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

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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.

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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.