Volume 85 - October 2013
SOCIAL MEDIA SPECIAL
In this issue:
Editor and Author of The Law is an Ass...Make Sure it Doesn't Bite Yours!
Your photographs and Facebook
Many people on finding that their image has been used to promote weight loss may feel a little flattered unless of course it is the “Before” rather than the “After” shot, but an attractive fitness trainer whose underwear shots were taken without her permission and used to promote slimming products on Facebook in another country was understandably livid.
Will Facebook rush into action? Well, it all depends.
Facebook will act if you can prove that your intellectual property rights (“IPR”) have been infringed. For instance, the person taking a photograph is usually the copyright owner. By uploading the photograph it has been copied. Facebook should act quickly to remove the infringing photograph. This is because generally, internationally, a company which hosts a site can be liable if they do not act to remove infringing material within 48 hours of being informed of the infringement. But, unless it was a selfie, or taken by your employee*, or you have a licence or assignment of the IPR by the person who took the picture, you are not the copyright owner and do not have the right to enforce copyright in the photograph.
Have her image rights been infringed? This is an argument used by celebrities whose images are used to promote a product without their permission. Here, Facebook should act as she is in the business of a trainer and her image is part of the goodwill of her business.
Has she been defamed? Imputations of being fat, taking drugs, or being willing to strip off for money are insults that most people can laugh off, unless it is about them. But America has comparatively lax laws on defamation as freedom of speech is a fundamental right of every US citizen, they can say what they like about anybody. Hence, the popularity of guns. Therefore, Facebook may not be eager to act but can be forced to do so by courts in the countries where the defamatory statement was made or received. Lawyers in Australia, particularly judges, take abusive imputations very seriously, especially about being bald and/or deaf.
Has her privacy been breached? Displaying an image of someone even if it is in their underwear is not a breach of their privacy unless there is a good reason for it to be confidential.
There are probably a number of national trading standards organisations to which she could protest, but they may not act quickly, or at all. Therefore, it is advisable to get your arguments in order before you approach Facebook demanding that they take them down.
© Paul Brennan 2013. All rights reserved.
* Underwear shots taken by your employee are not always deemed your copyright and in any event, should only be used when combined with a credible explanation to your spouse.
Disclaimer : All references in this article to underwear, being overweight, selfies, employees taking inappropriate photographs, disrobing, drug taking, inappropriate use of firearms, ineffective lawmakers, trading standard organisations being any slower than any other government body are pure inventions to try and keep the readers’ attention and nothing to do with the news report which sparked this article. Any resemblance to real persons or events, living or dead, fat or thin is purely coincidental.
Defriend or Foe?
On Facebook there is a person whom I wish to defriend. Could defriending be defamatory? Does it amount to an imputation that there is something wrong with that person? Would it be safer to write to the person first setting out the reasons so that they can make any submissions before I take the decision to defriend?
Absolutely not, but have you considered the more satisfying and rewarding alternative of suing this interloper?
A writ could be posted on your Friend’s timeline. Rather than being vindictive, you could claim you were just being efficient as it is now possible to serve court documents via Facebook. Others may Like the Post and if your Friend is particularly unpopular it could go viral on Twitter. The writ could be boosted by a tasteful, paid Facebook advertisement. Even something as mundane as a neighbourhood tree dispute could attract thousands of visitors to your Facebook page.
If this proves popular, you may find yourself eyeing up other Friends to sue. Of course, it would be best to choose your targets with the benefit of advice from a lawyer, who practices in the area of anti-social media, as I do. It is a matter of trial and error, but bikini models and accountants have proved extremely popular targets with my clients.
Therefore, it is essential to remain Facebook Friends so that your Friend can not only witness the humiliation of being so publically vilified but also be subject to the added sting of suspecting that they have helped to improve your Klout score.
As the Godfather said “You keep your friends close but your Facebook Friends even closer”.
John Fytit AO
© Paul Brennan 2013. All rights reserved.
