Guide to Social Media: Risks and Opportunities for Business

GUIDE TO SOCIAL MEDIA risks and opportunities for business Contents

Introduction 1 Monitoring third-party social media sites for content 11 What do we mean by “social media”? 2 What are your options for defending yourself? 11 What do you need to consider? 2 Who’s liable for content? 11 Social media providers’ terms of use 2 Self-help mechanisms 11 The standard terms 3 Taking down fake sites 12 Creating and maintaining a social media presence 4 Defamation and corporations 12 Misleading and deceptive conduct 13 Planning and establishing a social media presence 4 Injurious falsehood 13 Establishing social media communication responsibility 4 Discrimination 13 Social media governance strategy 4 Criminal sanctions for trolling 13 promotional activity and advertising issues 5 Practical steps and matters to consider 14 Continuous disclosure obligations and social media 5 Litigate or engage? 14 Discrimination 6 Developing a crisis management plan 14 Why you should monitor your own social media Assessing the risk in user-generated content sites for objectionable content 6 on third-party sites 15 What should you do when you find How will you respond? 15 objectionable content? 7 Steps to take to get material removed from responding to negative comments 8 third-party sites 15 Should you remove content? Where is something “published”? 16 Recordkeeping 8 Obtaining social media content for use in litigation 16 Protecting your reputation from attacks Issuing subpoenas on social media opertors 16 by others on social media 9 Employee use of social media 17 What types of attacks could be made? 9 Employee social media policy 17 Trolling 9 Awareness training 17 Sock puppets 9 branded feeds on Twitter and ownership of customer lists 17 Astroturfing 9 An employee’s LinkedIn profile 18 Intellectual property and confidentiality 10 Contractors 18 Copyright 10 Personal vs professional comment on social media 18 Trade marks 10 policies and training: Stutsel v Linfox 18 Breach of confidential information 11 Connection with business: Fitzgerald v Escape Hair Design 18 fake pages and fraudulent accounts 11 Threatening behavious and out of hours “posting”: O’Keefe v The Good Guys [2011] FWA 5311 19 Key contacts 20

Contents 2 Introduction

Even if your business never has a social media presence, your employees, competitors and detractors all will (not to mention fraudsters), so you do need to understand how it works and have a social media policy of some sort.

In our Guide to Social Media: Risks and Opportunities for Business, we set out the practical issues your business will need to consider, whether you’re creating your own social media account, or dealing with others’ use of their own.

Introduction 31 What do we mean by “social media”?

“Social media” covers a variety of What do you need to • Protecting your reputation from web-based or mobile technologies attacks by others on social media: that turn published communication into consider? This could occur through one interactive dialogue. A fundamental starting point for risk or more of the social media sites management with social media is the or on sites that the business does Publishing content through social media extensive limitation of liability that not own or has no control over. It is not the same as publishing content social media providers impose through could originate from an employee or to other web-based platforms, although the disclaimers contained in their terms group of employees or from people both involve the uploading of material of use. Those disclaimers of liability previously unknown to the company. to the internet. Traditional publication effectively eradicate legal avenues of • Employee use of social media: Use of in an online format is static; publishing redress against social media providers social media sites by employees will through social media commonly invites by third parties. encompass a number of issues such a response and can lead to conversation as using social media in work time, between the publisher and one or more There are two main issues to consider: potential workplace harassment readers – or just between readers. • do you have a broad risk via social media, the potential for There are a number of characteristics management strategy to cover a disclosing confidential information of publishing through social media that variety of uses of social media that or denigration of the employer. distinguish it from website-based affect the business, such as You’ll need to have policies that deal publication, including: reputation management and with all three of these categories. employee use of social media? • it allows the uploading and creation of user-generated content, often • what are your goals and strategy to Social media providers’ simply referred to as “UGC”; establish a social media presence, if terms of use any, for your business, and does your • online communities can be risk management strategy deal with Users enter into a contract with the established in which users the additional risks arising from your social media provider as soon as they participate in the publication; active participation? register to use the services of a social media platform. That means that even • providing for multiple interaction Relevant social media use (and misuse) though no money passes hands, their with an online conversation (for will generally fall into one of three use of the social networking site is example, facilitating the direct categories: governed by a contractual relationship interaction with other users or between the registered user and the contributors to the social media • Creating and maintaining a social social media provider. platform); and media presence: The company has to • content can be shared very quickly determine its own presence within The terms of the contract are recorded and widely. social media: which sites it chooses in the social media providers’ terms of to have an official presence on, who use, generally found on the relevant is responsible for keeping the website. The contract is governed content of that presence up to date largely by standard terms of use that (and, where applicable, ensuring that are published on the social media’s site no changes to the content have been “as is” – there is no opportunity to made by unauthorised third parties). negotiate those terms.

What do we mean by “social media”? 42 For this reason it is important to become The standard terms familiar with those terms. Standard terms generally include the All social media platforms have terms granting of a licence by the registered of use that are relatively similar and user to the social media provider giving largely based on US law (as most of the it permission to host and publish the social media providers are US owned). material uploaded content (otherwise They generally cover: known as user-generated content) on the social networking site. • data security; However, ownership of the material is • the protection of minors; retained by the poster, not the social • privacy; media provider. The corollary of this is • defamation; that responsibility for the content of that material lies with the poster, not • consumer protection; and the host, which generally disclaims all • intellectual property rights. liability for user-generated content.

However, it is important to note that The standard terms of use include a there is no contractual relationship comprehensive indemnity granted by between users of the same social the registered user to the social media media site. While this may seem provider for third-party claims resulting obvious, it is an important point as it from the registered user’s use of the means that a business with a social social media site. media presence that has a dispute with another user of the social media Most social media providers are based platform, for example, over intellectual in the US, in particular in California, and property infringement, would need to for this reason their standard terms resort to the usual laws and remedies include choice of law and dispute applicable between parties when a clauses that are governed by Californian dispute arises. law.

