Facebook contempt of court derails UK drug case

June 30, 2011

By Dr Melissa de Zwart

A major drug trial had to be abandoned and a juror and an (acquitted) defendant found guilty of contempt of court in the UK High Court, following contact between the juror and defendant on Facebook. This was the first prosecution for internet related contempt in the UK. The juror, Joanna Fraill, a 40 year old mother of three, created a Facebook profile called ‘Jo Smilie’, which clearly showed her image. She then used that profile to make contact with the defendant in the drug trial, Jamie Sewart, (34) who had been acquitted of conspiracy charges that day. The contact was made while the jury was still deliberating on other charges.

The complex multi-million pound trial, being heard in Manchester, had involved multiple defendants and charges and was one of a series of four trials. The high profile contempt proceedings came at a time of increased attention by the judiciary in the UK (and Australia) to issues related to jury members accessing the internet for information and attracted the personal involvement of the UK Attorney-General, Dominic Grieve. The case illustrates not only the allure of using the internet for research, but in particular the deceptive sense of privacy and intimacy created by social networking sites, such as Facebook.

Transcript evidence

A transcript of the Facebook chat, which took place in August 2010, has been made available by The Guardian. That transcript shows that Sewart clearly knew that ‘Smilie’ was a juror and asked her: ‘what’s happening with the other charge??’. ‘Smilie’ had asked her to clarify the question, but then went on to post a little later ‘don’t worry about that chge no way it can stay hung for me lol th’. Smilie was also clearly aware of the risk she was running, posting: ‘cant get anywaone to go either no one budging pleeeeeese don’t say anything cause jamie they could call mmiss trial and I will get 4cked too’.  Sewart reassures her: ‘I know I have deleted all the messages I wudnt do that to u don’t worry xx’. The pair also discuss nods, blinks and smiles that Smilie had been sending to Sewart in the courtroom (although Sewart seems to have been unaware that they were meant for her). Sewart later says that they should keep in touch and that she would get Smilie ‘a nice pressie’ if she got anything ‘out of um’, presumably the ‘compo’ she said she would be applying for. At the heart of the exchange is the sense that Smilie wants to show her empathy with Sewart and to explain that she had felt that she had shared the experience with Sewart, noting that she had laughed and cried along with her during the trial.

Despite her assurances to Smilie, Sewart told her lawyer about the Facebook exchange the next day. This resulted in the seizure of her computer and the bringing of the contempt charges. The jury was discharged and the case collapsed.

Both Fraill and Sewart were found guilty of contempt of court in June 2011. Fraill admitted that she had contacted Sewart, claiming that she had been motivated by her joy that Sewart had been acquitted of the charge of conspiracy to supply drugs, after being on remand for fourteen months and separated from her young child, and because she had felt that there were ‘considerable parallels’ between the womens’ lives which made her feel empathetic to Sewart’s plight. Fraill also admitted to having conducted internet searches on Gary Knox, Sewart’s partner and co-defendant in the trial.

Gary Knox, a defendant who was convicted in the original drugs trial and jailed for six years on charges related to paying a police officer to disclose information relating to drug dealer has also applied to have his conviction overturned on the basis of alleged jury misconduct.

The case was heard by the Lord Chief Justice, Lord Judge, Ouseley and Holyrode JJ.

Sentence and observations

Fraill was sentenced to eight months in jail for the contempt. Seward was sentenced to two months, suspended for a period of two years. The contempt action was conducted personally by the Solicitor- General, Edward Garnier QC, who stated that the case was necessary to protect jury integrity. After the trial, Garnier stated that: ‘Jurors should take careful note and know that the law officers will prosecute those who commit contempt.’ He continued:

‘The jury system is a cornerstone of our society and confidence in this vital part of our criminal justice system will crumble if jurors do not take their responsibilities seriously.’

The written ruling of Lord Judge stated: ‘Her [Fraill’s] conduct in visiting the internet repeatedly was directly contrary to her oath as a juror. And her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial.’ The messages exchanged between Fraill and Sewart ‘went much further than the expression of a compassionate concern’. The ruling warned that any similar action by a juror would result in a custodial sentence, such punishments being necessary to maintain faith in the integrity of the jury system. [sky.news.com.au]

In November 2010, Lord Judge had presented a paper to the Judicial Studies Board warning of the prospect of jail sentences for jurors engaging in internet research. He highlighted the risks posed to the jury system by jurors using the internet to search for further information on matters related to the trial. He stated: ‘I do believe that if it is not addressed, the misuse of the internet represents a threat to the jury system, which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge. He is not to be convicted on the basis of material which from his point of view is secret material – not only secret material, which is bad enough, but material which may be inaccurate and could also be false.’

