I know someone who has a lingerie business and people keep stealing her undies – photographs of them. The photographs are professionally produced and presented, and cost money. The thieves are robbing her.

Social media and Instagram in particular, has changed the way we promote products and services. 400 million people use it every month. The popularity of Instagram and the achingly hip visual content – aimed at aspirational users – allows business owners set their brand with carefully crafted and curated images.

Insta is an extraordinary means to communicate and engage with your target audience and is a great source of inspiration and a way to build trust, influence and attract consumers.

But what do you do when you see an image and realise it’s actually your image? How do you protect your images?

I’ll concentrate on Instagram here, but you can apply it right across social media.

What is copyright and how do I protect it?
The best approach you can take is prevention. Be aware of your rights. Your level of awareness of your intellectual property is important. Copyright is part of an area of law known as intellectual property. Intellectual property law protects the property rights in creative and inventive work and gives certain exclusive economic rights. It is the legal protection of your creative expression, not the idea or information itself.

Dramatic, literary, musical and artistic works, recordings, films and broadcasts are protected by copyright law. Generally in Australia, copyright is for the life of the author plus 70 years.
In Australia, copyright protection occurs automatically when you create the work, i.e. type the words, or take a photograph.

There is no need to register a work officially. The © system is used to show that the work is protected by copyright, but it is not required for protection to occur.

Copyright gives you as the copyright owner, exclusive rights to reproduce, publish, perform and communicate your original subject matter. These rights are economic rights. In many instances the author of a work will be the owner of copyright. One exception is where an employee makes copyright work during the course of their employment, in which case copyright vests with the employer.

The rules relating to ownership of copyright may also be varied under an agreement; for example, an author may agree to assign his or her rights in a work to someone else. Copyright in most commissioned works vests with the person commissioning the work. In plain English, if you commission a photographer to take photographs, you own the photograph’s copyright.
When someone steals your intellectual property, it deprives you of the right to monopolise your exclusive rights.

Ignore anyone who says it’s part and parcel of the Internet. They might be right about it being part and parcel of the Internet, but they’re wrong to think anyone can do anything with copyright material.

What is copyright infringement?
Your copyright is infringed when any act that the copyright owner has the exclusive right to do is done by a person who is not the copyright owner (or his or her licensee). For example, when your photograph is reproduced and/or published without your permission. Even if the person uses a different filter on your original image.

Intellectual property gives you, as the right owner, property rights. There are times that your copyright can be used and not breached. As an Instagram user, you have granted Instagram the right to display your images; otherwise they would be violating your copyright by displaying your pictures in the app:

Rights
1. Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy…

Infringement of your copyright is occurs when someone without your permission reproduces the work in material form, publishes the work, communicates the work to public, or makes an adaptation of it. The Copyright Act does include ‘fair use’ exceptions to infringement that allow uses of copyright material without permission. Parody or satire is an exception. You can see an example here.

Instagram Users and Influencers
The more your products appear in user feeds, the better. It’s a tremendous marketing technique. Small businesses can connect, collaborate and/or partner with Instagram influencers who are a great fit for their products and services.

Sometimes influencers discover YOU. If you are collaborating with influencers, you have given them permission to use your images. Users who have discovered your products or services on Instagram, and share it with their audience, should cite you (tag) as the source. Of course if it is a paid partnership/sponsored post, that information must be disclosed.

By signing up and using Instagram, all users agree to the platform’s terms, including this:
4. You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

What can you do if someone is using your work and infringing your copyright?
You can watermark images with your copyright information but it can be cropped out – so it’s better to embed proof of ownership in your digital pictures. There is basic metadata written into a digital photo file which identifies copyright and contact information. Exif metadata is a standard that specifies formats for files recorded by digital cameras. Many cameras and most smart phones have built-in GPS receivers that store time and location information in the Exif header when a picture is taken. Removing or altering this information is prohibited by the Copyright Act in some circumstances.

Be assertive! This is your property. They’re using your property for commercial advantage. Because of the speed of reproduction on the Internet once the first infringement has taken place it can be very difficult to stop it.

The first step is essentially a cease and desist letter, to stop them using your intellectual property. Send a direct message to the account holder on Instagram. Tell them you are the copyright owner of the images and they must immediately stop using your images.

Make sure you have examples of their infringing acts. Use this link to get a sample letter for copyright infringement.

Report the infringing posts to Instagram.

If the infringements continue, you are best to seek legal advice, as further enforcement is generally through litigation. You may not have to go to court to get a result. But be aware this is potentially very expensive; so enforce your rights based on the advice in this article.

