Twitter created a microblogging platform for users to share information as well as a new vocabulary: Tweets, Retweets, RTs, Twitterverse and 140 Characters. Journalists, politicians and other public figures heavily rely on the phrase RTs ≠ endorsements as a disclaimer. But when is a retweet actually an endorsement? Is this abbreviation enough to remove any liability otherwise assigned to the publisher? Below, we unpack what is a retweet and the legal effect of this popular Twitter disclaimer as well as the best practice guide for retweeting.

What is an Endorsement and a Retweet?

A retweet is the re-publication of a statement, opinion or comment made by another person. An endorsement is an act of approving or sanctioning an action or statement. Twitter is primarily a publishing platform and whether a retweet can constitute an endorsement depends on its context.

Using Retweets for Advertising

Failing to Disclose a Paid Endorsement

Let’s say Karla Itsines loves activewear brand Lululemon Athletica. Lululemon then pays Ms. Itsines to retweet a tweet it has posted about its new spring season line, asking her to comment on how much she loves wearing the brand. Australian Competition Law (‘ACL’) says that a person must not (in trade or commerce) engage in conduct that is misleading or deceptive or is likely to mislead and deceive. If Lululemon fails to disclose that they paid Ms. Itsines to retweet their post, Lululemon is likely to have engaged in misleading and deceptive conduct.

In 2015, Australia Post failed to disclose that it had paid prominent Instagram ‘influencers’ to post about their products. Australia Post’s failure to disclosure that they paid for the endorsements likely misled consumers into believing the posts were genuine and contravened the Australian Competition Law. If you are using Twitter to advertise your business, you will need to disclose if you have paid someone to retweet, or risk falling foul of the ACL.

But Aren’t Retweets Simply Users Passing On Information?

Google Inc. v Australian Competition and Consumer Commission [2013] HCA 1 (‘Google Inc.’)

Arguably, a retweet is just passing on information, and users are unlikely to construe this as an endorsement. In Google Inc., Australia’s High Court explored whether or not Google endorsed a sponsored link on its page, and consequently engaged in misleading and deceptive conduct. Google Inc. concerned four groups of sponsored links (or advertisements):

  • STA Travel;
  • Carsales;
  • Ausdog; and
  • Trading Post.

The Court found each ad made representations that were, contrary to fact, a relationship between the advertiser and another business (for example, STA Travel and Flight Centre), and that the advertiser’s website contained information about the business. The ACCC argued that Google had engaged in misleading and deceptive conduct by publishing sponsored links which included misleading information.

Whether a corporation publishes a misleading representation and engages in misleading conduct depends on the ordinary and reasonable consumer in the relevant class. Would it appear to he or she that the corporation had adopted or endorsed the representation (see, for example: Yorke v Lucas  (1985) 158 CLR 661 at 666 per Mason ACJ, Wilson, Deane and Dawson JJ; Butcher  (2004) 218 CLR 592 at 605 [39]-[40] per Gleeson CJ, Hayne and Heydon JJ and ACCC v Channel Seven  (2009) 239 CLR 305 at 321 [43] per French CJ and Kiefel J, 323-324 [57] per Gummow J)).

In Google Inc., the relevant class of consumers were those with a computer and access to an internet connection. The Court held that members of this class would understand that the sponsored links were advertisements, and wouldn’t have seen Google as endorsing the ads’ content. Relevantly, Google has no control over a user’s choice of search terms or an advertiser’s selection of keywords, and that the advertiser determines the content entirely.

The Court held that in displaying sponsored links which contained misleading information, Google did not itself engage in misleading and deceptive conduct.

How Might Google Inc. Apply to a Retweet?

The Court explained in Google Inc. the principle that a corporation publishing, communicating or passing on a misleading representation engages in misleading and deceptive conduct if ordinary and reasonable members of a relevant class would likely believe that the corporation endorses or adopts the representation.

Applying this to Twitter, the context of a retweet is everything. Google didn’t exercise any control over the content of its sponsored links. In contrast, Twitter users can monitor the retweet’s content by commenting on what is retweeted. If an advertiser pays Google to display an ad, Google will display the ad. On the other hand, Twitter users curate the contents of their tweets, picking and choosing what they view as interesting and relevant.

Key Takeaways

Twitter is a microblogging platform allowing users to curate the content they want to publish. Given users choose the content they post, there is wider scope for someone to understand a retweet as an endorsement. If your business advertises through Twitter, then you will need to disclose any paid users retweeting your content. Google Inc. emphasises that context is king when determining whether publishing, communicating or passing on information can constitute an endorsement. Retweet with care. RTs ≠ endorsements isn’t the complete legal disclaimer it appears to be.

What do you think? Tag us on Twitter @legalvision_au and let us know.

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