Australia: Like this page: Businesses' liability for unlawful third party content on social media

Last Updated: 30 September 2012
Article by Chris McLeod and Sharon Segal

Key Points:

You could be liable for misleading or otherwise unlawful content posted by a third party on your social media site if you know about the content but choose not to remove it.

Two recent determinations of the Australian Advertising Standards Board have attracted significant media attention and some commentators have even described them as landmark rulings which will change the way brands use social media.

What do they really mean for brands on social media, and what (if anything) should you do to monitor your social media pages now?

Alcohol sellers' Facebook pages and the Advertising Standards Bureau

The two determinations were in response to a complaint made to the Advertising Standards Bureau (ASB) that user content posted on the VB Facebook page and the Smirnoff Facebook page breached the Australian Association of National Advertisers Code of Ethics, including because they were discriminatory (in the case of VB) and promoted excessive drinking.

In both cases the Board was required to determine whether user generated content is an "Advertising or Marketing Communication" regulated by the Code of Ethics. "Advertising or Marketing Communications" are defined in the Code of Ethics to be any material which is published or broadcast using any medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, and:

  • over which the advertiser or marketer has a reasonable degree of control; and
  • that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct.

The Board decided that the Facebook site of an advertiser is a marketing communication tool over which the advertiser has a reasonable degree of control and which is designed to promote a product. Therefore, the provisions of the Code of Ethics apply to an advertiser's Facebook page and, as a Facebook page can be used to engage with customers, the Board further decided that the Code of Ethics applies to both content generated by the advertiser as well as user generated content on the Facebook page.

The complaint against VB was upheld (because the user generated content was found to breach various sections of the Code of Ethics), while the complaint against Smirnoff was dismissed (there were no breaches found).

In the determination in relation to VB, the Board noted that "social media is an advertising platform that requires monitoring to ensure that offensive material is removed within a reasonable timeframe" and that "content within a Facebook page, should, like all other advertisement and marketing communication, be assessed with the Code of Ethics in mind". The Board acknowledged the challenges in effectively monitoring social media to ensure that offensive material is removed within a reasonable time.

What is the consequence of the determinations?

The advertising industry in Australia is self-regulated under various codes. The Code of Ethics as well as other codes are administered by the ASB. The Board is an independent body which hears complaints made to the ASB about advertisements not complying with those advertising codes.

It is important to note that compliance with the advertising codes is voluntary and determinations by the Board are not legally binding. Failure to comply with the advertising codes, or even a Board decision, is not in itself a breach of the law and the ASB does not have power to enforce the Board's determinations –although non-compliance could give rise to negative PR.

Accordingly, these ASB determinations do not change the law and the conclusions reached by the Board may not be followed if similar issues come before a court. However, the determinations indicate that social media tools are considered to be advertising platforms for the purposes of the ASB's advertising codes and an organisation's social media content will be advertising to which the Code of Ethics and other relevant advertising codes apply, even if the content has not been posted by the organisation itself (provided the organisation has the technical ability to moderate such content). It does not matter if the organisation is not aware of the offending content.

The consequence is, for organisations that participate in the advertising self-regulation system administered by the ASB is that they now must monitor and moderate all content posted on their Facebook pages and other social media tools to ensure compliance with the advertising codes.

In our view, the media and some legal commentators seem to be giving too much weight to the ASB determinations. In addition to the determinations not being court rulings and relating to a voluntary code, it is also worth mentioning that the Board only reviews advertisements if a complaint is made about them.

In the VB and Smirnoff cases, the complainant was not a genuine consumer but, it has now emerged, two academics in Queensland who made the complaint for the purpose of investigating the interaction between brands and consumers in social media.

Responsibility for user generated content under Australian law: the Allergy Pathway

The position under Australian law regarding responsibility for content posted by third parties on an organisation's social media pages is not so clear-cut. In relation to misleading or deceptive content, the general position seems to be that you are not responsible for a third party's content unless you are regarded by the relevant section of the public as adopting or endorsing that content.

