The report of the Government 2.0 Taskforce, Engage: Getting on with Government 2.0 (December 2009), delivered some landmark recommendations set to change the way government agencies interact with the public.
It stated that 'the default position in agencies should be that employees are encouraged and enabled to engage online' and 'it is incumbent on senior APS leadership to ensure that top–down changes are enabled in agencies and that APS employees are genuinely encouraged and empowered to engage online within their agency's specific context'. Another key aspect of the recommendations of the Gov 2.0 report was its emphasis on open access to 'public sector information'. In its response to the report, issued on 3 May 2010, the Government accepted most of the report's 13 recommendations. Their implementation raises some interesting and potentially challenging legal issues.
Web 2.0 enables the web to be used in a dynamic and/or collaborative way, as a platform on which people can communicate back and forth with one another, and work together to create things in new and interesting ways. Examples of Web 2.0 include social networking technologies, wikis, mash-ups, really simple syndication (RSS) feeds, user-generated content sites, virtual worlds and, massive multi-player online games (MMOGs).
Gov 2.0 is not specifically about social networking or technology. It represents a fundamental shift in the implementation of government – toward an open, collaborative, cooperative arrangement where there is (wherever possible) open consultation, open data, shared knowledge, mutual acknowledgment of expertise, mutual respect for shared values and an understanding of how to agree to disagree. Technology and social tools are an important part of this change but are essentially just an enabler in this process.
A myriad of legal issues are associated with the participation of government organisations in the Web 2.0 sphere. These include trademark issues, ownership of content and intellectual property (IP), access, privacy issues, freedom of information (FOI) issues, risks of providing false or misleading information, defamation, censorship issues, procurement issues, contractual issues and online advertising of private products and services on government sites.
Examples of AGS's work in this arena over the reporting period include:
- advising a Commonwealth agency about risks and risk mitigation strategies in relation to a proposed Facebook page dealing with Cybersafety
- advising a Commonwealth agency about various legal issues associated with an interactive discussion forum hosted on an agency computer server and preparing a set
- advising a Commonwealth agency about legal issues arising in relation to an interactive website for dealing with adolescent relationship issues
- advising several Commonwealth agencies about the implications of Web 2.0 for human resource practices, particularly the process of disciplining employees for inappropriate disclosure of information, and for treating one another inappropriately using Web 2.0 technologies
- providing advice and assistance to a Commonwealth agency in relation to hundreds of inappropriate videos posted on YouTube and a variety of other internet sites. The videos contained material which arguably instructed and incited people to commit arson as well as a number of defamatory allegations regarding agency staff. The videos were ultimately removed after action was taken by AGS to notify the site operators of the nature of the content hosted on their site.
- providing advice to numerous agencies on Creative Commons licensing models and open access to public sector information.
Our team included Tony Beal, Rachel Chua, Justin Davidson, Peter Lahy, Virginia Masters, Andrew Schatz and Adrian Snooks.
As many of the issues overlap, networking and information exchange within AGS ensures that all bases are covered when advising on this emerging legal area. During 2010-11, AGS lawyers shared knowledge and experience relating to Gov 2.0 through our Media and Communications Network's intranet site and internal presentations.
We also aim to lead the way in sharing information about legal issues around Gov 2.0 with our clients. We ran a Media and Communications Forum for clients in July 2010 on the theme of Gov 2.0. Several AGS lawyers presented, along with key representatives from the Department of Finance and Deregulation, the Australian Broadcasting Corporation, the Australian Competition and Consumer Commission, the Australian Communications and Media Authority, Office of the Australian Information Commissioner and AGD. An HR practitioners' forum was presented in Melbourne on the topic of harassment and discrimination via Web 2.0 technologies.
Gov 2.0 issues were also canvassed as part of AGS's Intellectual Property Forum held in November 2011. Speakers included those from AGD and the Australian Government Information Management Office who spoke on Web 2.0 IP issues and Creative Commons licensing. The Forum was also the first occasion on which AGS actively promoted real-time feedback via Twitter.
This is an extract from the 2010–11 AGS annual report