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20 November 2012 Ad regulator determines that social media campaigns must comply with ad requirements

 


In brief

The Advertising Standards Bureau, the advertising regulator, has found that the VB Facebook pages are advertisements and subject to the AANA Code of Ethics. Our Commercial and IP & Technology Team looks at the recent decisions of the ABS and how this affects businesses with any social media presence in Australia.


Decision

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).

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 communications.

Smirnoff

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 us.

Co-authored M Hall.


If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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