Influencers and online content creators to beware of liability risks
This according to Johannes du Plessis, Legal Advisor at RBS (Risk Benefit Solutions Pty Ltd), an authorised financial services provider, who states that the risks faced by people posting on social media could range from unintentional copyright infringement to defamation and even criminal injury.
“It is common nowadays to see influencers and regular content creators post blogs, tweets and video clips that reach audiences of thousands. It is extremely important for them to be mindful of the kind of mistakes that could cost them huge amounts of money in damages and legal bills.”
Du Plessis says that copyright infringement is one of the biggest risks faced by people who publish video clips and live stream events such as music concerts, sporting events, stage productions and tournaments. “Most of these events are subject to copyright as well as broadcasting and distribution rights. Posting unauthorised photos and videos of these events online, will likely infringe the copyright as well as broadcasting and distribution rights of the hosts of the events.”
Du Plessis adds that the rightful owners of the intellectual property can obtain court interdicts against the social media user, to start. “The person posting the content can also be criminally investigated by the police and prosecuted by the National Prosecuting Authority and the State for creating and distributing a pirated copy of the event. The broadcaster that owns the rights to the event, can also pursue civil action that could result in an enormous amount of legal costs and damages.”
Online reviewers are also at risk of legal action if they are not careful, says Du Plessis. “Businesses like restaurants, shops and other enterprises that depend on client foot traffic, can hold online reviewers to account for decline in prospective sales in products or rendering of services, and ultimately in the loss of prospective income resulting from bad reviews.”
He explains that in law, every business, has the right to a good name and reputation. Any action that has the effect of injuring a business’ status in the market is defamatory, and the consumer may therefore be held liable.
“It is also presumed in law that a defamatory statement is wrongful and done intentionally, until otherwise proven. It is therefore not the onus of the business to prove that the reviewer’s statement is wrongful, but rather the onus is shifted onto the reviewer to prove that their statements were not wrongful or intentional. Even if the reviewer successfully disproves intention to defame, negligence is still sufficient to be held civilly liable. Even worse for the reviewer, whether the good name of the business involved has in fact been infringed is irrelevant when determining wrongfulness. The only relevant question is whether, in the opinion of a reasonable person, the reputation of the person concerned has been injured.
Du Plessis states that it is important for online reviewers and influencers not to make careless or needlessly harsh statements online, to take care not to copy or publish material subject to copy rights as well as broadcasting and distribution rights, and to make sure that they have adequate personal liability insurance cover. Some legal insurance products include criminal defence and bail costs, and other insurance policies provide extensions for such civil liabilities. However, the wording of each insurance policy differs from insurer to insurer. It is therefore prudent for each reviewer and influencer to consult with their insurance broker to determine their potential risks, and which insurance policy would be best suitable.
“Especially in cases where influencers and online content creators benefit financially from their work, having adequate liability cover may just save them from financial ruin one day,” Du Plessis concludes.