The Practitioner's Guide to SOcial Media and the Law

The Practitioner’s Guide to Social Media and the Law COMMUNICATIONS, ENTERTAINMENT AND TECHNOLOGY LAW COMMITTEE

THEPRACTITIONER’SGUIDE TO SOCIALMEDIA ANDTHE LAW

NSW YOUNG LAWYERS COMMUNICATIONS, ENTERTAINMENT AND TECHNOLOGY LAW COMMITTEE

THE PRACTITIONER’S GUIDE TO SOCIAL MEDIA AND THE LAW NSW Young Lawyers Communications, Entertainment and Technology Law Committee Published by: NSW Young Lawyers

170 Phillip Street Sydney NSW 2000 DX 362 Sydney

T: 9926 0270 F: 9926 0282 E: ylgeneral@younglawyers.com.au younglawyers.com.au

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted or implied by the authors or the Law Society of New South Wales (NSW Young Lawyers) and any liability is hereby expressly disclaimed.

©2018 The Law Society of New South Wales (NSW Young Lawyers), ACN 000 000 699, ABN 98 696 304 966.

Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales (NSW Young Lawyers).

Cover image by istockphoto.com.

CONTENTS FOREWORD ABOUT THIS GUIDE ACKNOWLEDGEMENTS CHAPTER 1 LITIGATING WITH SOCIAL MEDIA

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CHAPTER 2 SELLING WITH SOCIAL MEDIA

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QUICK GUIDE TO SOCIAL MEDIA ESTATE PLANNING INFOGRAPHIC

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CHAPTER 3 PUBLISHING ON SOCIAL MEDIA

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CHAPTER 4 SOCIAL MEDIA IN THE WORKPLACE

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CHAPTER 5 CRIMINAL OFFENCES THROUGH SOCIAL MEDIA

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FOREWORD In an era when the President of the United States chooses Twitter as his preferred mode of communication with the public, and the great majority of Australians own at least one smartphone, tablet, laptop or similar device, the significance of social media cannot be underestimated. The NSW Young Lawyers Communications, Entertainment and Technology Law Committee has prepared a useful and practical guide to the uses and pitfalls of social media. The legal issues covered include uses of social media as evidence in litigation and employment frameworks, as well as a guide to copyright infringement, defamation, misleading and deceptive conduct and crime in a social media context. Whether you are advising clients on advertising through social media, or setting appropriate social media guidelines in the workplace, or seeking to rely on social media in court rather than more traditional forms of communication, this Guide provides an excellent starting point. Justine M Beaumont Barrister Nigel Bowen Chambers, Sydney

ABOUT THIS GUIDE

This Guide is a project of the NSW Young Lawyers Communications, Entertainment and Technology Law Committee. It is aimed at all lawyers learning about the intricacies and challenges of practising law in New South Wales in the digital age and social media era. The term social media covers various forms of electronic communication which allows users to generate content, create communities and exchange information, ideas and messages online. This Guide will provide a summary on the use of social media when litigating, advertising, publishing, in the workplace and any associated criminal and privacy issues. This Guide is designed as an overview for legal practitioners and to provide information only and not to provide legal advice. This publication is not a textbook, nor a comprehensive guide on any particular topic, but should be used as a good starting point when considering issues raised by practical aspects of everyday legal practice and by social media use. This Guide’s summary of the law is current as at March 2018. The practice and procedure of any court referred to in the Guide is also current as at March 2018. Courts undertake significant procedural changes on a regular basis. Accordingly, while accurate at the time of writing, further changes are likely. An electronic version of the Guide is available on the NSW Young Lawyers website. We hope that you will find this Guide useful. Eva Yi Lu Managing Editor

ACKNOWLEDGEMENTS The Communications, Entertainment and Technology Law Committee (CET Committee) is a volunteer group operating under the umbrella of NSW Young Lawyers, which is the State’s largest body of newly practising lawyers and law students and exists under the auspices of the Law Society of New South Wales. The CET Committee was established to give young lawyers and students who are interested in or practising in communications, entertainment and technology law a forum to share their views and news. The CET Committee is comprised of law students and practitioners under the age of 36 or within their first five years of practice. Members of the CET Committee include law students, lawyers from small to large practice, in-house legal counsel from telecommunications, media, entertainment and technology companies. The CET Committee would like to extend its deepest gratitude to the following people and organisations who graciously donated their time, effort and resources to create this publication: • Justine Beaumont, Barrister-at-Law • Managing Editor: Eva Yi Lu • Publication Officers: Steven Mulhall, Adam Zwi • Contributors: Alice Beasley, Karina Chong, Arooshi Gauba, Madeleine Hunt, Christopher Khalil, Eva Yi Lu, Steven Mulhall, Caitlin Rees, Belyndy Rowe, Stefani Russo, Amelia van der Rijt • Reviewers: Erin Kidd, Ella Howard, Jessica Norgard, James Reid, Dani Slim, Wai Kaey Soon • CET Committee Executives • NSW Young Lawyers • Current and previous NSW Young Lawyers CET Committee members We welcome new members. If you are interested in joining the CET Committee or have any questions, please contact us at cet.chair@younglawyers.com.au. We also invite you to follow us on Facebook and LinkedIn . Richard Prangell & Jessica Norgard Immediate Past and Current Chair of NSW Young Lawyers Communications, Entertainment and Technology Law Committee

