Emojis and Defamation

In Burrows v Houda [2020] NSWDC 485 Gibson DCJ has considered alleged defamation by emoji. 

The judgment states 

The plaintiff’s post received retweets, “likes” and, in particular, a reply which asked: “July 2019 story. But what happened to her since?” 

The defendant’s response is the emoji commonly referred to as “zipper-mouth face”. The defamatory meaning of each of the three challenged imputations in the second matter complained of turns very substantially upon what this “zipper-mouth face” emoji means. 

There is then a second reply, from another third party, which attaches two document stubs and provide the additional information that “Judge Wilson recommended Ms Burrow’s clients be banned for life by ASIC and prosecuted for signing affidavits they knew to be false”, followed by a series of hashtags and links to other Twitter users. This is followed by the words “tick tock” and an emoji showing a clock. 

The third reply uses the “retweet with comment” to republish the defendant tweet, adding three emoji: “collision”, “face with tears of joy” and “ghost”. 

The fourth reply does not resort to the use of emoji, but to English, albeit of a very colloquial nature, by adding the words “Ohmigod bro !!!!!” as a “retweet with comment”. 

This appears to be the first time that a court in Australia has been asked to rule on the capacity of an emoji to convey defamatory meaning, so it is a topic which I should approach with some care. 

Defamatory meaning and emoji 

Although there has been some academic criticism of judges for referring to sources such as Wikipedia (R Smyth, “What do Trial Judges Cite?”, Evidence from the New South Wales District Court" (2018) 41(1) UNSW Law Journal 211, the nature of modern communications makes consultation of internet dictionaries, such as Emojipedia, a necessary step for the trier of fact who seeks to determine what the ordinary reasonable Twitter reader would make of the use of these symbols. 

The relevant principles for construing social media publications are helpfully set out by Warby J in Monroe v Hopkins [2017] EWHC 433 (QB), as summarised in Brose v Balauskas [2020] QDC 15 at [63] – [77]. The correct approach to take to the analysis of symbols such as “zipper-mouth face” is that set out in Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB) (“Bercow”), where the court was called upon to determine the meaning of an “innocent face” emoticon. 

Bercow, emoticons and emoji 

One of the main changes to online writing style has been the introduction of two new-age hieroglyphic-style languages: emoticons and emoji. An “emoticon” is a portmanteau term (from “emotional icon”) for pictures made from punctuation marks, letters and numbers to create an image displaying a sentiment and predates the internet as signs (such as :) or ʕ·ᴥ·ʔ) can be created with a keyboard. 

An “emoji” is a more recent invention, consisting of pictographs of faces, objects and symbols; as the name would suggest, the origin of these pictographs is from use in Japan (the jury is still out on whether “emoji” is a collective noun or whether in its plural form it should be anglicised with an “s”; I have taken the former approach). The Oxford English Dictionary provides the following explanation: “Japanese emoji pictograph (1928 or earlier, perhaps after English pictograph n.), small digital image or icon used to express an idea, emotion, etc. in electronic communications (1990s) < e picture (formerly ye ; 8th cent. as we ; < Middle Chinese) + moji letter, character (10th cent.; contraction of mon character, word + ji character, letter (see kanji n.), based on a Middle Chinese compound; compare Chinese wénzì writing). The resemblance in form and meaning to emoticon n. is probably coincidental.” 

This results in the definition: “A small digital image or icon used to express an idea, emotion, etc., in electronic communications.” 

Emoji are used in addition to other meaning-conferring tools, such as hashtags and buttons for “like” or “retweet: (Voller at [85]). 

The emoticon in Bercow consisted of words to portray an “innocent face” following what appeared to be an innocent question about why the plaintiff was “trending” on Twitter: 

Tugendhat J explained the approach to meaning of this symbol as follows: 

“[7] It is common ground between the parties that the words “innocent face” are to be read like a stage direction, or an emoticon (a type of symbol commonly used in a text message or email). Readers are to imagine that they can see the Defendant's face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant's case, but insincerely or ironically on the Claimant's case) that she does not know the answer to her question.” 

The ordinary reasonable reader of tweets derives the meaning of the imputation from the circumstances surrounding the tweet, namely that the plaintiff’s name was trending because of an avalanche of publications in the red top press to the effect that the plaintiff was accused of being a paedophile (at [15] – [29]). In those circumstances, the plaintiff’s apparently innocent question (supported by the “innocent face” emoticon) was no mere innocent enquiry, but capable of the inference that the plaintiff had been publicly exposed, rightly, for conduct for which he was guilty. 

Tugendhat J explained:

“[84] In my judgment, the reasonable reader would understand the words “innocent face” as being insincere and ironical. There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the Defendant simply wants to know the answer to a factual question.”

Is it appropriate for a judge to determine a meaning based on an emoji without the benefit of expert evidence (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; (2002) 194 ALR 433; (2002) 77 ALJR 255 at [78] and [180]) or jury input (Trkulja at [29], [39], [52], [60] and [67])? After all, the number of cases involving the interpretation of emoji in other areas of the law is increasing (Professor E Goldman, “Emoji Law 2018 Year-in-Review”, https://blog.ericgoldman.org/archives/2019/01/emoji-law-2018-year-in-review.htm). Expert evidence was given as to publication issues in Voller. 

However, I do not consider expert evidence necessary. The parties did not suggest this step, and it should not be imposed on them by the court. There have already been rulings on the meaning of emoji in other areas of the law without such a requirement. In addition, there have been rulings on liability for publication and/or defamatory meaning for other non-verbal internet tools, such as the use of the “like” button (Bolton v Stoltenberg [2018] NSWSC 1518 at [171] and [183]; appeal dismissed: Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45, citing at [99] the trial judge’s rejection of the argument that expert evidence was necessary) and the use of hashtags (AvePoint, Inc. v. Power Tools, Inc 981 F. Supp. 2d 496 (W.D. Va. 2013)). The expert evidence given in Voller related to Facebook’s publication set-up, rather than to widely understood (and widely used) emoji message meanings; no such technicalities apply here. 

How can a symbol of a face expressing a particular emotion convey serious meanings? Are emoji simply illustrations with no real meaning? Where the emoji in question occurs in the context of allegations of serious misconduct, are they capable of conveying imputations to that effect? In Bercow, Tugendhat J considered that they were: 

“[86] That leads to the question: what is the level of seriousness of the allegation that the Claimant fits the description of the unnamed abuser? 