Lord Judge concluded: ‘if the jury system is to survive as the system for a fair trial in which we all believe and support, the misuse of the internet by jurors must stop. And I think we must spell this out to them …  yet more clearly. It must be provided in the information received by every potential juror. It must be reflected in the video which jurors see before they start a trial. Judges must continue to direct juries in unequivocal terms from the very outset of the trial. And I should like the notice in jury rooms which identifies potential contempt of court arising from discussions outside the jury room of their debates, to be extended to any form of reference to the internet.’

Facebook ‘friends’

One of the interesting issues raised by this trial, is not so much that Fraill was tempted to discuss the case on Facebook, but rather what Jenny McCartney writing in The Telegraph described as the ‘illusion of intimacy’ displayed in the transcript of the chat. Fraill clearly wanted to be identified by Seward as a friend and ally. Although she had used the internet to search for information on Knox, it appears that she was mainly interested in getting some acknowledgment from Seward that they shared a special bond. Although she had been signalling to Seward in court, it was by no means clear that the signals had been received by Seward. In the same way that for example, fans of a popular musician or actor can gain a sense of contact through receiving a message via Facebook, Fraill sought some affirmation from Seward. This sort of contact would not have been possible in pre-Facebook modes of contact and represents a unique aspect of social network communication. This is an extension of the general problem of jurors being tempted to conduct their online ‘research’ during trials. It is now necessary for jury instructions to specifically prohibit using any internet enabled device to conduct research or to communicate with anyone regarding the case. Whilst this may appear to be common sense, experience suggests that we are still learning how to use Facebook and social networking sites appropriately.

Dr Melissa de Zwart is an Associate Professor in Law at the University of Adeliade.

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In this edition (#8)…

June 3, 2010

In this edition we report from across the pond.  Dr Owen Morgan sheds light on a David and Goliath battle between a Kiwi businessman and Coca-Cola. This fascinating article highlights the bullying tactics of the drinks giant and the possible impact on the Rugby World Cup and the future of… “carbonated milk”!

The “Boycott Facebook” day last month sparked headlines around the world as Facebook incited mutiny amongst its users by changing its privacy settings.  Elisabeth K. Cooke outlines Facebook’s privacy labyrinth.  She also discusses how she is using the new settings to avoid “frenemies” and annoying 3rd party advertisers.

Finally, Peiwen Chen reflects on the recent IPRIA seminar given by Dr Dev Gangjee on the ECJ’s L’Oreal “knock off” imitation perfumes case .  Chen outlines the case and discusses Gangjee’s views on the “depressing” expansion of trade mark law into unfair competition.


Juggling Facebook and Privacy

June 3, 2010

by Elisabeth K. Cooke

Founded in February 2004, Facebook has quickly become one of the most popular social networking sites, playing host to 400 million users in 75 different languages around the world.  Facebook’s mission is to ‘give people the power to share and make the world more open and connected’. They are certainly well on their way. Even the Supreme Court of the Australian Capital Territory is on board with Facebook, ruling in 2008 that Facebook is a valid protocol to serve notice to defendants.

The concept of social networking sites raises a number of privacy and safety concerns. Recently, Facebook has been in the news for a surprising variety of reasons: police laying charges based on the contents of photos, fugitives being located from their own status updates and young people coming to harms way. The very nature of social networking sites provides for a broad ability to raise all sorts of issues. However, it is how Facebook users establish and maintain privacy that has become of the utmost importance.

Understanding Privacy Settings

Scrutinizing Facebook’s privacy statement is no simple task. The New York Times recently investigated Facebook’s privacy statement, drawing particular attention to the word count. In 2005, Facebook’s privacy statement was at a mere 1,004 words. Five years later it has ballooned to 5,830 words, a growth of over a thousand words a year. The New York Times cleverly points out that Facebook’s policy statement is longer than the United States Constitution. The Australian Constitution, however, could eat Facebook’s privacy statement for breakfast, coming in at approximately 14,000 words. The University of Melbourne’s privacy policy weights in with 1,383 words. The length of the privacy statement alone is daunting, never mind trying to navigate around the 50 different privacy settings with 170 different options.

