Websites (whether a company’s own website or its Facebook or Twitter sites) are amongst the first place regulators look at when conducting surveillance of an industry or a particular business.

Website surveys will focus on whether marketing activities are lawful or whether required disclosure is adequate.

In Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 Justice Finkelstein of the Federal Court fined Allergy Pathway Pty Ltd (formerly known as Advanced Allergy Elimination) and its director, Mr Paul Keir, $7,500 each for contempt of undertakings made to the court following a successful 2009 Australian Competition and Consumer Commission action for false, misleading and deceptive conduct.

Justice Finkelstein decided that Allergy Pathway and Mr Keir made prohibited representations about Allergy Pathway’s purported allergy treatment on its website and on Twitter, Facebook and YouTube in breach of those undertakings.

The representations included testimonials written and posted by clients on Allergy Pathway’s Facebook “wall” and testimonials written by clients and posted by Allergy Pathway on its website and Facebook and Twitter pages.

In his judgment Justice Finkelstein said: “while it cannot be said that Allergy Pathway was responsible for the initial publication of testimonials (the original publisher was the third party who posted the testimonials on Allergy Pathway’s Twitter and Facebook pages) it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of them and decided not to remove them. Hence it became the publisher of the testimonials.”

In addition to the fines, the court ordered that Allergy Pathway and Mr Keir be restrained from engaging in similar conduct for a further period of three years and to publish corrective advertising. Allergy Pathway and Mr Keir were also ordered to pay the ACCC’s legal costs on an indemnity basis.

The corrective advertising notice was ordered to meet specific criteria:

• it must be viewable by clicking a ‘click-through’ icon located on the websites and Facebook and Twitter pages;
• the ‘click-through’ icon must be located at the top of the homepage of the websites and Facebook and Twitter pages;
• the ‘click-through’ icon must contain the words “False and Misleading Conduct and Contempt of Court by Allergy Pathway – Corrective Notice Ordered by Federal Court of Australia” prominently in red text on a black background and the words “click here”; and
• the notice must occupy the entire page that is accessed via the “click-through” icon referred to above.