Think before you type – Social media can land you in Hot Water!
by Sharon Givoni
A recent legal stoush between two well-known Australian swimwear labels over photographs and comments posted on Facebook serves as an important reminder to people in business of the dangers of using social media when making comments about other businesses. What happened in the case?
Leah Madden is Principal of White Sands. She discovered what she thought to be a “rip off” of some items in her 2009 “Shipwrecked” swimwear collection. She posted an album on her Facebook page entitled “The most sincere form of flattery?”. The postings featured several side-by-side comparison shots of models wearing White Sands and Seafolly swimwear respectively and below the images Madden inserted descriptions such as: “White Sands 2009-Seafolly 2010”. She embellished the images with comments such as:
- “Seriously, almost an entire line-line ripoff of my Shipwrecked collection.”
- “I know, the buyer from ‘sunburn’ (who, as it turns out, works for seafolly) Came to my suite at RAFW and photographed every one of these styles.”
- “Ripping off is always going to happen, but sending in a dummy ‘buyer’ to get photos is super sneaky!”
The Facebook statements were read by many people, and elicited quite a response. People said:
- “Nasty! Shame on ’em! Won’t be buying Seafolly. WHITESANDS all the way. X”
- “Seafolly own everything! Sunburn, miraclesuit and gottex and they used to own jets but sold it recently! And unfortunately they do rip off everyone, they have copied a design 2 chillies has been doing for years! A little frilly triangle, its so bad!”
- “Disgusting! How people look at themselves in the mirror is beyond me.”
Madden then sent emails to media outlets also using the same words “The most sincere form of flattery?” in the subject line of each email.
Responses from readers included
- “This sort of thing is happening ALL the time. Large corporations no longer have ‘designers’ but ‘product developers’ that source indie designs, copy and mass produce them.”
- “Yeah right Seafolly – you really expect us to believe this garbage?…”
What did Seafolly do? In response, Seafolly circulated a press release heavily denying the allegations of copying. It was able to show that it had already had the designs in the marketplace before White Sands. White Sands responded by stating that it had never specifically accused Seafolly of plagiarism.
However, from Seafolly’s perspective the allegation of copying was clearly implied. It needed to set the matter straight and it issued legal proceedings in the Federal Court of Australia. Seafolly alleged:
- Misleading and deceptive conduct (in relation to Madden’s emails to the press)
- Injurious falsehood (namely, that Madden’s comments and posts had caused damage to Seafolly’s reputation and thus economic loss) and
- Copyright infringement (as White Sands had reproduced Seafolly’s swimwear photos online without permission).
Madden argued that she had only expressed an “opinion” – not a statement of fact so it should have been alright. The judge disagreed. Madden also argued that she was not making the comments in “trade and commerce” so the misleading and deceptive provisions did not apply. Again, the judge disagreed as the setting was clearly in a competitive context. He found that Madden’s comments were “a serious assault on Seafolly’s business integrity”.
Seafolly’s CEO agreed (of course!). He commented that in “this day of internet, where things go viral” once things are released into the “public space, no amount of logical reasoning actually matters”. “…Once she put that up there, I was finished anyway… the damage had been done.”
Ultimately Seafolly succeeded in its arguments concerning misleading and deceptive conduct. White Sands was ordered by the court to pay Seafolly damages in the sum of $25,000 and Seafolly’s costs of the court application.
However, in reality, no-one really won. The public airing of their “catfight”, led to both companies attracting some level of negative publicity. One headline state: “Swimwear designer ‘malicious’ against rival” and, “Court slams small designer for falsely accusing bikini maker Seafolly of ripping her off.”
Tips for commenting in Social Media
- Think before you speak (or at least think before you type, especially when it comes to social media).
- Just because you do not expressly say something, if you imply it, that can be just as bad, legally speaking.
- Posting things on social media sites may be considered “in trade and commerce”, especially if you mention your competitors and could be deemed misleading.
Disclaimer – The contents of this article do not replace tailored legal advice
*Sharon Givoni is an intellectual property lawyer with 16 years and has clients across all industries.
If you are the owner or founder of an SME (Small and Medium Enterprise) or are the person responsible for sales or business development in any size organization then your reputation – your personal branding is paramount in your personal success and the success of your organization.
