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Legal framework and judgment

Discuss about the Case Study for Business Law and Ethics.

The digital era has led to everything being posted over the social media accounts and shared with the world openly. In the corporate world, the use of social media is becoming a common phenomenon. Each and every company is using the social media as a platform to advertise themselves, and the social media is being used as a medium of attaining the various goals, like the attainment and detainment of customers, clients and the employees. Moreover, to promote the companies and the activities they are indulged in, social media is being used as the top medium (Neti, 2011).

The increase in the use of social media in the workplace has led a number of companies in formulation of social media policies, to control what is being posted by their employees and to keep such posts regulated. Though, this highlights the need to look at the other aspect of this. In other words, the posts over the internet by the employer also have to be regulated (Wu, 2017). And being an employer, a mere compliance of the social media policy is not sufficient (Law360, 2017). So, the laws, as well as, the ethical principles have to be followed by the employer, while being present on the social media.

Posting on social media, has at times led to a violation of privacy law, in addition to cases being raised for libel, defamation, harassment and breach of contract (PT, 2010). So, each and everything which is posted over the internet, can give rise to a legal claim. However, there are various defenses which can be opted for in such cases, for instance, posting the photos of a public event do not violate the privacy norms, unless specifically prohibited (Boris, 2017). So, the circumstances of each case decide the validity of the claims being raised and the possible legal actions. In the following parts, the possible actions which can be initiated against Chris and Mohammad (C&B) by Jenny or the other parties, due to their post on social media, have been highlighted.

The key legal issues in this case relate to whether or not a claim can be raised for Jenny or any other party against C&B for posting their picture over the social media, under the applicable laws.

The Federal Court of Australia in the legal matter of Commonwealth Bank of Australia v Barker [2013] FCAFC 83 stated that in the employment contracts in Australia, there is an implied term of mutual trust and confidence (Macpherson, 2017). This judgment was in line with the presence of this very implied condition in the employment contracts in the United Kingdom, as was highlighted in the landmark case of Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23 (Swarb, 2015). This judgment by the Federal Court confirmed that the employers had to act in a reasonable and fair manner, in their dealings with their employees (Pearson and Allen, 2008).

Privacy Act, 1988 and social media

After a comprehensive review of the Australian and English law, the Supreme Court of South Australia concluded in the case of Mcdonald v State of South Australia [2008] SASC 134 that mutual trust, as well as, confidence was a part of the employment contracts drawn under the Australian law and these aspects have to be implied in all the cases (Mondaq, 2008).

However, when an appeal was made to the High Court in Commonwealth Bank of Australia v Barker, the court did not agree with the existence of this implied duty. The judgment given in this case is quite crucial and of great worth to the employers as the claims which are undefined and uncertain and brought forward by the employees citing the conduct of the employer as seriously destroying or damaging the employer-employee relationship, could be given away with. And so, the employment relationships were limited to the defined terms of contract law, the applicable legislations and the express terms of the contract (Pearson and Allen, 2008).

 


In the given case study, C&B were the employer of Jenny. As per the case of Mcdonald v State of South Australia and the earlier judgment given in the case of Commonwealth Bank of Australia v Barker, provided that it was an implied duty of the employer and as per this implied duty, mutual trust and confidence had to be ensured. As per this, the photograph of Jenny should not have been put over the internet without her express permission. But, the later ruling in Commonwealth Bank of Australia v Barker, clarified the limits of such a duty. None of these limitations applied in this case. So, Jenny cannot claim against C&B on the basis of breach of implied duty.

The Privacy Act, 1988 is the key piece of legislation governing the privacy norms in Australia. This act regulates the manner in which the personal information of the individuals is handled (Office of the Australian Information Commissioner, 2017a). But the laws regarding the protection of a right to the personal privacy of the individuals is complicated. And the protection is entirely dependent on the particular circumstances under which the private information of the individual was revealed.

As per the privacy laws, there is no general right of privacy, and as a result of this, the consent of the individual is not required for taking or recoding the image. In case a photo of a person is taken at a public place and is posted online, no legal action can be taken. An action, in such case, can only be taken, if there was a prohibition of taking the pictures at such a public place, and that too can only be initiated by the authorities, owners or representatives of such public place. Even when the photo is taken when the individual was at a private party, but from a person at public location, the privacy law offers no protection (Law Stuff, 2015a).

Application to the given case study

There are circumstances where the image of the individual could be treated as personal information, and the publication of the same would result in the breach of this act (Australian Law Reform Commission, 2017). So, if the identity of the individual is clear in the photograph, or if it can be reasonably worked out from the image, then the image can be treated as personal information. Moreover, if such information contains sensitive information, for instance the race or ethnicity of the individual, then too it is deemed as personal information (Office of the Australian Information Commissioner, 2017b).

