New guidance issued by the Advertising Standards Authority (ASA) has confirmed that its Advertising Codes of Practice may apply to user-generated content on businesses' social media pages. The guidance reiterates the importance of formulating and following a clear social media moderation policy for businesses looking to promote their brands on social media; a step that the ASA says it would take into consideration in the case of a complaint.
The ASA's position appears to be consistent with recent Australian decisions (involving the brands Smirnoff and VB), though in recent media interviews the ASA's chief executive has described the guidelines as less far-reaching than the Australian position. However, the guidelines do confirm that content added by users to a brand's page on social media platforms such as Facebook can constitute advertising and may therefore fall within its jurisdiction.
In particular, user-generated content may be regarded as advertising (and, if it is, will be within the ASA's jurisdiction) if the business has:
- A "reasonable degree of control" over content on the page (which presumably would include the ability to remove or block user content)
- Adopted and incorporated user content into its own advertising (whether solicited or not)
- Solicited content (for example, by inviting people to enter a competition) that has resulted in content being posted on the business' page.
The ASA has clarified however that advertisers are not responsible for "fan pages" over which the advertiser does not have control.
In a nod to a recent Australian Federal Court decision (ACCC v Allergy Pathway), the ASA has also reminded businesses that user content on a brand's social media page which is false or misleading could put them in breach of the Fair Trading Act.
While still leaving elements of the guidelines open to interpretation, the position taken by the ASA means that businesses that operate social media pages would be well-served in ensuring that content posted by members of the public on those pages is not offensive or misleading and does not otherwise fall foul of the ASA's Codes of Practice. Many businesses would already regard it as prudent to take such steps for reputational and brand protection reasons, independent of any potential sanctions the ASA might now apply.