Social Media - elringtons lawyers

Recent determinations by the Advertising Standards Board (ASB) have changed the ground rules for businesses operating Facebook fan pages.

The ASB found that the Facebook fan page of an advertiser was a marketing communication tool used to promote products “over which the advertiser has a reasonable degree of control” and that advertisers who operated commercial Facebook fan pages were responsible for the comments of fans or other users.

In a case against Fosters Australia, Asia & Pacific (Carlton and United Breweries (CUB)) it was claimed that the Victoria Bitter Fan Page contained:

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

In the response from CUB the company maintained:

“Drilling down into the definition of “Advertising or Marketing Communications”, it was our understanding that User Comments do not fall within that definition as they are not material “over which [CUB] has a reasonable degree of control”.”

However the ASB held that the content on the Facebook pages had breached several sections of the code and 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”.

Carlton and United Breweries (CUB) have removed the content from the website and have now introduced a much more rigorous monitoring regime to ensure that the content on social media pages conforms to Alcohol Beverages Advertising Code (ABAC).

In another case highlighting the perils of comments posted on fan pages the Federal Court held that, in the case of ACCC v Allergy Pathway Pty Ltd, the defendant company was found in contempt of court as it was in control of and responsible for comments posted by users on its fan page.

It is apparent that any business operating a social media site must now implement a guidelines policy that conforms to advertising codes and ensure a strict monitoring process for moderating comments published by users on social networks.

We are all aware of the transformative powers of marketing through social media, however, the popularity that makes social media so effective can also hinder your business’s performance. The challenge for businesses is to balance social media’s good “Dr Jekyll” qualities against its destructive “Mr Hyde” aspects. Social media can be a valuable marketing tool for businesses if used correctly. Both commercial and non-commercial bodies have adopted social media as a means of increasing their brand profile, disseminating information and building relationships with clients. The problem for businesses is that many employees utilise work time on personal social networking sites including sites such as Facebook and Twitter. More than 75% of Australians have a Facebook profile and spend an average of more than 5 hours per month on Facebook. ^[1] While business can impose restrictions on employees’ use of social media in the workplace or during working hours, they must be careful not to infringe employees’ statutory rights under the Fair Work Act and human rights legislation. In circumstances where the employer sanctions the use of social to network, exchange ideas and generally promote the workplace, the employer has an obligation to ensure that the content does not negatively affect the employer-client relationship. Examples include protecting confidential client or workplace information, complying with relevant legislation and adhering to any professional rules or guidelines. Employers must also ensure that the workplace and its employees are protected.

A policy on social media is an important tool in managing the marketing aspect of social media and reducing its impact on your businesses’ productivity.

When developing your social media guideline it is important to:

Distinguish between authorised use and private use.
Review relevant legislation and professional organisation requirements.
Ensure that any material that is placed on the site has relevant disclaimers.
Set out consequences for breaches of the policy.

Obviously, one social media guideline cannot be applied to all circumstances. It may mean that different policies may be required within a single organisation. Should you require assistance in social media guidelines and/or discussion regarding potential breaches of any legislation contact:

Matthew Bridger | e: mbridger@elringtons.com.au | p: 02 6206 1300

[1] Comscore http://www.comscore.com/