VOLUME 85 – October 2013

In this issue:

• Defriending legal issues

• Protecting your photos in Facebook

• Charity and lawyers

• Book review

Paul Brennan Editor

Author of the The Law is an Ass...Make Sure it Doesn't Bite Yours! info@lawanddisorder.com.au www.lawanddisorder.com.au For further information on the events, book launch or other matters referred to in this ezine please go to

www.lawanddisorder.com.au.

The Law & Disorder eZine attempts

to provide legal information in an

entertaining and amusing manner to

help clients avoid predictable legal

issues.

Brief Books PO Box 27 Mooloolaba Queensland 4557 Australia

QLD BN: 22069914

This Law & Disorder eZine is sponsored by:

A.B.N. 47 163 512 614

Phone: 07 5438 8199

Fax: 07 5438 8836

info@brennanlaw.com.au

www.brennanlaw.com.au

Individual liability limited by a scheme approved under professional standards legislation

2

Your photographs and Facebook

Many people on finding that their image has

been used to promote weight loss may feel a

little flattered unless of course it is the

“Before” rather than the “After” shot, but an

attractive fitness trainer whose underwear

shots were taken without her permission and

used to promote slimming products on

Facebook in another country was

understandably livid.

Will Facebook rush into action? Well, it all

depends.

Facebook will act if you can prove that your

intellectual property rights (“IPR”) have been

infringed. For instance, the person taking a

photograph is usually the copyright owner. By

uploading the photograph it has been copied. Facebook should act quickly to remove

the infringing photograph. This is because generally, internationally, a company which

hosts a site can be liable if they do not act to remove infringing material within 48

hours of being informed of the infringement. But, unless it was a selfie, or taken by

your employee*, or you have a licence or assignment of the IPR by the person who

took the picture, you are not the copyright owner and do not have the right to

enforce copyright in the photograph.

Have her image rights been infringed? This is an argument used by celebrities whose

images are used to promote a product without their permission. Here, Facebook

should act as she is in the business of a trainer and her image is part of the goodwill

of her business.

Has she been defamed? Imputations of being fat, taking drugs, or being willing to

strip off for money are insults that most people can laugh off, unless it is about

them. But America has comparatively lax laws on defamation as freedom of speech is

a fundamental right of every US citizen, they can say what they like about anybody.

Hence, the popularity of guns. Therefore, Facebook may not be eager to act but can

be forced to do so by courts in the countries where the defamatory statement was

made or received. Lawyers in Australia, particularly judges, take abusive imputations

very seriously, especially about being bald and/or deaf.

3

Has her privacy been breached? Displaying an image of someone even if it is in their

underwear is not a breach of their privacy unless there is a good reason for it to be

confidential.

There are probably a number of national trading standards organisations to which she

could protest, but they may not act quickly, or at all. Therefore, it is advisable to get

your arguments in order before you approach Facebook demanding that they take

them down.

© Paul Brennan 2013. All rights reserved.

* Underwear shots taken by your employee are not always deemed your copyright and

in any event, should only be used when combined with a credible explanation to your

spouse.

Disclaimer : All references in this article to underwear, being overweight, selfies, employees taking inappropriate photographs, disrobing, drug taking, inappropriate use of firearms, ineffective lawmakers, trading standard organisations being any slower than any other government body are pure inventions to try and keep the readers’ attention and nothing to do with the news report which sparked this article. Any resemblance to real persons or events, living or dead, fat or thin is purely coincidental.

4

Defriend or Foe? Dear John

On Facebook there is a person whom I wish

to defriend. Could defriending be

defamatory? Does it amount to an

imputation that there is something wrong

with that person? Would it be safer to write

to the person first setting out the reasons

so that they can make any submissions

before I take the decision to defriend?

FB user

Dear FBU

Absolutely not, but have you considered the more satisfying and rewarding

alternative of suing this interloper?

A writ could be posted on your Friend’s timeline. Rather than being vindictive, you

could claim you were just being efficient as it is now possible to serve court

documents via Facebook. Others may Like the Post and if your Friend is particularly

unpopular it could go viral on Twitter. The writ could be boosted by a tasteful, paid

Facebook advertisement. Even something as mundane as a neighbourhood tree dispute

could attract thousands of visitors to your Facebook page.

If this proves popular, you may find yourself eyeing up other Friends to sue. Of

course, it would be best to choose your targets with the benefit of advice from a

lawyer, who practices in the area of anti-social media, as I do. It is a matter of trial

and error, but bikini models and accountants have proved extremely popular targets

with my clients.

