Mr Cox and Ms Grierson

The Melbourne Magistrates Court was, last week, the scene of an interesting the Facebook cyberstalking case between two academics with an interesting and unexpected conclusion.  It is the subject of an article in the “Sydney Morning Herald” under the headline “Art School altercation puts new spin on cyberstalking“

Ms Elizabeth Grierson is the head of the Fine Arts Department at the Royal Melbourne Institute of Technology (RMIT).  Mr Steve Cox is a well- known painter and watercolour artist whose works frequently consider the psychology of murderers and their victims.  He was a lecturer in the Fine Arts Department of RMIT until January 2011.

The FaceBook Cause ‘SAVE ART from RMIT’ was established in response to funding cuts to the department which were overseen by Ms Grierson.  In the About Us section, it states:

RMIT Fine Art is under threat.
Teaching hours, teachers, facilities & courses are being cut.
RMIT’s Fine Art Undergraduate degree, at present, is not internationally recognised, due to insufficient contact hours.
RMIT is attempting to cut hours even further.
please feel free to vent your thoughts, and frustrations on this page.

At present the group has over 1000 members.

Mr Cox began posting to the wall of the ‘SAVE ART from RMIT’ page in approximately November 2010.  He was critical of Ms Grierson’s administration for because he felt that funding cuts would lead to the courses losing their quality and international status.  He also advocated ‘a call to arms’ by the students posting messages of support from other prominent Australian artists (such as Gareth Sansom and Robert Hollingworth) and by posing questions for the students to ask the department administration at various forums on the issue.  His posts included the following:

Do you want to be trained properly? Or are you content with the dregs dished out to you to in the pursuit of a business studies model? DEMAND your rights as talented Australian artists with something wonderful to offer this country.

It is unfortunate that someone from across the water can breeze into a thriving art community such as Melbourne, totally misunderstanding the dynamics of the place and its history, and orchestrate such severe cuts to an art course that it will take decades for it to recover, if at all. Why would she care, after all?

Question to be asked: In the light of the School of Art being $1.5 million in the red, how is it ethical for the Head of School to take her partner on trips overseas, paid for by RMIT under the guise of being the ‘official photographer’ documenting the excursion?

Question to be asked: Why is it that prospective students were not informed of the restructure of the BA when they applied for entry this year? Is it an example of transparency and honesty to take students into a program which they have no idea will be restructured? Why did the Head of School make the decision not to inform prospective students of this?

Similar posts were made on Mr Cox’s personal FaceBook page.

In December 2010, Mr Cox was officially warned by RMIT that his statements were bringing the university into disrepute and ordered to desist and to remove the statements which he had posted.  He did not comply with this request.  Accordingly in January 2011, Mr Cox was suspended on full pay and banned from RMIT property, from using RMIT equipment and from contacting RMIT staff members on the grounds that he had committed a ‘serious misdemeanour’.

In February 2011, Ms Grierson went to Court seeking a restraining order against Mr Cox ‘for [her] personal safety and well-being’.  In particular, she claimed that Mr Cox’s artwork had an ‘obsession with murder’ and she believed that the images of such artworks which were posted by Mr Cox on his personal FaceBook page were intended to refer to her.

A temporary restraining order was granted against Mr Cox in March 2011.  He was prevented from ‘stalking, assaulting, harassing, threatening or intimidating’ Ms Grierson or ‘going to or remaining within 200 metres of RMIT University, Building 24’.  This week, Ms Grierson returned to Melbourne Magistrates Court to have the restraining order extended.  Mr Cox challenged this on the basis that it restricted his ability to be critical of Ms Grierson and her administration.

What happened next was truly remarkable.   After several hours of discussions, Ms Grierson undertook not to ‘look at [Mr Cox’s] Facebook page’ or ‘cause her servants or agents to look at or otherwise monitor [Mr Cox’s] Facebook page’ for a period of 20 years.  Mr Cox undertook not to refer to Ms Grierson ”with malice” and to remove certain posts from his personal Facebook page.  The images of the artworks were allowed to remain on Mr Cox’s Facebook page.  That is, the ‘victim’ undertook not to look at critical comment from by the ‘offender’ on his Facebook page.

This case is interesting for the potential application of the stalking provisions contained in section 21A of the Crimes Act 1958 (Vic) to posts on Facebook.  Under subsection (2), a person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes …

(ba) publishing on the Internet or by an e-mail or other electronic  communication to any person a statement or other material-

(i) relating to the victim or any other person; or

(ii) purporting to relate to, or to originate from, the   victim or any other

with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.

Unfortunately, these provisions were not tested in court owing to both sides settling the matter by giving their respective undertakings.  Applying the section hypothetically, Mr Cox published information on the Internet, some of which clearly referred to Ms Grierson.  However, it would appear unlikely on the information available that this publication was intended to cause her physical or mental harm.

In the UK, the Protection of Harassment Act 1997 is sufficiently wide to cover posting on the internet and “anti harassment” injunctions have been granted in a number of cases to restrain the publication of material on Wikipedia and Facebook.  In addition, it is an offence under section 1 of the Malicious Communications Act 1988 (as amended), it is an offence for any person to send electronic communications which convey “a message which is indecent or grossly offensive” a “threat” or “information which is false and known or believed to be false by the sender” the sender’s purpose or one of his purposes, in sending it is that it should,  “cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated”.

There are three key issues when theoretically applying this section to the present case.  First, does posting on the wall of a personal Facebook page or a Facebook group constitute ‘sending’ an electronic communication from one person to another?  In the instance of the Facebook group, it might be possible for the poster to ‘send’ information to others if when placing the post on the wall it is then sent to all of the members of the group.  It is more difficult in relation to the personal Facebook page, where posting a statement on one’s own wall does not generally trigger sending the information to others (except where it is part of a conversation on a wall).

Second, would the contents of Mr Cox’s posts fall within the ambit of the section?  On the information available, it would seem that his posts were not indecent or grossly inoffensive, threatening to Ms Grierson or imparting false information.  Third, was Mr Cox’s purpose in ‘sending’ the posts to cause anxiety or distress to Ms Grierson?  Again, on the information available, this would seem unlikely.

The proceedings between Ms Grierson and Mr Cox add to the growing number of Facebook cases around the world.  As always, it serves as a cautionary tale for those who post information on social networking websites.  Indeed, given the right factual background, it would be possible for claims of stalking or of sending harassing communications to succeed.

Dr Catherine Lee is a freelance Media and IP lawyer