Talking about Facebook and privacy has quickly become as popular as skinny jeans and the elusive ‘best’ coffee in Melbourne. But what should we actually be worrying about? What are the risks and concerns? As a proud and possibly addicted Facebook user, here are my top three concerns:

  1. Who can access my Facebook profile content and personal information?
  2. Search engine visibility
  3. 3rd party advertisers

Understanding privacy on Facebook is much different than privacy in the offline world. Generally, we assume that we are the gatekeepers that grant others a right to our personal information. Facebook sees things differently. Facebook keeps the gate open as their default setting for privacy. Facebook argues that everyone ‘opts in’ to join Facebook and every time a user posts a status update or photo, they have ‘opted in’ to share that personal information by the mere act of adding it to their account. This means that anyone who joins Facebook (meaning anyone over the age of 13 with a valid email address) has zero privacy until they sort through the 50 different settings with 170 options.

Controlling My Profile

Facebook’s privacy settings are detailed and specific. Most importantly they are designed to empower users to sort through each setting individually in order to protect users privacy. It is essential go through each category to select your own privacy settings.

Personally, I was quick to adjust the ‘Search’ subcategory to control who could search for me either on Facebook or on a search engine (search engines can index anything you make public, I set my profile as completely private). I also took the liberty of ‘blocking’ a few individuals on Facebook who shall remain nameless. Apart from 3rd party advertisers, which I’ll address later on, that took care of the outside world – it was then time to work through my ‘Friends’.

I have found that the most effective and time efficient way to control what different ‘Friends’ can see is by creating ‘friend lists’. Creating lists is relatively easy. On my ‘Home’ page, I selected ‘Friends’ from the right hand column of options. The ‘Friends’ page provided me with a list of all my friends in order of most recent activity. At the top of the ‘Friends’ page is a button marks ‘Create a List’. Once I clicked the list I had the option to create a group of friends separate from all of my other friends.

While I would never want to openly admit that I classify or rank my ‘friends’ – I secretly do. Inner circle friends, family, work colleagues, university colleagues all have their own lists. I have found these lists useful to sending out group messages over Facebook, but most importantly, I can tailor the level of privacy I want to have against the entire list by simply going through my privacy settings and ‘allowing’ or ‘blocking’ them on all settings (who can see photos, wall posts etc). This enables me to have a slightly more manageable and time efficient strategy for protecting my privacy. This is of course not to say that I have a particularly interesting Facebook profile, in fact, I am quite sure that I don’t. However, not all of my friends on Facebook need to see me in my pyjamas on Christmas morning.

3rd Party Advertising

Facebook says they don’t share identity or names – they sell advertising based on demographic and perceived interests. Facebook uses anonymized demographically targeted ads, and “serve ad impressions to users where the word is on there somewhere”. While similar to a key word search on Google, this the word search goes through your entire Facebook profile, including personal messages, wall posts, etc. This translates into advertising getting their audience without getting the personal information.

Since setting my status as ‘engaged’ I have been bombarded with ads full of blushing young women dressed up as cupcakes. At the beginning of the year, I arranged a trip to Sydney and organized to meet friends via Facebook messages. Imagine my surprise when ads for Sydney Opera House tours started popping up on the right hand side of my profile.

Facebook’s business pages currently hosts over 1.5 million small businesses and plan to go up against Google in providing advertising services. The anonymized demographically targeted ads provide businesses with the ability to narrow down their target audience, reaching directly to specific individuals. Facebook goes as far as to provides users with the option to ‘close’ an ad and give feedback on why they chose to close the ad. How helpful.

Facebook’s Statement of Rights and Responsibilities

Facebook’s ‘Statement of Rights and Responsibilities’ provides that they can amend the Statement so long as they provide users with notice by posting the change on the Facebook Site Governance Page and provide users with an opportunity to give comment (Section 13). If there are 7000 or more users who comment on a change, Facebook will provide a voting mechanism for the particular change. While Facebook prides itself on being user friendly – the moral of the story is that changes can happen without users receiving direct notification. This means that users must exercise self-responsibility and frequently check the Facebook Site Governance Page for any updates or changes.

New Additions and applications

Social plug-ins let you see what your friends have liked, commented on or shared on sites across the web. All social plug-ins are extensions of Facebook and are specifically designed so none of your data is shared with the sites on which they appear. For example, last week I was on cnn.com and paused in the middle of the reading an article only to notice a bar at the right hand side of the page informing me that one of my Facebook friends had recently posted a comment on his friend’s Facebook wall about that particular article. I couldn’t log into Facebook fast enough to update my privacy settings.

Facebook is on the cusp of offering location-based services to Facebook users. This service will allow users to see the geographical location of other users at the time they log in. This will certainly take ‘face creeping’ (checking up on or ‘stalking’) someone’s profile to an entirely new level.

