There is no doubt there awaits an array of business
opportunities for companies that engage in social media. By now,
most companies should have a solid understanding of the risks
associated with social media and the harm that comments or tweets
(especially those posted in frustration) may cause. Not only
emotional harm, but also harm to one's reputation and business.
Let's look back at a case that highlights the importance of
Seafolly made a number of allegations against the owner of the
business known as White Sands Swimwear, Leah Madden. The most
relevant being that she engaged in misleading and deceptive conduct
and made false allegations by way of a number of Facebook posts
sent via her personal account and also via emails sent by her.
After becoming aware of Madden's defaming posts Seafolly
administered press releases, one which described Madden's
claims as "completely false and without foundation" and
"made maliciously to injure Seafolly".
Madden then counter sued Seafolly for defamation for the press
releases and for alleging that Madden wanted to maliciously injure
Madden thought she had swimwear designs that were original. When
she saw a Seafolly catalogue, she noticed their designs were
similar to hers. Madden then took to Facebook - posting an album
with the heading "the most sincere form of flattery"
containing photos of White Sands Swimwear designs alongside photos
of Seafolly designs. Madden posted comments alongside the photos,
one being – "seriously, almost an entire line-line
ripoff of my Shipwrecked collection". Madden also emailed the
photographs to a number of media organisations.
The Court found for Seafolly and ruled that Madden was liable
for misleading and deceptive conduct, noting that Madden could have
done some simple fact checking before venting her frustrations on
social media. Frustrations which were vented within hours of her
seeing the photographs.
Justice Tracey said that "her failure to take those steps
(or some of them) was not merely careless. It resulted from her
conviction that copying had occurred and her determination to
expose what she saw as Seafolly's misconduct. Her resolve was
such that she was prepared to and did make the statements not
caring whether they were true or false".
In a further blow to Madden, the Court also found for Seafolly
in her defamation claim. The Court noted that, when read
separately, the press releases would constitute defamation but the
press releases were justified because they were true in substance
This decision has reiterated the important message of not
resorting to Facebook, Twitter or any other form of social media to
vent frustration or make any comments without being undoubtedly
certain that the post that is about to be released into cyberspace
is entirely true.
The Court's decision in this case serves as a reminder on
just how important it is to check and re-check your posts before
you press enter otherwise you might find yourself in a litigation
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.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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