Facebook & the Law...




https://play.google.com/store/apps/details?id=com.facebook.katana

It is no secret that teenagers have come to rely on Facebook, Twitter and Instagram to document every aspect of their lives. It is easy to get lost in the online world of social media and think that because you’ve set your profile to “private”, what you post online will have no repercussions. This blog post will outline some of the possible consequences of documenting too much of your information through social media.

It has become increasingly known that many employers do a Facebook search of their potential employees before they even have a chance to introduce themselves. In most cases, these searches will turn employers away from the candidate before even interviewing them. However, what is not as well known is the fact that universities do the same. According to a Kaplan Test Prep survey from 2011, 24% of college admission officers in the United States admitted to using social networks such as Facebook to learn more about their candidates (Schaffer and Wong). 

What is perhaps more important to know is that even if you’ve set your profile to “private”, Facebook reserves the right to “access, preserve and share information when [they] have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity” (Facebook), as outlined in their privacy policy. This means that what you post online can and will be used against you if you are suspected of committing a crime. We need only look at the recent arrest of 18-year-old Jacob Cox-Brown to realize the repercussions of some status updates: Jacob, who hit two cars while driving under the influence and fled the scene, proceeded to post about it on Facebook: “Drivin drunk... classic ;) but to whoever’s vehicle i hit i am sorry. :P” (qtd. in Gorrow). A few of his “friends” contacted the local police, who until then had no leads on the perpetrator of the hit-and-run. While the Facebook evidence was not enough to convict Jacob of drunk driving, they were able to match the car registered to Jacob’s name to the damage done at the hit-and-run scene. Consequently, Jacob was charged with “failure to perform the duties of a driver” (Gorrow).

http://i.i.com.com/cnwk.1d/i/tim/2013/01/04/teen-facebook-drunk_620x350.jpg

Another, more surprising example of Facebook information use by the government is the story of Paula Asher. Paula is an 18-year-old girl who landed in jail for refusing to take down her Facebook page after she posted prior to her court date: “My dumbass got a DUI and hit a car LOL” (qtd. in Ashe), which the judge was not very pleased with.

Facebook information is also often used local high schools when problems in a school arise. Students in Ontario who use Facebook as a means to bully students in their schools can be suspended or in some cases expelled. The Education Act states in s. 306 (1)(6) that a principal must consider suspending you if you bully someone. S. 310(1)(6) of the Education Act goes on to state that a principal must consider expelling you:
a)  if your bullying is motivated by bias (i.e. race, ethnicity, nationality, sexuality, disability or more) OR
b) previously have been suspended for bullying and create an unsafe risk to the safety of another student. 

Posting hurtful comments on Facebook about other students at your school qualifies as an act that will impact the school climate regardless of whether you posted these comments off school property or out of school hours. It is easy for this information to come to the attention of the school administration; your posts can be printed by any of your friends or by the person who your comments may be directed too.  Any posts on Facebook that are threatening or point to a pattern of harassment or other criminal activity can be used as evidence in court for criminal charges or civil law suits. 

As these and many other stories show, it is important to know where your information is stored, for how long, and most importantly, who can access it. As a press release from Astoria police read, “When you post [...] on Facebook, you have to figure that it is not going to stay private long” (qtd. in Gorrow).

References

Ashe, Dru. “Teenage Girl Sent to Jail After Posting About Her DUI Charge on Facebook.” Complex Tech. 20 September 2012. Web. http://www.complex.com/tech/2012/09/girl-ends-up-in-jail-over-facebook-status-of-her-dui-charge. Accessed 17 January 2013

Facebook. “Data Use Policy: Some other things you need to know.” Facebook. 11 December 2012. Web.  https://www.facebook.com/about/privacy/other. Accessed 17 January 2013

Gorrow, Chelsea. “Facebook post lands Astoria man in jail.” The Daily Astorian. 4 January 2013. Web. http://www.dailyastorian.com/free/facebook-post-lands-astoria-man-in-jail/article_f7f0ddf6-55d6-11e2-b3d7-0019bb2963f4.html. Accessed 17 January 2013

This scenario was written by Naiara Toker, a volunteer on JFCY's PLE team. All legal content was reviewed by a JFCY lawyer. 

The Supreme Court of Canada Combats Cyber-Bullying

In September of 2012, Canada’s top court, the Supreme Court of Canada, struck a blow to cyber-bullies in a case called AB v Bragg Communications Inc, 2012 SCC 46.

Background

The rise of social media platforms has had a drastic impact on the way people communicate. Facebook, the social media market leader, now has roughly 1 billion users. That’s right; almost 1 in 7 people around the world are on Facebook. When used properly, websites like Facebook can have a positive impact on a user’s life. However, these websites can also be a very dangerous tool.

Cyber-bullying (the use of the internet to degrade another person) is becoming increasingly common. Bullies can now hide behind the veil of the Internet to harm their victims in a way that was previously not possible without the help of technology. Social science evidence has shown that cyber-bullying is linked to significant psychological harm in underage victims. As a result of this harm, victims of cyber-bullying are at an increased risk of dropping out of school and, in extreme cases, committing suicide.

