User generated Facebook comments subject to advertising standards

The Advertising Standards Board has handed down two landmark decisions, raising the bar on social media responsibility and creating further challenges for businesses.

Complaints were made against the VB beer and Smirnoff vodka Facebook pages regarding comments and material posted by Facebook users. For the first time, the Board found that posts by third parties on a Facebook page constituted advertising, and must comply with industry guidelines and consumer law:

"A Facebook site of an advertiser is a marketing communication tool over which the advertiser has a reasonable degree of control and could be considered to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose directly or indirectly that product… As a Facebook page can be used to engage with customers, the Board further considered that the Code applies to the content generated by the advertisers as well as material or comments posted by users or friends."

VB Facebook page

The complaints concerned comments from users in reply to questions posed by VB. These comments were found to involve coarse language, the promotion of irresponsible drinking and forms of discrimination in relation to gender, race and sexual orientation. For example, one user commented, "is a man's job women should be chained 2 da kitchen! lmfao"(sic) in response to a post from VB about brewing being every man's dream job. The Board determined that Fosters Australia was responsible for the comments made by users and in breach of the Advertiser Code of Ethics.

Smirnoff Facebook page

The complaint against Diageo concerned images on the Smirnoff Facebook page depicting the excess consumption of alcohol. The images showed young people at events such as musical festivals, holding Smirnoff branded drinks. Diageo argued that the Facebook page was not a medium for advertising, and was instead a tool for communication between the business and its customers, similar to TV or radio. The Board disagreed and upheld its view that the Facebook page was a marketing tool and constituted advertising. Ultimately however, the Board dismissed the complaint as the people in the images appeared to be "confident and in control and no images of people appeared to indicate an excessive consumption of alcohol."

Implications for your business

These decisions build on the recent decision of the Australian Competition and Consumer Commission which found that a health company was responsible for the misleading comments made by users on its Facebook and Twitter sites (see ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74). They are also in line with the continued growth of litigation in relation to social media, and increasing obligations being placed on businesses to monitor and control their presence on social media.

These decisions highlight the need for your business to continually monitor its social media platforms and remove any inappropriate or offensive comments as quickly as possible. This is best achieved by:

  • ensuring you have a range of policies and guidelines in place to regulate digital communication;
  • training employees to recognise appropriate and inappropriate use of social media;
  • communicating expectations with marketing agencies who may be managing your social media; and
  • utilising any filters, restrictions and online tools available.