Swimwear Designer Sees The Folly of Her Ways

Article  \  11 Apr 2014

The case of the swimwear designer Leah Madden and her legal battle with Seafolly over allegations of copying serves as a timely reminder that your personal Facebook page is neither personal nor private.


The controversy erupted in September 2010 when Ms Madden made statements on her personal Facebook page, the Facebook page of her swimwear business “White Sands” and in emails to various media outlets that Seafolly had copied eight of her swimwear designs.  While only posted for a short time, the statements on her Facebook page subsequently went viral.  Seafolly immediately responded by issuing press statements denying any allegations as to copying.  It also instituted proceedings against Ms Madden alleging, among other things, that Seafolly had not copied the designs and, therefore, the statements constituted misleading and deceptive conduct[1] under the then applicable Australian Trade Practices Act 1974 (Cth).  The Court at first instance agreed with Seafolly.

Ms. Madden appealed the decision on a number of grounds.  One of the more interesting was that that the statements on her personal Facebook page were not made “in trade or commerce”.  In March this year, the Federal Court quickly dismissed the argument stating that the comments could not be seen as private.[2]  In addition to approving the findings of the Court at first instance that the statements were made by the principal of a company and directed to the commercial activities of a competitor, the Federal Court found that a substantial number of those who made comments on her Facebook page were in the fashion industry. Ms Madden posted comments on her personal site using both her own name and the name “White Sands Swimwear Australia” responding to the postings of her Facebook “friends”.  For example, she wrote on her personal page under the White Sands name:[3] 

“Lucy and Holly!!!  These are the rip offs Seafolly did!  Jeeze, you girls.  We have them in Black, in store now:)”.

So what can we learn from the Seafolly folly?  First, do your research and obtain legal advice in relation to any allegations of infringement of intellectual property or other rights; the costs of being proved wrong can be high.  Second, despite a surprising number of people still believing that their personal Facebook pages are private, they are not.  Once on Facebook, even for a short period, your hasty comments can rapidly spread and be very hard to retract.  Where those statements have a connection to your business or the business of another, they may be viewed as statements made “in trade” resulting in personal liability in Australia.  The same result is likely if a similar matter ever comes before the New Zealand courts.   

In other words, do not type in haste only to repent at leisure.

 Trade Practices Act 1974 (Cth), sections 52 and 53(a)
[2]Madden v Seafolly Pty Ltd [2014] FCAFC 30 at paragraphs [97] – [98]
[3] Above no. 2 at paragraph [98]