Our post ASB’s Facebook ruling points to greater role of governance evoked comments from Mark Parker which led us to dig a little deeper into the issue of “brand responsibility” for comments on Facebook and other social networks. As an element of social governance it is only one piece of a much larger jigsaw puzzle. But that one piece can have severe consequences if the operational risk management is not in place, as Allergy Pathway found out.

It turns out to be a rather grey area, and as Mark suggested we might need some clearer guidelines and preferably illustrated by examples in order to minimize the risk of brands violating the rulings of the High Court and the Australian Consumer & Competition Commission.

The particular High Court ruling, as kindly pointed out by Sven Brodmerkel  is this one made by the Australian Federal Court in 2011:

In August 2009 Allergy Pathway and Mr Keir gave undertakings to the court following successful Australian Competition and Consumer Commission action for false, misleading and deceptive conduct.

Justice Finkelstein has found that Allergy Pathway and Mr Keir made prohibited representations about Allergy Pathway’s purported allergy treatment on its website and on Twitter, Facebook and YouTube in breach of those undertakings.

Those representations included testimonials written and posted by clients on Allergy Pathway’s Facebook “wall” and testimonials written by clients and posted by Allergy Pathway on its website and Facebook and Twitter pages.

In his judgment Justice Finkelstein held that: “while it cannot be said that Allergy Pathway was responsible for the initial publication of testimonials (the original publisher was the third party who posted the testimonials on Allergy Pathway’s Twitter and Facebook pages) it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of them and decided not to remove them. Hence it became the publisher of the testimonials.”

In responding to the judgment, ACCC chairman Graeme Samuel said:

“Many corporations now use Facebook “Fan” pages and Twitter accounts to promote their businesses. This outcome confirms that any business that decides to leave public testimonials or other comments on their Facebook and Twitter pages will be held responsible if they are false, misleading or deceptive.”

Which means?

Well, it means this - any business that decides to leave public testimonials or other comments on their Facebook and Twitter pages will be held responsible if they are false, misleading or deceptive.

And what does that mean?

Well, we’re not sure!

That’s why Mark Parker suggested that we really need some use cases and guidance on those with respect to the ruling.

Let’s try some examples.

Example 1

Take this comment from the Kogan Facebook page.

Kogan Soniq Facebook Comparison Example 1

In order not to be warned or fined by the ACCC Kogan have to weigh up the following:

  • Is this misleading about Soniq, or is it fact?
  • Is it factual about the refund and potentially false about the claim that “Soniq are worse than those cheap TEACs”?
  • If Peter Sibilant turns out to be a Kogan employee, contractor or associate is the comment more or less potentially misleading or deceitful?
  • If Peter Sibilant turns out to be or have been a JB HiFi or Harvey Norman salesperson who actually sold Soniq is this statement more or less potentially misleading or deceitful?

That’s a tall order – however they have not deleted it they have apparently decided they have no exposure. Or have they decided, or is it a potential timebomb waiting for Soniq to discover it and hold Kogan liable?

Example 2

Does Telstra need to verify any of these claims, or delete posts?

Telstra Optus Example 1 Facebook

Similar to the Kogan example, if Josef Sakac worked in a Telstra store or was affiliated with Telstra would this comment expose Telstra to the ACCC? Or if he was actually a cost accountant with a specialization in comparing telephone contracts would this be OK?

Example 3

Does Optus need to REQUEST TELSTRA to delete this post from the Telstra Facebook page?

Optus Facebook Telstra ACCC

If Matthew Hobbs works for or is affiliated with Optus should Optus ask Telstra to delete the post?

If Matthew Hobbs works for or is affiliated with Telstra are Telstra risk-free to leave this post online?

Example 4

Should Telstra feel at ease to leave this post?

Telstra Optus Compared Facebook ACCC Example 4

If Timothy Heywood is a Telstra employee or associated with Telstra should Telstra feel nervous about him being potentially misleading?

If Timothy Heywood is an Optus employee or associated with Optus are Telstra off free in the eyes of the ACCC?

If Timothy Heywood is Telstra employee and works in marketing should Telstra feel exposed?

If Timothy Heywood is a highly qualified mobile network engineer who works for Telstra and specialises in network coverage and performance and he kept videos and technical notes of his experiment should Telstra feel free of risk to leave this post?


So you get the idea – what might be considered “false, misleading or deceptive” depends on the person making such claims, and their affiliations, and their expertise and qualifications – doesn’t it?

And to be free from risk, brands need to monitor comments on their competitors’ social networks and make a judgement about whether to ask their competitors to delete posts. Or do they, or don’t they?

All in all this is very grey and that’s one reason that we said that the ruling seems to be out of touch with the reality of social networks.

If you have suggestions on how these cases should be handled to comply with the ACCC ruling then please let us know, or other examples.

Slightly off-topic but related is the question of how all this, including the ASB ruling, effects Facebook the corporation and companies operating anywhere else on the planet in relation to Facebook. It’s a question that’s been a copywriter’s favourite – some declaring another nail in Facebook’s coffin. Fortunately Nicholas Carah succintly sums up the position:

The ASB is an industry-run organisation. Advertising is largely self-regulated. In this case, the ASB made decisions related to two brands that are ‘signed’ up to the ASB process and the codes it operates. The brands voluntarily participate in the process and act in accordance with the decisions.

The decision doesn’t relate to the conduct of Facebook, but to the brands.

The decision can only affect companies that have chosen to participate in the ASB process.

This type of issue emphasizes the need for an overall social governance framework. However of itself it does not make that framework more complex – it just points to elements within the framework that need very careful operational risk management. The overall framework is still the social governance “master plan”.

My Social Presence http://xeeme.com/walter

See our Storify version of this post Who’s Responsible for that Facebook Post?