left to the lawyers then they’ll design a system which maximises their profits. (And why wouldn’t they?)

    If we, us mug citizens, don’t get involved in the crafting of The New Way of Doing Things, then we really are leaving it up to the politicians to decide. Do we really want that?

    What do you think the next step is, Laurel?

    Stilgherrian’s last blog post..“Clive Hamilton, you’re really starting to shit me!”

    1. Hallelujah and give that man a cigar. The moment we start shouting that it’s too difficult to control online conversations that risk derailing our centuries-old-and-working-quite-well-thankyou-very-much justice system, the moment we give authority to outisiders to do it for us.

      Laurel, I commented on your other post that using your profile as an example in comparison with the arsonist was irrelevant. A court will consider the realistic likelihood of suppression when making or rejecting the order. The court would be unlikely to grant a suppression order to protect your identity or information if you were before the judge because your genie is already out of the bottle. There are precedences where this has occurred before, where information on the suspect is already out there and is therefore virtually impossible to restrict, even without bringing social media into it. Think Dennis Ferguson – I think I’m right in saying no media suppression order has been granted in his last few court appearances because his identity, image and history are already widely reported.

      But in the arsonist’s case, there was a reasonable expectation that his public profile was small enough to make suppression practical considering the possible risk to his family and friends if information was released.

      It will be a long time before the vast majority of the population have online profiles as large as yours – or even David Gallbally’s.

      I think the judges will think twice next time before revealing the name of a controversial defendant next time as it was the lifting of the orders on that single piece of information that led to what followed.

      This, of course, means that reporting of high-profile court cases could well be ham-strung in future, unable to reveal fact one about the accused under the weight of the law. You can bet if a blogger or Facebook member where then to breach the order by revealing the identity of the person, there would be a major crack-down on scial media responsibility.

      Kimota’s last blog post..Blogging the Arsonist – Citizen Journalism and Social Media Responsibility

  2. How about educating citizens (and jurors specifically) about how people gossip, lie, spread rumors, and even just make mistakes sometimes!

    If the outcome of a trial is based on what someone said on Facebook, then you have WAY WORSE problems!

  3. @Stilgherrian
    That makes a lot of sense. It’s only sensible that we’re involved in the New Way of Doing Things, because we’re involved in the media now. To a few noble pioneers, we *are* the media now.

    I think the next step is to convince the legal system that (a) our opinions and publications matter, and (b) our way is, if not better than the current way (which it may not be), at least realistic. This will mean making lawmakers aware of some of the realities of the Internet, and the fundamentals on which it operates, for example many-way conversation, unrestricted distribution of information, many-to-many communication and resistance to “choke points”, e.g. via proxies and encryption. Sure, you can try to “patch” the Internet to try and limit some of these ideas (firewalls, privacy rules a la Facebook), but in theory anybody can say anything to anybody else (spam, anyone?).

    It struck me just now that the reasons that “turn[ing] Facebook off in Victoria” won’t work are the same reasons that Conroy’s Clean Feed won’t work: they’re fundamentally counter to the technical structure of the Internet, which is that anyone can talk to anyone, and send (or receive) what they want to.

  4. @stilgherrian

    That’s a great point, and I’m glad it was made so early on in the discussion.

    I’ve stopped advocating a ‘hands off our internet’ approach to The New Way of Doing Things and realised it’s better to take a look at how we will solve these ‘issues’ in a way that maintains the integrity of the Internet in general.

  5. Simple solution to all of this … authorities do not release the identity of said accussed unless absolutely neccessary. I just do not see the reason for it.

  6. I agree Stil, and Sean, we need to set up a working party of some kind to educate around the issues. Peter Black should be involved too. How do we do that? BTW I didn’t mean to imply “don’t do anything” – I meant “don’t get your knickers in a knot about Facebook being banned in Victoria, it won’t happen in a timeframe that makes it relevant”.

    Kimota, dream on Sunshine :P. 1/4 of Australians joined Facebook in 18 months. 36 months ago there were no YouTube, Flickr, MySpace etc worth mentioning in Australia. Where on earth do you think we’ll be in another 36 months – even presuming we could get laws changed and/or every Australian trained by then? Try graphing the growth of Social network usage in Australia particularly of differing demographics over the last 24-36 months to see the issues.

    For those who think that information should be suppressed by the court. Look, for better or worse, the Internet sees censorship as damage and routes around it (not my quote). How is keeping back the name of a suspect (when his family will know, his office more than likely know, his football teammates will find out) any different from iPhone owners cracking locked iPhones? If we want access to something we’ll take it, if we want to discuss a community problem, we’ll do it. I’m not saying I agree with what the mob does, just asking how you can be involved in so many communities that walk over laws like they don’t exist and yet be adamant on this one?

