Social media and the law in Australia

in Marketing by Sharon Green
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Social media laws

There are a number of issues business owners and employers need to consider when it comes to using social media in the workplace.

Claire Kowarsky, a lawyer from Kelly Hazell Quill Lawyers, says there can be various legal implications if business owners don’t tread carefully when using social media, including privacy and spam laws, intellectual property risks and misleading and deceptive conduct.

If a social media site is being used as a means of collecting personal information from site users, she says, responsible business owners should be aware of the requirements of privacy laws, also known as the Privacy Act (1988). Personal information should be used only for the purpose for which it is collected and must be kept secure and confidential at all times.

As for spam laws, the Spam Act (2003) stipulates that unsolicited commercial electronic messages must not be sent unless the sender has the consent of the recipient to send such messages.

“Electronic messages should include clear and accurate information about the person or business that is responsible for sending the message. A functional ‘unsubscribe’ option must also be included with all electronic messages, and requests to unsubscribe must be dealt with promptly,” says Kowarsky.

An intellectual property risk involves the general content of a social media site. Content refers to new content created by the owner of the site and user-generated content (also known as UGC) added to sites via members’ feedback, comments and uploads. Kowarsky explains that business owners run the risk of either having their own intellectual property misused, or misusing a third party’s intellectual property.

“Content on a website which has not been developed by the site owner, such as images, music, software etc. should only be used with consent from the owner and/or creator of that content. Failure to obtain consent may constitute infringement of a third party’s intellectual property rights.”

Kowarsky says the term misleading and deceptive conduct applies to business owners sharing communication via social media and does not need to be intentional – laws can be infringed even if the business did not mean to mislead its audience.

Key things to watch out for include:

  • Testimonials – these must be genuine and accurate.

  • Comparisons – comparative advertising is permitted but it must be clear what is being compared and all claims must be accurate.

Andrew Bland, lawyer at BlandsLaw, said discouragement behaviour is another area of the law business owners and employers need to be aware of when it comes to social media.

This can occur when workers ‘bad mouth’ their employer via their personal social media accounts. Bland says employees need to understand the fine line between their work life and personal life, because if they comment about work in a discouraging way – even outside of working hours – it can be particularly damaging.

Bland suggests all businesses implement a clear, concise and easy-to-understand social media policy.

“There needs to be a policy in place specifically for social media – much like any other policy such as a bullying or harassment policy.”

Online legal professional from, Jeanette Jifkins says when it comes to using social media, business owners need to use more than just common sense. 

“It is about thinking through who your audience is, where they came from, what connection you have with them and what laws might apply. You have no control over what gets out there on the internet, so consider what your risks are and identify some strategies to deal with them if they arise.”

Laws can differ from state to state in Australia so it is the employer’s responsibility to seek the information or legal advice relevant to their business.

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As a former Fairfax Media reporter, Sharon has written across a variety of newspapers including Point Cook Weekly, Melbourne Weekly Magazine, City Weekly and the Melbourne Times. Sharon’s work has also appeared in a number of other publications including The Age, Herald Sun, Bride, Geelong Advertiser, Geelong + Surf Coast Living, Onya Magazine and Desktop magazine. She has also worked in the UK on a variety of journalism and editing projects.

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