CHAPTER 1 LITIGATING WITH SOCIAL MEDIA ALICE BEASLEY, AROOSHI GAUBA AND CAITLIN REES

This chapter is designed to provide guidance to practitioners who wish to use social media as evidence or as a method of service in litigation. Introduction Social media has allowed individuals to disseminate information both instantly and to a worldwide audience with unprecedented ease. Increased use means social media can be an effective tool when running or defending proceedings as courts are now more willing to accept social media content as evidence and social media accounts as a method of substituted service. Social media as evidence Documents, such as screenshot printouts of social media pages containing information, may be tendered as evidence in court proceedings. The tender of such

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evidence is governed by the rules of the court and the relevant Evidence Act at state 1 or federal 2 level. The definition of ‘document’ is not restricted to hard copy documents with writing or marks but can include anything from which sounds, images or writing can be reproduced with or without the aid of anything else 3 as well as any copy of the document or part of the document. 4 The first step to tendering such a document is to prove ownership of the social media account or identity of a user. This can be difficult in instances where users use fake profiles or hide behind anonymity to post, comment or send messages. Methods of verifying identity include use of ‘WHOIS’ searches for domain name registrations, IP addresses allocated by internet services providers or analysing metadata. This often requires assistance from expert forensic computer specialists. While courts regularly accept evidence in electronic format, if the evidence is not a simple screenshot, an expert computer specialist may also need to explain the process by which the evidence was obtained, and if necessary, convert any digital data into a format that can be printed and tendered. While social media evidence tendered is not prima facie admissible, it can become admissible. Familiarity with the rules of evidence allows practitioners to render evidence from a social media platform admissible by a variety of methods. The appropriateness of each method depends on the purpose for which the evidence will be used. Some example of methods for adducing social media evidence are listed below: 1. Through an affidavit, that is, printing out a screenshot of a social media page, and having a person depose as to how they obtained that screenshot and whether they wrote or received or viewed the relevant post; 2. By serving a notice to produce, issuing a subpoena to a person for certain records or posts they have made or received on a social media platform or obtaining an order for discovery; 3. By issuing a subpoena for the records of a social media platform, and having an expert in computer programming or website archival storage explain how records are made and kept and whether they are an accurate depiction of what may have been posted; 4. By tendering the record of a social media post in cross-examination of a witness 5

1 Evidence Act 1995 (NSW) (‘ Evidence Act ’). 2 Evidence Act 1995 (Cth). 3 Evidence Act Dictionary pt 1 (definition of ‘document’). 4 Ibid Dictionary pt 2 cl 8. 5 Frost v Kourouch e [2014] NSWCA 39.

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who has given evidence inconsistent with a post in an attempt to undermine their credibility; and 5. Social media can also be useful as a basis for other investigations, for example, an address on a social media page that purports to be a particular person’s “page” can be useful in finding an address for service of that person. The Evidence Act places some restrictions on what evidence can be admitted. The evidence: 1. Must be relevant; 6 and 2. Must not be used for a hearsay purpose unless it falls within one of the exceptions within the Evidence Act. 7 A document that is created and purports to be a record of a social media page may not be prima facie admissible because it is generally considered hearsay. The hearsay rule under section 59 of the Evidence Act states that “evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.” 8 To overcome the hearsay objections to admissibility, an exception to the rule must be established. Exceptions relevant to social media use include: 1. Evidence of a previous representation by a person who has been or is to be called to give evidence; 9 2. Evidence that is a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind 10 such as excited utterances and mental, emotional or physical conditions. This is particularly relevant due to the immediacy and increasingly real-time nature of social media content; 3. Representation in a business record kept in the ordinary course of business, 11 if the representation is based on “personal knowledge of the asserted fact”; 12 4. Electronic communications, 13 such as personal or direct messages on social media platform; and 5. Evidence of an admission or evidence in relation to and necessary to understand 6 Evidence Act ss 55-56. Note that this chapter will not further discuss the issue of relevance as it is not unique to social media – however it remains an important factor. 7 Ibid ss 59-75. 8 Ibid s 59(1). 9 Ibid s 64(3) (civil proceedings); s 66(2) (criminal proceedings) - although in criminal proceedings, the asserted fact must be “fresh in the memory” of the maker of the representation. 10 Ibid s 66A. 11 Roach v Page (No 27) [2003] NSWSC 1046 [9]. 12 Evidence Act s 69. 13 Ibid s 71.