[87] The Newsnight report was not a report of an investigation by the police (or by anyone else). Nor do the media reports suggest that they were reporting on an investigation. The Newsnight report, and all the other reports are of the allegations of a man who complained he was sexually abused. It is true that some reports also included that the unnamed person who is accused of the crime has vehemently denied it. But what is reported is the accusation. The Tweet is linked to those reports, in that it adds a name that was not in the reports themselves. So it is by implication a repetition of the accusation with the addition of the name which had previously been omitted. 

[88] The effect of the repetition rule is that the Defendant, as the writer of the Tweet, is treated as if she had made, with the addition of the Claimant's name, the allegation in the Newsnight and other media reports which had previously been made without his name. It is an allegation of guilt. I see no room on these facts for any less serious meaning. The fact that the accused's denial was also reported in media (other than Newsnight) may be one of a number of factors that the Defendant can rely on in mitigation of damage, but it does not reduce the seriousness of the allegation.”

In the fast-moving world of online communication, emoji have largely replaced emoticons. Their ability to convey a set meaning is clear (see for example The School for Excellence Pty Ltd v Trendy Rhino Pty Ltd [2018] VSC 514 at [25] (“angry face” emoji). They are extensively used as a form of hieroglyph for meanings and as such are capable of conveying meanings that are not only standardised but the subject of their own specialised dictionary. 

The “zipper-mouth face” emoji 

The “zipper-mouth face” is noted in Emojipedia as being approved as part of Unicode 8.0 in 2015 and added to Emoji 1.0 in 2015. Its meaning is “a secret” or “stop talking”, in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer. 

The second relevant emoji, the face of the clock, need not be reproduced. The significant words are “tick tock”, which, in the context of the attached document stubs, imply that the clock is ticking for someone, namely the person the subject of the stubs, which is the plaintiff. 

The three emoji in the third tweet are: [not displayed here] 

Each of these is described in Emojipedia as follows: 

“Collision” was approved as part of Unicode 6.0 in 2010 under the name “Collision Symbol” and added to Emoji 1.0 in 2015. It may be used to illustrate a clash but is commonly used to represent something is excellent or exciting in some way. 

“Face with Tears of Joy” was one of the ten most popular emoji between 2014–2018 and was named the Oxford Dictionaries “2015 Word of the Year”. It was approved as part of Unicode 6.0 in 2010 and added to Emoji 1.0 in 2015. 

“Ghost”, which indicates something fun or goofy, was approved as part of Unicode 6.0 in 2010 and added to Emoji 1.0 in 2015. 

Emojipedia notes that the raised arms have resulted in its use to indicate “an excited Yay!” 

While I have noted these definitions, I have not construed the capacity of the imputations in accordance with them in any strict sense. The meanings conveyed by a publication are, as the Court of Appeal stressed in Corby, a matter of broad impression. 

The parties’ submissions 

By way of overview, Mr Senior submits that none of the three challenged imputations pleaded as arising from the matter complained of, even with these additional responses, is reasonably capable of being conveyed. 

Imputation 10(c) 

Mr Senior, relying upon Corby at [135] – [136], submits that there is no reference whatsoever to the plaintiff having been, or being likely to be, disciplined by any professional body for her conduct. The plaintiff’s 27 May 2020 tweet of a “stub” for an article in the Sydney Morning Herald in July 2019 contains no additional comment from the defendant apart from three dots (“…”) and the tag “#auspol”, neither of which would be capable of giving rise to any of the imputations pleaded. There is nothing in the additional material capable of adding such a meaning for any of the imputations pleaded. In particular, the “zipper-mouth face” conveys nothing other than that the defendant cannot reply. 

Mr Rasmussen first points out that the result of the disciplinary referral is asked about at [6], to which the zipper-mouth face (at [7]) is the reply. As to the inquiry about why this stub is being posted a year later, the ordinary reasonable social media reader would be well aware that Twitter posts are geared to “trending” news; this could be why the inquiry about posting an article that is nearly a year old is made. The inquiry seeks to know what the result was. The defendant’s answer is the “zipper-mouth face”. 

Mr Rasmussen submits that this “zipper-mouth face” is worth a thousand words – the emoji implies that there has been a finding damaging to the plaintiff, but the defendant is not at liberty to disclose the result, and instead must hint at it by posting the newspaper story from the previous year and using the “zipper-mouth face”, so the reader can guess the rest. 

Using the more traditional metaphor (coined by Oliver Wendell Holmes in Schenck v. United States, 249 U.S. 47 and often referred to in arguments on meaning; see Sube and another v News Group Newspapers Ltd and another [2018] EWHC 1234 (QB) at [22]), Mr Rasmussen submits that this Delphic response is the equivalent of shouting “fire” in a crowded theatre, giving rise to a defamatory meaning which is further inflamed by the three following comments. 

Viewed in the context of the reply sent by the defendant, the “zipper-mouth face” picks up on both aspects of the inquiry – the fact that the defendant is posting an article almost a year old and the result of the events the subject of the stub. This is a case where “joining the dots” (Joukhador v Network Ten Pty Limited [2020] FCA 746 at [43]) to achieve the meaning is a particularly likely exercise when carried out on a social media site, where the exchange of such information is more likely than a serious publication to contain hints of a sensational nature.

Fake News and Election Interference

'The Free Speech Blind Spot: Foreign Election Interference on Social Media' by Evelyn Douek  in Combating Election Interference: When Foreign Powers Target Democracies (Oxford University Press, 2020) comments

 The current system for monitoring and removal of foreign election interference on social media is a free speech blind spot. Social media platforms’ standards for what constitutes impermissible interference are vague, enforcement is seemingly ad hoc and inconsistent, and the role governments play in deciding what speech should be taken down is unclear. This extraordinary opacity — at odds with the ordinary requirements of respect for free speech — has been justified by a militarized discourse that paints such interference as highly effective, and “foreign” speech as uniquely pernicious. But, in fact, evidence of such campaigns’ effectiveness is limited and the singling out and denigration of “foreign” speech is at odds with the traditional justifications for free expression. 

Hiding in the blind spot created by this foreign-threat, securitized framing are more pervasive and fundamental questions about online public discourse, such as how to define appropriate norms of online behavior more generally, who should decide them and how they should be enforced. Without examining and answering these underlying questions, the goal that removing foreign election interference on social media is meant to achieve — reestablishing trust in the online public sphere — will remain unrealized.

