ples include reproducing a company’s logo on Facebook to direct traffic away from the original site to the infringing party’s own site, or posting via Twitter information directly copied from a competitor’s website. Classic infringement of this kind is remedied by traditional IP laws; these laws will apply regardless of whether the infringing content is online or not. Disparaging treatment This risk area involves situations where infringing material is used to disparage the lawful owner of the IP. Such scenarios could involve disgruntled employees or activist groups reproducing a company’s IP for posting on various social media platforms in order to criticise and sully the company in question. An example of this is activists modifying the Nestlé image (including modifying the Nestlé KitKat logo in order to include the word ‘killer’ next to the word Nestlé) in protestation against Nestlé’s use of palm oil in the manufacture of some products. It is difficult to use existing Australian IP laws to prevent disparaging conduct from occurring. Often the material will not cause sufficient confusion or deception such that it constitutes a breach of trademark or fair trading laws.  It may also fall under the protection of the parody or satire defence of the Copyright Act 1968. Further, there is no Australian equivalent of the US ‘dilution laws’ that prevent the use of material which, although not deceptively similar to another trade mark, nevertheless lessen the uniqueness of that trademark (even though the infringing material may have little connection and not even be directly competing with the original trade mark). Businesses may be able to acquire some protection if the platform hosting the disparaging accounts is willing to cooperate and disable the accounts on the basis that not doing so would constitute a breach of their terms and conditions. However, this is not a fool proof panacea because the person disseminating the disparaging material is still able to create new accounts and continue engaging in disparaging conduct. But the ease of identifying the infringing party can also be difficult. This is because there is no ‘trail’ of commercial transactions or client solicitations to trace; many social media platforms allow users to sign up for accounts without verifying any personal details provided. This gives people who wish to make the disparaging comments a degree of anonymity (and thereby makes it harder to trace them in order to institute proceedings). Further, given the internationality of social media users, jurisdictional issues also frequently arise. However, social media is not necessarily all gloom and doom for businesses wishing to protect their IP. A proactive and progressive approach to social media can often greatly benefit a business. An example of this is the Coca-Cola Facebook page. Originally started by two fans who had a passion for the soft drink, the page (which adopted Coca-Cola IP) was discovered by Coca-Cola; however instead of attempting to quash the site, the company worked with the original creators and continued to build the page. By being involved, the company could then steer the page into representing the brand in a manner consistent with its business model. The page currently has over 38 million Facebook friends as of publication of this magazine. Employees and social media Social media can be a valuable tool for employers. Employers seeking to recruit staff can use the various social media platforms to conduct recruitment drives, interacting directly with prospective employees and obtaining a clear picture of the full range of candidates (and incidentally, cutting out the middlemen). Moreover, social media can be useful in assessing the suitability of applicants and ensuring that potential candidates meet the criteria for the employer’s business (it is important, however, that employers ensure they do not discriminate against hiring potential employees on illegal grounds such as family obligations etc). There are inherent dangers for an employer when their employees are engaged with social media platforms, the most common being when an employee, through a medium such as Facebook, makes critical or disparaging comments about their employer or fellow employees. This can be damaging to the employer’s brand, and depending on the nature of the comments, could lead to the employer being held liable for workplace bullying or other forms of harassment. So how can employers protect themselves against improper use of social media by employees? First and foremost, employers should have a comprehensive social media policy in place. Such a policy would set out what is considered appropriate use of social media and what may be considered grounds for dismissal. Furthermore, the policy should be in accordance with the employer’s workplace culture – this not only enhances the effectiveness of enforcing the policy, but is also more likely to succeed in achieving adherence. Secondly, employees should be provided with training on the policy, including discussion on the policy’s implications on conduct and any ramifications that may arise from misfeasance. Finally, in instances where there has not been compliance with the policy, the employer should take care to ensure they are consistent in their dealings with the transgressing employees. Monitoring compliance with the policy could be an onerous task (especially in workplaces with large numbers of employees) and infringements may not necessarily be discovered until after some time; however when a transgression is discovered, it is important that the employer adopts a consistent approach to each of the relevant employees. This not only prevents any hint of bias or discrimination, but reinforces the core importance of the policy and adherence to it. Social media should be recognised as the constant it is in the 21st century. Business should embrace social media and reap the many benefits it offers; but they should do so in a manner that offers them maximum protection. The most effective method by which an employer can protect themselves is through having a social media policy. * David Moore is special counsel, intellectual property at Cornwall Stoddard. If you would like more information on social media, please contact Louise Houlihan on (03) 9608 2273 or here. For more information on IP related issues, please contact David Moore on (03) 9608 2264 here. * This feature first appeared in the June/July 2012 edition of Inside Retail Magazine. For more stories like this, subscribe to Inside Retail Magazine’s bi-monthly print edition here.