Many savvy consumer goods businesses have embraced social media
as a low cost way of reaching a young customer base. However, it is
important for businesses to remember that the consumer protection
provisions of the ACL, including those relating to testimonial
representations, also apply to company Facebook and Twitter
In the recent case of Australian Competition and Consumer
Commission v Allergy Pathway Pty Ltd (No 2)  FCA 74, the
ACCC was successful in an action against Allergy Pathway Pty Ltd
(formerly known as Advanced Allergy Elimination) and its director,
Mr Paul Keir for misleading representations that included videos on
YouTube, testimonials written and posted by clients on Allergy
Pathway's Facebook "wall" and testimonials written by
clients and posted by Allergy Pathway on its website and Facebook
and Twitter pages.
Some of the testimonials posted on the Allergy Pathways Facebook
wall, and tweeted via Twitter, by members of the public
"My asthma and eye symptoms no longer happen after my
"Allergy Pathway is amazing. It has worked wonders for
me in so many ways. I had food allergies for as long as I can
remember, avoiding seafood and shellfish and even bread! After one
treatment I could eat seafood with no noticeable reaction ...
[name], Medical Practitioner"; and
"As a practicing naturopath, I have found this
technique to be the most effective method of treating allergic
reactions and intolerances".
In finding that Allergy Pathway and Mr Keir made prohibited
representations about Allergy Pathways on its website and on
Twitter, Facebook and YouTube in breach of its undertakings it had
given to the ACCC previously, Justice Finklestein stated:
"It has been shown, indeed
it was not disputed, that Allergy Pathway knew that persons had
published testimonials on its Twitter and Facebook pages and that
it took no steps to have them removed. I infer that one reason
Allergy Pathway did not remove the testimonials was that it wanted
to take the benefit of the praise for its services. Another
possible reason is that Allergy Pathway thought the testimonials
added legitimacy to its business.
While it cannot be said that Allergy Pathway was responsible for
the initial publication of the testimonials (the original publisher
was the third party who posted the testimonials on Allergy
Pathway's Twitter and Facebook pages) it is appropriate to
conclude that Allergy Pathway accepted responsibility for the
publications when it knew of the publications and decided not to
remove them. Hence it became the publisher of the testimonials. In
any event it is clear that it caused them to continue to be
published from the time it became aware of their existence, which
is enough to put Allergy Pathway in breach of the second limb of
Mr Keir, the company's sole director, was involved in that
conduct and so was also found to have breached his undertaking to
This case serves as a reminder to businesses which market via
social media such as Facebook and Twitter, that social media is
also regulated by consumer protection laws and that all
representations made via a branded Facebook or Twitter page, even
those made by members of the general public, come under the
scrutiny of the ACCC and can potentially amount to breaches of the
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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