We’re joined by John Swinson who’s a Partner in the Intellectual Property and Technology Group at King & Wood Mallesons; John welcome to BRR Media.

Good morning.

Well John businesses that use Facebook may need to rethink their company pages following a decision which found that a brand’s Facebook page was an advertisement.

Yes that’s correct.  In fact there’ve been two decisions in the past few weeks on this topic and both of them decided that user comments on a Facebook page of a company promoting their product was in fact equivalent to the statements of the company itself; and so one of the cases concerned Smirnoff Vodka, the other case concerned VB Beer, and comments that were placed by users on the Facebook page of those alcohol labels were inappropriate, offensive, racist and potentially promoting the excessive consumption of alcohol which is in breach of advertising standards and rules and the finding was those statements by users were equivalent to statements by the brand owner and had to be taken down.

Well John you’ve mentioned two cases and both of these were alcohol companies, do you see these decisions applying to all businesses who have a Facebook page who may allow their users to put comments up?

Yes absolutely it applies to all Facebook pages used to promote products or companies or brands.  And so even smaller businesses that typically wouldn’t be engaged in traditional print and radio and TV advertising and may just have a Facebook page and a website, are caught by these rules.

Well John also last year we saw another case that found an allergy company was responsible for its users misleading and deceptive testimonials, is this a trend that we’re seeing more companies being held responsible for user comments?

Yes it is a trend, I guess if you call three recent cases a trend.  The case concerning the allergy products last year was a Federal Court case and has very strong language in it in relation to user testimonials and the obligations on the Facebook page owner to take them down.  People wondered if that was just an aberration would that be the start of a trend and now we’ve had two more decisions recently following that.  So it does look like it’s a trend and it will continue because Facebook’s becoming more important for brand owners and its being used by many companies for advertising purposes.

Well it seems then that companies are going to have to start monitoring their social media more carefully and looking at user comments, what kind of recommendations would you make for businesses when it comes to managing their social media platforms?

First don’t put up false testimonials or statements on your own Facebook page, don’t have employees or advertising executives pretending to be users and post what look like user testimonials on your Facebook page when in fact they’re not or don’t have your own employees post fake testimonials.  You have to have a monitoring program and out of the VB decision, VB said they’re going to be monitoring it every day, twice a day, and I think that’s probably appropriate if you’re involved in the alcohol industry, maybe you could do it a little bit less of other products that are less controversial.  Also depends upon the number of hits you get, the number of users you’ve got using the Facebook page, a more popular page will need to be monitored more than a less popular page.  And the people who do the monitoring should be trained to understand what’s legal, what’s illegal, what’s inappropriate and what the best way to respond is, should they be taken down or could you come back and post a comment in reply and say that may be your view but that’s a view we don’t endorse, maybe someone who’s trained could post a reply rather than taking down a comment.  But you need people who are sophisticated enough to understand the rules and be able to react fast.

Well John you also mentioned there employees that will be either posting fake testimonials or posting on the company’s website page, is it something that employers should be looking at having a policy around covering this issue as well?

Yes and there’s a trend developing where many companies have got a social media policy which sets out what employees can and can’t say on social media which includes the company’s Facebook page for example but also the employee’s own pages and so it’s becoming common practice, and I think good practice to have a social media policy.

Well John some good tips for companies there looking to manage this increasingly complex area, thank you so much for joining us today.

Good no problem.

That was John Swinson who’s a Partner in the Intellectual Property and Technology Group at King & Wood Mallesons.  Listeners if you have any questions for John you can send them through either using the panel that appears on your screen or of course via email to law@brrmedia.com.