The Advertising Standards Bureau, the advertising regulator, has
found that the VB Facebook pages are advertisements and subject to
the AANA Code of Ethics. Kelly Marshall and Matthew Hall look at
the recent decisions of the ABS and how this affects businesses
with any social media presence in Australia.
The Advertising Standards Bureau (ASB) is an independent body
that is responsible for determining complaints made against
advertisers under the industry's self-regulatory Code of Ethics
(administered by the Australian Association of National
Advertisers, of which Swaab partner, Matthew Hall, is a director,
and the firm is a member).
Recently, following a number of complaints, the ASB determined
that the Facebook pages of VB (Carlton United Brewery) are
advertisements and subject to the Code. VB (CUB) was found to have
breached the Code in relation to discrimination / vilification of
gender and race, sex/ sexuality/nudity, and inappropriate language
in respect of content that it did not post, but which was posted by
users of the site, but of which CUB was aware and could control.
CUB was liable because it knew of the objectionable content and did
not take sufficient steps to control, moderate or remove that
content from its Facebook page.
The decision makes it clear that any business's Facebook
page can be considered as a marketing communication tool where the
page promotes the products or services of the business. This is
because the pages are considered to draw the attention of a segment
of the public to a product or service in a manner calculated to
promote or oppose directly or indirectly that product or service.
Where the business has a reasonable degree of control over the site
and the content (including content posted by it and by others) it
has responsibility for ensuring the content is legal and complies
with the Code of Ethics.
This obligation applies irrespective of whether or not the
business is a member of the Australian Association of National
Advertisers. The Code applies to all advertising
This is not the first ASB decision case of its kind. A similar
complaint was made about the Smirnoff Facebook page, however this
matter was dismissed as, amongst other things, "the people in
the images appear to be confident and in control and no images of
people appeared to indicate an excessive consumption of
alcohol". Accordingly, it was found not to be in breach of the
AANA Code of Ethics. What is clear is that the use of social media
as a marketing tool is coming under increasing scrutiny and further
complaints are likely to be made, and determined by the ASB.
WHAT THIS MEANS FOR YOUR BUSINESS?
Businesses with a social media presence must closely monitor all
communications or messages posted or displayed on any social media
platform to ensure compliance with the law. Following this
decision, all businesses must also ensure that any marketing
communications that occur through social media (whether created by
the business or users of the site or platform) comply with the Code
of Ethics and the other codes of conduct that apply to advertising
and marketing material in Australia.
If you would like to know more about your obligations under
these Codes, or how to implement effective monitoring and
compliance programs, please contact:
Businesses that rely on email or SMS for marketing purposes need to be aware of, and comply with, the Spam Act 2003.
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