'Repress/redress: what the “war on terror” can teach us about fighting misinformation' by Alexei Abrahams and Gabrielle Lim in (2020) Mis/information Review comments

Misinformation, like terrorism, thrives where trust in conventional authorities has eroded. An informed policy response must therefore complement efforts to repress misinformation with efforts to redress loss of trust. At present, however, we are repeating the mistakes of the war on terror, prioritizing repressive, technologically deterministic solutions while failing to redress the root sociopolitical grievances that cultivate our receptivity to misinformation in the first place. 

As the COVID-19 pandemic rages across the globe, societies have simultaneously been buffeted by an “infodemic” of conspiracy theories and phoney medical advice, seemingly peddled by pamphleteers and presidents alike. As with the virus, the manner in which societies choose to address the phenomenon of misinformation may have consequences for decades to come. In this essay, we argue that the Western policy response to misinformation thus far shares a troubling affinity to its response to terrorism a generation ago, in the wake of 9/11. Superficially, of course, the nascent war on misinformation looks nothing like the war on terror when comparing the sheer scale of violence and destruction. More abstractly, however, the Western policy responses across both campaigns share a common denominator, namely, a reflexive tendency to see both terrorism and misinformation as nuisance phenomena that should be repressed, rather than symptoms of underlying sociopolitical maladies that should be redressed. Like terrorism, misinformation is seen not as endemic, but as an aberration foisted upon society from the outside, whether by malicious foreign actors or domestic misfits. In reality, however, terrorism is often symptomatic of frustration with political authorities, and misinformation likewise thrives where trust in authorities has eroded. Consequently, we predict that the war on misinformation, like the war on terror, will substantially be a war on symptoms — protracted and futile. In tandem with palliative measures, we advocate for a concerted effort to redress root grievances and restore faith in our political system. 

After the devastating attacks on New York and Washington DC on September 11, 2001, the United States and her Western allies declared a global “war on terror,” aiming not only to prevent further attacks on American and European soil, but to seek and destroy terrorist safe havens in the anarchic peripheries of failed states across western Asia. Wrathful and resolute, the Western coalition initially adopted a predominantly repressive approach to counterinsurgency (COIN), seeking to identify, kill, arrest, render, deport, and freeze the assets of suspected terrorists: in short, to deny them the “means” of attacking. 

This repressive, means-denying approach was consistently favored over its theoretical alternative, the “hearts and minds” approach to COIN, which aims to redress the political grievances motivating citizens to sympathize with, support, and give succor to the terrorists. Indeed, months before 9/11, a University of California political science professor published a book, Blowback, in which he predicted that American empire-building activities abroad were stoking hatred and resentment that would soon translate into retaliatory violence (Johnson, 2000). His prescient remarks were ignored not only before, but also after the twin towers fell, and far into the Afghanistan and Iraq campaigns. Whether in official state missives or Hollywood dramatizations, the persistent question on the minds of many Americans, “why do they hate us?”, continued to be answered by othering the terrorists as irrational fanatics. Whether calling itself Al-Qaeda or the Taliban or Hamas or Hezbollah or ISIS, the supposed ideological intransigence of this ubiquitous enemy implied that negotiations were impossible across the board; a military solution was the only option. 

Interestingly, it was the military (specifically, the United States Marine Corps) that first recognized the inadequacy of this repression doctrine. Starting in 2007, during the occupation of Iraq, the Marines updated their field manual to espouse a more “hearts and minds” approach (Nagl et al., 2008). At the time, Iraqi insurgents were waging an effective urban guerilla war that hinged on the complicity of Iraqi civilians. If the Marines could win over the population, so the theory went, the civilians would reciprocate by ratting out the insurgents. Sure enough, a series of neighborhood-level development initiatives did indeed seem to curry favor with Iraqi civilians and coincided with localized drawdowns in insurgent violence (Berman et al., 2011). 

Though an important advancement in American military doctrine, casting the “hearts and minds” approach as a counterinsurgency strategy misses the larger intellectual departure. Addressing citizens’ political grievances is not really counterinsurgency, it is just plain politics. Indeed, in Iraq, the American military was all too uncomfortably aware that it was being asked to fill not only a security vacuum but also a political one (Schadlow, 2017). To shift from a repressive, means-denying approach to a redressive, motives-oriented approach is to shift from plotting military operations to doing community outreach. Instead of burdening the military with the task of tracking down and killing terrorists, it would be up to civilian policymakers to work with marginalized communities to help redress their grievances so that they do not become hotbeds of extremism. In the decades after 9/11, however, American policymakers largely did the exact opposite, alienating (Razack, 2008) and stigmatizing (Marzouki, 2017) Muslims at home while ramping up drone strikes and prolonging controversial and destabilizing military occupations abroad. By casting the phenomenon of terrorism in strictly martial terms, the previous generation of policymakers “securitized” what was substantively a political matter. Instead of exhausting all redressive options before turning to repression, policymakers operated in reverse, treating politics as something one resorts to only after violence fails. Instead of redressing the root causes of political discontent, they mandated the military to prosecute an unwinnable global war on its symptoms — with devastating consequences for life and liberty both abroad and at home.

National Security and Media Freedom

There is uncertain protection for media freedom in the report by the Parliamentary Joint Committee on Intelligence and Security regarding the impact of national law enforcement and intelligence powers on the freedom of the press. 

 The inquiry was referred by the Attorney-General in July last year, with the Committee to report on 

 1 The experiences of journalists and media organisations that have, or could become, subject to the powers of law enforcement or intelligence agencies performing their functions, and the impact of the exercise of those powers on journalists' work, including informing the public. 

2 The reasons for which journalists and media organisations have, or could become, subject to those powers in the performance of the functions of law enforcement or intelligence agencies. 

3 Whether any and if so, what changes could be made to procedures and thresholds for the exercise of those powers in relation to journalists and media organisations to better balance the need for press freedom with the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats. 

4 Without limiting the other matters that the Committee may consider, two issues for specific inquiry are:

a. whether and in what circumstances there could be contested hearings in relation to warrants authorising investigative action in relation to journalists and media organisations. 

b. the appropriateness of current thresholds for law enforcement and intelligence agencies to access electronic data on devices used by journalists and media organisations. 

 The Committee's Recommendations are 

 1 The Committee recommends that the Australian Federal Police and other Commonwealth law enforcement agencies with investigatory powers amend their operating procedures or practices to advise journalists or media organisations when they are no longer persons of interest in an investigation in circumstances where doing so would not jeopardise the future of the investigation. 

