Australia: ASB says that Facebook content is Advertising

Last Updated: 29 August 2012
Article by Howard Rapke

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 conduct

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 friends.

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 media exposure

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 consumers.

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 pages.

Authors: Ben Patrick, Senior Associate & Roxanne Burd, Lawyer

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