03 August 2014

Cyberspace April 2014


You may have read about the recent case of Mickle v Farley [2013] NSWDC 295 (29 November 2013), in which a former Orange High School student was held to have defamed a teacher at the school. Elkaim SC DCJ awarded $105,000 damages plus costs to the plaintiff, who was defamed via Twitter messages and on Facebook. In many respects there is not much new about this case, although the lesson really is that there are many more opportunities to cross the line publicly today, which in the past might have been done over a beer with a couple of friends.

There are other ways to mess up your life (or your parents’) by throwing away $80,000. The Third District Court of Appeal (Florida) in Gulliver Schools, Inc and anor v Snay No. 3D13-1952 recently held that a non-disclosure clause in a settlement agreement was breached by Snay telling his daughter he had settled his claim against his former school employer. The clause prohibited revelation of the existence of the settlement agreement. Shortly after the agreement was signed, Snay’s daughter posted on Facebook to 1200 friends and former Gulliver students: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” None of that was technically correct, but the appeals court held that as a matter of construction the agreement meant that Snay could not directly or indirectly disclose any information regarding the existence or terms of the agreement. So, the Facebook post wasn’t the key breach, but it was pretty impressive evidence of it. So, under the terms of the confidentiality agreement, Snay forfeited $80,000.

In the aftermath of the Edward Snowden revelations about US Government surveillance of foreigners, you might be amused to know that the Australian Department of Foreign Affairs and Trade set up a special email address for those needing help at the Sochi Winter Olympics. It was a Gmail address.

The Office of the Australian Information Commissioner has released a statement (http://goo.gl/OwJ0bv) confirming that organisations can be held accountable for data breaches where the breach occurs due to a cyber attack. This has always been the case, as privacy principle 11 requires an organisation to take reasonable steps to prevent unauthorised access to personal information. There can be other personal effects too, such as the data breach that Target USA suffered in early 2014, where data on 110 million consumers was lost. The CIO has now resigned.

Of course you read updates to terms of service? Dropbox recently issued an update (https://blog.dropbox.com/2014/02/updating-our-terms-of-service/) which enforces USA binding arbitration unless you explicity opt-out. Class actions are prohibited (although it remains to be seen if this is effective) and the forum for litigated disputes is California. Dropbox also issued new Government Data Requests Principles, which are, frankly, a bit fluffy and seem to lack enforceable substance.

I’m a fan of Evernote (www.evernote.com) to store everything I know but can’t remember, but Microsoft has announced that OneNote is now free for non-business use on all platforms, including OS X. Combined with an Office 365 account or OneDrive (the newly renamed SkyDrive) you have a cloud-based repository for your free-text and rich-text notes. I’m going to stick with Evernote for now (and continue to ignore Google Keep), but OneNote is now a worthy contender on desktop, cloud and mobile devices.