2 The Committee recommends that the current role of the Public Interest Advocate, as provided for under the Telecommunications (Interception and Access) Act 1979 (TIA Act), for the purposes of Journalist Information Warrants (JIW) sought under Chapter 4, Part 4-1, Division 4C of that Act, be amended and expanded to apply in the following circumstances:

• That warrant-related provisions of the Crimes Act 1914, the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Australian Security Intelligence Organisation Act 1979 (as set out in paragraph 3.122 of the Committee’s report) be amended to include mandatory consideration of warrant applications by Public Interest Advocates (PIAs) to cover all overt and covert warrants that relate to a person working in a professional capacity as a journalist or a media organisation, where the warrant is related to the investigation of an unauthorised disclosure of government information, including national security information, or Commonwealth secrecy offence. 

• All such warrants are to continue to be issued without notice to the journalist or media organisation, however the PIA is required to make a submission to the issuing authority, addressing the following: 

• the current requirements of section 180T(b)(i)–(vi) of the TIA Act and section 14(2) of the Telecommunications (Interception and Access) Regulations 2017; 

• the public interest in preserving the confidentiality of journalist sources; and 

• the public interest in facilitating the exchange of information between journalists and members of the public to facilitate reporting of matters in the public interest. 

• The PIA must represent the interests of the principles of public interest journalism, and be authorised to request information to clarify elements of the warrant application provided by ASIO or an enforcement agency to enable the case to be built in their submission. 

• All PIAs must: 

• be Queen’s Counsel or Senior Counsel; or 

• have served as a judge of the High Court, a court that is or was created by the Parliament under Chapter III of the Constitution or the Supreme Court of a State or Territory; and 

• be appointed for a minimum term of 5 years. These requirements should be set out in primary legislation. 

• All such warrants sought by an enforcement agency related to a person working in a professional capacity as a journalist or a media organisation, be required to be considered, authorised and issued by:

• a judge of a superior court of record in the jurisdiction of issue for relevant Crimes Act 1914 warrants; and 

• a nominated Federal Court judge for relevant Surveillance Devices Act 2004 and Telecommunications (Interception and Access) Act 1979 warrants. 

• The issuing authority must consider both the application from the agency seeking the warrant, as well as the submission from the PIA. 

• Individual PIAs are to be informed of the outcome of the consideration of warrants for which they were responsible for making submissions. 

• Journalist information warrants under Chapter 4, Part 4-1, Division 4C of the Telecommunications (Interception and Access) Act 1979 should only be available in relation to the investigation of (i) a serious offence or (ii) an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for at least 3 years. 

3   The Committee recommends that the Telecommunications (Interception and Access) Act 1979 be amended to include additional record-keeping and reporting requirements in respect of the role of the Public Interest Advocate in relation to journalist information warrants. At a minimum, the following additional information should be collected and included in the Minister’s annual report on the use of the Telecommunications (Interception and Access) Act 1979: 

• The number of serving Public Interest Advocates and which State or Territory they operate in;  

• The qualifications of each Public Interest Advocate (i.e. whether the Advocate is a Queen’s Counsel or Senior Counsel, a retired judge or both); 

• The number of cases where a Public Interest Advocate contested a warrant application; 

• The number of cases where a Public Interest Advocate attended the hearing of a verbal application for a warrant; and 

• The number of cases where a warrant was not issued after being contested by a Public Interest Advocate. 

4   In respect of the expanded role of Public Interest Advocates (following implementation of Recommendation 2), the Committee recommends that the Crimes Act 1914, the Surveillance Act 2004 and the Telecommunications (Interception and Access) Act 1979 be amended to include (at a minimum): 

• Similar recordkeeping and annual reporting requirements to those that already exist in relation to journalist information warrants under the Telecommunications (Interception and Access) Act 1979; and 

• The additional requirements outlined by the Committee in Recommendation 3. 

5   The Committee recommends that the Crimes Act 1914, the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Australian Security Intelligence Organisation Act 1979 be amended to include the following additional recordkeeping and reporting requirements: 

• On an annual basis, the Attorney-General of the Minister of Home Affairs should provide information to the public about: 

• The number of covert and overt warrants that were obtained by enforcement agencies under Commonwealth legislation in relation to journalists or media organisations; and

• The specific offences to which each warrant related. 

• In addition to ASIO’s existing reporting requirements, ASIO should be required to:

• Provide a report to the Attorney-General on each journalist information warrant that is issued, consistent with other types of warrants issued under the Telecommunications (Interception and Access) Act 1979 and the Australian Security Intelligence Organisation Act 1979; and 

• Include, in its annual report, the number of times ASIO applied for a warrant in relation to a media organisation or a person working in a professional capacity as a journalist (including, but not limited to, the number of applications for a journalist information warrant). 

6   The Committee recommends that, as part of its upcoming review of all secrecy provisions in Commonwealth legislation (in accordance with the recommendation of this Committee in its Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017) the Attorney-General’s Department specifically consider whether the relevant legislation adequately protects public interest journalism. The Committee also recommends that this ongoing review be prioritised for finalisation and report by June 2021. 

7   The Committee recommends the Government give consideration to whether defences for public interest journalism should be applied to other secrecy offences within relevant Commonwealth legislation. Any additional defences should be based on the defence provided by section 122.5(6) of the Criminal Code Act 1995. 

8   The Committee recommends that the Australian Government give consideration to the formulation of a mechanism to allow for journalists and media organisations, in the act of public interest journalism, to consult with the originating agency of national security classified information without the threat of investigation or prosecution. Additionally, the Committee recommends that all intelligence and law enforcement agencies prioritise the creation of a media disclosure liaison unit to facilitate this formal consultation. 

9   The Committee recommends that the Government formally responds to the recommendations of the Review of the Public Interest Disclosure Act 2013: An independent statutory review conducted by Mr Philip Moss AM before the completion of the Senate Environment and Communications References Committee’s inquiry into press freedom. The response should include consideration of:

• Amending the Public Interest Disclosure Act 2013 (PID Act) to make it easier to understand for both disclosers and agencies; 

• Simplifying the public interest test in the PID Act; 

• Strengthening the reprisal protection provisions in the PID Act; and 

• Improving alignment between public and private sector whistleblower regimes. 

10   The Committee recommends that the Public Interest Disclosure Act 2013 be amended to require the following occur when a Public Interest Disclosure is made by an official connected to an intelligence agency regarding the actions of that agency:

• the originating agency report a Public Interest Disclosure to the Inspector General of Intelligence and Security within 24 hours if it is indicated as urgent by the discloser, or as soon as possible after the disclosure is made, but within the current 14 day required timeframe; and 

• the originating agency maintain contact and notification with the Inspector General of Intelligence and Security during the 90 day investigation window to outline investigation progress and potential outcome timelines, including possible extensions. 

