Social Media and the Law (HSC SSCE Legal Studies): Revision Notes
Social Media and the Law
What is social media?
Social media refers to web-based forms of social interaction where users can share, comment on and discuss topics with one another. Researchers Andreas Kaplan and Michael Haenlein define it as "a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of user-generated content."
This academic definition emphasizes two key aspects: the technological foundation (Web 2.0) and the social aspect (user-generated content). These elements distinguish social media from earlier forms of web communication.
In simple terms, social media involves the interactions between people in which they create, share, exchange and comment on content among themselves. This digital environment has transformed how we communicate, do business, and share information.
Types of social media platforms
Social media encompasses several distinct categories:
- Blogs – Online journals or informational websites where individuals share thoughts and ideas
- Collaborative projects – Sites like Wikipedia where users work together to create content
- Content communities – Platforms where people upload, share, comment on and discuss content online, such as YouTube and Tumblr
- Social networking sites – Platforms designed for social interaction, including Facebook, Twitter, Instagram, LinkedIn, Blogger and Tumblr
The dominance of social media in Australia
Social media use in Australia has grown substantially. According to the Australian Bureau of Statistics, approximately million Australians use Facebook, while million use Twitter. These platforms have become powerful sources of news updates and tools for influencing decision-making.
How social media is used
Different groups use social media for various purposes:
Businesses and organisations use platforms like Facebook, Twitter, Instagram and LinkedIn to advertise products, build brand awareness, and engage with customers. The commercialisation of social media – giving organisations more public awareness for financial gain – has accelerated in recent years.
Public figures including musicians, actors and sportspeople maintain high public profiles through regular social media updates. Politicians use these forums to communicate policies and connect with constituents.
Individuals use platforms like Snapchat for private messaging (where content is deleted after a set time), while Instagram allows users to share photos and videos publicly to gain 'likes' and followers. Some users with large followings have become digital influencers, earning substantial income.
Commercial Success on Instagram: Nicole Warne
Nicole Warne built a successful business by posting outfits on Instagram. Her Gary Pepper Girl page has grown to over million followers, demonstrating the commercial potential of social media influence. She reportedly earns up to $8,000 for featuring products on her account, illustrating how individuals can monetize their social media presence.
The Facebook story
Facebook was founded by American college student Mark Zuckerberg along with fellow Harvard University students Eduardo Saverin, Andrew McCollum, Dustin Moskovitz and Chris Hughes. Initially limited to Harvard students only, it expanded progressively:
- First to other colleges in the Boston area
- Then to other university students across America
- Eventually to high school students
- Finally to anyone over years of age
Rapid Growth
By September 2012, Facebook had achieved remarkable growth with over one billion members and more than million active users. This explosive expansion created unprecedented legal and regulatory challenges.
As Facebook grew, it became increasingly commercialised. In 2007, Microsoft paid ``1.6%$ share, including rights to place advertisements on the platform. In 2012, Facebook listed on the stock exchange and became a public company, allowing more businesses to advertise and sell products through the platform.
Legal challenges with social media
Why law struggles to keep pace
Changes to social media technology occur at a much faster rate than laws can develop to protect users. This creates significant challenges for legal protection:
Key Challenge: Technology vs. Law
Technology moves quickly – Law-makers find it very difficult to be proactive when dealing with internet-related issues. By the time legislation is drafted and passed, the technology has often already evolved.
Jurisdictional problems – Many social media platforms, including Facebook, are not physically located in Australia or owned by Australians. This makes creating laws to govern their behaviour almost impossible, and enforcing such laws or court outcomes even more difficult.
Limited enforcement – Even when laws exist, enforcing them against international companies presents significant practical challenges.
Exam tip: When analysing legal issues with social media, always consider both the speed of technological change and jurisdictional challenges. These are key limitations of law reform in this area.
Privacy issues in social media
One of the most significant areas of concern about social media, particularly Facebook, is protecting user privacy rights – the natural right of individuals to keep their own affairs private.
Why privacy protection is difficult
Several factors make privacy protection on social media platforms challenging:
The Privacy Challenge
Profit motive – Social media networks are generally operated by profit-making companies with shareholders who expect returns on investment. They are not run by governments or benevolent organisations, which means privacy may be balanced against commercial interests.
Jurisdictional limitations – Because Facebook and similar platforms are not Australian-based businesses, making and enforcing privacy laws to cover their actions is extremely difficult.
Limited civil action – The ability of an individual to take civil action (a lawsuit brought by a collective or large group of people affected by the same crime) against an infringement (disregarding or violating an agreement) of their privacy rights is extremely limited in the international arena.
Cost and complexity – It is often costly in terms of time and money for an individual to prove their privacy has been compromised, particularly when intangible things like the internet are involved.
Relevant legislation
The legislation most relevant to social media relates to privacy protection. However, as with most legal action in Australia, proving privacy has been compromised can be expensive and time-consuming.
Social media and privacy in the workplace
As technology advances, more employees access the internet as part of their jobs. Many naturally access social media sites during work hours, similar to how workers in the past used office phones to call family or friends.
Benefits and risks
The use of social media in the workplace presents both opportunities and challenges:
Benefits:
- Businesses find social media excellent for promoting products
- E-communication (electronic communication using computers or other digital products) provides terrific channels for information flow both inside and outside the workplace
- Increasingly connected workforce can improve communication and collaboration
Risks:
- Barriers between workplace and personal activities become blurred
- Employers' ability to monitor staff can border on invasive
- Workers may use social media to bring their employer's reputation into disrepute
Specific workplace privacy problems
Common Workplace Privacy Issues
Employer monitoring: Employers may be able to access messages sent by staff to friends and family through company systems. This can affect managers' opinions about workers and constitutes potential invasion of privacy (violating an individual's privacy by intruding into their private affairs).
Workplace relationships: Supervisors may become 'friends' with employees on Facebook, then take exception to comments made or make inappropriate comments themselves. This can damage professional relationships.
Damaging posts: Workers may post derogatory comments after a bad day at work. Such posts can damage workplace relationships, affect future employment opportunities, and potentially breach workplace policies.
Reputational damage: Employees using social media to criticize their employer can bring the company's reputation into disrepute, leading to disciplinary action or dismissal.
Exam tip: When evaluating workplace privacy issues, consider both employee rights to privacy and employer interests in protecting their business reputation. The law must balance these competing interests.
Key legal concepts
Social media: A web-based form of social interaction where users can share, comment on and discuss topics
Content community: A group of people who upload, share, comment on and discuss content online (e.g., YouTube and Tumblr)
Commercialise: To make or give an organisation or activity more public awareness for financial gain
Civil action: A lawsuit brought by a collective or large group of people affected by the same crime
Infringe: To disregard or violate an agreement
Privacy rights: The natural right of individuals to keep their own affairs private
E-communication: Electronic communication – any transmission of communication using computers or other digital products
Invasion of privacy: To violate an individual's privacy by intruding into their private affairs
Remember!
Key Points to Remember:
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Social media platforms are difficult to regulate because they evolve faster than law can keep pace, and many are based overseas outside Australian jurisdiction
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Privacy is the central legal concern with social media, but proving privacy breaches is costly and difficult, especially against international companies
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Facebook dominates social media with over billion unique monthly visitors, more than three times its nearest competitor
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Workplace social media use creates tension between employee privacy rights and employer interests in protecting business reputation and monitoring staff activity
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The law struggles to be proactive in protecting social media users due to rapid technological change and jurisdictional limitations