  7. Because we aren’t and shouldn’t be ‘the mob’. And which communities that walk over laws are you referring to? The only other significant debate I can think of that I would side against the current law is the copyright / illegal downloading issue and that is a completely different argument.

    Again, the answer seems to be – you can’t do anything about it so don’t try to even lessen it. I’m sorry, but I just don’t accept that as a reasonable response to what is gong to become more, not less, of an issue over time. If we don’t take the responsibility and come up with ways of solving this issue, then those with less experience of the internet communities and more experience of the law will be forced to – and I really don’t think you want that.

    Time to be part of the solution and not part of the problem as a wise man once said.

    Oh, and just on the take up of social media thingy… sure people are signing up to Facebook and MySpace etc in increasing numbers. The arsonist was already a member, no debate there. His profile was pulled down, not hard to do. Court issues an order, it is circulated automatically to all social networks, and those that have the defendant as a member take appropriate action in accordance with the order – it’s not hard.

    That scenario doesn’t equate with the extreme web presence that you or I have through a myriad of other sites, our own and others. That’s why I say by comparing your own web presence with the arsonist was an unfair illustration. The average person on the street – my mum, your dad, the guy in the shop on the corner – will not have nearly 90,000 search results for their name within the next few years, let’s be honest here.

    Kimota’s last blog post..Blogging the Arsonist – Citizen Journalism and Social Media Responsibility

    1. Perhaps dealing with reality is the first move? A community attempting to heal cannot be denied to discuss an alleged perp. If the process does not fit the society, change the process? Reality first, how we’ve always done it second. We’ve never faced a reality of many to many discussions before – this is not a Facebook problem.
      Speaking of reality – read the Australian Foresters report or the new one I worked on with 3 Mobile or Neilsens? Research sometimes changes our view of the future. 🙂

      1. Gives Laurel a big ‘virtual hug’ 🙂 all the way from being busy in a South Australia ‘social media dev lab’.
        My 2c worth…

        1) It is nieve to think that now and in the future, there are/will be significant numbers of people who have little or no presence online and therefore immune from identity or personal event discoverability

        2) Influence spreads far and wide and thinking that closing down a group of blogs or a large Social Network Service or even switching the internet ‘off’ completely in one country will ever contain ‘passionate’ opinion and discource.

        3) Laws that are designed for one to many, broadcast environments (tv, newspapers – turn off the point source) are now irrelevant and trying to ‘control’ online ‘conversation’ is the equivalent of trying to put gas back into a leaking canister with your bare hands.

        4) There needs to be a massive overall of the legal system which is at the moment trying to manage unfettered international ‘conversation’. This needs to be a shift from ‘filtering/finger-on-the-off button’ stance and about laws that work in synergy with the millions of channels of communication (some real-time, some semi-persistent and some permanent) that now exist.

        5) As Laurel said, society has now fundamentally changed. The systems that govern it have not. There is a growing divide and the paths will only diverge further without changing those in charge who truly understand online social media or beginning a better consultational framework for entrenched politicians and lawyers. I would suspect we have to wait 5-10 years while the old school are phased out (or ask Laurel to go and have a few chats with Mr Rudd and the gang 🙂

        I have more points but gotta go for now!

        Gary Hayes’s last blog post..ROI 101 & Stickiness of Second Life?

        1. Howdy Gary…Hope SA’s treating you well.

          1) I think it’s naive to think the average person will have a large profile outside the established social networks. Not everyone works online like we do, producing content every single day. In ten years time, I would be surprised if the average person on the street had anything approaching the online profiles we do.

          2)No one is talking about containing passionate discourse or opinion. Yet, just as you know your webpage would be closed if you put an illegal image on it (say, child porn), it isn’t much different if another image (say, of a defendant) could also be restricted. Sure, restricted images and information exist on the internet but it is outside the mainstream and is therefore harder to come across by the average person. Less impact. There is no perfect blocking just as media blackouts are never perfect either, but it reduces the complications and lessens the risk of an aborted trial.

          3) But does that mean we shouldn’t try? We throw our hands in the air and say it’s all too hard, next thing we know is someone else comes along and instead of using their own hands, they slap a big bandaid over the hole. I think we should develop our own bandaid rather than risk theirs.

          4)Laws do need to shift to accomodate the changes the internet has brought to society – no debate there. But what we are talking about here is the central premise of the jury system – that they should be impartial and not exposed to anything that may prejudice their judgement. There is no way in hell any law will be changed that will weaken that fundamental cornerstone of our entire legal system. Expect the law to be varied to be more restictive on the information released from courts about defendants, ie; not even releasing their names, not lessened to allow open conversation of them.

