Five things you need to do to risk manage your liability for third party content
Companies have a responsibility to monitor third party content on their websites and blogs, including social media sites, following a decision by the Advertising Standards Bureau (ASB) which found that a company's Facebook page was an advertisement. In addition to ensuring false or misleading claims are not made as part of a company's marketing and promotional activities, companies may be held responsible for posts or public comments made by others on social media pages, including those which are false or likely to mislead and deceive consumers.
The ASB recently considered consumer complaints concerning the official Facebook pages for Smirnoff, managed by Diageo Australia Pty Ltd (Diageo Australia), and VB, managed by Fosters Australia, Asia & Pacific (Fosters).
The separate complaints raised concerns about comments made by each brand's Facebook "fans", which included comments that were discriminatory towards women, degrading to homosexual people, strong and obscene language and did not treat sex, sexuality and nudity with sensitivity to the relevant audience. The complaint in relation to Diageo was upheld, as a company's Facebook page was found to be a marketing communication tool where it is used "to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose directly or indirectly that product."1 In upholding the complaint against Fosters, the Board noted that social media is an advertising platform requiring monitoring to ensure 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 Australian Association of National Advertisers Advertiser Code of Ethics (Code) in mind.2
The ASB's decisions are broadly consistent with the developing position from case law. In Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2), 3 Allergy Pathway was found liable as a publisher for false, misleading or deceptive statements posted by users on its Facebook page, as it had control over the social media page, knew of the statements and did not take steps to remove them.
Businesses with social media pages or websites that enable posts to be made by third parties should be particularly aware that the Australian Consumer Law prohibits misleading or deceptive conduct4 and false or misleading representations about goods or services,5 and that consumer protection laws and Codes also apply to sites like Facebook and Twitter. Australian Competition and Consumer Commissioner, Sarah Court, has commented that larger companies are expected to monitor and remove misleading or inappropriate comments promptly, with more flexibility for smaller businesses. A failure to do so may lead to court action.6
What should businesses do to minimise liability?
- Understand the Code and any additional guidelines relevant to your industry, such as the Therapeutic Goods Advertising Code.
- If your business maintains social media pages, be aware of any Page Guidelines, including Advertising Guidelines and Community Standards, such as those applicable to Facebook.
- Create and display usage guidelines and feature them prominently on your social media pages. Although this won't protect against third parties posting inappropriate or misleading comments on websites, it is good practice to outline what the Page is for, what will and won't be tolerated on the Page, and that you will delete any comments deemed inappropriate or misleading. Users who breach those rules should be blocked.
- Monitor your social media pages and websites (including setting up email notifications for new posts) and remove any posts that may be false, misleading or deceptive as soon as you become aware with them. Think about enlisting a suitable Page administrator to assist in monitoring content. The amount of time to be spent monitoring depends on the size of the company and the number of fans or followers the business has.7
- Businesses should also pay attention to ensure third party content does not breach other relevant legislation, such as the law surrounding defamation, racial discrimination and gender discrimination.
Pharmaceutical and medical device companies must also monitor their websites for posts which infringe the Therapeutic Goods Advertising Code, including promoting prescription goods, prohibited and restricted representations to consumers and testimonials.
1 Advertising Standards Bureau, Case Report of
Case Number 0272/12.
2 Advertising Standards Bureau, Case Report of Case Number 0271/12.
3  FCA 74.
4 Competition and Consumer Act 2010 (Cth), Schedule 2, section 18.
5 Competition and Consumer Act 2010 (Cth), Schedule 2, section 29.
6 Cara Waters, "ACCC gives big business 24 hours to fix Facebook comments, but SMEs get more time" 13 August 2012, < http://www.smartcompany.com.au/legal/051187-accc-to-gives-smes-more-time-to-remove-fals-and-misleading-comments-on-facebook-2.html > (1 May 2013).
7 Australian Competition and Consumer Commission, "Social Media", < http://www.accc.gov.au/business/advertising-promoting-your-business/social-media > (1 May 2013).
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.