ACCC gives big business 24 hours to fix Facebook comments, but SMEs get more time

The consumer watchdog has weighed in on the debate over false and misleading comments on brands’ Facebook pages, calling for a 24-hour turnaround for large businesses and more leeway for SMEs.

Following the Advertising Standards Board’s ruling last week that Facebook pages were an advertisement, the Australian Competition and Consumer Commission has warned large companies that use Facebook to promote themselves should take misleading or inappropriate comments down within a day or less.

ACCC commissioner, Sarah Court, told SmartCompany more flexibility would be given for SMEs depending on when the SME became aware of the comment.

“It seems to me that if you are a big corporate player like a bank, Coles, Woolies or the airlines, if they are using Facebook one presumes they have fairly sophisticated systems and they are going to become aware of anything misleading pretty promptly,” she says.

Court says a big company should move “pretty quickly” to remove a comment and says the time period is not the issue, instead the question is does the company know it is there.

“As a rule of thumb for a big company I would be surprised if they were not aware within 24 hours, it is hard to give a rule of thumb for a small company,” she says.

“If you are a mum and dad company with a Facebook page and there is a false representation up there, and they genuinely have not looked at it for a week or so, the ACCC may not be impressed. But I can’t see that we would take action.”

Court cautions that the same consumer protection laws apply to Facebook and Twitter as apply to traditional advertising.

“The issue the ASB is grappling with is really if you are a brand that is using a Facebook page to promote your product the test is, is it in trade or commerce? If people are posting on your Facebook page content that is misleading or deceptive about your product, as the host, you have a responsibility to make sure your content is accurate, so long as you are aware of it,” she says.

Court says if a business has a Facebook page and a member of the public posts on that page and it is not seen immediately, the ACCC “is not going to come knocking” in that circumstance.

However, she says if there are misleading representations on the Facebook page which stay for a while then the business is responsible for the publication or promotion of those comments.

“It is going to be very dependent on the facts; if it is a member of the public far removed from the company that is different to a celebrity testimonial paid for by the company.”

John Swinson, partner at King & Wood Mallesons, told SmartCompany that Foster’s VB told the ASB it would monitor social media twice daily, but this was likely to impose “a significant burden” for many businesses.

“You need people with experience in advertising laws and good knowledge of the company’s products and services.”

Swinson warns the ASB decision applies to both large and small business and says it would be fairer if the ASB and ACCC looked at the volume of traffic to a Facebook page when deciding how quickly a business should respond.

“You can also set Facebook up to alert you when something comes in, so I think a better rule would be the volume of your traffic rather than how big a company you are.”