What do we mean by “social media”? 53 Creating and maintaining a social media presence

Social media is interactive and operates This includes registering business Social media governance strategy in a content-driven, information-sharing, names, brands and products or services. fast-paced environment. It is dangerous Most social media providers have The purpose of a good governance to assume that a business may establish separate terms of use that deal with strategy is to ensure the in-house legal a social media presence by publishing branded pages and may even have team or corporate communications information in the same manner as specific applications for the creation of team: posting information to the company’s branded pages. They will also regulate • implements and then maintains its website. Social media publication is by the use of their logos (for example, approach to social media; its nature interactive and can go viral in using the Facebook logo to link to a minutes, so social media sites must be branded Facebook page from a • retains control over the business’ carefully monitored. corporate website). publication on social media; and • monitors and responds appropriately The main issues you will need to Generally, once a user name has been to the interaction generated through consider are: registered by its proper owner, a social social media (ie. user generated media provider will not allow that same content). • who will be responsible for what you name to be reused by a different user or say? entity. There is no fee for registering a A governance strategy should cover: • what you can say – and how you can user name with social networking sites • what types of information can be say it; and like Facebook, Twitter and LinkedIn. released via social media, and what • how you will monitor or respond to Most social media providers have their cannot (such as confidential any user-generated content on your own set of rules of publishing behaviour information); sites. that a registered user adopts under the • who has responsibility for the types If you are attacked online it will not be standard terms of use. These guidelines of communication; limited to your own social media sites, restrict the content of uploaded material • any internal sign off required before but we’ll deal more generally with crisis and typically deal with offensive publication; management in the next chapter – here language, nudity, pornography, hate we will focus on what you say and speech and intellectual property • how social media content traffic is to control on your own sites. infringements. be monitored and by whom, including outside business hours; Planning and establishing Establishing social media • details of the administrators for each a social media presence communication responsibility of the social media sites; The starting point is simple: get in first You need to identify and appoint • out of hours access to social media and register before someone else uses members of the in-house legal team or accounts when required; your brand and/or name. Pirate or corporate communications team who • general risk minimisation; fraudulent sites and cybersquatting are will be responsible for your business’ • intellectual property rights common and take time and resources to social media sites, publishing news infringement and what to do when remedy. items or updates, and responses to others’ comments. this happens;

Creating and maintaining a social media presence 64 • compliance with any advertising Organisations that participate in the For example, Facebook allows regulations; advertising self-regulation system promotions to be run on business pages administered by the Advertising or within its Apps site (for example, • the use of branding and the control Standards Bureau rules will need to “comment/like our Page to enter” is of marketing strategies through monitor and moderate all content permitted), but not on personal pages social media; posted on their Facebook pages and (for example, “share on your Timeline to • compliance with disclosure rules other social media tools to ensure enter” or “share on your friend’s (ASX listed companies); compliance with the requirements of Timeline to get additional entries” is not • liability to third parties for the the advertising codes. permitted). Facebook also has specific content of social media pages; and requirements regarding liability. A promotional competition may also • social media use by employees. require prior permit approval (effectively Continuous disclosure obligations A social media policy that governs the a licence to run the competition) from and social media official business use of communication State lottery regulators (depending on through social media will be a useful the nature and prize value of the Under its revised guidance note on risk management and training tool for competition). This is an emerging and continuous disclosure, ASX is now every business with a presence on complex area of law. State regulation requiring listed companies to more social media platforms. You’ll also may be extended to neighbour states if actively monitor what is being said need to develop one specifically for competitions are run through social about the company on social media. employees, which we deal with in media and are accessible in other The need to do so is of particular chapter 4, “Employee use of social states and therefore exceed traditional importance where a listed company media”. state boundaries and may constitute is withholding material price sensitive advertising in many states and not just information from the market on the Promotional activity and the one where the competition or basis of the exceptions to the advertising issues promotional activity was originally continuous disclosure obligations, one devised. of the requirements for which is that As a starting point, any promotional the information is confidential. ASX or advertising activities on social media That is not the only set of rules you says that, in these circumstances, must comply with the law. must comply with. The major social companies need to monitor social Both courts and the advertising media providers regulate the use of media where it knows there are self-regulation system administered by advertising and promotional campaigns regularly discussions about the the Advertising Standards Bureau treat conducted through them. It is common company to ensure that there has advertising on social media like any for businesses to use their branded been no leak of that information. If the other form of advertising. social media pages as a vehicle for information appears on social media, these activities. ASX considers that confidentiality has You will need to identify and comply been lost and the company will be You must take care when promoting with: required to immediately disclose the products and services through social information to the market. • any industry-based regulations in the media platforms as these activities are various jurisdictions your business often affected by specific terms Despite this, both ASIC and ASX have operates in; and of use that govern promotion and warned companies that they cannot use advertising through social media sites. • any applicable laws, such as the social media outlets such as Twitter and prohibition on misleading and Facebook as primary communication deceptive representations under the channels for the release of material Australian Consumer Law. price sensitive information.

Creating and maintaining a social media presence 75 That said, they have stated that social Discrimination In Clarke v Nationwide News Pty Ltd (t/ media may be used as a secondary as The Sunday Times) [2012] FCA 307, communication channel so long as the Various forms of discrimination may the conduct which was found to be first announcement is made to the ASX, arise through the misuse of social unlawful was the publication of and that care is taken to ensure the media. Comments and material that is comments made by readers (ie. third social media channel is able to convey aimed at certain individuals that may parties) of the online news service the announcement accurately and is not constitute discrimination may be operated by the respondent on its misleading. particularly damaging to an organisation perthnow.com.au website. and if not dealt with appropriately may Their principal concern is the use of bring into question vicarious liability for The statements that were published Twitter with its 140 character limit, that discrimination. Organisations and which were approved by a which may lead to the truncating of should seek to monitor for such content moderator of the defendant (which is a the announcement in a manner that and act appropriately (with legal advice subsidiary of News Limited) were found may mislead the public. Effectively, as required) when it occurs. to have caused lasting offence, both regulators have suggested that humiliation and intimidation to the the use of social media for secondary In 2012, in an Australian case that dealt complainant. announcements be limited to state- with breaches of the Racial ments that the listed company has Discrimination Act 1975 (Cth), the Why you should monitor made an announcement to the ASX. vicarious liability for publication and moderation of online content point was your own social media sites further examined. for objectionable content A number of recent decisions involving Case studies: Francesca Holdings and Netflix user generated content posted to social media pages has brought into question Francesca Holdings is a listed clothing company in the US. Its chief the legal liability for publication. The financial officer, Gene Morphis, shared his thoughts on Twitter and role a site administrator or moderator Facebook about many things, including his company’s financial might undertake when dealing with position, often before it was released to the market, such as: user generated content could be problematic. “Roadshow completed. Sold $275 million of secondary shares. Earned my pay this week.” As a result you should monitor and, where necessary, moderate or remove “Board meeting. Good numbers=Happy Board.” users’ posts on your own sites.

