There’s been a lot of talk about a recent Australian Standards Bureau (ASB) ruling that Facebook is “advertising” as defined in the Advertiser Code of Ethics (Advertising Code).
This isn’t the first time that an organisation has been found to be responsible for user generated content on Facebook. You can find our previous article on the Federal Court’s decision in Allergy Pathways here.
But what’s causing all the interest this time round is the ASB’s finding that Facebook content is advertising, and so subject to the Code, and that the Facebook page owner must monitor content on Facebook to ensure it complies with the Advertising Code. [ii]
Victoria Bitter’s case
A complaint was made about a Victoria Bitter Facebook page, on the grounds that user content breached the code with its content that was allegedly discriminatory toward women, degrading to homosexual people, used strong obscene language and did not treat sex, sexuality and nudity with sensitivity to the relevant audience.
This complaint related to third party posts (ie public users of the site) – not posts by VB itself. However, the third-party posts in question do appear to be pretty offensive! It is also important to note that VB didn’t decide to take the posts down, and the posts themselves were in response to questions posted by the marketing team of VB, asking users to comment on things like: “what’s essential for a great Australia Day BBQ”.
VB was found to be responsible for this content, even though it hadn’t authored the content. Leaving many businesses scrambling with the new understanding that content on their social media pages might be viewed as their responsibility, even if it is posted by a third party user.
What does this all mean for business?
This ruling has caused a lot of discussion in the media, as businesses come to grips with the implications of a finding like this.
But perhaps the ruling isn’t that surprising, and shouldn’t cause quite so much alarm. It’s worth bearing in mind the facts that are unique to these cases (including those in the Allergy Pathways case), and it’s probably safe to say that the highly offensive nature of the user generated posts, and the fact that they were in response to questions posed by VB itself, had influence on the finding in this particular case. However, it certainly looks like this is likely to be the beginning of more activity through the courts as our society and business comes to grips with social media and the ever changing nature of technology.
The ASB ruling itself acknowledges that removing user-generated content would be “challenging”. To assist in finding clarity, the Australian Association of National Advertisers has initiated discussions within the industry to produce clearer internal guidelines in response to these rulings.
We’ve checked with the ACCC and whether they have an official take on all this for businesses, and they don’t yet have anything official to release, but just a comment that businesses should comply with the Australian Consumer Laws. The ACCC commissioner has commented that she’d be surprised if a big corporate player “with lots of resources that’s putting a lot of effort into social media” wouldn’t be able to take down comments within a day or less. But what about for smaller businesses with less resources?
Until clearer guidelines are provided, the take home message for the time being seems to be this – it’s best to err on the side of caution! These rulings indicate that the courts, and now the ASB, are willing to find that owners of Facebook pages have control over the content that appears on it. Simply denying responsibility won’t work, and businesses will have to have a rigorous system in place for actively monitoring their Facebook pages, and getting rid of offensive content or content that might otherwise breach the consumer laws, the advertising code, or any other relevant law.
If you have some advertising material that you are concerned about, contact us at [email protected] or 02 8006 0830. We would be more than happy to assist with a confidential discussion.
“The Board considered that the Facebook site of an advertiser is a marketing communication tool over which the advertiser has a reasonable degree of control and that the site could be considered to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose directly or indirectly that product. The Board determined that the provisions of the Code apply to an advertiser’s Facebook page. As a Facebook page can be used to engage with customers, the Board further considered that the Code applies to the content generated by the page creator as well as material or comments posted by users or friends…
The Board noted that social media is an advertising platform that requires monitoring to ensure that offensive material is removed within a reasonable timeframe and that content within a Facebook page should, like all other advertisement and marketing communication, be assessed with the Code in mind.… The Board recognized the challenges in effectively monitoring social media to ensure that offensive material removed within a reasonable time.”
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