No, you can’t unilaterally opt out of Facebook’s terms and keep using it

Facebook has updated its terms of service and data use policy recently and the changes have upset many people. I’ve started seeing more declarations of users’ intention to opt-out of provisions of Facebook’s terms and conditions. These sorts of declarations seem to be legally binding with their fairly legalistic language but they don’t work except to help you feel better.

The only way to limit what Facebook can do with your content and your personal information is to stop using Facebook and to delete your profile. Unilateral declarations of your intention to opt-out of provisions you don’t agree with don’t make those provisions less binding on you.

If you use Facebook, you do so on Facebook’s terms. If you don’t want to be bound by those terms and conditions, stop using Facebook.

No photos of Cape Town Stadium, please, it’s protected

You may have heard that photographers are not permitted to take photos of Cape Town Stadium. The issue came up at the 2014 Advertising and Marketing Law Conference and I asked IP attorney, Hugh Melamdowitz, about the ban.

It turns out that copyright in the architectural drawings of the stadium were assigned to the City of Cape Town and the City’s ban on photos of the stadium are basically based on copyright protection. Commercial photos of the stadium will fall foul of the City’s rights. On the other hand, if you take photos that qualify for fair dealing protection under the Copyright Act (for example, for your personal use) then you should be able to sidestep the prohibition.

The reason for this (and similar) bans is probably to protect revenue the City earns from tourism involving the stadium. I don’t agree with the strategy, I believe that allowing people to take photos of the stadium (commercial or private) and sharing those photos widely will only encourage more tourism and more revenue from that tourism derived from ancillary products and services.

Another possible excuse for a photo that includes the stadium is if the stadium is incidental to the photo as a whole. Drawing a clear line between incidental inclusion of the stadium and taking an otherwise prohibited photo of the stadium will likely be pretty tricky.

Next time you are in Cape Town, bear this prohibition in mind if you intend taking photos you’d like to sell some day. Perhaps focus your attention on other aspects of the city and its environs, just to be on the safe side.

Revisiting “front page of the newspaper” wisdom

I’ve been preparing for my presentation at the Advertising and Marketing Law Conference on 15 October and reading through some materials I’ll probably reference in my slides. One paragraph just stood out for me in Anil Dash’s article “What is Public?“:

The conventional wisdom is “Don’t publish anything on social media that you wouldn’t want to see on the front page of the newspaper.” But this is an absurd and impossible standard. The same tools are being used for person-to-person conversations and for making grand pronouncements to the world, often by the same person at different times. Would we say “Don’t write anything in a sealed letter that you don’t want to see on the front page of the newspaper” simply because the technology exists to read that letter without opening it?

I think the reason this stood out for me is because conventional wisdom is that you shouldn’t publish anything online that you wouldn’t want published on the front page of a newspaper or on a billboard at a busy intersection. It makes sense until you consider that we are using the same platforms to share things privately and publicly.

How many people use Twitter for personal sharing as if they and their Twitter friends are the only people who can see otherwise public updates? They certainly don’t intend for their tweets to be shared with everyone who uses Twitter (until they do) and although Twitter is very public (unless you lock down your profile) many of its users still have this illogical expectation that their tweets are not for public consumption.

If anything, this sort of issue highlights how complex privacy is in this digital age. We face a number of tough questions about how we use social media and what seemingly obvious notions like privacy really mean to us.

BYOD, data security and the BlackBerry Experience

I am moderating what will almost certainly be a fascinating discussion about BYOD, enterprise data security and device management at the BlackBerry Experience event at Montecasino in Fourways, Johannesburg today. The event is hosted by BlackBerry in partnership with ITWeb Events and will also take place in Durban and Cape Town later this month.

The speakers at the event will include Nader Henein, BlackBerry’s Regional Director for Product Security; Izak Meyer, Director for Enterprise at BlackBerry South Africa; Wikus Viljoen, a systems analyst at Nedbank and Andy Swanepoel, a technical specialist and manager at Nedbank.

We are going to talk a bit about BYOD trends (and the growing tendency towards more managed deployments), a better strategy for securing data on mobile devices and more. I don’t want to say too much about the content attendees can expect but I find much of it fascinating. You can follow the discussion on Twitter using the hashtag #BBExperience if you aren’t attending the event.



Disclosure: I am being paid to participate in and moderate the panels at these events. That said, I make a point of only promoting products and services that I am interested in.

Facebook defamation is not necessarily illegal

That the respondent in the latest High Court Facebook defamation case, M v B, was ordered to remove defamatory posts on Facebook isn’t remarkable. What is more interesting about that case is that it reiterates a principle that a court will not step in and proactively block future defamatory posts.

