Few regulatory compliance issues have caused as much of a media storm as the news last week that the Advertising Standards Board (ASB) is of the view that a Facebook site of an advertiser is advertising and marketing communication.
What that means in practical terms is that the content of a site needs to comply with the rules for advertising, as contained in the AANA Code of Ethics.
Fair enough, some might think. If a company sets up a Facebook page to promote a brand to the public, it seems common-sense that it’s a marketing message. But is it really that simple to apply the usual rules to all the content on a Facebook page? The Advertising Standards Board thinks so. And they’re not the only ones.
This issue has its origins in 2009, when the Australian Competition and Consumer Commission (ACCC) took Allergy Pathway to the Federal Court for allegedly engaging in false, misleading and deceptive conduct. The claim centred on false representations made for their allergy medications, across a variety of publications. The Court declared that Allergy Pathways had contravened the Trade Practices Act. As a result, Allergy Pathways and its sole Director undertook to refrain from making such representations for a period of three years.
In 2011, the ACCC again brought a case against Allergy Pathway for contempt of court, namely a breach of their 2009 undertaking.
The ACCC alleged that they breached the undertaking with statements published and adopted on their website, Facebook site and Twitter page. There were several kinds of publication that were deemed to be in breach, but of specific interest for our purposes were testimonials written and posted by third parties on Allergy Pathway’s Facebook “Wall”. Although the judge didn’t believe the company was responsible for the initial publication of the testimonials, it did say the company had accepted responsibility after they were made aware of the offending posts, and did nothing to remove them.
This decision in the Federal Court really establishes the concept of liability for third party posts on a Facebook page.
Jump forward to 11 July 2012, when the ASB applied this precedent to the Diageo Australia Pty Ltd complaint case. There was no finding of a breach in this case, but it was a remarkable determination nonetheless because the Board considered that the Facebook site of an advertiser is a marketing communication tool over which the advertiser has a reasonable degree of control—and therefore—the provisions of the Code apply to the page content including any third party posts.
Confused and concerned? You’re not alone!
Facebook Terms of Service state that a person owns all the content they post on Facebook. In other words, the user posts on your Facebook page don’t really belong to you.
Facebook policy also states that pages (sites) administered by a brand or organisation must comply with “Facebook Community Standards policy”. So it would seem that there is an obligation placed upon site administrators to engage in some degree of content moderation, to keep it within the bounds of Facebook’s Community Standards policy.
The Facebook Community Standards policy includes the requirement not to post any content that is “hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence”. That’s essentially in tune with the Prevailing Community Standards test of the AANA Code of Ethics.
But let’s not forget, the Advertising Standards Board did not find that the content on the Facebook page administered by Diageo was in breach of prevailing community standards. It applied the rules, and found that there was no breach.
Therefore, this decision should not be mistaken for a new claim to censor people’s comments. But it does raise thorny questions about how site administrators are expected to manage third party posts, and to what degree they will be held responsible.
The court case from 2011 suggests that the Courts will impose a degree of responsibility, within reason. The ACCC has recently suggested that 24hrs notice for take-down is reasonable. Only time—and another court case perhaps—will tell if that is the case.
Like most things legal, each case will be determined on its merits, but the message is clear.
In future, companies using Facebook and similar platforms for marketing communications must ensure they understand what rules apply, and put systems in place to provide guidance to users, so they don’t become overburdened with the task of moderating comments to prevent a breach of the applicable law or codes.
ADMA does not believe in censorship – social media users should be able to say whatever they want to say, within the confines of the law. That’s the beauty of social media and its purpose – to encourage participation and interaction from all, including the good the bad. That said, where third party comments are offensive, threatening, incite violence or otherwise offend accepted community standards, site owners have a responsibility to moderate the content in line with the prevailing standards and relevant laws which they are obliged to respect. The normal rules that apply to every marketing and advertising channel also apply to social media.
David Simon is the head of Public Policy & Corporate Affairs for ADMA.
Join David on the ‘Compliance in a connected world’ Roundtable at ADMA Fusion 2012 – hosted 30 October (Mel) and 1 November (Syd). Register today, places are limited.
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