The best approach? Prevention. Be aware of your rights. Your level of awareness of your intellectual property is important. Add a disclaimer to your Instagram profile, something like “please don’t use my images without permission” or “all images copyright”. Don’t be shy about demanding that anyone who is stealing your words, sounds or images, stops it and stops it immediately.

This article is not to be taken as legal advice. You should seek advice specific to your situation.

Kat the Label has kindly given Leaders in Heels permission to use their image for this article.



Last week, Gold Coast woman Tara Brown contacted local police for advice about her relationship breakdown. Six days later, she was dead. The circumstances are horrifying.

On the same morning, not far away in Helensvale, another woman was shot dead in a fast food restaurant.

And on the same day, just a short drive up the M1 in Wacol, a woman was hospitalised under circumstances eerily similar to Tara’s.

Three women brutally attacked in two days. Two paid the ultimate price.  In all three cases, their attackers were allegedly the women’s former partners.

62 women (as of 10 September 2015) are dead in Australia this year at the hands of their former partners. This year, an average of two women a week have been murdered.

It is now time to get people in positions of authority to actually do something about domestic violence. We encourage women not to stay in abusive relationships, but where can they go? Where can they hide? Why should they hide? Why are they paying for their choice to leave – with their lives?

Women’s voices need to be heard. We’re shouting from the grassroots, but without representatives in positions of power such as the legislature assemblies and judiciary, it’s a muffle. Without those in a position to help, our voices are white noise.

Change can happen when our community leaders have the courage – and also when they are forced to act.  After the death of her mother by suicide, a 14 year old girl wrote to the New South Wales government and asked them to “educate children about domestic violence and how to seek help”. In her letters to politicians and her petition on change.org, she explained how she had no idea that being bashed by her father, and seeing him beat her mother, was not the norm for everyone else. And in doing so, she instigated a major change in the secondary school syllabus that will focus on domestic violence prevention.

When you share posts about domestic violence on social media, pledge to do more than merely being a social media activist.

Write to your State Member of Parliament.  Write to your Federal Member of Parliament. Ask them what they are doing to support an end to domestic violence.  When you share posts about domestic violence on social media, pledge to do more than merely being a social media activist. Don’t just click that “Like” or retweet that tweet, do something about it. Support foundations such as White Ribbon and Our Watch. Be active, rather than passive.

Both women and men can challenge attitudes and beliefs that promote a culture of violence and victim-blaming or shaming. Speak up! Hold the abusive person, not the victims, accountable for the abusive behaviour.

We as a society need to stop passively encouraging this violence against women. Many of us brush these incidents aside. We consider relationship violence as none of our business because it happens in private, or we think that there’s nothing we can do to help. But by our silence and inaction, we are allowing this violence to thrive. We need to be accountable.

But by our silence and inaction, we are allowing this violence to thrive. We need to be accountable.

Where are the male champions of change in the domestic violence arena? Just as women need men advocating for gender equity in the workplace, we need men to invite men to reflect on abusive and controlling behaviours. We need to focus on respectful relationships. We need to actively teach our sons and daughters how a respectful relationship works.  Our Watch is working with secondary schools is Victoria to support and teach teenagers skills in building respectful and healthy relationships, but how can you reinforce that in your own home?

Men – call out that friend who catcalls women. Make it clear that even small abuses of respect are not acceptable. Let them know you think it’s wrong without getting aggressive or confrontational about it.

Men – call out that friend who catcalls women. Make it clear that even small abuses of respect are not acceptable.

Every single one of us can act if someone we know behaves in a controlling manner towards their partner. You know the warning signs – checking up on her all the time, criticising how she dresses, monitoring her friendships. Being jealous and controlling are not signs of love, but violence.

Domestic violence knows no social barrier. Women are not chattels, to be bent to your will by any means necessary. We’re your mothers, sisters, daughters, nieces, wives, partners, aunts. We’re your equals. What will you do about it?

 

If you or someone you know is suffering from sexual or domestic abuse, call 1800 RESPECT any time of day or night.

If you or someone you know is causing domestic abuse, call The Men’s Referral Service 1300 766 491


What you post on Facebook, Twitter, Instagram, Snapchat – you may regard as interesting, helpful, witty, humorous, insightful or an honestly held opinion. Your employer may regard it as vandalism, graffiti, damaging to their brand and grounds for dismissal.

