If you use social-media channels like Facebook, Twitter and YouTube, you are responsible for making sure all the content is accurate.
Social media gives businesses a new, direct way to interact with existing and potential customers, and promote their products and services. However, businesses have a responsibility to ensure content on their pages is accurate, irrespective of who put it there, says the Australian Competition & Consumer Commission (ACCC).
What you need to know
You must ensure any claims you make as part of your marketing and promotional activities are not false, misleading or deceptive. This includes advertisements or statements using any media including print, radio, TV, websites and social media channels.
Examples
XYZ Pty Ltd tweets that they are the first Australian company to offer a 100% environmentally friendly car wash service with no research to support this. It turns out that GHI Pty Ltd has offered the same service for many years. This tweet is likely to be false, misleading or deceptive. ABC Pty Ltd pays a celebrity to tweet that she loved staying at one of ABC’s resorts. The celebrity has never actually been to this resort. This tweet is likely to be false, misleading or deceptive.
The old laws still apply
There are no new consumer laws or rules in place for social media. Consumer protection laws that prohibit businesses from making false, misleading or deceptive claims about their products or services have been in place for decades. These laws apply to social media too.
What if someone else makes comments on your page?
You can also be held responsible for posts or public comments made by others on your social media pages which are false or likely to mislead or deceive consumers. The Federal Court confirmed this in 2011 during The ACCC’s court action against an allergy treatment company, concluding that the company accepted responsibility for fan posts and testimonials when it knew about them and decided not to remove them.
Examples
A fan of XYZ Pty Ltd posts negative and untrue comments about a competitor’s product on XYZ’s Facebook page. XYZ knows that the comments are incorrect, but decides to leave the comments up on its page. XYZ may be held accountable for these comments even though they were made by someone else. ABC Pty Ltd and DEF Pty Ltd are market leaders in the paint industry. A customer posts on ABC’s Facebook page that their paint always lasts much longer than DEF’s paint. ABC is unsure if this is true, but decides not to remove the post. It turns out that ABC’s paint does not, in fact, last longer. ABC may be held responsible for this comment.
Minimising your risk
Don’t make statements on your Facebook or other social media pages that you wouldn’t make in any other type of advertising. If you’re unsure about what you can or can’t say, seek legal advice. Monitor your social media pages and remove any posts that may be false, misleading or deceptive as soon as you become aware of them. This is what the ACCC would expect you to do with any other type of advertisement. Establish clear ‘house rules’ that apply to the actions of your fans, friends and followers and feature them prominently on your social media pages. You should then block users who breach these rules.
Regular monitoring of your pages
How often the ACCC expects you to monitor your social media pages will depend on two key factors: the size of your company and the number of fans or followers you have. Also keep in mind that social media operates 24 hours a day, seven days a week.
Examples
ABC Pty Ltd has 300 staff. As larger companies usually have sufficient resources and sophisticated systems, the ACCC would expect ABC to become aware of false, misleading or deceptive posts on its Facebook page soon after they are posted and to act promptly to remove them. XYZ Pty Ltd has only 10 staff but more than 50,000 Facebook fans. Given the number of people who could be misled by an incorrect post on XYZ’s Facebook page, the ACCC would expect XYZ to devote adequate resources to monitoring its Facebook page and to remove any false, misleading or deceptive posts soon after they are posted.
DEF Pty Ltd has 12 staff and only 80 Facebook fans. As a small business, DEF is unlikely to have the same resources to dedicate to social media monitoring as a larger company would. Also, given the small number of Facebook fans, there is less potential for widespread public detriment from incorrect posts. Accordingly, the ACCC would not expect DEF to monitor its Facebook page as regularly as the companies in the two previous examples.
Responding instead of removing
You can do this, but it is possible that your response may not be sufficient to override the false impression made by the original comments. It may be safer to simply remove the comments.
How the ACCC enforces this
The ACCC can require companies to substantiate any claims on their social media pages, and can take court action where it identifies a breach of the law (or issue an infringement notice in certain circumstances). Celia Falkland of the ACCC says: ‘While all complaints are carefully considered, the ACCC directs its resources to investigate and resolve matters in accordance with our compliance and enforcement priorities. The ACCC will take a proportionate response in relation to false or misleading comments on businesses’ social media sites. We are more likely to pursue cases of false, misleading or deceptive conduct if there is the potential for widespread public detriment if the statement is relied on, if the conduct is particularly blatant, or it is by a business that has come to our attention previously.’
What you need to do
You need to rectify the potential impact of any false, misleading or deceptive statements. You should offer a refund to any customer who made the decision to purchase your product or service based on a false, misleading or deceptive claim they saw on your social media page.
If you have a complaint or enquiry, contact the ACCC small-business helpline on 1300 302 021
