Imagine this scenario: As a brand operator, you outsource the advertising for your brand’s Facebook account to an agency to boost sales. However, to cut costs, the agency uses a video created by a third party without authorization. As a result, instead of monetizing the traffic, you receive a summon
Imagine this scenario: As a brand operator, you outsource the advertising for your brand’s Facebook account to an agency to boost sales. However, to cut costs, the agency uses a video created by a third party without authorization. As a result, instead of monetizing the traffic, you receive a summons from the Intellectual Property and Commercial Court, facing a six-figure claim for damages from the copyright holder.
In today’s digital marketing landscape, such a scenario may seem surprising, yet it is not entirely uncommon for brand operators. Can a company avoid liability if it was unaware of the infringement beforehand? This article addresses the following two key points:
Key Point 1: Outsourcing is not a get-out-of-jail-free card; where there is a failure to properly review advertising content, negligence may still be found.
In digital marketing processes, companies often obtain commercial benefits as the “nominal publisher” of ads. Under such circumstances, a company’s duty of care does not disappear simply because the advertising work has been “outsourced.” Therefore, if a company argues that “The advertisement was directly created, managed, and placed by the advertising agency without our prior review…,” such a defense not only fails to exempt them from liability but may instead be interpreted as an admission of “negligent supervision” and thus support a finding of negligence.
In other words, a company cannot absolve itself of liability simply by outsourcing ad placement to a third-party vendor. As long as the infringing video ultimately appears on a platform controlled or operated by the company for the purpose of marketing its own goods or services, the company bears a “fundamental duty to review.” Failing to verify the source of the content may easily be deemed a failure to exercise due care and therefore constitute negligence. For a relevant case, please refer to the Civil Judgment No. 40 of the Intellectual Property and Commercial Court (2025).
Key Point 2: Remedial measures taken after the infringement may mitigate damages, but do not absolve the company of liability.
Companies which fail to conduct a prior review may assume that, if infringement occurs inadvertently, simply apologizing and removing the video upon notification from the copyright holder “will suffice.” In reality, promptly apologizing and removing the video upon receiving a notice of infringement from a copyright holder merely stops the ongoing infringement; it does not negate the infringement that has already occurred. Therefore, liability for damages arising from past infringements still remain.
Legal disputes arising from outsourced keyword advertising—particularly where incorrect configurations result in links to other brands—are becoming increasingly common. A frequently encountered issue involves outsourced keyword advertising in which the outsourcing provider’s configuration errors lead to links appearing alongside other brands. For example, when searching for Brand A, a single link may display both Brand A and the infringing brand. In some cases, the customer may not be redirected to the website of Brand A where he or she intended to visit, but instead to the website of the infringing brand. In these situations, not only may civil liability for damages arise, but there may also be a risk of penalties from the competent authority for violations of the Fair Trade Act. As mentioned above, merely attributing the issue to the negligence of the outsourcing provider is insufficient to avoid liability.
Companies bear a fundamental responsibility to review their promotional content. Otherwise, even if unintentional, insufficient oversight may still constitute infringement and may even trigger more serious online backlash—a matter that demands the utmost caution.
This article was published in the Expert’s Commentary Column of the Commercial Times.
