2013 Volume 18 Issue 2

Abstract

Legal firms encourage corporations to have in place a social media policy to protect themselves should they dismiss an employee who has made derogatory comments about their workplace on social media.This paper examines unfair dismissal cases that have come before Fair Work Australia, involving such employees. The cases reveal that rather than needing to rely on a social media policy, employers are adequately protected by current legislation in this area of law. It goes on to argue that companies do not need to adopt expensive, customised social media policies for protection. However, if a social media policy is implemented, it will only have the intended legal impact if backed up by sufficient employee training.

Abstract

The concept of ‘publication’, which is central to establishing liability in defamation, is conceptually uncertain as to its definition and scope. The uncertainties have been brought into sharp relief in the proliferation of cases concerning the internet.Such cases demonstrate the potentially wide application of ‘publication’ and the inconsistencies as to its meaning. Although these difficulties have long existed, until they are resolved, we will continue to struggle to apply the concept of ‘publication’, be it in the context of new or ‘old’ fact-patterns. This article considers the uncertain parameters of the concept of ‘publication’ and, in particular, the relevance of knowledge of the content of the defamatory material in establishing such ‘publication’.One of the problems raised by a wide definition of publication is that it puts pressure on defences to relieve innocent parties from liability, especially parties who have had only a peripheral involvement in the commission of the tort. The article argues that the law of defamation has largely sidelined an analysis of liability of such peripheral players in terms of established concepts of accessorial liability. Recent cases involving internet providers have used the concept of knowledge as one means of restricting the meaning of ‘publication’, thereby providing greater protection to parties who are merely peripheral participants in the communication of defamatory matter.

Abstract

Massive Multiplayer Online games (‘MMOs’) provide a rich and varied environment for the creation of user-generated content.This content can alter the nature of the game play, such as through the creation of game modifications (‘mods’), or provide a new form of entertainment and storytelling, by using the game platform or engine to create new works, including machinima, or even new variations of the game, new levels, or guides to other players. In many instances the game provider welcomes and indeed relies upon such contributions.The lack of player instruction in Minecraft, for example, makes the YouTube ‘how to’ videos essential training for many players, and World of Warcraft receives extensive publicity through the distribution of player-made machinima.This article will consider in particular the marginal legal status of modding, a practice undertaken by modders for their own motivations: fame, fun, auditioning for possible future employment, competition; and largely tolerated, occasionally rewarded, celebrated or encouraged by the platform providers, but potentially in breach of the explicit terms of the End User License Agreement. It will conclude that this form of user creativity dwells in the margin between permitted and prohibited activities and exemplifies the uncertainty associated with many forms of digital creativity practiced by users of Web 2.0 platforms, such as games and social networks, every day.

Abstract

TCurrent data protection laws in both Europe and Australia are inadequate to deal with the user-centred nature of the internet today whereby individuals can collect, control and share each other’s personal data. The indefinite period of time over which the internet retains our personal data is inconsistent with important values on which modern Western democratic society functions, such as individual autonomy and the concept of making a ‘fresh start’. In January 2012 the European Union proposed a new legally recognised ‘right to be forgotten’. The right is intended to provide individuals with an entitlement to have their data deleted when the data is no longer needed for legitimate purposes. This article will evaluate the application of this right in today’s technological and social environment, particularly in the context of social networking in both Europe and Australia. It is argued that a legal rights-based framework is the most effective way of addressing the problems with mass data retention but that such a framework should be tailored to ensure a balance is struck between individual privacy and the increasing complexities of freedom of expression.