‘Brands are like people’ is an analogy often used to describe the companies they represent. Virgin is the brand built by Richard Branson and the two are hard to separate. Consumers buy into the personality of the founder and what it represents and promises.
In many cases however ‘brands are people’ – every celebrity is a brand, from Oprah to Dr.Phil, to rock stars and actors to sports people like Beckham.
Business brands take on or communicate the values of their founders. This is especially true for start-ups and new businesses, professional services firms where the names of the founding partners make up the brand names. Although this is not the best way to brand your services business this is still the dominant reality for many.
So the brands are designed and communicated by people. People, especially in services industry is who we all buy from! So it makes sense that ‘these people’ have an optimal representation of who they are and what makes them special in the place where it matters most, the place where positive perceptions are formed – online!
Your online identity and representation is made of your online assets:
- Blog / Website
- YouTube Channel, etc
The most important of these in the SME (B2B & Professional Services) is LinkedIn, and we’ll cover this next.
I say you should. In fact you should make every effort to do so! In general, the better your idea or Intellectual Property (IP), the harder it is to sell it, to get people to believe in it.
Your so called IP is already ‘on Google’ and if you think your IP will somehow protect your business, you’re sadly mistaken. Today anyone can learn how to do anything simply by going onto Google, YouTube, or in any of the social media channels.
But just because your prospects know what to do they will not necessarily know the intricacies of how to do it. As a marketing company, qubePartners has made many marketing resources freely available for all to see and download – http://www.qubepartners.com/marketing-resources. These templates have taken us many years to develop and we believe they are the best free small business marketing and advertising resources available. We were at first hesitant just giving them away. But then we realised that it is not only the questions in these marketing templates that deliver the results but what you do with the answers that makes all the difference. Here is a blog on ‘Marketing Secrets’ that discusses this in detail: http://www.qubepartners.com/blog/beware-of-marketing-secrets-the-problem-with-sme-marketing
Furthermore your customers may not have the patience or the skill to do so which is where you expertise comes in. By giving away your so-called IP you can exhibit thought leadership and you can provide your future customers with the confidence of knowing that you can help them, which will put your business in their “top of mind” for when the time comes to choose a provider of what ever it is you specialise in!
Here are a few examples of freely available IP and how this has not changed the market dynamics:
- Copywriting: It is a skill, there are many small players around the world all vying for SME business. There also just as many Copywriting practitioners teaching these skills in Copywriting courses, selling ebooks, e-learning, webinars etc. And there are many SME business owners using both of these types of services. Of course there are also many many books on the subject, ranging from the simple to complex. Now if you look at the standard of copywriting on most small business websites, you would be forgiven in forming an opinion that all this copywriting expertise and so called IP has not made any difference and the general standard today is just as bad as it was 5 or 10 years ago!
- For years most business owners were extremely frustrated about not being able to quickly, easily and freely or cheaply manage their own website. And then technology advanced and gave us CMS – Content Management System. Today 99% of all websites have an easy to use content management system yet probably less than 5% percent of SME website owners actually use the system properly or regularly to get any real benefit from it. Instead they use their website marketing or website design company to change the content for them and make sure the website look professional and is maintained correctly.
- Web Video is a reasonably new expertise, gaining great popularity as a marketing tool. Yet the principles of video production and engaging storytelling have not changed from those practiced by the Hollywood studios or advertising agencies. The only change has been in technology. So if you were a Video Production business specialising in video production and video promotion for small businesses would you and should you teach your customers and prospects how to D.I.Y and hence give away your I.P.? Once again I say absolutely!
- If you don’t, somebody else will! Your prospect will find someone who will do this for them or they’ll “learn it themselves for free” – although we all know it is not really free and the opportunity cost of their time is the greatest cost! So you end up losing incremental revenue if you don’t teach them, revenue you would not normally get a sniff at!
- By showing your customer how to film their own marketing web video, you will get your customer to understand the complexity of what is involved. And understanding means appreciation!
