Facebook: you may not have written it, but you are liable for it

Two recent rulings by the Advertising Standards Board (ASB) have reinforced the significant burden on social media marketers by confirming the broad scope of what constitutes ‘marketing communications’ on Facebook.

The ASB was asked to consider whether user-generated comments on two companies’ Facebook pages were ‘advertising’ within the meaning found in the Advertisers Code of Ethics, following complaints in relation to discriminatory comments posted on the Facebook pages of VB and Smirnoff.

The comments on the VB page contained offensive language with sexist and homophobic references, while the Smirnoff page contained comments and images posted by users of unknown age in a drinking environment holding Smirnoff products.

In a landmark determination, the ASB held that the Advertisers Code of Ethics applies not only to content generated by the advertisers themselves, but also applies to material and comments posted by users or friends on the advertisers’ Facebook sites.

As a consequence of the ASB’s decision, Foster’s Group (as the owner of VB) was found to be in breach of the Code by allowing discriminatory comments to remain on their Facebook page. Comments and images on the Smirnoff Facebook page were ultimately not considered to be in breach.

The ASB’s finding follows the Federal Court decision in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) where it was held that an allergy clinic was accountable for misleading comments made by users on its Twitter and Facebook pages.

The ramifications of these decisions for social media marketers could be far reaching. It is now increasingly clear that companies will be held liable for any comments posted to their Facebook pages, and accordingly will have to monitor them for any communication that may be in breach of the law and industry regulations.

If your company engages in social media activity it is important to ensure that your sites are monitored and moderated so that any offensive material is identified and removed as quickly as possible. This may be done by educating employees in identifying and removing this material, or by communicating your needs to firms that can assist in managing your social media. One such firm is Blue Flame Social Media, a client of Certus Legal Group. Blue Flame are offering a 15% discount to Certus Legal Group clients who mention this blog article.

For further information or assistance on the consequences of social media for your business, please contact Certus Legal Group.