          5) Again – the argument seems to be ‘we know best but we don’t think it can be fixed’. We call for change to the laws but are unwilling to budge an inch on our own online activities – even when those activities threaten fair trials and lead to the threats and victimisation of innocent people. If we are worried that the powers that be don’t ‘get it’, then why are we basically leaving it to them to fix this problem? Cause they will – and then there will be a ton of blogs complaining about how they did it.

          We can’t maintain this holier than thou attitude towards online freedom – personal responsibility has to come into this sooner rather than later. Time to turn our focus away from the lawyers and politicians and onto those that misuse (knowingly or otherwise)the freedoms of social media to cause trouble, spread hate or jeopardise an important trial.

          Kimota’s last blog post..Unsocial Media – or Why I Need to Stop Being Mr. Nice Guy!

          1. Yet, just as you know your webpage would be closed if you put an illegal image on it (say, child porn), it isn’t much different if another image (say, of a defendant) could also be restricted.

            There are lots of images that are illegal under Australian law and are still available on the internet. That’s because as with Facebook they are hosted on overseas servers. Or are you presuming to attempt to enforce Australian law on those under foreign juristictions?

            skribe’s last blog post..A Social Media Strategy for Restaurants

  8. In a global media environment doesn’t state law seem an incredibly antiquated concept? Maybe everyone in Victoria should be bound and gagged to protect them from the corrupting influences of the internet. No, but seriously why don’t magistrates suppress the names of contentious defendents from day one? Brendan Sokaluk was named by the court. If it wasn’t official then all the social media chat would just be rumour and inuendo.

    Peter Giles’s last blog post..Obama’s online community mobilisation

  9. Goodness, this discussion is hard to keep up with; two separate posts on this blog, plus one on mine and several on several others’…

    However, I’ll wade in here. There seems to be a very real difference (as I deliberately pointed out in the image atop my own post on this) between what we *want* folks to do versus what they are *naturally inclined* to do. We can pontificate and be a part of the ‘chattering class’ as much as we like, but the vast majority of the populace will use whatever channels are open to them to vent whatever spleen they feel needs venting.

    Craig Thomler over on Laurel’s other post says, “Whilst I agree that the internet needs to operate within the law, law also needs to be developed that works with modern society – including the presence of an active and robust participatory internet”, a point with which I wholeheartedly agree.

    My ‘getting stuck into David Galbally’ is *totally* reasonable — he is, as has been pointed out, a professional ‘talking head’ and this is not his first time on television. To have such a seemingly basic misunderstanding (being polite to him) of how the internet works is naive at best. Far be it for me to suggest that our learned colleague was actually deliberately playing the ‘fear’ card.

    It is NOT our *job* to be shining beacons of morality, that is one’s personal choice; in the same way that television news presenters are not allowed to express an opinion but just read the teleprompt, so as social media pundits our duty (if one can be so high-browed as to call it that) is to report what is happening in our space.

    Which we are doing and which is a healthy outlet for us — and great linkbait [/chuckle]

    Lee Hopkins’s last blog post..Why antiquated law(yers) must go

    1. “It is NOT our *job* to be shining beacons of morality, that is one’s personal choice; in the same way that television news presenters are not allowed to express an opinion but just read the teleprompt, so as social media pundits our duty (if one can be so high-browed as to call it that) is to report what is happening in our space.”

      Slightly contradictory statement there. You argue that as social media pundits we should report what’s happening in the space, devoid of opinion, yet use your blog to spout heavily opinionated attacks on David Galbally. Are we supposed to debate the the issue or merely report on it?

      No one is advocating that their view should be ‘imposed’ (my quotes) on the general populace, but to deny that there should be some form of restriction on illegal activity or on activities that risk derailing the legal process is more naive (god, that word is being thrown about too much – can we think of another one? 😉 )

      “We can pontificate and be a part of the ‘chattering class’ as much as we like, but the vast majority of the populace will use whatever channels are open to them to vent whatever spleen they feel needs venting.”

      Major difference between venting a spleen and making threats, inciting violence and hatred or derailing the very legal process the people want to occur to ensure the offender is placed behind bars.I really can’t understand why this is so hard to grasp. If free speech is considered ‘absolute’ online, and enforcement is not an option, then we can say goodbye to the defamation laws. If I can defame you online without risk, then the laws will be unenforcable offline eventually too. A newspaper would be able to report anything online – cause, hey, according to the social mmedia guys it doesn’t apply there and is just part of the ‘conversation’, rather than put it in the print edition and risk prosecution. If I can threaten your family with impunity online, a reasonable person will be able to argue that a letter or a phone call should be equially exempt.

