All posts by Richard

Social Media and the Law seminar

Back in April of this year, Andrew Scott-Howman (specialist employment law barrister with Port Nicholson Chambers and co-author of Workface) and I delivered a New Zealand Law Society seminar series on Social Media and the Law.

We discussed three main topics: I discussed “your and your clients’ use of social media for business purposes: a lifecycle approach”, Andrew then discussed “employer and employee use of social media: an employment law perspective”, and I then discussed “third party use of social media against organisations and staff: legal and practical remedies” (also touching on “reform and the future” at the end). Read more…

A few days ago the NBR reported that a medical professional is seeking summary judgment against Google in the High Court over defamatory links that appeared and, given the content’s changing URLs, continue to appear in Google search results.

According to the NBR, the plaintiff’s lawyer has said the case raises two novel issues:

  • whether Google’s search engine is a “publisher” for the purposes of the law of defamation; and
  • whether (if it is a publisher) the innocent dissemination defence could apply so as to afford Google a defence.

This is a fascinating case because these issues have not been squarely considered yet by a New Zealand court. According to the NBR article, the case has been heard but Justice Abbott has reserved his decision, meaning we await His Honour’s judgment.

To understand the case and how the Court might decide it, it helps to understand the core elements of defamation and the innocent dissemination defence referred to above. Read more…

GOV.UKThose interested in how a single government website may function should take a look at the UK’s beta site. When you navigate to the site, you’re told immediately that it’s an experimental trial replacement for Directgov, that it may contain inaccuracies or be misleading, that Directgov remains the official website for government information and services, and that feedback is welcome. It also tells you that the site is using cookies and Google Analytics and explains that more information on cookies can be found at All understandable caveats and disclosures.
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The recent UK case of Hoffman v Drug Abuse Resistance Education (UK) Ltd [2012] EWPCC 2 (19 January 2012) provides a number of important reminders for those who design and own websites, including public sector agencies.

It’s an interesting tale about a website owner who copied photos from another website in the mistaken belief that they were Crown copyright photos that could be re-used without permission when, in fact, they could not. There’s a photographer, a charity, a web developer, a government-sponsored website, the photos and… a copyright infringement claim.
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We, Best + Hancock (a consortium of sole practitioners) are launching, as it were, in January 2012. That being so, if you dig through the site a bit, you might wonder why there are some old posts here dating back to 2008. The short answer is that I imported them from an earlier blog I maintained (Online + Lawful). I decided to decommission that blog but didn’t want to lose some of the lengthier posts I’d written. Simple as that really.

Those reading the old posts should note that some of the government policies and links to which they refer may now be out of date. If you have any questions in relation to anything I’ve said in those posts, feel free to drop me a line.

A few months ago now I had reason to sign a software-related agreement with a US developer (to cut a long story short, I’d had a developer create an extension for me for a well-known CMS).

Once we’d finalised the wording of the contract, the developer sent it to me, via a service called EchoSign, for signature. EchoSign offers various ways of using the online channel to assist in the formation of contracts but the method used on this occasion was broadly as follows:

  • the developer uploaded the electronic version of the contract to EchoSign;
  • he then entered my email address and included a note to me;
  • then he clicked send to send the contract to me;
  • I entered my name and (from a couple of options) decided to sign with my mouse;
  • the contract was then sent back to the developer for his (electronic) signature, upon which the system emailed out a PDF of the signed contract for us both; and
  • the contract was then automatically filed (for him) in his online account with EchoSign.

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A while back now I was drafting a privacy policy for a particular website, when it struck me that one could use a nifty content rendering effect (using, for example, a bit of jQuery) to make navigating privacy policies, terms of use and legislation a better experience for those who actually read them.

Take, for example, an average privacy policy for a site that collects and uses quite a bit of personal information. If the privacy policy has been well drafted, it should cover all bases sufficiently to enable those using the website to know, for example, when their personal information will be collected, the uses to which it will be put, whether any of it will be shared with third parties and who to contact to check and request correction of one’s personal information. Sometimes the need to cover all bases can make for a longish privacy privacy. Yet, it may well be the case that many users only want to find information on a specific issue. The clause or paragraph title should lead them to the right place. But should they have to scroll down through multiple paragraphs? And what if they’d like to read only two or three clauses and see them all in close proximity, even if the clause numbers are far apart?

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UK-based Out-law has recently reported, in one of its excellent legal podcasts, on recent cases in France in which the courts have held that website operators who republished RSS feed content onto their sites were legally responsible themselves as publishers of what transpired to be posts that were invasive of certain third parties’ privacy rights. The fact that, due to the nature of the RSS parsing technology, their websites were automatically updated when the incoming feeds were updated was no excuse. In other words, the French courts disagreed with the website operators’ argument that they exercised no editorial control over the publications. Read more…

Social media and legal code

The article “Social media and legal code“, published recently in NZ Lawyer, provides a checklist of governance, legal, and quasi-legal issues for those involved in the planning, design, operation, and maintenance of social media sites. To a very large extent, it distills the practical issues that are discussed in more length in previous posts.  Hope it’s of some use.

It is conceivable that you or your organisation may wish to resyndicate, on your or its own site, content from the feeds of other websites. Alternatively, you may wish to bookmark a handpicked and tagged selection of items from various websites in, take the resulting feed and use that to populate your site with headline links to items on other sites.

Resyndicating content from others’ feeds

It should follow from the discussion in the previous post that taking and resyndicating others’ feeds without their consent is not a good idea. If such consent is not obvious from terms on their site or from the feeds themselves and there is any risk of adverse action upon re-use, the safest bet is to request permission and, if granted, obtain written confirmation. Failing to do so could prompt the content owners to unleash their legal hounds.

Equally, even where a general consent to resyndicating feeds is apparent from an organisation’s site, you may need to take care that you comply with any terms accompanying that consent. By way of example, the New Zealand Herald expressly “encourage[s] the use of NZ Herald RSS feeds as part of a website or weblog”. At the same time, their RSS licence terms require, among other things, that NZ Herald’s headlines are displayed in the exact form received, are not modified without their consent and that the resyndicating website stipulate that the headlines are supplied by

Read more…

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