The applicant in this case, M (SAFLII redacts personal information about parties in cases it publishes in certain circumstances), brought an urgent application to the Kwa-Zulu Natal High Court on 9 September 2013 to order his ex-wife, B, to –

  1. “remove all messages as contained in annexure ‘D’ to the applicant’s founding affidavit, from her Facebook page;”
  2. “refrain from posting any defamatory statements about the applicant on her Facebook page;” and
  3. “refrain from in any way making, publishing and/or distributing defamatory statements about the applicant.”

The urgent application was successful and M was granted an interim order which M subsequently sought to have made final. Judge Chetty’s judgment on this was delivered just over a year after the initial application was launched, on 19 September 2014.

Background

Judge Chetty gave the following background to the applications:

[3] It is necessary to sketch the brief history of the matter, and particularly the facts giving rise to the launching of the application. The applicant and the respondent are the biological parents of a minor child, a daughter P born in July 2008. At the time of the launching of the application, the child was five years old. The respondent and the applicant were never married, and at the time of the institution of these proceedings, were no longer in a relationship. P lives with the respondent. In terms of an arrangement between the parties, the applicant has contact with his child every alternate weekend from Friday afternoon until Sunday afternoon. It is not disputed that in accordance with this agreement, the applicant picked up his daughter on the weekend commencing 30 August 2013 and returned her to the respondent on Sunday 1 September 2013.

[4] During the course of this particular weekend the applicant and his daughter visited the house of a friend, and ended up staying over. During the course of the evening, other friends gathered at the house eventually resulting in P sharing a bed with an adult female, who is a pre-primary school teacher, and someone known to her as she had babysat P on previous occasions. The applicant has categorically stated that he has never had a romantic relationship with the teacher concerned. P was safely returned to her mother on the Sunday.

[5] In the week that followed, the applicant received calls from several friends drawing his attention to a posting by the respondent on Facebook, under the heading “DEBATE”. The posting reads as follows:

‘DEBATE: your ex has your daughter (5) for the weekend and is sleeping at a mates house. They all (about six adults) go jolling and your ex’s drunk, 50 yr old girl “friend” ends up sleeping with your daughter cause he doesn’t want his girl “friend” sleeping in a single bed she can share the double bed with his/your daughter! How would you feel?’

[6] It is not in dispute that at the time of this posting the respondent had 592 “Facebook friends”. A number of the respondent’s ‘friends’ responded to her posting and were critical of the behaviour of the applicant. The respondent further contributed towards the debate by making subsequent postings to that set out above. These postings or messages appear as annexure ‘A’ to the applicant’s founding papers. The initial postings resulted in a further debate with the respondent’s brother S[…] B[…], who questioned the aspersions cast by the respondent on the applicant and the teacher with whom P shared a bed. These postings appear as annexure ‘B’ to the applicant’s founding papers.

[7] In light of the postings, which the applicant regarded as defamatory and detrimental to his business reputation, he engaged his attorneys who wrote to the respondent on 4 September 2013 clarifying that during the weekend in which the applicant had access to P, at no time therein was she placed in any danger, nor was her safety compromised in any way. His attorneys then called upon the respondent to remove the offending postings (annexures ‘A’ and ‘B ‘to the founding papers) from her Facebook page by the close of business on 4 September 2013, failing which they threatened litigation.

[8] According to the respondent, she removed the offending postings by 5 September 2013. Accordingly, at the time when the application came before my colleague Nkosi J, the respondent contended in her opposing affidavit that there was no need for the application as she had long since complied with the demand and removed the postings. In support of the submission, the respondent attached an SMS received from the applicant on 5 September 2013 stating:

‘And well done on removing your false Facebook posting – you’ve saved yourself from a lawsuit. Ensure no further defamatory posts are put up or you’ll find yourself in Court!!’

[9] As is evident from the prayers sought in the Notice of Motion, notwithstanding the removal of postings in the form of annexures A and B, the applicant persisted in his application for urgent relief on the basis that the respondent had failed to take down the postings on what is referred to as her Facebook Wall, which the applicant contends “retained a partisan version of the debate”. The postings on the respondent Face Wall appeared as annexure D to the applicant’s founding affidavit. The applicant contended that the contents of annexure ‘D’ defamed him, even though the respondent has deleted the earlier postings on her Facebook page. In order to understand the applicant’s complaint, a perusal of the respondent’s Facebook Wall reflects the contents of active debate taking place between the respondent and her friends. The subject of the debate continues to be the incident relating to the applicant’s care (or neglect) of his daughter over the weekend at the end of August 2013. In particular, the opening message on the applicant’s Facebook Wall is the following:

‘This is my FB page which I can get opinions on matters close to my heart, if you don’t like it then go read someone else’s and defriend me!’