The 25th of April is a special day in Australian history – Australians generally turn their thoughts to the events of that date in 1915 during World War 1, and subsequent fallen soldiers.

On that date in 2015, a reporter with an Australian broadcaster sent 5 tweets, dismissing the reverence of the date, and subsequently lost his job.[1]

What happened? Why did this impact on the reporter’s position?

The reporter’s employment in this case is governed by a workplace social media policy and code of conduct. These codes and policies generally state that employees must be positive representatives of the employer, essentially not to bring the employer’s brand into disrepute. Being in the public eye as a television journalist there is an expectation, be it reasonable or not, that their public behaviour is of a high standard. Social media is perceived as an authority for information by some and a user of some celebrity is definitely influential.

In the 1997 film Liar Liar, Jim Carey’s character Fletcher Reede can’t lie for 24 hours due to his son’s birthday wish. The antics of the lawyer character are hilarious, but the reality is today, if on social media, he’d likely be dismissed.

Miranda: Well, what do you think of him?

Fletcher: He’s a pedantic, pontificating, pretentious bastard, a belligerent old fart, a worthless steaming pile of cow dung, figuratively speaking.

Mr. Allen: That’s the funniest damn thing I’ve ever heard. You’re a real card, Reede. I love a good roast!

You are probably familiar with Twitter bios which state: “views expressed are my own and not my employer”, “opinions my own”, “all views are mine”, or words to that effect. Journalists in particular have some sort of disclaimer in their bios. However, these words really do nothing to protect you from your employer’s social media policy or code of conduct – indeed, you can be dismissed if you share something that may be deemed as inappropriate.

What does this have to do with you, you’re thinking. This isn’t an isolated case. In 2013, Justine Sacco sent one tweet, which was offensive when read without the intended sarcasm. She then boarded a plane for a long haul flight. She wasn’t in the public eye when she left. She was trending worldwide on Twitter when she landed at her destination. Her employer dismissed her for what it called her “hateful statements”.

If your employer does not have a social media policy, a workplace conduct policy or a code of conduct, your employment contract may have what is termed as a morality clause that could prompt your employer to terminate you for inappropriate behaviour out of work. These types of clauses stipulate acceptable employee behaviour both inside and outside of the workplace. The reason behind them is to limit or prevent direct financial or reputational harm to the employer. Breaching a morality clause, workplace social media policy or workplace conduct policy can result in immediate dismissal. If these clauses are clearly defined in the employment contract, tribunals will uphold the dismissal. In 2011, Fairwork Australia upheld an unfair dismissal claim stemming from the person posting (of an expletive-laden rant) against his work colleagues on Facebook.[2] In that case, the Employee Handbook referred to the requirement that employees be aware that:

“In communicating with other staff…employees should be courteous and polite, maintain a high level of honesty and integrity and present themselves and the business professionally”.[3]

There’s been some rumblings about the journalist’s right to freedom of speech. In my opinion, his right to freedom of speech has not been impacted – freedom of speech does not mean freedom from the repercussions from those utterances.

Social media allows instantaneous and uninhibited communication by anyone who has an account. Twitter’s terms of service state:

You are responsible for your use of the Services, for any content you post to the Services, and for any consequences thereof…You should only provide content that you are comfortable sharing with others under these Terms. What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!

In my previous articles on social media and the law for Leaders in Heels, I have urged you to keep your social media professional and to think before you post. I highly recommend if you have some sort of disclaimer in your Twitter bio, that you lose it. It offers no protection. If you have ‘friended’ work colleagues on Facebook, use Facebook’s privacy settings (audience selector) which allows you to choose who you share posts with.

Social media provides a forum where information can be quickly and efficiently published. It has transformed modern communication. Hundreds of thousands of people log into Twitter or Facebook to read the news, share interesting (and mundane) stories, engage with businesses, market their own expertise and connect with peers. The ordinary person can connect with and participate in the same forum as celebrities, politicians, government departments, brands and news providers. And your employer. So think before you post. The consequences for you could be dire.

Yolanda Floro is Leaders in Heels’ Social Media Editor. She has worked as a media lawyer specialising in the areas of film, television and digital media law. She has a Master of Law, Media and Journalism from UNSW.

 

[1] Another reporter from the same broadcaster has since posted a link to http://theconversation.com/anzacs-behaving-badly-scott-mcintyre-and-contested-history-40955 on their personal Facebook page, and has also been dismissed. We understand legal action against the employer is pending in both cases.