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an admission, 14 provided the admission is first-hand or in a document in which an admission is made as opposed to by another person. 15 Practitioners should always keep the rules of evidence in mind when seeking to rely on social media content as evidence. Social media as a method of service Social media platforms are readily available, and many people engage with social media several times a day, making it, at times, an effective way to bring information or documents to a person’s attention. The Uniform Civil Procedure Rules 2005 ( NSW), along with the rules which apply to the various NSW and Federal Courts generally require personal service of an originating process or application. 16 Where personal service is required the documents must be left with the person, or by putting the documents down in the person’s presence and advising of the nature of the documents. 17 However, situations arise where personal service cannot be effected. In these circumstances, where it is not practical or possible to effect personal service, it may be appropriate to seek a court order for substituted service 18 via a social media or online account. Before making an application for substituted service, consider which social media accounts are available for service and whether these particular accounts are likely to bring the documents to the attention of the person being served, such as evidence that the social media account is in fact owned by the individual and the individual has recently accessed the account. Australian cases in which orders have been made for substituted service by social media have involved the use of Facebook and LinkedIn accounts, email and via SMS text message. A number of decisions provide guidance for a successful application, including the following factors: 1. There must be a sufficient link between the online account and the person being served, otherwise service via an online method will not be sufficient. Details which may be important for proving this link include the name, date of birth,

14 Ibid s 81. 15 Ibid s 82. 16 Uniform Civil Procedure Rules 2005 (NSW) r 10.20.

17 Ibid r 10.21. 18 Ibid r 10.14.

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contact details, photos, friends or connections list, and workplace details listed on the social media account. Comparing these details on a social media page to those of the person being served will assist in proving that the account is that of the person. Providing evidence that the person continues to access the account on a regular basis to demonstrate the method of service 19 would be effective, will also be essential to show that this method is likely to bring the documents to their attention. 20 2. Consider serving more than one online account. Substituted service needs to bring the documents to the attention of the person, just as personal service would. If more than one online account is identifiable, consider service of multiple accounts or also sending a notification by email or text message so as to satisfy the court that the documents will be brought to the person’s attention in a timely manner. When sending an email, request a return receipt so the court can be advised whether the email was successfully delivered and read. 21 3. Substituted service, in particular by these methods, will only be an option after personal service has been attempted and failed. Usually numerous attempts are required. 22 Practitioners should remain aware that even if a final judgment ensues as a result of non-response from the defendant, there may be issues with enforcing the judgment including that the defendant may move to set aside the judgment on the ground that service was ineffective to bring the documents to the defendant’s attention. Practitioner’s professional obligations Practitioners should also bear in mind their obligations to ensure that their own use of social media is responsible and does not have a negative impact on proceedings, their reputation or the reputation of the company they are working for. Practitioners may be tempted to post something on social media about current proceedings they are working on, particularly when the proceedings are high-profile, of public significance, or even if they just had a good day in court. However, rule 28 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) provides: A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the

19 Penna v Lanza [2014] FCCA 278. 20 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268; MKM Capital Pty Ltd v Corbo & Poyser (ACTSC, 16 December 2008, unreported). 21 Royal Society for the Prevention of Cruelty to Animals in New South Wales v Mal Davies [2011] NSWSC 1445. 22 MKM Capital Pty Ltd v Corbo & Poyser (ACTSC, 16 December 2008, unreported).

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administration of justice. 23 Similarly, a barrister must not publish or take any step towards the publication of any material concerning any current proceeding in which the barrister is appearing or any potential proceeding in which a barrister is likely to appear, subject to some exceptions. 24 And it goes without saying that recording devices are not permitted inside the courtroom and mobile phones and other electronic devices must be turned off. On occasion, courts have permitted the use of mobile phones and electronic devices under conditions, provided a request is made to the court in advance and permission is granted. Another important professional obligation is the duty of confidentiality. Practitioners are required to keep client information confidential. 25 It is important to take care not to disclose confidential client information when posting on social media, either personally or using the firm’s account. For example, the NSW Office of the Legal Services Commissioner suggests that: [I]f a lawyer tweets that s/he is in a certain location, s/he may unintentionally disclose that s/he is working with an identifiable client and thereby breach the duty of confidentiality. 26 A further professional obligation that has significance for practitioners using social media is the ‘no contact’ rule. This rule provides that a solicitor generally may not deal directly with another practitioner’s client. 27 This might apply if, for instance, a practitioner tries to ‘friend’ another practitioner’s client in order to view their social media account or send a personal or direct message on social media. Further, a solicitor must not use tactics that go beyond legitimate advocacy, and which are primarily designed to embarrass or frustrate another person. 28 Similar issues might arise if practitioners try to find out information about jurors via their social media accounts. Practitioners should also advise their clients to not engage in such behaviour and to adjust their social media privacy settings or carefully consider who they accept as friends or connections on social media. 23 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 28. (‘ Solicitors’ Conduct Rules’ ). 24 Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 77. See also New South Wales Bar Association , Social Media Guidelines for Barristers (April 2018) . 25 Solicitors’ Conduct Rules r 9. 26 The Office of the Legal Services Commissioner, A Guide on Practice Issues: Social Media (May 2013) . 27 Solicitors’ Conduct Rules r 33. 28 Ibid r 34.1.3.

