Let’s paint a picture: your brand has a social media page with a solid follower base. Posts made by followers are monitored to ensure they don’t breach the page’s published “house rules”.

Some followers are a smidge over-enthusiastic about your brand, and publish negative comments about your competitor’s products.

Some of these comments you know to be untrue, but you didn’t say it so there’s no harm. Or is there?

Who’s responsible?

Put simply, in the eyes of the law, brands are responsible for the content of messages posted on their social media pages, including those posted by followers.

If a follower posts a comment about your product or a competitor’s product which you know to be untrue, and you do nothing about it, you may be found liable for misleading and deceptive conduct.

In a landmark case in 2011, the Federal Court fined an allergy treatment clinic over customer testimonials which it knew to be false.

The court said that although the clinic wasn’t responsible for initially publishing the testimonials, it effectively accepted responsibility for them when it became aware of them and did not remove them. Meaning that the clinic became the publisher of the testimonials.

Truth in advertising, including via social media, is something the ACCC is red hot on pursuing.

What should you do?

If a follower publishes a post about your products or a competitor’s products which you know isn’t quite right (or is absolutely wrong), you must remove it.

It’s not a defence to say you don’t have the time or the resources to manage your social media page. It just won’t wash with the ACCC.

Social media is viewed as an advertising platform, and brand owners must ensure they treat it accordingly, including by getting legal advice when necessary.

ABOUT THE AUTHOR

David Kelly is the founder of KHQ Approved, which offers fixed fee solutions across a range of areas (including marketing law and contract review).  Peace of mind from an experienced team for a reasonable price.