Last night I witnessed an amazing event. I was dining at a restaurant. There were two males having dinner together. During the whole course of their dinner, both parties literally were texting on their mobile telephones. They did not speak to each other.
They paid the bill and left.
Stephen Wilcox
Australian Lawyer
Friday, 28 October 2011
Thursday, 27 October 2011
Cyber Law - Is the Cat chasing its tail
It was reported in one of today's papers that an Austrian student had requested Facebook to provide him with all personal data collected from three years of using the site. It was further reported that Facebook provided the student with 1,222 pages of data.
Some of the comments in relation to the article were quite interesting. One of the more interesting comments was 'Facebook is like a pub. You don't like what you see, go to another pub. Nobody's twisting your arm'.
Of course, Facebook is not like a pub and if it is to be compared to a pub, then there are no other pubs in town with a virtual and real monopoly on social networking. I am not sure of any pub that could handle 800 million patrons let alone get approval to do it from Liquor Licensing.
Consumer harvesting was the mantra and is often an allegation that is raised against Facebook. The term 'harvesting' is quite unappealing.
There appears to be two distinct groups that are divided on Facebook. Those that love it and those that hate it. Various generations also have different views. It is common that elderly people don't like it, don't understand it and therefore form a view that there must be something wrong with it.
There are of course many other forms of social or business activity on the Internet. LinkedIn is a good example. I am a member of both Facebook and LinkedIn. Neither of which I find particularly useful.
The Lord Mayor of Sydney issued a statement (presumably short) on Twitter in relation to the Police behaviour relating to removal of the anti-capitalism demonstration in Sydney. I suppose one of the questions is why? Was it that important that her views had to be immediately sent to all and sundry to state her position?
The Family Court recently approved service of proceedings by email.
The Government continually amends its Privacy Laws for the protection of the individual. These laws in fact can sometimes be quite frustrating as one has to answer endless questions to get answers from communication providers, banks, utility providers etc.
In the end, computers, the internet and its associated programs are critical for modern society. The Australian Stock Exchange went offline today for four hours. Traders who were interviewed complained that they couldn't close trades, open trades or effectively do anything.
Stephen Wilcox
Australian Lawyer
Some of the comments in relation to the article were quite interesting. One of the more interesting comments was 'Facebook is like a pub. You don't like what you see, go to another pub. Nobody's twisting your arm'.
Of course, Facebook is not like a pub and if it is to be compared to a pub, then there are no other pubs in town with a virtual and real monopoly on social networking. I am not sure of any pub that could handle 800 million patrons let alone get approval to do it from Liquor Licensing.
Consumer harvesting was the mantra and is often an allegation that is raised against Facebook. The term 'harvesting' is quite unappealing.
There appears to be two distinct groups that are divided on Facebook. Those that love it and those that hate it. Various generations also have different views. It is common that elderly people don't like it, don't understand it and therefore form a view that there must be something wrong with it.
There are of course many other forms of social or business activity on the Internet. LinkedIn is a good example. I am a member of both Facebook and LinkedIn. Neither of which I find particularly useful.
The Lord Mayor of Sydney issued a statement (presumably short) on Twitter in relation to the Police behaviour relating to removal of the anti-capitalism demonstration in Sydney. I suppose one of the questions is why? Was it that important that her views had to be immediately sent to all and sundry to state her position?
The Family Court recently approved service of proceedings by email.
The Government continually amends its Privacy Laws for the protection of the individual. These laws in fact can sometimes be quite frustrating as one has to answer endless questions to get answers from communication providers, banks, utility providers etc.
In the end, computers, the internet and its associated programs are critical for modern society. The Australian Stock Exchange went offline today for four hours. Traders who were interviewed complained that they couldn't close trades, open trades or effectively do anything.
