In Touch With The Law

The law is constantly changing and this newsletter describes developments which may be relevant to you. If you are in any doubt about these or any other aspects of the law, please make an appointment to see your solicitor.

Businesses need to be aware of the potential legal risks when using social media to engage with their customers.

Social media is a cutting edge way for businesses to engage with their customers – but it comes with a certain amount of legal risk. The core concept that businesses must come to terms with is that social media is no different in the eyes of the law than any other communications channel.

The easiest trap to fall into is a breach of the misleading and deceptive conduct laws. It is much easier to make comments that will invite trouble on social media channels because many businesses don’t have the same structures and review processes in place that they do for more formal or traditional advertising. The courts have found that consumers will place weight and rely on a business’s official Twitter account or Facebook page. Businesses should therefore have a well-drafted social media policy and train their staff in how different social media platforms work.

Businesses should also ensure they have processes that identify and allow for changes to misleading, deceptive or defamatory statements before they are posted. These procedures need to be quick and efficient because of the immediacy of social media.

Be prepared to monitor and moderate different platforms to ensure that third party comments which could offend or breach legal obligations are deleted or amended. For example, the Advertising Standards Board has deemed official Facebook pages and other official social media accounts to be advertising. This means such pages need to comply with certain codes and community standards, the same as if they were on TV, radio or other traditional advertising medium – including comments made by ‘fans’.

For businesses listed on the ASX, new Listing Rules suggest that certain companies should have processes to monitor social media channels for information the market is trading on and be ready to respond to any speculation. This could include discussions and rumours that can lead to a false market, particularly in the lead-up to a market announcement or when a market-sensitive announcement is being released.

Family Law
When a parent independently relocates with a child, without the full knowledge or consent of the other parent, courts may take a dim view of their action.

In a recent case, the Family Court found that a father who unilaterally decided to relocate his child “lacked insight” and was an indictment of his capacity to understand the needs of the child.

The parents met in Japan and had a child, but then separated. After the 2011 tsunami in Japan, the parents agreed that the father would take the child to live with the paternal grandmother in Australia.

Later, when the father started a relationship with another woman in Japan, the mother sought interim orders to take the child back to Japan for a specified period of time. She did not return the child as required.

The father then, without consent or prior warning, obtained emergency travel documents for the child and returned with the child to Australia. He also obtained orders to keep the child in Australia. The mother sought orders for sole parental responsibility for the child and for her to return permanently with the child to Japan.

She was successful as the court concluded that by removing the child from Japan without the mother’s knowledge, the father had demonstrated an ignorance of the possibility that the child could suffer psychological harm as a result of his actions. The court also doubted his willingness and ability to facilitate, and to encourage a close and continuing relationship between the child and mother. It ordered the child be returned to the mother and the father restrained from removing the child from Japan.

Separated parents wishing to relocate within Australia are likely to face the same issues as those wanting to relocate externally.

Exemption From Land Tax
In a recent case, a parcel of land was found to be exempt from land tax where the land owner was living in a garage he had built on the land. The law exempts land that is a “principal place of residence” from land tax.

The person had bought land three doors away from his mother and decided to build a new residence on it. First though, he built a garage which he claimed to live in as his principal place of residence.

The Commissioner of State Revenue argued that it was not, primarily because he felt the land owner did not really live in the garage which had been built on it. The Commissioner argued that the architectural design and physical character of a garage was inappropriate for residential purposes and that a mere sleeping place was not “residential” in the relevant sense.

The Tax Office has standard procedures in seeking to show a parcel of land is not a person’s principal place of residence, invariably looking at tax returns, electricity bills, driver’s licence and the like, in order to match up the addresses on those returns, bills and licence with the address of the claimed principal place of residence.

In the case, the tribunal decided that the land was not used for anything other than the development of the new house and as the person’s residence.

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