Charity and lawyers
believe that lawyers will be required to undertake 10 charitable hours a
year under the soon to be introduced Charitable Legal Endeavours (CLE)
points scheme. While previous charitable acts will be taken into
account, my last one was in 1997, and I did not even win that raffle.
Is this not just another fad foisted on the legal profession like mediation and suspended sentences?
legal practitioners will not have any difficulty as CLEs are to include
hours spent talking clients out of litigation which is a daily
occurrence with some clients.
I understand that the management
of some larger firms insisted on a Charitable Emissions Trading Scheme
(CETS) so that extra CLE’s can be purchased from smaller firms and
overseas to fulfil the targets of their associate lawyers to avoid any
distraction. Therefore, CLEs may prove fruitful, although the extra
paperwork could be burdensome.
Of course, this is being driven
by those young things in legal marketing departments who have an
unprofessional interest in the spandex covered buttocks of trainee
lawyers. Gone are the cherished photographs of lawyers and judges
standing at cocktail parties, as legal websites begin to resemble Club
Med. Charity seems to start with expensive clothes and unrelated
strenuous activity. Mother Teresa would not get a look in these days.
The other day I saw a flyer for a fund raising walk for orphans which
said “Bring the Family”.
My approach to charity is that it is
good for the soul, if anyone finds out about your charitable deeds, it
does not count. Of course, without a marketing department it has been
tricky over the years to let clients and others know how discrete and
humble I am about this, but with the right receptionist I have managed.
John Fytit AO
Lawyers undertake Continuing Legal Education (CLE) points each year
which are regarded as of limited use as the younger and older lawyers
know everything already.
The Law Institute Journal (the official publication of the Law Institute of Victoria) published the following book review:
For a profession known for taking itself rather seriously, lawyers are also exceptionally good at seeing the funny side of the practice of law.
There are few better at the art of skewering the pretensions and idiosyncrasies of legal practice than Queensland lawyer Paul Brennan, author of the Law & Disorder website which, for years, has been dispensing useful legal advice heavily disguised as comedy. As well as tips on topics such as “The 10 greatest legal mistakes in business . . . and how to avoid them”, the site is host to caustic and comic legal cartoons, an ezine and more.
Those readers familiar with the comic Queenslander’s books, including The Law is an Ass . . . Make Sure It Doesn’t Bite Yours, can now add to their collection with the latest Brennan book 101 Reasons to Kill all the Lawyers.
The book grew out of Paul’s blog of the same name. He said he decided on 101 reasons as he didn’t want to depress the entire legal profession by having 1001.
But there’s nothing depressing about 101 Reasons, with its advice about the things lawyers should know about but might not, such as the secret of enjoying committee meetings, how to field complaints, career planning and dealing successfully with their own legal problems. It is also about things Paul says lawyers are not expected to know about but probably should such as change, innovation, emotions, relationships and sex.
Law Institute Journal (Victoria)
September 2013 87 (9) LIJ, p.86
Click here for a
preview and to order the book from Amazon for the special price of
$14.53 (usually $19.99) while stocks last. Also available as an eBook
My No. 2 son has been appointed as a legal intern at a prestigious Sydney law firm. All those years of not listening to me have finally paid off.
Event in Sydney:
Are you a lawyer or living with one and sick of creating your own dramas?
If so, Sydney lawyer and playwright Tony Laumberg's 13th comedy play,
THE GOOD, THE BAD & THE LAWYER is on in Sydney starting 10 October 2013.
Disclaimer: The content of the play does not constitute legal advice. You should seek legal or other professional advice before acting or relying on any of the performance.
Disclaimer: The content of the Law & Disorder eZine is to give you legal basics and in some instances, included unashamedly to try and make you laugh. In law, it is sometimes difficult to work out what is serious and what is just for fun. Therefore, if you plan to do anything legal, rely on your own lawyer's advice or instruct me to look at the particular facts of your case. Not only will I deny responsibility for the legal content but also for some of the jokes.
Brief Books QLD BN22069914
This Law & Disorder eZine is sponsored by Brennans solicitors
ABN 47 163 512 614 a Sunshine Coast, Queensland law firm with individual liability limited by a scheme approved under professional standards legislation