Social Media - the legal risks and how to overcome them, presented at Australian Institute of Management 8 August 2012.

1. Social Media – The legal risks and
how to overcome them
Jamie White

2. Welcome
• What is Social Media?
• The laws impacting upon Social Media
• Case Studies
• Useful tips
• Summary

4. What is Social Media?
• In general terms, involves the communication of published
matter among users of a particular media service or
„portal‟.
• Social media also includes other forums, which facilitate
communication, dialogue and interactive engagement of
members.

5. Popular forms of Social
Media
Facebook YouTube Twitter
social networking online video sharing online micro-blogging
service service service
900 million users 490 million users 250 million users
LinkedIn Pinterest
business-oriented virtual pin board
social networking service
service 12 million users
175 million users

6. Social Media – the positives and
negatives
Upside of Social Media Downside of Social Media
• New way to interact with • Mass audience
customers • News travels quickly
• Mass audience • Potential for damage to
• Instant publication brand
• News travels quickly • Legal liability
• Improve branding • Takes on persona of
author

7. Relevant Laws
Laws that often come in to play relate to:
• Defamation
• Trade practices
• Employment
• Copyright
• Trade marks
• Privacy

8. Defamation
What is defamation?
A cause of action, which involves
publication of material that unfairly
attributes the reputation of another.

9. Defamation
How to establish defamation?
• Someone must have made a defamatory statement;
• The statement must have identified the person claiming
defamation; and
• The statement must have been published.

10. Defamation
Can a business be defamed?
• Must have less than ten employees or be a non-profit
organisation.
• If ten or more employees, the tort of injurious falsehood will be the
relevant cause of action.
How to establish injurious falsehood?
• The statements made must be false;
• The statements must have been made with malice; and
• The statements must have caused damage.

11. Defamation: Case Studies
• Facebook – Christopher Cross (19 years of age)
• First Australian case to deal with social media.
• Cross posted false and malicious material about a police officer.
• Pleaded guilty to criminal defamation charges.
• Second person in S.A. to be convicted of this charge.
• Cross – “didn‟t realise you could get in trouble for things on the
internet”.
• Twitter– Marieke Hardy (TV personality)
• Hardy wrongly identified Meggitt as being author of “hate blog”.
• Hardy, via Twitter, named and shamed Meggitt.
• Meggitt sued Hardy for defamation.
• Confidential settlement was reached between Hardy and Meggitt.
• Meggitt is suing Twitter for defamation (as publisher) - first time under
Australian law.

12. Trade Practices
Competition and Consumer Act 2010 (formerly the Trade
Practices Act 1974)
• Objective - to enhance the welfare of Australians through
the promotion of competition and fair-trading and
provision for consumer protection.
• Most common provision relate to misleading and
deceptive conduct.

13. Trade Practices: Case Study
NEWSFLASH!
• Facebook – Smirnoff
• Re third party comments left on Facebook page
• Complaint made to the Advertising Standards Board (ASB)
• Re „fan‟-generated obscenity, racism, sexism and depictions of
irresponsible drinking
• Smirnoff has obligation to police the activity of „fans‟ on its Facebook
page
• Cited ACCC v Allergy Pathways (2011) – ASB is capable of holding
Smirnoff liable
• Smirnoff – Facebook page is a networking tool, rather than a
medium for advertising
• ASB – A company‟s Facebook page is a marketing tool if used “to
draw the attention of a segment of the public to a product in a
manner calculated to promote or oppose the product.”

14. Trade Practices: Case Study
• Implications of this case:
• Using social media for promotion of products means legal scrutiny,
particularly relating to:
• advertising and marketing standards; and
• misleading and deceptive conduct.
• Owner of Facebook page is responsible for ALL content posted.

15. Trade Practices: Case Study
Facebook and Twitter – Allergy Pathway Pty Ltd (AP)
• 2009 – ACCC brought a successful action against AP re
false product testimonials.
• In addition to other undertakings, AP undertook to not
make false representations for a period of three years.
• 2010 – AP breached undertakings.
• AP and Director in contempt of court.
• Key issue: whether AP could be held responsible for posts
made by third parties on AP‟s Twitter pages and
Facebook wall?
• Court held: YES – AP knew that persons had published
the false testimonials and did not take steps to remove
them.
• Consequence: Company and sole director fined $7,500

