Advertising Standards Bureau finds Foster's and Smirnoff liable for third party comments on Facebook pages.
In two practically identical complaints lodged in relation to the Victoria Bitter and Smirnoff Vodka Facebook pages, the companies were accused of breaching the Advertising Code ("the Code") by depicting irresponsible drinking, sexism, racism, excessive consumption and people under the age of 25 drinking alcohol.
The Advertising Standards Board considered that "the Code applies to the content generated by the advertisers as well as material or comments posted by users or friends." This effectively makes companies responsible not only for the material they put out, but the way in which the public engages and reacts to the advertisement.
Echoing the sentiments of Australian rock satirists, TISM, who quipped that "you're only as good as your fans", the complaint against Smirnoff was dismissed as the comments on their page were found not to be in breach of the Code.
VB, on the other hand, were reprimanded for fan comments on their Facebook page which depicted sexism ("women should be chained to da kitchen. Lmfao."), homophobic ("bloody poofs"), sexual and obscene language (which shouldn't be repeated). While the Board accepted that VB could not prevent third parties posting obscenities on their Facebook page, the advertiser was called into question for failing to monitor and remove the offensive material from the page.
These decisions mirror the Federal Court of Australia's interpretation of a company's responsibility for third part comments on their Facebook page in the decision of the ACCC v Allergy Pathway Pty Ltd (decision here).
Allergy Pathway had previously entered into agreed orders to refrain from making misleading statements in their advertising and were found to be in contempt of court by failing to uphold their undertakings.
The substance of the breach were testimonies from clients posted on the company's Facebook and Twitter pages which were misleading and in breach of the previous undertakings given by Allergy Pathway.
Finkelstein J said that "while it cannot be said that Allergy Pathway was responsible for the initial publication of the testimonials... it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of the publications and decided not to remove them. Hence it became the publisher of the testimonials. In any event it is clear that it caused them to continue to be published from the time it became aware of their existence, which is enough to put Allergy Pathway in breach of... it's undertaking."
The company was ordered to pay damages (with costs), subjected to three years of injunctive measures and made to publish corrective advertisements, including sending letters to past customers.
Anyone thinking of using social media as a marketing tool (which is pretty much everyone these days) needs to be aware that they may be held responsible not only for content they generate, but also for the third party interactions with that content. Accordingly, close monitoring to remove offensive material is an essential part of any online marketing campaign.
Patricia Monemvasitis ([email protected]) ph: 9291 7126 and Martin Slattery
([email protected]) ph 9291 7138
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
