Most Read Contributor in Australia, September 2016
In a recent decision the Advertising Standards Board
(ASB) determined that the Advertiser Code of
Ethics applies to content published by third parties on social
media forums, such as Facebook. As a result, advertisers will be
responsible not only for the content that they publish on Facebook
but also for content (such as comments) posted by their fans and
friends on Facebook.
The matter before the ASB concerned content on the official
Smirnoff Facebook page. While the ASB ultimately decided that the
content did not breach the Advertiser Code of Ethics, it made it
clear that material published on Facebook is advertising
– irrespective of whether it has been published by the
advertiser or a third party.
Smirnoff unsuccessfully submitted that the material posted on
its Facebook page (as opposed to its paid advertising on Facebook)
was not advertising. Smirnoff argued that, unlike paid advertising,
its Facebook page is a "tool to network with adult
consumers of legal purchase age for alcohol" and that
those who "like" or are fans of its Facebook page were
already Smirnoff consumers.
Under the Advertiser Code of Ethics, advertising or marketing
communications is defined as:
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
As Smirnoff had a reasonable degree of control over its Facebook
page, used the page as a marketing communication tool and as the
page could be considered to draw attention to and promote Smirnoff
products, the ASB determined that the Advertiser Code of Ethics
extended to the Facebook page.
Beware of the "like"– extending the reach
of advertising by social media
The ability to "like" Facebook content is a powerful
tool. When a Facebook user "likes" content on a
company's Facebook page, any subsequent comment is pushed onto
that user's newsfeed and is visible by all of their
Many companies engage with their audience by inviting them to
"like" their products, updates or upcoming events on
their page. While "liking" allows advertising material to
quickly spread among Facebook users and their friends, content that
is in breach of the Advertiser Code of Ethics or consumer law can
quickly go viral and become out of control.
Companies should use the privacy settings to ensure that they
monitor the content that is posted by the public on their Facebook
page. The ability for others to tag photos on a company page can be
disabled. Security settings can be modified so that an
administrator has the right to review a pending post and whether or
not it will be published on the company's wall.
Looking forward – the need to monitor your social
Social media is an effective and powerful advertising tool.
Brands are increasingly taking to social media forums such as
Twitter and Facebook to communicate with potential and existing
Liability for misleading and deceptive conduct has already
extended into the world of social media. In a decision handed down
in 2011, the Federal Court fined a health company for failing to
remove misleading and deceptive claims that had been posted, by
users, on its Facebook page and Twitter feed. The ACCC has
announced that it expects large companies to remove comments in
breach of the law within 24 hours so vigilance is required.
Ultimately, the Smirnoff decision has reiterated the need for
companies to monitor their social media pages regularly and with
vigour. Companies are responsible for material that is posted by
the public on their Facebook and Twitter pages. Content that may be
in breach of the law must be removed immediately. Companies can no
longer ignore comments made by the public on their social media
Authors: Ben Patrick, Senior Associate &
Roxanne Burd, Lawyer
Holding Redlich's dispute resolution and litigation team aim
is to achieve their clients' objectives. They pride themselves
on working with clients as a team. They consult from the outset
with their clients to identify their objectives and provide clear,
concise and practical advice to achieve their goals.
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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