By Rae Neild, Auckland | Tuesday, October 09 2012
So you’ve heard all the hype about using social media like Facebook as a great marketing tool? It’s probably true – and it has legal consequences. Let me tell you today’s new trick. After updating my iPhone to the latest iOS, I went into my (little used) Facebook page to tell an English friend that we have sent all our bad weather to her. Lo and behold! Up popped a full screen message inserted into my news feed (not politely ignorable on the side) advertising a competition promoting a well-known national retailer – one not known for its shyness, I might add. No ability to switch it off as far as I can see, and believe me I’m not going to “like” it! Being a mean-spirited lawyer, I reached for the Unsolicited Electronic Messages Act 2007 (also known as the Anti-Spam Act) to see if it was prohibited. I’m not giving you my preferred conclusion - I’m biased.
Internet marketing eventually resulted in enforcement action when websites contained Fair Trading Act breaches, and it will be the same with social media marketing. Website prosecutions were boring because the Fair Trading Act issues were same old, same old: continuing to advertise when goods had sold out when you could change the web page in 10 minutes, failing to tell customers about important conditions, etc, etc. And that’s what I expected to find with social media advertising. But there’s more, and we don’t even have to wait for it, because it’s already arisen in Australia.
Social media advertising gives you feedback which you may or may not like – and if you don’t like what they say, it’s up to you to ditch it by hiding, or better still, moderating responses. Now, following on from the Fair Trading Act comments above, would you be surprised to find that you could be liable for misleading information in “comments” posted on your Facebook marketing page? This is what happened in an Australian case last year, and the same would probably happen here.
The trader involved used Facebook to advertise treatments alleged to identify and cure allergies. The trader had been investigated by the Australian Competition and Consumer Commission (the equivalent of our Commerce Commission). It was established that these diagnoses and treatments were not effective (putting it mildly) and the trader had given an undertaking to the court in 2009 that it would discontinue the advertising. The ACCC took further action in 2011 about statements posted by the trader on Facebook and Twitter, but also about client testimonials and responses to client questions posted on its Facebook wall.
Now, we’re not surprised by the conviction regarding the trader’s own statements. But the allegation relating to the client postings were on the basis that the trader was equally liable if it was aware of a misleading statement being posted by someone else on its wall, and had not removed it. The court agreed that the trader accepted responsibility for the postings when it knew of them and decided not to remove them – it then became the publisher of those statements. And do you know what? The issue of whether any of the postings were fake testimonials didn’t arise – because it was irrelevant who actually placed the words on the website.
So – I hope you are all either moderating your Facebook pages, or checking them hourly! And – please don’t ask to be my Facebook friend! I just so hate turning people down. Real friends – now that’s different.
Rae Nield is a solicitor specialising in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at email@example.com.