Facebook’s Stance

Facebook reported that they will soon ramp up their efforts to provide better guidance to those confused about how to control sharing and maintain privacy. Elliot Schrage, Vice President for Public Policy at Facebook said that ‘anyone interested in these topics should become fans of the About Facebook Page and the Facebook Site Governance Page — two valuable sources of information that already provide regular updates to more than 8 million users’. Users are also welcome to become a fan of ‘Facebook’ and to leave a suggestion at the help center.

While I continue to juggle my paranoia with what has become a mild obsession with Facebook I have found three approaches that I believe protect my privacy: maintain my ‘Friend lists’, checking changes to privacy settings frequently and using what my mother would call using my ‘not-so-common common sense’ about what I post about myself on the internet. But after all the work to maintain my privacy and stay ahead of any updates or changes, I can’t help but ask myself, is it worth the risk?

Elisabeth K. Cooke is a JD candidate at the Melbourne Law School


Legal Eagle analyses the digital landscape – cyber-bullying and sexting.

March 25, 2010

by Katy Barnett

1. CYBER-BULLYING

Cyber-bullying in Australia – Facebook

It’s not only Lara Bingle and other celebrities who have to worry about cyber-bullying, “sexting” and how to control the publication of generally offensive material. In recent weeks, a few incidents in Australia have raised these questions. First, offensive material was posted on a Facebook tribute page for 12-year-old Brisbane schoolboy Elliott Fletcher, who was stabbed to death by a fellow pupil at his school. Soon after, offensive material was also posted on a Facebook tribute page set up for murdered Bundaberg schoolgirl Trinity Bates. Meanwhile, some members of a Brisbane school formed a Facebook group which mocked the disappearance of Daniel Morcambe in 2003. Some other students from a different school formed a group which bullied a staff member, and were “disciplined”. And apparently there’s a whole genre of photos known as “revenge porn” out there on the web (as the name suggests, it involves an jilted lover posting explicit material about an ex-partner).

Cyber-bullying in the US – the MySpace case

The problem of bullying via the internet is not new. In the US in 2006, the issue came to the attention of the world after a 13-year-old girl named Megan Meier committed suicide. Meier had made contact with a 16-year-old boy named “Josh Evans” on MySpace. The boy purported to be attracted to Meier, but suddenly the tone of the messages turned nasty, and the final message sent from the Evans account said, “Everybody in O’Fallon knows how you are. You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you.” Meier replied, “You’re the kind of boy a girl would kill herself over.” 20 minutes later, she committed suicide.

As it turned out, there was no “Josh Evans”. The profile was fake, and it had been intended to lure Meier into an online relationship with “Josh” to find out what Megan was saying about Sarah Drew, a former friend and neighbour. Sarah’s mother, Lori Drew, and an 18-year-old employee of Lori Drew’s, Ashley Grills helped set up that account and, along with Sarah Drew, sent messages purporting to be from “Josh Evans”.

Lori Drew was prosecuted under the US Computer Fraud and Abuse Act for conspiracy and intentionally causing emotional distress. She was initially found guilty of a misdemeanor breach of the CFAA. On appeal, however, Drew was acquitted, as Wired explains:

The case against Drew hinged on the government’s novel argument that violating MySpace’s terms of service was the legal equivalent of computer hacking. But U.S. District Judge George Wu found the premise troubling.

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.”

Cyber-bullying in the UK – Facebook case

By contrast, in a recent UK case last year (briefly summarised here) an 18-year-old girl was sentenced to imprisonment after threatening to kill another girl on her Facebook page update. This was the first case of its kind in the United Kingdom.

Cyber-bulling in Europe

Meanwhile, in Italy, Google executives have recently been convicted of privacy violation for hosting a video in which a boy with autism is being bullied and taunted by four other classmates.

2. SEXTING

And then there is the difficulty of “sexting” (sending sexually explicit pictures via the Internet or via mobile phones).  In the US people who send sexually explicit messages are potentially placed on a sexual offenders’ register, and in Queensland at least, there is legislation  which could result in a similar situation.

However, it has been criticised by those who feel that naive teenagers may be ensnared by the laws. Certainly in other States as well, the photography and distribution of pictures of the genital or anal area is a criminal offence (see eg, s 41B and s 41C, Summary Offences Act 1966 (Vic)). Apparently, a survey in an Australian teen magazine revealed 40% of readers had been asked to send a naked or semi-naked image of themselves over the internet.

