If you think your company's Facebook or Twitter page is just
a way for your followers, or those that "like" you to
communicate, you'd be wrong.
The Advertising Standards Bureau (ASB) recently decided that
Facebook is in fact an advertising medium and not just a means of
communicating. The decision came after complaints were received
about Smirnoff Vodka and VB's Facebook pages.
The determination of the ASB was guided by the decision in
ACCC v Allergy Pathway (2011) which found that misleading
and deceptive "testimonials" left on Allergy
Pathway's Facebook and Twitter pages were in contempt of Court.
The contempt arose from the Court's prior decision that certain
representations made by Allergy Pathway were misleading and
deceptive "in its ability to diagnose and treat
The Smirnoff Decision
In this particular case, a complaint was made to the ASB
regarding the images on Smirnoff's Facebook page. According to
the complaint, these images showed people engaging in excessive
consumption of alcohol and images of young people with an alcoholic
beverage in their hand.
Diageo (the parent company of Smirnoff) argued that
"Facebook is a communications channel or medium....therefore
it is not appropriate to consider all content as advertising
The ASB decided that a brand's Facebook page does fall
within the definition of advertising or marketing communications
under the Advertiser Code of Ethics (the Code). Ultimately,
however, the ASB dismissed the complaint against Smirnoff as it
found that the people in the images seemed confident and in control
and that "no images of people appeared to indicate an
excessive consumption of alcohol".
The VB Decision
For VB, the decision didn't turn out so well.
The complaint made here was in relation to user comments on
VB's Facebook page that were posted in reply to questions posed
by VB. An example of one of the user comments was, "women
should be chained to da kitchen" (sic).
The user comments were found to include discriminatory,
insulting, and strong and obscene language.
As in the Smirnoff decision, it was decided that user comments
on a brand's Facebook page fall within the definition of
advertising or marketing communication and the ASB determined that
Fosters Australia was responsible for those user comments.
The ASB found that user comments on the Facebook page of an
advertiser are to be considered a marketing communication tool over
which the advertiser has a reasonable degree of control and that
the provisions of the Code apply to an advertiser's Facebook
How do these decisions this relate to your business?
The lesson learnt from these decisions is that if you have a
corporate or branded Facebook page or engage in other social media,
you should be monitoring any user comments posted to avoid your
company landing in hot water.
Following the ASB findings, companies have raised concerns about
the potential impact the decisions will have on companies and the
extra responsibilities attributed to monitoring comments made on
social media portals.
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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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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