In the case of Seafolly v Madden [2012] FCA 1346, Leah Madden, the principal of White Sands, an Australian swimwear label, posted statements and comments on her personal Facebook page indicating that Seafolly Pty Ltd, a competitor of White Sands, had copied some of her swimwear designs. Consequently, Seafolly alleged that Ms Madden had engaged in misleading and deceptive conduct, in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the “Act”).
Ms Madden argued that her comments could not be construed as misleading and deceptive conduct. She further argued that her statements amounted only to an expression of opinion as distinct from statements of fact, submitting that a statement of opinion could not be held to be misleading or deceptive conduct.
The Federal Court of Australia held that the comments posted by Ms Madden on her Facebook page and the page of her business, were misleading and deceptive and were in contravention of the Act. It was further held that by posting the comments without doing preliminary research, Ms Madden made the statements with a reckless indifference for the truth.
Accordingly, the Court granted an injunction to Seafolly to prevent Ms Madden from making further statements alleging that Seafolly had copied Ms Madden’s designs and ordered that Ms Madden pay for Seafolly’s legal costs.
Tips
- Be careful of what you post on Facebook or other social media;
- Obtain legal advice before posting claims of copyright infringement; and
- Understand that statements posted on Facebook or other social media can be considered to be made “in trade or commerce” where the statements have a connection with your own business or that of someone elses.
If you have any questions in relation to this article, please contact Damin Murdock at Leo Lawyers on (02) 8201 0051 or at office@leolawyers.com.au.
DISCLAIMER: This article is not to be taken as legal advice and is general in nature. If you require specific advice, please contact us.
