Two recent decisions of the Advertising Standards Board (the
"Board") highlight the need for
Australian businesses to control and monitor their engagement with
social media. The first case considered Smirnoff Vodka's
Facebook page, operated by Diageo and the second case considered
VB's Facebook page, operated by Fosters Australia, Asia &
In the Smirnoff Facebook case, the Board was required to
consider whether comments about the product and photographs that
appeared to show underage drinkers were in breach of Advertiser
Code of Ethics (the "Code").
1 While the Board considered Diageo's Facebook site
and content to constitute advertising, Diageo was found not to have
breached the Code as its site did not include material contrary to
prevailing community standards.
In the VB Facebook case, the Board considered questions posted
by the advertiser and comments from members of the community that
included coarse language and sexual references.2 The
Board determined that the comments posted were obscene,
discriminatory toward women, derogatory, insulting and degrading to
homosexual members of the community, and Fosters Australia was held
to have breached the Code.
In both cases the Board held that Facebook and Twitter pages
fell within the definition of advertising or marketing
communication and, as such, the Code applies to material or
comments posted by users or friends, in addition to content
generated by the page creator.
These decisions are consistent with the position of the Federal
Court of Australia where it has been determined that statements
posted on a business' Facebook and Twitter pages by others
constituted publication by the business. 3 In ACCC v
Allergy (No.2) (2011) 192 FCR 34 it was held that the business
accepted responsibility for the publications when it knew of the
publications and decided not to remove them. Hence the business
became the publisher of testimonials on their Facebook and Twitter
pages from the time it became aware of their existence.
While there are real benefits to engaging with customers over
social media in a way that can boost a brand's reputation,
businesses need to be keenly aware that they cannot simply
establish a presence on a social media platform and then disengage.
Proper engagement over social media requires the establishment of
appropriate control mechanisms and frequent monitoring and scrutiny
of content to reduce the risk of breaching both advertising
standards and codes, and the Australian Consumer Law.
The important lesson from these recent decisions is that
Australian businesses can be held responsible for the content
uploaded onto social media by members of the community.
Whether it is posting on Facebook, tweeting on Twitter,
commenting on LinkedIn or blogging on Tumblr, Australian businesses
should view engagement in social media through the same prism it
views more 'traditional' forms of advertising. Due care and
consideration should be afforded to the message being conveyed
through social media and complying with Australian advertising
standards. Australian businesses should seriously consider devising
ready-response plans to take down potentially damaging
1 Advertising Standards Bureau 2012, Case
Report 0272/12 - Advertiser: Diageo Australia Limited, viewed
27 August 2012 <
http://126.96.36.199/cases/0272-12.pdf>. 2 Advertising Standards Bureau 2012, Case Report
0271/12 Advertiser: Fosters Australia, Asia & Pacific,
viewed 27 August 2012 <
http://188.8.131.52/cases/0271-12.pdf>. 3Australian Competition and Consumer Commission
(ACCC) v Allergy Pathway Pty Ltd (No.2) (2011) 192 FCR
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