What legal issues arise when using social media to advertise? – Online solicitor series – Article 2

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On this page

• Why is it important to avoid misleading statements on social media?
• What about misleading statements made as a ‘Comment’ in a post?
• What are 3 steps to manage risk?
• What enforcement measures are taken by the ACCC?
• Conclusion

Social media provide effective platforms for connecting with potential customers. An online solicitor can help small and large businesses address any doubts or concerns regarding interactions with new or existing clientele when advertising their products. It is vital that both employers and employees have an awareness of the responsibilities associated with uploading accurate content. An online solicitor can highlight the usual pitfalls and assist in navigating these risks.

Why is it important to avoid misleading statements on social media?

When you market and promote your business and its products, you should make certain not to make claims that could be false or misleading. This extends to any advertisements made through print, website, radio, television, and any social media platforms like LinkedIn or Facebook.

Despite that there are no laws specifically relating to the use of social media, consumer protection bodies have, for many years, created laws stopping businesses from misleading consumers through false claims about their products or services. Sometimes it is difficult to determine whether the overall impression of a statement is misleading or false, and the expertise of an online solicitor may be necessary to help distinguish this, at times, grey area of the law.

What about misleading statements made as a ‘Comment’ in a post?

It is the responsibility of the business to be aware of any post or comment that falsely promotes a product or service of the business, or could be misleading and deceptive to customers viewing and reading commentary in a thread. This includes testimonials posted by previous clients of the business. This was the case in 2011, where a company was made aware of the misleading testimonials posted by its ex-clients, and was held to be responsible for these communications, despite not being the direct publishers of the material. It is advisable that an online solicitor be consulted to ensure the legality of the content and material of all social media communications.

What are 3 steps to manage risk?

To minimize risk, you should:

1. Avoid making statements on social media that you would not normally make in your other promotional activities. If you are uncertain as to what you can and cannot say, advice should be sought from an online solicitor.

2. Have your online solicitor regularly review and monitor your social media activities and delete any statements, whether published by the company or its customers, that are inaccurate or could potentially mislead or deceive. Although you can reply to these posts instead of deleting them, the risk may be that your answer will not always absolve the business of its responsibility not to mislead, and may be insufficient in trumping the ‘false impression’ that the post created. The amount of time you invest in managing your social media should depend on the size of your business, as well as how many fans, friends, and followers you have.

3. Create prominent and identifiable ‘rules’ that are applicable to the conduct of the users of your social media. It is advisable that these terms and conditions of use be drafted by an online solicitor to ensure you have covered all bases. Then, clearly display these rules on each social medium you are using.

What enforcement measures are taken by the ACCC?

As the consumer watchdog, the ACCC may require businesses to authenticate any offers or statements made on their social media platforms, and can pursue legal action through the courts where there has been a breach of the law. If you receive an infringement notice, you should contact an online solicitor for expert advice on how best to respond.

Conclusion

To conclude, care should always be taken in using the businesses social media as a tool for promoting the interests, products and services of the company. As always, the advice of an online solicitor should be sought when in doubt as to the legality of certain statements. Finally, it is important that the statements made in posts or comments by fans, friends or followers be treated as if they were statements made by the company itself.