4 Session 4 of 5 · The brand
Staff who speak for the brand: posts, reviews and replies
When staff post about the business they work for, the consumer law can reach what they say. The ACCC says a review can mislead consumers if an employee writes it without stating the connection, and that a business is responsible for false or misleading comments and posts that others make on its own social media pages.
General information about the Australian Consumer Law, not legal advice. The ACCC is the official place to check.
The same law, on a phone
The ACCC’s advertising guide says the laws against false, misleading or deceptive claims apply to social media as they do to any other marketing channel, and that the law against misleading conduct applies even if no one meant to mislead and no one suffered loss. The same guide notes that the audience a campaign reaches can be very different from the one it targets, and that television or radio ads are likely to reach further than claims made by sales staff. For a staff member, good intentions are not the test; the impression a post leaves on the people who see it is.
Where a staff member’s post lands
| The post | What the ACCC says |
|---|---|
| A review of the business’s own product or service | A review “should be independent and reflect the genuine opinion of the person who experienced the product or service.” Its list of reviews that can mislead includes those “written by family, employees, or people paid in some way by the business to write the review, without stating the personal connection or commercial relationship with that business.” |
| A post on the business’s own accounts | The ACCC lists a business’s posts on its own social media accounts among the places where the same rules as all advertising and promotions apply. |
| A comment on the business’s page | Businesses are responsible for comments and posts others make on their pages that are false or likely to mislead. The ACCC’s advertising guide gives a 2011 case in which a court found a company had taken on responsibility for fans’ posts and testimonials on its pages, because it knew about them and chose to leave them up. |
| A post made for a reward | Posts a business pays for, and posts it offers influencers incentives to make, are covered by the same rules as all advertising. Offering incentives for positive reviews risks misleading consumers. |
The ACCC’s rule for incentives offered to customers shows where it draws the line: the incentive must apply whether the review is positive or negative, and must be clearly disclosed so consumers know the review was incentivised. Its advertising guide puts the general rule in one line: “any review or testimonial should reflect the genuine views and opinions of the person that is represented to have made it.”
Replying for the business
Staff who answer customers on the business’s pages are speaking for it in public, so the business’s rules for replies belong in their training. One of business.gov.au’s rules matters most for a staff member who can delete: “Don’t delete a public complaint or review.” Its exception is a customer who uses offensive or threatening language. It also suggests that a business update its procedures for managing complaints to include social media.
Two rules sit side by side here and are easy to confuse in training. A genuine complaint stays up. A comment that is false or misleading is one the ACCC says it is usually safer to remove, because a reply must be enough to override the false impression. Before removing or editing a review as fake, the ACCC says a business needs an adequate basis to conclude it is likely fake or misleading, because removing a genuine negative review may itself mislead.
The ACCC also suggests that a business set clear rules for how others can post on its page and display them prominently. Staff who moderate the page apply those rules, so they belong in the same training.
Industries with rules of their own
business.gov.au notes that standards, codes of conduct and codes of practice differ by industry and can be mandatory or voluntary. Therapeutic goods are one example: the TGA says businesses and account holders are responsible for social media content they create or manage, which may extend to comments from third parties. A business in a regulated industry has that industry’s rules to teach as well.
Putting it into training
business.gov.au says a business needs to make sure its staff know their legal obligations, “This includes complying with Australian Consumer Law.” For anyone unsure what can and can’t be said, the ACCC’s own advice to businesses is to get legal advice.
The workplace side of the same post, what the employer may ask of staff and what a breach can lead to, is in a policy staff can follow and when a post costs a job.