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Practitioners are increasingly embracing the use of social media when conducting litigation. While social media can be an effective tool, practitioners should continue to be aware of their professional obligations. Practitioners faced with ethical issues or questions about their professional obligations can contact the Law Society’s Ethical Assistance Line 29 or the Bar Association’s Professional Conduct Department. 30

29 The Law Society of New South Wales, Ethics . 30 New South Wales Bar Association, Professional Conduct .

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CHAPTER 2 SELLING WITH SOCIAL MEDIA KARINA CHONG, MADELEINE HUNT AND STEVEN MULHALL

This chapter is designed to be a helpful guide to practitioners when providing advice to their clients who use social media to sell products and services, particularly in the age of fast paced social media advertising. Introduction Businesses are rapidly undergoing digital transformation to follow their consumers online and maintain their relevance. Social media, with the increased use of personalised content and programmatic advertising, is an effective way for businesses to interact with existing consumers and reach and target prospective consumers to promote products and services. The same rules apply to social media as they do to other forms of advertising or dissemination of information via other channels. Care and due diligence should be taken before posting statements or comments on social media, and regard should

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be had to the breadth of the potential audience. The Australian Competition and Consumer Commission ( ACCC ) expects businesses that sell or promote online to ensure the content, including user-generated or third-party content, does not create any misleading impressions or include false claims. 31 False, misleading or deceptive An important consideration for all businesses, or individuals who may be linked to a particular business, is the provisions of the Australian Consumer Law ( ACL ) contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and their effect on social media channels. Section 18(1) of the ACL states that “[a] person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”. Section 29(1) of the ACL prevents any person supplying goods or services from engaging in false or misleading representations, for instance, the goods are of a particular standard, quality, value, grade, composition, style or model or the services are of a particular standard, value or grade. 32 Neither of these sections has a requirement to prove intention to mislead. In determining whether a conduct or representation has been misleading, courts will consider whether an ordinary or reasonable person would have been misled or deceived for section 18 or whether the overall impression left by the representation creates a misleading representation in the consumer’s mind for section 29. These key sections should be front and centre of mind when drafting any statement that will appear on social media, and certainly should be on every practitioner’s mind when reviewing and providing legal advice on any social media statement. The Honourable Justice Beach commented on the nature and effect of social media publications in Champagne v Powell: 33 It may be said of such media that it is transitory and ephemeral. But there are three aspects that support a characterisation of such social media and its intercourse as being more enduring. First, a Tweet may be fleeting, but its effect or influence on a reader may be more enduring as I explain later. Second, although particular communications may be fleeting in real time, nevertheless, there is usually a more permanent record of the communications contained and

31 Australian Competition and Consumer Commission ( ACCC ), Advertising & Selling . 32 Competition and Consumer Act 2010 (Cth) sch 2 s 29(1). 33 Comité Interprofessionnel du Vin de Champagne v Powell [2015] FCA 1110.

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preserved within the type of mode used or elsewhere for anyone to access at a later stage. Third, although the communications may be fleeting in real time, nevertheless the repetition over an extended time frame of similar types of communications may demonstrate a pattern of more enduring and potentially infringing conduct. Such a more enduring pattern may establish a contravention of s 18 even though any one individual communication on a Twitter feed flitting in and out of cyberspace may be more ephemeral. 34 In that case, Ms Powell, a wine educator, event manager and wine consultant, promoted herself under the name “Champagne Jayne” (including on Twitter, Instagram and Facebook). The Comité Interprofessionnel du Vin de Champagne ( CIVC ) represented the interests of growers, producers and merchants of Champagne wines. “Champagne” refers to wines produced only in the Champagne region of France and made in accordance with French laws. Sparkling wine is the appropriate terminology for other sparkling wines made outside the Champagne region. While 90% of Ms Powell’s business was promoting champagne, the remaining 10% was devoted to the promotion of sparkling wines. The CIVC alleged that by the way Ms Powell promoted herself and used the name “Champagne” in connection with promotion of sparkling wine, she had engaged in misleading or deceptive conduct and made false representations in contravention of sections 18 and 29 of the ACL. The Federal Court determined that because Ms Powell’s ‘nom de plume’ was “Champagne Jayne”, discussion of wines that did not fall within the definition of Champagne without a full disclaimer that such wines were not Champagne wines could be characterised as a contravention of section 18. 35 Champagne v Powell showed that even without making a direct representation, social media posts can contravene section 18 by not actively dispelling a misconception. This case is a good example of how the ACL applies in the same way to social media, however “fleeting”, as it does to other forms of advertising and promotion. The ACCC has published advisory guidelines for businesses to reduce the likelihood of contravention of sections 18 and 29 through the use of social media. 36 These guidelines include the recommendations that for the purpose of complying with the ACL, businesses should: 1. Apply ‘house rules’ for social media accounts, that is, implement a social media