“Earnings released. Conference call completed. How do you like me This will involve the setting up of now Mr Shorty?” policies so that there is constant monitoring of brand use and customer He was terminated for improperly communicating company feedback and other comments posted or information. blogged on branded social media sites, and appropriate procedures for dealing A US listed company, Netflix was recently investigated by the SEC with them. over comments made about the company’s performance by its CEO through his own personal Facebook page. While no enforcement Monitoring of sites is now a serious action ensued, the SEC did make it clear that while it regarded the consideration for branded pages and use of branded or official social media outlets as appropriate reputation management generally, so you vehicles for information that would be of importance to its investors, will need to pay careful attention to how it warned that the use of personal social media accounts of it will be conducted, who will do it, and company executives was unacceptable the level of internal reporting of content.

Creating and maintaining a social media presence 86 This should include considering monitoring of social media traffic Case study: ACCC v Allergy Pathway (No.2) [2011] FCA 74 outside business hours as many social media disasters occur late at night or The Australian Competition and Consumer Commission (ACCC) over the weekend. alleged that Allergy Pathway was in breach of an earlier undertaking to the Court that it would not publish misleading The ACCC views posts to branded representations about the company’s services, by publishing social media pages as advertising offending representations in statements posted on its website and and will consider whether such posts its Facebook and Twitter pages. breach consumer law if a complaint is made. Any false or misleading The publications included testimonials written and posted by comments that appear on social media clients on Allergy Pathway’s Facebook wall. Allergy Pathway knew pages as part of a business’s marketing that people had published testimonials on its Facebook page and it communication, regardless of whether took no steps to have them removed. it is user-generated or generated by the business, may be held to breach The Court concluded that although Allergy Pathway was consumer law. not responsible for the initial publication, Allergy Pathway accepted responsibility for the publications when it knew of The ACCC has warned businesses that the publications and decided not to remove them. It therefore they are responsible for making sure became the publisher of the testimonials, and in breach of its that the content on their social media undertaking to the Court. pages is accurate and that it expects well-resourced companies to take down Although this case focused on whether Allergy Pathway could be misleading comments within 24 hours said to have published the testimonials, it seems to stand for the of publication, with more flexibility wider proposition that an organisation may be found liable for given to smaller businesses depending misleading or otherwise unlawful content posted by a third-party on when they become aware of the on its social media site if it knows about the content and chooses comments. not to remove it, because in those circumstances it may be regarded by users as having adopted the content. To comply with that obligation may well require extensive and sophisticated monitoring to the point where a What should you do when you find objectionable content? business may not have sufficient resources to be able to do so. First, report the content to the appropriate communications team and or legal department immediately and continue to monitor social media sites for further activity. There will be a different approach depending on whether the content is posted to a social media page owned by the business or on a third party site over which the business will have no control.

You must act promptly to review content if a complaint is received from a third party (in particular, the complaint will be evidence that the business is now aware of the relevant content).

Creating and maintaining a social media presence 97 Responding to negative comments Firstly, communications on social media platforms are of corporate value to This will involve establishing policies and businesses as they express corporate procedures that ensure that moderation/ thinking and knowledge. removal or response to content is effectively and quickly dealt with. Furthermore, recordkeeping is essential as evidence of social media Those policies should incorporate a communications can be required in a clear procedure to provide a mechanism number of forums, including litigious through which an official response to proceedings. For example, in a any criticism levelled at the business is defamation action, a business may be properly handled by the right person in asked to provide detailed evidence of the business. Facebook messages and responses to demonstrate if the business published Should you remove content? defamatory material.

Consider removing the content from the In this context, the only way to manage website or social media pages you have these social media risks is to have access to. Consider any likely recordkeeping policies that enable repercussions once material is removed. businesses to accurately capture their Adopt a clear communication strategy communications and third-party to deal with any backlash. interactions.

You should be mindful that preservation Currently, there is no uniform record- of the social media content may be vital keeping standard in Australia. if later proceedings are likely to ensue. At present, policies released by the You many need to seek specialist IT Queensland Government and the Public assistance before removing content Record Office of Victoria provide the from the site. most guidance on establishing efficient recordkeeping practices. For example, Recordkeeping the Queensland Government Enterprise Architecture policy concerning the Since social media platforms are usually Remember… Official Use of Social Media Guideline hosted by third parties and are web- recommends capturing: • Work out who in your based, businesses can’t rely on them to organisation will be capture and record both their use and • the date of discussion or business responsible for your social third-party interactions because: activity; media presence and ensure • typically under their terms of use, • the name of the person who used the they understand what they the user who posts material retains social media; can and cannot say. ownership in that material, but • the name of key stakeholders • Social media is not the Wild doesn’t have access to the native involved; West – the same law applies format of the information and its to your comments whether metadata; and • the main discussion points; you’re online or offline. • there is no guarantee of long-term • the details of instructions or advice • You might be responsible for access to material posted online. provided; and others’ posts on your social It is imperative for businesses to record • any approvals, decisions or media sites, so ensure they their social media communications for a recommendations made. are moderated. number of reasons.

Creating and maintaining a social media presence 108 Protecting your reputation from attacks by others on social media “Falsehood flies, and the truth comes What types of attacks They differ from pseudonyms used limping after it.” online in that they are deliberately – Jonathan Swift could be made? adopted to deceive the reader into thinking they are genuine users or Trolling Whether your business is on social supporters of a product or service. media or not, others are, and not Trolls are individuals who have everything they say about you will established campaigns against certain Astroturfing be true. types of economic, political, or commercial activities and regularly Astroturfing is engineered or commercially The disparagement of businesses by engage in online forums and internet obtained fake support for a cause, employees and third parties through exchanges to harass or discredit those product or even political campaign. social media is prevalent and affects with whom they communicate. businesses across the globe. Where it It is not an exclusive social media issue attracts media headlines, conduct of They post offensive, defamatory and but is easier on social media and can this type can be very damaging. inappropriate content to deliberately be very cleverly disguised, especially if Not only can it go viral very quickly, provoke an emotional reaction from created by well funded PR companies. as with any other type of online those who administer the site and/or the One example is the creation of multiple information, material posted to social group members belonging to the site. media sites can resurface long after it online identities that are then used to was deleted from its original location. flood a corporate social media page Sock puppets Its potential for damage is therefore far with false or inflated claims. greater and longer lasting than that of Sock puppets are fake identities created Where astroturfing is deployed to damaging print publication. to inflate a product or service, or offer falsely advertise a product or service praise or condemnation for a politician it may be misleading and deceptive Social media may pose significant or other person. Some notorious advertising under the Australian reputational risk to organisations, but examples have included well known Consumer Law and it may protecting the reputation of a business writers who have posted comments also breach the codes of conduct of may be difficult. It is important that praising their own work via their Australian advertising associations and every organisation has in place internal pseudonym. procedures to enable a timely and swift PR associations. response when facing a reputational attack or crisis.

