User generated Facebook comments subject to advertising
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
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
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
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)  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
We would be more than happy to assist with drafting social media
and digital communication policies and guidelines where
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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