In order for a claim to be raised for a violation of the Privacy Act, the social networking site has to be covered under this act. Only the organizations having a link in Australia, through business presence or carrying business in the country, could be covered under this act. So, if any social networking site is based in some other nation, and fails to have Australian presence, then the act would not provide any rights. Also, the individuals acting in personal capacity are not covered under this act (Office of the Australian Information Commissioner, 2017b).


Facebook and Twitter, along with the majority of the other social networking sites are based in the United States, and a required business presence lacks in these sites, as a result of which, these social networking sites are not generally subjected to the Australian privacy law (Stewart, 2016).

Applying the privacy law in the given case study, Jenny could not initiate actions against C&B when they acted in their personal capacity. C&B were not asked to post anything by anyone, and to promote their own company, they posted a number of photos for their company Ecohouse and for University of Canberra. Moreover, the post was not such which could necessitate its applicability over these two. Since they acted in their personal capacity, the act is not applicable on them. So, an action against C&B by Jenny, for the breach of privacy act, would not be successful.

Since these photos were posted on the Facebook page of Ecohouse and University of Canberra, Jenny could initiate claims against these two. But, the privacy act only covers the organizations having a business presence in Australia. And as Facebook is an America based nation, it is not covered under the act. Due to this reason, the actions, if brought against Ecohouse and University of Canberra by Jenny, would fail due to the lack of applicability of the Privacy Act on Facebook.

Presently, there is no common law tort for the invasion of privacy in Australia. This is even when the possibility of development of such a law was help openly in the case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] 208 CLR 199 (High Court of Australia, 2017). Though, in the case of Dye v Commonwealth Securities Ltd [2010] FCA 720, Katzmann highlighted that due to this, a person cannot be denied from initiating a claim of breach of privacy against another, just because of the present state of the common law (Jade, 2010). Even though these is no general right for the privacy, a protection is offered with regards to the equitable action for a breach of confidence. When a trust of a person is broke, by undertaking actions, which violate the trust and confidence of the other person, and which results in emotional distress, an action can be brought against the breaching party, for such breach of confidence resulting in mental agony (Australian Law Reform Commission, 2017). In Giller v Procopets [2008] 24 VR 1, the plaintiff was awarded damages for the distress, due to the beach of confidence as a result of misuse of private information (Australasian Legal Information Institute, 2008).

However, in Maynes v Casey [2011] NSWCA 156, the trial judge viewed that the conduct of defendant was not undue or a serious invasion to a right of privacy held by the plaintiff, or to be very offensive for a prudent person with common sensibility. Basten J, referred to the cases of Giller v Procopets and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, and stated that such cases would sow the seeds for the development of liability for the personal privacy’s unjustifiable intrusion, whether or not the breach of confidence was involved, even when they have the judgment against the plaintiff (Simpsons, 2013).


Hall J, in the legal matter, put before the Supreme Court of New South Wales, of Saad v Chubb Security Australia Pty Ltd [2012] NSWSC 1183, provided his decision in a case which was brought forward against the employer, in addition to the security firm, which was engaged in the monitoring of the workplace, by the plaintiff, being an employee. The CCTV images of the employee by some employee or former employee of the security firm at the Facebook page. The judge in this case out rightly refused to close or strike out the case made for the breach of confidence. This was because in the view of the judge, at the stage of proceedings, it could not be proved that cause of action made for the breach of confidence on the basis of the invasion of privacy of the privacy, was bad law or futile (Australian Law Reform Commission, 2017).

In this very case, Kelly J stated that the ratio decidendi given in the case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, dictates the necessity of further development of the law, in order to recognize the presence of tort of privacy in the nation. In one of the recent cases of Doe v Yahoo! 7 Pty Ltd [2013] QDC 181, Smith DCJ opined that an arguable case of the invasion of privacy was present in this case. As a result of which he was hesitant in striking out the case of action, as the law was unclear and still developing (Supreme Court Library, 2013).

In the case of Jenny, her photograph was taken and posted over Facebook. For this, Jenny can initiate claims of breach of confidence due to invasion of privacy. Her photographs were taken and posted over the social networking site without her permission. Even though there is no explicit law at the present time, to provide protection to Jenny in this case, but the cited case laws highlight that breach of confidence due to privacy violation can be claimed upon. And the aggrieved party in such cases can apply to the court for damages.

