CommsCon 2014
Firm principal Stephen von Muenster recently attended Mumbrella’s CommsCon on 20 March 2014. He presented a question and answer session on ‘Managing Risk: How to keep your brand on the right side of the law.’
During this session, Stephen was asked questions relating to a number of legal areas. Below are some key take outs from the session.
Copyright:
I run a small PR agency. When I help a client get great publicity in the newspapers, I sometimes scan in the clippings and put them on our website, and also send them a copy. I’ve heard I could get into trouble for this. What should I do?
• Copyright protection automatic and applies to editorial works if there is a reproduction of a substantial or important part of an original work
• No copyright in linking to the article; no copyright in simply the headline of the article
• For reproduction in full, including on the Internet, get a licence from Copyright Agency Limited (CAL) for the use as this is a collecting society that manages a number of publishers’ interests
Libel:
We look after a client’s Facebook page. Sometimes the public say some pretty offensive things in the comment thread about the brand, or other people. If it’s libellous are we liable?
• Under Defamation Acts (2006) defamation can occur where one person publishes content [words, sound, video, images] that damages reputation of another identifiable person
• Liability for defamatory publication can extend to a brand where the brand is able to exercise control over a publication, there is knowledge of the publication and there is a failure to prevent or remove the publication by a third party, eg on a brands blog or Facebook page etc
• Have clearly stated community guidelines and netiquette outlawing personal attacks, vilification and defamation. Such comments would also be a breach of Facebook’s Rights & Responsibilities
• Actively moderate or review blog postings / comments and remove those that breach community guidelines or rules of social media site – do not rely on users to tell you
• Remember the case of Federal Court decision in Seafolly Pty Ltd v Madden highlights social media legal media risks in the areas discussed above, including:
o Misleading & deceptive conduct
o Injurious falsehood
o Copyright infringement
o Defamation
Privacy:
I help run the social media community for several of our clients. Are there any implications of the changes to the privacy laws in how I share any information we gather?
• You need an up to date privacy policy
• You need a compliant collection statement at the point you collect personal information
• All direct marketing via ANY channel (including banners and social) that uses personal information needs to comply with APP 7 (direct marketing)
• Direct marketing can be via any channel including:
o Telephone
o SMS
o Mail
o Email – eg using personal information provided by customer in the course of signing up for a loyalty program
o Online advertising – including targeted advertising when browsing
o Social advertising – eg facbook user ID’s, displaying an ad on social media to an individual using personal information (including data collected by cookies dropped as a result of the individuals site visits)
Non-competes
I’m about to change agencies. I’ve got a great relationship with a couple of clients, and I think I can persuade them to come across. I also happen to know that the contract is up soon. Are there any risks in getting involved in bringing them in?
• Comes down to your contract
• Usually we see non-competes and non-solicits
• Non compete means you cannot work for a competitive business but these are difficult to enforce against employees who need to earn a living in their chosen profession – unreasonable restraining
• More enforceable if can be proven are the non-solicits of clients of the former agency or employees of the former agency
• Also need to consider confidential information and IP issues that arise in employment contracts
Non-competes
I’m tired of training up staff, then just as they are becoming useful they get poached for more money and move to a rival. Is there anything I can do to stop them from working somewhere else?
• Pay them more money
• Bonus incentives tied to loyalty and staged payments
• Enforce non-solicits if applicable
Intellectual property:
I’ve had a great business idea. But I did some of the work on it during my lunchbreaks. If I go out on my own can my employer claim they own the idea?
• Need to check your employment contract to see if there is anything said as to what is “during the course of employment”. It may cover lunchbreaks particularly if you are using company assets eg computers, resources etc to develop your idea.
• Need to consider if the ‘idea’ is IP – if it is something protected by copyright and it is in the course of employment then agency will own the IP
• If it is an idea only it may be protected by employment contract and the common law obligations of confidence that an employee has to his or her employee
• Best to come up with your ideas at home out of work duty hours and only tell your employer of your idea if you agree with them up front that you own it at this stage
Debt collection
A relationship with a client ended badly. They haven’t paid their bills for the last three months, claiming they got no results. They had unrealistic expectations. They owe us about $20k. Should I sue?
• Depends on the circumstances of course. There may be legitimate dispute here.
• If they never raised any concerns prior and now conveniently, after the relationship ends and you have issued final bills, they say they did not get what they paid for, they may find it hard to defend.
• Statutory demand is a possibility
• Always get legal advice
We are always happy to answer your questions. Please contact us on (02) 8221 0933 or via info@vmsolicitors.com.au if you have any further queries.