Facebook and eBay- Who takes the fall?

Another example of social networking and court issues has arisen in Australia, after a group of young males face charges for sex offences.

A Facebook site was set up, reportedly with over 700 members supporting the alleged offenders, members of the Montmorency Football Club. The Age published a story on Sunday, Nov 1, saying members of this group were debating the issue and posting in a discussion named “Innocent Until Proven Guilty”.

As there has been no verdict or sentencing, the case is still sub judice, and sharing information about the crime and those involved could be considered contempt of court.

An online article by Margaret Simons mentions an earlier case in Australia and why contempt of court is never followed up during criminal cases when media outlets publish information that is sub judice. One reader comments:

“Sub Judice is an outdated concept, sad to say. Especially for the internet, where jurisdiction is so nebulous. If I blog about it, that’s publication, but my blog is hosted in USA, and I’m in Canberra, and the case we are talking about is in Victoria. If the courts succeeded in getting a takedown order, you’d still be able to read it in google’s cache.”

Another comment from the article mentions Facebook groups related to the particular case which published the names of children and family members involved, as well as the address of the accused. 

Simons had previously written an article on contempt of court for The Age, the same newspaper that yesterday reprinted comments from the Facebook page supporting the Montmorency Footballers.   

As the alleged offenders have only been charged at this stage, these comments could be seen as contempt of court.

As social networking becomes more and more popular, criminal court cases and other legal matters (for example, who is liable for comments made on sites such as Facebook) concerning what is published on the web, and by who, will be studied in more detail.

An interesting article published last year describes a case where illegal software was sold on eBay. Microsoft took legal action against the individuals advertising and selling the software, not the website they used to sell it (eBay).

Another Facebook case resulted in pages being pulled, but Facebook did not admit this was due to a court order, but because groups had breached their terms of use. The article quotes criminal lawyer David Galbally, QC, who says:  

“Facebook say they’re not responsible. But that’s wrong and nonsense. They’re displaying it in a jurisdiction that breaches an order,” Galbally said.

“We need to have a law that makes the website provider responsible for what it is that’s being displayed on the internet, particularly in circumstances that breaches or tends to breach a court order,” he added.