Through a glass, darkly

By Legal Eagle

An online persona is an interesting thing – a reflection of the self in a very public forum. One of my old bosses used to say, “Never write anything in a file of which you’d be ashamed if it needed to be produced before the Court.” I tend to employ the same principle with regard to blogging and applications such as Facebook.

There have been a raft of legal issues arising from the use of social networking sites such as MySpace and Facebook.

One way in which issues can arise is from online comments or photographs which bring an employer into disrepute, are critical of an employer, or even not in line with an employer’s “party line”. A few weeks ago, the NSW Department of Corrective Services threatened to sack prison officers over comments they made to a Facebook group criticising the State Government’s plans to privatise two prisons. Telstra employee Leslie Nassar was disciplined for setting up a Twitter account as “Stephen Conroy”, and Telstra has now instituted a new policy setting out guidelines for staff. A employment lawyer has indicated that unless companies have clear policies about use of technology such as Facebook, employees who had been sacked for these kind of offences may have an unfair dismissal claim.

Meanwhile, a newly formed Sydney company called SR7 specialises in digging up dirt on staff by spying on Facebook, MySpace, Twitter and YouTube posts for employers:

It was formed about eight months ago in response to the growing trend for people to take conversations they would have traditionally had with mates at the pub on to their social network profiles.

Few people realise these seemingly private sites are still public spaces. If controversial posts leak to the media, it can lead to brands suffering immense damage to their reputations.

On the other hand, as David Vaile notes in the linked article, spying could backfire on companies, as people may refuse to work for or trust a company which spies on employees.

The other way in which social networking sites may have legal ramifications is in criminal cases, particularly in relation to credibility of a witness. There have been two cases recently where a police officer’s testimony has been thrown into doubt by what they have said and done on social networking site.

In the first instance, evidence from a social networking site was used to cast doubt on a policeman’s character. The defendant had been on parole after being convicted on burglary, and was charged with carrying a loaded weapon. The policeman, Officer Ettienne, gave evidence that when he arrested the defendant in 2006, he had been carrying a fully loaded 9mm Beretta pistol, an extra 15-bullet magazine, 27 loose rounds, and a pair of handcuffs.

However, the defendant’s lawyer argued that the gun had been planted on his client, with the intention of justifying the fact that the defendant’s rib had been broken during the arrest:

Lesher [the defence lawyer] dug up evidence to show that the day before the arrest, Ettienne, had set his “mood indicator” on his MySpace page to “devious”.

The setting is one of 122 moods ranging from “annoyed” and “bitchy” to “quixotic” and “weird”. The “devious” setting comes with an angry, red emoticon – a graphic representation of a facial expression – which is being licked by flames.

Lesher also told the court that in the lead-up to the trail, the beefy policeman had set his status on his Facebook page to: “Vaughan is watching ‘Training Day’ to brush up on proper police procedure.”

Training Day is the 2001 movie starring Denzel Washington and Ethan Hawke in which Washington plays the part of Alonzo Harris, a highly-decorated but bent Los Angeles police narcotics officer.

Some clever sleuthing by the defence lawyer also turned up incriminating comments made by Ettienne on the UselessJunk video sharing site.

One of a pile of comments listed under a 2007 video titled ‘Cop Slugs Handcuffed Suspect’ was one from “Blakryno”, Etienne’s online moniker.

The comment read: “If he wanted to tune him up some, he should have delayed cuffing him … If you were going to hit a cuffed suspect, at least get your money’s worth ’cause now he’s going to get disciplined for a faggot-ass love tap.”

The charges against the defendant were dismissed by a jury.

The second instance is an Australian case. Outside a Sydney pub last year,  Constable Hogan poked an an off-duty military commando in the eye, and in response, the commando bit Hogan’s face so hard that he drew blood and created a large gash. The question was whether the bite was in self-defence:

Constable Hogan’s cyber life saved the defence lawyers a lot of work. They tendered as evidence Facebook pictures and groups he had joined online.

Despite objections, the judge allowed the jury to read captions like “getting trashed” and “getting drunk”. They also learned that Constable Hogan was a member of two groups: “I secretly want to punch slow-walking people in the back of the head” and “God created police so firefighters could have heroes”.

The defendant was given a suspended jail sentence.

These cases raise interesting questions about privacy. How far should one’s membership of a group such as “I secretly want to punch slow-walking people in the back of the head” should be held against you? To my mind, the purpose of the group was clearly tongue-in-cheek. And should the fact that Officer Hogan might like to dress up in a sequined mask and feather boa when inebriated be held against him?

By contrast, as Armagny has observed in comments, in the Etienne case, the police officer’s propensity to hit an accused was directly in issue, so producing the officer’s comments about how to go about roughing up a witness would be relevant.

The moral of all these stories was also highlighted by our defamation post: Make personal information available online at your peril. Think carefully when commenting on your workplace or making comments which could potentially embarrass your workplace. Perhaps it’s good to apply the following test: would you say those things or do those things in front of your boss? If not, it’s probably best to keep them private.

5 Comments

  1. conrad
    Posted April 23, 2009 at 10:46 am | Permalink

    “If not, it’s probably best to keep them private.”

    or just use a pseudonym!

  2. Posted April 23, 2009 at 2:47 pm | Permalink

    Tah for the tap. While relevance should be the principle, a problem will be judicial bone ignorance in terms of the way these things work- we all know that the I secretly want to punch group is a complete nonsense made up for half a laugh. I can’t fathom of how that would be relevant to a trial (with the proviso that I wasn’t there etc.).

    Not as bad as the US trial in ‘The Staircase’ though…

  3. Posted April 24, 2009 at 3:57 pm | Permalink

    True Armagny, that was an absolute shocker!

  4. Posted April 26, 2009 at 10:34 am | Permalink

    Wish I had time to make a longer comment, as this is a vexed and growing topic, and I have many thoughts about it.

    One recent report noted the trend for video “evidence” being presented to courts, in that instance mobile phone footage filmed by a woman who alleged she was sexually assaulted. Charges failed, as the video convinced the jury that she wasn’t an unwilling participant (at least I deduce that’s what happened).

    The broader issue with that is the trend toward un-contextualized snippets being presented in court to fill in the gaps of memory or narrative, and the tenancy of juries to believe anything that is visual. Visuals create an aura of certainty, even if none exists.

    Yet another case reported the other day of a woman losing her job while on sick leave. She told her manager she had to lie down in a dark room, and couldn’t work on a computer (migraine, perhaps?). A person from her work later reported that she had posted an update on her Facebook page while on sick leave. The company was careful in saying that she was fired from her job, not for using Facebook while on sick leave, but for lying – she had claimed that she couldn’t work on a PC.

    Her side of it – she updated her page while lying in bed, using her iPhone. (Apart from that, how long does it take to update, a couple of minutes? Was she updating to let everyone know she was home sick?)

    Almost worse than losing her job over such a pedantic and deliberately harsh definition of “lying”, most commenters on a newspaper site overwhelmingly supported the employers action and reasons for the sacking.

    The envelope is being severely pushed in many spheres and there’s absurdly wide and stupid support in the general population. It’s all very disturbing, in terms of privacy, but especially in terms of the way trivia and trivial actions are being distorted and having significant consequences.

3 Trackbacks

  1. […] Through a glass, darkly […]

  2. […] Eagle has a post on the matter of the disclosure of personal information on the Internet. She concludes… “Make personal information available on-line at your peril. Think […]

  3. […] accessed it in any case, simply by putting your name into a search engine. As I have outlined in a previous post, these days there are actually companies out there who specialise in finding out whether employees […]

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