[2] https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa5311.htm

[3] Mr Damian O’Keefe v Williams Muir’s Pty Limited T/A troy Williams The Good Guys (U2010/887) [2011] FWA 5311 [40].


The advent of social media has given every person with an account a voice. It has allowed the ordinary person to publicise any perceived discrimination. But like the metaphorical double-edged sword, social media can also be a weapon of mass destruction.

Just recently a café in a Brisbane bayside suburb made headlines after a request by a reporter to the small business owner to put on some lipstick or not be in the picture promoting her business. The business owner vented her displeasure on her business Facebook page, and then social media took it to the next level turning on the reporter and newspaper. This was just after another café posted ‘housekeeping rules’ about their expectations of child patrons on the NSW central coast.

And further up the Hunter Valley a burger restaurant mocked a vegan customer on Facebook and all hell broke loose (socially speaking).

Back in 1995, an episode of the classic TV sitcom Seinfeld addressed the quirks of a small business owner who specialised in soup. The small business owner had precise requirements for ordering and taking the soup.

Jerry: “The guy who runs the place is a little temperamental, especially about the ordering procedure.”

Elaine: “Why? What happens if you don’t order right?”

Jerry: “He yells and you don’t get your soup.”

When not followed correctly, the business owner would yell “No Soup For You!” and threw the customer out. Now imagine how that would have played out in today’s culture of social media shaming.

With most  small business owners running their own social media accounts, this puts you in direct contact with your customers. Your business Facebook page allows you to develop and write messages for your customer base about situations or issues but you need to consider how these will be perceived by your customers, their contacts and even the media.

Social media users and the media outlets that picked up the stories above expressed different levels of outrage and sympathy – but what impact does this type of behaviour by business owners have on their business? The Hunter Valley burger restaurant received death threats when the business owner’s personal mobile phone number was posted on a page set up in response to the initial post.

When there is a great deal of publicity surrounding a business page like the examples above, social media users anywhere can post an opinion. Which often include negative reactions. How a business owner reacts to these opinions is important.

So what lessons can you take from their experiences?

1. Don’t post on your business page when angry

Very important! Engaging with backlash needs to be thoughtful so don’t provoke the social media beast. Take a deep breath. Have a glass of wine or hit the gym.  Write your rant on a piece of paper then burn it! You are not sharing your problems with a small group of friends, you are essentially shouting into a global microphone. Having a post go viral for the wrong reasons can be a social media disaster, rather than a boon to business.

2. Don’t allow your business Facebook page to be hijacked.

You should calmly reiterate your message to focus on the issue. To emphasise the stance on child patrons, the business owner pointed out to casual readers that her business was based in a commercial/industrial area and not a mall, with business hours reflecting that.

3. Control the information on your page

False information on the Internet can be difficult to dispel (… if it’s on the internet is must be true). You hold the power.

4. Champion your business

The Hunter Valley burger café had an existing larrikin tone to all their posts – they reiterated their stance and took action against the hate page created to harm their business by engaging lawyers to send a cease and desist letter. When they realised things were getting out of hand on their own page, they posted a notice calling for a stop to it.

5. Don’t delete the post, comments or page

Unless they are malicious or go against the Facebook code of conduct then leave them there. Critics in your audience will see it as proof that they were right if you delete them. Call out those posting vitriol and respond rationally and keep it civil – this is your business.

5. Monitor the posts

Plenty of people sympathised with the small business owner who was asked to put on some lipstick – however comments directed at the journalist were plainly inappropriate. Monitoring the social media reaction allows the business owner to educate any reader about their stance.

6. Thank your audience for their support

It is important to keep your customers on side and thank them for their support but also underline that personal attacks of any form are not acceptable on your business page. This highlights an ethical stance that you should embrace – and practice.

Remember, your business Facebook page is advertising your business. You may double or triple your likes, but it needs to be sustainable and for the right reasons.

Do you know what happened to the business owner in the Seinfeld episode?

Elaine gets the upper hand and says to him, “You’re through. Pack it up. No more soup for you. NEXT!”

It’s in your best interest to have positive effects in moving your business forward. Keep your social media professional. A good rule of thumb is to think – would I sign off on this statement on my marketing materials?

Have you ever been in a similar situation? Tell us in the comments how you dealt with it.

Yolanda Floro is Leaders in Heels’ Social Media Editor and currently completing her Masters in Law, Media and Journalism studies, focusing on New Media.

Photo credit: Jeff Cutler


Cady:  And they have this book, this “Burn Book” where they write mean things about girls in our grade.
Janis:  Well what does it say about me?
Cady:  You’re not in it.
Janis:  Those bitches.