[10] This message was posted in response to earlier messages from the respondent’s brother, S[…] B[…], who it would appear, did not take kindly to the insinuations of neglect aimed at the applicant.

The Court’s decision

These facts are pretty similar to two 2013 Facebook defamation case which I wrote about, H v W and Isparta v Richter and Another. The order directing B to remove defamatory posts from her Facebook Wall was not particularly controversial. There was some discussion about the timing of the application and B’s efforts to remove some defamatory posts but this order was in line with Judge Willis’ judgment in H v W and Acting Judge Hiemstra in Isparta v Richter and Another. After considering arguments from both sides, Judge Chetty found against B:

[20] Other than a denial that the postings were defamatory, the respondent does not make out any argument of the public interest in respect of the statements attributed to the applicant. I am satisfied that the applicant was entitled to approach the Court on an urgent basis at the time that he did. I am accordingly satisfied that the applicant has made out a case for first part of the rule nisi, in terms of the relief sought in prayer 2.1 of the Notice of Motion, to be confirmed.

Facebook_defamation

The Court then moved on to the second part of the matter, namely whether M should be entitled to a final order, essentially, prohibiting B from publishing defamatory comments about M in the future. This may seem like a perfectly reasonable order but it is important to bear in mind that just because a comment is defamatory, doesn’t mean that it is wrongful. As Judge Chetty pointed out –

[24] On the other hand, the respondent submitted that there is no basis at common law for a Court to curtail the respondent in respect of material which is not as yet known to the Court, nor has it been presented or published. As such the Court is asked to speculate on what could constitute a defamatory statement, uttered or published by the respondent against the applicant. It was correctly submitted in my view that even if the statement in the future by the respondent is defamatory of the applicant, it is equally so that not every defamatory statement is per se actionable in that the respondent may have a good defence to its publication. For example, the respondent might be under a legal duty to furnish information about the applicant in connection with an investigation of a crime, or she could be a member of a public body which places on her a social duty to make defamatory statements about the applicant. To this extent, the respondent may make defamatory statements about the applicant in circumstances where they may be a qualified privilege. Obviously it would be necessary to ascertain the nature of the occasion in order to determine whether any privilege attaches to it. The difficulty in granting such an order is evident, albeit in the context of the publication of an article, from the judgement in Roberts v The Critic Ltd & others 1919 WLD 26 at 30–31 where the Court held:

‘I think I have jurisdiction to make an order restraining the publication of a specific statement that is defamatory, but in the present case I am asked to restrain the publication of an article in so far as it is defamatory; if the applicant’s contention is correct this will come to the same thing as restraining any continuation of the article at all, because that contention is that no continuation of the article can be written that is not defamatory… . There is the grave difficulty in the way of granting an interdict restraining the publication of an article which purports to deal with a matter of great public interest, and which I have not before me. It is impossible to say what it will contain, however grave one’s suspicions may be. The respondents specifically state that the continuation will not be libellous, nor will it slander the petitioner; nor will it affect her good name and fair fame. It can only be determined upon the publication of the article if this statement be true. I think it is impossible for me to deal with it now. In the cases I have referred to the defendants insisted on the right to publish the statements complained of. The interdict must therefore be discharged.’

[25] At the same time it has also been held that it is lawful to publish a defamatory statement which is fair comment on facts that are true and in matters of public interest, as well as in circumstances where it is reasonably necessary for and relevant to the defence of one’s character or reputation. Counsel relied on the judgement of Willis J in H v W (supra) para 40 in support of his submission that Courts should not be eager to prohibit or restrict parties in respect of future conduct, of which one can only speculate in the present. The Court held that:

‘Although judges learn to be adept at reading tealeaves, they are seldom good at gazing meaningfully into crystal balls. For this reason, I shall not go so far as “interdicting and restraining the respondent from posting any information pertaining to the applicant on Facebook or any other social media”. I have no way of knowing for certain that there will be no circumstances in the future that may justify publication about the applicant.’

Although judges probably wouldn’t have a difficulty ordering a person not to do something that is clearly and unjustifiably wrongful in the future (that is largely what an interdict is for), the challenge M faced with this part of his application is that a future defamatory statement could well be justifiable and not wrongful. As I pointed out in my post, Judge Willis considered a couple justifications in H v W –

After exploring Twitter briefly, Judge Willis turned to established case law in South Africa including authority for the proposition Roos expressed that a privacy infringement can be justified in a similar way that defamation can be justified and a more recent Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian case which, according to Judge Willis –

affirmed the principle that the test for determining whether the words in respect of which there is a
complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned

The Court, in the Mthembi-Mahanyele case set out the test for defamation as follows (and cited a 1993 case in the then-Appellate Division of Argus Printing and Publishing Co Ltd v Esselen’s Estate) –

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words … to convey a meaning defamatory of the plaintiff… . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –

A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.

