Someone Is Pretending to Be Your Business Online? (Part 1)

Here’s What You Should Do in the First 24 Hours.

You open your email one morning to discover customers asking why you’ve been promoting cryptocurrency. Except you haven’t.

Or perhaps someone has created a Facebook page using your business name, copied your logo and photographs, and is taking orders from unsuspecting customers.

Unfortunately, situations like this are becoming increasingly common.

Fake social media accounts, cloned websites, impersonation scams and AI-generated content can spread quickly and cause serious damage to a business’s reputation. While many business owners expect there to be one law that deals with every form of online impersonation, that is not how Australian law works. Instead, a number of overlapping legal regimes may apply, depending on the conduct involved.nicybersecuritycentre+1

Why these laws exist

The internet has transformed the way Australians communicate and do business. It has created enormous opportunities, but it has also made it easier for bad actors to mislead consumers, impersonate legitimate businesses and spread harmful material across multiple platforms.nsw.gov+1

Over time, Australian governments have introduced a range of laws aimed at improving online safety, protecting consumers, safeguarding intellectual property and preserving confidence in digital commerce. Rather than creating one broad “online impersonation law”, Parliament has developed several legal frameworks that address different kinds of harm.infrastructure.gov+2

Which laws apply will always depend on the facts.

The Online Safety Act

One of the most significant developments has been the Online Safety Act 2021 (Cth). The Act established a modern regulatory framework designed to improve online safety in Australia and expanded the powers of the eSafety Commissioner.infrastructure.gov+1

While many people associate the legislation with cyberbullying or image-based abuse, the Act is broader than that. It gives the regulator complaint-handling and removal powers in relation to certain harmful content and creates obligations for some online platforms and services.infrastructure.gov+1

Its focus is on reducing serious online harm and improving accountability across Australia’s digital environment. However, the Act does not replace other legal rights that businesses or individuals may have. infrastructure.gov

Consumer protection laws

If someone is pretending to be your business, Australian Consumer Law may also become relevant. The law prohibits misleading or deceptive conduct and false or misleading representations made in trade or commerce.nsw.gov+1

Where an impersonation is designed to deceive consumers into believing they are dealing with a genuine business, consumer protection laws may form an important part of the legal picture. These laws exist to protect both consumers and honest businesses from deceptive commercial conduct.nsw.gov+1

Trade mark law

Many impersonation cases also involve trade marks. If someone uses your registered trade mark without permission in a way that infringes your rights, the Trade Marks Act 1995 (Cth) may provide remedies. wikipedia

Even where a business name or brand is not registered as a trade mark, other legal rights may still arise depending on the circumstances. Trade mark law helps consumers identify the true source of goods and services while protecting the goodwill businesses build in their brands.wikipedia+1

Copyright

Businesses often own copyright in their logos, photographs, website content, marketing material and other creative works. Where these materials are copied without permission, the Copyright Act 1968 (Cth) may also become relevant. wikipedia

Copyright law protects original expression, not ideas or brand names alone. In online impersonation cases, it can be an important remedy where content has been copied or reused without consent. wikipedia

Passing off and business reputation

Australian law has long recognised the value of business reputation. The common law action of passing off protects the goodwill a business has developed where another party misrepresents an association or connection with that business.andrewgardinerlaw+1

Although passing off has existed for many years, it continues to play an important role in modern online disputes. It often works alongside Australian Consumer Law, especially where consumers are likely to be misled. andrewgardinerlaw

Privacy and personal information

Some impersonation incidents involve the misuse of personal information. Depending on the circumstances, Australia’s privacy laws may also be relevant, particularly where personal information has been collected, disclosed or used without authority. criminaldefencelawyers

Privacy law continues to evolve as businesses increasingly operate in digital environments where personal information is both valuable and vulnerable.

Defamation

Not every fake account is merely deceptive. Sometimes impersonation is used to publish false statements that seriously damage a person’s or company’s reputation.

In appropriate cases, Australia’s defamation laws may also need to be considered. The legal position will always depend on the particular facts, including what has been published, where it was published and who has seen it.

Criminal offences

In more serious situations, online impersonation may also amount to criminal conduct. Depending on the conduct involved, offences relating to fraud, identity-related crime, unauthorised access to systems or misuse of a carriage service may arise.cdpp+1

Whether criminal laws apply will depend on the particular circumstances and is ultimately a matter for the relevant authorities.cdpp+1

Why legal advice matters

One of the greatest misconceptions is that online impersonation is simply a social media problem. In reality, it is often a complex legal issue involving multiple areas of law at the same time.

The appropriate legal response will vary depending on factors such as the platform involved, whether intellectual property has been copied, whether consumers are being misled, whether personal information has been misused, whether reputational damage has occurred and whether regulatory or court action may be available.

Importantly, different legal options may complement one another rather than operate in isolation. Because every situation is different, obtaining legal advice early can help identify which legal rights may apply and the most appropriate strategy for protecting your business.

How we can help

At Sharon Givoni Consulting, we regularly advise businesses on the legal issues that arise when brands, online identities and valuable intellectual property are misused.

Our practice spans intellectual property, technology, online business, privacy, consumer law and commercial law, allowing us to consider the broader legal picture rather than viewing a problem through the lens of a single area of law.

If someone is pretending to be your business online, early legal advice can make a significant difference in understanding your rights and protecting your brand, reputation and commercial interests.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.