Social Media – The legal risks and how to overcome them

Jamie White

Welcome• What is Social Media?

• The laws impacting upon Social Media

• Case Studies

• Useful tips

• Summary

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.

Facebooksocial networking

service 900 million users

YouTubeonline video

sharing service490 million users

Pinterestvirtual pin board

service 12 million users

Twitteronline micro-

blogging service 250 million users

LinkedInbusiness-oriented social networking

service 175 million users

Popular forms of Social Media

Social Media – the positives and negatives

Upside of Social Media

• New way to interact with customers• Mass audience• Instant publication• News travels quickly• Improve branding

Downside of Social Media

• Mass audience• News travels quickly• Potential for damage to brand• Legal liability• Takes on persona of author

Relevant LawsLaws that often come in to play relate to:

• Defamation• Trade practices• Employment• Copyright• Trade marks• Privacy

DefamationWhat is defamation?

A cause of action, which involves publication of material that unfairly attributes the reputation of another.

DefamationHow 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.

DefamationCan 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.

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.

Trade PracticesCompetition 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.

Trade Practices: Case StudyNEWSFLASH!• 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.”• ASB reviewed Smirnoff’s Facebook page and gave it the “all clear”

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.

Trade Practices: Case StudyFacebook 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 each, plus court costs and order for corrective advertising.

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, warnings, etc).

Employment: Case StudiesFacebook – 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”.

Trade MarksWhat 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.

Trade MarksWhat 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

CopyrightWhat 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.

CopyrightWhat 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.

CopyrightWhat 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.

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.

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.

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.

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.

Prescribed ChannelsFacebook• 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.

Prescribed ChannelsYouTube• 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’.

Prescribed ChannelsPinterestRe 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’.

Prescribed ChannelsPinterestRe 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.

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’.

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?

‘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.

Court Action• Seek remedies from a court.

• Court action should be used as a last resort (expensive, stressful and disruptive to business).

Reducing Legal Risk• Social Media Terms.

• Social media training (education).

• Social Media Policies.

Reducing Legal RiskSocial 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.

Reducing Legal RiskSocial 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.

Reducing Legal RiskSocial 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.

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.

• 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.

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?

Legal Tips1. 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.

Summary/ Conclusion• Laws of the paper-based world also apply online.

• Mitigate legal risk when engaging in social media.

• Seek specialist advice.

DisclaimerWhilst 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.

CopyrightAll material in this presentation is subject to Australian copyright laws.

Question time• Questions?

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‘Social Media – the legal risks and how to overcome them’.