Australia: Social Media and Life Sciences Companies: In or Out of Control?

Life Sciences Spotlight
Last Updated: 1 March 2012
Article by Amanda Turnill, Ingrid Eliasson and Paul O'Brien


While here in Australia, and abroad, guidelines and legislation have been developed on how to regulate this growing area, responsibility for content on social media sites remains a key issue. This article will examine the position in Australia, Europe (in particular the UK and Sweden) as well as the US.

Broadly speaking, the regulation of the pharmaceutical industry in Australia and Europe is quite similar. Both use a system of self-regulation and rely on penalty orders and fines to maintain adherence to their respective advertising guidelines. Further, while all jurisdictions have provisions of their respective codes that regulate advertising on the internet, none have fully grappled with the distinct nature of the social media issue. Sweden is ahead of the other jurisdictions, but has not yet definitively laid out a clear plan on how to regulate this area. Finally, the operation of a constitutionally guaranteed right to freedom of speech in the US adds a different perspective to this issue.

What is social media?

First and foremost, the lack of a clear definition of social media is a key issue for industry. Sensibly, before an area may be regulated, we need to know exactly what is being covered. Australia's definition appears to be the most thorough, defining social media in the 16th edition of the Medicines Australia Code of Conduct (MA Code) as "the various activities that integrate technology, social interaction, and the creation of content".

Similar to other jurisdictions, the MA Code uses examples of social media websites to clarify its definition; including Facebook, Twitter and Wikipedia. And whilst on any view these sites would be regarded as "social media", these examples do not cover the spectrum. The result is that guidance notes issued in these jurisdictions for the pharmaceutical and medical device sector are not meaningful in terms of evaluating the obligations that exist for life sciences companies.

Generally speaking, industry guidance in Australia, Sweden and the UK all infer, or explicitly state, that promotion on social media must be regulated in the same way as any other promotion that occurs in each jurisdiction - that is, promotion to the public is generally prohibited. However, this fails to acknowledge the inherent differences between social media and more traditional media, as well as the incredibly wide definition of promotion, at least in Australia.

In our view, advertising on social media websites requires stricter regulation than other promotions, due to the unprecedented relationship between companies and their consumers. The existence of direct dialogue between these parties means that it is often unclear what content may be classified as an "advertisement" on social media. By only adopting the current regulatory stance in relation to promotion on social media, pharmaceutical companies are being forced to rely on their own internal guidelines, rather than any specific industry or legislative standard. This confusion is most apparent when exploring the issue of control.


Social media sites present an opportunity for pharmaceutical companies to interact with the general public. However, despite the forum, these opportunities for engagement are governed by the various regulations that normally manage this relationship.

For example, in Australia and Europe, a pharmaceutical company will be liable for any statements on social media within their "control" that breach their local regulatory guidelines, ie documents such as the MA Code . However, adding confusion to the mix, no regulatory body or national judiciary has as yet defined "control" in the context of social media.

Due to its very nature, social media makes it is more difficult to determine which party actually controls or is responsible for certain comments on websites. For example, while a Facebook page may be created by one party, any member of the general public (with a Facebook account) may write comments on that page. The issue, therefore, becomes "when is a company in control of thirdparty comments on its social media sites?" A more difficult question is whether a pharmaceutical company will generally be liable for third-party comments.

This issue of control has been discussed in both regulatory guidance and case law, but neither has provided definitive guidance on this issue. As a result, pharmaceutical companies are unclear of their responsibilities. Without adequate guidance on what social media a pharmaceutical company may control (ie is effectively responsible for), companies are unable to develop a clear and coherent social media policy. This lack of guidance was illustrated in August 2011, when Facebook restricted pharmaceutical companies' ability to disable the comment feature on Facebook pages run by them. Given the uncertainty, some chose to close down parts of their Facebook account while others introduced policies on third-party comments, which detail when such comments may be deleted.

The Swedish LIF discusses control in the context of social media in its guidance note on Social media and ethical rules for the pharmaceutical industry in Sweden. This states that if a pharmaceutical company creates a comment (or by its actions allows a comment to be created on one of its pages), it will become responsible for such a comment. This type of policy places additional burdens on pharmaceutical companies, which are then forced to regularly monitor these sites.