The best current court authority in this area is the 2011 case of ACCC v Allergy Pathway (No.2). This case concerned the publication of misleading statements by Allergy Pathway and its clients on the company's website and social media sites, including misleading testimonials written and posted by clients on Allergy Pathway's Facebook page.

The issue before the court was whether Allergy Pathway could be said to have "published" the testimonials that the third parties posted (as that would be in breach of earlier undertakings to the Court that it would not publish misleading representations about the company's business). In the court's view, the third party testimonials could indeed be attributed to Allergy Pathway. Although Allergy Pathway was not responsible for the initial publication, it accepted responsibility for the publications when it knew of the publications and decided not to remove them.

Although this case focused on whether Allergy Pathway could be said to have published the testimonials, it seems to mean that an organisation may be found liable for misleading or otherwise unlawful content posted by a third party on its social media site if it knows about the content and chooses not to remove it, because it may then be regarded by users as having adopted the content.

Organisations should therefore ensure that they remove any misleading or otherwise unlawful content posted by third parties as soon as reasonably practicable after they become aware of it – otherwise they may be held responsible for that content.

The ACCC's position

ACCC Commissioner Sarah Court spoke to the media after the ASB determinations, warning businesses that they are responsible for making sure that the content on their social media pages is accurate.

While these comments appear to support our view that awareness is the key to assuming responsibility for third party content, they also take a step further by suggesting there is an obligation on businesses to actively monitor their social media pages.

Specifically, the ACCC appears to be suggesting that well-resourced companies should become aware of (and remove) misleading comments within 24 hours of publication, with more flexibility given to smaller businesses depending on when they actually become aware of the comments.

What will a court decide?

While the ACCC Commissioner's comments may indicate how the ACCC will approach matters in future, they do not necessarily represent what a court would find.

Clearly the more active an organisation is in monitoring its social media pages, the greater its exposure if any content is unlawful – because it will be taken to have itself adopted or published that content if it is aware of the content but does not remove it. In that sense, the law seems to encourage some form of moderation of third party content, but not so stringent moderation that all content will be seen as adopted or published by the moderator.

Whatever standard a court seeks to impose, we doubt any court would impose a set time limit to remove misleading comments. As always, it will depend on all the circumstances.

Unfortunately there is not enough legal precedent in this area to provide a black and white answer – this is an area of "wait and see".

Recommended strategy

Although this area of law is far from certain, the following is our recommended strategy

From a legal (not compliance with ASB codes) point of view:

  • unless and until further court decisions indicate otherwise, businesses are not required to moderate third party content constantly or before the content is posted (although we note the ACCC Commissioner's comments which indicate that the ACCC's view is that well-resourced companies should be monitoring their social media pages at least daily);
  • where a business becomes aware of misleading or otherwise unlawful third party content, it would be prudent to remove the content as soon as reasonably practical;
  • businesses should consider practical steps to limit the risk of offensive comments being posted. For example, we understand that Facebook has a feature that allows page administrators to block specific words – profane or otherwise – from appearing in comments on the page;
  • businesses should act promptly to review and potentially remove content if a complaint is received (in particular, the complaint will be evidence that the business is now aware of the relevant content); and
  • although constant moderation is not currently required, some form of reasonable monitoring/moderation would be prudent (again we note the ACCC Commissioner's comments above).

In any event, if any offensive posts by a third party are removed promptly after the issue is noticed, there is unlikely to be any significant legal sanction.

If a business participates in the ASB's advertising self-regulation system, then it seems it may need to do more regular monitoring and moderation (almost constant) in relation to any social media tools that it controls. If regular monitoring and moderation are not commercially feasible, businesses could wait and see if any complaints are received in relation to third party content. As stated above, the ASB process is only triggered by complaints from third parties.

You might also be interested in...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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)
Related Video
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.