      Yeash, let’s tear down the cornerstones of our society and unravel the rule of law because people want the freedom to do online what they would never dream of doing off.

      Some laws will need to adapt in the coming years due to the new issues raised by the internet – no debate there. But to say that the legal system must change but online behaviour mustn’t is why we are looked at with contempt and bewilderment by some in the legal profession.

      Kimota’s last blog post..Unsocial Media – or Why I Need to Stop Being Mr. Nice Guy!

  10. @Lee – social media pundits should only report on what is happening in our space? (yes I para-phrased that).

    I am sorry, I don’t want to sound rude and maybe I have read the intent of that comment wrong but that is completely ridiculous. I don’t agree whatsoever.

    There is a real trend at the moment in some blogs I read where they just provide news and/or “sermons” and don’t open up a conversation. Blogging (social media) is largely about starting conversations, just like the one you are in here.

    Daniel Oyston’s last blog post..WHY MUST WE OBEY SOCIAL MEDIA RULES?

    1. But Daniel, surely if a “sermon” is offered from the pulpit of a blog that is an invitation to converse? Just like we are doing here?

      And as has happened over on my post, contrary views are most welcome and help create and continue the conversation. You’ll see on my latest post that I have pointed my readers back to the conversation happening on this post, as well as giving them background reading via others’. Social media allows us all the freedom to co-mingle reportage with social commentary and a point of view.

      Lee Hopkins’s last blog post..Why antiquated law(yers) must go

  11. Kim, there is no difference between reporting what is happening in this space and ‘personally attacking’ Galbally — he is now a public property, a mini-celebrity, by virtue of his multiple appearances on television. That he seemingly chose not to prepare adequately for the Sunrise segment is worthy of reporting upon.

    I like Gary’s analogy of trying to put gas back into the bottle by hand; there is a VAST difference between what we might *want* to happen versus what is *actually* happening. Witch hunts are nothing new — it is just that in the 21st century these can be orchestrated and promulgated via the internet, rather than by a skilled communicator with a pitchfork and flaming torch down at the ‘Queens Bum and Icepack’.

    As someone lacking intestinal fortitude said over on my blog, I clearly show no understanding of the law, but if the society within which the law operates shifts significantly then surely it is the duty of the lawmakers to consider that. What Galbally allegedly showed was a disregard for the societal shift to online congregation and communication.

    Lee Hopkins’s last blog post..Why antiquated law(yers) must go

    1. “Kim, there is no difference between reporting what is happening in this space and ‘personally attacking’ Galbally — he is now a public property, a mini-celebrity, by virtue of his multiple appearances on television”

      Ummm, yes there is. You expressed an opinion that Galbally’s answers were ignorant, rather than report on what was said. Being a ‘public property’ doesn’t change the definition of opinion any more than it changes the definition of journalism. Otherwise, by your own example, we can expect to see the ABC newsreader report on the Obama stimulus package before turning to camera and saying “it’s all crap though, Bush wuold have done it better”, because Obama is a public figure.

      What I believe you are actually implying is that your post isn’t ‘opinion’ but a fair, balanced and factual representation of the facts that it would be hard-pressed to argue with – which it clearly isn’t.

      And your pitchfork wielding guy down the brilliantly named ‘Queen’s Bum and Icepack’ is still committing an offense – incitement to riot or violence – so yeah, it is no different in that both are, and should be, illegal. The only difference is that one is far more far-reaching and dangerous – guess which!

      Kimota’s last blog post..Unsocial Media – or Why I Need to Stop Being Mr. Nice Guy!

  12. Obviously, the Law must evolve, and it does. This happens for a number of reasons that span across social, political, economic and even technological.

    Being a rational being and with your own specific agenda (like most of us I guess), you Mr Hopkins want the Law to change to suit your side of this debate. The problem is, you’ve not demonstrated at all that the direction of this change is a “good” thing.

    Here’s a question: is it really a good idea to let the mobs loose at the expense of a fair and just trial?

    Actually, at this moment, I’m not even sure if I understood your position correctly. Your postings are so full of sensationalism and irrelevance that I’m beginning to wonder if we’re still talking about the same topic.

  13. Kim, me ol’ china 🙂

    “What I believe you are actually implying is that your post isn’t ‘opinion’ but a fair, balanced and factual representation of the facts that it would be hard-pressed to argue with – which it clearly isn’t.”

