In 2015, according to Sensis, 56% of large and 31% of small-to-medium sized Australian businesses had a social media presence of some kind. Of these, more than half reported measuring the success of their social media investment by their numbers of 'likes', followers and subscribers.
But how do businesses go about getting 'likes' – and does the law ever become involved with regulating this?
The Washington Post recently reported that tenants in a Salt Lake City apartment building were threatened with a breach of contract if they didn't 'like' their apartment complex on Facebook. This was communicated to tenants via a notice taped to their doors, despite the fact that many of the tenants had already signed their leases.
Would such an approach ever be permitted under Australian law? In other words, could an undertaking by one party to 'like' another party's social media page be a binding obligation under a contract?
Notices on the door: a valid contract?
The first issue with the approach used by the Salt Lake City apartment complex concerns a basic principle of contract law: the incorporation of subsequent documents into a contract.
In some circumstances it is possible to incorporate (via an express contractual provision) the terms of a separate document into a contract which is being signed. This 'incorporation by reference' generally only applies where the incorporated document is a standard set of terms and both parties have had a reasonable opportunity to familiarise themselves with the provisions before being bound. The contract must clearly and expressly refer to the separate document to be incorporated.
However, in this case, the apartment complex effectively attempted to unilaterally (without the tenant's consent) add a new term into the lease agreement, without providing any new promise in return (or 'fresh consideration'). As the addendum was not properly incorporated into the original lease agreement and was not capable of itself forming a new contract, it would not likely be enforceable under Australian law.
Even in the case of a tenant who had not already signed the lease agreement, the apartment complex would likely have found it difficult to prove that leaving a notice on the door adequately brought the term to the tenant's attention and was sufficiently clear as to its legal effect (despite not being referred to in the lease agreement), such that the term was successfully incorporated into the contract once it was signed. A tenant could also have argued that, despite not having signed the lease, they had already accepted by conduct the written terms that had been provided to them, and that it was not open to the landlord to subsequently incorporate additional terms into the written contract.
But what if this term was successfully incorporated into, or included in, the original contract? Or what if the requirement was imposed on tenants purportedly under a term in the original contract that allowed the landlord to give directions to tenants during the lease period?
Well, a clause in a contract mandating that someone 'likes' a certain Facebook page would still face a number of legal obstacles.
Social media access and discrimination law
One potential issue is the impact of discrimination legislation on the contract. Not all people use social media, and it is more likely that a person who does not do so belongs to identifiable groups in the community, such as the elderly or those with disabilities.
Under the Age Discrimination Act 2004 (Cth) and the Disability Discrimination Act 1992 (Cth), direct and indirect discrimination on the basis of age or disability status (respectively) are prohibited in many contexts, including the provision of goods, services or accommodation. All Australian states also have their own anti-discrimination legislation.
Indirect discrimination can be found where a condition or requirement has the effect of disproportionately disadvantaging people who possess a certain attribute. This may apply in instances such as this, as a contractual requirement to 'like' the apartment on Facebook is likely to have the effect of disadvantaging older residents by causing them extra inconvenience or hardship; for example, elderly people may be less likely to have access to a computer. Similarly, some people with disabilities may be less able to comply with the requirement.
Unfair contract terms and the ACL
It is also possible that consumer protection legislation prohibiting unfair contract terms could render such a clause unlawful where the contract is a consumer contract. Pursuant to section 24 of the Australian Consumer Law, a term is unfair if, taking into account the transparency of the term and the contract as a whole, the term:
- would cause a significant imbalance in the parties' rights and obligations under the contract;
- is 'not reasonably necessary in order to protect the legitimate interests' of the party who would be advantaged by the term; and
- would cause financial or other detriment to a party if it were to be applied or relied upon.
Arguably, a requirement to 'like' a social media page satisfies the second criterion and (taking into account the discrimination issues discussed above) the third. However, it may be more difficult to argue that the first criterion would be satisfied here.
On the other hand, a term that allowed a landlord to give directions to the tenant, if it was broad enough to permit unilateral directions of this type, may be more likely to be found to be unfair because it could be used to impose onerous additional conditions on the tenancy.
So what ended up happening in Salt Lake City? After receiving multiple complaints from tenants, the apartment complex withdrew the addendum and apologised for the incident. 'Likes' may be a key measure of social media success, however, businesses should ensure that those 'likes' are legally (and ethically) procured to avoid the possibility of their marketing strategies backfiring. The apartment complex in this case ultimately shut down its Facebook page after receiving a 1.1 star rating and being flooded with negative comments.