Business through social media & the 'Accountable' account: businesses held responsible for public postings on Facebook

Many brands and businesses have Facebook and other social media pages to run promotions, and many of them invite the public's participation.

Two recent Advertising Standards Bureau (ASB) decisions make it clear that businesses are responsible for the content on these pages – even if the offending conduct relates to the public's contributions and not those of the business.

Christina McElwain

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The Victorian Bitter and Smirnoff brands were the subject of two recent ASB determinations which highlight some important messages for small business owners, namely:

• social media pages can be a form of advertising;
• the ASB will assess that advertising when considering a business' compliance with the Code of Ethics^[1]; and
• businesses and brands are responsible for the content posted by the public on their social media pages.

Victoria Bitter Facebook page breaches Code^[2]

This ASB determination highlights the role that Facebook plays as an advertising platform and the need for it to be comply with the Code.

VB posted questions to the public on its Facebook page regarding a certain advertisement which VB had launched. A complaint was made in relation to comments posted by Facebook users in response to the questions on the basis they were, among other things, racially and sexually offensive.

The ASB had to consider whether the material posted fell within the following definition of 'advertising or marketing communications' under the Code:

'any material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, and over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct.'

The ASB ruled that an advertiser's Facebook page fell within the above definition because, among other things, the advertiser:

• can use the Facebook page as a marketing communication tool; and
• exercises a reasonable degree of control over the page when engaging with customers.^[3]

The ASB then considered whether the comments breached the Code. It took into account factors such as the advertiser's response to the comments, the principal demographic targeted by the VB brand as well as the advertiser's view on the offensive material.^[4]

The ASB upheld the Complaint and ruled that the comments posted by the Facebook users breached the Code because:

• the comments were derogatory and discriminatory against women and homosexuals in the community^[5];
• the comments inappropriately referenced sex and nudity^[6]; and
• the comments involved obscene language^[7].

Smirnoff Facebook page covered by Code, but no breach found^[8]

Smirnoff operated a Facebook page on which Facebook users posted comments and photographs depicting, among other things, excessive consumption of alcohol. A complaint was made due to these offensive comments and photographs.

As in the VB determination, the ASB considered:

• first, whether the advertisement fell within the definition of the Code's 'advertising or marketing communications'; and
• then, whether the relevant material breached the Code.

In dismissing the complaint, the ASB found that:

• the Code did apply to Smirnoff's Facebook page for the same reasons as the VB determination; however,
• the comments, which allegedly suggested underage and excessive drinking, did not breach the Code because they did not breach prevailing community standards on health and safety^[9].

Is knowledge relevant? - the earlier Allergy Pathway Case on social media^[10]

In an earlier case, the Federal Court found that businesses with social media pages are deemed to publish third party material posted on its page once it has knowledge of its existence.

Consistent with the ASB determinations, the Court found that Allergy Pathway, once it had knowledge of the material, was required to moderate misleading and deceptive consumer testimonials that were posted on its Facebook and Twitter Pages.

The Allergy Pathway case deemed the advertiser's knowledge to be an important factor, a matter which did not attract as much attention in the ASB determinations. While the Federal Court decision provides a binding precedent, and may set the bar a little lower than the ASB determinations (which are not binding on a Court), the nature of social media and the means by which brands interact with their customers, means advertisers will rarely be unaware of what is occurring on their own social media pages.

Key messages for businesses

In light of the recent ASB determinations and the Allergy Pathway decision, businesses and brand owners need to take positive action to control their social media pages. A key point of reference is to ensure they do not breach the Code.

Businesses should consider the following steps and measures to create a comprehensive monitoring system for their social media pages^[11]:

• Know the Code: Be familiar with the Code and how your business' social media pages need to comply.
• Use automatic filtering: Initially review user generated comments by utilising Facebook's inbuilt filtering function.
• Monitor social media: Have robust systems and processes in place to allow internal businesses and stakeholders to regularly check the Facebook page.
• Take action to remove offensive material: Remove comments that have the potential to breach the Code, or are generally inappropriate or offensive, within a reasonable time. For large organisations, this may be 24 hours, while for smaller organisations the requirement may be as soon as they become aware of their existence.
• Set expectations: Use Facebook's 'de-friending' or 'blocking' functions' to set clear expectations for user conduct.

More information from Maddocks

For more information, contact Christina McElwain or Michael Argy in the Maddocks Commercial Group on (03) 9288 0555.

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[1] The AAWA Advertiser Code of Ethics

[2] 0271/12: Fosters Australia, Asia & Pacific – VB dated 11 July 2012

[3] Advertising Standards Bureau, Case Report for Case number 0271/12, 11/07/2012

[4] Advertising Standards Bureau, Case Report for Case number 0271/12, 11/07/2012

[5] Section 2.1 of the Code

[6] Section 2.4 of the Code

[7] Section 2.5 of the Code

[8] Case number 0272/12: Diageo Australia Ltd - Smirnoff

[9] Section 2.6 of the Code

[10] ACCC v Allergy Pathway Pty Ltd (No 2) (Allergy Pathway)

[11] Michael Argy and Alexandra Gilbert of Maddocks, Having a stand-up social media profile – advertiser responsibility for user generated content, August 2012