11   The Committee recommends that the Australian Government provide for the mandatory reporting of aggregated statistics, related to numbers and timeframes of all Public Interest Disclosures, to be made to the Parliament every six months by the Attorney-General. 

12   The Committee recommends that the Auditor-General prioritise the adoption of the identified 2019-2020 potential audit Implementation of the revised Protective Security Policy Framework. 

13   The Committee recommends that training on the application of the Protective Security Policy Framework requirements for sensitive and classified information be made compulsory for all relevant Commonwealth officers and employees. 

14   The Committee recommends that the Inspector-General of Intelligence and Security (IGIS), conduct a preliminary inquiry into the application of national security classifications in intelligence agencies, where such an inquiry may include:

• Examination of a sample of classified material in relation to the appropriateness of the classification; and 

• Reviewing the classification procedures of intelligence agencies.

The IGIS should advise the Committee of the outcome of any preliminary inquiry into the application of national security classifications, and to the extent possible, provide information to the public on the outcome of an inquiry. Information made available to the public may include analysis of apparent trends or culture within intelligence agencies in relation to applying national security classifications, or commentary on statistical trends and outcomes, as appropriate. Additionally, any recommendations made by the IGIS to alter or improve internal practices should be prioritised by the relevant agency and reported to the Committee as part of its annual Administration and Expenditure Review. 

15   The Committee recommends that the Australian Government promote consideration of harmonisation of State and Territory shield laws through National Cabinet, with relevant updates incorporated to expand public interest considerations, and to reflect the shifting digital media landscape. 

16 The Committee recommends that the Australian Government review and prioritise the promotion and training of a uniform Freedom of Information culture across departments, to ensure that application of the processing requirements and exemptions allowed under the Freedom of Information Act 1982 are consistently applied.

Disclosure

'Disclosing genetic information to family members without consent: Five Australian case studies' by Jane Tiller, Gemma Bilkey, Rebecca Macintosh, Sarah O’Sullivan, Stephanie Groube, Marili Palover, Nicholas Pachter, Mark Rothstein, Paul Lacaze and Margaret Otlowski in (2020) 63 European Journal of Medical Genetics 04035 comments 

 Genetic risk information is relevant to individual patients and also their blood relatives. Health practitioners (HPs) routinely advise patients of the importance of sharing genetic information with family members, especially for clinically actionable conditions where prevention is possible. However, some patients refuse to share genetic results with at-risk relatives, and HPs must choose whether to use or disclose genetic information without consent. This requires an understanding of their legal and ethical obligations, which research shows many HPs do not have. A recent UK case held that HPs have a duty to a patient’s relatives where there is a proximate relationship, to conduct a balancing exercise of the benefit of disclosure of the genetic risk information to the relative against the interest of the patient in maintaining confidentiality. 

In Australia, there is currently no legal duty to disclose genetic information to a patient’s at-risk relatives, but there are laws and guidelines governing unconsented use/disclosure of genetic information. These laws are inconsistent across different Australian states and health contexts, requiring greater harmonisation. Here we provide an up-to-date and clinically accessible resource summarising the laws applying to HPs across Australia, and outline five Australian case studies which have arisen in clinical genetics services, regarding the disclosure of genetic results to relatives without consent. The issues addressed here are relevant to any Australian HP with access to genetic information, as well as HPs and policy-makers in other jurisdictions considering these issues.

Disinfo

Detecting Digital Fingerprints: Tracing Chinese Disinformation in Taiwan from Graphika, the Institute for the Future’s (IFTF) Digital Intelligence Lab, and the International Republican Institute comments 

Taiwan is on the frontlines of the Chinese Communist Party’s (CCP) international influence operations, and what happens on the island often serves as a harbinger for how China will operate elsewhere. In 2018, the island’s local elections were subjected to myriad online disinformation campaigns that favored a Beijing-friendly agenda, attempted to undermine democratic integrity, and systematically attacked democratically elected politicians whose positions did not align with China’s strategic interests. However, despite the assertion of Chinese interference by several intelligence agencies and governments, clear evidence linking disinformation during the local elections to mainland Chinese actors has not been publicly shared. 

This is not a unique scenario: governments around the world have discussed foreign interference campaigns without being able to share much public evidence to accompany these assessments. Many factors complicate the task of publicly sharing this type of evidence, among them privacy concerns linked to accounts that are often on private platforms, methodological concerns around standards of attribution in information operations (IO), and use of sensitive technical data in the process of analysis and attribution. Independent entities also face difficulties in their assessment of potential interference by China in the 2018 elections, notably because the Taiwanese online information space is unique and conducting a postmortem without consistent monitoring and real-time data collection is practically impossible. 

Yet, when asked whether a foreign actor was likely to target Taiwan’s 2020 Presidential and Legislative election with disinformation, Wu Jun-deh, Director of the Cyber Warfare and Information Security Division at the Institute for National Defense and Security Research (INDSR), said “Of course, the answer is China.” 

In June 2019, with the 2018 local elections as a point of reference, Graphika, Institute for the Future’s (IFTF) Digital Intelligence Lab, and the International Republican Institute (IRI) embarked on a research project to comprehensively study the online information environment in the lead- up to, during, and in the aftermath of Taiwan’s January 2020 elections, with an awareness of the 2018 precedents and an eye for potential similar incidents throughout this election cycle. Graphika and DigIntel monitored and collected data from Facebook and Twitter and investigated leads on several other social media platforms, including Instagram, LINE, PTT, and YouTube. IRI supported several Taiwanese organizations who archived and analyzed data from content farms and the island’s most popular social media platforms. The research team visited Taiwan regularly, including during the election, to speak with civil society leaders, academics, journalists, technology companies, government officials, legislators, the Central Election Commission, and political parties. The goal was to understand the online disinformation tactics, vectors, and narratives used during a political event of critical importance to Beijing’s strategic interests. By investing in the organizations investigating and combating Chinese-language disinformation and CCP influence operations, we also hoped to increase the capacity of the global disinformation research community to track and expose this emerging threat to information and democratic integrity. 

Two months into our research, Twitter and Facebook released statements that, for the first time, directly linked the Chinese state to an online information operation taking place on their platforms. Twitter stated that they were “disclosing a significant state-backed information operation focused on the situation in Hong Kong, specifically the protest movement and their calls for political change.”  Twitter found 936 accounts on its platform linked to mainland Chinese state actors. Facebook stated, “although the people behind this activity attempted to conceal their identities, our investigation found links to individuals associated with the Chinese government.” Facebook disclosed five accounts, seven pages, and three groups. Graphika conducted an independent investigation of the 3.5 million tweets produced by this set of accounts, finding a prolific yet unsophisticated cross-platform amplification network that promoted smear campaigns against the Hong Kong protest movement and opposition figures like Guo Wengui. 

