Employer control of employee behaviour through social media

When once individuals could ‘clock off’ for the day and retreat into private spaces, these private activities are increasingly prone to being recorded, tagged and shared and brought to the attention of an individual’s employer. The unavoidable necessity for people to engage with each other online has blurred the boundaries between work life and private life and has meant that, increasingly, employers seek to control what employees do and say online, which requires individuals to carefully modify their behaviour in once private domains. As individuals become inured to the realities of being tracked and mined, the resigned cynicism of the situation is creating a culture where freedom to ‘be yourself’ is undermined. This paper will explore examples of individuals who have faced consequences at work for their online behaviour in what once would have been thought of as their private domain. Using surveillance theory, it will seek to ask whether such a gap in the legal and regulatory sphere is at risk of submerging the individual into a docile workforce which is never ‘off the clock’

Dealing fairly with parody : how literary theory can inform legal definitions

This article is a sustained examination of the definition of parody within the fair dealing exception to copyright. Without a definition of parody that looks to literary theory a parody may come down to what makes a judge laugh. Parody within this arrangement is at risk of being diluted to a mere mockery of texts, relying on dictionary definitions, while the more contemporary understanding of parody “critical ironic distance”, “refunctioned”, “decoding and encoding” of texts is ignored. This article will look at the gap between literary theory and legal definitions of parody and provides a working definition that marries the literary theory to workable criteria for use in the definitional exercise by the judiciary. This engagement with literary theory and practices is needed to avoid the chilling effect copyright litigation has, and to better serve the overall purpose of copyright which is to promote the delivery of new works to the public

The blurred line between the professional and the personal : regulation of teacher behaviour on social media

As demonstrated by recent media reports concerning the Australian Public Service Social Media Policy and the Australian Rugby Union’s dispute with Israel Folau, social media often blurs the line between our professional and personal lives, and means that employers want to control what we do and say on social media. This is an issue which directly affects Australian teachers, whose professional obligations have always extended beyond their immediate work environments. Does social media mean that teachers are never ‘off the clock’? This article examines the current law relating to control of teacher behaviour and comment on social media. It analyses the implied freedom of political communication discussed in the 2019 High Court decision of Comcare v Banerji, and its ramifications for teachers and their employers. Additionally, using case studies involving social media policies of authorities which control teacher professional conduct, it considers whether such policies constitute lawful and reasonable directions, or whether they could be challenged as infringing teachers’ rights to a personal life

Continuation and Change - the "Europe 2020" Strategy

This article pays particular attention to the Supreme Court case of Hall v Rossi and others (1830). The case is not well known but contains some extraordinary themes.5 Hall was successful in challenging three magistrates who wrongfully convicted him, a result that would have been highly unlikely without a jury (unless a magistrate was willing to convict his peers). The case also highlights the friction between the emancipists and exclusives and the way the courts could be manipulated by two men wishing to play out a not-so-private conflict. Fresh evidence is offered that by 1830 emancipists were on NSW jury lists and it is very likely that there were emancipist jurors in the case of Hall v Rossi and others. The official correspondence about the makeup of juries reveals a general apprehension about the suitability of certain men, particularly those who listed their profession as 'merchant'. It is possible that much of the concern over the finances and social standing of jurors was a proxy for concern about former convicts sitting in positions of judgement. If the government preferred to cloak its prejudice in euphemism, some rather remarkable evidence is more direct — anti-emancipist graffiti was found scrawled into the jurors' bench. Some humorous, others angry, the graffiti offers a unique insight into the minds of the jurors. Hall v Rossi and others provides a valuable case study of the significance of the introduction of jury trials for civil claims in NSW

Ideological vandalism of public art statues : copyright, the moral right of integrity and racial justice

This paper considers the regulation of ideological vandalism by the Australian copyright and moral rights regimes in the context of the defacement of public art statues that occurred in Australia and overseas during the Black Lives Matter protests in 2020. Statue vandalism is approached as a form of anti-racist or anti-colonial iconoclasm that contributes to discourse around previous and continuing racial inequities. Law is approached as a form of symbolic action that can consolidate the alienation and othering of vulnerable groups in public spaces. The authors investigate whether, when public statues are within the copyright term, intellectual property rights symbolically devalue anti-racist discourse by de-prioritising agonistic art encounters. It is identified that copyright’s exclusive rights do not render direct physical interventions with the statue unlawful, but that the moral right of integrity held by the statue’s creator is problematic. The moral right of integrity privileges the connection between the artist and their work as a matter of reputation, and any public interest in the graffitied counter-monument is irrelevant to a finding of infringement, which in our view justifies reform. The paper concludes that public spaces should be democratic spaces, and that intellectual property law in post-colonial states and states with a history of racial injustice should do more in support of this goal