The Court moved on to explore another justification, fair comment. In order to qualify as “fair comment” –

the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”

The person relying on this justification must prove that the comment is, indeed, fair comment and “malice or improper motive” will defeat this justification or defence, regardless of its demonstrably factual nature. In this particular case, the Court found that W acted maliciously and she was unable to prevail with this defence.

Because defamation can be justified in appropriate circumstances and because judges can’t predict when defamatory statements will be justifiable in a particular context, proactively blocking defamatory Facebook posts is inherently problematic. Judge Chetty summarised the point:

As set out earlier this argument must fail because it is clear that not every defamatory statement made by the respondent about the applicant would be actionable.

Privacy is contextual and social, less legal and technical

Privacy is more than a couple settings and a consent checkbox on a form somewhere. Privacy and publicity seem to be pretty straightforward concepts and, legally, they are treated fairly superficially and defined mechanically. A result of that is a similarly superficial treatment in conversations about privacy and publicity in social and commercial engagements which rarely touches on what privacy really means to us. This leaves us fundamentally confused and conflicted about privacy because we have a deeper sense of what privacy means to us but the typical conversation about privacy lacks the language to describe that deeper sense of it all.

Anil Dash and dana boyd recently published articles on Medium titled “What is Public?” and “What is Privacy?“, respectively, which dive deeper into what publicity and privacy mean to us. If you are interested in what privacy and publicity mean in modern times, you should read both articles carefully:

What Is Public? andWhat Is Privacy?

One of the paragraphs in Dash’s article that stood out for me was this one:

What if the public speech on Facebook and Twitter is more akin to a conversation happening between two people at a restaurant? Or two people speaking quietly at home, albeit near a window that happens to be open to the street? And if more than a billion people are active on various social networking applications each week, are we saying that there are now a billion public figures? When did we agree to let media redefine everyone who uses social networks as fair game, with no recourse and no framework for consent?

I agree more with boyd that privacy is more about social convention. I particularly like this extract from boyd’s article:

The very practice of privacy is all about control in a world in which we fully know that we never have control. Our friends might betray us, our spaces might be surveilled, our expectations might be shattered. But this is why achieving privacy is desirable. People want to be in public, but that doesn’t necessarily mean that they want to be public. There’s a huge difference between the two. As a result of the destabilization of social spaces, what’s shocking is how frequently teens have shifted from trying to restrict access to content to trying to restrict access to meaning. They get, at a gut level, that they can’t have control over who sees what’s said, but they hope to instead have control over how that information is interpreted. And thus, we see our collective imagination of what’s private colliding smack into the notion of public. They are less of a continuum and more of an entwined hairball, reshaping and influencing each other in significant ways.

I also think this next extract nicely captures why people become angry with brands and why reputational harm happens at an emotional level. If you represent a brand, you should read this a few times:

When powerful actors, be they companies or governmental agencies, use the excuse of something being “public” to defend their right to look, they systematically assert control over people in a way that fundamentally disenfranchises them. This is the very essence of power and the core of why concepts like “surveillance” matter. Surveillance isn’t simply the all-being all-looking eye. It’s a mechanism by which systems of power assert their power. And it is why people grow angry and distrustful. Why they throw fits over being experimented on. Why they cry privacy foul even when the content being discussed is, for all intents and purposes, public.

Privacy is contextual. Law is also a poor mechanism for protecting it because law tends to be mechanical (it has to be). What we need more is a better awareness of what privacy and publicity mean in a social context and where the line is.

Jeff Jarvis made a statement about privacy in This Week in Google 261 which really caught my attention:

Privacy is a responsibility. It is an ethic of knowing someone else’s information.


Photo credit: Lost in Translation by kris krüg, licensed CC BY-SA 2.0

Apple tells developers not to share health data with advertisers

According to The Guardian, Apple has imposed contractual restrictions on developers that prohibit them from sharing health data they may receive through an anticipated range of health-related apps which iOS 8 will usher in through a platform called HealthKit:

Its new rules clarify that developers who build apps that tap into HealthKit, of which Nike is rumoured to be one, can collect the data it holds.

But, they stated, the developers “must not sell an end-user’s health information collected through the HealthKit APIs to advertising platforms, data brokers or information resellers”. Although, the rules add that they could share their data with “third parties for medical research purposes” as long as they get users’ consent.

These sorts of apps have enormous potential to benefit consumers and, at the same time, they represent a profound risk to consumers because our most intimate personal information is being accessed. How developers and device manufacturers handle this data is bound to inform a new generation of privacy complaints and reputational harm case studies in the years to come.