Moreover, as was established by the judge in the case of Saad v Chubb Security Australia Pty Ltd, Facebook photo was a breach of confidence. And so, with a specific emphasis to this case, a case can be made by Jenny. These claims are to be brought against C&B, and even against Ecohouse and University of Canberra, as all these parties violated the privacy of Jenny by allowing the photo to be posted online. And by acting as a medium for such post, as the photo was uploaded by C&B for both Ecohouse and University of Canberra. And so, the absence of explicit legations in this regard acts as an advantage for Jenny.

Another claim which can arise due to a post over the social networking site relates to defamation (Find Law, 2017). Defamation takes place when something untrue about the other person or something which can unfairly tarnish the reputation of such other person, is said or written. So, if a person posts something over the social networking sites, which is materially untrue and which has a result of tarnishing of the reputation of such person, then the person posting such content, can be sued for defamation (Law Stuff, 2015b).

In Australia, the Uniform Defamation Laws Reform 2006 is the applicable law for cases to be initiated for defamation (Huan, 2006). So, in case a communication occurs from one person to another, which has the ability of harming or tarnishing the reputation of a third person, then defamation claim can be initiated by the person whose image was tarnished. In order for a claim for defamation to be successful, the plaintiff has to establish three things, i.e., the communication was published to a third party,  that in such a communication, the plaintiff can be easily identified, and that such a communication was defamatory. In general, a company cannot sue any party for defamation. Though, if such a company is a not-for-profit organization or employs fewer than ten individuals, and is not a public body or related to another company, then the company can sue for defamation (Doctor, 2007).

There is a cap over the damages that can be claimed for a non-economic loss, to the amount of $250,000. However, if the court is of the view that the circumstances of the case, in which the matter was published, demand damages to be paid in excess of the capped limit, then the plaintiff can be awarded aggravated damages. Such aggravated damages are not awarded with an intention of punishing the publisher, but act as an extra compensation for the plaintiff due to the injury to the reputation of the plaintiff, especially where the conduct of the publisher was reprehensible (Pearson, 2007).

In the given case, Jenny cannot initiate an action for defamation against C&B. This is because defamation can only be claimed for a written communication and not a photograph. Even though she is angry and humiliated, a claim for defamation would not stand here, due to the lack of applicability of the Uniform Defamation Laws Reform in her case. Moreover, the post was not derogatory or something which could tarnish her image, and hence, a defamation case against C&B by Jenny would not stand.

On the other hand, a defamation case can be raised in this case, not by Jenny, but by C&B, against ANU due to their post on twitter. In that tweet, ANU vented out their displeasure by using abusive words for Chris. And in another tweet, ANU questioned the ability of the company of C&B, Ecohouse, along with naming both C&B, regarding the construction of a teaching facility. This tweet was not only derogatory in nature for the company, but for both C&B, as it was a direct question and insult over their reputation.

So, here three cases can be initiated, one by Chris, for the first tweet, which showed an abuse by ANU over a public forum. For such an insult, which defamed Chris, he can initiate actions and claim for damages. The second case has to be initiated by C&B as a result of the second tweet which harmed their reputation. ANU had no base for making such a statement and this baseless allegation opens the channel gates for a claim against them.

The third and last claim has to be made by Ecohouse. Even though the companies are prohibited from making a deflation claim, but as the number of employees in Echohouse is just two, i.e., C&B, the Uniform Defamation Laws Reform is applicable over them. And as a result of this, they can initiate actions against ANU and claim for damages. Furthermore, these tweets were repetitive and their nature necessitates the requirement of a claim for aggravated damages to be made. This can also be done by combining the three cases, to show the negated impact of such a tweet over Chris, Mohammad and Echohouse.

On the basis of above analysis, it is advised to C&B that in case Jenny initiates a case against them on the basis of implied term of mutual trust and confidence in the employment contract would not be successful. In case such a case is made, C&B can cite the late ruling given in Commonwealth Bank of Australia v Barker, which invalidated this implied term. 

In case Jenny initiates a claim against them for breach of privacy law, they can establish that they are not covered under the act and that the circumstances did not necessitate their inclusion in the act. And even her claims against Ecohouse and University of Canberra would not stand, due to lack of business presence. In case a case is initiated by Jenny, they both can take help of the above quoted rule to safeguard them. However, if a claim is initiated by Jenny for breach of confidence due to invasion of privacy, C&B would be held liable due to the cited cases. And they would have to pay the damages claimed by Jenny for such a breach.

Lastly, it is advised to C&B to initiate defamatory case against ANU and claim damages for the injury to their reputation.

References

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