3. Current Civil Laws in Australia

All these cases raise a number of important questions. How far should the providers of social networking sites and other sites control what happens on these sites? Does the law operate to prevent this kind of conduct, and should it be amended to do so? To an extent, it all depends how far one believes the law should reach, and whether the law can usefully regulate conduct such as this. My own interest, of course, is on the civil law (rather than criminal law) and whether it can be usefully be adapted in a way that protects people from being bullied on the internet, but also allows reasonable freedom of speech.

Note that the criminal law in this area is being currently being reviewed by the Senate.  The ACMA has also released their third and final report on “Online risk and safety in the digital economy.

Defamation

Defamation could be used against bullies who target a particular individual online, as it prevents publications which injure reputation by disparaging a person, causing others to shun or avoid a person, or subjecting a person to hatred, ridicule and contempt. Anonymity is not necessarily a protection against defamation, either. In a case in the US involving model Liskula Cohen, Google, who hosts Blogger, was forced to hand over the details of an anonymous blogger so that the blogger could be served with a defamation writ. (Of course, the defamation action could be said to be counterproductive, as it meant that the details of the defamatory statement were far more widely publicised than they would otherwise have been – a phenomenon known as the “Streisand effect“.)

Breach of Confidence

There may also be situations where an online communication may constitute a breach of confidence (particularly if images or content had been posted on a private setting, but are then broadcast publicly without the consent of the owner).

Breach of a “Tort of Privacy” ?

In Australia, at least, it would be more difficult to allege a breach of privacy. The most we have are some obiter comments from the High Court in ABC v Lenah Game Meats, in which it was concluded that Victoria Park Racing v Taylor did not preclude the development of a tort of invasion of privacy in Australia.

Some lower courts have since recognised an action for invasion of privacy.

  • In Grosse v Purvis, Senior Judge Skoien of the Queensland District Court used the plaintiff’s criminal action against the defendant for stalking as a peg on which to hang a civil action, stating that since Lenah Game Meats, there was “a civil action for damages based on the actionable right of an individual person to privacy.”
  • In Doe v ABC & Ors, Hampel J of the County Court of Victoria found the ABC liable for equitable breach of confidence and for breach of privacy for identifying a victim of a sexual assault in a radio broadcast. (The case settled before an appeal was delivered.)
  • In 2008, the ALRC released a report on privacy law in which it recommended enacting laws to protect people from wrongful abuses of privacy.
  • And most recently, in Giller v Procopets, Neave JA (with whom Maxwell P agreed) of the Victorian Court of Appeal canvassed the possibility of a tort of breach of privacy, but did not find it necessary to decide the issue.

So in Australia, at least, any tort of breach of privacy is nascent. Conversely, English breach of confidence law is much more clearly moving towards breach of privacy because of the influence of the European Convention on Human Rights (ECHR).

“Intentional Infliction of Mental Suffering”?

Also in Giller v Procopets, Maxwell P thought that there was nothing to preclude Australian law developing a tort of intentional infliction of mental suffering. Maxwell P noted that there is already a tort of intentional infliction of injury in Wilkinson v Downton, and thought that it was appropriate to extend that tort to mental harm.

In the US there is already a well established tort of intentional inflection of mental suffering (see for example, this post on the US case, Moreno v Hanford Sentinel). Neave JA also thought that such a tort was possible, but did not find it necessary to decide on the facts of the case before her. Conversely, Ashley JA found that the plaintiff would not have been able to recover in tort for something less than recognised psychiatric injury. So there is a possibility that a bully may be sued for intentional infliction of mental distress if US law is taken on board here.

Jurisdiction

Of course, with the internet, there may be a problem with jurisdiction if the wrongdoer is interstate or overseas, but Australian authority at this point suggests the courts are willing to work around this. Controversially, in the Gutnick case, the court allowed Joe Gutnick to sue for defamation in Victoria despite the fact that the defamatory material was published on a server in the US by a US company, because the damage to Gutnick’s reputation occurred in Victoria.

3. CONCLUSION

Perhaps if a few cases are brought against online bullies, it may bring awareness to people that what they are doing is wrong in law, not just morally wrong. Still, I can’t help thinking that a large number of perpetrators of online bullying would be likely to be teenagers against whom there would be little point in proceeding. I suspect criminal courts would be unwilling to lumber young people with a criminal record, and in civil claims, it is unlikely that young people would be able to pay damages. The law can only go so far. It’s also up to parents to supervise their children as much as they can, and to educate their children about the risks of allowing people to take compromising images of themselves.

Katy Barnett is a PhD candidate at the Melbourne Law School


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