Social media

09 November, 2012

David Bond, partner and head of the advertising & marketing group at Field Fisher Waterhouse LLP looks at the legal minefield of Facebook and Twitter

For many years regulators have been aware of the need to regulate advertising within digital media. However, operational challenges in implementing such controls delayed the extension of regulation.

In the UK, the Advertising Standards Authority’s remit to regulate digital media was only extended as recently as March 2011 – and even then its scope had limitations. This historic lack of regulation encouraged many brand owners to use the likes of Facebook and Twitter with relative freedom. Not only can social media pages be created and operated at little cost, they are accessible to a wide audience and allow companies to engage customers and obtain useful insights.

However, a recent case published by the Australian Advertising Standards Bureau could jeopardise this form of communication. The ASB’s report concludes that all content on a brand owner’s official Facebook page should be treated as advertising, regardless of whether it is posted by the brand owner or by consumers and regardless of whether such content is positive or negative. This decision raises potential implications for all brand owners using social media.

The ASB investigated complaints about comments posted by users on photographs Diageo uploaded to its Smirnoff Facebook page. The concerns centred on inappropriate content (including gender discrimination, irresponsible drinking, excessive consumption and obscene language) and accessibility of the page to under-18s.

The ASB did not find any of the content to be in breach of the Advertiser Code of Ethics (the Code) and was satisfied that Diageo’s target audience consisted of adults, comments had been moderated for offensive language and adequate technology had been incorporated to prevent under-18s from accessing the content. The complaints were dismissed.

The interesting aspect of the decision is that, before assessing the complaints, the ASB had to determine whether the user-generated content on the page was advertising and should be assessed under the Code.

Diageo argued that user comments were merely the opinions of its followers and should not be treated in the same way as paid-for advertising or promotional content uploaded by Diageo. The ASB disagreed, finding that user comments should be regarded as advertising/marketing communications.

It concluded: “The Facebook site of an advertiser is a marketing communication tool over which the advertiser has a reasonable degree of control and could be considered to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose directly or indirectly that product.”

The ASB’s decision is perhaps not surprising when considered in the context of its definition of advertising or marketing communications, namely: “Any material which is published or broadcast using any medium or any activity which is undertaken by, or on behalf of, an advertiser… and over which the advertiser… has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote… a product, service…”.

The ramifications of this decision on advertisers in Australia are that:

- all content on a brand owner’s official social media page, including user-generated content, is regarded as advertising and must comply with relevant local laws

- advertisers must monitor and moderate all content to ensure compliance, which may require significant investment

- engagement with consumers will be significantly altered if brands are required to remove opinions and comments which are misleading or otherwise in breach of the Code.

Beyond Australia, the decision has stirred some controversy. In its relatively short life, social media has allowed an environment to develop in which brand owners can seek the opinion of consumers and not simply push content on to them. It allows brand owners to understand consumers’ needs, interests, likes, dislikes and grievances. These views are usually expressed as user comments, posts, blogs and wikis. They are the opinions of individuals and to classify all such content as advertising seems unrealistic – if not tantamount to an attack upon a consumer’s right to self-expression.

The context in which user comments are made is key. Any generalisations might seriously hinder the future of social media as a communication tool. Users may become more reluctant to engage if their comments are likely to be moderated and the task of monitoring could prove too burdensome for many brand owners.

Of course, there are situations where the ASB’s interpretation would seem appropriate. Brand owners often monitor and moderate content to ensure against offensive language and behaviour. If they were to go one step further and remove all negative user posts this would create a biased brand page which arguably should be regarded as a marketing communication as it is expressing an impression “created” by the brand owner. Equally, if a brand owner chooses to adopt any user-generated content and use it within its marketing (for example, by way of testimonials or inclusion in an advertising campaign) then such content should be regarded as advertising.

The ASB’s decision is yet to impact on advertising outside Australia and whether it will does, to some extent, depend upon other regulators’ definition of marketing communications. In the UK, for example, the ASA’s remit extends to: “Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities.”

Following the extension of the ASA’s remit to include all online marketing communications, the ASA made it clear that promotional content on social media pages will be viewed and regulated the same as all other non-broadcast advertising. But it also provided guidance on the use of user-generated content, confirming it will not generally be treated as a marketing communication unless the brand owner:

- chooses to remove all negative comments from its page (turning the page into a positive marketing communication)

- adopts positive user comments as testimonials or otherwise for its marketing campaigns

- encourages or invites misleading, offensive or irresponsible comments.

The ASA has already indicated it does not intend to review its own processes in light of the ASB’s decision. What the decision does demonstrate, however, is the need for flexibility when applying existing rules to a medium that changes as rapidly as the online environment. Advertisers need to be aware of this and ensure their use of social media is responsible so that consumer pressure does not result in wider controls by regulators.





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Dominic Roskrow

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