Most businesses would accept that they should be responsible for
material they post on social media platforms hosted by them.
For example, if a business touts services or products on its own
Facebook page, then those representations would come under the Fair
Trading Act and others in the same way as a brochure or website
produced by the same company.
What is more controversial is the extent to which companies
hosting social media platforms are responsible for third party user
generated content which is present on those sites - but not
directly produced by the company in question.
The spotlight has been thrown on this issue by the recent
publication by the Advertising Standards Authority (ASA) of its
guidance note on social media.
Complaints would have to be considered on a case by case basis,
but it is clear that user-generated content could be regarded as
advertising in situations where, for example:
It was originally solicited from individuals and then adopted
within a company's own advertising;
Where unsolicited information was subsequently adopted and
Where, for example, an advertiser solicited user-generated
content which was then posted on the site.
Unless the advertiser has a reasonable degree of control over
the social media platform and use and is promoting a brand or
service to the public, it is outside the jurisdiction of the
The New Zealand guidelines come in the wake of recent decisions
of the Australian Advertising Standards Bureau, where advertisers
were held responsible for moderating comments on their Facebook
page. In July 2012, the Bureau considered a complaint in relation
to a Facebook page for VB that featured questions posted by the
advertiser and comments from members of the community. The comments
included coarse language and sexual reference.
The advertiser, Fosters Australia Asia & Pacific, argued
that user comments are not "advertising or marketing
communications". While there was an ability to monitor and
remove user comments from the VB page, the advertiser argued that
pre-moderation was not feasible.
The bureau disagreed and considered that the Facebook site of
any advertiser is a marketing communication tool over which the
advertiser has a reasonable degree of control. It said that the
Advertising Code applies to the content generated by the page
creator as well as material or comments posted by users or
A broad view of the responsibility of advertisers for social
media content has been adopted in terms of consumer law in
Australia. The Australian Competition and Consumer Commission
(ACCC) has said that it views any false or misleading comments on a
brand's social media page, including Facebook, as part of its
marketing communications - regardless of whether it is
user-generated or brand-generated.
In a recent case brought by the ACCC against Allergy Pathway Pty
Ltd in New South Wales, the Federal Court held that Allergy Pathway
was in contempt for information posted by third parties on the wall
of its Facebook and Twitter pages.
While the comments were published without the knowledge of
Allergy Pathway, the Court held that the company had, in effect,
accepted responsibility for them by failing to remove the
statements. The ACCC position was upheld and the directors of
Allergy Pathway fined.
There is no reason to assume that a similar approach would not
be adopted in New Zealand. The decision serves as a warning to
those businesses who have turned to social networking sites as a
marketing tool. Such businesses need to take steps to monitor the
use of Facebook and Twitter pages to ensure that users have not
published false, misleading or deceptive comments. If any such
comments are not removed, the business may be held liable as a
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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