24 April 2012

Facebook Photos

The Sydney Sun-Herald - the Sunday face of the SMH - has breathlessly announced that "People can now be held accountable for their actions on social media" before reporting that
 A jilted boyfriend who put nude pictures of his former lover on Facebook has been sentenced to six months' jail - the first social networking-related conviction in Australian history and one of just a handful in the world. 
 Ravshan ''Ronnie'' Usmanov told police: ''I put the photos up because she hurt me and it was the only thing [I had] to hurt her.'' 
Shortly after posting the pictures on his Facebook page in October last year, Usmanov emailed his girlfriend with the message: ''Some of your photos are now on Facebook''. She had ended their relationship and moved out of their shared home less than three months earlier.  
The woman, who The Sun-Herald has chosen not to identify, ran to Usmanov's flat at Pyrmont, demanding he take down the pictures. When he refused, she called the police. 
Usmanov apparently wasn't convicted under a NSW or Commonwealth privacy statute or for breach of confidentiality, and as noted in posts over the past three years there's no protection through a tort of serious invasion of privacy). Instead his behaviour was reportedly addressed in terms of an offensive publication.

The report states that -
 Sentencing the 20-year-old, the Deputy-Chief Magistrate, Jane Mottley, said she was ''deterring both the offender and the community generally from committing similar crimes''.  
She said: ''New-age technology through Facebook gives instant access to the world. Facebook as a social networking site has limited boundaries. Incalculable damage can be done to a person's reputation by the irresponsible posting of information through that medium. With its popularity and potential for real harm, there is a genuine need to ensure the use of this medium to commit offences of this type is deterred. 
''The harm to the victim is not difficult to contemplate: embarrassment, humiliation and anxiety at not only the viewing of the images by persons who are known to her but also the prospect of viewing by those who are not. It can only be a matter for speculation as to who else may have seen the images, and whether those images have been stored in such a manner which, at a time the complainant least expects, they will again be available for viewing, circulation or distribution.'' 
The court could cite just one other relevant case in which a 20-year-old New Zealand man was sentenced to four months' jail in Wellington in 2010 for posting nude pictures of his ex-girlfriend on Facebook.
Usmanov reportedly pleaded guilty to publishing an indecent article. He appealed the six-month sentence (to be served as home detention).  Blanch J of the District Court confirmed the original sentence, quashing the home detention order in favour of a suspended sentence.

The S-H comments that
 Court papers from the original sentencing reveal discussion over the gravity of Usmanov's offence. His lawyer, Maggie Sten, argued his was not a ''serious offence''. Ms Mottley fired back: ''What could be more serious than publishing nude photographs of a woman on the internet, what could be more serious?'' She added: ''It's one thing to publish an article in print form with limited circulation. That may affect the objective seriousness of the offence but once it goes on the worldwide web via Facebook it effectively means it's open to anyone who has some link in any way, however remotely.''
In discussing the case with students I've commented that a privacy tort is not the only potential remedy. If Usmanov, for example, had repeated the offensive behaviour with intent to humiliate or frighten his former partner he would have been subject to stalking provisions in NSW law.

Amid debate about media self-regulation it is interesting to note the S-H editorial, grandly headed "Privacy Is Sacred" and articulating standards that alas the major media groups apparently do not appear to consider apply to their own operations -
In this world of sophisticated technology, the preservation of personal privacy is under siege. 
Modern technology facilitates intrusion into that privacy like never before. Acquiring information about a person has never been easier. 
Conversely, it's never been simpler to expose one's details to the world voluntarily via such social media sites as Facebook, Twitter and MySpace. And many people do, often indiscreetly and to their lingering detriment and regret. 
But no matter how straightforward it is to disseminate information widely and rapidly, a person's privacy remains sacrosanct. Now, as revealed by The Sun-Herald today, a young man has viciously employed technology to betray his former lover and violate her privacy. Ravshan Usmanov, who posted on Facebook a picture of the woman in the nude, has been convicted of publishing an indecent article. On appeal his original six-month jail sentence has been commuted to a suspended sentence. 
Presumably chastened, Usmanov has now secured his Facebook site with the maximum privacy setting. 
Usmanov is the first person in Australia to be convicted of such felonious use of social networking but he surely is not the first offender. In one of the more notorious examples, a photograph of model Lara Bingle in the shower, taken and allegedly distributed by her then lover, AFL player Brendan Fevola, ended up being published in a women's magazine. Bingle, understandably, felt violated but her refusal to co-operate with an investigation meant Fevola escaped prosecution. 
Recordings of intimate moments between consenting people is strictly their business. That one of the parties, as in the Usmanov case, could appropriate the material and share it with others without express permission from the former partner is a monstrous violation. 
Hopefully the case will be a salutary lesson for all social media users. They need to be very careful about what they allow to be filmed and recorded and with whom.