Stephen Wilcox
Australian Lawyer
Saturday, 22 October 2011
Cyber Crime - Identity Fraud
A survey to gauge how well people protect their
identity has been launched by the federal Minister for Home Affairs and
Justice, Brendan O'Connor. It coincides with National Identity Fraud Awareness
Week (October 17-23). The survey is on the Australian Federal Police website
and allows members of the public to test how vulnerable they are to identity
crime and to take remedial measures if needed.
http://www.afp.gov.au/what-we-do/campaigns/national-identity-fraud-awareness-week.aspx
Stephen Wilcox
Australian Lawyer
http://www.afp.gov.au/what-we-do/campaigns/national-identity-fraud-awareness-week.aspx
Stephen Wilcox
Australian Lawyer
Thursday, 20 October 2011
Cyber Law - I'm the oldest, therefore I have the right
As this blog develops, it is interesting to take a snapshot of what is actually happening. Virtually every person I meet who has a child tells me that their child is obsessed with the internet, they can't get them off it and the whole thing is out of control. I'm not even asking the question. It is simply stated out of some sort of desperation for someone/anyone to do something.
Today was a visit to the fruit and vegetable shop. Generally, people are busy at the time of day post work and don't engage in much conversation. However, this afternoon, one woman in the middle of the shop said in exasperation 'I just can't get them off the damn computers'.
This then caused some interest in the shop and general discussion. Two of the owners, a woman and a man discussed their children. The woman who initially raised the issue then said 'I should never have bought another laptop'. The fruiterer replied 'that was fatal'. The conversation continued. The male owner of the shop said that his two sons continually fought over the computer to the extent that the eldest child said the classic maxim 'I am the eldest and I have the right'. The original woman then said 'I don't even know what they are doing - playing some game with people in New Zealand. I don't think it's porn however'.
Of course, at law, children have very limited rights. Their parents do. These rights vary in certain circumstances such as when a child is at school. There are also legal obligations imposed on parents in relation to children. The maxim 'I am the eldest' holds no ground at law when it comes to accessing the internet.
So what is the solution? It is tempting to set up a Facebook page entitled 'How do I stop my child using the internet'. It would be interesting to see how quickly Facebook would shut it down.
The film that was released last year about the creation of Facebook was an interesting piece. It was almost a marketing piece for the organisation itself. At the time, Facebook was being heavily criticised for privacy issues. Even more peculiar was that Justin Timberlake played a role. He actually bought out MySpace from News Corporation. I personally found all of the characters repulsive.
The difficulty facing parents is that one the one hand, their children need access to the internet more and more. School projects are submitted online. A lot of eduction is online. As a child, it is very easy to manipulate a parent and say 'I'm doing my homework'.
In the end, perhaps the internet is simply just like television. Parenting in the seventies and eighties had to face this problem. I recall my own cousin broke her ankle leaving a moving motor vehicle as her parents were driving into the garage just so she could watch a television program.
There is of course the ultimate solution - pull the plug.
Stephen Wilcox
Australian Lawyer
Today was a visit to the fruit and vegetable shop. Generally, people are busy at the time of day post work and don't engage in much conversation. However, this afternoon, one woman in the middle of the shop said in exasperation 'I just can't get them off the damn computers'.
This then caused some interest in the shop and general discussion. Two of the owners, a woman and a man discussed their children. The woman who initially raised the issue then said 'I should never have bought another laptop'. The fruiterer replied 'that was fatal'. The conversation continued. The male owner of the shop said that his two sons continually fought over the computer to the extent that the eldest child said the classic maxim 'I am the eldest and I have the right'. The original woman then said 'I don't even know what they are doing - playing some game with people in New Zealand. I don't think it's porn however'.
Of course, at law, children have very limited rights. Their parents do. These rights vary in certain circumstances such as when a child is at school. There are also legal obligations imposed on parents in relation to children. The maxim 'I am the eldest' holds no ground at law when it comes to accessing the internet.
So what is the solution? It is tempting to set up a Facebook page entitled 'How do I stop my child using the internet'. It would be interesting to see how quickly Facebook would shut it down.
The film that was released last year about the creation of Facebook was an interesting piece. It was almost a marketing piece for the organisation itself. At the time, Facebook was being heavily criticised for privacy issues. Even more peculiar was that Justin Timberlake played a role. He actually bought out MySpace from News Corporation. I personally found all of the characters repulsive.