34 Ibid [237]-[238]. 35 Ibid. 36 ACCC, Advertising & Promoting Your Business: Social Media .

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policy (consistent with the platform) and ensure all employees who may access the business social media accounts are aware of the rules and abide by them; and 2. Actively monitor social media pages (to the extent possible) and be aware of what is posted. This includes dealing with any misleading and deceptive materials posted by third parties. The ACCC advises that merely replying to misleading and deceptive materials to clarify the actual position may not be sufficient, and that it is better practice to remove any such materials completely. Industry rules for advertising The Australian Association of National Advertisers ( AANA ) develops and publishes codes and practice notes to promote best practice for advertising in any medium. 37 The AANA is an industry body that established the self-regulatory system for advertising and marketing communications and the AANA Code of Ethics ( Code ) is its core self- regulatory code. 38 Advertising or marketing communication is defined in the Code as any material which is published or broadcast using any medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control and that draws the attention of the public in a manner calculated to promote a product or service. Where an endorser receives a benefit or may have an association with the business when posting a testimonial or review, this constitutes advertising and marketing communications, and the testimonial or review must comply with the Code. Benefit may be financial or non-financial, for instance where a business simply gives a free product to the individual, if the business has an influence on what the individual posts about the product on social media, this could amount to control. The Code requires that when promoting a product or service that is paid for or sponsored on social media, an endorser testimonial or review should clearly distinguish and position the material to the relevant audience as advertising. The aim is to allow the public to differentiate between a social media celebrity’s or endorser’s genuine endorsement of a product and an advertisement paid for by an advertiser or marketer business. There is no prescribed wording or format and no absolute requirement to label or hashtag the material as an ‘ad’. In response to a complaint, the Advertising Standards Board ( Board ) ruled that a product review post from an influencer on Instagram was advertising and marketing

37 The Australian Association of National Advertisers ( AANA ), Codes . 38 AANA, Code of Ethics (March 2018) .

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content, even though the post did not mark itself as an advertisement. The Board decided that receiving free products “amounts to a business transaction and therefore can be considered a form of payment” 39 to constitute advertising. However, the Board dismissed the complaint as the relevant audience would have been aware the post was sponsored and therefore was clearly distinguishable as advertising material. While the Code is not a legislative instrument, the Board can receive complaints made against a breach of the Code. The Board does not have any enforcement powers, however a negative finding can have a significant effect not only on the reputation of the endorser but also on the business. The Code places the responsibility to disclose the sponsorship on the business if it has a reasonable degree of control over the endorser and to use that control to ensure that endorsers comply with the Code when promoting the product or service. Further, the non-disclosure of an endorsement on social media may have the potential to lead to a finding of misleading and deceptive conduct or false and misleading representations under the ACL where the party endorsing the product or service receives a payment. Third party posts Social media has become a way for businesses to interact directly with their consumers and for consumers to leave reviews or testimonials of products or services. However, care must be taken when posting or encouraging consumers to post testimonials on social media platforms. Businesses may be held liable for comments posted by third parties, such as consumers or fans of the product or service, on the business’ social media pages despite not directly commissioning them. A third party post may be found to constitute false or misleading representations under section 29 of ACL if the post concerns, or is in the form of, a testimonial or review in relation to products or services. Businesses should carefully monitor their social media pages and, in particular, any posts containing consumer reviews and testimonials. Businesses should ensure that testimonials posted are accurate, genuinely reflect the consumer’s opinion or experience with the product or service and are able to be verified so as to not give rise to false representations or mislead or deceive other consumers. This is in line with the Allergy Pathway 40 decision, which made clear that businesses must remove any testimonials or posts that may be false, misleading or deceptive as soon as the posts come to their attention.

39 Advertising Standards Board v Eco Tan [2017] (0360/17) (23 August 2017). 40 ACCC v Allergy Pathway (No 2) [2011] FCA 74.

