UC How To: Navigating Online Content, Claims & Conflict

To help businesses manage compliance and liability risks while operating in online channels, we’re prepared our new UC "How-To" Guide on Online Content, Claims & Conflict, which you can download from our Resources page.  This blog explains some of the overarching 'what's and 'why's that underpin our "How-To" guide and why compliance in online activities should be a priority for your business.

Knowing your risks and opportunities in advertising and engaging with consumers online (including through social media) is an absolute essential for every business these days. Navigating the rules and requirements in this space can be even more challenging for regulated businesses, including health and food businesses and those who straddle the divide, because of the complex system of laws, regulation, and industry/professional standards that apply. There are risks and requirements that every business needs to be aware of in everything they do online, from online sales to paid advertising, trade promotions, influencer marketing, content creation, comments and consumer engagement, encouraging or using reviews, and complaint management.

The first step in managing risk and opportunity is to understand what matters for your business, and then what you can do about it.

That’s why, in this UC “How-To”, we’ve brought broad industry knowledge and compliance expertise from across our UC Network of experts to give you a starting point to train yourself and your team to better identify and manage liability in online operations. 

WHAT ARE WE DEALING WITH HERE?

We generally find that sales and advertising is a more complex activity in online spaces than it is ‘IRL’. This is principally because the same laws generally apply to an online ad or post as they do to your traditional print/media channels and your product labelling or point of sale materials, but most businesses have far looser controls in place for online materials and communications and activity in that space moves (because it has to move) at a much faster pace. Fame (or infamy) might only last for 10 seconds, but the internet is forever - and loose lips and fingertips can sink your business in less than the time it takes for a Tik Tok star to go viral and be forgotten again.  

In all actions a business takes, we have to consider the general principles that come from the Australian Consumer Law (ACL), including misleading/deceptive conduct and the consumer guarantees. The golden rule, “do not mislead or deceive” can itself seem deceptively simple. In our How-To, we provide a breakdown of what constitutes misleading or deceptive conduct and practical tips on crafting claims and content to minimise risk.

The things we say and do online are real-world actions, though they might not always seem that way, and they are actionable with real-word consequences including regulatory enforcement and civil (or even criminal) penalties, loss, costs, and damage (including damage to reputation and loss of opportunities). Our How-To guide looks at some of the key liability watch outs, including intellectual property infringement, defamation, discrimination, and the effect of ‘terms of use’.

Regulated businesses need to be aware that risks and requirements are higher hurdles to clear for them because the consequences of getting it wrong are generally more severe (injury, death, and other serious damage to consumers). Our “How-To” covers key rules for businesses in the health and food & beverage industries. Consider industry/supply-specific regulation applicable to your business, as outlined below:

• Health services: Health Practitioner Regulation National Law applies, as well as state Health Acts. Profession-specific Codes of Ethics and Professional Practice Standards apply.
• Therapeutic goods: Therapeutic Goods Act and Advertising Code apply. The National Health Act applies to PBS medications.
• Food: FSANZ Food Standard Code and state Food Acts apply. Liquor licensing legislation applies as relevant.
• Other/General - voluntary codes & guidance: The AANA Advertiser Code of Conduct applies to online advertisements (including posts and content). The Alcoholic Beverages Advertising Code and specific Marketing to Children policies may also apply. Consider also guidance from the ACCC, including on “Greenwashing” and environmental claims, and other state and federal regulators as appropriate.

WHY SHOULD YOU CARE?

Social media posts and blogs/content pieces are still ads to which advertising regulations (including claims permissions and restrictions) apply if promoting a business or product. Anything that your business posts online, whether original or reproduced content, must comply with the relevant law and regulations, and must be reasonable, appropriate, accurate, and substantiated by sufficient evidence. Failure to do so could put your business in breach of the ACL, as well as industry-specific labelling and advertising laws. 

Penalties for misleading/deceptive conduct are now up to the greater of: (a) $50 million; (b) 3x benefit received from the conduct; or (c) 30% of your business’ adjusted turnover (revenue) during the period of the breach.

For regulated businesses, you need to also consider additional penalties for non-compliance which can be in the hundreds of thousands of dollars, costs including for the the withdrawal or recall and destruction of products (including the inability to sell existing stock), and critical consequences like suspension or loss of practising/business licenses, and other sanctions.

Though the conventional - and practical - wisdom is that claims and content published online is lower risk overall because you have the ability to act quickly to remove a post and remedy the breach, consider:

(a) it may not be possible to remove all copies of content (which is typically archived by search engines and other aggregating online services) - especially if published to a platform you do not control; and 

(b) the act of taking down that content may not be sufficient to remedy the real-world damage if someone gets hurt or suffers a loss because of your actions.

The internet is not, in reality, the fantastical lawless wasteland it can sometimes seem, rife with horrible trolls, draconic ‘flame wars’, and eerie ‘deep-fake’ deceptions. Sure, those things still exist, but just as you cannot operate outside the law on the internet, neither can those who attack you or your business unfairly. In our “How-To” we highlight intellectual property infringement, defamation, discrimination, and terms of use because these can be threats against you as much as weapons in your defence.

You’re not in this alone. Universal Counsel is always on call and always in your corner. Take a look at our “How-To” guide and then give us that call any time.

HOW SHOULD YOU PREPARE?

This is where UC can help make your life easier –

1. Educate yourself and your people. When employees are equipped with a comprehensive understanding of online risks and requirements, and what to do when things go wrong, they can confidently action your business’ initiatives and objectives with the quick responsiveness this forum demands. Learnings should be reinforced through regular training. 

Download our UC How to: online content, claims & conflict guide 

2. Put in place appropriate policies and procedures. Know your business’ appetite for risk and available resourcing and apply these to risk management processes as appropriate. Who needs to sign off - on what - and who has the authority to approve action in response when something goes wrong?
   
   
3. Plan for the worst, work towards the best. Make sure you have appropriate insurance in place and let UC help in putting together your tailored crisis response team - including legal and PR experts and other essential supports for your business.

WHERE TO NEXT? WE’RE HERE TO HELP.

Our UC Network experts are experienced in helping businesses to navigate through complex regulatory landscapes, both ‘IRL’ and online. 

Here are some key ways we can help you today:

• Training: Universal Counsel can tailor a practical compliance training program for your business across a broad range of topics.
• Handling complaints and negative attention: whether from a competitor, a consumer, or a crazy, we can help you use both practical and legal tools to deal with threats, misleading and malicious reviews, and other bad behaviour. 
• Disputes: Our team has a strong success record in resolving disputes (getting blocks removed and page access and functionality restored) and assisting with commercial negotiation with online platforms including Facebook and Instagram. We also regularly support clients in enforcing their own rights online against IP infringement and other actions damaging to your business.
• Content review: we regularly review advertising and promotional materials and advise businesses on compliance through the lens of our deep commercial experience and legal expertise across regulated industries. We can provide regular ‘sign-off’ support as well as focused help with important projects, including website and social media compliance audits. We also provide end-to-end trade promotion support. 

Contact us at contact@universalcounsel.com.au today to discuss online content, claims, and conflict solutions. 

Universal Counsel: we help businesses that do get things done. Always on call, always in your corner.

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