The difficulty facing parents is that one the one hand, their children need access to the internet more and more. School projects are submitted online. A lot of eduction is online. As a child, it is very easy to manipulate a parent and say 'I'm doing my homework'.
In the end, perhaps the internet is simply just like television. Parenting in the seventies and eighties had to face this problem. I recall my own cousin broke her ankle leaving a moving motor vehicle as her parents were driving into the garage just so she could watch a television program.
There is of course the ultimate solution - pull the plug.
Stephen Wilcox
Australian Lawyer
Sunday, 16 October 2011
Cyber Grooming - Are You Safe?
The internet has many benefits - social, business, banking. The power of search engines such as Google enable rapid access to even basic information such as phone numbers and postcodes. Smart phones provide instant access to books and music.
In Australia, Telstra has released the 4G Network. Its wireless speed capabilities almost match cable with enormous and ever increasing download capacities.
The types of facilities that the internet provide include blogs (such as this one), Twitter, social networking sites, chat rooms, e-mail, online gaming, instant messaging, Skype and its competitors.
The Courts and the legal system are in many ways on the back foot when it comes to dealing with new developments.
Two years is a long time in technology. However, it is often worthwhile looking back in history to learn for the future.
On of the early social networking sites known as MySpace was a direct competitor to Facebook. In 2007, MySpace had an estimated 180 million members. A number of Attorney Generals in the United State requested information from MySpace to provide information on how many registered sex offenders were using its site. After some initial legal battles, MySpace removed 7,000 names of registered sex offenders from its site. A small percentage at 0.015%.
By 2009, this figure increased to 90,000 registered sex offenders that were removed from MySpace. MySpace was almost at its peak of membership and by 2011, membership has fallen to 60 million users.
Facebook on the other hand now has more than 800million 'active' users according to its own website. Of those users, 50% log on every day and the average user has 130 'online' friends.
In 2009, Facebook removed about 5,500 sex offenders from its site.
In Facebook's Statement of Rights and Responsibilities (26 April, 2011 revision), Part 4 deals with 'Registration and Account Security'. It provides interesting reading. Extracting a number of clauses:
1. You will not provide any false personal information on Facebook;
5. You will not use Facebook if you are under the age of 13;
6. You will not use Facebook if you are a convicted sex offender;
7. You will keep your contact information accurate and up-to-date.
Facebook describes these commitments as partly for the purpose of maintaining the security of your account.
Facebook is a free service. There is no consideration (ie money) paid to use it and therefore, one would assume that the 'Commitments' are not binding. It would seem that the only recourse that Facebook would have for a breach of one of these Commitments is to remove the user.
In Australia, Telstra has released the 4G Network. Its wireless speed capabilities almost match cable with enormous and ever increasing download capacities.
The types of facilities that the internet provide include blogs (such as this one), Twitter, social networking sites, chat rooms, e-mail, online gaming, instant messaging, Skype and its competitors.
The Courts and the legal system are in many ways on the back foot when it comes to dealing with new developments.
Two years is a long time in technology. However, it is often worthwhile looking back in history to learn for the future.
On of the early social networking sites known as MySpace was a direct competitor to Facebook. In 2007, MySpace had an estimated 180 million members. A number of Attorney Generals in the United State requested information from MySpace to provide information on how many registered sex offenders were using its site. After some initial legal battles, MySpace removed 7,000 names of registered sex offenders from its site. A small percentage at 0.015%.
By 2009, this figure increased to 90,000 registered sex offenders that were removed from MySpace. MySpace was almost at its peak of membership and by 2011, membership has fallen to 60 million users.
Facebook on the other hand now has more than 800million 'active' users according to its own website. Of those users, 50% log on every day and the average user has 130 'online' friends.
In 2009, Facebook removed about 5,500 sex offenders from its site.
In Facebook's Statement of Rights and Responsibilities (26 April, 2011 revision), Part 4 deals with 'Registration and Account Security'. It provides interesting reading. Extracting a number of clauses:
1. You will not provide any false personal information on Facebook;
5. You will not use Facebook if you are under the age of 13;
6. You will not use Facebook if you are a convicted sex offender;
7. You will keep your contact information accurate and up-to-date.
Facebook describes these commitments as partly for the purpose of maintaining the security of your account.