    To be fair, you wouldn’t have seen my response to Daniel’s observations, to wit, “Social media allows us all the freedom to co-mingle reportage with social commentary and a point of view.”

    So as a social mediarist I am free from publisher and network constraints to not offer a personal opinion, should I so choose. To head you off at the pass, being freed of the obligation to have no personality or personal opinion is not the same as having no legal obligation — I agree with @stilgherrian that all it would take would be a few lawsuits aimed at the most incendiary bloggers, facebookers, tweeters et al.

    But as the law cannot yet figure out how to cross international barriers online, we are some way off that happening; and all that will happen is that QCs like Galbally will make a fistful of dollars huntin’ down those pesky varmints on the world wide west.

    Lee Hopkins’s last blog post..Why antiquated law(yers) must go

  14. “So as a social mediarist I am free from publisher and network constraints to not offer a personal opinion, should I so choose.”

    So what did you mean before when you said…
    “It is NOT our *job* to be shining beacons of morality, that is one’s personal choice; in the same way that television news presenters are not allowed to express an opinion but just read the teleprompt, so as social media pundits our duty (if one can be so high-browed as to call it that) is to report what is happening in our space.” You compare our role to that of the journo restricted from applying opinion to make the point that we shouldn’t be debating morality (I think) only to go and contradict yourself later by saying we should include personal opinion even if it means attacking an individual?

    Colour me confused 😮

    Kimota’s last blog post..Blogging the Arsonist – Citizen Journalism and Social Media Responsibility

  15. IN reply to Skribe above…

    “There are lots of images that are illegal under Australian law and are still available on the internet. That’s because as with Facebook they are hosted on overseas servers. Or are you presuming to attempt to enforce Australian law on those under foreign juristictions?”

    Completely separate issue. Nothing prevents the offender being traced and prosecuted where appropriate by the police, even if the page is hosted overseas. In the case of Facebook, their Ts&Cs mean that they would remove the images once informed that they are illegal – as has already happened with images of the arsonist and even on their overseas servers.

    My point was that if you put an illegal image on your site, you wouldn’t be immune from the law – regardless of where it is. And these images and pieces of informatin weere illegal as they were in breach of the court order.

    Kimota’s last blog post..Blogging the Arsonist – Citizen Journalism and Social Media Responsibility

    1. It’s not a completely separate issue because the internet is a global resource and under many jurisdictions. Just because it is illegal in Australia does not mean it is illegal elsewhere. Therefore attempting to enforce Australian law in a foreign jurisdiction would be an exercise in futility – unless you plan to invade all the evildoers.

      If FB had given the finger to the Vic court system what could they realistically have done?

      skribe’s last blog post..The Spy Who Lives Here

  16. Kimota you do make blanket statements. 😛 There are absolutely images illegal in some parts of the world that would generate the death penalty in that country. I can think of one cartoon in particular published in Europe about Muhammad.

    Anyway lets keep it on track – can we ensure a “virgin” juror from the next village when we are all in one village now?

  17. Okay, this is another furphy, so let’s get it out of the way now. If I live in Victoria, and I post illegal content onto a website hosted in Outer Mongolia intended to be read in Victoria, some people seem to think I am exempt from prosecution. Not so. I am in fact covered by at least two separate jurisdictions.

    This is quoted from wikipedia because it was the least legalese version I could find, but if you don’t like Wikipedia, feel free to Google internet jurisdiction and give it a shot.

    “Issues of jurisdiction and sovereignty have quickly come to the fore in the era of the Internet. The Internet does not tend to make geographical and jurisdictional boundaries clear, but Internet users remain in physical jurisdictions and are subject to laws independent of their presence on the Internet.[1] As such, a single transaction may involve the laws of at least three jurisdictions: 1) the laws of the state/nation in which the user resides, 2) the laws of the state/nation that apply where the server hosting the transaction is located, and 3) the laws of the state/nation which apply to the person or business with whom the transaction takes place. So a user in one of the United States conducting a transaction with another user in Britain through a server in Canada could theoretically be subject to the laws of all three countries as they relate to the transaction at hand.”

    If I posted the Mohamad cartoon while living in a country that banned it, yes I’m in trouble. But if I live in a country that doesn’t – and my server is in a country that doesn’t – and the cartoon isn’t subject to a transaction with someone in a country that doesn’t, then they can’t touch me.

    Sure, the legal system still has fun picking through the jurisdictional issues thrown up by the internet and there will no doubt be other precedences created for certain scenarios, but in a nutshell, the above is what stands. If you have a relationship with the state or country, you may find jurisdiction applies – even if that means more than one.

