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.

Publications

No will, no direc­tion: The estate of Liam Payne and under­stand­ing law of intestacy

When Liam Payne sang ​“nobody can drag me down” we did­n’t think he was talk­ing about his aver­sion to sit­ting…

Beware Retail Lease Dis­close Statements

Before a retail lease is entered into, the Retail Leas­es Act 1994 (NSW) (the RL Act) requires a land­lord to give a signed Lessor’s…

Devel­op­ers beware the statu­to­ry non del­e­gable’ duty of care under the Design and Build­ing Prac­ti­tion­ers Act 2020

The Design and Build­ing Prac­ti­tion­ers Act 2020 (DBP Act) came into effect in NSW in June 2020. Since its intro­duc­tion the courts…

In the News

Michael Byrnes is quot­ed in the arti­cle, Pro­posed non-com­pete ban could back­fire on work­ers, firm warns”, pub­lished in Lawyers Week­ly on 20 May 2025

Michael Byrnes is quot­ed in the arti­cle, ​“Pro­posed non-com­pete ban could back­fire on work­ers, firm warns”, pub­lished in Lawyers Week­ly…

Press Release | Swaab’s James Skel­ton Appoint­ed Chair of Glob­al Emerg­ing Lead­ers Advi­so­ry Board at Mer­i­tas AGM in Mex­i­co City

In this piv­otal lead­er­ship role, James will guide ini­tia­tives to strength­en rela­tion­ships among Emerg­ing Lead­ers across Mer­i­tas’ 175 glob­al mem­ber…

Press Release | New Part­ner Appoint­ment — Mark Glynn

With over two decades in the indus­try, Mark is a recog­nised front-end con­struc­tion lawyer spe­cial­ist with­in the build­ing and con­struc­tion indus­try. Mark…

Sign up for our Newsletter

*Mandatory information