Young Lawyers: How to navigate the transition from young lawyer to TikTok star – By Alexandra Douvartzidis & Caitlin Surman

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Flipping the switch: How to navigate the transition from young lawyer to TikTok star

ALEXANDRA DOUVARTZIDIS, SOLICITOR, AND CAITLIN SURMAN, ASSOCIATE, HWL EBSWORTH

If you were born after 1985 and haven’t been living under a rock, you’ve probably heard of “TikTok”. If, prior to reading this article, you hadn’t heard of TikTok, we’d hazard a guess that by the time you read the last line you’ll wish that you never let your curiosity get the better of you.

Unfortunately, “TikTok” is not a reference to the tasty Arnott’s creations that occasionally found their way into the biscuit tins of firms and government departments alike before COVID-19 made communal snacks a health hazard. Rather, “TikTok”, for the purpose of this article, is the latest social media app to take the world by storm. Developed by Bytedance Ltd, it was the most downloaded nongame app worldwide for March, 2020 with more than 115.2 million installs. 1 Prior to the COVID-19 epidemic, the majority of TikTok users were children and teens. However, in these difficult times of socialdistancing and self-isolation, anecdotal evidence suggests that young lawyers have also jumped on the TikTok bandwagon.

Following in-depth research and analysis, we formed the opinion that TikTok is best described as a “massive waste of time”. However, others describe it as a platform on which users can create and upload short dance, lip-sync and comedy videos set to an audio track.

Like most lawyers, we are completely supportive of learned friends (particularly Patrick Kerin) who have a desire to post embarrassing videos of themselves on the internet for our collective entertainment. 2 So, in light of all of that, what does a young, risk-averse lawyer need to be mindful of before you reach for your phone on a lonely Saturday night, download the TikTok app, and waste hours trying to “flip the switch”?

We assume that you have better things to do than use TikTok to defame another person, but you’ve probably finished streaming “Tiger King”, and 2020 has proven that anything is possible.

As a starting point, it’s important to remember that it’s not the words actually spoken that form the basis for a cause of action in defamation, but the meaning conveyed by those words (as pleaded by the Plaintiff). It’s relatively easy to determine if a statement is objectively defamatory - it’s generally when the meaning conveyed tends to damage a person’s reputation, or would lead to their exclusion by society. For example, stating words to the effect that Carole Baskin is “not an experienced tiger handler” won’t necessarily be defamatory, but stating words to the effect that “she fed her husband to a tiger” can give rise to the imputation that she’s a murderer - which is far more likely to see Carole shunned from society.

DEFAMATION

Another important element in establishing a cause of action in defamation is the “publication” of the defamatory material. Under existing laws, “internet publication” will be taken to have occurred whenever a third party actually downloads 3 the offending content. This is called the “multiple publication rule”, the effect of which is that if you post a video to TikTok that is potentially defamatory, you are under a perpetual threat of being sued because the limitation period within which a Plaintiff must commence a defamation action (being one year from the date of “publication”) effectively resets each time a new download occurs. However, the new Model Defamation Amendment Provisions announced in late 2019 will give TikTok users some relief by introducing a new “single publication” rule, which means that the one year limitation period will begin to run when the matter is first posted or uploaded. 4

COPYRIGHT INFRINGEMENT

Copyright laws are also applicable to the music you use in your TikTok video - even in the netherworld of social media. Conveniently, TikTok recently entered into a “multi-territory” licensing deal with “Merlin” (Merlin Agreement), a digital rights agency which represents over 15 percent of the global recorded music market. 5 As a result of that deal, music from Merlin’s approximately 900 members (including more than 20,000 independent labels and distributors in over 60 countries) 6 has been licensed for use on TikTok. This means that, in most cases, your poorly lipsynced cover of “Staying Alive” by the Bee Gees probably won’t result in the issue of a copyright infringement notice. Having said that, not all songs will be captured by the Merlin Agreement. So, if you’re tempted to upload a song that is not offered by the TikTok platform itself, there’s a risk you’ll be hit with a cease and desist letter by the artist; in which case you can kiss your virtual fame goodbye.

COPYRIGHT IN USER CONTENT

On the flipside, in the event that you, for example, create an original dance on TikTok, there are arguments that it may attract copyright protection under the Copyright Act 1968 (Cth) (Copyright Act) as a “dramatic show” (which is defined to include a “choreographic show”), or as a “cinematograph film”. 7 However, this has not yet been tested by Australian courts. In any event, the TikTok Terms of Service make it clear whilst you may own the content you post to TikTok, and the copyright therein, once that content is posted to TikTok for viewing by other members, you automatically grant Bytedance an unconditional irrevocable, non-exclusive, royalty-free, perpetual worldwide licence to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute that content. 8 In short, Bytedance is free to exploit any content you post to the platform.

Further, as a creator of copyright works, you are automatically granted “moral rights” in respect of those works under the Copyright Act. Where copyright is designed to protect the “economic rights”

Video sharing app TikTok helped propel singer Doja Cat to mainstream success

of copyright holders, moral rights protect the reputation and integrity of creators. 9 Accordingly, as a creator, you retain your moral rights even if you do not own the copyright in your work. The three types of moral rights granted are the right to be credited for your work, 10 the right not to have your work falsely attributed to another person, 11 and the right to prevent the derogatory treatment of your works in a manner that is prejudicial to your honour or reputation. 12 These moral rights generally last as long as copyright (ie 70 years after the death of the creator). 13 However, when you post content to TikTok you will be taken to have waived all of your “moral rights” in respect of that content, 14 and to have granted Bytedance permission to effectively infringe those rights (which provisions are relatively common). 15

PRIVACY

If you are familiar with TikTok, you will also be familiar with the privacy concerns surrounding the platform. A review of TikTok’s Privacy Policy 16 demonstrates that the only information Bytedance doesn’t appear to collect is your blood type. Aside from your basic contact information, Bytedance also collects everything from your IP-address and geolocation data, the content of your messages to other users, device information (including the keystroke patterns you use on your iPhone), as well as behavioural information in respect of your use of the app (so, in unfortunate news for a fellow colleague who shall remain nameless, Bytedance knows how many times you’ve practised the “Savage x Carole Baskin” dance routine).

