Advertising Standards Board decision opens potential legal minefield for business Facebook pages: Three things you need to do

Businesses have been told to monitor comments left on their Facebook pages, following a decision by the Advertising Standards Board which found a brand’s Facebook page was an advertisement.

The decision was prompted by a complaint to the ASB – the advertising industry’s self-regulatory body – about the official Smirnoff Vodka Facebook page.

The complaint raised concerns about comments made by the brand’s Facebook “fans”, which included obscenity, sexism, racism, and depictions of irresponsible drinking, and argued that Diageo, Smirnoff’s parent company, has an obligation to police the activity of its fans on the Smirnoff Facebook page.

Diageo argued that Smirnoff’s Facebook page is a networking tool for communication between company and customer rather than a medium for advertising, but the ASB found that a company’s Facebook page is a marketing communication tool if it is used “to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose that product.”

SmartCompany contacted Diageo but no comment was available prior to publication.

The ASB case follows a Federal Court case last year involving Allergy Pathways, where it was found that a company could be held responsible for misleading claims about its products made by fans on its Facebook pages and Twitter feeds.

Smirnoff’s Facebook page was given the all-clear by the ASB, but John Swinson, partner at law firm King & Wood Mallesons, told SmartCompany the case has important implications for the management of social media by businesses.

Swinson says there is a “significant risk” that promotional use of a social media network renders the whole of the business’ use of that network subject to regulations relating to standards in advertising and marketing, as well as liability under consumer protection laws for misleading conduct.

“If you are using a Facebook page for advertising purposes, the same legal scrutiny that applies to any of your other ads applies to your Facebook page as well,” Swinson says.

He says the first level of analysis is whether a business is using Facebook as an advertising medium. If a business has just established a page and is not using it to promote their business, then the decision may not apply.

However, if a business is using Facebook for promotion, it is then responsible for everything that is on the page as if it is its own content, as the ASB said comments made by users on the Facebook page would be given the same level of legal analysis as if made by the business owner itself.

“This is in some ways surprising and may be counterproductive, as it creates an extra burden for brand managers as they are going to have to have people monitoring Facebook. The question is does it apply daily or do you have to look hourly?” says Swinson.

“My experience is that most stuff that happens that is questionable happens on Friday night on Facebook before a long weekend.”

Swinson says a lot of businesses will have people monitoring Facebook pages anyway to remove offensive material, but this ASB decision is saying a higher level of scrutiny is needed.

He warns this stricter approach may be “counterproductive” as a Facebook page is a way for businesses to have conversations with customers, but this conversation now needs to be censored.

“It makes Facebook less authentic and if that happens users will just stop going there because you are not seeing the real story,” Swinson says.

“If as a Facebook page user I say ‘Smirnoff is great because it is a great Russian vodka’ when in fact it is made in Australia and New Zealand, that raises an issue for Smirnoff as that is clearly my opinion even though it is factually incorrect.”

However, Swinson concedes the ASB decision is “realistic” as it takes the view that Facebook is an advertising medium and no longer a medium “where the rough and tumble of the internet applies” and so not held to regular standards.

Swinson believes there will be further cases taking a closer look at the difference between what is someone’s opinion and what is the brand owner’s statement, but in the meantime he has the following three tips for businesses with Facebook pages:

1. Don’t pay Facebook users

“First, don’t pay people to say things on your Facebook page, or pay people to be authentic users, because that is misleading and deceptive of itself,” Swinson says.

2. Monitor your business’ Facebook page and the internet and remove offensive comments

“Second, you should be monitoring the internet, and not just Facebook, to see what is being said and if it is untrue, then deal with it,” Swinson says.

“If things are inappropriate or highly offensive they should come down. That is what brand owners are doing at the moment.”

3. Reply to incorrect or misleading comments to correct them

“If someone is posting something not offensive but incorrect or misleading, I think you should correct it rather than take it down,” Swinson says.

“Rather than censoring, which I think is going too far, I think commenting to correct the record is the appropriate thing to do.”