Ignored Australian Laws on Social Media

Co-written by practicing lawyer, Kim Davies.  

On social media, laws don’t really apply right?  If the goal of the marketer is to have her intellectual property shared, then how is sharing it against the law?  The truth is, Australian law is ill-equipped to deal with this new world order where content is public domain whether you intended it to be or not.

Stop liking, sharing, pinning and commenting for a second and think about this: The first newspaper went into circulation roughly 400 years before Facebook even existed. The internet itself is so young that if it was a real person it would be taking drunken selfies on a Contiki tour. It all goes to show that social media is a recent phenomenon…and an unstoppable juggernaut. Nowadays you’re just as likely to access and be influenced by social media as newspapers, television and radio. For such a far-reaching and influential channel of communication you’d expect that there would be an interwoven, watertight network of laws governing its use and protecting your rights? Think again. Our State and Federal parliaments haven’t kept pace with the rapid emergence of social media as a force to be reckoned with. Social media is also hard to regulate because it crosses jurisdictional boundaries. So, what are the laws that apply to social media and more importantly, how many of them have you ignored today?

What is the legal definition of social media?

Defining social media is considerably more difficult than using it. That’s because the pace at which technological developments occur and new applications are released far outstrips our capacity to pin it down to a set definition. Basically, social media is the loose term given to describe internet-based applications and websites that allow communication between users via email, Internet and cell phone.  Giving it a clear legal definition is problematic because it evolves so much faster than laws can be made or changed. Social media generally has a few of these characteristics:

• User-created content rather than content from a single source
• Internet or website-based
• Very high level of interactivity between users
• Facilitates self-publishing and dissemination of information via blogging, commenting, networking and sharing
• It’s often free, highly portable and easily accessible from phone, tablet, laptop or desktop computer

Facebook, Twitter, Pinterest and LinkedIn are just a few examples of social media.
When you post something on social media you’re effectively publishing something online and may lose control over how far it spreads and who reads it.

Social media and law-makers

Because of the incredibly rapid pace at which social media has emerged and continues to develop, it doesn’t have its own set of unique laws governing it. Law makers have taken a piecemeal, reactive rather than proactive approach. Because we are part of a federation, some of the law applicable to social media comes from our own Queensland State parliament, and some from Federal Parliament. Section 51(v) of the Australian Constitution gives the Commonwealth parliament the power to make laws about ‘postal, telegraphic, telephonic, and other like services’. Of course, when the constitution was written in the 1890’s, the internet was still a century away and not even within the realms of contemplation. There has been quite a legal debate over whether or not social media falls under the banner of ‘other like services’.

Lawmakers have attempted to deal with the issues raised by social media by modifying existing laws and extending the definitions contained in them to try and cover social media.

Let’s take a look at some of the areas where your activities on social media might get you into trouble:

Social media in a business context – False, misleading and deceptive conduct

If you run a business and use social media to sell your products or services, you have rights and responsibilities arising under Commonwealth law. Just because you are using social media, you’re not exempt from the laws in place to protect consumers from false, misleading and deceptive conduct by businesses.
Since 1 January 2011, all Australians have had the same level of protection under the Australian Consumer Law, which replaced the Fair Trading Act 1974 (Qld) and the Trade Practices Act 1974 (Cth). This has meant a uniform and consistent approach across the whole of Australia. It applies to all Australian businesses and across the board in all states and territories. It’s policed by the Australian Competition and Consumer Commission (ACCC). It’s now much easier to get your head around your rights and obligations as a business, particularly if your business straddles two or more jurisdictions (eg. Queensland and New South Wales) or if you operate a business selling goods or services online, where your customers may be interstate or even overseas.
You can’t make grossly exaggerated claims about your products or services or convince your customers that they are getting something that they’re not. Nor can you ‘pass off’ your products (mimic other more well-known brands). This ban on acting in a misleading, deceptive or false manner also extends to any comments posted on your site. You have a responsibility to actively monitor comments posted and remove comments that may breach the law. If you’re doing business on social media you have an obligation to:

• Make sure that your businesses contracts are fair
• Make sure the goods or services that you are supplying are safe
• Not make any false, misleading or deceptive statements about your products or services

For more information about the Australian Consumer Law click here and here.

Social media and Defamation law

If you are using social media there’s a chance you could fall foul of the law of defamation. What is defamation? It’s something that is said, written, commented, tweeted, published or blogged about another person that has the potential to:

• seriously damage their reputation or lower them in the eyes of the ordinary public, or
• damage their business or harm them financially, or
• subject them to shame or ridicule

If you either know something is false or you’re not sure whether it’s true or false and publish it meaning to cause harm or lower that person in the estimation of other people then it’s likely to be defamatory.
In Queensland we have the Defamation Act 2005 (Qld). ‘Defamation’ covers the old terms of ‘slander’ (spoken things) and ‘libel’ (written or published). The rise of social media was actually one of the factors that led to the enactment of this piece of legislation. The ability of social media to cross jurisdictional boundaries gave rise to a need for uniform legislation across Australia. This act was the result and it has a number of very similar interstate counterparts.
Defamation had its origins as a tort or a ‘civil wrong’. This means that you can be taken to court and sued civilly for defamation. The person suing you, the plaintiff, can be awarded damages, potentially a very large sum of money. The law tries to strike a balance between the need for free speech and the need to protect people from unwarranted attacks on their reputation.
Who can sue for defamation? Individuals can definitely sue for defamation. Some small companies (called ‘excluded corporations’ under the act) also have a limited right to sue for defamation. These are small companies employing fewer than 10 employees whose objects do not include financial gain (eg. a corporation that is not for profit). A public or government body cannot sue for defamation. The law in Queensland specifically includes the Internet and other electronic communication. Nevertheless, if you post something on social media that openly criticizes or attacks a large company, you may find yourself at the receiving end of correspondence demanding that you remove your post, publically retract what you are saying and apologise or legal action will be taken. For most people, the threat of costly and protracted court action is enough to make them remove their post. Also, even if you think you’re not breaking Queensland law in relation to defamation, remember that your social media post has the potential to cross jurisdictional boundaries and land you in hot water elsewhere.
There are a number of defences to defamation under Queensland law. Some of those defences include:

