Exploring the Grey Area of Social Media Laws with Avis & Funk Law
We can’t imagine life without social media, but sometimes we forget that though social media is a bit over 20 years old, it’s still relatively new and changing - as are any laws surrounding it. Social media is rapidly expanding everyday, and the lines of what’s ethical and what’s not are becoming blurred with every new viral trend. We decided to sit down with our friends Benjamin Avis and Larissa Funk from Avis & Funk Law to answer some questions we get asked all the time about the legal side of social media dos and don’ts.
From reposting others’ photos on Instagram to running a campaign/competition on social media, let’s dive in and debunk the “grey area” of legal implications surrounding social media. (Bonus! Stay tuned to the end for a little surprise…)
FAQ #1: Can I repost photos from other people’s Instagram account on my own account as long as I credit them? How do I “legally” credit someone?
We’ve all been there! You see a stunningly styled photo on Instagram and think ‘I want that on my feed too!’ (We can’t help ourselves, we just love the content people create) Quick screenshot and repost with credit to the original author by tagging the photo & writing in the caption, it seems almost too easy! But is it enough? And what are my rights to my content if someone reshares my photos?
Avis & Funk Law says that first of all, it’s important to understand why it would be illegal - mainly as it is a breach of that person’s copyright. For example, when you take a photo or create an image, you own the rights to that content even when posting on Facebook and Instagram. You wouldn’t like it if someone reposted a photo you took without crediting you. They might not mean any harm, but it would seem like they are claiming your work as their own. Get what we mean?
The part that can get a bit blurry with this, is that as part of Instagram + Facebook’s terms and conditions, you grant them a licence to use your content. So do they own the content now and it’s free for use? Not exactly. Their terms allow them to use your content for free, and to “sub-licence” it to others, until you revoke that licence. Facebook and Instagram don’t generally grant this sub-licence to other parties, which is why if you report a post that someone is using your content without permission, Facebook + Instagram will remove the post.
Our first suggestion when it comes to reposting others’ content is to always ask the owner! Send a quick DM and ask for permission before posting anything. More often than not, people are happy for you to share their content as long as you credit them as it can mean great exposure for them if you have a good following, and more followers + engagement too!
All in all, you don’t want to steal someone else’s work and claim it as your own or credit incorrectly, so the best way to play it safe and make sure you’re always respecting the true owner is to ask permission and always credit the author like this “📷: @dashofmilkagency” & tag them in the post too.
TIP: Use a reverse image search engine to confirm who the true owner of a post is before crediting. Just because someone has posted a photo, doesn’t mean that the person posting it is the true owner of that content (they may have taken it from someone else without their permission).
FAQ #2: Can you trademark a hashtag, a handle name (@....) or an emoji? What happens if you use it without permission?
Yes, you can! These days, you can trademark pretty much anything, and that includes hashtags, your Instagram handle, and sometimes even emojis. Before registering a trademark hashtag, you need to consider:
Is my hashtag too general? Something like #TGIF would be too general due to its previous popularity and widespread use. On the other hand, something like Twisties’ #LifesPrettyStraight is more unique and acceptable to trademark. Maybe we need to trademark hashtag #DoTheDash before someone snaps it up!
FAQ #3: If I list my workplace on my social media account/s, are there any legal implications I need to consider?
Before you list your workplace on your social media, you should think about what kind of workplace/industry you work in, and whether your posts and social media are a reflection of you professionally. For example, if you were sharing somewhat racist posts on your personal Facebook page (okay, whatever) but also using your personal Facebook to liaise with clients - even outside of work hours - your client may believe you’re still acting in your ‘professional capacity’ and representing the company you work at, leading them to believe YOUR views are the views of the company too.
This would be likely to be quite poorly received by your employer. Although Avis & Funk says that ‘disciplinary action’ usually doesn’t go further than a simple reprimand, it’s best to avoid the sticky situation altogether by either: not listing where you work; making sure your settings on your social media pages are set to the most private possible; or just don’t risk it by not posting any shady content on your page. (Even if your dismissal wasn’t legally justified, the only way to fix the situation would be to go through the proper court process and no case with social media is ever black and white.)
FAQ #4: Do the same advertising rules for traditional media outlets apply to social media?
Absolutely! Avis & Funk Law says that just like in traditional advertising mediums, you can’t run an ad with false claims that are misleading or deceptive to your clients/customers. However, the same defences also apply, so ‘puffery’ or ‘horn-blowing’ tactics such as us saying ‘We offer the best social media services in the world!’ would not be considered misleading or deceptive since it’s generally obvious that you’re exaggerating (but we do think we’re pretty great…)
Another point to consider is that you must obey the rules of individual platforms when it comes to advertising. Have a little look through the terms and conditions to cover your bases before you go posting any ads (or hire someone who can decipher the jargon!)
IMPORTANT! Remember that your business may be liable for any comments that OTHER people leave on your ads that are misleading/deceptive so make sure you’ve got your eyes peeled and hit that delete button on any problematic comments.
FAQ #5: Are there any laws I need to consider before running an Instagram competition?
Most platforms have their own rules when it comes to running competitions on social media, and ignoring them can land you in hot water real quick, so make sure you cover your bases and have a good read through the terms and conditions of those too before running a social media competition. Not to scare you or anything, but penalties can range from a slap on the wrist fine, to some way more serious consequences (Yikes, that’s a BIG no-no from us).
Don’t go throwing away your ideas for a social media competition though! We’ll touch briefly on some of the main things to consider:
Usually the most common consequence is having your post deleted or your account banned (a slap on the wrist in the scheme of things, but not ideal)
Laws can very from state to state, so if you’re running a nationwide competition on your socials, your post needs to comply with the laws of EACH state that the content entries are valid to. You can always limit your competition to just one state to work around this, but this takes away from the beauty of social media reach a little
Just like with advertising, your business must comply with Australian Consumer Laws even when running a competition - so that means no misleading/deceptive tactics here either. Avis & Funk Law shared with us a sneaky example of this, a business who promoted a contest stating that every entrant had a ‘chance’ to win a prize when in fact every entrant was GUARANTEED a prize and the contest was just a workaround attempt to collect information from entrants! We highly recommend NOT doing this...
Be wary of defamation and what your entrants post/or are required to post as part of their competition entry, as you can be liable for this too! (E.g. If the contest stated in ‘25 words or less…tell us X’ then if that person writes derogatory comments about someone else on your company page, you could be at fault for this. Same goes for ‘intellectual property’ if entrants upload an image that is owned by someone else as part of their entry, you can be potentially at fault for basically facilitating the breach of someone’s copyright - not good!
We know this sounds like a lot to consider, but to cover all your bases, basically make sure you comply with the platform’s rules and relevant state’s laws, hit delete on any potentially misleading/deceptive comments as soon as you see them, and to keep you and your business extra safe - call up your fave lawyer to prepare a comprehensive set of terms and conditions for you like our pals at Avis & Funk Law!
Some handy resources with the guidelines for competitions and promotions on Facebook and Instagram!
HEY YOU, YOU LUCKY THING! Avis & Funk Law are offering $99 Legal Audits as an EOFY deal in the month of June to all you lovely business owners out there - hit them up for help deciphering the fine print & for developing your own terms for your next social media competition ;)