Advertising Standards Bureau finds Foster's and Smirnoff
liable for third party comments on Facebook pages.
In two practically identical complaints lodged in relation to
the Victoria Bitter and Smirnoff Vodka Facebook pages, the
companies were accused of breaching the Advertising Code ("the
Code") by depicting irresponsible drinking, sexism, racism,
excessive consumption and people under the age of 25 drinking
The Advertising Standards Board considered that "the Code
applies to the content generated by the advertisers as well as
material or comments posted by users or friends." This
effectively makes companies responsible not only for the material
they put out, but the way in which the public engages and reacts to
Echoing the sentiments of Australian rock satirists, TISM, who
quipped that "you're only as good as your fans", the
complaint against Smirnoff was dismissed as the comments on their
page were found not to be in breach of the Code.
VB, on the other hand, were reprimanded for fan comments on
their Facebook page which depicted sexism ("women should be
chained to da kitchen. Lmfao."), homophobic ("bloody
poofs"), sexual and obscene language (which shouldn't be
repeated). While the Board accepted that VB could not prevent third
parties posting obscenities on their Facebook page, the advertiser
was called into question for failing to monitor and remove the
offensive material from the page.
These decisions mirror the Federal Court of Australia's
interpretation of a company's responsibility for third part
comments on their Facebook page in the decision of the ACCC v
Allergy Pathway Pty Ltd (decision
Allergy Pathway had previously entered into agreed orders to
refrain from making misleading statements in their advertising and
were found to be in contempt of court by failing to uphold their
The substance of the breach were testimonies from clients posted
on the company's Facebook and Twitter pages which were
misleading and in breach of the previous undertakings given by
Finkelstein J said that "while it cannot be said that
Allergy Pathway was responsible for the initial publication of the
testimonials... it is appropriate to conclude that Allergy Pathway
accepted responsibility for the publications when it knew of the
publications and decided not to remove them. Hence it became the
publisher of the testimonials. In any event it is clear that it
caused them to continue to be published from the time it became
aware of their existence, which is enough to put Allergy Pathway in
breach of... it's undertaking."
The company was ordered to pay damages (with costs), subjected
to three years of injunctive measures and made to publish
corrective advertisements, including sending letters to past
Anyone thinking of using social media as a marketing tool (which
is pretty much everyone these days) needs to be aware that they may
be held responsible not only for content they generate, but also
for the third party interactions with that content. Accordingly,
close monitoring to remove offensive material is an essential part
of any online marketing campaign.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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