Australia: Like it or not – liability for posts on a corporate Facebook page is a reality

Last Updated: 18 August 2012
Article by Kathryn Edghill

The emergence of social media as a medium for corporate advertising and promotion has been widely embraced by the business community. In what will be, for many, a sobering determination by the Advertising Standards Board (ASB), a company's Facebook page has been recognised as being an advertising or marketing communication within the meaning of the Australian Association of National Advertisers' (AANA) Advertiser Code of Ethics (Code). Importantly, in a finding that echoes the view expressed by the Federal Court in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74, that a company can be liable for the posts of "friends" on its Facebook page, the ASB also found that "the Code applies to the content generated by the advertisers as well as material or comments posted by users or friends."

The ASB determination

The ASB is an industry body which is responsible for determining complaints made against advertisers that advertising or marketing communications breach the Code. The Code is a voluntary code of conduct which, among other things, requires advertisers to ensure that their advertising material does not depict material which is contrary to Prevailing Community Standards on health and safety.

In this case, complaints were received by the ASB that Diageo, the makers of VB and Smirnoff Vodka, had breached the Code by posting material, including user generated content, on its Facebook pages for VB and Smirnoff Vodka, which depicted sexism, racism and other forms of discrimination or vilification; irresponsible drinking and excessive consumption; obscene language; under-25 year olds consuming alcohol; and material that connects alcohol consumption with sexual or social prowess.

While the ASB did not find that the material on the Diageo Facebook pages breached the Code, it found that:

  • "the 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 such, "the Facebook site of an advertiser falls within the definition of an advertising and/or marketing communication being "any material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, and over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct."; and
  • as "a Facebook page can be used to engage with customers,... the Code applies to the content generated by the advertisers as well as material or comments posted by users or friends".

What the ASB determination means for corporate hosts of Facebook pages

The ASB determination is illustrative of acceptance of the view expressed by the Federal Court in the Allergy Pathways case that a company which allows material to be posted on its Facebook pages or other social media sites, can ultimately bear responsibility for such posts, should they breach the law.

For advertisers and other corporate hosts of pages on Facebook and other social media sites, the determination is a timely reminder that such sites are not above the law, but also that the price of interaction with your audience must be constant vigilance.

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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