In Australia, the explanatory notes to the MA Code outline which social media content a pharmaceutical company will have control of. Though revisions to the MA Code are currently being prepared and may include greater comment in this area, at present it appears clear that control or responsibility will be established where a company engages with a social media site. Although the explanatory notes do not define what constitutes "engagement", in one view it could be assumed that all content posted by it on any such site would constitute engagement, as well as any dialogue with the general public, such as directing consumers to visit the site. What is less clear is whether observing conversations on a third party's website would be viewed as engagement. For example, if a pharmaceutical company observes disparaging or misleading comments about a therapeutic good it sponsors on a website (which they do not administer), would this constitute engagement?

Last year the Federal Court of Australia discussed the issue of responsibility in ACCC v Allergy Pathway Pty Ltd (No 2).1 This case concerned comments posted on Allergy Pathway's Facebook page by both Allergy Pathway and its customers. The key issue in the proceedings was whether Allergy Pathway was responsible for third-party comments. The Federal Court concluded that Allergy Pathway was responsible for third-party comments where it knew of them and made a decision not to remove them from its Facebook page. This principle stems from early defamation cases that concerned notices published on bulletin boards by third parties.2 In this case, as Allergy Pathway a) knew of the posts and their content; b) had the power to remove the posts; and c) took no steps to do so, it assumed responsibility. The second element of this approach to responsibility considers control. Effectively, if a pharmaceutical company has the power to remove posts from social media, it is likely to be considered to have control, and potential responsibility, in relation to that post.

In one view, this approach by the Federal Court does not appreciate the true nature of social media and, consequently, has the potential to place an undue burden on pharmaceutical companies. It would be a mistake to assume social media is merely a direct dialogue between a pharmaceutical company and its consumers. Whilst this is one element of social media, such as Twitter and Facebook, this definition underestimates its broader application. One key element that has been overlooked by various pharmaceutical industry bodies is the "mass collaboration" (between all parties on social media sites) that occurs in social media. While this collaboration can often be limited to a party's own comments and web pages, such as Facebook, other sites allow the general public to edit and engage with a site without restriction. For example, Wikipedia allows any person to edit and remove any content on any page without limitation.

In the pharmaceutical sector, if this occurs, the Allergy Pathway case means that companies may be required to constantly review these sites. Failure to do so could lead to a risk of breaching the responsibility test outlined in that case. As such, a clear definition of social media is required so that regulatory bodies and the judiciary are able to develop clear guidance on what content pharmaceutical companies will be responsible for. It is only when the intricacies of social media are understood, that the responsibilities of pharmaceutical companies regarding this burgeoning medium can be contemplated.

Ultimately, companies in Australia and Europe need to be cautious in their dealings on social media.

The US position

As a result of the First Amendment of the Constitution, the US position on internet regulation is distinct from Australia and Europe. Realising the beneficial effect of an internet without government regulation or interference had on society, the US Congress enacted the Communications Decency Act of 1996, 47 USC § 230 (CDA). The CDA created immunity for "interactive computer services", for any claims regarding third-party comments made on their sites.

Interactive computer services are defined in the CDA as software providers that enable access by multiple users to a specific service or system, such as Facebook and Twitter. As US courts have adopted an expansive definition of interactive computer service,3 pharmaceutical companies that operate social media sites would also be regarded as interactive computer service providers. Consequently, such companies are likely to obtain the immunity under the CDA for third-party comments posted on their social media sites.

The US position, contained in the CDA and case law, varies from the Australian position because of the divergent origins of each country's law. Whilst Australia focuses on defamation as the starting point, the US' faith in the paramount importance of the freedom of speech allows for the unfettered dissemination of content on the internet.4

This position is quite interesting as internet publishers are therefore treated differently to their counterparts in print, television and radio.5 The impact of this remains to be seen, but perhaps the courts have viewed this medium as more of a conduit for public expression, rather than journalistic enquiry.

As a result of the CDA and its subsequent interpretation by US courts, pharmaceutical companies do not presently appear to be liable for comments made on social media sites made by third parties. The exception to this rule would apply if a pharmaceutical company forced a third party to make comments on their sites using questions or open-ended surveys under duress.

In light of these contrasting approaches to third party comments, international companies must be cautious when creating internal policies for dealing with social media.


1ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74
2See for example, Byrne v Deane [1937] KB 818;Urbanchich v Drummoyne Municipal Council [1991] Aust Tort Reports 81-127 (NSW SC).
3Carafano v Metrosplash, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003).
4Batzel v Smtih, 333 F.3d 1018, 1027 (9th Cir. 2003).
5Carafano v Metrosplash, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003).

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.