Last week, the Interactive Advertising Bureau Australia (IAB) released Social Advertising Best Practice Guidelines (Guidelines) for paid social advertising.  We’re pleased to see IAB helping members navigate the Social Media Wild West.  However, we suggest that the Guidelines be further reviewed to mitigate some continuing legal risks.

The IAB is the peak industry body for online advertising in Australia.  According to its website, one of its four core objectives is to “develop, coordinate and promote industry standards and guidelines that make interactive advertising a simpler and more attractive medium for agencies, advertisers and marketers.”   It is a registered not-for-profit organisation, with nearly 180 registered members including advertisers, media owners, agencies and other online service providers including eBay Australia and New Zealand Pty Ltd, Facebook Australia, Fairfax Media, LinkedIn, Mars, McDonald’s, Pfizer, Procter and Gamble, Tourism Australia, The Walt Disney Company and Yahoo!7.

The Guidelines aim to provide “information, structure and clarity on social media as a marketing vehicle…[and] best practice guidelines and examples around social media planning, measurement framework, consumer policies for social ads and legal and regulatory considerations.

We like the way the Guidelines include:

  • screenshot examples;
  • a detailed section on privacy considerations;
  • a section on the Social Media Planning Process which encourages advertisers to engage in strategic planning by considering:
    • whether a crisis management plan is required;
    • who will be posting content;
    • who will be monitoring content;
    • what is the process of escalation, and
  • links to a selection of the social media platforms’ terms and conditions which must be complied with (such as Facebook’s Pages terms and ad Guidelines and Google’s Privacy Policy).

However, there are aspects of the Guidelines we think could do with some fine tuning.  We’ve set out some illustrations below.

Potential Legal Liability

The 28-page Guidelines contain just over half a page of information addressing Legal and Regulatory considerations, including one paragraph on Potential Legal Liability, on page 20, which states:

Current legal opinion is that publishers are not responsible for user generated comments on social platforms such as Facebook until such time as they are notified of abusive comments and have an opportunity to further investigate and take any appropriate action.

In our view, this overstates the leniency Australian regulators are likely to afford companies actively engaged on social media.  Indeed, the leading decision of the Federal Court in this space (ACCC v Allergy Pathway (No. 2) (2011) 192 FCR 34) provides that a company becomes the publisher of misleading content as soon as it becomes aware of the content and decides not to remove it.  Here we consider the decision ‘not to remove’ as an immediate decision, and not one allowing much leeway.  We certainly don’t see scope for an investigative period.

This is consistent with two decisions of the Advertising Standards Bureau (ASB) from July 2012, in which the ASB held that the Facebook site of an advertiser is a marketing communication tool, and that advertisers would be responsible for user-generated comments (we posted about the ASB decisions here).   The ACCC publicly supported these decisions, stating that the ACCC may take action if content in breach of the Australian Consumer Law was left up for more than 24 hours.  The ACCC’s online guide to advertising and promoting your business on social media suggests that larger companies (or smaller companies with lots of Facebook fans) are expected to monitor their sites, become aware of problematic content soon after it is posted and to act promptly to remove it.  The best practice guidelines released by the Australian Association of National Advertisers (AANA) are even more onerous, and recommend that brand owners who are actively participating on social media should moderate at least once every business day, and for two hours immediately following a post by the brand (we posted about the AANA Guidelines here).

Sponsored Social Media Updates

Page 10 of the Guidelines addresses social media updates which have been paid for by a brand.  We agree with the Best Practice suggestion to identify these sponsored updates with the word “sponsored” or “paid”.  However, we think the example given could be clearer.

Have a look at it for yourself here:

Click here to view example.

If you saw a Facebook post with the letters “SP” in brackets at the end, would you know that means the post is paid for? We certainly didn’t.  And it looks like the United States’ Federal Trade Commission (FTC) wouldn’t be too sure about that either.

The FTC is the United States’ consumer protection agency (similar to our ACCC).  The FTC released its .com Disclosure Guidelines in March 2013, and they address this exact situation.  In a mock-up example of acceptable and unacceptable paid Tweets, the FTC Guidelines state that “Consumers might not understand that “#spon” means that the message was sponsored by an advertiser.  If a significant proportion of reasonable viewers would not, then the ad would be deceptive.”  We suggest adopting a similar threshold when considering whether your paid-for post disclosure is sufficient.   In that case, the FTC recommended use of ‘Ad:’ at the commencement of a sponsored Tweet.

Sponsored Blog Posts

Page 7 of the Guidelines deals with Sponsored Blog Posts.  We assume the IAB obtained consent from the blogger who owns copyright in the photo used (out of context) as an example, particularly as the blog’s terms state that “If you are not talking specifically about the content of my post, the use of my images are not allowed”.

The guidance provided here is accurate, but could be more detailed.  Again, it is interesting to look to the United States.  In 2009, the FTC released its Endorsement and Testimonial Guidelines, which are definitely worth a look, as they include lots of practical examples and address testimonial advertisements, paid bloggers and celebrity endorsements.  We particularly liked comparing the examples with what you see frequently on late night TV, and the example involving the chicken and the oven roasting bag [Eds: think ‘here’s one I prepared earlier’!].  The Endorsement Guidelines provide that:

  • a paid blog should reflect the honest opinions, findings, beliefs or experience of the blogger with the product or service;
  • the fact that the blog is sponsored should be identified right near the top of the post (so that it is not lost below the fold or if users click a link away from the post); and
  • the advertiser should ensure that the blogger does not include any express or implied representation that would be deceptive if it was directly made by the advertiser itself.

It is promising to see an industry body in Australia providing guidance on social media advertising using screenshot examples.  We would encourage more of this, as when it comes to social media, a picture paints significantly more than 140 characters.  As a developing area, it can be useful to take an occasional look at what overseas regulators are doing in the social media space.  It may also provide a sneak peek into what may be to come here in Australia.  For now, we’ll leave that to the tarot readers.