Mean Girls 2004

Before social media, we ranted to ourselves or to our families and friends about things that upset us. Today, we post it on social media.  Problem with customer service? Post it on the company’s Facebook business page.  Upset about a contestant’s behavior on a reality television show? Post it on Facebook. Very upset about someone or something? Create a Facebook Hate page.

I discussed defamation via Twitter in my last post, this article will focus on defamation via Facebook.  I encourage you to read the cases, they are really interesting – I’ve used the legal citations so you can look them up. Search them.

Defamation

The law of defamation protects a person’s reputation in the community, in the sense of their right not to be denigrated eyes of others.  This involves in a sense, the restriction of another common law principle – freedom of speech.  The High Court of Australia said about this balancing act:

The public interest in free speech goes beyond public benefit that may be associated with a particular communication…[everyone] has an undoubted right to lay what sentiments he pleases before the public…but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [31]-[32].

Facebook

Facebook was launched in 2004 and its impact on society is growing with it.

It’s currently the largest online social media network.  It currently has 1,310,000,000 active users, who share 1,000,000 links every twenty minutes [Link]. Social media has an informal and unreserved style, allowing rapid and spontaneous exchanges. And users are often unconcerned, uninformed or reckless when it comes to the legal risks of what they post online.

Legal Action

Facebook posts have given rise to defamation proceedings in Australia. In the matters discussed, the usual elements of defamation – publication, identification and defamatory matter – were considered. They all involve ordinary people.

Burtenshaw and Knueppel (2012)

Ms Burtenshaw was a school principal in a small community. Ms Knueppel was a parent of a student at that school.  In December 2012, in the South Australian Magistrates court, Magistrate Morris was satisfied a Facebook hate page defamed the Ms Burtenshaw and awarded her $40,000 in damages.  The Magistrate said:

 I am satisfied that prior to the publication of the defamatory material the plaintiff had a sound personal reputation…[and] that the imputations of the subject defamatory postings are untrue.  The fact that Ms Knueppel used the publication via a Facebook format and the ease of access and republication should be taken into account as a factor that aggravates the award of compensatory damages.

Polias v Ryall [2013] NSWSC 1267 is a matter which is, at the time of publication, still before the Court.  It involves various messages on Facebook profiles between (former) friends. So far, the presiding judge has found some of the defamatory imputations complained of are “abusive words incapable of conveying any defamatory meaning; meaningless abuse; or vulgar abuse not damaging the plaintiff’s reputation”. Interestingly enough, these proceedings have generated some media interest because of the subject matter.  A point to bear in mind is the publicity generated by defamation actions, ironically get the message out further.

Mickle v Farley [2013] NSWDC 295 involves a social media double whammy.  The defamatory postings were made to Twitter as well as Facebook. The posts were brought to the attention of Ms Mickle by the school principal,  who spent time each week to dealing with Facebook issues that arose in relation to students.  Mr Farley was a former student of the school, but not of Ms Mickle.  His father had been replaced by Ms Mickle when he went on sick leave. Mr Farley was ordered to pay $105,000 in damages.  The trial judge found in favour of Ms Mickle, a high school music teacher:

When defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.

Opening a fictitious profile to be a “mean girl”

Don’t think that if you have a fictitious profile, it’s open slather to spread hate. Courts have ordered social media platforms to disclose the identities of anonymous social media users through applications for preliminary discovery. In Western Australia, the Supreme Court ordered the disclosure of information relating to posters’ identities in relation to defamatory statements/postings on forums [Resolute Limited and Anor v Warnes [2000] WASC 35 and HotCopper Australia [2010] WASC]. In Britain, the High Court granted an order requiring Facebook to disclose information including the IP addresses of the creators of an offending Facebook page [Applause Store Productions v Raphael [2008] EWHC 1781 (QB)].

How can you protect yourself for being sued for defamation?

  1. Think before you post!
  2. Anonymous or fake profiles are no protection.
  3. Think before you post!
  4. Ordinary people can be sued for defamation.
  5. Think before you post!

Social media has transformed modern communication. It allows people to share interesting as well as mundane stories, engage with businesses, market their own expertise and connect with peers.  But when you use social media, temper your behavior online and don’t be impulsive.

Yolanda Floro is Leaders in Heels’ Social Media Editor. This is an edited and modified extract from a recent paper she wrote on Defamation and Social Media as part of her Masters in Law, Media and Journalism studies.