Social media is an integral part of a brand’s marketing and ecommerce strategy. Social media is used as an important tool to help promote your business, connect with customers and generate sales.
As a small business owner, you need to be aware of the legal risks when marketing your products and understand how you can reduce your risk. We look at the 5 key issues you should keep in mind when engaging in Social Media Marketing.
1. Copyright
Freely available ≠ free to use!
Just because content, for example a photo or design, is available on the internet, doesn’t mean it is free to use.
If you take content from the internet (including a social media platform) that is owned by another person to promote your business without getting their approval, you may be infringing that person’s copyright.
Copyright exists in photos, drawings, books, articles, films, TV shows and music. Even if you only copy a small part of someone else’s work, you may be in breach of copyright laws.
The safest approach is to always get approval from the copyright owner. The owner may allow you to use the content, but some owners may require specific licence terms and the payment of a fee. This is likely to be the case if you are using the content for a commercial purpose.
You should also be wary of anything claimed to be ‘free’ and also check the fine print of any creative commons licences. Sometimes there are restrictions on commercial use.
2. Misleading and deceptive conduct
The claims you make about your products need to be truthful and accurate.
Tough penalties can apply under Australia’s consumer protection laws if the claims you make about your products are false or misleading. This could include:
- making false or misleading claims about the features, benefits or performance of your products
- creating fake customer reviews or testimonials
- suggesting an association with or endorsement from another company or person to promote your products when that association or endorsement is not real
- paying an influencer to promote your product and disguising it as editorial
The Australian consumer law regulator, the Australian Competition and Consumer Commission (ACCC) has broad enforcement powers and you are expected to regularly monitor your business social media pages, including user generated content, for false or misleading claims.
3. Advertising standards
The Australian advertising industry has a system of self-regulation, including codes of conduct and a consumer complaints system. Content published by your business on social media will be considered to be advertising for the purposes of this framework.
The main code to consider is the AANA Code of Ethics which is regulated by Ad Standards. The code deals with community standards on matters including discrimination, sexual exploitation, violence and health and safety.
The code also requires that advertising content is clearly distinguishable as advertising.
This means your advertising content should meet generally accepted ethical standards. It also means that your advertising content should not be disguised as editorial content.
4. The rules of the social media platform
It’s important to understand the terms and conditions of use of each social media platform you use.
For example, using someone else’s photos on Instagram for your own advertising requires the consent of the copyright owner, not just a credit. Some users may be happy to share their content, but others won’t. For example, influencers who are leveraging their own brand will expect to be paid if you want them to endorse your product.
Similarly, professional photographers may request a fee in exchange for your use of their images.
If in doubt, seek permission from the owner of the content!
5. Defamation
Defamation is the publication or broadcast of material about a person that injures that person’s reputation.
The risk with social media is that defamation could potentially occur by allowing a user to upload a defamatory comment on your social media page and not taking it down within a reasonable period of time, or by liking or sharing a defamatory comment made by someone else.
Recent developments in defamation law mean that it’s increasingly important to monitor user generated content and remove defamatory remarks.
Need legal advice on your Social Media Marketing?
Our specialist advertising and marketing lawyers advise brands and agencies on all aspects of advertising, marketing and PR campaigns and executions. We can advise you about any legal concerns you have in relation to your Social Media Marketing, and assist with any contracts you may need.
If you need assistance with your advertising and marketing communications, please contact us via for form below or email info@creativelawyers.com.au.
Sam Berry
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