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In 2011, the ACCC commenced an action in the Federal Court against Allergy Pathway, alleging it had made a number of statements in contravention of consumer provisions of the time contained in the Trade Practices Act 1974 (Cth) ( TPA ). Allergy Pathway provided an undertaking to the Federal Court that it would refrain from publishing statements regarding its capabilities to test and detect certain allergies. The ACCC then alleged that Allergy Pathway breached this undertaking on 35 separate occasions and was in contempt of court. Many of the 35 occasions involved the posts of third parties on Allergy Pathway’s Facebook or Twitter page. The ACCC contended that once Allergy Pathway was aware that statements which breached the undertaking had been placed on its social media page, and did not remove them, it was liable for contempt. It was undisputed that Allergy Pathway was aware of the posts and did not remove them. The Federal Court held that it was “appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of the publications and decided not to remove them. Hence it became the publisher of the testimonials”. 41 When a business discovers that a potentially inappropriate post has been made by a third party on their social media page, they will also have to comply with the relevant terms of use of the social media platform regarding the removal of posts. This may involve reporting posts to the social media platform rather than deleting them directly. 42 It would be prudent for businesses to keep a record of all the steps they have taken to monitor, delete and respond to any inappropriate third party posts on their social media. The ACL also restricts businesses from manipulating third party content in a way that could be misleading, 43 such as by deleting bad reviews or manipulating when reviews are published. It is important for businesses to ensure that appropriate moderation does not become inappropriate censorship. Caution should also be taken in responding to, or correcting, testimonial posts as the business’ response may not be enough to alleviate the false representations made by the original testimonial and further, the response itself may be misleading or provide false or incorrect information. The ACCC commenced action against Meriton Property Services Pty Ltd ( Meriton ) for masking or withholding email addresses from TripAdvisor of guests who had stayed at a Meriton property during periods of major service disruption, such as no hot water or a

41 Ibid [33]. 42 See, eg, Facebook, Terms of Service ; Instagram, Terms of Use (19 April 2018) ; LinkedIn, User Agreement (8 May 2018) ; Twitter, Twitter Terms of Service ; Google, Google Terms of Service (25 October 2017) ; YouTube, Terms of Service . 43 ACCC, Advertising & Promoting Your Business: Managing Online Reviews .

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lift not working. In 2017, the Federal Court found that from November 2014 to October 2015, Meriton engaged in misleading or deceptive conduct by taking steps to prevent guests it suspected would give an unfavourable review from receiving TripAdvisor’s ‘Review Express’ prompt email. The Federal Court found that the impugned practices created a more positive or favourable impression of the quality or amenity of the Meriton properties on the TripAdvisor website and consumers relying on those more positive reviews would likely be led into error, as such there is a sufficient causal nexus between Meriton’s conduct and such error. 44 The ACCC stated that this decision sends a strong message that businesses must not undermine the integrity of third party review processes in order to mislead or deceive consumers, as this conduct risks breaching the ACL. 45 The owner of a business’ social media account has ultimate responsibility to ensure that it is not in breach of the ACL. The ACCC guidelines referred to above indicate that the level of monitoring expected by the ACCC depends on factors including size of the company, its resources and the number of subscribers to the page. 46 For example, according to the ACCC, a company with 300 staff would typically be expected to remove false, misleading or deceptive posts from its social media page soon after they are posted. These larger companies may also be expected to monitor the pages outside of normal business hours to reflect the fact that consumers are able to access social media 24 hours a day, seven days a week. Conversely, a company with only a handful of staff and a small social media following would not be expected to monitor its page as frequently. While these guidelines provide useful guidance from the ACCC, they are not necessarily indicative of how the courts would determine liability and do not consider how this behaviour interacts with other aspects of the law, for example, defamation. Ownership of accounts in determining liability It is not only the business’ official social media pages that will be scrutinised, liability can also extend to social media accounts owned or controlled by key individuals within the business. In Madden v Seafolly 47 the owner of swimwear business White Sands, Leah Madden, publicly implied that Seafolly, a large competitor, had copied her swimwear designs. She made these allegations (which included side by side photographs of White Sands and Seafolly’s swimwear with the title “the most sincere form of flattery?”) in posts on her personal Facebook page and on her business Facebook page for White Sands. The Full Court of the Federal Court upheld the trial judge’s decision that Madden’s

44 ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305. 45 ACCC, ‘Court Finds Meriton Misled and Deceived Consumers on TripAdvisor’ (Media Release, MR 202/17, 10 November 2017) . 46 ACCC, above n 31, 12. 47 [2014] FCAFC 30.