Twitter data included three datasets: (1) tweets from Twitter’s Chinese information operations archive relating to Taiwan; (2) a month-long stream of tweets relating to the January election; and (3) a Graphika map of the election discussion on Twitter. Our Facebook dataset included a Graphika map of the 2020 election, consisting of public pages relevant to the election in Taiwan, as well as additional analysis of 139,538 Facebook posts gathered using CrowdTangle. We also investigated content on several other platforms, including YouTube, Instagram, LINE, and PTT. More details on these datasets, including streaming queries, Taiwan keywords, and number of posts and users in each set, can be found in our Datasets and Methodology appendix. 

Events in Hong Kong went on to shape Taiwan’s information environment in myriad ways. In the early phase, a number of narratives emerged alleging that, for instance, the Taiwanese government was secretly providing large-scale financial backing to Hong Kong protesters at the expense of the Taiwanese taxpayer. As the protests and the Hong Kong government’s crackdown continued, Taiwanese public opinion about the island’s own relations with China radically shifted, making it untenable for China- friendly politicians to maintain a stance on cross- Strait relations that would be acceptable to Beijing. The predominant narrative in June 2019 was that Taiwan’s presidential and legislative elections would be so tightly fought that a disinformation campaign could decide the result, but a shift in opinion meant that by fall 2019 the results of the presidential election in favor of the incumbent, Tsai Ing-Wen, seemed a foregone conclusion, and only the legislative seats were seriously contested. The Taiwanese information space during the 2020 presidential and legislative elections—a popular incumbent, no credible opposition, and a plummeting view of China—was thus radically different from the 2018 local elections, making it implausible that the same narratives would play out. 

On January 10, the day before the vote, COVID-19 started to shape the Taiwanese information environment. A rumor circulated online that a new type of SARS had reached Taiwan and that it would be unsafe for citizens to vote in person. In the weeks and months after the election, disinformation associated with COVID-19 was regularly seeded in Taiwan, much of which was directed at undermining the government’s

Key Findings are -

Finding 1 

Disinformation related to COVID-19 was used to discredit the Taiwanese government and had links to mainland China. 

Mainland Chinese accounts pushed COVID-19 disinformation targeting Taiwan on Facebook and Twitter. These accounts revealed their Chinese origin by overlap with previous Chinese netizen-led disinformation campaigns targeting Taiwan and a poor grasp of linguistic differences between Taiwanese and Chinese Mandarin. response to the virus and sowing distrust. Although the initial prompt for this study was election interference, COVID-19 and other incidents described in this report make clear that disinformation in Taiwan is a persistent threat not limited to election cycles. 

Given that malign foreign actors typically exploit existing weaknesses and vectors for influence in a country’s information environment, we have analyzed disinformation related to Taiwanese democratic integrity regardless of whether it can be directly linked to foreign actors. We found a number of indicators suggesting coordinated disinformation campaigns targeting Taiwan, some of which were foreign in origin, particularly in the post-election period. The most clear-cut of these was a sustained, post-election COVID-19 disinformation campaign that showed signs of coming from the Chinese mainland and used Malaysian content farms to disseminate and amplify false information about the virus. 

Finding 2 

Disinformation was targeted at undermining democratic actors writ large, not just the election, and increased in the months immediately following the election. 

In addition to foreign campaigns focused on COVID-19, a network of domestic Taiwanese accounts drove a cross-platform campaign falsely alleging Tsai Ing-wen’s Ph.D. dissertation was fake. These inauthentic Facebook, Twitter, and Instagram accounts promoted a petition to the U.S. government to investigate her Ph.D.’s authenticity. These posts often included instructions and links to YouTube videos instructing Chinese speakers not fluent in English how to navigate signing a petition on petitions.whitehouse.gov. 

Finding 3 

Content farms in Malaysia promoted Han Kuo-yu, the Kuomintang (KMT) candidate for president, and criticized Tsai Ing-wen, the Democratic Progressive Party (DPP) candidate and incumbent president. 

This network of content farms coordinated production and distribution of these stories in the lead up to the election. Often the stories displayed links to mainland China through Chinese vocabulary choices, similarities with content from attributed Chinese government information operations, running stories copied from PRC state-owned media outlets, or by running disinformation attributed to the Chinese government. After the election, this network promoted several false stories alleging that COVID-19 originated in the U.S. 

Finding 4 

Disinformation frequently targeted the voting process and Taiwan’s Central Election Commission (CEC) before the election. The Taiwan FactCheck Center catalogued several examples of disinformation on LINE and Facebook that targeted central aspects of Taiwan’s democratic process, including the voting process and the CEC, some of which alleged CIA intervention to swing the result. At least one of these stories displayed signs of mainland Chinese authorship through vocabulary choice. 

Finding 5 

One presidential candidate’s Facebook page appeared to benefit from false inflation, gaining a suspicious and abrupt increase in Facebook followers one month before the election. 

James Soong, a third-party candidate for president, gained nearly 500,000 Facebook followers in a period of days the month before Taiwan’s election. Soong received the highest rise in followers out of all 268 official candidate and party Facebook pages we observed in the month leading up to the election. This represented a 356% increase in followers and occurred over a span of about 72 hours. Soong’s suspicious gain of nearly half a million followers over four days is unlikely to be organic and warrants further investigation. 

Finding 6 

Disinformation was a cross-platform problem during the election. 

We observed disinformation on six social media platforms—Facebook, Instagram, LINE, PTT, Twitter, and YouTube—and on dozens of domains. Far from being limited to one platform, disinformation was present on all social media platforms studied. 

Finding 7 

Taiwan’s domestic digital marketing industry plays a large role in political disinformation on the island. The industry is primarily commercially motivated.

Passports and Standardisation

'Standardizing Movements: The International Passport Conferences of the 1920s' by  Sara Kalm comments 

The First World War is usually conceived as a turning point in the history of migration policy. Before the war, borders were largely open, passports were in most places abolished, and the movement of people as well as capital and traded goods was understood through an optimistic and liberal institutionalist lens. At the outbreak of the war, states reinstated passport controls, presumably as a temporary measure, but they were never again dismantled. In this paper, I suggest that in order to comprehend this general norm change, it is useful to approach these developments in a piecemeal manner to uncover changes in governmental thought and practice. The focus is the International Passport Conferences, that were organized by the League of Nations in the 1920s, and which laid the groundwork for the modern passport regime. The argument is that the work of these conferences can be aptly analyzed as a process of standardization –a technology of government which was widespread at the time, that has particular characteristics as concerns forms of governing, the status of knowledge and the construction of identities. Among other things, this approach allows us to detect linkages to international technical standardization, and to states domestic attempts at homogenizing and making legible their own populations.

