The Advertising Standards Board decided in a recent case that a Facebook page may be considered a ‘marketing communication tool’ when used by an advertiser. 


This means that advertisers are responsible for ensuring that all content on their promotional Facebook pages is in compliance with the Advertiser Code of Ethics, including content uploaded to the advertiser’s pages by other Facebook users.

Background

The Advertising Standards Board (“ASB”) is an industry-funded body responsible for evaluating complaints against advertisements and advertisers and applying Section 2 of the Advertiser Code of Ethics (“the Code”) of the Australian Association of National Advertisers (“AANA”) to settle questions of taste, decency, health, and safety in advertising.

The details

In this case before the ASB, a complaint was lodged in relation to the official Smirnoff Vodka Facebook page.  The complaint raised concerns of apparently ‘fan’-generated obscenity, sexism, racism, and depictions of irresponsible drinking, and argued that Diageo, Smirnoff’s parent company, has an obligation to police the activity of its fans on the Smirnoff Facebook page.

The complaint referred to a 2011 Federal Court case (ACCC v. Allergy Pathways) where it was found that a company could be held responsible for misleading claims about its products made by fans on its Facebook pages and Twitter feeds.  The complaint against Smirnoff made use of this recent case in arguing that the ASB is capable of holding Diageo liable for breaches of the Code made by third parties on its brands’ social media sites.

In its response to the complaint, Diageo argued that Smirnoff’s Facebook page was not a medium for advertising or marketing, but rather a networking tool facilitating communication between company and customer.  It stated that while some of the content on Smirnoff’s Facebook page is said to be advertising, much of it is not, and that all content which is ‘paid-for’ advertising is in compliance the AANA and the Alcoholic Beverage Advertising Code.

The Decision

Ultimately, the ASB determined that a company’s Facebook page is a marketing communication tool if it is used “to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose that product,” As was found to be the case of Smirnoff’s Facebook page.  However, it also determined that the same page, while subject to the Advertiser Code of Ethics, was not actually in breach of it.

The impact

Despite Smirnoff’s Facebook page being given a clean bill of health in this instance, this case before the ASB has important implications for the way companies should manage their social media presences in future.  There is a significant risk that any promotional use of a social media network renders the whole of the promoter’s use of that network subject to regulations relating to standards in advertising and marketing, as well as liability under consumer protection laws for misleading conduct .  Furthermore, those regulations apply not just to the promoter’s content, but to contributions by other network users in the promoter’s online space.   Management of fan contributions to companies’ social media sites is no longer simply an element of best practice in online marketing, but is now a legal requirement.