Businesses shelling out big bucks for prime advertising space are used to paying close attention to content, for the sake of the bottom line as well as out of respect for consumer law. However, it may not feel as natural and cost-effective to apply the same scrutiny to an Instagram caption. Why invest the business resources when teenagers worldwide can master the art?

The Australian Competition and Consumer Commission (ACCC) has recently issued new social media guidelines for businesses which emphasise the answer repeatedly: as far as the regulator is concerned, businesses have the same responsibilities on social media as they do in all other marketing channels. Consumer protection laws (including, for example, the prohibition on conduct that is misleading or deceptive, or is likely to mislead or deceive), apply to Snapchat stories and ads in national broadsheets alike.

The key takeaways are:

  1. Treat all social media posts (both your own and those of others) as you would any other form of advertising.
  2. Be prepared to react within 24 hours if issues arise in posts to your social media accounts.
  3. Be clear and open in your use of online influencers, and use #ad and #spon or similar.

Think fast

In something of an understatement, the guidelines include a reminder to businesses that “many consumers use social media outside normal business hours and on weekends”. While the 24/7 nature of social media will hardly come as a surprise, the ACCC’s warning is about more than acting fast to stave off a firestorm of critical responses to a poorly worded tweet. Businesses that don’t remove false, misleading or deceptive content from their accounts in a timely manner may face regulatory action.

What counts as timely depends on the business’s size and its follower count, but back in 2012 an ACCC Commissioner told the media that bigger companies could be expected to react within 24 hours. Considering that the pace of social media has only intensified since, most businesses – except those with a very limited online profile and staff resources – may find it prudent to aim for a sub-24-hour response time.

Watch out for (third-)party crashers

Businesses should work on the assumption that they could be held accountable for all content uploaded to their social media pages, no matter who the creator is. This is particularly significant for businesses that court public engagement on social media.

For example, the ACCC can hold a business responsible if a member of the public takes a misleading swipe at a competitor in a product review posted to its official Facebook page, or if that review makes unjustified claims about the product’s capabilities. Meanwhile, third-party comments on a business’s social media pages are also subject to the Advertiser Code of Ethics, administered by the Advertising Standards Bureau. This code prohibits a range of conduct in the course of advertising, including discriminatory material and inappropriately obscene language.

What about hash tag campaigns or other marketing initiatives that rely on people posting content to their own accounts, though? It’s not entirely clear that a business would be accountable for this sort of content because of the decision in ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74, in which the Federal Court held that businesses accepted responsibility for third-party posts when they became aware of them and decided not to remove them. A business that lacks the power to remove a post may therefore lack responsibility for its content.  Of course, hash tag campaigns come with their own set of risks, as any number of brands could attest to, and should always be accompanied by a clear emergency response plan which is communicated throughout the business prior to launch.

No hidden influences

The ACCC has adopted a clear stance in relation to a subset of content on third-party pages, however: influencer posts. Paying an influencer to talk up a product they’ve never tried is a definite no, and to be on the safe side businesses should also keep an eye out for any potentially misleading or deceptive content in influencer posts, even if confident the influencer has actually tried the product.

The ACCC is not the only organisation watching this space. If you’ve been noticing a sudden increase in #ad and #spon hash tags from the influencers in your feeds lately, you can thank a new provision in the Australian Association of National Advertisers’ code of ethics. The provision, effective 1 March 2017, requires brands to ensure that all advertising, including influencer posts, be “clearly distinguishable as such to the relevant audience”. The change affects promotional material over which the business exercises a reasonable degree of control.  So, while sending an influencer a sample product and hoping for the best probably wouldn’t require public disclosure, collaborating with an influencer on content very well might.

Social media matters

Social media marketing requires care and attention. Clear, well-communicated policies are essential in responding quickly to crises or, better yet, avoiding them altogether. And, as the ACCC’s new guidelines potentially indicate increased regulatory focus on this space, there’s no time like the present for businesses to make sure their social media practices can meet the challenge.

Georgina would like to acknowledge the contribution of Lauren Holz in preparing this blog.