Businesses need to monitor their social media engagement

Focus: Two recent decisions of the Advertising Standards Board
Services: Intellectual Property & Technology, Commercial

Two recent decisions of the Advertising Standards Board (the "Board") highlight the need for Australian businesses to control and monitor their engagement with social media. The first case considered Smirnoff Vodka's Facebook page, operated by Diageo and the second case considered VB's Facebook page, operated by Fosters Australia, Asia & Pacific.

In the Smirnoff Facebook case, the Board was required to consider whether comments about the product and photographs that appeared to show underage drinkers were in breach of Advertiser Code of Ethics (the "Code"). ¹ While the Board considered Diageo's Facebook site and content to constitute advertising, Diageo was found not to have breached the Code as its site did not include material contrary to prevailing community standards.

In the VB Facebook case, the Board considered questions posted by the advertiser and comments from members of the community that included coarse language and sexual references.² The Board determined that the comments posted were obscene, discriminatory toward women, derogatory, insulting and degrading to homosexual members of the community, and Fosters Australia was held to have breached the Code.

In both cases the Board held that Facebook and Twitter pages fell within the definition of advertising or marketing communication and, as such, the Code applies to material or comments posted by users or friends, in addition to content generated by the page creator.

These decisions are consistent with the position of the Federal Court of Australia where it has been determined that statements posted on a business' Facebook and Twitter pages by others constituted publication by the business. ³ In ACCC v Allergy (No.2) (2011) 192 FCR 34 it was held that the business accepted responsibility for the publications when it knew of the publications and decided not to remove them. Hence the business became the publisher of testimonials on their Facebook and Twitter pages from the time it became aware of their existence.

Take away

While there are real benefits to engaging with customers over social media in a way that can boost a brand's reputation, businesses need to be keenly aware that they cannot simply establish a presence on a social media platform and then disengage. Proper engagement over social media requires the establishment of appropriate control mechanisms and frequent monitoring and scrutiny of content to reduce the risk of breaching both advertising standards and codes, and the Australian Consumer Law.

The important lesson from these recent decisions is that Australian businesses can be held responsible for the content uploaded onto social media by members of the community.

Whether it is posting on Facebook, tweeting on Twitter, commenting on LinkedIn or blogging on Tumblr, Australian businesses should view engagement in social media through the same prism it views more 'traditional' forms of advertising. Due care and consideration should be afforded to the message being conveyed through social media and complying with Australian advertising standards. Australian businesses should seriously consider devising ready-response plans to take down potentially damaging publications.

Footnotes:

¹ Advertising Standards Bureau 2012, Case Report 0272/12 - Advertiser: Diageo Australia Limited, viewed 27 August 2012 < http://122.99.94.111/cases/0272-12.pdf>.
² Advertising Standards Bureau 2012, Case Report 0271/12 Advertiser: Fosters Australia, Asia & Pacific, viewed 27 August 2012 < http://122.99.94.111/cases/0271-12.pdf>.
³ Australian Competition and Consumer Commission (ACCC) v Allergy Pathway Pty Ltd (No.2) (2011) 192 FCR 34.

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