Facebook is a free service. There is no consideration (ie money) paid to use it and therefore, one would assume that the 'Commitments' are not binding. It would seem that the only recourse that Facebook would have for a breach of one of these Commitments is to remove the user.
Sunday, 9 October 2011
Cyber Love - Till Money do us part
Section 81 of The Crimes Act 1958.
Section 81 of the Crimes Act 1958
creates the offence of obtaining property by deception. It states;
(1) A person who by any deception dishonestly obtains property
belonging to another, with the intention of permanently depriving the other of
it, is guilty of an indictable offence and liable to level 5 imprisonment
(10 years maximum).
(2) For purposes of this section a person is to be treated as obtaining
property if he obtains ownership, possession or control of it, and obtain includes obtaining for
another or enabling another to obtain or to retain.
(3) Subsections (12) and (13) of section 73 shall apply for purposes of
this section, with the necessary adaptation of the reference to appropriating,
as it applies for purposes of section 72.
(4) For the purposes of this section, deception—
(a) means any deception (whether deliberate or
reckless) by words or conduct as to fact or as to law, including a deception as
to the present intentions of the person using the deception or any other person;
and
(b) includes an act or thing done or omitted to be
done with the intention of causing—
(i) a computer system; or
(ii) a machine that is designed to operate by means
of payment or identification—
to make a
response that the person doing or omitting to do the act or thing is not
authorised to cause the computer system or machine to make.
When investigating and potentially
prosecuting a charge under this section of the Crimes Act, investigators and
prosecutors need to be mindful of the essential elements of the offence which
need to be proven. These are well set
out in “Bourke’s Criminal Law – Victoria”
2010, Lexis Nexis Butterworths, at P. 289-94 and are as follows;
1. That the accused engaged in a
deception
2. That the accused did so dishonestly
3. As a result of the deception the
accused
a. Obtained ownership, possession or
control of property; or
b. Obtained for another, or enabled
another to obtain or to retain, the ownership, possession or control of
property;
4. That the property in question
belonged to a third party;
5. That the accused intended to deprive
the third party of that property.
The first element of this charge is
that there must be a deception. This
deception can be by words or by conduct and it can be either deliberate or
reckless, but there must be a causal connection between the deception and the
obtaining. As cited in Director of Public Prosecutions v Ray
[1974] AC 370,
“The deception must have the effect of inducing the victim to
part with his property or to do or refrain from doing something as a result
which the accused obtains property for himself or for another”
While there are numerous other
authorities which all support this contention of a causal connection required
between the deception and the obtaining, the authorities also state that even
where a victim suspects or even believes that they are being swindled at the
time they part with money as a result of a deception does not mean that the
obtaining has not resulted from the deception as per R v Miller (1992) 95 Cr App R 421.
Saturday, 8 October 2011
Cyber addiction - the new crack?
The purpose of this Blog is to follow the development of Social Networking Law in Australia.
Earlier in the year, St Kilda Football Club successfully served a Federal Court document on a minor via a social networking site.
The Police are also using Facebook to serve Intervention Orders and other documents.
Recently, the Chief Justice of the Victorian Supreme Court announced that she was considering setting up a Twitter account in response to a State Government survey regarding sentencing which found that many members of the public considered that Judges were out of touch.
In the next review of the American Diagnostic and Statistical Manual of Mental Disorders, there is consideration as to whether Cyber Addiction will be officially included.
Stephen Wilcox
Earlier in the year, St Kilda Football Club successfully served a Federal Court document on a minor via a social networking site.
The Police are also using Facebook to serve Intervention Orders and other documents.
Recently, the Chief Justice of the Victorian Supreme Court announced that she was considering setting up a Twitter account in response to a State Government survey regarding sentencing which found that many members of the public considered that Judges were out of touch.
In the next review of the American Diagnostic and Statistical Manual of Mental Disorders, there is consideration as to whether Cyber Addiction will be officially included.
Stephen Wilcox
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