• That what has been posted or published is substantially true and posted or published without malice, or
• That what was posted was already in the public domain or in a public document (this applied mainly to publically available government and court documents), or
• That posting or publishing the material is reasonable and in the public interest, or
• That it’s a trivial matter unlikely to cause substantial harm

Defamation can also amount to a criminal offence under section 365 of the Queensland Criminal Code. It’s punishable by up to three years imprisonment. However, being a criminal offence, the prosecution have a much higher standard of proof.

If you get it wrong, the costs can be enormous. There was a recent example in Melbourne. A man took a selfie of himself to send to his children in front of a Star Wars store display in Target. A woman nearby mistakenly believed he had taken a photograph of her children. She pursued him outside the store and then snapped a photo of him before uploading it to her Facebook page. It was immediately shared from friend to friend and then uploaded to a local community Noticeboard Facebook page. The male in the photo went to the police to clear his name but by then the image and its accompanying caption calling him a ‘creep’ had been shared thousands of time, causing irreparable harm to his reputation. The story went viral and was reported on extensively both in Australia and overseas. The woman has since apologised to him in person. She said she was unaware her post was able to be shared because of her privacy settings on her Facebook account. She has potentially exposed herself to court proceedings.

Even if your social media privacy settings do not allow what you post to be shared, you should always be mindful of the fact that someone can always take a screen shot of what you say and share it.

Copyright law and social media

Copyright is a way of protecting your rights as the owner of something that you have created, such as a piece of writing, artwork, or a song. Unlike a patent for an invention, copyright is automatic. You don’t have to apply for copyright protection or register your creation with a government body in order to assert your rights. The rise in popularity of social media has led to murky waters in the area of copyright law. This is because social media makes sharing music, video and other material so deliciously easy.
Material posted on social media is protected by Australian Copyright law, specifically, the Copyright Act 1968 (Cth). Copyright means that the rights of the owner are protected. Copyright generally rests with the person who has created, written, commented or tweeted the material unless they did so in the course of their employment. If so, copyright may rest with their employer. You’ll have noticed that many webpages are starting to include clear statements as to the use to which material they post can be put on their websites.
The Copyright Act 1968 (Cth) allows for ‘fair dealing’. In other words, there are some ways that you can use material that does not infringe copyright. Most of them do not allow for sharing on social media. They relate more to private use of the material.
The most important thing to know with copyright law is that you might not see a © symbol on a work, but it is still copyright and you should always proceed to use or share it with great caution or you could find yourself in hot water.

Privacy laws and social media

Privacy laws exist to protect the individual against the state (ie. the Government and government bodies). They don’t extend to protect you from your friends or other people who may access what you post on social media. This is an area of law that has not kept up with social media. There has been a very recent example of this which has caused great outrage. A mummy-blogger posted a photo of her daughter online. Her daughter has Downs Syndrome. The photo was stolen and used by a stock photo agency, eventually being sold to a multinational drug company which, horrifically, used it in its advertising to promote pre-natal testing. Whilst the mother has had some success in getting the drug company to withdraw her daughter’s photo from their campaign, she has had no such luck to date with the stock photo company.
Commonwealth government bodies, territory bodies and some limited public sector organisations are covered by the Privacy Act 1988 (Cth), which is policed by the Office of the Australian Information Commissioner (OAIC). Similarly, in relation to State government bodies we have the Information Privacy Act 2009 (Qld) and the Queensland Office of the information Commissioner.

Other pitfalls associated with social media law

There are many other specific laws that your social media posts may fall foul of. These relate to the production and dissemination of child pornography, laws relating to racial vilification, the posting of material relating to violence, online bullying, harassment and stalking laws. Some of these are governed by Commonwealth law, others by Queensland State law. Many of these laws make the posting and sharing of certain material a serious criminal offence. You can even go to jail.  Creating a single set of social media laws is simply impossible to do – you could be a social media criminal without knowing.  Unfortunately, ignorance of the law is not a valid defence to breaking it!

The responsibility to follow Australian laws on social media is yours

As they say, ignorance is no excuse. Not knowing the law is not a defence.  The terms of use you agreed to when signing up to your favourite social media pages clearly outline that you are responsible for remaining within the law.  The social media companies have gone to great lengths to avoid any liability.  Facebook’s terms of service are clear – the onus is on you!

“You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.” 

In the Facebook terms and conditions, this  goes so far as to force users to sign a blanket agreement to relinquish rights in relation to intellectual property, especially for use by Facebook itself:

“When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture)…. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

To be 100% safe, you should obtain written permission from the copyright or trademark owner before publishing anything on social media. Dedicated social media laws simply do not exist and there’s a legal minefield out there to interpret. Some day Australian law will catch up with social media, but it hasn’t for now.  If in doubt, don’t post, share, comment or tweet.  Under Australian law, you are on your own if an issue arises.

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