Protecting your reputation from attacks by others on social media 119 Intellectual property and confidentiality Case study: Greenpeace’s orchestrated attacks through social media There are two forms of intellectual property that are likely to be relevant Greenpeace targets Nestlé in dealing with social media.

Nestlé uses palm oil from Indonesia. Greenpeace argued the Copyright destruction of Indonesian rainforests to make way for palm trees reduced the orang-utan’s natural habitat. Greenpeace uploaded a Of particular relevance in the social spoof advertisement based on the KitKat advertising slogan “Have media context is copyright. For years, a break” to YouTube. In addition, the Kit-Kat logo was altered to social media sites (for example, read “Killer”. The YouTube advertisement attracted over a million YouTube) have grappled with users views in the short period of time it remained on the site and was uploading huge amounts of content swiftly picked up by the media. which infringe the rights of third parties.

Nestlé managed to have the advertisement removed from YouTube The company will own copyright in (partly on the basis of infringement of the use of its logo). That all the documents produced by its outcome led Greenpeace to encourage its supporters to bombard employees or produced by contractors Nestlé’s Facebook page and website with written protests urging where there is a copyright assignment Nestlé to stop buying palm oil from its supplier. Again, Nestlé in place. Therefore, if a social media responded by threatening to remove any comments left there that attack involves misuse of company allegedly infringed its logo. Many Greenpeace supporters when documents, it is more than likely that posting comments did so by adopting the altered “Killer” logo as an the company will own copyright in avatar accompanying the comment. It did not stop the protest those documents and this copyright action and Nestlé eventually retreated from the position it had ownership can be asserted as a means adopted. Further, Nestlé stopped buying palm oil and set up a of having the document removed from collaboration with The Forest Trust to work towards a zero the social media site in some deforestation policy. circumstances.

Greenpeace and Shell Oil The primary reason for social media providers taking swift action against Greenpeace was again involved in a sophisticated and content which allegedly infringes a third orchestrated attack on Shell Oil via social media. party’s copyright is that it is necessary for them to do so to rely on the safe Fake but provocative Shell Oil advertisements created by harbour protections contained in Greenpeace were set up to look like official Shell advertising statutes such as the Digital Millennium campaigns lampooning the Shell Oil slogan “Let’s go”. They Copyright Act (US). deliberately adopted an uncaring attitude towards the environment and the impact of global warming on the loss of the Arctic glaciers. Shell media threatened to take action against UGC posters Trade marks commenting on the fake sites and fake adverts – all of which was The company’s various brands are quickly picked up and widely reported in traditional media. Shell valuable intellectual property rights. threatened breach of trade marks, and action for the defamatory Brands include registered trademarks nature of the fake advertisements. Shell used the self-help regime but it can also include unregistered for reporting and instigating take down procedures to have the fake marks which are used by the company advertisements taken down from YouTube. and are distinctive of its goods and services. These are valuable property rights and the value needs to be

Protecting your reputation from attacks by others on social media 1210 protected. Simply reproducing a Monitoring third party The main social media providers registered mark will not necessarily disclaim liability for the use of the infringe the owner’s trade mark rights. social media sites for services they provide and limit their If, however, a user pretends to be a content responsibility extensively as set out in representative of the company,this may their terms of use. You will need to monitor third party well infringe a trade mark. sites for mentions of the business Self-help mechanisms Breach of confidential information and its products and senior employees. This may require the use of social All social media companies have Confidential information is often media monitoring tools and help from significantly tightened up their self- thought of as an intellectual property your IT department. governance regimes in the face of right, but commercially sensitive numerous attempts worldwide to find At the most basic level you can rely information, while potentially very them vicariously liable for the content upon social media providers’ simple valuable, is not property and it is not they host on social networking sites. email alerts sent whenever content is treated in the same way as the Social media providers will take action added to a page. At the other end of the intellectual property rights of trade against those who infringe the rights of scale there are sophisticated third party marks and copyright. others, including removing content that software products that constantly is said to infringe copyright or other The key to dealing with breach of monitor both branded and third party intellectual property rights. confidential information is urgency. sites for specific content and alert you The intentional or unintentional to new content. Invoking the various self-help disclosure of confidential information procedures remains the most effective As with your own social media sites, needs to be removed swiftly. The self way of getting content removed from third-party sites will be actively used help mechanisms that social media sites that a business has no control out of business hours, so you will need sites provide will be beneficial here. over. Following removal of the content, to pay careful attention to how you will consideration should then be given to cover this on the weekend and late at The major social media providers have the appropriate action. night, and be ready to respond swiftly. adopted detailed self-regulatory and other voluntary methods to assist those Fake pages and fraudulent What are your options for who complain about content of the accounts defending yourself? information posted to social media sites.

There has been a rise in the number of Who’s liable for content? Exerting pressure on social media false or fake social media accounts operators to take down damaging created in the name of a business or an First and foremost, social media content is often the most effective individual and websites that use the providers disclaim ownership of the way of securing its removal unless the trade marks of a business. Some of material posted to their sites. Generally, poster of the information is known to these websites are sophisticated and most social media providers’ standard the organisation and direct negotiation structured in such a way that the fake terms of use state that a registered user with the poster of the information is site is the first site returned in the grants the social media providers a likely to be successful. search results generated by search licence to host and publish the material, engines such as Google. but ownership of material is retained by These procedures allow for: the poster. • reporting fake accounts or other offensive material; • take-down policies for the removal of damaging or offensive material;

