New features on Instagram now allow businesses to post about their products with tags that embed pricing information, product feature descriptions and website links. Whilst this will allow the platform to play a larger role in direct product marketing, the changes are a timely reminder for businesses to review their social media practices for compliance with the Australian Consumer Law (ACL).
To the extent representations made in embedded tagging on social media platforms are broader than they otherwise would be, there is a risk such representations would be considered misleading and deceptive. Accordingly, businesses should ensure that all product information included in advertisements is true, can be fully supported, is regularly updated and consistent across all advertising mediums, especially where social media posts link to websites.
Recent amendments to the Australian Association of National Advertisers Code of Ethics also require advertising and marketing communications to be ‘clearly distinguishable as such to the relevant audience’. Sponsored posts by ‘influencers’ should therefore disclose the sponsorship using either inbuilt ‘paid’ or ‘sponsored post’ descriptions or the hashtags ‘#ad’ or ‘#spon’, otherwise this risks misleading consumers about the authenticity of product reviews or endorsements. Where posts are not clearly marked as sponsored, businesses should assess whether disclosure obligations arise for their content by considering whether they have a reasonable degree of control over the material and whether the material draws the attention of the public in a manner calculated to promote the product.
‘Hashtags’ are a long standing feature that have been used to greatly improve traffic. However, they are increasingly being viewed as ‘conduct’ that is capable of enlivening the provisions of the ACL. Accordingly, businesses should ensure that their hashtags correlate with the product they are selling and would not lead consumers to form a mistaken belief about the product’s features.
Adverse publicity is a fear many businesses have and considering the potential for negative reviews to ‘go viral’, there is temptation to delete these posts. As a general rule, these reviews should not be removed as there is a risk of misleading consumers about the general body of the product reviews. Similarly, there are reputational risks associated with not responding to negative consumer comments in a balanced and fair way and this can often be more damaging than the initial review. With this in mind, businesses should establish clear ‘house rules’ that apply to posts on social media pages and these should be prominently featured on the business’s social media pages.
This blog was co-authored by Valiant Warzecha, Jessie Buchan and Melinda Upton.