Is it better that your employees spend time on Facebook? Now there's good reason ...

Posted by Kate Vaughan and Anthony Borgese

Last month, the Advertising Standards Bureau (ASB) made two determinations that will change the way businesses use Facebook to promote brands.

The ASB received various complaints in relation to comments on both the VB and Smirnoff brand Facebook pages.

Complaints were made that certain comments by third-party users breached advertising codes, particularly on the basis that they:

• were discriminatory; and
• promoted irresponsible drinking.

'We didn't make them write that!'

The question for the ASB was whether comments posted by third party users of the Facebook profiles could constitute advertisements to which the advertising codes would apply.

Reference was made to the decision in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74, in which the Federal Court held that an organisation may be accountable for third-party comments by fans on their Facebook pages if:

• the organisation is aware of the comments; and
• makes a decision not to remove them.

VB and Smirnoff argued that this was not the case here. In fact, Smirnoff responded in saying:

... any opinions or statements posted ... by fans are not the opinion or view of Diageo [Smirnoff], and to demonstrate this we try and allow Facebook to be an honest open channel for discussion not controlled or closed off by Diageo. This is a universal strategy recommended by Facebook and applied by many successful, global brands.

Facebook might well recommend it, but following these two ASB determinations, we probably wouldn't.

The ASB made clear that advertising codes did apply to advertisers' Facebook pages:

Facebook is a marketing communication tool over which the advertiser has a reasonable degree of control and ... draw[s] the attention of a segment of the public to a product or in a manner calculated to promote ...

This interpretation is consistent with the definition of an 'advertising communication' under, as an example, the Advertiser Code of Ethics.

Further, the ASB held that the fact that user comments were posted in reply to questions posed by VB and Smirnoff meant that they should be considered advertising.

What'll I do?

The key message from the ASB is that marketing via social media requires monitoring by an organisation to ensure that inappropriate material is removed within a reasonable timeframe.

Commercial use of Facebook will now constitute advertising and, as with more traditional forms of marketing, organisations will need to consider the applicable advertising codes if they wish to maximise its benefits.