Using social media to promote your business

Social media gives large and small businesses a new, direct way to interact with existing and potential customers, and promote their products and services. Businesses using social media channels like Facebook, Twitter and YouTube have a responsibility to ensure content on their pages is accurate, irrespective of who put it there.

Q: What do I need to know about using social media?

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, television, websites and social media channels like Facebook and Twitter.

Example

XYZ Pty Ltd tweets that they are the first Australian company to offer a 100 per cent environmentally friendly car wash service when they have not done any 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.

Example

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.

Q: Is this a new law?

There are no new consumer laws or rules in place for social media. Consumer protection laws which 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 in the same way they apply to any other marketing or sales channel.

Q: What if someone else makes comments on my 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. This was confirmed by the Federal Court in 2011 during the ACCC’s court action against an allergy treatment company. The court concluded that the company accepted responsibility for fan posts and testimonials on its social media pages when it knew about them and decided not to remove them.

Example

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.

Example

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.

Q: What can I do to minimise my 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 when using your social media pages. These rules should be featured prominently on your social media pages. You should then block users who breach these rules

Q: How regularly should I monitor my social media pages?

How often we’d expect 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.

Businesses should also keep in mind that social media operates 24 hours a day, seven days a week, and many consumers use social media outside normal business hours and on weekends.

Example

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.

Example

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.

Example

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.

Q: Can I respond to false, misleading or deceptive comments instead of removing them?

Yes you can, 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.

Q: How will the ACCC enforce 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).

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
• the conduct is particularly blatant
• it is by a business that has come to our attention previously.

Q: What should I do 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.