Kalm argues 

The First World War is often understood as a turning point in the history of migration controls. Before the war, movement was largely unregulated and most states had since a few decades abolished passports and exit restrictions. With the outbreak of the war, states reinstated controls, both in order to control the inflow of possibly dangerous individuals, and to prevent the outflow of potential soldiers. Controls were never dismantled after the war, but instead came to be seen as a legitimate and indeed necessary element of international relations. The contemporary Italian diplomat Egidio Reale explained in 1931 that the passport question had been “entirely settled” in the early 20th century– it was then deemed a “despotic and unnecessary barrier to the freedom of communications”. After the war, all “reasonable persons” expected the soon revival of the pre-war regime, but, deplorably, the compulsory passport system was not abolished but instead strengthened (Reale 1931). Thus, the war and its aftermath – including the newly established passport regime – is often interpreted as indicating a shift in policy paradigm, from liberal internationalism to a more realist model (Strikwerda 1999). 

The question is how such a change occurs. Constructivist scholars in international relations doubt that sudden policy diffusions, whereby many countries adopt similar measures at about the same time, can be explained by domestic factors only. They are instead indicative of a change in international norms for state behaviour, to which states adjust their actions through the “logic of appropriateness” (March and Olsen 1998). The mechanisms whereby this norm change may occur include learning, mimicry, persuasion and sometimes coercion. In the longer run, a successful process of norm change makes states internalize the norms, leading to socialization and identity change (Checkel 2005; Finnemore and Sikkink 1998). But what sets this process in motion? Here is a bone of contention for constructivists. Some refrain from ascribing identifiable agents with the power to incite norm change, and instead point at broad discursive developments and historical contingencies. Others however argue that actors play a decisive role, and that the initiation of norm change can be attributed to their conscious efforts to influence state behaviour. Non-state actors, such as transnational activist networks, NGOs and social movements are especially important, and many studies have identified the mobilization among such actors as instrumental norm change in for instance the human rights field (Brysk 2013; Keck and Sikkink 1998). Such influence is possible in our days, when non-state actors mobilize across borders and when international institutions give them access to consultation. But it seems more questionable if we go a bit back in time. 

My approach is slightly different. I will concentrate on one particular process in the post-war reorientation of migration controls, namely, the International Passport Conferences of the 1920s. These conferences were organized under the auspices of the League of Nations and gathered experts and state representatives to debate and negotiate the usage of passport and migration controls. I argue that the efforts of these conferences can fruitfully be analysed as an instance of standardization. This is to some extent to state the obvious: the conferences are known for having initiated the standardization of modern international passports. But what I propose here is to take standardization seriously and bring it into the analytical exercise on its own terms. Processes of standardization are ubiquitous and occur in the spheres of technology, economy, management, health, education, as well as bureaucracy. They tend to fall into the category of “dull things” of mundane and technical regulations, and therefore often pass unnoticed and unscrutinised although they often have far-reaching implications for power and democracy (Timmermans and Epstein 2010: 71). The standardized passport is one example; it works well for millions of people and therefore meets with little opposition. Nevertheless, it is a source of anxiety for stateless people or those with otherwise unclear nationality status (Star and Lampland 2009: 7–11). I take standardization to be one element of norm change, but not the norm change as such. My suspicion is, moreover, that it merits more attention within the study of norm change in international relations than has so far been the case. The literature that approaches standards as social regulations pertains mainly to sociology, management and organization studies (Brunsson and Jacobsson 2000; Bowker and Star 1999; Star and Lampland 2009; Timmermans and Epstein 2010; Thévenot 2009). Much less has been written about standardization from a perspective that directly concerns matters that are of concern to international relation scholars, such as international norms (but see Peña 2015; Loya and Boli 1999; parts of Ponte et al 2011 and Higgins and Larner 2010). 

In this paper, I understand the standardizing efforts at the International Passport Conferences from the point of view of a framework inspired by Michel Foucault. Standardization is then seen as a “technology of government” which has particular and recognizable characteristics but can be invested with different rationalities and be used in different contexts and for different purposes (Rose and Miller 1992; Higgins and Larner 2010). This allows me to trace the roots of the studied standardization to other practices of standardization, rather than (only) to pre-existing norms, state interests or advocacy by different groups. It also allows me to historicise the efforts of the conferences, and to consider the constructive and exclusionary practices on which they progressively erected their passport standards (cf. Ewald 1990; Higgins and Tamm Hallström 2007). 

The focus on standardization also distinguishes my effort from existing studies of the history of the passport. That scholarship has investigated how states use the passport for state making purposes, and I use many of their insights in my analysis (Torpey 2000; Caplan and Torpey 2001; Salter 2003; Robertson 2010; Lloyd 2005). 

The next section expands on the notion of standardization as a governmental technology. It is followed by a section on two main forms of standardizations that were influential at the time and that are particularly relevant for the present case. We then turn to the policy background in the League of Nations and its other engagements with international movements of people, which is followed by the case study of the Passport Conferences. The material that I use for the investigation consists mainly of the League of Nations’ documentation from the Conferences and the in-between work by related bodies, but also of secondary sources. The paper ends by a summary.

Aged Care

The Royal Commission on Aged Care Quality and Safety has today commented that new research by the South Australian Health and Medical Research Institute (SAHMRI) shows Australia could immediately establish independent, transparent, routine monitoring and public reporting of many aspects of aged care quality outcomes similar to leading countries like Denmark, Sweden, Germany, the Netherlands, and the USA. 

The Commission notes that the Commonwealth government currently has no care quality outcome reporting for home care and reports on only three indicators for residential care. The SAHMRI research - Research Paper 8: International and National Quality and Safety Indicators for Aged Care - shows a large range of quality outcome indicators can be produced from existing data without any burden to aged care providers, including indicators for

•  medication-related quality of care, 
• falls and fractures, 
• hospital re-admissions, 
• hospitalisation for dementia/delirium, 
• pain, premature mortality, 
• pressure injury, 
• utilisation of care plans and medication reviews, and 
• weight loss/malnutrition. 

