Advertising code now applicable to Facebook in Australia

In consideration of the complaint, the board concluded, "the Facebook site of an advertiser is a marketing communication tool over which the advertiser has a reasonable degree of control and could be considered to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose directly or indirectly that product." The Board therefore determined that the provisions of the Advertising Code apply to an advertiser's Facebook page.

Since a Facebook page can be used to engage with customers, the Board further considered that "the Code applies to the content generated by the advertisers as well as material or comments posted by users or friends."

Local perspective

"Marketers ought to behave responsibly and ethically, whether they create an advert that appears in the newspaper or post content in owned spaces online," comments attorney Michael Judin of Goldman Judin Inc, which has experience in social media law.

"While advertising authorities have long held traditional advertisers responsible for their claims, it is the ever-shifting ground of online advertising and social media marketing that has remained a grey area. A ruling like this will prevent dishonest marketers from making statements in social media that they couldn't make in above-the-line media.

"This ruling has created a precedent and represents a new standard for online marketers, one which may be relevant locally if a complaint is made with the Advertising Standards Authority of South Africa or if our local code is proactively modified to include social media marketing ethics," concludes Judin.

While advertising codes traditionally apply to marketing materials generated by organisations, they have not generally been applied to consumers. Through this ruling, however, the code extends to the comments or material posted by users online.

"This ruling effectively holds user-generated content on a brand social media profile to be advertising," comments Candice de Carvalho of Phatic Communications.

"Responsibility to moderate"

"In the event that a consumer expresses a claim about a brand that is misleading, false or harmful, it is reasonable to expect the marketer to step in and correct the claim, but this ruling goes beyond that. Although online marketers have had the power to delete harmful comments through terms of use on social pages, this ruling effectively makes administrators liable for the content posted and therefore the responsibility to moderate is formalised.

"I would encourage debate among regulators, industry professionals and the public who use social media around this controversial ruling. Are the interests of the public really protected through this or will online users feel censored?"

A landmark ruling that will no doubt be remembered for being instrumental in establishing industry regulation, this Australian precedent serves as a warning to online marketers the world over.