Legal Risks of Social Media

3 August 2015

As published in CK Momentum Issue 3  (Click here to download)

In an article profiling a social media consulting business, The Australian recently commented that in 2008, when the business was founded, the number of times the term “social media risk” was searched on Google was so low it didn’t even show up on statistics. Today the same search term is Googled 15,000 times per month.

There are no specific “social media laws”, but the nature of the medium is so accessible and immediate that it poses unique legal challenges.

Corporate and Commercial Partner, Peter Karcher, looks at some strategies to protect yourself and your business when delving into the social media world.


Last November, a former high school student was found liable for defamation and had $105,000 damages awarded against him for comments he made about his former high school music teacher on Twitter and Facebook. This case is a wake up call that everyone is a publisher these days, and comments you make on social media are subject to the laws of defamation, contempt, misrepresentation, and misleading or deceptive conduct. So you need to tread carefully and be sensible!

If you or your business is defamed or damaged online, it is important that, in addition to any legal avenues you may have, you inform yourself about the complaint and takedown procedures of the social media platform concerned. This will maximise your chances of having offensive material removed swiftly.


With nearly 10 million daily active Facebook users in Australia, having a corporate Facebook page is becoming de rigeur. Yet businesses can be liable for not just what they post themselves, but also for material posted by users of their site. In 2012, the Advertising Standards Board held user generated comments on VB’s Facebook page to constitute “advertising” which was in breach of the national advertising Code of Ethics. There have also been court judgments holding false customer testimonials on a business’s website and Facebook pages to constitute misleading and deceptive conduct by the business from a consumer law perspective.

Businesses need to actively moderate any online media forums or platforms they control, and react quickly and seek advice in the event that problematic or questionable content is posted.


In May this year, Jetstar started advertising free airfares to Sydney and 5 star accommodation holiday giveaways on their corporate Facebook page. Too good to be true? In fact it was, turning out to be a hoax site under the name “Jetstar Australia” but using Jetstar’s official logo and corporate indicia. That didn’t stop the page getting 18,000 likes within 24 hours. To protect your brand and assist in getting infringing material taken down as quickly as possible, register your brands and logos as trade marks with IP Australia.


Check the terms and conditions of the social media platform you are operating on for any onerous obligations or potential liabilities. When you play on Facebook, Twitter, or LinkedIn, remember you are playing on their turf, and by their rules!

This bulletin is produced as general information in summary for clients and subscribers and should not be relied upon as a substitute for detailed legal advice or as a basis for formulating business or other decisions. ClarkeKann asserts copyright over the contents of this document. This bulletin is produced by ClarkeKann. It is intended to provide general information in summary form on legal topics, current at the time of publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters. Liability limited by a scheme approved under professional standards legislation. Privacy Policy


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