16. Employment
• Social media sites are gradually blurring the line between
employees‟ private lives and their employment.
• Employers are realising that the workplace extends far
beyond the office or physical workplace.
• There is increasing concern about the ability to control
what employees post on social media websites and the
impact of this on their business reputation and employee
relationships.
• Employers beware – recent decisions by Fair Work
Australia acknowledge that there may be a connection
between employment and an employee‟s social media
activities. However, certain requirements must be met
before termination is considered justifiable (policies,

17. Employment: Case Studies
Facebook – Damien O‟Keefe
• Rant against his employer – via his own computer on his day off.
• Employment terminated (The Good Guys).
• Action for unfair dismissal – unsuccessful.
• Employer had policies in place.
Twitter – Catherine Deveny
• Journalist for „The Age‟ Newspaper.
• Distasteful tweets at Logies re Bindy Irwin.
• Termination of employment.
• Ms Deveny - “Just like passing notes in class”.
Excessive use of social media – Richard O‟Connor
• 3000 „chats‟ online via Gmail „Chat‟.
• Termination of employment.
• Unfair dismissal claim.
• Employer failed to follow FWA directions.
• Commissioner – “...excessive use of social media could result in
termination”.

18. Trade Marks
What is a trade mark?
• Letter, word, name, signature, numeral, device, brand,
heading, label, ticket, aspect of packaging, shape, colour,
sound or scent, or any combination of these.
• A trade mark is used to distinguish the goods or services
of one trader from those of other traders.

19. Trade Marks
What is trade mark infringement?
• Trade mark infringement occurs where a person, without
the consent of the owner, uses a trade mark that is the
same (or similar to) that registered trade mark in relation
to similar goods or services.
• Examples of trade mark infringement

20. Copyright
What is copyright?
• Copyright protects the form of expression of ideas, but not
the ideas themselves.
• Copyright protects original artistic, literary, musical and
dramatic works.
• Copyright often relates to books, website copy, proposals,
manuals, photographs, illustrations and sound recordings.

21. Copyright
What is copyright infringement?
• Copyright infringement takes place where a person,
without the authorisation of a copyright owner, does any
of the following acts with respect to a substantial part of
an original work:
• reproduces a work in material form;
• publishes a work;
• performs a work in public;
• communicates a work in public; or
• makes an adaptation of a work.

22. Copyright
What is a substantial part?
• Quality, rather than quantity.
• Court cases provide guidance here.
• No „10%‟ rule – Myth!
• What is an insubstantial part?
• 'Help-Help-Driver-in-Danger-Call-Police-Ph.000‟ (the „Help
Phrase‟).
• Court held: The Help Phrase is “no more than a simple instruction”.
• Consequence: No copyright in the Help Phrase.

23. What about copyright in a „tweet‟?
• Does a 140-character message amount to an “original
literary work”?
• Not likely – too insubstantial to attract copyright protection.
• What about a Twitter „feed‟?
• Perhaps.
• In any case, pursuant to Twitter‟s Terms of Service:
• A „Tweeter‟ issues Twitter with a licence to use content, including
the right to sub-licence; and
• Twitter issues a sub-licence for other people to retweet the original
message.

24. Privacy
• No right to privacy in Australia.
• The Privacy Act 1988 (Cth) (the Act)
• The Act applies to businesses with annual turnover exceeding
$3,000,000.
• Under the Act, “personal information” means information or opinion
(whether true or not), about an individual, whose identity is
apparent, or can be reasonably ascertained, from the information or
opinion.

25. Privacy
• National Privacy Principles (contained in the Act) regulate
matters such as:
• the collection of personal information;
• the use and disclosure of personal information;
• data quality and security;
• openness, access and correction;
• trans-border data flow.

27. Taking action against third parties
Three main ways to take action:
1. Directly via prescribed channels.
2. Use of „cease and desist‟ letters.
3. Via court action.

28. Prescribed Channels
Facebook
• Action – file a notice of intellectual property infringement
with Facebook.
• Possible outcomes:
• Prompt removal or disabling of access to infringing content; and/or
• Termination of the accounts of repeat infringers.

29. Prescribed Channels
YouTube
• Action – file an official copyright infringement notification
with YouTube.
• Possible outcome:
• Claimant information will be published on YouTube website in place
of disabled content.
• Publisher has an opportunity to file a „Counter-notification‟.

30. Prescribed Channels
Pinterest
Re copyright:
• Action – file a DMCA Notice of Alleged Infringement with
Pinterest‟s Designated Copyright Agent.
• Possible outcomes:
• Pinterest will take whatever action, in its sole discretion, it deems
appropriate, including removal of the challenged material from the
website.
• Publisher has an opportunity to file a „Counter-Notice‟.

