The changing face of social media
Could your business be held responsible for user generated content on Facebook?
Lately there’s been a lot of talk about a recent Australian Standards Bureau (ASB) ruling. The ASB ruled that the social media platform Facebook is ‘advertising’ as defined in the Advertiser
Code of Ethics (Advertising Code).[i]
This isn’t the first time an organisation has been found to be responsible for user generated content on Facebook. But the cause for all the interest now is the ASB’s finding that Facebook content is advertising, and so subject to the Code, and that the Facebook page owner must monitor content on Facebook to ensure it complies with the Advertising Code. [ii]
Yikes! Sounds like a big responsibility, doesn’t it?
Let’s take a closer look at the case.
Victoria Bitter case
Victoria Bitter is one of the highest selling beers in Australia. A complaint was made about Victoria Bitter’s Facebook page on the grounds that user content breached the Advertising Code. The claim was that the content was allegedly discriminatory toward women, degrading to homosexuals, used strong obscene language and did not treat sex, sexuality and nudity with sensitivity to the relevant audience.
This complaint related to third party posts made by public users of the site, not posts actually made by Victoria Bitter. Followers were asked to comment on things like: “What’s essential for a great Australia Day BBQ?” Even though this sounds like something innocent enough and a fun way to get their audience involved, the user posts in response to the question did appear to be highly offensive. Victoria Bitter did not remove or take the posts down, and that is how they ended up in hot water.
Victoria Bitter was found to be responsible for the content, even though it hadn’t authored, posted or endorsed the content in question. This ruling has left many businesses scrambling with the new understanding that content on their social media pages might be viewed as their responsibility, even if it is posted by a third party user.
What does this mean for your business?
This ruling has caused a lot of discussion in the media, and has businesses coming to grips with the implications of a finding like this and what it can mean for them.
Perhaps the ruling shouldn’t come as such a surprise though. It’s probably safe to say that the highly offensive nature of the user generated posts, and the fact that they were in response to questions prompted by Victoria Bitter itself (although not offensive), had influence on the finding in this particular case. However, it certainly looks like this is likely to be the beginning of more activity through the courts as our society and businesses come to grips with the changing face of marketing and responsibility across various social media platforms.
The ASB’s ruling acknowledges that removing user-generated content would be ‘challenging’. To assist in finding clarity, the Australian Association of National Advertisers has initiated discussions within the industry to produce clearer internal guidelines in response to these rulings.
We’ve checked with the ACCC and whether they have an official take on this for businesses, and they don’t yet have anything official to release. They only commented that businesses should comply with the Australian Consumer Laws. One of the ACCC commissioners commented that she’d be surprised if a big corporate player “with lots of resources that’s putting a lot of effort into social media” wouldn’t be able to take down comments within a day or less. She may be correct, but what about smaller businesses with less resources?
Until clearer guidelines are provided, the message to take away for the time being seems to be that it’s best to err on the side of caution.
Until clearer guidelines are provided, the message to take away
for the time being seems to be that it’s best to err on the side
These rulings indicate that the courts, and now the ASB, are willing to find that owners of Facebook pages have control over the content that appears on them, even if the content is posted by third party users and not the company itself. Simply denying responsibility won’t work.
Businesses now need to have a thorough system in place for actively monitoring their Facebook pages, and other social media platforms, on a regular basis to be on the lookout for and remove offensive content or content that might otherwise breach the consumer laws, the advertising code, or any other relevant law.