Two recent decisions of the Australian Advertising Standards Board have confirmed that company Facebook pages are marketing communication tools and companies are responsible for ensuring any material that a third party uploads complies with advertising codes and other laws. In light of these decisions, companies must ensure they have processes in place for monitoring and moderating their social media pages.
What is the Australian Advertising Standards Board?
The Australian Advertising Standards Board (“ASB”) is an industry-funded organisation which receives and evaluates complaints about advertisements involving questions of taste, decency and health and safety.
In evaluating these complaints, the ASB applies Section 2 of the Australian Association of National Advertisers (“AANA”) Code of Ethics (“Code”), which provides that advertising or marketing communications:
- should not portray people or depict material in a way which discriminates against or vilifies a person or section of the community on account of race, ethnicity, nationality, gender, age, sexual preference, religion, disability, mental illness or political belief;
- should not use sexual appeal in a manner which is exploitative and degrading of any individual or group of people;
- should not present or portray violence unless it is justifiable in the context of the product or service advertised; and
- should only use language which is appropriate in the circumstances.
Under the Code, an advertising or marketing communications means:
“any material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, and over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organization or line of conduct.”
A complaint was lodged in relation to the official Smirnoff Vodka Facebook page, managed by Diageo Australia Ltd. It raised concerns of third party generated obscenity, sexism, racism, and depictions of irresponsible drinking. The complaint referred to the case ACCC v Allergy Pathway Pty Ltd (No 2)  FCA 74, where it was found that a company could be held responsible for misleading claims about its products made by third parties on its Facebook pages and Twitter feeds.
Diageo Australia Ltd argued that Smirnoff’s Facebook page was not a medium for advertising or marketing, but rather a networking tool which facilitated communication between company and customer.
The ASB held 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”. However, it also determined that the same page, while subject to the Code, was not actually in breach of it.
A complaint was lodged in relation to the the official Facebook page for Victoria Bitter (“VB”) beer, managed by Fosters Australia. It raised concerns that the comments on the page were racist, sexist and discriminatory and were accessible to users under the age of 18. The complaint relied on the same 2011 Federal Court case as above.
Fosters Australia argued that the nature of Facebook is that it is a dynamic, informal, easy to use tool that allows people to subscribe to communities that are of interest to them. It submitted that the third party comments were not advertisements because Fosters Australia did not have a reasonable degree of control over them.
In upholding the complaint the ASB stated that “as a Facebook page can be used to engage with customers, …the Code applies to the content generated by the page creator as well as material and comments posted by users and friends…on this Facebook page, the user comments identified in the complaint were posted in reply to questions posed by the advertiser”. The ASB acknowledged the difficulties associated with monitoring social media pages.
Australian Competition and Consumer Commission position
The ACCC has indicated that it would take a similar approach in relation to third party content when applying consumer protection laws. It has suggested that large companies should become aware of and remove content in breach of the law within 24 hours of publication. Smaller companies should act as soon as they become aware of the offending content.
Impact of decisions
These cases have important implications for the way companies manage their social media presence. There is a significant risk that any promotional use of a social media platform renders the whole of a company’s use of that platform subject to advertising and marketing codes, as well as liability under consumer protection laws for misleading conduct. Additionally, those codes apply not only to company content, but to contributions by third parties on the company’s pages.
What do brand owners need to do?
Be familiar with relevant laws, codes, guidelines and website terms and conditions
You should be aware of your obligations under advertising and marketing codes and consumer protection laws, as well as any laws or regulations specific to your industry. You should also be familiar with the Communications Council’s Best Practice Guide Social Media Code of Conduct and the AANA Best Practice Guideline.
You should be familiar with the terms and conditions of any social media pages you use. For example, Facebook’s Terms of Service require that posted content is not “hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence”.
Develop and display “house rules” for your social media pages
You should have clear guidelines which outline the purpose of your page and provide guidance as to what type of material is appropriate and what material will be removed.
You should monitor content posted on your social media sites on a regular basis (although the frequency that this regular monitoring should be undertaken will depend on your particular circumstances).
Where you post content, you should actively monitor any responses. The AANA suggests content should be actively monitored for a period of two hours following a posting. After this, the content should be actively monitored at least once every 24 hours for the next few days. Additional monitoring may be necessary if increased traffic is expected (eg. if there is a competition on).
Users should be encouraged to report any content they feel is inappropriate. Where possible a mechanism should be provided for this (eg. a “report inappropriate content” button).
You should ensure that inappropriate content is removed or responded to in a timely manner. Moderation should be conducted by staff that are familiar with the relevant laws, codes and guidelines and are capable of making reasonable judgments in respect of content.
Given the ACCC’s comments regarding a 24 hour take-down time for offending content, best practice for large companies would be to monitor social media during business hours. You should consider employing an agency to moderate over weekends and holiday periods.
Any content that contravenes the Code, the Australian Consumer Law or any other relevant law or guideline should be removed or responded to in such a way as to remove the issue. This may include:
- racist, sexist, pornographic or discriminatory content;
- abusive, harassing, bullying, defamatory, obscene or threatening comments;
- obscene images or nudity;
- comments encouraging or supporting illegal activities;
- comments that are misleading or deceptive;
- content which raises privacy or confidentially issues; and
- content which infringes a person’s intellectual property rights.
For example, if a third party posts misleading material, you could take down that material or post a response to that material that outlines that the previous post may be misleading and presents the correct message.
Use website features
You should consider using available website settings to limit your risk exposure. For example, Facebook enables page administrators to restrict certain account holders from posting. Administrators can also place age or geographic restrictions on their pages or use a filter to restrict posts that contain obscene language.
If the social media site has a notification system, you should consider using this to notify you when your postings receive responses.
Use social media management tools
You may also want to investigate the social media monitoring tools available. These will allow you to search, track and analyse how your brand is being discussed on social media.
Management of third party contributions to social media sites is no longer just an element of best practice in online marketing, but a regulatory requirement. By taking the steps outlined above, you will be minimizing the risk of your social media pages being seen as non-compliant with the recent ASB rulings.