Protecting your reputation from attacks by others on social media 1311 • infringements reporting and take Taking down fake sites bring a claim for defamation in a down of intellectual property rights; personal capacity under the uniform Fake sites can be removed by a social defamation legislation. • complaint handling processes for media provider. Often you will need to disputes, including processes for invoke their reporting and take-down Pursuing a claim in defamation is breach of intellectual property rights; procedures. It is possible to deal directly expensive and is subject to only limited and with a social media provider but this is damages awards for a successful • blocking or banning of persistent complex. Very serious matters, eg. hate plaintiff. Further and significantly, offenders. sites may need to be removed very only in very exceptional circumstances quickly and often it will be necessary to would an individual be able to have a To seek removal by the social media involve the police to exert pressure on defamatory statement or publication provider itself, you must report that the social media provider. immediately removed or withdrawn on material as containing content that is an urgent interlocutory basis. offensive or otherwise contrary to the A registered user responsible for the social media provider’s terms of use or fake site may be blocked by the social There may also be problems in pursuing guidelines. All social media sites have media provider from establishing a a publisher of user generated content procedures to deal with copyright or further site in the same or similar where the provider has disclaimed other intellectual property rights names. Fake sites frequently involve ownership and responsibility for the infringement. intellectual property breach. Social content of the information hosted or media providers generally act in these published on their sites. That said, there There is also the Cooperative sorts of matters as they wish to have been a number of examples of Arrangement for Complaints Handling preserve legislative protection afforded people claiming to have been defamed on Social Networking Sites to consider. to them under local laws that will by users of social media pages This voluntary and non-binding ensure they are not held responsible for commencing actions against social arrangement brings together Facebook, vicarious breach of intellectual property media providers. Google (YouTube), Microsoft, and rights. Yahoo! (as at 16 January 2013) who For example, Joshua Meggitt from have agreed to a cooperative Melbourne has commenced a claim arrangement in an effort to promote Defamation and corporations against Twitter Inc. in the US for digital citizenship. As yet, Twitter has 1 Most corporations cannot sue for comments (wrongly) attributed to him yet to commit to the arrangement, defamation following the passing of by the writer Mareike Hardy in a case of although the Government has indicated the uniform defamation legislation in mistaken identity. Hardy named Meggitt that the parties are in discussions and Australia. That said, corporations of as the person responsible for hateful has placed public pressure on Twitter to any size may still avail themselves of comments made about her. She embrace the protocol, singling it out as the statutory defences to defamation. encouraged her many Twitter followers a popular medium for cyber-bullying and For example a company may claim the to join her in naming and shaming trolling. defence of innocent dissemination in Meggitt. relation to liability for defamatory The Cooperative Arrangement stipulates comments it hosts on its website or She later apologised to Meggitt and that these Social Networking Sites have through social media. they reached an out of court settlement. in place complaint mechanisms for Meggitt has now also sued Twitter as a reporting inappropriate content, contact Accordingly, there have been limited publisher of the tweets and retweets or behaviour, and review processes for matters alleging business defamation that defamed him. It should be noted reviewing and acting on complaints brought under the uniform defamation that even if Meggitt’s claim is upheld promptly. legislation. Where executives of a in the US, Twitter is likely to rely on its business have been closely connected indemnity under the terms of use for to or identified with the defamatory third party claims for user generated material posted they may be able to content.

1 There is a distinction made between corporations and not-for-profit companies – the latter may sue. Corporations with 10 or fewer employees may also sue. Protecting your reputation from attacks by others on social media 1412 The approach to examining whether Accordingly, the avenues of legal an action for damage to business redress available to corporations in reputation arising through online respect of damaging statements that Case study: Adam Kaplan & publication (be it through social media may be made about them on the Anor v Go Daddy Group Inc or a traditional website) involves the internet are sometimes limited and, to consideration of three questions: the extent that they are open, Adam Kaplan & Anor v Go sometimes difficult to advance. Daddy Group Inc [2005] • Who is the publisher? NSWSC 636 was an action for the tort of injurious falsehood. • Does the published content contain Discrimination The defendant created a defamatory imputations? To the extent that social media content website using the domain • Is there a defence? is discriminatory of the organisation’s name www. employees, it may be necessary to rely hunterholdensucks.com.au Misleading and deceptive conduct upon the provisions of the Racial and a disparaging blog about There is a general prohibition on Discrimination Act 1975 (Cth), the the plaintiff that encouraged misleading and deceptive conduct in Disability Discrimination Act 1992 (Cth) other users to post derogatory trade and commerce under section and the Sex Discrimination Act 1984 comments about the plaintiff’s 18 of the Australian Consumer Law. (Cth) and other State and Territory business. Comments were While this could be an alternative to equivalents for the purposes of proving posted to the blog, all of which a traditional defamation claim for a unlawful content and in aid of swift contained defamatory comments company, it will not always be an removal from the social media platform about the plaintiff’s business. appropriate or effective alternative to with the co-operation of the social The plaintiff applied to the pursuing redress for business media provider. NSW Supreme Court for an defamation, given the difficulty in injunction to prevent the Go establishing that the other party’s Criminal sanctions for trolling Daddy company that hosted conduct was “in trade or commerce”. the website, from maintaining Where individuals have posted the defamatory blog. damaging or hurtful content to social Injurious falsehood media sites and a criminal offence is The Court granted the Corporations have another potential alleged, local police might assist with injunction saying that there cause of action through the tort of the removal of that content by the was a serious question to be injurious falsehood. perpetrator under their direction. tried as the defendant had committed and threatened to A company may bring an action in tort In the UK, a number of people have commit the tort of injurious for damage to business reputation been convicted for trolling using section falsehood by posting the false claiming injurious falsehood. 127 of the UK Communications Act comments about the plaintiff 2003 (improper use of public electronic in his blog. The matter did not This is not the same as a defamation communications network). The equivalent proceed any further after the action and the defences available in offences in Australia relate to the initial injunction application, defamation do not apply (for example, misuse of carriage services or the so there was no further the defence of innocent dissemination internet and exist under the consideration as to the is not available). In order to bring a Commonwealth Criminal Code (Part vicarious liability of the successful claim based on injurious 10.6) as well as under a number of state website host for defamatory falsehood, however, it is necessary to criminal codes. For example, the first comments posted on the blog. satisfy the court not just that the alleged Australian to be jailed for trolling in infringing statement is false, but also 2011 was convicted under the Queensland that there was malicious intent on the Criminal Code, section 474.17(1) for part of the party making the statement. offences that included the use of a This may be very difficult to prove. carriage service in an offensive way.

