The case of ACCC v Allergy Pathway, recently handed down by the Federal Court, serves a chilling warning about the responsibility that businesses have to monitor their social media threads – to ensure that comments made by others aren’t causing them risk!
This case starts back in 2009, when the ACCC brought an action against Allergy Pathway (then Advanced Allergy Elimination – for ease, I will just call it “Allergy”), alleging that it, and its director, had engaged in misleading and deceptive conduct, and false representations, in relation to its allergy products. Allergy operates clinics for the diagnosis and treatment of allergies. It posted claims on its social media pages, and more broadly in print, radio and newspapers that it could test for allergens and cure or eliminate them. The ACCC alleged that Allergy’s claims had no proper testing basis – and were misleading and deceptive (among other things).
The court agreed with the ACCC and ordered costs against both the company and the director – and required that they both provide undertakings that they wouldn’t make any similar representations for 3 years.
So rolling on a year or so into 2010, the ACCC became aware of a Facebook page in the name of Allergy. The ACCC claimed that Allergy and the director were liable for postings made by clients on Allergy’s Facebook “wall”, because these statements were misleading and deceptive, and Allergy knew they were and they had not removed them.
Of course, Allergy’s response was that the testimonials on their Facebook page were made by other parties. Not them. And that they shouldn’t be held accountable for statements made by other people.
However, this is where the Court’s decision is so pertinent for businesses.
The court found that Allergy, and its director personally, were liable for the statements made by fans because:
- it was aware that these misleading statements had been posted on their Facebook page; and
- it had made no effort in removing them
In coming to this decision, the Court found that because Allergy had not removed these comments, it then became “publisher” of the testimonials, even though they weren’t the actual author.
So if you are in business, this decision means that it’s your responsibility to ensure that all content on your social media sites regarding your business is accurate, whether that material is uploaded yourself or posted by the public.
It’s important to have some procedure in place to monitor your fan pages, and be proactive in the management of your websites and social media sites. And if a member of the public does post any material that is misleading, it is your responsibility to remove it as soon as you become aware of it.
Give us a call if you would like our help or assistance in working out whether content on your social media sites might possibly land you in trouble. We are always only too happy to help!
Disclaimer: The material contained on this website is provided for general information purposes only and does not constitute legal advice. You should not depend upon any information appearing on this website without seeking legal advice. We do not guarantee that the contents of this website will be accurate, complete or up-to-date.