It is surprising that the ACCC’s updated Compliance and Enforcement Policy for 2013 makes no express mention of social media. Introduced by Rod Sims in a speech in Sydney on Thursday, 22 February 2013, to the Committee for Economic Development of Australia, the ACCC’s priorities extend to “online consumer issues” but that’s as far as it goes.
Such “online consumer issues” appear firmly focussed in the e-commerce field, although there is some mention of fake testimonials and reviews in online retailing.
The elephant in the room remains the growing legal issues surrounding user generated content on social media promotional platforms. Businesses are trying to grapple with the 2012 monitoring obligations imposed by the Advertising Standards Board (ASB) and Australian Association of National Advertisers (AANA). The ACCC chose to weigh into this debate last year by supporting these impositions, and itself took a strong stance on the issue in its pursuit of the Allergy Pathway* case in 2011.
That said, the ACCC has previously provided businesses with guidance about use of social media for promotional activities (see here). Legal issues around social media are therefore not being ignored. Perhaps the lack of apparent prioritisation indicates uncertainty about the legal effect of user generated content and the circumstances in which it could be misleading. Perhaps the ACCC is looking for an appropriate test case to help clarify the legal position.
On the reasonable assumption that the ACCC will only implement a best practice position for social media monitoring, it is interesting to observe that the ACCC:
- monitors the account Monday to Friday between 9am and 5pm AEST, excluding public holidays;
- will endeavour to respond to questions within 24 hours (except weekends and public holidays);
- accepts no responsibility for information tweeted to its account; and
- reserves the right to block or unfollow users in certain circumstances.** DISCLAIMER: Don’t forget the likely ACCC argument if you follow their practice and still get sued: ‘It all depends upon the particular facts of the case’. After all, one can foreshadow an argument that the monitoring needed for a Twitter account intended to push out official information and solicit consumer feedback might be quite different from that required when social media is used as an advertising medium.
Incidentally, it is unclear whether the Terms are intended to be legally binding. This is because they are buried within the media centre of the ACCC’s own website, and are not visible on the ACCC’s Twitter account itself. This may not matter because the terms are fairly benign, but it is worth remembering that anything intended to have legal effect should meet browse wrap contractual requirements.
For businesses, a year of social media regulatory uncertainty therefore continues. The consumer watchdog may well be assessing business conduct with a test case in mind. Therefore, a compliance mindset when developing monitoring protocols is recommended.
* ACCC v Allergy Pathway Pty Ltd and Another (No 2) (2011) 192 FCR 34.