It seems that there are countless social media platforms: Facebook, Instagram, Pinterest, Twitter, Snapchat, YouTube and LinkedIn, just to name a few.

One common feature of all of these platforms is that they all enable online sharing – the sharing of thoughts, ideas, photographs, videos and handiworks. So what is intellectual property (IP) law and just how do we protect our ideas or expressions of ideas when we engage in online sharing? How do our IP laws work and what IP rights are we giving up when we use these social media platforms?

Copyright in Australia

In Australia, the expression of certain types of works will be automatically protected by copyright without the need for any formal registration. These works include literary, dramatic, musical or artistic works.   Notably, a photograph is protected by copyright as a product of the art of photography, regardless of whether there is any real skill or artistic ability exercised by the person who takes the photograph. In simplest terms, this basically means that every photograph that is taken is automatically protected by copyright, and the author of that photograph has certain legal rights in relation to its use.

So what rights do we give up when sharing a photo via social media?

The answer depends on the terms of use that a user agrees to when he or she signs up to the relevant platform. However, given the sheer number of social media platforms and their prolific use, it is possible that many users are inadvertently altering or disposing of their legal rights. Also, when clicking ‘I agree’ to use the platform, how many of us actually read the terms and conditions, so we really know what we are agreeing to?

What else are we giving away?

In addition to the possible inadvertent surrender of one’s copyright, the use of social media also allows for thoughts, ideas and expressions to be disseminated across the globe, and there are obvious issues when it comes to the protection and enforceability of one’s legal rights when a breach has occurred in another jurisdiction. If, for example, a person writes an article and shares it on LinkedIn, and that article is shared with hundreds of online users, what rights would the author have if, say, a university student in another country plagiarised their article? How would the author go about enforcing those rights? Would it be worth the time and effort involved in navigating the IP laws and legal systems of the other country?

These are just two examples of the difficulties that exist in relation to intellectual property and social media. The issues become more significant when a person has intended to earn a livelihood from their works – for example, unsigned musical artists and amateur filmmakers.

At the very least, it seems that the existence of issues such as these highlights the need for more education in the IP space. We should all know what rights we have in our work so we can decide what to do with them.

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In August this year, there was a news report relating to the 20-year suspension of a Queensland Australian Rules Football player who kicked a fellow player in the head during a football match. It appeared from the video footage of the match that the offending player delivered the kick intentionally to a player who had already been knocked to the ground. The incident squarely gives rise to the issue of torts in sport.

Trespass Torts

The ancient tort of battery is a form of legally actionable trespass that exists where a person directly and either intentionally or negligently causes some physical contact with another person, to which that other person has not consented. Of course, the act of deliberately kicking another player during a football match satisfies the first limb of the tort – namely, directly and intentionally coming into physical contact with another person. The relevant question, therefore, in determining whether a tort has been committed centres around the issue of consent.

Consent and the ‘Rules of the Game’

The courts have recognised that in certain circumstances a person will have given implied consent to certain types of physical contact – for example, inevitable jostling at a train station or on a busy street, or a hand seized in friendship. This principle of implied consent has been extrapolated to contact that occurs between players during sport. In the case of McNamara v Duncan (1971) 26 ALR 584, the plaintiff successfully sued the defendant for injuries he sustained when he was struck by the defendant while playing Australian Rules Football. As to the issue of consent, the court noted that forcible bodily contact was part of the game. However, it ultimately held that the contact between the defendant and the plaintiff was contrary to the rules of the game and was therefore beyond the scope of the plaintiff’s implied consent.

In the light of this interpretation of the law, it is perhaps surprising how few torts cases relating to sporting injuries have been pursued in the courts. However, the recent incident in Queensland serves as a timely reminder as to the limited scope of consent that will be implied by the courts in relation to contact occurring between players in the course of a sporting match. Playing and contact within the rules will be deemed to be consented to; playing foul of the rules may see you playing foul of the law.

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References

• Ipswich Eagles Aussie rules player banned from playing for 20 years, Erin Smith and Chris Clarke, Quest Newspapers, 24 August 2017
• Collins v Wilcock [1984] 1 WLR 1172 at 1177-1178 at cited and applied in Rixon v Star City Pty Ltd [2001] NSWCA 265 at [53].

The law is often required to find ways of balancing competing interests; hence the frequent imagery of scales in the law. One of the overarching principles of contract law is the concept of ‘freedom of contract’, which essentially protects a person’s right to enter freely and voluntarily into any contract of his or her choosing. The law is not there to protect you from making a ‘bad bargain’; it’s simply there to enforce the bargain you freely enter into, regardless of your commercial savviness or otherwise.

However, there are certain facets of life in which the law has recognised a need to curtail this fundamental freedom due to unequal bargaining power, in order to ensure that certain categories of potentially vulnerable people are protected. Two pertinent examples of this are the areas of employment and consumer law, where protections have been afforded to the weaker contracting party, namely, employees and consumers.

Protecting the vulnerable – statutes

The law’s willingness to intervene in order to protect a more vulnerable contracting party stems from two sources. First, Parliament readily enacts statutes that codify certain minimum rights and entitlements. The Fair Work Act 2009 (Cth) and the Competition and Consumer Law Act 2010 (Cth) are examples of such statutes in Australia. Parties cannot contract out of the rights and entitlements that are provided for in these statutes – they are like Statutory Guarantees!

The Fair Work Act 2009 (Cth) prescribes a number of minimum standards in relation to employment, which are set out in the aptly named National Employment Standards. The National Employment Standards cover numerous aspects of the employment relationship, including various types of leave, maximum weekly hours, notice of termination and redundancy pay. The Competition and Consumer Law Act 2010 (Cth) includes the Australian Consumer Law – a set of provisions that regulates consumer contracts by, amongst other things, ensuring that goods and services are of an acceptable quality and are fit for the purpose for which they are acquired.

In the absence of statutes such as these, there is a real risk that the weaker contracting party would, out of necessity for employment, goods and services, enter into manifestly ‘unfair’ contracts.

Common law also attempts to mitigate unfair bargaining

The second source of protection comes from the common law and decisions by the courts to imply, as a matter of law or fact, certain terms and conditions into particular classes of contracts. By way of example in the employment context, the High Court of Australia recently considered whether employment contracts included an implied term of mutual trust and confidence. Notably, however, protections afforded by the common law are less robust than those provided under statute – unlike statutory entitlements, implied terms and conditions can be excluded or amended by express contractual terms, usually imposed by the stronger of the parties.

There are, of course, other areas of life and law where there is an imbalance of bargaining power between contracting parties. It is interesting to consider just how far the law should go in seeking to address this unequalness when the net result is to curtail the fundamental concept of freedom of contract. What do you think?

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Learn more about contract law and become legally literate by joining Monash University’s Law for Non-Lawyers: Introduction to law for an accessible introduction to the common law system.

This free to join online course is designed for anyone with an interest in law. Whether out of professional or personal interest in the legal environment in which you live, work and play, this course is for you.

Join the course, Law for Non-Lawyers, today.

Learn more about Monash’s suite of online courses developed with education partner FutureLearn.

References

• Printing and Numerical Registering Co v Sampson (1875) LR 19 Eq 462 at 465
• Commonwealth Bank of Australia v Barker [2014] HCA 32