    Sure, take-down notices will be harder to serve on the host companies who may well stick a finger up, but come on – there was absolutely no way the courts would ever allow as simple a loophole in the law as ‘my server is in Switzerland’ to protect someone from prosectution. And absoltuely no way a site such as Facebook would say no to taking down the offending material either.

    Further reading…
    http://epublications.bond.edu.au/law_pubs/16/
    http://www.netlitigation.com/netlitigation/personaljurisdiction.htm

    Kimota’s last blog post..Blogging the Arsonist – Citizen Journalism and Social Media Responsibility

  18. I still have a question for you guys. If a woman was abused as a child, joins sexualabusesurvivors.com forums and spends a few years with peer to peer support, and then her case goes to court, how do you tell her she has to remove herself from that community? If a young boy at 17 is allowed to drive the family car and has an accident, joins the support forums, how do you convince him to walk away from his online support friends because he is under age and the press aren’t allowed to reveal stuff about himself when it finally goes to court? This will no longer be an issue in a few years. We’re not talking about big mouthed bloggers wanting to discuss the ins-and-outs of cases cos they feel they have the right, we’re talking about human behaviour migrating online.

    Whoever mentioned Human Rights implying that gag orders is part of that is wrong. Human Rights has far more to say on Freedom of Speech than suppressing discussions.

    Kimota 55% of adults have more than one online profile (PEW) and the top 100 sites most sticky sites don’t include the major names of Facebook and MySpace. Actually the only one I know in the top 50 is Habbo. We live in niche networks (like Twitter) and visit the others like a shopping mall. The arsonist may only have 3 or 4 profiles, but I bet a girlfriend, a brother and a cousin have many more.

    KeenObserver …and you add nothing of value.

  19. Morning Laurel – now I’m thinking with a hangover so I feel like I’m debating with half my brain tied behind my back… 🙂

    1) The hypothetical woman on the support forums most likely would not have revealed the identity of the attacker if this was before an investigation. To do so would be to make an allegation against someone else which of course would spark the investigation in the first place. The moment he or she mentions “it was my teacher, coach, uncle Terry” an allegation of a serious crime has been made online and will no doubt result in a knock on the door of the teacher / coach / Uncle Terry not long after. Funnily enough, it isn’t too hard to delete or suspend a thread should such a scenario happen (whereby the courts would be aware of the thread and the prejudicial information it could contain)and I honestly can’t imagine a mod on such a forum denying a request pertaining to putting the offender on trial.

    On the other hand, if we are talking about someone going to the forums after the investigation and pre-trial, why would she jeopardise the conviction of the person who hurt her so badly by revealing the name and details? As the victim in the case, she would have been advised at great length about how such behaviour could destroy the case. All the media gossip around Dennis Ferguson in QLD nearly got him a stay of prosecution – ie; all of the reporting and gossip and community anger almost meant Ferguson was going to stay a free man. There’s an education issue here, definitely. Gossip and discussion of the defendant could actually have the opposite effect to what you want to happen.

    2) Actually, Australia doesn’t have a freedom of speech clause in our constitution, unlike the USA. This is another argument though. On the other hand, human rights laws certainly have a lot more to say about the right to a free trial than it does about freedom of speech. Freedom of speech does not allow for people to be victimised or for defamation, hate-mongering etc.

    3)If the name isn’t released, it doesn’t matter where they’ve been online. But there are differences between what is harmful and what isn’t. Discovering he has a Amazon account and reads James Bond novels is hardly an issue likely to sway a juror. His MySpace page with his photo and maybe even contact details and an address are – hence why it is entirely possible, as Facebook and MySpace both did, for any social network of that type to suspend or otherwise make invisible the profile for someone who is the subject of a court order. This is not about removing someone’s entire online footprint, but removing certain information that could be prejudicial and / or cause danger to his person or his family.

    But again, it’s all too hard, isn’t it? If the legal profession or the politicians someday decide they need to look at these issues and find a solution, who do you think they are going to invite to the discussions? Those social media experts that think it’s a waste of time or those who believe a solution must be found?

    Now excuse me while I make some strong coffee, worry about whether I stuffed up an argument here, trip over the cat, lose the Berrocca and start the weekly vow to stop drinking. 😉

    Kimota’s last blog post..Blogging the Arsonist – Citizen Journalism and Social Media Responsibility

  20. Laurel…this is one of the SM-related blogs I follow because I, too, am a “keen observer” of what’s happening in that space (i.e. social media). But sometimes, you seriously get it wrong. And here you are terribly wrong. Well, maybe not as wrong as Lee in here (what with his ridiculous suggestion that witch hunts are OK), but still wrong.

