The chang­ing face of so­cial me­dia

Could your business be held re­spon­si­ble for user gen­er­ated con­tent on Face­book?

Business First - - CONTENTS - by Joanna Oak­ley

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

of cau­tion.’

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.

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