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Hidden Traps Associated with Social Media

Commercial Law, General

As business owners many of you would be using social media as a tool to market your business. Social media allows for users, friends or fans of your social media advertising page such as Facebook or Twitter to post comments on your page.

As a result of two recent decisions the Federal Court and Advertising Standards Bureau (ASB) have held that business owners are now responsible for posts or comments by third party users on their social media advertising page. In the event a third party user posts an obscene, discriminatory or offensive message then as the business owner you may be liable for breach of the Australian Consumer Law and the Advertiser Code of Ethics.

These decisions have determined that Facebook and Twitter accounts managed by a business are forms of advertising and the business owner has an element of control over these pages to review and delete posts, which is the reasoning for why the business owner is liable for the actions of a third party.

In the case of Fosters Australia*, it had a VB Facebook Page, and a complaint was made where a third party had posted a comment which was sexist, discriminatory, offensive and obscene. Fosters tried to argue that the comments needed to be read in context of the brand; however the ASB determined that such conduct was in breach of the Advertiser Code of Ethics. Fosters have now implemented rigorous methods to ensure such conduct does not occur in the future.

As business owners you will need to take steps to reduce the risk of being held liable for third party comments on your social media advertising page. We strongly recommend that you review your terms and conditions and actively monitor your pages to review the posts by third party users and if required delete any posts which may be misleading and deceptive or offensive.

At Atkinson Vinden we understand the importance of reducing your liability as a business owner.  Please contact Senior Partner, Sheena Vinden on (02) 9411 4466 if you would like assistance in this area.

*Advertising Standards Bureau Case Report, Case Number 0271/12, Advertiser: Fosters Australia, Asia & Pacific (11 July 2012).