There are no specific laws regarding Social Media in Australia. But the litigation has already started, so we have to look to the up-and-coming case law to see where the written laws will be going.
You’ll often hear forum users, commenters or bloggers say: “It’s not illegal to state my opinion”. Unfortunately, that’s not the case.
The newest legal cases regarding Social Media have confirmed that you cannot just “say what you like” and defend yourself with the argument that “it’s just my opinion”.
Don’t make misleading or deceptive comments on Social Media
Take for example the case of the Australian swim suit and bikini designer, Seafolly (Madden v Seafolly Pty Ltd 2014 FCAFC 30). A competing swimwear designer claimed on Social Media that Seafolly had copied 8 of her designs. Seafolly sued her for misleading and deceptive conduct (s52 Consumer Law), copyright infringement and trade libel – and won.
This was despite the fact that the designer’s view was her own personal opinion, not a business comment, made on her own Social Media account. The court sided with Seafolly and decided that she was trying to influence customers, the placement of orders and that she had acted with malice. The designer was held liable for misleading and deceptive conduct.
Don’t defame people on Social Media
In another case a former student made malicious and defamatory comments about his former teacher on his Twitter and Facebook accounts (Mickle v Farley 2013 NSWDC 295). The student argued both freedom of speech and that he believed his comments were private and made to his personal friends only. The court sided with the teacher and fined the student $105k.
Remember, Australia’s defamation laws apply to Social Media too. Comments that are considered: menacing, defamatory, damaging or misleading are illegal. And your ‘opinion’ is not a defence, unless you can show that your ‘opinion’ is based on fact.
Malicious or offensive messages and posts will not be tolerated by the courts. So be careful when you Tweet in anger or post anything on Social Media.
And protect yourself if you run a website with user-generated content
If you run an online business or have a business website, you are responsible for all the content on that website. Even if that content was not written or created by you. If ‘users’ of your website post misleading, deceptive, defamatory or damaging comments – you are responsible.
It’s not always practical to “approve” all content that is posted to your website in real-time. However, it is up to you to remove any content that is flagged as misleading, defamatory, etc.
Make sure your own Terms and Conditions on your website include a clause warning users that such behaviour will not be tolerated. Further, that you as the website owner have the right to remove their content, warn them to stop and if necessary, remove their account and prevent them from using your website.
Then make sure that any Social Media accounts being used by your business are “clean” too. Don’t risk a rogue employee damaging the reputation of your business or getting you involved in a defamation law suit.