If your business has a Facebook page which promotes or publicises your products or services, you are responsible for what your employees, customers and visitors say on it as well as your own content.
Comments on a business’s Facebook page are regarded by law as advertisements which are subject to the laws relating to advertising, including the prohibition on misleading or deceptive conduct.
Advertising is now a high risk element of any business: recent penalities for misleading advertising include $3.61M against Optus and $2.25M against Apple.
The Macquarie Dictionary defines advertisement as “any device or public announcement designed to attract public attention, bring in custom”. The medium does not change an advertisement’s purpose. You cannot distinguish social media on the basis of being a communications network rather than a traditional ad.
Recent Advertising Standards Board decisions
The Advertising Standards Board deals with complaints about advertising.
Complaints were made against the VB beer and Smirnoff Vodka Facebook pages regarding comments and material posted by Facebook users.
As a preliminary issue in both cases the Board determined that a Facebook page was an ad.
“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 that the site 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 Board determined that the provisions of the Code apply to an advertiser’s Facebook page. As a Facebook page can be used to engage with customers, the Board further considered that the Code applies to the content generated by the page creator as well as material or comments posted by users or friends. The Board noted that on this Facebook page, the user comments identified in the complaint were posted in reply to questions posed by the advertiser.
The Board also noted the advertiser response identifying the tone of the page, the demographic principally targeted by the VB brand and advertisers view of the comments posted by users. The Board further noted that the age access restrictions within Facebook itself, is designed to limit access by children to pages promoting alcohol products and other adult material.”
VB Facebook page
The Board determination in respect of VB’s Facebook page dealt with a complaint that material openly available on the Facebook pages of VB features:
– Sexism racism and other forms of discrimination or vilification
– Irresponsible drinking and excessive consumption
– Obscene language depiction of under-25 year olds consuming alcohol
– Material that connects alcohol consumption with sexual or social prowess
The Board determined that certain comments were in breach of the Advertiser Code of Ethics:
“The Board noted that social media is an advertising platform that requires monitoring to ensure that offensive material is removed within a reasonable timeframe and that content within a Facebook page should, like all other advertisement and marketing communication, be assessed with the Code in mind. … The Board recognized the challenges in effectively monitoring social media to ensure that offensive material removed within a reasonable time.
The Board noted the advertiser’s response which indicated that the material identified by the complainant had been removed from the Facebook page and the advertiser had implemented a more rigorous monitoring arrangement for its social media presence.”
Smirnoff Vodka Facebook page
On the other hand the Board determination in respect of Smirnoff Vodka ‘s Facebook page considered that, whilst the Facebook page was advertising, the advertisement did not contain material that was contrary to prevailing community standards on health and safety and was not in breach of the Code.
ACCC v Allergy Pathway
In Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 Justice Finkelstein of the Federal Court fined Allergy Pathway Pty Ltd (formerly known as Advanced Allergy Elimination) and its director, Mr Paul Keir, $7,500 each for contempt of undertakings made to the court following a successful 2009 Australian Competition and Consumer Commission action for false, misleading and deceptive conduct.
Justice Finkelstein decided that Allergy Pathway and Mr Keir made prohibited representations about Allergy Pathway’s purported allergy treatment on its website and on Twitter, Facebook and YouTube in breach of those undertakings.
The representations included testimonials written and posted by clients on Allergy Pathway’s Facebook “wall” and testimonials written by clients and posted by Allergy Pathway on its website and Facebook and Twitter pages.
In his judgment Justice Finkelstein said: “while it cannot be said that Allergy Pathway was responsible for the initial publication of testimonials (the original publisher was the third party who posted the testimonials on Allergy Pathway’s Twitter and Facebook pages) it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of them and decided not to remove them. Hence it became the publisher of the testimonials.”
What you need to do
If you have a business Facebook page you need to monitor comments left on your Facebook page, remove offensive material and correct incorrect or misleading comments.