- Even showing a customer how to do it, does not mean that they can or will do this themselves! They probably don’t have your passion and enthusiasm, creativity and skill level to do a professional job then when compared to your standard! After all they are in the business of doing what they do best, which is NOT video script writing and story boarding, shooting, lighting, editing, uploading and promoting on the web, etc
You can now see the list of I.P. being given away or do-it-yourself advice is never ending…there is information on every topic imaginable and it is free! From SEO to Photography, Conveyancing and Plumbing you can get it all at a click of your mouse. Why does a UK Plumbing company have hundreds of Plumbing Video’s online for free? Because it understands that by doing so they will be seen as an expert which will help them win much better and more complex jobs, and they also understand that there will always be a segment of the market who will watch their YouTube video and say “it looks too hard, I’ll just call them!”
If you’ve realised you can’t do all your marketing and advertising in-house, take action now.
It’s quarter 4 already and your plans for 2012 should be signed off and ready to implement. Most budgeting and marketing plan development for 2012 normally happens around September. But, it’s not too late.
The key to getting your marketing sorted is being a priority to the marketing agency and advertising agency that you plan to use. Before selecting an agency, consider this…
Are you going to be a big or small client to the agency? The truth is, if you are just a small account, you might not be a priority.
Choose an agency that is of a comparable size to your business. This way you will get the service you deserve, the attention you need and the outcomes you expect. At qubePartners, a marketing consultancy and advertising agency, all in one, we work with many small to medium size businesses that need a partner in marketing and advertising. Our business is an extension of yours and functions as your marketing department.
It’s about resourcing and experience, we have both! So, don’t think that using a big agency is the answer; firstly, they will charge you like a large corporate but will put your account down the priority list, because your business is small. It just doesn’t make any sense.
When you are too small to matter to the big boys, you’ll matter at our agency and we’ll make a big difference to your marketing results.
You can connect with qubePartners team members and get exposed to the latest ideas in the world of marketing at a number of events throughout the year.
Get inspired, learn and network with other professionals at one of the numerous events that qubePartners participates in.
Here are some of the public events you can meet
and learn from qubePartners:
|Australian Anthill Entrepreneurs Night Out Are you an…
- Innovative Business Owner
- Based in Victoria
- With a passion for business
And a desire to meet other like-minded business builders?
If so, you are invited to join Anthill’s ‘Entrepreneur’s Night Out’ Tuesday 10 May 2011 (6pm-9pm).
|Time & Date: Tue May 10 6.00pm – 9pm
Location: Three Degrees, No1 QV Sq, Cnr Swanston & Lonsdale
RSVP: Enquire Now
|Social Media Summit
Day 1 includes a range of 1 hour presentations, a debate and some more general sessions. In the evening is a cocktail function – the Social Social.
Day 2 consists of more in-depth, 2-hour tutorial sessions.
|Time & Date: Mon May 30 to Tue May 31
Location: Level 2, 115 Elizabeth St, Melbourne
Cost: 1-Day $795 or 2-Day $995
RSVP: Enquire Now
|LinkedIn Etiquette and the Law Urban Workshop
Linkedin has taken the art of headhunting to dizzying new heights heralding many questions relating to this new business tool.
- How can we best use this amazing technology?
- What is acceptable and what is not?
- Does Australian law prohibit or restrict corporate and HR department behaviour?
Have these and many more questions answered in an entertaining and informative evening.
|Time & Date: Thu June 2, 5.00-6.30pm
Location: Conference Facility (next to SMAART Recruitment Office, 23 Little Lonsdale Street)
Details: Download brochure here
RSVP: Enquire Now
|Victoria University 2011 Business Breakfast Club – Using Social Media to Grow Your Business
The Business Breakfast Club Series is designed to help you kick start your own business, or to improve your understanding of emerging business trends.
Network and learn from leading entrepreneurs how to translate your ideas into a successful business. Discover how they got to where they are, survived tough times and continually evolved their businesses to stay ahead of the competition.
|Time & Date: Tue August 9 7.30am- 9.00am
Location: Level 9 Conference Room 9.15, VU City Flinders Campus, 300 Flinders Street, Melbourne
RSVP: Enquire Now
If you have any interest in this event or have a interest in a marketing topic for an event, contact qubePartners on 03 9018 7224 .