• Property & conveyancing
  • Business legal services
  • Building & construction
  • Legal Counsel Packages
  • Wills and estates

Stay in touch with how the law affects you! Subscribe to our

Subscribe to Forum Law News

* indicates required

Intellectual Property Law News | February 2015

Due to the public nature of social media content, employees expose a business to risks and opportunities which present when using a public forum such as Facebook or Twitter. Where an employee's profile created in their own name on sites like LinkedIn to be used for personal and business related networking purposes, the distinction between personal and workplace behaviour can be blurred and complications may arise.

Use of social media in a business' marketing strategies must be maintained through adequate content control. Where control of content on social media is not exercised, potential embarrassing situations can arise for a business. For example, Chevy Tahoe suffered an embarrassing backfire in the marketing campaign when they held a contest in which consumers were asked to create an advertisement for an SUV. The campaign backfired when consumers created advertisements suggesting that SUVs caused global warming. The issue for Chevy Tahoe was a lack of content control. Even though they had control of which advertisement to run, there are numerous sites like YouTube on which independent members of the public could post their own content.

While the use of social media can be beneficial to employees personally and in the workplace, it also has the potential to impact negatively on brand and reputation; and client and other confidential information.

In 2013, the Federal Circuit Court in Banzerji v Bowles [2013] FCCA 1052 touched on the issue of blurring the lines between personal and professional behaviour of employees and their use if social media. In this case, a public servant argued that her social media use (being tweets from her personal account on Twitter) was "protected by the constitutional right and freedom of political communication" and was a "simple expression of political opinion, which she made during personal time outside of the office". Justice Neville found that there is no unfettered right or freedom of political expression, and that politically charged comments on Government policy coming from an anonymous Twitter account constituted a breach of the Government's social media policy.

In Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 there were third parties who posted misleading and deceptive information on Allergy Pathway's Facebook and Twitter pages. The Federal Court found that Allergy Pathway had indirectly contravened the former Trade Practices Act 1974 (Cth) resulting in substantial fines and penalties. The Court's determined that the company became responsible as the publisher of the comments when they became aware of the comments and did nothing towards having them removed. This decision has important implications for companies that use social media for networking and promotional activities. Adequate processes and compliance procedures must be in place prior to promoting goods or services through social media to avoid potentially expensive or embarrassing consequences for the company.

Businesses can take steps to protect their brand's image and how their brand is used on social media websites and the internet as a whole, including:

  • Registering your trademark with IP Australia to strengthen your market position in a potential trademark conflict;
  • Regularly monitor your use of advertising on social media websites and ensure that any infringing use is terminated immediately;
  • Set up a suitable social media page, such as Facebook, LinkedIn or Twitter to post information about your products or services in order to attract targeted or relevant advertisements to your page;
  • Paid advertisements on social media websites may bring to light any potential infringement of your trademark or potential confusion that may arise in the marketplace.
  • If you become aware of any negative commentary about your product or service, it is important to assess these comments for potential false accusations or attempts by competitors to disparage your brand and remove the comments accordingly; and
  • Any paid endorsements of competitors by third parties should be identified as soon as possible. The danger here is that a competitor may attempt to latch on to the success of a brand owner without their consent.

Social media policies

It is critical that employees understand their obligations in relation to handling confidential information belonging to the business or to their clients and how this relates to the way that they use social media in a personal and professional context. An employee's contract and an employer's confidentiality and social media policies should clearly define the correct manner for handling confidential company and client information. An effective social media policy should reflect the employer's aim to protect their business interests and reputation.

When developing and implementing a social media policy, employers should:

  • consider restricting use of social media channels during working hours to maintain workplace productivity;
  • identify social media platforms to encourage in the workplace and acceptable uses of those platforms for business purposes;
  • highlight to employees the risks to their employment regarding their personal use of social media channels, including that posting offensive, derogatory and discriminatory comments about the employer or threatening or insulting comments about other employees constitutes serious misconduct, which may lead to termination of employment;
  • monitor social media activity to guard against brand-damaging posts appearing on social media—when the employer is featured in the media;
  • ensure the social media and IT policies make it clear that employees waive their right to privacy regarding anything created, stored or received via the company's IT system that is sensitive or confidential information.
If you would like to discuss protecting your brand and developing a social media policy for your business or how the law can affect the way that your brand and your employees interact with social media websites or any other area of business or property law please contact Forum Law.

Forum Law is an active member of several reputable law and industry associations. We have recently obtained ISO9001 accreditation.