What You Can Do About Online Impersonation

Credits: Alexander Grey (Unsplash)

Why online impersonation isn’t as simple as it seems

In our previous article, we looked at the growing problem of businesses discovering that someone has created a fake social media account, cloned a website, copied branding or otherwise impersonated them online.

Unfortunately, it is not nearly as uncommon as many people think.

Whether it is a fake Instagram account selling counterfeit products, a Facebook page using your logo, a cloned website designed to trick customers, or an AI-generated profile pretending to represent your business, online impersonation has become an increasingly sophisticated problem.

The good news is that Australian law does provide protection. The challenge is that there is no single “online impersonation law” that automatically fixes the problem.

Instead, lawyers often need to work through a number of different legal frameworks to determine which rights exist, which remedies may be available and, importantly, which approach is most likely to achieve the best commercial outcome. Every matter is different, and what applies in one case may not apply in another.

Why isn’t there just one law?

Online impersonation can take many forms.

Sometimes someone copies a registered trade mark. Sometimes they steal photographs from a website. Sometimes they make false statements about a business. In other cases they may deceive customers into believing they are dealing with a legitimate company, or misuse personal information to create convincing fake profiles.

Because the conduct can involve intellectual property, consumer protection, privacy, technology, reputation and even criminal law, Australian legislation has developed over time to deal with each of those harms separately.

That means identifying the correct legal pathway requires careful analysis of the particular facts.

The Online Safety Act

One of Australia’s most significant pieces of online regulation is the Online Safety Act 2021 (Cth).

The Act established the eSafety Commissioner as Australia’s independent online safety regulator and introduced a range of powers designed to address serious online harm.

Many people associate the legislation with cyberbullying, image-based abuse and harmful online content, but its operation is broader than that. It establishes regulatory schemes, complaint mechanisms and obligations for various online service providers and platforms.

Importantly, however, the Online Safety Act is only one piece of the legal puzzle. Whether it assists in any particular business impersonation matter depends on the circumstances.

Australian Consumer Law

Where impersonation is designed to mislead customers, the Australian Consumer Law may become relevant.

Section 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) prohibits misleading or deceptive conduct in trade or commerce, while sections 29 and following prohibit various false or misleading representations.

These provisions exist to promote fair trading and protect both consumers and honest businesses.

Whether particular conduct contravenes these provisions is highly fact-dependent and often requires careful legal analysis.

Trade mark law

Businesses spend years building valuable brands.

If someone uses a registered trade mark without permission in circumstances covered by the Trade Marks Act 1995 (Cth), important legal rights may arise.

Trade mark law is designed not simply to protect business owners, but also to help consumers identify the genuine source of goods and services.

Not every use of a business name or logo amounts to trade mark infringement, however. Questions frequently arise about whether a sign is being used “as a trade mark”, whether consumers are likely to be confused and whether statutory defences apply.

Copyright

Many businesses also own copyright.

Logos, photographs, website text, brochures, videos, graphics and marketing materials may all attract protection under the Copyright Act 1968 (Cth). wikipedia

Where online impersonation involves copying original material without permission, copyright law may become relevant alongside other legal rights.

Again, the answer is rarely straightforward. Questions often arise about ownership, originality, licences and whether a substantial part has been reproduced.

Passing off and business reputation

Long before the internet existed, Australian courts recognised that businesses should be protected against false representations that damage their reputation.

The common law action of passing off continues to apply in appropriate online disputes. Closely related principles also arise under Australian Consumer Law, and the interaction between these legal doctrines can be complex. ipfirstresponse.ipaustralia.gov+1

Privacy and defamation

Some impersonation cases involve the misuse of personal information, while others involve false statements that damage reputation.

Depending on the facts, the Privacy Act 1988 (Cth) or Australia’s uniform defamation legislation may also require consideration.oaic+1

Neither area of law provides a universal solution, but each may form part of the broader legal picture where the circumstances justify it.

Criminal law

Some online impersonation goes beyond civil disputes.

Identity crime, fraud, obtaining financial advantage by deception and certain cybercrime offences may arise under Commonwealth or State and Territory criminal legislation.

Whether criminal laws apply depends entirely on the facts and is ultimately a matter for the relevant enforcement authorities.

Why the law is nuanced

Business owners are often surprised to discover that there is rarely a simple yes-or-no answer.

The same conduct may potentially engage several different areas of law at once, while other conduct that appears unfair may not fit neatly within any one legal framework.

The platform involved, the country in which the material was uploaded, whether intellectual property has been copied, whether customers have been misled, whether financial loss has occurred and the nature of the evidence available can all affect the legal position.

That is why obtaining advice based on the specific facts is so important.

Why see a lawyer early?

Legal advice is not simply about understanding what the law says.

It is about identifying which legal rights may apply, understanding how different legal regimes interact, considering commercial objectives and developing an appropriate strategy for the particular circumstances.

A carefully considered legal response at an early stage can often be far more effective than attempting to navigate multiple regulators, online platforms and legal frameworks without professional advice.

At Sharon Givoni Consulting, we advise businesses on intellectual property, technology, online safety, privacy, consumer protection and commercial law. Because these areas frequently overlap in online impersonation matters, we take a holistic approach to identifying the legal issues that may arise and helping clients understand their rights.

Before you see a lawyer

Before seeking legal advice, it is often helpful to preserve as much information as possible, including:

Screenshots showing the entire webpage or social media profile, including the URL and date.
Links to every offending webpage, post or profile.
Copies of relevant images, advertisements or videos where possible.
Emails, messages or complaints from customers.
The date you first became aware of the issue.
Whether the conduct is continuing or changing over time.

Avoid communicating with the impersonator without first obtaining legal advice if the situation is serious.

Relevant legislation

Online Safety Act 2021 (Cth).
Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law).
Trade Marks Act 1995 (Cth).
Copyright Act 1968 (Cth).
Privacy Act 1988 (Cth).
Uniform defamation legislation in the relevant State or Territory.
Relevant Commonwealth and State or Territory criminal legislation concerning fraud, identity crime and cybercrime.

Someone Is Impersonating My Business Online: Your Legal Rights in Australia (Part 2)