CeBit 2012: Social media a legal minefield

The legal system and notions of privacy need to be updated if they are to cope with rapid technological change

Government agencies looking to make greater use of social media and other collaboration tools face a raft of legal issues with the potential to sink efforts to better connect government and the public.

Speaking at CeBIT in Sydney, Justin Davidson, senior executive lawyer at the Australian Government Solicitor said a major challenge for government agencies was in managing government’s obligation to maintain citizens’ privacy and the relatively fluid nature of privacy on social media sites such as Facebook.

“An agency has to deal with the issue of how they put their privacy obligations onto Facebook and make them bound by the Privacy Act in the same way [the agency is],” he said. “That is not an easy negotiation to have, but it is not impossible.”

Another complexity agencies needed to consider was when a social media service provider, such as Facebook, changed its privacy policy.

“If Facebook unilaterally changes its privacy policy then that creates some challenges for the agency in demonstrating that it continues to regulate the use of information in the right way,” he said.

Agencies also needed to bear in mind that Facebook, wiki pages, and forums maintained by the agency could variously be interpreted as a ‘record’ or a ‘generally available publication’ under the Privacy Act.

Agencies also had to be aware of the impact of the Freedom of Information Act as well as potential legal liability associated with running online communities, Davidson said.

By way of example, Davidson pointed to one media organisation which was found to be a party to the breach of racial vilification laws as it allowed users to make racially vilifying comments on a story.

Similarly, in a number of recent cases legal action had been brought against people and Twitter itself for allowing defamatory comments to be made.

Agencies also needed to be aware of the risk of negligent behaviour, such as in the instance where users of an Agency’s forum acted on misleading or inaccurate advice posted by other users of the forum.

“There is I think a reasonably held fear that when we create or operate an online interactive environment that we expose ourselves to the risk of litigation,” he said.

Speaking in a subsequent discussion about government and the internet’s role in changing notions of privacy, Lubna Alam, of the Faculty of Information Sciences and Engineering at University of Canberra, said the notion of privacy had morphed into one of information privacy.

“The way we exchange information has actually changed the way privacy works. It’s no longer about thinking of privacy as being about our identity or as about confidentiality but about the way people exchange information.”

“Because our world is connected privacy is about control of your data — how you share your data or whether you have a choice [to share it].”

Speaking at the same discussion, Dr Nick Tate, president at the Australian Computer Society said it was unavoidable that existing notions of privacy would have to change.

“Technology changes very rapidly… and if we are going to reap the benefits of digital citizenship then we are probably going to have to change [privacy] law rather more quickly in order to keep up,” he said.

“We will have to change the notions of privacy regularly to keep up with the fact that technology will allow us to do different things. If we are to take advantage of digital citizenship then we will have to bring our colleagues at the law to come with us.”

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