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Social Media – Your Brand and the Law

By: Ilona Teremi, Kreisson Legal

Copyright basics – Copyright exists in any original expression. That includes any artistic, literary, musical, film or broadcast work, but not a mere idea. The work is owned by the creator of the work, unless the person is doing it as a part of their role as an employee, journalist or as a commissioned work (in certain circumstances). Contractors are not employees, and unless assigned, they retain the copyright to anything they create. A copyright owner’s rights are infringed if a substantial part of their work is copied or made public without permission.

Your content – When your business uploads content to a social media platform, you are required to agree to that platform’s terms of service. Those terms will grant the service a licence to use any material you provide to it and the extent of this licence varies from site to site. However, even if those terms are acceptable to you now, you should be aware that terms may change without your express knowledge.

Brands – When you work with social media, your brand is a valuable asset (perhaps the most valuable asset) that you will want to protect. Trade Mark Infringement is the use of a mark which is substantially identical to, or deceptively similar to, a registered trade mark on similar goods or services. Where a brand exists but no Trade Mark has been registered, the tort of Passing Off may be enforced similarly. Misleading and Deceptive Conduct occurs where a person involved in trade or commerce, engages in any conduct that is misleading or deceptive or is likely to mislead or deceive. Meanwhile, Name Squatting and Parody Accounts, cover any registration of another’s name or brand name for malevolent purposes. This includes the registration of social media handles and domain names. Although not a cause of action itself, Name Squatters are very likely to be infringers under other grounds.

What Are Your Remedies?

Proactive steps – Perhaps the simplest protection of your brand is defensive registration. This refers to the creation of official brand accounts for each social media platform. Although this is not an enforcement mechanism, it is simple and cheap and offers an official outlet for your customers to gravitate towards. On most social media platforms, under the terms of service, you will also have the right to lodge a complaint if your intellectual property is being infringed upon. If serious damage has been done to your brand, legal enforcement mechanisms may be appropriate.

Reactive steps – First consider if it is in your best interest to stop the use. The public relations fallout from coming down heavy handed against an individual might substantially outweigh any benefit. If your organisation decides that stopping any unauthorised use is necessary, it is important to act quickly, action any terms of use violation and then if all else fails, consider formal legal action.

Social media is an important tool, but a number of legal risks are present for organisations. However, most risks associated with intellectual property infringement and brand management can be effectively controlled through education of staff and the development of a strong but flexible social media policy.