Recent developments in the law have reinforced the positive
obligations imposed on brands to moderate third party generated
content on their social media sites such as Facebook, Twitter and
YouTube. Failure to moderate, edit or remove third party content
may result in liability for breaches of the Advertiser Code of
Ethics (Code), the Australian Consumer Law
(ACL) for misleading and deceptive conduct, or in
In the recent decision by the Advertising Standards Board (ASB)
regarding the official Smirnoff Facebook Page (case number
0272/12), the ASB considered the Facebook site of an advertiser to
be a marketing communication tool of the advertiser. The ASB
concluded that the Code therefore applied to both the content
generated by the advertiser and material or comments posted by
users or friends on the Facebook Page over which the advertiser has
a reasonable degree of control.
It was similarly held in the Federal Court decision of ACCC v
Allergy Pathways Pty Ltd
 FCA 74 that the owner of Facebook and Twitter pages will
become the publisher of third party content once it becomes aware
of the content and decides not to remove it. In that case it was
held that Allergy Pathways was liable for the false and misleading
claims posted on its Facebook Wall and Twitter feed by third party
users from the time it became aware of their existence (at
In response to the ASB decision, the ACCC has reaffirmed its
position regarding brands' social media sites. ACCC
Commissioner, Sarah Court, stated that brands have a responsibility
to correct or remove inaccurate, false or misleading comments
posted by a member of the public. Larger corporations should be
expected to do this within 24 hours of the post.
These decisions have ramifications extending beyond liability
under the ACL for misleading and deceptive conduct, or the Code for
colourful language. The fact that the owner of Facebook and Twitter
pages becomes the publisher of the third party content from the
time it becomes aware of its existence means the publisher may also
incur liability if it fails to remove posts on its social media
sites that are defamatory or infringe copyright.
Owners of social media sites now have a positive legal
obligation to moderate all social media content, including that
generated by third parties such as friends, fans and followers to
ensure compliance with laws relating to publication and
advertising, including the Code, ACL, copyright and laws of
defamation. Larger companies should remove or correct false or
misleading comments posted by the public within 24 hours. Smaller
companies should do this as soon as they become aware of the
Take home tips
Owners of social media sites will be the deemed publisher of
third party content once aware (or ought to be aware) of the
existence of the content and the decision is taken not to remove
Owners of social media sites should constantly review and
moderate all third party generated content, such as wall comments,
posts and tweets.
Once aware of any content that breaches any aspect of the Code,
ACL or is defamatory, that content should be removed or edited
within 24 hours to ensure compliance with the relevant law.
Corrective posts or advertising (such as a retraction or
apology) should be posted within 24 hours where the third party
comment is defamatory or misleading and deceptive, or where the
content cannot be edited or removed.
For example, the decision to edit a post containing offensive
language should be taken in order to comply with the Code, but as
long as the post is otherwise compliant with the relevant laws,
that post can remain on the Wall and thereby retaining the positive
aspects of social interaction with consumers through Facebook.
However, where a post makes misleading claims about the product,
the post should be removed within 24 hours, and depending the
nature and extent of publication of the offending post, further
remedial steps may be required, such as a retraction or
It is unclear to what extent the owner of social media content
will be liable where the elements of control are exercised by the
platform operators. For example, comments made under a brand hash
tag on Twitter would have to be notified to Twitter in order to be
removed. Best practice in this case would be to notify Twitter and
request removal of offending Tweets in order to discharge
Owners of social media content should consider revising their
social media policy in response to the above obligations. Please
contact the IP/IT Team at HWL Ebsworth for any further advice or
assistance regarding your social media requirements.
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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