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On 6 August 2012, the Advertising Standards Board (ASB) released
two determinations which cast doubt on the viability of using
social media for marketing purposes1.
For the 1st time, the ASB determined that a company can be
responsible under the AANA Advertiser Code of Ethics (the Code) for
comments made by the public on the company's Facebook
site.
There were 2 key issues considered by the ASB:
whether the Code applies to public comments on a
company's Facebook site, and
if so, whether the particular comments breached the Code.
The ASB determined that the Code did apply to public comments on
a company's Facebook site and that a number of the comments
on the VB Facebook site breached the Code2.
These determinations pose a concern for companies.
Many companies use social media sites for marketing purposes
and allow public comment to be posted on those sites.
As a result of these determinations, companies should now
actively and critically monitor public comment on their social
media sites to determine if there are any breaches of the
advertising standards codes (and potentially other laws).
The staff undertaking this task should be sufficiently aware of
the applicable advertising standards.
They should quickly pull down any comments that appear to
breach the advertising standards.
Whether this is commercially practical is yet to be seen.
The determinations appear to be particularly onerous and one
might say, not in keeping with the commercial realities of business
and social media.
The ASB does not have the same force or powers as the ACCC or
ASIC so a more concerning issue is whether the authorities and
courts will adopt a similar approach to that adopted by the ASB.
The issue could arise in relation to posts by the public (or indeed
competitors or lobbyists) on a company's social media pages
which are defamatory, misleading or deceptive, or in breach of a
court undertaking preventing publication by the company.
At this stage, decisions by the courts in relation to these laws
have not been consistent or as onerous as the above ASB
determinations. The complaint in the above ASB determinations made
reference to a 2011 Federal Court decision (ACCC v Allergy Pathway
Pty Limited3). Allergy Pathway was held responsible for
breaching a court undertaking not to publish misleading material.
The breach concerned material posted on the company's social
media pages by 3rd parties. The Court held that Allergy Pathway was
responsible given that it knew of the public comment and made a
decision not to remove the offending communications. The decision
does not extend as far as saying a company will always be liable
for public comment on its social media pages. Justice Finkelstein
made the following comments:
The effect of these cases (on defamation) is that merely
facilitating the commission of a wrong will not result in liability
but it is another thing to procure or conspire in the commission of
the wrong, in which case liability may be imposed, particularly if
the procurer is aware of the material being published and has
accepted general responsibility for its publication...A somewhat
similar approach has been applied in contempt proceedings.
At the very least, companies need to approach social media use
with caution and develop policies for monitoring and use.
Footnotes
1 Case numbers 0271/12 (Fosters Australia,
Asia & Pacific - VB) and 0272/12 (Diageo Australia Ltd
– Smirnoff)
2 The ASB determined that the Code applied to
public comments on the Facebook site. Specifically, it determined
that the comments on the VB Facebook site fell within the meaning
of 'advertising or marketing communications' under the
Code, given that:
'the Facebook site of an advertiser is a marketing
communication tool over which the advertiser has a reasonable
degree of control', and
'the site 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.
The ASB determined that the comments breached provisions
of the Advertiser Code of Ethics concerning:
discrimination, racial and other
vilification;
sexuality and nudity;
strong/obscene language.
3 ACCC v Allergy Pathway Pty Limited {[2011]
FCA 74]
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