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IP Quick Intellect

Seafolly Pty Ltd v Madden – Reiterating the Importance of “Post” Checking

Posted by on 20 Mar 2014

There is no doubt there awaits an array of business opportunities for companies that engage in social media. By now, most companies should have a solid understanding of the risks associated with social media and the harm that comments or tweets (especially those posted in frustration) may cause. Not only emotional harm, but also harm to one’s reputation and business. Let’s look back at a case that highlights the importance of “post” checking.

The Claims

Seafolly made a number of allegations against the owner of the business known as White Sands Swimwear, Leah Madden. The most relevant being that she engaged in misleading and deceptive conduct and made false allegations by way of a number of Facebook posts sent via her personal account and also via emails sent by her.

After becoming aware of Madden’s defaming posts Seafolly administered press releases, one which described Madden’s claims as “completely false and without foundation” and “made maliciously to injure Seafolly”.

Madden then counter sued Seafolly for defamation for the press releases and for alleging that Madden wanted to maliciously injure the business.

What Happened

Madden thought she had swimwear designs that were original. When she saw a Seafolly catalogue, she noticed their designs were similar to hers. Madden then took to Facebook - posting an album with the heading “the most sincere form of flattery” containing photos of White Sands Swimwear designs alongside photos of Seafolly designs. Madden posted comments alongside the photos, one being – “seriously, almost an entire line-line ripoff of my Shipwrecked collection”. Madden also emailed the photographs to a number of media organisations.

The Decision

The Court found for Seafolly and ruled that Madden was liable for misleading and deceptive conduct, noting that Madden could have done some simple fact checking before venting her frustrations on social media. Frustrations which were vented within hours of her seeing the photographs.

Justice Tracey said that “her failure to take those steps (or some of them) was not merely careless. It resulted from her conviction that copying had occurred and her determination to expose what she saw as Seafolly’s misconduct. Her resolve was such that she was prepared to and did make the statements not caring whether they were true or false”.

In a further blow to Madden, the Court also found for Seafolly in her defamation claim. The Court noted that, when read separately, the press releases would constitute defamation but the press releases were justified because they were true in substance and fact.


This decision has reiterated the important message of not resorting to Facebook, Twitter or any other form of social media to vent frustration or make any comments without being undoubtedly certain that the post that is about to be released into cyberspace is entirely true.

The Court’s decision in this case serves as a reminder on just how important it is to check and re-check your posts before you press enter otherwise you might find yourself in a litigation hot pot.

If you need advice on your legal responsibilities on social media please contact our Digital Media & Technology team in Parramatta and Norwest.

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