Be Careful What you Say
People are often unaware of the risks associated with posting on social media.
We think of concepts of free speech and voice our opinions online without so much as a second thought. However doing so can sometimes get you or your business into serious trouble.
If you post something or responding to comments online without thinking things through this can backfire if what you write is wrong or defamation.
As a result, you may find yourself having to provide evidence to the truth of your opinions at court.
The case of Seafolly v Madden is an ideal example which highlights the importance of knowing the truth before you post and is discussed further below. It is a cautionary tale to remind businesses to take a step back before making posts which imply that another business has “ripped off” your work.
What happened in the case? In early 2010, Ms Madden was looking to promote her White Sands swimwear range to interested retailers. She met with Ms McLaren (the Accounts Manager at Seafolly) in the lead up to Rosemount Australian Fashion Week (RAFW). During the meetings, Ms McLaren had taken photographs of the White Sands Range on her phone. Ms Madden never heard from her again.
In September 2010, Ms Madden came across an issue of the Gold Coast Panache magazine where the front cover featured a model wearing what she believed to be swimwear from her White Sands range, but it was labelled as part of Seafolly’s new swimwear range. Ms Madden said that she genuinely believed that Seafolly had copied her White Sands range.
As a result, on the same day as coming across the magazine, Ms Madden posted comparisons of her swimwear range against Seafolly’s on to her personal Facebook page (see Table of Comparisons at the end of this article). Notably, Ms Madden included captions which consistently stated that her White Sands range had gone to market before.
This post was also emailed to various news and media outlets.
Ms Madden’s post led to a wave of online public shaming from Ms Madden’s supporters who agreed that Seafolly had copied Ms Madden’s White Sands swimwear range. A few examples of comments were:
“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!”
“well that is why you are always a step ahead! Take it as a compliment for now and NEVER allow them to come to another one of your shows with a camera!:)”
Things escalated, and Seafolly sued Leah Madden for misleading and deceptive conduct, injurious falsehood, and copyright infringement.
Ms Madden counter-claimed and sued Seafolly for defamation and misleading and deceptive conduct relying on Seafolly’s comments made during its press releases to public.
What happened at court?
At court, Ms Madden stated that she did not know nor explicitly state that Seafolly had copied her designs. Unfortunately, this didn’t go down well with the court. They conducted a detailed analysis of the Facebook post and associated comments and confirmed that Ms Madden clearly believed Seafolly had copied her White Sands range copying.
Further, Seafolly were able to establish that six of the eight Seafolly designs mentioned in Ms Madden’s post had been on the market prior to May 2010. The other two were going through design stages and were released in July 2010. This proved that Ms Madden’s captions were wrong and not based on factual evidence. Ms Madden was unable to prove otherwise.
What could Ms Madden have done better?
As a result, the court reprimanded Ms Madden for not taking the time and care to find out the truth before making the posts online. Significantly, the court stated:
“Before posting her views, she failed to take a number of steps which would have elicited facts inconsistent with the notion that any copying of her garments had occurred.
She could, for example:
have made enquiries of retailers to establish when the Seafolly garments were placed on the market…
attended a retail outlet and examined some, at least, of the Seafolly garments…
made enquiries of Seafolly with a view to ascertaining when the costumes which she considered had been copied had been designed and released to the market; and
have paused to consider whether her creations which she thought had been copied had been on display at the private viewing and parade which Ms McLaren had attended in May 2010…
Her failure to take those steps (or some of them) was not merely careless. It resulted from her conviction that copying had occurred and her determination to expose what she saw as Seafolly’s misconduct. Her resolve was such that she was prepared to and did make the statements not caring whether they were true or false.”
(emphasis added).
What did the court decide?
The court took the view that Seafolly’s claims for injurious falsehood failed because it was unable to evidence any economic loss caused by Ms Madden’s posts.
Seafolly’s copyright claim also failed because at the time of the post, it did not own the copyright in the photographs (the photographer did) used in Ms Madden’s post.
However, Seafolly was able to establish that Ms Madden’s post did mislead or deceive the public and Ms Madden was ordered to pay $25,000 in limited damages for the harm caused to Seafolly’s commercial reputation.
What can we learn from this case?
Ms Madden should have found out, or at least made attempts to find out the truth of when Seafolly’s swimwear range came into the market. Had she taken the steps mentioned by the court such as asking other retailers or going to the Seafolly stores to find out when that Seafolly range entered the market, she would unlikely have made the Facebook post, the whole court case could have been avoided, and she could have saved herself $25,000.
Further, it is likely that had she made such enquiries, but still made the post, the court would have sympathised with her attempts to find out the truth and she may have been ordered to pay a lesser sum.
Conclusion
We are all entitled to our opinions, but when our opinion might harm the reputation of a business, we need to be sure that our opinion is true, or at least founded on attempts to discover the truth.
Ultimately, it is best to seek legal advice to ensure the necessary enquiries into determining such truth are made. As we now know from Seafolly, our activities on social media can sometimes results in costly consequences.
Remember, think before you post, because the Internet never forgets.
If you wish to post something on social media or you feel you have been defamed, please contact Sharon Givoni Consulting for comprehensive legal assistance.