ABSTRACT

The cases discussed in Brian Murchison’s chapter show the risks of engaging in social networking, especially for amateurs – who in this context may be surprised to learn they are not the experts they thought they were when it comes to securing their privacy in the internet’s bewilderingly complex social and technological environment. The Murchison chapter focuses on examples from the US and UK, but local Australian examples can be found as well. For instance, the furore over the firing, in 2010, of Melbourne Age journalist Catherine Deveny for her tweeting about the Logies (the Australian television industry awards) provides another salutary reminder of the uneasy scope of privacy available to those who choose to use social networking sites as their medium of discourse. One of Deveny’s defences in the face of the heated public reaction to her found-offensive comments about local celebrities Bindi Irwin and Belinda Emmett was that tweeting was just like ‘passing notes in class’, suggesting she had not expected such a large public readership for her private asides,1 in response to which David Penberthy commented in The Weekend Australian: ‘It’s a rubbish excuse; Twitter is just another form of publishing. It’s a wholly public domain, one used by more than 50 million people worldwide.’2 Such statements leads us to ask the question whether comments made on social networking sites are necessarily public, subject to effective steps taken to secure their protection by the author of the comments, or whether a degree of privacy can remain. As the Murchison chapter shows, the courts to date seem intent on backing

Penberthy’s position. Thus we have the decision of Eady J in the English Night Jack case that ‘blogging is a public activity’ and therefore the author Richard Horton could not rely on privacy law to prevent The Times from exposing his identity as the Night Jack blogger.3 Much the same was said by the California Court of Appeal in Moreno v Hanford Sentinel where it was held that Cynthia Moreno could reasonably expect no privacy when she published her ‘Ode to Coalinga’ on her ‘Cynthia’ MySpace page, later to find it reproduced in the Coalinga Record (through the agency of the headmaster of her former school) under her full name.4 Murchison, a free-speech scholar, argues that

to many identity, his efforts to secure it notwithstanding.5 For these commentators, the seriousness of the author’s engagement with his project of exposing the life of a policeman on the beat and the quality of his blog – which received the Orwell Prize for online journalism – were reasons why Horton’s privacy should have been respected, notwithstanding he breached his employer’s code of conduct. On the other hand, the public reaction to Moreno was more along the lines that the claimant had only herself to blame for failing to use the MySpace privacy settings – and it was considered irrelevant that she had used only part of her name and had taken down her Ode from her MySpace page six days after putting it up in an effort to protect her and family’s privacy.6

The expressive and critical character of Moreno’s Ode (and even the fact of her copyright which supposedly secured to her the sole and exclusive right to reproduce the text, although copyright was not actually relied on in the case) were treated as insufficient in these commentaries to the question of privacy. And in the actual decisions in the cases themselves the legal ‘issues’ were treated in an even less nuanced way. The courts treated expressions in cyberspace as if made to the public at large, including even those elements that the authors themselves preferred were kept from public knowledge, but had not taken steps to secure. In both cases, courts reached the same conclusion, viz that these authors who lack the skills and expertise to secure their privacy (i.e. in this setting were amateurs) could not expect the law to step in and protect their ‘privacy’ on the internet. The decisions may be more important in normative than in factual terms.

As Lisa Austin notes in her comment on Murchison’s chapter, it may be questioned whether the internet is as automatically public as the decisions on their face may appear to suggest. Rather, we suggest, the Night Jack and Moreno decisions mark out the standards for future authoring behaviour on the internet in some very specific ways. How should those who engage in social networking respond to these decisions? For some the answer will be simple – as Pemberthy puts it, don’t tweet to the world at large if you only want your (true) friends to see what you say. But there are many cases where the message is such that the widest possible audience is desired. In these cases, for all their weaknesses, anonymity or pseudonymity may still be the preferred technique of authors looking to publish their ideas.