    Your scenarios of the 2 survivors above are strawpeople.

    Firstly, they are simply not the same as the Sokaluk/Facebook incident. I’ve not been to a survivor site but I’d bet that, obviously given the sensitive character of their community, such a network will be super gated, with pretty tight rules of entry. Thus, the audience will be relatively small. It’s not the same as FB where all and sundry can join the relevant group and say whatever they want!

    Secondly, if a court deems that revelation of info in a survior site, no matter how niche the audience, jeopardises or potentially jeopardises a trial – then I see no reason why a court couldn’t order the same kind of suppression (on the relevant threads or posts) that applies to everyone else. Of course, you would say that this is wrong. I would say that this is right in the interest of justice!

    And that Laurel, “justice”, is a concept that you seemed to have totally missed in this whole discussion. Let me ask you a question of my own: how do you know, at this very moment, that Sokaluk is definitely guilty?

  21. If I had a dollar for everytime I saw on a forum “I was abused by my uncle Terry who lived with us when we lived in Cabramatta” I’d be very very rich. It’s been quite an education – both on how often it happens and the willingness to speak about it.

    A quick search on Twitter – “I was abused” is very revealing.
    The forums don’t need to be closed
    http://yedda.com/questions/sex_abuse_psychology_7356921079105
    A quick check on profiles, or if you get to know that “person” leads to making assumptions about them and their family. We reveal so much when we feel safe online and we aren’t thinking “publishing”.

    Justice changes with society. And if people can talk about it in the pub, with their mates and in other social context, they will online. And fair or not, just or not, legal or not, it will happen. Saying it shouldn’t be so, won’t make it so. We need to find other ways than simply “not allowed” to deal with both survivors and alleged’s rights. I just don’t think gags are an option.

    And here’s the thing – I insist you tell me how to stop the neighbourhood from naming and shaming the neighbour in real life damaging discussions, so he can never go to the local shop again, and once you’ve done that, then I’ll be serious about finding a way to stop victims from confessing painful life events online, in a moment of trust and social contract.

    In the meantime, accept that the stopping strangers from finding out stuff pre-trial and stopping alleged victims from talking about alleged crimes, in online chats cannot be implemented without some serious draconian measures.

    1. “And here’s the thing – I insist you tell me how to stop the neighbourhood from naming and shaming the neighbour in real life damaging discussions, so he can never go to the local shop again, and once you’ve done that, then I’ll be serious about finding a way to stop victims from confessing painful life events online, in a moment of trust and social contract.”

      It’s called slander. Been a law for a very very long time.

      Kimota’s last blog post..Blogging the Arsonist – Citizen Journalism and Social Media Responsibility

      1. I didn’t say “name the law” I said “stop it”. Having a slander or whatever law has never stopped people from being mean to alleged suspects.
        For example, you don’t seriously believe that after the paedophile register was published, those guys didn’t have their cars scratched, refused service, whatevs do you?

        I wish with all my heart people would be kind and forgiving and compassionate. But they ain’t and tracking millions of Australians online (85% of 18-24 year olds in SNS) who unwittingly discuss stuff is not enforceable, nor even necessary. And stop confusing hate mongering with ‘discuss’ – though I personally would be more fearful of my real life neighbours doing unprovable things than 348 members of Burn In Hell, Arsonist” facebook group…

        Oh and please stop saying things like “gives people a bad impression of social media users”. There’s no such thing as “us and them” every Australian is a “social media user”- most people know of a situation where they have said something ‘iffy’ online in a moment of trust and spontaneity.

        Good luck with changing the way every single Australian thinks, engages and discusses online or off. And again, I’m not talking hate-mongering, unless you call “I hope they hang the bastard high that did this” true hate mongering.

        1. Okay, I can see you’re getting frustrated and you know that’s not my intention.

          In response to the “There’s no such thing as “us and them”” comment, isn’t that exactly how this post and others have characterised David Galbally QC and the legal profession and anyone who doesn’t ‘understand’ social media?

          You think no one ever got charged for assaulting a paedophile or committing damage to their car after the register was released? And no one is talking about monitoring ‘Big Brother’ style every comment online and you know that’s not what’s being said. This debate was about Facebook adhering to the court order and how similar restriction on specific comments or images can occur in the future. Sure, not every instance will ever be caught, just as I’m sure there are still photos of Pokaluk out there, but if there are not in a place that attracts enough attention to get the attention of the police or the courts, they’re unlikely to prejudice a trial. Those that do, such as a Facebook group, do.

