#createorcredit {Part 2}: misleading and deceptive conduct on social media

#createorcredit | Image by CATHERINEGRACE | www.catherinegrace.com.au

In the second edition of my #CREATEORCREDIT series we dig a little deeper and look at the fine line between valid promoting and what may be misleading or deceptive conduct on social media {specifically Instagram} to ensure you don’t get caught on the wrong side of the law which can attract hefty financial penalties.

These posts are part of my business & financial insights for the style set series. If you have something you’d like discussed as part of this series, please do get in contact me.Business and financial insights - style and photographed by CATHERINEGRACE copyright 2015Firstly, thank you everyone for your support of the #CREATEORCREDIT initiative. If you haven’t had a chance to get involved, please do! You can read my initial post, dealing with the moral rights of the creative and you are welcome to save the image below and post it to your social media feed or website to encourage your followers and readers to correctly credit when posting other people’s photos on social media. Please make sure to tag me {@catherinegrace__ on Instagram or direct your blog readers to www.catherinegrace.com.au}.#createorcredit featured imageIn the first #CREATEORCREDIT post I discussed the legal and moral requirement to credit the correct image creator when posting any image that is not your own on social media. I looked at the issue from the perspective of a potential breach of the moral rights of the image creator – part of the laws governing copyright in Australia. When considering the issue from this perspective, the only person who really has a claim against the wrongdoer is the image creator – third parties will not usually have a claim against the wrongdoer in respect of moral rights violations.

In this post, however, I look at the requirement to credit the correct image maker to avoid misleading or deceptive conduct. Importantly, the laws governing misleading and deceptive conduct in Australia mean that any consumer {not just the original image creator} who is mislead or confused by the offending action may have a claim against the wrong-doer. The wrongdoer can also be found to be guilty of misleading or deceptive conduct and subsequently penalised, even if nobody has actually been mislead at the time. In my view, this really ups the ante!#03 - The Corporate Kid - styling and photography by catherine and grace - copyright 2014Infringing someone’s moral rights is horrible and it feels really awful when it happens to you {I speak from experience}, however it usually does not result in any significant penalties against the wrongdoer {other than karma!} There are exceptions, of course, however I am speaking generally. However, when we get into the realm of misleading and deceptive conduct there can be significant financial and other penalties against the wrongdoer.

Consequently, it really is something that small creative businesses need to be aware of, especially as intent is not relevant when considering whether certain activity is misleading or deceptive conduct. It doesn’t matter if you don’t intend to mislead consumers, if you do mislead them, or a third-party believe consumers may be mislead, you can be liable for infringing Australian laws.#createorcredit 7 - style and photographed by CATHERINEGRACE copyright 2015// the legal framework // 
Without getting all bogged down in specific legislative provisions and common law, the following are elements to be aware of.

Firstly, in order for activity, in our case posting images on Instagram, to be subject to review under the misleading and deceptive conduct provisions under Australian law the activity must be in trade or commerce. The term “in trade or commerce” has not been given a specific definition by the courts, lawmakers look at the circumstances surrounding each alleged infringement, however it is fairly safe to say that if you are selling goods or providing a service and you are using Instagram as part of your marketing strategy {even if you have a semi-personal / semi-business account with pictures of rooms you have designed, events you have styled, paintings you have created for sale or items your shop sells as well as pictures of your kids, pets & meals} then it is very likely that your Instagram posts will be considered activity in trade or commerce.

Most small creative businesses, mine included, will have an Instagram account that is, under Australian law, operating in trade or commerce. If you only post photos of your kids and your pets and the occasional shot of your new fashion purchases or current juice cleanse, your Instagram account is not likely to be covered under the misleading and deceptive conduct provisions. Nevertheless, it is well worth reading the rest of the post to make sure you never get stuck in the future!#createorcredit 2 - style and photographed by CATHERINEGRACE copyright 2015An Instagram post, or group of posts when viewed together, will infringe Australian law if it is misleading or deceptive or likely to mislead or deceive the viewers / consumers of the post or posts. Again, there is nothing special about these words. In each circumstance it is a question of the facts. However it is important to note that intention is not relevant. That is, even if you did not intend to mislead anyone, you may still be found to be in breach of the law if the courts decide that you did actually mislead someone or if your activity was likely to mislead someone.#11 - Officeworks - master my workplace - styling and photography by catherine and grace - copyright 2014// examples // 
So what activity may be considered misleading or deceptive conduct by a business posting images on Instagram, and what does this have to do with #CREATEORCREDIT? Well, here are just 6 examples that may breach the Australian legal provisions.

// one //
An Instagram account of an event styling company {called XYZ Co for today’s purposes} posting images of events they have not styled or had anything to do with without making that fact very clear. Simply putting #inspiration #XYZcostyle #ourstyle at the end of the post may not be enough if it is not clear to the reasonable consumer that the images are not events styled by XWY Style Co.#17 - Little Miss Turns Two - styling and photography by catherine and grace - copyright 2014// two //
If XWY Co goes ones step further and takes images from various events styled by other companies and puts a XYZ Co watermark on the image and posts those images then this is almost certainly going to mislead consumers and I, for one, would find it very difficult to see how it would not be breaching the relevant provisions. And yes, I have seen this done!#01 - Little Miss Turns Two - styling and photography by catherine and grace - copyright 2014// three //
An Instagram account of a professional photographer posting clearly professional photos that are not his or her own without clearly stating who took the photo would likely mislead consumers into thinking the photographer took the photos. Note: the below image of Little Miss and I was taken by Hannah Blackmore for Adore Magazine, not by me!#11 - Adore behind the scenes - styling by CATHERINEGRACE photography by At Dusk and Hannah Blackmore photography copyright 2014// four //
If I posted an image of a styled vignette and put #styleandshootbyCATHERINEGRACE underneath, a reasonable consumer may think I styled and photographed the image. If I did not actually style and photograph the image this again could be misleading and deceptive.01- WEB One in a Melon FINAL - Style and Shoot by CATHERINEGRACE- styling and photography by CATHERINEGRACE copyright 2014// five //
An interior designer posting images of interiors that were not styled by them may breach the provisions. There are so many wonderful interior images on Pinterest, however remember #pinterest is not an acceptable way to credit an image and may not be enough to ensure consumers are not mislead.#createorcredit 3 - style and photographed by CATHERINEGRACE copyright 2015// six //
A fashion blogger who posts fashion flat lays that are not their own may also mislead the consumers. Fashion blogging is big business these days so fashion bloggers can certainly be said to be operating in trade or commerce.#createorcredit 6 - style and photographed by CATHERINEGRACE copyright 2015The simple rule to keep you out of trouble? Create your own content or credit the correct image creator – create or credit!

xx Catherine JPEG




These posts do not, and should not, take the place of appropriate and individual financial, legal or other advice that directly takes into account your particular circumstances. To provide financial advice in Australia, and most other countries, you need a financial services licence. I do not have that licence and I am not a registered financial advisor. These posts are designed to highlight issues that may affect you and encourage you to delve deeper and seek out the correct advice in relation to the issues that will affect your life or business.

All images, other than the image by Hannah Blackmore for Adore Magazine were styled and photographed by me for CATHERINEGRACE or clients of my Style & Shoot by CATHERINEGRACE service.

3 Comments on “#createorcredit {Part 2}: misleading and deceptive conduct on social media

  1. Pingback: Be a good digital citizen: Interview with Catherine Wilson on her #createorcredit initiative - OF KINOF KIN

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