Facebook, Twitter, Pinterest, Instagram...the list of social
media tools for the promotion of your fashion brand is ever
increasing. While social media is an effective and immediate way to
reach your customers, there are some important considerations you
should turn your mind to before embracing this marketing tool, as
some recent examples demonstrate.
In the recent Federal Court case between Leah Madden, from
swimwear brand White Sands Swimwear, and leading swimwear brand
Seafolly, Ms Madden was ultimately ordered to pay damages for the
reputational harm she caused to Seafolly through posting comments
on social media.
In order to avoid the potential pitfalls that come with the
territory, we recommend that fashion brands consider the following
questions before using social media to market their labels:
Is it Really True?
As with all marketing, when using social media, brands need to
ensure that all statements made in advertisements or marketing
materials are not false, misleading or deceptive – whether
these relate to pricing, content, quality or another aspect of the
brand, its goods or services. A good rule of thumb is to ensure
that all statements can be objectively substantiated. What
documents will you point to if the Australian Competition and
Consumer Commission (ACCC) or a third party (such as a consumer or
competitor) come knocking on your door querying the accuracy of
Recent case law shows that not only will a business be liable
for the statements that it publishes, but a business can also be
liable for content posted to its social media sites (such as
Facebook, Twitter and blog sites) by third parties. Businesses
should have a process in place for the review of all content posted
by third parties to its social media sites and ensure that any
misleading (or defamatory – see below) content posted by
third parties is removed as soon as possible.
Do I Own it or Have Permission to Use it?
The ownership of intellectual property is often overlooked in
the context of social media marketing, but, once again, the same
laws apply to social media that do to more traditional forms of
advertising. If you wish to use a video, a written piece or an
artistic work such as a photograph, graphic or drawing, you need to
ask yourself who created it and how did you get access to it? If
you or your business do not own the copyright or have a licence to
use the item, the use could infringe the rights of the copyright
owner and the creator of the work.
This approach also applies to trade marks owned by other
businesses. You must not use another's trade mark in respect of
your business' products or services, including in a way that
would be likely to confuse consumers as to the origin of such
products or services. However, comparative advertising, when done
appropriately, is one way you can refer to another's trade mark
without the likelihood of confusion. If in doubt, seek legal
Does it Hurt Someone Else's
If you publish or authorise the communication of content that
injures the reputation of a person without good reason, you could
be liable for defamation. Defamation is a complex area of law but a
good starting point is to carefully consider whether publishing a
post or other material (including a link to a third party
publication) might damage the reputation of someone else. As noted
above, put in place a process for the review of all content posted
by third parties to your social media sites to ensure that any
potentially defamatory content is removed swiftly.
Make the most of promoting your brand through social media, and
the benefits that come with such an immediate form of promotion and
marketing, but think about how to best achieve these aims with the
above considerations in mind.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
K&L Gates has been awarded a 2012 EOWA Employer of Choice
for Women citation acknowledging our commitment to workplace
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