The Advertiser

Those online remarks, they can cost you dear


SOUTH Australian businesses need to exercise caution when posting informatio­n online.

The warning, from Adelaide commercial law firm Cowell Clarke, follows a recent decision of the Full Court of the Federal Court of Australia.

Cowell Clarke partner Rob Kennett said the legal spotlight was shining on stealth online posts since the judgment.

“When it comes to online posting, the legal distinctio­n between what is personal and what is business is blurring,” said Mr Kennett.

“Individual­s who post misleading or deceptive comments, even on seemingly independen­t social media accounts, may be in for a shock.”

The case, Fletcher vs. Nextra Australia Pty Ltd, related to an online post made in 2011 by Mark Timothy Fletcher – a 50 per cent shareholde­r and director of newsagency marketing group newsXpress.

Mr Fletcher’s comment on his Australian Newsagency Blog, which is not directly associated with newsXpress, was critical of the contents of a flyer circulated by an opposition business, Nextra.

The post was deemed to be misleading and/or deceptive and in contravent­ion of Australian Consumer Law. Mr Fletcher appealed the decision, but in April it was dismissed by the Federal Court.

“The court found that a post made by (Mr Fletcher) was ‘conduct in trade or commerce’, despite the fact that it was not posted on behalf of the company (he) worked for, nor posted on a blog directly associated with that company,” said Mr Kennett.

“Some business owners and employees may believe that by publishing under a private ac- count they have some form of immunity and, therefore, they can say what they like.”

Mr Kennett said companies and business owners needed to be aware Australian Consumer Law could apply to posts on personal social media and blog sites.

“This is particular­ly the case where the posts could be seen as an attack on another business and to not be made by an independen­t commentato­r,” he said.

Mr Kennett recommende­d businesses carry out regular monitoring to gauge what’s being said about their brands online. “Should a blog or social media post containing misleading or deceptive representa­tions be discovered, legal advice should be sought immediatel­y,” he said.

“The accessibil­ity of online content is too vast, and the investment in brand too great, to let it fester.”

He emphasised that all businesses – small and large – also needed to have their own policies and procedures in place to prevent staff from doing the wrong thing online.

“After all, an employer can be held liable for the action of their employee,” he added.

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