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SOCIAL MEDIA ENTHUSIASTS BEWARE

27 September 2012

While some people seem to have a relaxed attitude to material which is posted on the internet and social media sites, that is far from the legal position.  Businesses that fail to maintain and monitor their social media sites including user posts, do so at their own risk.

There is no doubt that social networks continue to play an increasingly important part in many people's lives, including in the promotion of many businesses.  Although social media is a relatively new phenomenon, there are now an estimated 1.43 billion social network users, with networks having a worldwide reach. 

A recent study undertaken by global consulting firm Booz & Company indicates that 96% of businesses surveyed currently intend on increasing their use of social media.  However, businesses should be aware that although the technology may be new there are a number of well established legal principles which apply.  Those principles have recently been confirmed by the Federal Court and the Advertising Standards Bureau (ASB) who have found businesses responsible for third party comments posted on their Facebook and Twitter pages.  In particular, where businesses are not regularly monitoring posts to Facebook, Twitter, LinkedIn, Pinterest and the like and not deleting misleading, inappropriate or defamatory posts or comments, then they are liable to be exposed to claims. 

It begs the question "should you be responsible for the conduct of others?"  Where you have an element of control, the Courts certainly think so. 

Last year the Federal Court found Allergy Pathway (ACCC v Allergy Pathway Pty Ltd [2011] FCA 74) liable for contempt.  It was earlier found guilty of misleading and deceptive conduct in relation to statements made regarding the properties of its treatment for allergenic conditions, which were proven to be false.  The Company and its Directors provided undertakings that they would not publish statements as to the properties of the treatments, but were ultimately found to have breached those undertakings.  A number of users (including clients) had posted testimonials as to the beneficial nature of the treatment.  Allergy Pathway was aware of the statements and took no steps to remove them from its Twitter and Facebook pages.

The question which the Court had to consider was whether Allergy Pathway could be made responsible for material which was posted to their Facebook page (wall and fan page) by users, as statements published by the Company in support of its products.  In essence the Court found "while it cannot be said that Allergy Pathway was responsible for the initial publication of the testimonials (the original publisher was a third party who posted the testimonials on Allergy Pathways Twitter and Facebook pages) it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of the publications and decided not to remove then.  Hence it became the publisher of the testimonials". 

That is not new law.  In fact, the Court had regard to a 75 year old decision of the English Court of Appeal (Byrne v. Deane [1937] KB 818) in which the proprietors of a golf club were held liable for defamatory comments posted on the club's noticeboard, which it failed to remove after becoming aware of the publication.  As with Allergy Pathway, the proprietor of the club was said to have adopted the statement and taken part in the publication of it. 

More recently, internet service providers have been held liable as the publisher of material which has been held on news services hosted by them, from the time that they became aware of the material (Godfrey v. Demon Internet Ltd [2001] QB 201).

The ACCC has confirmed its view that "any business that decides to leave public testimonials or other comments on their Facebook and twitter pages, will be held responsible if they are false, misleading or deceptive" (per Graeme Samuel).  They have also indicated that business should be monitoring their pages on no less than a daily basis.

The issue has also been addressed recently by the Advertising Standard Bureau.  In a matter heard in July 2012, in relation to Fosters promotion of its VB Facebook page, the ASB found that third party comments are regarded as advertising or marketing communications under the Australian Association of National Advertisers Code of Ethics.  It was also clear to the ASB that the business hosting the page may be regarded as the advertiser and that they have a reasonable degree of control over the content which appears on the page, including any material posted by users or friends.

The ASB found that Fosters had breached certain provisions of the Code.  There were a number of complaints made by the community, including that the material posted featured sexism, race and other forms of discrimination, obscene language and the promotion of irresponsible drinking or excessive consumption of alcohol, including in relation to under 25 year olds.

In addressing the complaint, Fosters noted "the nature of Facebook is that it is dynamic, informal, easy to use and a tool that allows people to subscribe to communities that are of interest to them.  As a medium its content is diverse in terms of the language and views expressed - it is like any conversation that people engage in.  It is this combination that makes it compelling space for its users, particularly the companies who participate in it.  It is worth nothing that the opportunity to engage continuously and directly with a group of highly engaged "fans" is very appealing to brands.  That said, those unique benefits can at times also make it a challenging space".

Fosters also argued that the comments must be assessed in light of the demographic and target reached.  They suggested that their target demographic would be "comfortable with swearing and unlikely to regard swear words used on the VB page as inappropriate, strong or obscene in this context .... For this audience, in this context, essentially no words are taboo."

As a result of those findings, Fosters has implemented a more rigorous monitoring regime, including the use of language filters and twice daily monitoring of user comments, including the removal of inappropriate user comments. 

Businesses should also be aware of the world wide reach of the internet.  Relevantly material posted may be acceptable within one jurisdiction, but breach the requirements of another. 

Another trend in relation to social media is the developing use of celebrity comment in the promotion of products.  In the UK a number of celebrities have been accused of using their social media accounts for marketing purposes contrary to the terms of use or code of practice. In June, English football star Wayne Rooney tweeted "my resolution - to start the year as a champion and to finish it as a champion... #makeitcountgonike.me/makeitcount".   That was found (subject to UK advertising standards) to amount to passing off the advertisement as personal comment.

Fellow footballer Rio Ferdinand and glamour model Katie Price have also been the subject of complaint.  Mr Ferdinand tweeted "really getting into the knitting .... Can't wait to get home from training and finish that cardigan ... you're not you when you're hungry@snickersUk#hungry#spon" across a series of 5 tweets, all sent within an hour.  The last indicated that it was sponsored, but the others did not.  Each tweet was found be part of an orchestrated series in a marketing campaign.  Similarly, Ms Price made comment including "large scale quantitative easing in 2012 could distort the liquidity of govt. bond market" before concluding with the same final tweet.  In each case the final tweet included a picture of the person holding a snickers bar in the promotion of Mars products.

Mars argued that each of the earlier tweets was "obviously identifiable" as an advertisement as they were statements made out of character. However, the regulator disagreed.

In another example swimmer Libby Trickett was censured by the Australian Olympic Committee for retweeting a comment sent to her by a sponsor containing their name during the Olympics.  

While many people may not have the number of followers which those high profile personalities attract, the principles remain the same - any advertising content which is placed on social media should be examined to see whether it complies with relevant codes of practice. 

The nature and content of the ads or posts should also be regularly and thoroughly examined to consider whether they may infringe other laws such as the Competition and Consumer Act, should the material be misleading and deceptive.

It is now clear that businesses which adopt social media but fail to maintain and monitor their sites, do so at their own risk.  We can assist with development of appropriate social media policies and protocols, which all businesses that have a presence in the social media space should be looking to develop.

For more information on this or any other intellectual property related matter, please contact:

Andrew Nicholson | Partner
Mullins Lawyers
t +61 7 3224 0261
f +61 7 3224 0333
anicholson@mullinslaw.com.au

 

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