Australia: Social media content generated by the public is advertising and subject to the Advertising Code and Australian Consumer Law

Last Updated: 24 September 2012

by Kirsty Edwards, Solicitor

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 defamation.

Recent decisions

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
[2011] 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 [33]).

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 inaccurate post.

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 it.
  • 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 correction.
  • 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 liability.

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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