The Advertising Standards Bureau (ASB) has recently issued determinations in response to two complaints regarding user generated content (UGC) (including both comments and photos) posted by end users on Facebook Pages administered by well known alcohol brands, VB and Smirnoff. In both cases, the ASB concluded that UGC content posted on Facebook Pages is an "Advertising or Marketing Communication" within the meaning of the AANA Code of Ethics (the AANA Code) and is therefore subject to the AANA Code in the same way as traditional forms of advertising (eg TV commercials and billboards). In each complaint, the brand owners argued that treating UGC as advertising would be “unduly onerous” and “commercially unfeasible” given the degree of control they have over the posts. However, the ASB held that Facebook is a communication tool over which the advertiser has a “reasonable degree of control".
The decisions raise many issues regarding how Facebook Pages (and potentially all social media, including Twitter) are to be moderated and to what extent. Usually, the burden is on the Page owner to moderate Facebook Policy Violations (e.g. hate speech, violent posts, bullying, pornography, racist or offensive comments). However, these decisions suggest that brand owners now have an obligation to police UGC beyond those considerations and to consider, in each case, whether UGC is compliant with the AANA Code, as well as the Australian Consumer Law which prohibits misleading and deceptive conduct. Brand owners who operate a Facebook Page should therefore consider their existing social media policies regarding moderation of UGC and consider strategies such as an automatic takedown rule or the use of an external interface moderation system. While daily monitoring (followed by prompt take down) is arguably a reasonable approach and will help to reduce a brand owner's exposure to legal action, there still remains the risk of adverse PR in the event that the post vetting process fails.