Australia: Are you kicking goals when it comes to social media activity, or heading to the sin bin?

Last Updated: 17 May 2019
Article by Rebecca Brenikov and Alyson Poole

They say that a picture tells a thousand words. But as became apparent in Australia recently, posting a picture on social media can result in a thousand (derogatory and sexist) words.

A photograph posted on Twitter by Seven AFL (taken by photographer Michael Wilson), resulted in Australian female AFLW star, Taylor Harris, hitting all the headlines. But it wasn't Ms Harris' sporting abilities, nor her athletic display which held media attention: it was the negative words of a minority of the public in response to the photograph of Ms Harris at work, on the field, which caused a stir.

This event may go down in Australia's social media history, but it also provides an opportunity for companies to pause, consider and learn from when considering whether they are equipped to appropriately deal with the varying and every increasing complexities of the social media world.

The complex rights at play – is it mine or is it yours?

There are several stakeholders at play when posting content, such as a photograph, on social media. Taking the photograph of Ms Harris as an example, the following stakeholders can be considered;

  1. The person who is the subject of the photograph (Ms Harris);
  2. The social media account holder (Seven AFL) who posted the photograph on social media;
  3. Any party who shares the original post; and
  4. The photographer who took the picture (Michael Wilson), and who holds (without agreements to the contrary) any copyright and moral rights in the photograph.

In turn, we consider what potential issues can arise for each of these stakeholders and the lessons learned for future conduct.

  • The person who is the subject of the image: Ms Harris is the subject of the image, and in the context of this current news cycle, is the subject of the public attention. Arguably it is Ms Harris' reputation that is most impacted by the mis-treatment of the photograph. Unfortunately Australia does not have any publicity or personality rights so, without other controls prohibiting or regulating photography during AFL matches, Ms Harris can do little to prevent spectators and photographers from taking photographs of her, and using those images without her consent.
  • The social media account holder responsible for the post: Assuming the account holder owns, or has rights to publish, the photograph, they are free to post the photograph online and on social media. Diligent and responsible account holders should, however, be prepared to monitor and regulate any comments made in response to posts, and be willing to take action where required (including removal of defamatory, offensive or unseemly commentary). To assist companies decipher how to monitor and regulate commentary, companies should be encouraged to have policies in place which direct how they should interact with their audience on social media platforms, the nature and tone of any posts, and how they should to respond to negative and/or controversial commentary that does not align with their company values. Account holders should also ensure that they comply with the terms and conditions of the social media platform, being the terms of Instagram and Twitter etc., that they sign up to when opening the social medial account.
  • The photographer: Copyright and moral rights will subsist in a photograph from the moment it is taken. The default position under Australian law is that the photographer will hold both rights automatically. The photographer's moral rights include the right not to have their work treated in a derogatory way and this includes any treatment "in relation to the work that is prejudicial to the author's honour or reputation". Arguably, comments posted in response to a photograph could be considered to be damaging to the photographer's honour or reputation and therefore could infringe the photographer's moral rights. It is not, however, uncommon for a photographer (particularly those working for media conglomerates) to assign their copyright to their employers or instructors, and to provide consents in respect of moral rights infringements. In such case, a photographer will have no right of action against their employer or instructor, but could potentially have a cause of action against a third party in who's favour consent has not been given.
  • Parties that share the original post online and on social media: Content on social media can be shared across the world eye wateringly quickly. It is extremely difficult to completely delete an image or post once it has been posted online. These factors combined mean that a single post can be shared by millions in a matter of minutes. By way of example, one of the most shared tweets of all time is from the 2014 Oscars posted by Ellen Degeneres featuring Bradley Cooper, Jennifer Lawrence, Meryl Streep, Julia Roberts, Brad Pitt and Lupita Nyong'o (among others). This photograph was retweeted over 3.2 million times. Asking each of these 3.2 million account holders to delete or remove the re-posted content would be a long and arduous task.

It is therefore vital for companies to remember that whilst they can control their own content, it is extremely difficult to have any control over shared or re-posted content. Companies would also be wise to remember that even though they can delete any ill-timed post, it can live on if a person takes a screenshot of the post. Media organisations and journalist are uncannily quick to take screenshots of questionable content posted by companies, so they can still report on the post long after the original is deleted.

Damned if you do, damned if you don't?

Even if you have carefully considered all of the above competing stakeholder rights in mind, what the current media controversy has highlighted is that in some circumstances, you're damned if you do and damned if you don't. There is no telling how the public will react in a given situation, but one thing is clear – monitoring is vital.

Upon identifying the negative, derogatory and sexist comments which were being posted in response to the photograph of Ms Harris, broadcast company Seven AFL removed the photograph altogether. What Seven AFL did not foresee was the prompt public outrage in response to the removal of the image. On Twitter, Seven AFL defended its removal of the photograph, see here , stating "The image attracted a number of comments, some of which were inappropriate and offensive. As a consequence we have removed the image and the comments". Australians however took to social media channels to question why the broadcaster had removed the image, rather than monitoring and censoring any offensive comments.

The impact of the removal, rather than the negative comments, was soon clear to Seven AFL, who reposted the image, see here a short time later commenting "We're sorry. Removing the photo sent the wrong message. Many of the comments made on the post were reprehensible & we'll work harder to ban trolls from our pages."

Key takeaways for companies

For companies operating social media accounts, a key principle to bear in mind is that social media posts are subject to the same legislation and regulations as publications and content made through traditional channels. Companies are responsible for any content posted to their social media account and for any third-party comments made in relation to their posts. After ensuring content is appropriate and aligns with company policy, monitoring reactions and comments made against the company's posts is one of the most important things for a company to do. In addition, as the Seven AFL saga demonstrates, a company's reaction to an event can have just as much of an impact on a company's reputation, so thinking through social media strategies is just as important as complying with legislation and regulation.

In sum, companies making use of social media channels should remember to:

  • Ensure appropriate rights and consents are in place before any content is published
  • Actively monitor social media platforms, including third party comments and posts
  • Actively interact and be honest with your audience in a timely fashion (and this means hours, not days)
  • Think through and be aware of the potential impact that online action (or inaction) could have for your own brand's reputation.

Follow the tips above to try and ensure you avoid a reputational red card. But if you find yourself in need of advice, don't hesitate to get in touch.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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