Protecting your reputation from attacks by others on social media 1513 Practical steps and A business should in this case consider • set out the communications policy seeking external legal advice. for reputation management through matters to consider dialogue and responses to bloggers and tweeters. Who is responsible Litigate or engage? Developing a crisis management plan within the organisation, and what Before embarking on litigation, a strategies might be adopted to business should first consider enlisting Developing a crisis management plan or assuage negative sentiment or the help of the social media platform to procedure will assist the business in its expressions of dissatisfaction and remove content posted by another user. response to any attack. complaint? As it may be important later if legal If the poster is known, you should also An effective Crisis Management action is contemplated, additional steps consider whether a direct approach and Procedure that can be implemented may need to be documented to maintain request for removal might be a more swiftly to protect the company’s evidence of material and provide some practical way to have the material reputation might: guidance about seeking expert forensic removed or a site or page sufficiently • list the key managers and contact IT assistance to not only preserve that altered so that there is little danger of details for out of hours emergencies, material as evidence but also possibly confusion arising as to the genuine particularly IT assistance; to identify the perpetrator. social media site or page. As noted above, all the major social media • document the main administration providers have self-help mechanisms accounts and passwords for all the that deal with the reporting of and take company’s social media accounts down of material that is in breach of and its website; and intellectual property rights owned by others.

In addition a business will need to consider carefully the right approach Case study: The Streisand effect to adopt. A heavy-handed approach may be unwise if it alienates the In 2003, Barbara Streisand reacted strongly to what she considered followers of a satirical Twitter profile, to be a gross invasion of her privacy. whose unhappiness could then pique the media’s interest. Unless the Photographer Kenneth Adelman and Pictopia.com had included an material is significantly damaging and aerial photograph of her mansion in a publicly available collection of offensive it might be more appropriate 12,000 California coastline photographs. Adelman defended his action to acknowledge the joke and seek some by stating that he was photographing beachfront property to document clarification or assistance from the coastal erosion as part of a government commissioned project. poster if there is a likelihood that the fake site may be confused with the Streisand sued them for US$50 million in an attempt to have the genuine site. photograph removed. Before she commenced her proceedings, the photograph had been downloaded only six times; two of those It should be noted that most social downloads were by Streisand’s lawyers. As a result of the case, media providers are not willing to assist public knowledge of the picture increased substantially, resulting in one registered social media user in a more than 420,000 people visiting the site in the following month. dispute against another social media user. It may be difficult to seek their To add insult to Ms Streisand’s sense of injury, not only had her specific assistance and obtain a litigation led to more exposure, not less, of her property, it was response from their legal department. also thrown out of court. Ouch!

Protecting your reputation from attacks by others on social media 1614 Assessing the risk in user-generated reaction and in all probability it is the appropriate. For example, there are content on third-party sites emotional reaction that will be exploited penalties imposed in NSW for failure to by further action from the troll or rager. report a crime. It may be preferable to Is the content satirical or otherwise In such cases, once a response is given, liaise with authorities before seeking harmless (albeit undesirable)? the troll’s campaign is likely to be the assistance of the social media stepped up and could end up in main provider in removing the content. There Is the content about an unsatisfactory stream media if not handled with care. is a risk that the social media provider customer experience, or employee- will alert the registered user of the related but otherwise not hateful or It will be important to engage request to remove the content before the defamatory? appropriately. For example, if legitimate authorities have time to effect an arrest. concerns are being raised, acknowledge If the content is considered damaging, the importance of the issues that have Are the press involved? Get a media gather the appropriate response team, been raised and offer to discuss or spokesperson lined up and briefed to which may be part of a crisis engage positively to assist the resolution plan a strategic response to the attack management plan developed by the of the matter. It may be preferable to and to deal directly with mainstream business to follow when a social media seek to engage on the issues raised media to mitigate the impact of site is under attack. rather than seek resolution by negative press exposure. Can you identify the perpetrator (poster threatening to take action against any You should consider engaging an expert of the information)? breach of intellectual property rights or raising question marks over defamatory PR consultant to assist with a planned Is the perpetrator known to your content, etc. Be sure to keep the response. organisation? Can you persuade the relevant communications team informed perpetrator to take it down? Refer the and be prepared for media interest. Steps to take to get material matter to your in-house legal team or removed from third-party sites corporate communications team first. If the posted material is factually inaccurate or even wrongly attributed to Report content to the appropriate the business then it might be communications team and or legal How will you respond? appropriate to thank the poster for department immediately but continue to Is the perpetrator or poster of their concern and point to where the monitor social media sites for further information an organisation that stands inaccuracies lie and correct that activity. for social change or environmental information. Assess the relevant reporting protection? Is it a legitimate mechanism operated by the social organisation or a troll posing as an In addition, if the posted information media provider and report the content entity with legitimate social justice or has been wrongly attributed to the through it. human rights causes? Ensure that those business, that fact should be corrected. Consider referring the poster to the with responsibility for official comment Assess the steps necessary to invoke within the business are kept informed entity or organisation that is responsible for the concerns that have been raised. the social media provider’s relevant and monitor all activity through social take-down and reporting procedures. media initiated by the organisation. If the content or publication of the Where is something “published”? All activity must be closely monitored material is likely to constitute a criminal offence consider involving the police. and a strategic approach taken to The question concerning the Discuss with your in-house legal team responding. In some cases a direct jurisdictional reach of defamatory or corporate communications team first response will be extremely unwise. comments hosted on a foreign based and report to the Board or General In particular, avoid a “shoot from the website was considered in Dow Jones Counsel as required. You should also hip” response however provocative and Company Inc v Gutnick (2002) 210 consider external legal advice where the material – it is posted with the CLR 575. In this case, the High Court intention of producing an emotional