According to Bytedance, it uses the information collected to, among other things, understand how the app is used, to deliver customised content, and to send targeted advertising and promotional materials to users (including promotional materials from third parties). In terms of how your personal information is shared, the Privacy Policy states that Bytedance may share your personal information with a number of third parties, including third party service providers, business partners, advertisers, analytics, search engine providers and law enforcement agencies.

Whilst the terms of the Privacy Policy may seem intrusive, the personal information of Australian TikTok users is ultimately protected by the Privacy Act 1988 (Cth) (Privacy Act) and Australian Privacy Principles (APPs) and can offer some form of redress in the event you consider your personal information may have been misused. The Privacy Act and APPs are the cornerstone of the privacy protection framework in Australia, and govern the standards, rights and obligations in respect of, inter alia, the collection, use and disclosure of personal information. The APPs are also technology neutral, which allows them to adapt to changing technologies - including TikTok.

The Privacy Act and APPs are likely to apply to Bytedance (as the entity behind TikTok) because they extend to an act done, or practice engaged in, outside Australia by an organisation that has an “Australian link”. 17 An organisation will be taken to have an “Australian link” where it “carries on business” in Australia and it collects personal information from an individual who is physically present in Australia. 18 Whilst the phrase “carries on business” is not defined by the Privacy Act, 19 the Office of the Australian Information Commissioner (OAIC) has identified a number of factors that can be taken into account for the purpose of making this assessment. Having regard to those factors, Bytedance arguably satisfies this particular requirement because it conducts a commercial enterprise for the purpose of profit (ie via its advertising revenue), 20 has a registered trademark in Australia, 21 and provides a service to users located in Australia. 22 We also understand that TikTok is moving to establish a physical presence in Australia based on recent reports that it is building an Australian office. 23

Accordingly, Bytedance will be held to the standards required under the Privacy Act and APPs, and can be held accountable in the event its use of personal information is non-compliant with those standards. In this respect, a breach of an APPs is an “interference with the privacy of an individual” 24 and can lead to regulatory action and penalties following the making of a complaint to the OAIC.

CONCLUDING REMARKS

Now that you are familiar with the legalities of TikTok, you should be able to avoid going viral for the wrong reasons. If you made it this far and still don’t understand what TikTok is, we’re envious.

Endnotes 1 ‘Top Apps Wordlwide for March 2020 by

Downloads’ (Web Page, 8 April 2020) <https:// sensortower.com/blog/top-apps-worldwidemarch-2020-by-downloads> 2 *judgment. 3 Dow Jones and Company Inc v Gutnick [138][2002] 210 CLR 575 at [26]; Sands v Channel Seven Adelaide (2009) 104 SASR 452 at [391] 4 Australasian Parliamentary Counsel’s Committee,

‘Model Defamation Amendment Provisions 2020’ (Consultation Legislation, 12 November 2019) <’https://www.justice.nsw.gov.au/justicepolicy/ Documents/review-model-defamationprovisions/consultation-draft-of-mdaps.pdf > 5 Christie Eliezer, ‘Why Aussie record labels are eyeing TikTok and Twitch to break acts” (Web Page, 17 February 2020) <https:// themusicnetwork.com/labels-eying-tiktok-andtwitch/> 6 Richard Smirke, ‘Merlin Inks Global Licensing

Deal with TikTok (Web Page, 21 January 2020) <https://www.billboard.com/articles/ business/8548793/merlin-global-licensing-dealtiktok 7

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24 Copyright Act 1968 (Cth), s 10; Luke Dale and Kelly Williamson, ‘Dancing in time: TikTok, Fortnite and the copyright protection of dance - do TikTok users own copyright in the dance moves they create?’ (2020) 32(1), Australian Intellectual Property Law Bulletin, 142 TikTok, ‘Terms of Service’ (Web Page) < https://www.tiktok.com/legal/terms-ofuse?lang=en> (Terms of Service) Australian Copyright Council, ‘Moral Rights’, (Information Sheet G043v15, October 2019) <file://melfs2/users$/csurman/Downloads/ Moral%20Rights%20(G043v15).pdf> Copyright Act, s 194 Ibid, ss 195AC - 195AH and ss 195AHA to 195AHC. Ibid ss 195AI 195AL. Ibid ss 33 and 195AM. TikTok Terms of Service, cl 7. Ibid. TikTok, Privacy Policy’ (Web Page) <https:// www.tiktok.com/legal/privacy-policy?lang=en> Privacy Act, s 5B(1A) Ibid, s 5B(3); OAIC, Australian Privacy Principles Guidelines, July 2019, B.22 (Guidelines). Guidelines, B.13 Guidelines, B.16 Guidelines, B.19; Australian Wool Innovation Ltd v Newkirk (no 3) [2005] FCA 1308 at [34]; see also Trade Mark No. 1949117 in respect of the words “TikTok”. Guidelines, B.19. Zoe Samios, ‘TikTok to build Local Operation, Sydney Morning Herald (online, 10 February 2020) <https://www.smh.com.au/business/ companies/tiktok-to-build-local-operation20200209-p53z2z.html> Privacy Act, s 13.

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