Type : Focus Paper

Social media sites such as Facebook and Twitter provide exciting and cutting-edge opportunities for brand owners to advertise their products and directly engage with their customers. However, company Facebook and Twitter pages have now been clearly held to be advertising so not only must their content comply with the Australian Consumer Law, it must also comply with the AANA's Code of Ethics. The Advertising Standard Board's October 2012 determination regarding Bendon's "Take selfies with Besties" campaign shows that brand owners must also ensure their social media sites do not depict material contrary to prevailing community standards on health and safety.

The "Take Selfies With Besties" Campaign

A complaint was made to the ASB about a competition Bendon ran on its Facebook page inviting entrants to "Take selfies with Besties". The Facebook page contained the text "Take selfies with Loveable Besties to win weekly loveable prizes." The competition invited its target audience (women over 13) to submit a self-portrait photograph ("selfie") with their best friend ("bestie"), to have the chance to win prizes. The complainant argued the campaign sent a negative message to the target audience about self-image and encouraged irresponsible and dangerous use of social media.

Bendon's Arguments

Bendon argued that the advertisement stated that entrants do not need to be in their undies, the terms of the competition did not require the "Besties" product to be featured and that the conditions of entry imposed age restrictions, required parental/legal guardian consent for other entrants and also provided that indecent, obscene or inappropriate entries would not be accepted. Bendon also argued that none of the entries featured on their Facebook page were images of entrants in their underwear.

ASB Determination

In reaching its determination, the ASB took into consideration that appropriate online behaviour is a significant social concern. It noted the considerable resources directed to educating children about appropriate social media behaviour, such as the Australian Communications and Media Authority's Cybersmart website (which addresses uploading and tagging of photos).

While it is not problematic for an advertisement to encourage people to upload a photo of themselves, the ASB considered the phrase "take selfies with loveable besties" could also be interpreted as encouraging entrants to take a photo with their loveable besties underwear.

The ASB considered it was possible young people would see the advertisement as condoning or giving some legitimacy to the behaviour of uploading photos of themselves in their underwear and held that this is a message that is viewed as unacceptable by the community. The ASB therefore held that the advertisement depicted material contrary to prevailing community standards on health and safety in breach of the AANA Code of Ethics. Bendon was directed to modify or discontinue the advertisement.

The Mossimo Peep Show Campaign

In the Bendon determination, the ASB highlighted the decision was consistent with its decision early in the year regarding the Mossimo Peep Show campaign. Mossimo ran a campaign encouraging entrants over 16 years to upload photos of themselves to the Mossimo Facebook page with a template "peepshow" frame around the picture.

Whilst Mossimo argued its terms and conditions clearly stated entries cannot be obscene, illegal or in bad taste and that such entries can be removed, consideration of the social concerns about appropriate online behaviour was at the forefront of the ASB's determination. The ASB considered the context of the campaign was sexualised with the peep show theme, lingerie advertising and sample images with sexually suggestive titles, and considered the campaign encouraged entrants to upload photos of themselves in their underwear. The ASB held the campaign depicted material contrary to prevailing community standards on online behaviour and safety and so was in breach of the AANA's Code of Ethics. Mossimo was directed to modify or discontinue the advertisement.

What Should Brand Owners Be Doing To Manage Their Social Media Sites?

Brand owners need to:

  • monitor and moderate their social media sites so that misleading and deceptive posts or posts which could breach community standards are removed promptly
  • develop social media guidelines, and ensure the teams managing their sites are educated on these guidelines, in order to ensure the content on the sites is compliant with the law
  • develop "terms of use" outlining to users material that is prohibited from being posted and which will be removed (this will also help maintain goodwill with customers, as user policies will be more transparent)
  • ensure all involved in managing the sites have been trained in the legal and Code of Ethics requirements.

The Australian Communications Council has launched a Social Media Code of Conduct, providing best practice guidance when working and operating within social media. The Advertising Standards Authority in New Zealand has also developed a Guidance Note on Social Media. The Social Media Code of Conduct is a good starting point to help brand owners determine their responsibilities and start developing their compliance programs for social media use.

The assistance of Erin McGushin, Solicitor, of Addisons in the preparation of this article is noted and greatly appreciated.

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.