Protecting your reputation from attacks by others on social media 1517 of Australia held that a plaintiff could As most social media content is stored bring an action in Australia for on overseas servers (mainly in the US), defamation in respect of content that there is real tension as to who actually was published on a website based in has possession, power and control over another jurisdiction but which was that information. accessible in Australia and therefore constituted publication within Australia While social media operators state of the offending comments. clearly in their terms of use that the registered user who posts that material Without further court decisions, it can retains ownership, that registered user only be said that a website host might does not have access to the necessary be at risk for publishing defamatory metadata to provide unequivocal material on the internet. However, the evidence of the material itself. defence position of website hosts is further bolstered by the existence of In addition, social media pages are not a number of available defences, highly secure and are subject to potential including the defence of innocent unauthorised use (login and password dissemination (at common law and breaches are well documented). A under the Broadcasting Services Act registered user may claim that they did 1992 (Cth)) and the defences of fair not post the material complained of. comment and opinion. Issuing subpoenas on social media It should be noted however, that operators vicarious liability for the hosting of online material that offends other It is very difficult for a foreign-based legislation for example, discrimination entity such as an Australian business legislation (that additionally, may or to issue a subpoena for social media may not be defamatory) has been found. content on any of the social media An example of this is Clarke v Nationwide companies based in the US. Most of the News Pty Ltd (t/as The Sunday Times) social media operators say they will which we discussed on page 6. disclose personal information on a valid request such as a subpoena or search Obtaining social media content for warrant issued by a foreign entity. use in litigation Remember… The reality is they will not respond to a When a business is involved in litigation civil subpoena without the consent of Even if your organisation that involves social media content as the registered user because of the doesn’t have a social media part of its evidence, it is important to impact of the US Federal Stored presence, you will need to realise the business may have very Communication Act. monitor what is being said limited access to the relevant social about you. media site and may be unable to Your organisation might have obtain the content on individual several options for dealing with accounts in the way it would be able to harmful and untrue comments, obtain the content of other types of but you need to choose the right electronically stored information. one as an over-the-top response might be counter- productive.

Protecting your reputation from attacks by others on social media 1618 Employee use of social media

Social media impacts the employer- • the consequences for breaching employee relationship in a few ways: the policy. Case study: Using LinkedIn to solicit your employer’s It should include specific obligations not • who owns an employee’s social clients to use social media: media account?; Bradford Pedley v IPMS Pty Ltd • can employees use social media in • to damage the business’ reputation T/A peckvonhartel [2013] FWC work time, and if so, how?; and interests (eg. disparaging the 4282 illustrates how an employee’s business, products/services or • if your employees interact with each private use of social media can clients); other on social media lead to adverse consequences inappropriately, is there potential • to disclose the business’ confidential for their employment. liability for workplace harassment?; information; or Bradford Pedley was a Senior • could employees disclose • to harass or bully work colleagues. Interior Designer with an confidential information deliberately Depending on the nature of the services architecture and design company, or accidentally?; they provide, some sub-contractors and PVH. When he took the job, he • an employee denigrates you on others who provide your business with told PVH he would to continue social media. Is this acceptable services and products should also be carrying out private design work venting or a disciplinary offence? made aware of your social media in his own time through his own policies. As your rights against a In this section we’ll set out what you business. PVH did not try to stop contractor’s employees will be more need to do to establish some ground him. limited than those in relation to your rules in your own business. We’ll then own employees, you will need to make He sent a group email to some look at the overlap between personal sure your contracts specifically bind LinkedIn connections which and professional use of social media, contractors and their employees to explained that he had his own and the complex questions of managing comply with your social media policies. business, that he wanted to employees whose use of social media is expand it, and no job was too considered unacceptable. An employee’s misuse of social media big or too small. When PVH may breach both the social media policy learnt of this, it fired him. Employee social media and their obligations of trust, confidence policy and good faith to their employer. The Fair Work Commission rejected Mr Pedley’s claim that You will need a separate policy that As we’ll see below, applying these rules his dismissal was harsh, unjust governs employees’ use of social media in practice can be challenging. or unreasonable. It held that the policy and sets out the ground rules, LinkedIn email was a clear such as: attempt to solicit business from PVH’s clients for his own • the ownership of a social media business, which breached his account on which the employee obligation to PVH to faithfully interacts with clients; promote PVH’s interests. This • when an employee can use social was serious misconduct, and media during work time; and was a valid reason to terminate the employment contract.

Employee use of social media 1917 Awareness training Case study: Policies and training You should take active steps to educate your staff and emphasise that the policy, In Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444, an employee was like all employee policies, is important reinstated following termination for allegedly posting derogatory and and a breach of it may result in harassing comments about managers on his Facebook page. disciplinary action. Linfox argued that a sufficient nexus existed between Mr Stutsel’s It is not enough to email or advertise conduct and the workplace because: on your intranet that the company has adopted social media policies – you • Mr Stutsel had Facebook friends who were employees of Linfox; need to bring the policies to the • the comments were made in respect of various Linfox managers; attention of the workforce and provide and training, and deliver concise advice • Mr Stutsel’s Facebook profile picture featured a Linfox truck. about the adoption of a social media policy as a specific term of employment Commissioner Roberts found the comments to be akin to “a group for all employees. If you don’t, then it of friends letting off steam and trying to outdo one another in being will be very hard, if not impossible, to outrageous”, and while in poor taste, did not amount to serious discipline an employee for breaching it. misconduct. Who owns an employee’s In concluding that Mr Stutsel had been unfairly dismissed and ordering his reinstatement and back pay, the Commissioner gave social media profile or weight to Linfox’s lack of a dedicated social media policy at the time of connections? Mr Stutsel’s termination or by the date of the hearing, and that Linfox merely relied on its induction training and relevant handbook to Branded feeds on Twitter and ground its action against Mr Stutsel. In addition, the importance of customer lists employee awareness and training was highlighted:

Many executives now have an active “In this current electronic age, this [induction training and the social media presence and a number of handbook] is not sufficient and many large companies have published Twitter followers. If an executive with a detailed social media policies and [have] taken pains to acquaint their Twitter account leaves the organisation, employees with those policies. Linfox did not.” many questions will arise, including: Note: Clayton Utz acted for Linfox in this matter. • What is the nature or purpose of the employee’s Twitter profile? Is it an This area of law is unsettled but there entirely private profile and not An employee’s LinkedIn is an emerging view that where Twitter connected to the business or is it profile followers are clearly following the closely associated with, and therefore brand of the business, not the person or While LinkedIn content is generally indivisible from, the business? executive, then arguably there is more benign and less scandal-prone • If the followers of the executive’s intellectual property in the profile, and than that its social media counterparts Twitter account can be characterised therefore by analogy the followers may Facebook or Twitter, the often as a customer list, is it the property be regarded as customers and should inextricable blending of the personal of the employer organisation? be protected in the same manner as a and professional on LinkedIn might mean it turns out to be the platform that • How do you protect the executive’s customer list. most frequently gives rise to issues of following so that it is not lost when These issues should be considered and this kind. the executive departs the business? then provided for by the inclusion of specific terms within employment contracts.

