Are you responsible for what other people say on your social media site?

A few years ago, the Federal Court found that Allergy Pathway Pty Ltd had engaged in false, misleading and deceptive conduct. The Company and its director undertook, among other things, not to make certain representations about their ability to test for allergens and to cure allergic reactions.

They were both found in contempt of court a couple of years later for publishing 4 types of publications online:

(1)    statements, and links to statements, posted by Allergy Pathway on its website, Facebook and Twitter pages and in a video posted on YouTube and embedded on its Facebook and Twitter pages;

(2)    testimonials written by clients and posted by Allergy Pathway on its website and Facebook and Twitter pages;

(3)   testimonials written and posted by clients on Allergy Pathway’s Facebook “wall”; and

(4)    Allergy Pathway’s responses to queries posted by members of the public on its Facebook wall.

For the third sort of publication, the Judge had to consider whether Allergy Pathway is responsible for comments and testimonials posted on its Facebook wall or Twitter page by clients.

He decided that Allergy Pathway accepted responsibility for the publications when it knew about them but did not remove them. In doing nothing, Allergy Pathway breached the undertaking and was in contempt of Court when the comments and testimonials contained the representations that they undertook not to make.

The facts and posts and tweets…get them right

Last month the Federal Court had to decide an appeal for another social media case.

Leah Maddern, a swimwear designer represented on her personal and company Facebook pages that her competitor, Seafolly, had copied some of her swimwear designs. She claimed that she was merely expressing an opinion and not stating a fact.

The Court and Court of Appeal disagreed and said that she was not merely stating an opinion and that the comment was made without regard for whether it was true or not. If she had made a few basic enquiries she would have found that most of Seafolly’s swimmers were being sold before she showed their representative her designs.

The Courts found that the comments made both on Ms Maddern’s personal account and her business account amounted to conduct “in trade and commerce” and could breach the Trade Practices Act (now The Australian Consumer Law) because the comments were made about a competitor and were of a business nature.

What can you do to avoid breaching the ACL when using social media?

The following is a good place to start, but each post should be considered individually.  Also, my comments here relate to the Australian Consumer Law, posting comments, and allowing other people’s posts to remain on your social media sites can have other implications, such as leading to injurious falsehood or defamation claims.

(1)    Be careful that your posts don’t contain wrong facts, or aren’t opinions based on wrong facts, particularly if talking about trade competitors or posting in a business context.

(2)    Consider what your audience will understand from your comments.

(3)   Regularly monitor your Facebook and other social media sites. If you find posts that may be misleading or deceptive or contain misrepresentations that have been posted on your page, remove them as soon as you find them.

(4)    Include social media in your Trade Practices Compliance Program and incorporate social media into your marketing procedures.

If you want more help in this area, contact me to see how I can help your company.