The evidence also indicates that these unfortunate outcomes can be avoided if victims are allowed to anonymously report cyber-bullying incidents.

The Supreme Court Decision

In the case of AB v Bragg Communications Inc., the Supreme Court of Canada decided that victims of cyber-bullying have the right to pursue their attackers without disclosing their identity. In other words, victims of cyber-bullying can take legal action against bullies without having to reveal who they are. This was a difficult decision for the Supreme Court to make because it had to balance the interests of the victim against the freedom of the press and society’s interest in having an open, transparent court process.

In AB v Bragg Communications Inc., a fake Facebook profile was set up containing hurtful commentary and sexualized images of a 15-year-old girl. With the help of her father, the girl commenced a defamation lawsuit against her attackers. Defamation actions are intended to protect the reputation of individuals from unwarranted attack. The girl also applied to the court for an order protecting her identity throughout the legal proceedings.

The Supreme Court found that society’s interest in finding out the identity of cyber-bullying victims is not very important, especially when compared to the extremely important desire to encourage victims of cyber-bullying to report their attackers. The court therefore decided to ban the publication of any information that would uncover the victim’s identity.

The Supreme Court’s decision is an important step toward combatting cyber-bullying. 

If you or someone you know is being bullied, tell someone you trust right away, even though this can be very difficult to do. You can also call Kids Help Phone at 1-800-668-6868 for more help in dealing with bullying.

Remember that legal action against bullies is an extreme step to take. Working together with school officials, parents and your peers to solve the problem is probably the best approach. Legal action should only be used as a last resort.

There are people out there – including Canada’s top court – that are on your side and here to help.

To read the case, click here.

This post was written by Brendan Stevens, a law student at the University of Toronto. Brendan is a volunteer on JFCY's PLE Team. Content reviewed by a JFCY lawyer. 

Some useful re-reading...

Since the PLE Team and its supervising lawyer have been taking a few weeks of vacation, we suggest that you check out some of our most popular blog posts from the past:


Acting your age: Borrowed and fake I.D.


Wizarding Law 101


Leaving Home: When can i decide where to live?


If you are still craving more JFCY info while we are away, also check out our FACEBOOK page.

And check back for more new blog posts at the end of the month!

Privacy and Social Networking

-By Leora Jackson, JFCY volunteer and PLE Team Lead

Janine Loves Facebook


Janine is fifteen and uses Facebook to keep in touch with all of her friends.  Since she has friends from school, camp, and after-school activities, Facebook is a great way to be in touch with people.  When she wants to tell something to one of her friends, she posts on that friend’s wall.  Everyone else can see the post, but Janine doesn’t mind.  Last weekend, Janine went to a party at a classmate’s house.  She posted a whole album of photos online from the party.  The next week, there is an article about teen parties in the local paper.  One of Janine’s photos is published in the paper, and Janine gets really upset.  Her parents didn’t know that she attended the party.

What can Janine do to keep this from happening again?  
Was the newspaper allowed to use her picture?

Facebook is a private organization that collects personal information.  As a result, it must follow Canadian law about protecting privacy.  The Personal Information Protection and Electronic Documents Act (PIPEDA) is a Canadian law that directs private organizations in how to protect the personal information of people who are involved with that organization.  PIPEDA applies in most Canadian provinces, including Ontario, and it limits the ways that an organization can use the personal information that you have provided it.

While people choose which information they post on Facebook, they can also choose who is able to see that information.  For example, Facebook has options that allow you to decide which other internet users can see your wall posts, your photos, your notes, and other information you have shared.  Facebook has even worked with Canada’s Information and Privacy Commissioner to improve its privacy controls in response to complaints.

To prevent this from happening again, Janine needs to update her Facebook privacy settings so that fewer people are able to see the information that she posts on Facebook.  She should also think before she posts, because once information is online, it is impossible to keep total control over it – even if it is later removed from the internet!  Facebook privacy settings are found here.

Since Janine took her pictures, she owns the copyright to them, which means that other people cannot reproduce them without asking her permission.  However, there is a “fair dealing” exception in the Copyright Act that allows news reporters to use copyrighted images as long as they cite the source of the image and, if it is available, the name of the image’s creator.  There are other exceptions as well in the Copyright Act. Janine would have to consult a lawyer to find out whether this use of her picture counted as fair dealing by the newspaper, or fits into another exception. 

However, when Janine posted her photo to Facebook, she granted Facebook a license to use the photo according to the Facebook Terms of Use, which means that Facebook can use Janine’s photo in many different ways without requesting her permission. So, for example, if Facebook used Janine’s photo in its newsletter, she would not be able to complain, since as a Facebook user, she has consented to Facebook’s Terms of Use.

Want to Learn More?

If you are interested in learning more about privacy, especially privacy online, check out the Office of the Privacy Commissioner of Canada’s social networking pages, or their youth site.

If you want to read the laws that we discussed in this post, follow these links: PIPEDA and the Copyright Act.

 A Lesson in Privacy - from the Office of the Privacy Commissioner's
"My Privacy and Me" contest

Leora is in her first year of law school at the University of Toronto.  She is volunteering with JFCY through Pro Bono Students Canada (PBSC) and will be acting as the Public Legal Education Team Lead until March 2012.