Employee use of social media 1820 Some of the questions about a person’s have policies in place to reflect their very public Facebook complaint was LinkedIn profile that can arise when commercial decisions and manage any ruled harsh, unjust and unreasonable, they leave the organisation include: risks. as there was no evidence the post had damaged the employer’s business. • Is the profile a record of the When does personal organisation and therefore belongs This can be contrasted with the decision to the business? comment become in O’Keefe v The Good Guys [2011] FWA 5311, in which an employee’s threatening • If so, should the profile be professional misconduct? Facebook posts made with very high deactivated when the employee Employees’ expression of dissatisfaction privacy settings led to a dismissal that leaves? and explicit examples of disloyalty to was found to be valid. • Should the employee be allowed to their employers through comments and maintain the profile if it’s updated to other material posted to social media While The Good Guys case suggests record the date upon which the sites are frequently raised in unfair that it will be possible to dismiss employee left the organisation? dismissal claims. employees for inappropriate conduct involving social media, it is an area These are all questions on which there This requires answering the difficult with which the courts are still coming is currently limited guidance from the question of what is “private comment” to grips, and it may be some time courts. In many cases, what is right for and publication of dissatisfaction, before the law in this area becomes a particular business will depend upon which often turns on the use of social settled. their commercial needs and the sector media privacy settings. Unfortunately in which they operate. At this stage, the case law on privacy settings and What we can learn from these cases is businesses should consider questions their effect on the extent of publication that businesses must establish policies such as these and then ensure they is inconsistent. that clearly set out the employer’s

In Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358 a dismissal that followed an employee’s Case study: Connection with business The case of Fitzgerald v Dianna Smith Commissioner Bissett recognised the In effect, Fair Work Australia t/as Escape Hair Design [2010] FWA seriousness of her Facebook post, emphasised that in certain 7358 dealt with an employee of a hair and the increasing tendency of circumstances, a Facebook post by salon who posted the following employees to use social networking an employee may be sufficient to comment on Facebook: sites to display their dissatisfaction warrant dismissal. However, this with their employer. In a concise depends on whether the post will “Xmas “bonus” along side a job statement about the nature of social adversely affect the employer’s warning, followed by no holiday media comments, Commissioner Bissett business. pay!!! Whoooooo! The Hairdressing explained that “Posting comments Industry rocks man!!! AWESOME!!!” about an employer on a website that The Commissioner ruled that the can be seen by an uncontrollable dismissal was harsh, unjust and She was then dismissed for number of people is no longer a private unreasonable as the employer failed unauthorised removal of property, matter but a public comment” and that to demonstrate that the comment lack of punctuality, unauthorised a Facebook post “remains on Facebook damaged business, notwithstanding rescheduling of appointments and until removed”. that it certainly damaged the employer’s public display of dissatisfaction with trust and confidence in the employee. the employer on Facebook. The employer was ordered to compensate the employee $2,340.48.

Employee use of social media 2119 expectations of their employees’ use of social media – and these policies must be Case study: Threatening behaviour and out of hours posting brought to the attention of the workforce. In O’Keefe v The Good Guys [2011] FWA 5311, Fair Work Australia found that the dismissal of the employee was justified notwithstanding the fact that the employee had applied the most stringent privacy settings to his Facebook account.

It would appear that the decision was based upon a number of factors including:

• the extremely offensive nature of the allegations and threats made on Facebook; and • the fact that the employee’s comments could be seen by his colleagues as they were Facebook “friends”. The Commissioner also held that it did not matter that the comments were made on a private (as opposed to a business) computer and that they were posted out of hours.

Remember…

• The law is still evolving. • Clear policies on appropriate social media use should be developed, and your staff trained in them. • Be particularly careful when an employee’s social media use is the basis for disciplinary action.

Employee use of social media 2220 Key contacts

Gary Berson Jamie Doran Steven Klimt Partner – Perth Partner – Brisbane Partner – Sydney T +61 8 9426 8420 T +61 7 3292 7196 T +61 2 9353 4133 F +61 8 9481 3095 F +61 7 3221 9669 F +61 2 8220 6700 [email protected] [email protected] [email protected]

Doug Bishop Karen Evans-Cullen Chris McLeod Partner – Sydney Partner – Sydney Partner – Melbourne T +61 2 9353 4673 T +61 2 9353 4838 T +61 3 9286 6214 F +61 2 8220 6700 F +61 2 8220 6700 F +61 3 9629 8488 [email protected] [email protected] [email protected]

Ian Bloemendal Kym Fraser Simon Newcomb Partner – Brisbane Partner – Melbourne Partner – Brisbane T +61 7 3292 7217 T +61 3 9286 6913 T +61 7 3292 7243 F +61 7 3221 9669 F +61 3 9629 8488 F +61 7 3221 9669 [email protected] [email protected] [email protected]

Scott Crabb Richard Hoad Alexandra Wedutenko Partner – Perth Partner – Melbourne Partner – Canberra T +61 8 9426 8430 T +61 3 9286 6936 T +61 2 6279 4008 F +61 8 9481 3095 F +61 3 9629 8488 F +61 2 6279 4099 [email protected] [email protected] [email protected]

David Benson Eleanor Dickens Julia Virgo Senior Associate – Perth Senior Associate – Brisbane Special Counsel – Sydney T +61 8 9426 8586 T +61 7 3292 7127 T +61 2 9353 4896 F +61 8 9481 3095 F +61 7 3221 9669 F +61 2 8220 6700 [email protected] [email protected] [email protected]

Michael Byrnes Sharon Segal Jason Walsh Special Counsel – Sydney Special Counsel – Melbourne Senior Associate – Sydney T +61 2 9353 4723 T +61 3 9286 6323 T +61 2 9353 4680 F +61 2 8220 6700 F +61 3 9629 8488 F +61 2 8220 6700 [email protected] [email protected] [email protected] Joseph Collins Jason Shailer Timothy Webb Senior Associate – Sydney Special Counsel – Sydney Special Counsel – Sydney T +61 2 9353 4759 T +61 2 9353 4789 T +61 2 9353 4778 F +61 2 8220 6700 F +61 2 8220 6700 F +61 2 8220 6700 [email protected] [email protected] [email protected]

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This publication is current as at July 2013. It is intended to provide general information on legislation, issues and case law. The contents do not constitute legal advice and should not be relied upon as such. Specialist legal advice should be sought in particular matters. Persons listed may not be admitted in all states and territories. Reproduction of any part of this work is welcomed, provided the source is acknowledged. © 2013 Clayton Utz