Slagging off brands on social media could land you in court

Claire Porter
January 23, 2013
news.com.au

THERE’S something quite cathartic about taking to social media to slag off brands that you feel have done you wrong in some way.

But be warned, the public shaming of brands or businesses on social media could land you in court.

Leah Madden, Australian designer of swimwear label White Sands, was sued by competitor Seafolly for publicly shaming the brand on Facebook for allegedly stealing her designs.

Believing Seafolly ripped off some of her designs, Ms Madden posted the photos on her Facebook account, comparing Seafolly’s designs to her own with the title “The most sincere form of flattery?.”

Ms Madden posted a number of comments under the album, such as “Seriously, almost an entire line-line rip-off of my Shipwrecked collection”.

She also alleged that a buyer for the brand Sunburn, who work for Seafolly, visited her studio to photograph her swimming costume.

“Ripping off is always going to happen, but sending in a dummy “buyer” to get photos is super sneaky!”

The designer also contacted a number of media outlets who then published stories about the alleged incident.

Ms Madden took some of her Facebook posts down after Seafolly issued a press release denying her claims, but she continued to post comments on Seafolly’s Facebook page.

“Thank you for your kind support, FYI, It wasn’t US that said Plagiarist,” she wrote.

“It wasn’t a photographer. I had a private showing with a ‘buyer’ who came with a digital camera and took photos. As it turned out, that ‘buyer’ was [NAME OMMITTED] from Seafolly. She also requested a seat at the show for her boss, [NAME OMMITTED].”

“White Sands Australia says: ‘bullies be gone and take your bully tactics with you! We tiny little fledgling designers will not be taken advantage of’.”

Seafolly filed a claim in Federal Court against Ms Madden for misleading or deceptive conduct, injurious falsehood and copyright infringement.

Ms Madden filed her own counter-claim, filing a defamation suit against Seafolly.

The judge ruled in Seafolly’s favour on Monday, finding that Ms Madden had violated sections 52 and 53 of the Trade Practices Act which says that corporations shall not in trade or commerce engage in a conduct that is misleading or deceptive.

Ms Madden was fined $25,000 plus damages.

Seafolly was unsuccessful in its injurious falsehood claim.

Ms Madden has not replied to news.com.au’s requests for comment.

Seafolly told News.com.au that it had no comment to make on the incident.

Jamie White, owner and Solicitor Director of Pod Legal, a law firm specialising in social media, intellectual property and technology told news.com.au that the case served as a reminder that information published on social media or online would also be held to legal scrutiny.

“There are no special exemptions in respect to conduct in the online environment, including social media,” he said.

“This case serves as a timely reminder that it is not the ‘wild west’ when it comes to the internet and that laws of the ‘offline’ world apply to the online environment.”

Mr White said social media communications could amount to ‘misleading or deceptive’ conduct “even when the author considers them to be personal”.

So how can you avoid becoming a social media legal liability? Follow Mr White’s five-step plan.

1. Monitor your social media pages for unsubstantiated content – delegate staff members to monitor and set out a schedule for how often they do it.

2. Correct misleading comments quickly. Have a system in place that details how ‘bad’ comments are dealt with so you can do so with speed. Nominate key decision-makers and make sure they are available on a roster basis.

3. Provide specialist social media training on what the legal liabilities apply, make sure employees are updated when new rulings or precedents emerge.

4. Create a social media policy. You need everyone in your organisation to know the purpose of your social media pages and how you expected them to conduct business on it.

5. Integrate appropriate legal terms and conditions in to your social media pages. Don’t seek legal advice when it is too late, lay the foundations of a ‘legal’ social media presence from the start.