5

Therefore, it is essential to remain Facebook Friends so that your Friend can not only

witness the humiliation of being so publically vilified but also be subject to the added

sting of suspecting that they have helped to improve your Klout score.

As the Godfather said “You keep your friends close but your Facebook Friends even

closer”.

John Fytit AO

© Paul Brennan 2013. All rights reserved

Charity and lawyers

Dear John

I believe that lawyers will be required to

undertake 10 charitable hours a year under

the soon to be introduced Charitable Legal

Endeavours (CLE) points scheme. While

previous charitable acts will be taken into

account, my last one was in 1997, and I did

not even win that raffle.

Is this not just another fad foisted on the

legal profession like mediation and

suspended sentences?

Concerned lawyer

Dear CL

Many legal practitioners will not have any difficulty as CLEs are to include hours

spent talking clients out of litigation which is a daily occurrence with some clients.

I understand that the management of some larger firms insisted on a Charitable

Emissions Trading Scheme (CETS) so that extra CLE’s can be purchased from smaller

6

firms and overseas to fulfil the targets of their associate lawyers to avoid any

distraction. Therefore, CLEs may prove fruitful, although the extra paperwork could

be burdensome.

Of course, this is being driven by those young things in legal marketing departments

who have an unprofessional interest in the spandex covered buttocks of trainee

lawyers. Gone are the cherished photographs of lawyers and judges standing at

cocktail parties, as legal websites begin to resemble Club Med. Charity seems to

start with expensive clothes and unrelated strenuous activity. Mother Teresa would

not get a look in these days. The other day I saw a flyer for a fund raising walk for

orphans which said “Bring the Family”.

My approach to charity is that it is good for the soul, if anyone finds out about your

charitable deeds, it does not count. Of course, without a marketing department it has

been tricky over the years to let clients and others know how discrete and humble I

am about this, but with the right receptionist I have managed.

John Fytit AO

Note: Lawyers undertake Continuing Legal Education (CLE) points each year which are

regarded as of limited use as the younger and older lawyers know everything already.

© Paul Brennan 2013. All rights reserved.

7

The Law Institute Journal (the official publication of the Law Institute of Victoria) published the following book review:

For a profession known for taking itself

rather seriously, lawyers are also

exceptionally good at seeing the funny side

of the practice of law.

There are few better at the art of

skewering the pretensions and idiosyncrasies

of legal practice than Queensland lawyer Paul

Brennan, author of the Law & Disorder

website which, for years, has been dispensing

useful legal advice heavily disguised as

comedy. As well as tips on topics such as

“The 10 greatest legal mistakes in business . .

. and how to avoid them”, the site is host to

caustic and comic legal cartoons, an ezine and more.

Those readers familiar with the comic Queenslander’s books, including The Law is an

Ass . . . Make Sure It Doesn’t Bite Yours, can now add to their collection with the

latest Brennan book 101 Reasons to Kill all the Lawyers.

The book grew out of Paul’s blog of the same name. He said he decided on 101 reasons

as he didn’t want to depress the entire legal profession by having 1001.

But there’s nothing depressing about 101 Reasons, with its advice about the things

lawyers should know about but might not, such as the secret of enjoying committee

meetings, how to field complaints, career planning and dealing successfully with their

own legal problems. It is also about things Paul says lawyers are not expected to know

about but probably should such as change, innovation, emotions, relationships and sex.

Law Institute Journal (Victoria), September 2013 87 (9) LIJ, p.86

8

Go to http://amzn.com/0987489402 for a preview and to order the book from Amazon for the special price of $14.53 (usually $19.99) while stocks last. Also available as an eBook from Amazon.

Event in Sydney:

Are you a lawyer or living with one and sick of creating your own dramas?

If so, Sydney lawyer and playwright Tony Laumberg's 13th comedy play,

THE GOOD, THE BAD & THE LAWYER,

is on in Sydney starting 10 October 2013.

For more information go to www.bigsplash.com.au/gbl.html.

Disclaimer: The content of the play does not constitute legal advice. You should seek

legal or other professional advice before acting or relying on any of the Content.

9

Disclaimer:

The content of the Law & Disorder eZine is to give you legal basics and in some instances included unashamedly to try and make

you laugh. In law it is sometimes difficult to work out what is serious and what is just for fun. Therefore, if you plan to do

anything legal, rely on your own lawyer’s advice or instruct me to look at the particular facts of your case. Not only will I deny

responsibility for the legal content but also for some of the jokes.