 The Royal Commissioners state that independent measurement and public reporting is essential for the good operation of the aged care system - 

 Unbiased measurement and reporting of performance is vital to create accountability and continuous improvement in the aged care sector. Without it, problems are hidden from sight and not addressed. 

It is unacceptable that in 2020 the aged care system is still without this. Had the Australian Government acted upon previous reviews of aged care, the persistent problems in aged care would have been known much earlier and the suffering of many people could have been avoided.

The Productivity Commission’s 2011 Caring for Older Australians report recommended that aged care quality indicators be established and published at the service provider level to enhance transparency and accountability. 

That recommendation was reiterated  in the 2017 Review of National Aged Care Quality Regulatory Processes. 

SAMHRI considered arrangements in Australia,New Zealand, the United States, Canada, the United Kingdom, the Netherlands, Germany, Denmark, Finland, Sweden, and Iceland. It recommends an independent body overseeing quality monitoring and reporting in Australia, including data custodianship and establishing evidence based targets. Real-time data collection should be standard with routine public reporting. 

Larrikins, Employment and Social Media

'The Cultural, Economic and Technical Milieu of Social Media Misconduct Dismissals in Australia and South Africa' by René Cornish and Kieran Tranter in (2020) 36(2) Law in Context A Socio-legal Journal 1-32 comments

The intersection between social media activity and employment is an emerging global issue. This article examines the cultural, economic and technical milieu that has generated contested social media misconduct dismissals in Australia and South Africa. Through an analysis of 42 Australian and 97 South African decisions, it is argued that the ubiquitous, enduring and open nature of social media affects employment quite differently depending on country specific factors. In Australia, the absence of entrenched political rights has meant that employee social media use is not subject to reasonable expectations of privacy. However, there is also tolerance for a certain level of larrikin behaviour. In South Africa, the existence of enshrined rights manifests differently in the context of social media dismissal. Within a culturally diverse population with deeply fractured race relations, the decisions reveal a White minority still perpetuating dominance over a historically disadvantaged Black workforce.

The authors state

Australian decision- makers have over the 2010s vacillated concerning allowances towards employees and their social media conduct. While there was a clear trajectory of this swinging towards employers since 2015, a factor that was evident in the sample that might explain some of the vacillation, was a degree of tolerance for “larrikin” behaviour. 17% of decisions (7/42) involved claims or allowances made for larrikin conduct. The term “larrikin” has British roots referring to “a mischievous or frolicsome youth.” In Australia the original pejorative denotation moved somewhat: a larrikin is a person who is “a rough diamond,” or “cheeky prankster” (Bellanta 2013, p. 1) with a “lovable-scallywag air” (Bellanta 2013, p. 3) and “waggish humour” (Bellanta 2012, p. 180) who engages in “taking the mickey” of someone or something (Bellanta 2013, p. 1). 

“Waggish humour” was evident in Mayberry. The misconduct involved the posting to Facebook a photograph of the employee clothed as a motor vehicle made from Subway branded materials behind a Subway counter. Subway summarily dismissed the employee for irreparable damage to the employers reputation. The FWA found that dismissal, let alone summary dismissal, was too harsh a sanction, as there was “no damage to the company’s name, let alone irreparable damage” to its reputation. 

“Nonconformity, anti-authoritarianism, exceeding limits, audacity” (Vine 2009, p. 106) and apparent “careless disregard for social or political conventions”  are further characteristics associated with Australian larrikinism. In Singh, an airline employee was dismissed for posting “We all support ISIS” on an Islamic extremist group’s Facebook page. The employee argued that the post was sarcastic, and that he really did not support ISIS. The FWC found that the company had failed to read the entire Facebook post that would have lead them to the conclusion that the employee was not an ISIS supporter. Although the FWC found that the post did not demonstrate “sarcasm” as “[i]t was not witty. It was not funny” but was “a ridiculous” and “incredibly stupid” post, it still held the dismissal unfair. 

A common characteristic of Australian larrikinism is “strident masculinity” (Pearl 1958, p. 8). In Renton, an employee tagged two of his work colleagues on a sexually explicit video with a statement naming them in the video and left blobs of white Sorbolene cream on his male colleague’s desk. The employee's defence was he was “playing an annoying practical joke,” and that this “banter” was merely to generate humour done with “the intention of them having a laugh.” While the FWC found his actions to be “boorish,” "crass and careless" and demonstrating a serious lack of sound judgement, it held the termination to be “harsh in that it was disproportionate to the gravity of the misconduct.” The sharing of a sexually explicit video that also involved body-shaming the woman with colleagues that the employee had named, following up with the “practical” joke of the Sorbolene cream, was inappropriate but not a dismissible offence. This seems to reflect an Australian acceptance of a misogynist larrikinism that objectifies and fails to see harms towards women (Manne 2017; Tomsen 2017). 

However, there does seem to be a line in Australia where tolerable larrikin social media conduct tips to dismissible misconduct. It seems to involve the sexualising of male bodies. In Little, the FWC found the dismissal lawful where a male employee made comments about sexual assault towards another male employee. The employee’s arguments that the comments were humorous and were meant as a joke were not shared by the FWC that found the comments to be acutely offensive. The contrast with Renton seems stark - where images and text about a woman’s body was not grounds for dismissal. In Fussell, the FWC held that the forwarding by a male employee of an image of his erect penis to a female colleague was at the “extreme outer limit of offensiveness,” and the reason for dismissal was valid. In the sample the limit to tolerable larrikin behaviour seems to be the sexualised male body. 

It also seems to be the male body in danger. In Naresh, an employee was dismissed for posting a “cool as hell” image of himself standing on top of a mining machine, 1.6 metres above the ground with its engine running. The FWC upheld the dismissal partly as the image was evidence of unsafe work practices, but particularly as evidence of the brazen disregard for workplace health and safety and the serious risk to the employer’s reputation and profitability if seen by its clients. 

The sample shows that while larrikin conduct through social media is tolerated to a degree in Australia; there are limits, seemingly around the representing of the male body. Indeed, in the Australian sample, in 4/42 decisions the employee had explained their social media conduct using the term ‘joke.’ In South Africa, ‘joke’ was only used by an employee as an explanation in a single decision. While not all Australians who argued that their social media misconduct should be understood and excused as larrikin carrying-on were successful, 72% (5/7) cases were. This finding coalescences with the broader finding emerging from comparing the samples, that the balance in Australian workplaces and employment law is slightly more towards employees. However, this comes with a caveat that this only extends to employees manifesting Australian hegemonic masculine values of “taking the piss” and misogyny (Bellanta 2012, p. 180).