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actions contravened sections 52 and 53(a) of the TPA (now sections 18 and 29 of the ACL). A central issue in the case was whether the “personal” posts were made “in trade and commerce”; a requirement to prove conduct is misleading and deceptive. The Full Court considered a number of factors and found that the statements had been in trade or commerce, as Madden was the principal of White Sands and her statements alleged that Seafolly had engaged in conduct which was improper and to the detriment of her own business. She thereby sought to influence the attitudes of consumers and potential consumers of Seafolly. Furthermore, it was relevant that a substantial number of people who commented on Madden’s personal Facebook page were in the fashion industry, and Madden posted comments on her personal site using both her own name and the name “White Sands Swimwear Australia”. 48 Penalties for breach of the ACL Civil penalties and criminal sanctions do not apply to contraventions of section 18 of the ACL due to its extensively broad scope (although there may be awards of damages). However, section 29 of the ACL allows the court to impose a pecuniary penalty of $1.1 million per contravention or for individuals, $220,000 per contravention 49 . In the decision of ACCC v Reckitt Benckiser (Australia) Pty Ltd , 50 the Full Court of the Federal Court upheld an appeal by the ACCC against the penalty imposed on Reckitt Benckiser (Australia) Pty Ltd ( Reckitt Benckiser ) for contravening the ACL. The Full Court of the Federal Court ordered Reckitt Benckiser pay a revised penalty of $6 million for making misleading representations about its Nurofen Specific Pain products on its packaging and its website that its products were each formulated to treat a specific type of pain, when the products were in fact identical. The ACCC successfully appealed against the initial penalty arguing that $1.7 million was not a large enough deterrent to the business. While this case was not exclusively relating to conduct on social media, it demonstrates the reach, level of penalties and enforcement powers of the ACCC when it comes to enforcing the ACL. In addition, while social media is a useful and effective tool for advertisers to bring products and services to its target audience, the immediacy and widespread use of social media means reputational damage to businesses can also be instant and extensive. Practitioners should take the time to ensure advertising on social media is appropriate and compliant with the law.

48 Ibid [97]-[98]. 49 Note that a Bill has been introduced into Parliament to strengthen penalties under the ACL. 50 [2016] FCAFC 181.

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THE PRACTITIONER’S GUIDE TO SOCIAL MEDIA AND THE LAW

QUICK GUIDE TO SOCIAL MEDIA ESTATE PLANNING Proliferation of the digital age means a vast amount of digital assets and accounts have emerged. In conducting estate planning, users should consider broadening the scope to social media assets and accounts. Users should keep an up to date and secure list of their usernames and passwords, an inventory of their digital assets and include detailed instructions in their enduring power of attorney, will or a letter of wishes on how they wish for their digital assets and accounts to be handled, managed or disposed of. This quick guide provides a non-exhaustive list of how the executor or attorney can approach and deal with digital accounts if they do not have access to the user’s username and password.

FACEBOOK: On the incapacity of an individual, a family member or friend can ask for the deactivation or removal of an individual’s Facebook account accompanied by support documents such as a power of attorney or court order. 1 An individual can decide whether they wish to have his or her account memorialised or permanently deleted after death. The individual can also appoint a legacy contact tomanage their memorial account. 2 If no such decision was made, on the death of an individual, friends and family can decide whether the account is memorialised. 3 Only verified immediate family members can request the permanent deletion of an account. 4

LINKEDIN: On the death of an individual, after the provision of some information, LinkedIn can remove the profile of the deceased and the profile will be deleted. 5

1 Facebook, Account Removal Request for a Medically Incapacitated Person . 2 Facebook, What Will Happen to my Facebook Account if I Pass Away? . 3 Facebook, Memorialized Accounts . 4 Facebook, Special Request for Deceased Person’s Account . 5 LinkedIn, Deceased LinkedIn Member - Removing Profile (3 November 2014) .

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TWITTER: Twitter accounts may be permanently removed due to prolonged inactivity in excess of six months. 6 On the incapacity or death of an individual, a verified immediate family member can request to have the account removed. 7

INSTAGRAM: On the death of an individual, anyone who has known the individual can request tomemorialise an account by making a request and providing proof of death of the individual. Verified immediate family members can request the removal of an account. 8

GOOGLE: For Gmail and YouTube, Google’s Inactive Account Manager allows an individual’s nominated trusted contact access to the individual’s information and deletion of the account. 9 With support documents, Google will also work with immediate family members and legal personal representatives to close online accounts and in some limited circumstances, provide content from the deceased’s account. 10

APPLE: Without the Apple ID and password, the legal representative of the deceased will need to obtain a court order to access any devices or iTunes or iCloud account. 11

6 Twitter, Inactive Account Policy . 7 Twitter, How to Contact Twitter about a Deceased Family Member’s Account . 8 Instagram, How do I Report a Deceased Person’s Account on Instagram? . 9 Google, About Inactive Account Manager . 10 Google, Submit a request regarding a deceased user’s account . 11 Lucy Hattersley, Access iTunes Account, Music and Apps after Death (18 March 2014) .

CHAPTER 3 PUBLISHING ON SOCIAL MEDIA CAITLIN REES AND BELYNDY ROWE

This chapter is designed to be a helpful guide to practitioners in providing advice to their clients who publish or disseminate publications on social media. Introduction The immediacy and extensiveness of dissemination of content online means there are significant consequences for content creators or publishers when the content infringes another person’s rights or may be damaging to another person’s reputation. Copyright subsistence and infringement There is a common misconception that content already on the Internet is free to use because it is already in the public domain. However, this is not always the case and posting works which may be subject to copyright without the permission of the copyright holder typically constitutes copyright infringement.

