September 5, 2012

Liability for User-Generated Content on Facebook

A large number of businesses use brand pages on Facebook as a marketing tool, however, these pages are often forgotten by the creator.
The Advertising Standards Board (“ASB”) was recently called upon to review the content on the official Smirnoff Vodka page on Facebook.  The complaint related to various comments and photographs uploaded by Smirnoff and members of the community regarding inappropriate language, race and gender discrimination, as well as inappropriate content on alcohol consumption.

DEFINITION OF ADVERTISING/MARKETING COMMUNICATION

Under the Advertiser Code of Ethics (“the Code”), advertising and marketing communication means:

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 COMPLAINT

The complaint referred to the case of ACCC v Allergy Pathways.  This 2011 Federal Court decision held that a company could be held responsible for misleading claims about its products made by third parties on its Facebook pages and Twitter feeds.  The complaint concerning Smirnoff argued that some of the content posted on Smirnoff’s official Facebook page breached the self-regulatory guidelines as outlined in the Alcoholic Beverages Advertising Code (ABAC) scheme.  This captures content that is created and posted by brands and their fans.

SMIRNOFF RESPONSE

Smirnoff suggested that Facebook is a communications channel or medium like television and radio, and that it is not appropriate to consider all the content as advertising material.  The response argued that Facebook is a platform for engaging with people in different ways (e.g. advertising, relationship building, and entertainment).  It therefore follows that Facebook fan pages and the content they contain should not be considered traditional, paid-for advertising.

ASB DECISION

The ASB ultimately dismissed the complaint, but the Board found that the Facebook site of an advertiser does fall within the definition of “advertising or marketing communications” under the Code, since Facebook is a marketing communication tool over which the advertiser has a reasonable degree of control, which is used “to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose that product.”
Businesses should be aware that creating or authorising the creation of a Facebook page is considered marketing under the Advertising Code of Ethics.  Facebook advertisers need to control and update their page to ensure that it adheres to community standards and industry codes.