31. Prescribed Channels
Pinterest
Re trade marks:
• Action – notify Pinterest of infringement via the Trademark
Complaint Form.
• Possible outcomes:
• Accounts with usernames, Pin Board names, or any other content
that misleads others or violates another‟s trademark may be
updated, transferred or permanently suspended.
• If infringement takes place on the Pinterest website, Pinterest will
review your submission and take whatever action, in its sole
discretion, it deems appropriate, including temporary or permanent
removal of the trademark from the Pinterest website.

32. Caution regarding false claims
False claims re copyright or trade mark
infringement may amount to a „groundless
threat‟:
• a declaration re no grounds for making the
threat;
• an injunction re further threats; and/or
• an action against you for „damages‟.

33. Pinterest: Hot Issue
• By providing the platform (the
Pinterest website), is Pinterest
authorising copyright infringement?
• In 2005, the court held in two separate
cases that the providers of websites
and software, which assisted copyright
infringement to take place, will amount
to authorisation of copyright
infringement.
• Parallels?

34. „Cease and Desist‟ Letters
• Place the infringing party on notice.
• Cause them to „cease and desist‟ infringing conduct
(demand compliance).
• Serve as evidence to a dispute.

35. Court Action
• Seek remedies from a court.
• Court action should be used as a last resort (expensive,
stressful and disruptive to business).

36. Reducing Legal Risk
• Social Media Terms.
• Social media training (education).
• Social Media Policies.

37. Reducing Legal Risk
Social Media Terms
• A document to manage legal risks and liabilities
associated with your social media pages.
• It sets out terms and conditions upon which a person
must observe and comply when:
• posting content on your social media pages;
• engaging in discussions on your social media pages;
• interacting with others on your social media pages; and
• if applicable, purchasing goods or services via your social media
pages.
• Displayed via a prominent link on your website.

38. Reducing Legal Risk
Social Media Training
• Train employees to ensure they understand how to
engage safely and within the company‟s guidelines and
strategy.
• Failure to train employees may expose your company to
risks, including damage to brand and/or reputation and
employment disputes.
• Train key people within your organisation to pass on
information to others or train all employees.

39. Reducing Legal Risk
Social Media Policies
• Social media can be addictive, time consuming and
sometimes, a drain on employer resources.
• An effective Social Media Policy will:
• manage use of social media by employees;
• increase the productivity of employees;
• reduce the risk of damage to the reputation of a business;
• reduce the risk of wasted resources due to excessive use of social
media;
• define acceptable and prohibited use of social media in work and
personal situations;
• set out consequences for breach (i.e. possible termination); and
• above all, reflect your company‟s view on employee use of social
media.

40. The „Social Media‟ Olympics
• Via Facebook, posted
this photograph of
them in a Californian
shooting range.
• Australian Olympic
Committee (AOC)
imposed sanctions.
• Self-imposed social
media ban.

41. • Via Twitter, teenage girl abused
Seebohm re her post-race conduct.
• Abusive debate via Twitter ensued
(Seebohm‟s brother and fans defended
her).
• Seehbom cited social media as being a
distraction to her performance.
• Seebohm‟s Personal Coach - “I‟d like to
throw some of those phones away”.
• Australian Team Coach - wished his
swimmers would “leave alone” social
media during competition.

42. Swimming Australia Social Media,
Blogging and Internet Guidelines
• Vague and general – as expected.
• Swimming Australia empowered to:
• issue „Take Down‟ Notices;
• impose other sanctions; and/or
• take legal action for damages.
• Note: Swimming Australia/ AOC‟s decision to not ban use
of social media during competition period.
• Revised Guidelines for 2016?

43. Legal Tips
1. Monitor the marketplace.
2. Have policies and training in place.
3. Protect your brands via trade mark registration.
4. Have enforcement strategies in place.
5. Pick your fights.
6. Get specialist advice.

44. Summary/ Conclusion
• Laws of the paper-based world also apply online.
• Mitigate legal risk when engaging in social media.
• Seek specialist advice.
Disclaimer
Whilst best efforts have been made to ensure the accuracy of the information presented in these
slides, they serve as a general guide only. You must seek your own independent legal advice, specific
to your circumstances.
Copyright
All material in this presentation is subject to Australian copyright laws.

45. Question time
• Questions?
Thank you for your attendance at today’s presentation
‘Social Media – the legal risks
and how to overcome them’.