Jurisdiction - Australia
Australia – False Allegations On Social Media Sites Can Prove Costly.

20 March, 2013


In a recent Federal Court Decision, Leah Madden, the designer of White Sands swimwear, was fined $25,000 for comments made on Facebook alleging that swimwear designer Seafolly had copied her swimwear designs.


In September 2010, Ms Madden posted an album of photos on her Facebook page titled "The most sincere form of flattery?" of Seafolly garments, comparing them with photos of her own White Sands designs. In conjunction with uploading these photos, Ms Madden also made Facebook posts which suggested that such designs were similar to her White Sands bikini line, for example by posting "Seriously, almost an entire line-line ripoff of my Shipwrecked collection". Ms Madden also sent emails to journalists and fashion industry publications of such comparison photos. Following such conduct, a number of articles were published regarding the dispute over the alleged copying by Seafolly of the White Sands designs.


In response to Ms Madden's allegations, Seafolly publicly denied copying any of the White Sands designs. Seafolly also sent a letter of demand to Ms Madden requesting her to remove all photos of Seafolly's swimwear and her Facebook comments suggesting Seafolly had copied her, as well as making a public apology that such allegations against Seafolly were false. Ms Madden did not comply with the majority of Seafolly's demands, as she did not consider that her conduct had amounted to making any allegations of copying against Seafolly (rather, she considered her conduct as merely "questioning" the originality of the Seafolly designs). Despite this letter of demand, Ms Madden continued to make allegations that Seafolly had copied her White Sands designs. Eventually, Seafolly sued Ms Madden, alleging, amongst other things, misleading and deceptive conduct under the former Trade Practices Act 1974 (Cth) (as in force at the time of conduct). 


Justice Tracey found that Seafolly had not copied the White Sands garments and that Ms Maddens "questioning" of the Seafolly designs was intended to convey to her readers that Seafolly had copied her designs. In particular, his Honour made reference to the fact that six of the eight designs had been on the market before Ms Madden had designed her garments, information which Ms Madden could easily have obtained before making her allegations.


Click here to read the judgment


For further information, please contact:


Anita Cade, Partner, Ashurst

[email protected]


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