          Kimota’s last blog post..Blogging the Arsonist – Citizen Journalism and Social Media Responsibility

  22. My frustration is that the goal posts move. My original response was to David G’s statement that Facebook should be shut down during court cases to stop people discussing a case online. Not hate mongering, not victims revealing suspects details, nothing else. Just “shut it down”.

    And I stand by the statement that if the social setting we discuss common social issues (including crime), involves our social network, it is irrelevant if our friends are at the footy, pub or on Twitter. We naturally and spontaneously say “wow, guess what I just heard/saw” we don’t think, and are unlikely to think, “what are the legal ramifications of this”. We are terminally oblivious to the invisible audience.

    I don’t believe we can change that behaviour in the short term. I don’t think that shutting Facebook down will stop the conversations. I think suppression orders that reveal a teachers face and school but not his name, or an arsonists name and state and nearest bushfire but not his face are out of date.

    I think hate groups online are a nightmare (I’ve had experience with them) – but I know (same as marketing) that kill the conversation (especially “righteous indignation” ones) and they become infinite spotfires. Sue one guy for saying the arsonist should hang and 100,000 will start up support groups for him. I don’t know how to solve that. I recommend not inflaming them – I have variable ways of dealing with it online depending on the ‘heat’ and demographic.

    I certainly don’t believe turning off Facebook, YouTube Twitter and major services during court cases is viable. We are not talking a small group using a handful of services. It’s like turning off email for all Australians.

    I don’t know what else to say, so shall retire gracefully from the debate 🙂

  23. G’day all.

    Apols from my absence – my mum’s in hospital with coronary issues.

    I’m with Laurel – I think the discussion has run its course and I have nothing to add to my point of view that hasn’t already been said.

    Apart from someone who lacks the intestinal fortitude to give us their real name and whose’s bizarre ad hominen is… well, bizarre, can I say, Kimota, how impressed I have been with your measured arguments, both here and on my blog. I hope we can catch up for a coffee one day, chap.

    Viva la difference, as the French probably don’t say anymore.

  24. And so you should retire from the debate Laurel. With respect, you’re still unable to make the distinction between chatter at the pub or footy and publication on the net.

    Frankly, even I am getting frustrated. With you! Take your penultimate paragraph: it’s just sensationalist irrelevance! Let’s just recap what the QC actually said.

    “It should be shut down in Victoria. It should not be allowed to be accessed in Victoria. We should have a mechanism by which we can shut it down in Victoria. And if we can’t do it, then we ought to be looking at being able to protect our people who are charged with offences from having trials placed in jeopardy because of what’s published on the internet in breached of court orders.”

    That was after explaining how information released on the net could jeopardise a trial because jurors or witnesses are influenced by what they see on Facebook. The principle that he’s talking about is actually very simple to understand and has been around for a fairly long time.

    As for you Mr Hopkins, you’re a lightweight! Ad hominem? Read your post on your blog and see if that’s not what you did to our lawyer. You, Sir, are a master of the cheapo.

  25. KeenObserver, I have anon proxies on moderation, so there is a delay.

    I’ve been presenting at conferences on the rise of the anti-community for a few years now. This debate of “shut ’em up or turn ’em off” isn’t new. It hasn’t worked for other illegal behaviour of cracked iPhones or copyright, not sure why we’re even bothering to debate it for slander and prejudicial release of personal information, except that perhaps I feel that people who inadvertently make comments online are less guilty than those knowingly downloading copyright material and cracking locked iPhones.

    @kimota and @leehopkins Me want coffee too. I hope your mothers (both) are well and enjoying your buoyant spirits 🙂

    1. No worries Pappy. Hope you don’t think I’m being rude by remaining anon. It’s a professional imperative, I’m afraid. Suffice to say that I’m a fan, a keen follower of this blog and also an advocate of the whole SM thing, if somewhat sceptical about its importance.

      I understand your POV perfectly. It’s just that I also have a greater commitment to a just way of treating even our accused.

      So, in the end, peace to you!

    2. I’m back… Your last comment…
      “This debate of “shut ‘em up or turn ‘em off” isn’t new. It hasn’t worked for other illegal behaviour of cracked iPhones or copyright, not sure why we’re even bothering to debate it for slander and prejudicial release of personal information, ” got me thinking. There’s a blog post coming on that one, because I think the two examples are very different and the reason why is an interesting one and one worth exploring. Not going to answer it here, cause it would be a very long comment – stay tuned.

      Sorry to hear about your Mum, Lee. As for my Mum , she is now suitably celebrated, wined and dined so I think I’ve secured my place in her affections for another year. 😉

      Kimota’s last blog post..Blogging the Arsonist – Citizen Journalism and Social Media Responsibility

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