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PUBLISHING ON SOCIAL MEDIA

The first question to consider is whether copyright subsists in the work, or other matter such as a film or sound recording, being posted on social media. The rules that deal with traditional content apply equally to social media content. Under the Copyright Act 1968 (Cth) ( Copyright Act ), copyright protection is automatic, meaning content does not need to be registered in order to be protected. However copyright does not protect ideas but the expression of them. The subject matters in which copyright may subsist are literary, dramatic, musical or artistic works, 51 and “subject matter other than works”, that is a published edition of those works, 52 sound recordings, 53 films, 54 and television broadcasts and sound broadcasts. 55 Whether or not a particular content posted on or created using a social media platform satisfies this requirement may be unclear and may depend on the nature of the platform itself. For instance, it is likely that copyright will subsist in original photographs published on Instagram, whereas it is less likely that short posts, comments, messages and tweets would be considered sufficiently substantive or original to qualify for protection although in particular cases they may be. 56 Assuming copyright subsists in the work or subject matter, the second key question is whether permission has been obtained from the copyright holder. Amongst other things, the copyright holder has an exclusive right to reproduce and communicate (make available online or electronically transmit) the work 57 and subject matter other than works. 58 Copyright infringement occurs when someone, “does … any act comprised in the copyright”, in relation to the whole or a “substantial part” of the work or authorises such act, without the owner’s licence. 59 Permission or licence may be express or implied. It is best to obtain written permission from the copyright owner. Generally, linking to another blog, website or social media platform will not constitute a copyright infringement. However, this may not be the case if the blog or website that is linked to infringes copyright. The Court of Justice of the European Union has ruled that a Dutch website infringed copyright by posting links to copyright-infringing material. 60 In Australia, the Federal Court has found that links directing users to sites enabling the downloading of infringing copies of copyright sound records were liable 51 Copyright Act 1968 (Cth) s 32 (‘ Copyright Act’ ). 52 Ibid s 92. 53 Ibid s 89. 54 Ibid s 90. 55 Ibid s 91. 56 Fairfax Media Publications v Reed International Books Australia Ltd (2010) 189 FCR 109 [36]-[50]; Ice TV v Nine Netwo rk (2009) 239 CLR 458 [27], [28], [33], [38]-[48], [131] and [187]-[188]. 57 Copyright Act s 31. 58 Ibid ss 85-88. 59 Ibid ss 36 and 101. 60 GS Media BV v Sanoma Media Netherlands BV and others (C-160/15).

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THE PRACTITIONER’S GUIDE TO SOCIAL MEDIA AND THE LAW

for authorising infringement of copyright. 61 The Federal Court has also found that unauthorised file-sharing and streaming websites such as The Pirate Bay, Torrentz, Watch Series, and Yes Movies infringe or facilitate the infringement of copyright by providing free and unrestricted access to films and television programs made available online without the permission of the copyright owners, granting copyright owners injunctions under section 115A of the Copyright Act to compel Internet Service Providers to block access to those sites. 62 Liking, sharing and retweeting social media content may not constitute copyright infringement as in many cases an implied licence is granted by any person who posts content on a social media service to allow that content to be copied, shared and forwarded within the site at least. 63 While this issue is yet to be tested in an Australian court, permission to share material in this way may be dealt with in the specific terms of use of the social media platform. 64 In some circumstances, although the copyright owner may retain ownership of the posts, the terms of use often give the platform expansive rights to the works. This can reduce the control of the copyright owner over the way the content is used. Copyright owners should consider other methods of protecting their rights such as watermarking the content and restricting access to certain content where possible by changing the privacy settings. Where possible, copyright notices should be used. If no permission or licence has been granted, the third key question is then whether an exception applies. There are a number of exceptions under which works, and subject matter may be used without permission of the copyright owner. 65 For social media users the most relevant exceptions are likely to be the “fair dealing” exceptions. Whether the use is “fair” depends on the circumstances of each case. A commercial use will weigh against a fair dealing however this is not necessarily determinative. The use of the work must be “fair” for the purpose of at least one of the following: 1. Research or study: in determining whether a dealing with a particular work constitutes a fair dealing for the purposes of research or study the matters to which regard shall be had include: 61 Universal Music Australia Pty Ltd v Cooper [2005] FCA 972; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242. 62 Foxtel Management Pty Limited v TPG Internet Pty Ltd & Ors [2017] FCA 1041. 63 Agence France Presse v Morel (Case No 10-Civ-02730, United States District Court, Southern District of New York, Nathan J, 21 May 2013). 64 See, eg, Facebook, Terms of Service ; Instagram, Terms of Use (19 April 2018) ; LinkedIn, User Agreement (8 May 2018) ; Twitter, Twitter Terms of Service ; Google, Google Terms of Service (25 October 2017) ; YouTube, Terms of Service . 65 Copyright Act Part III Div 3.

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