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Good afternoon and welcome to the BRR Legal brief, looking at the major legal issues affecting
Australian business. Iím David Bushby and today weíre talking social media, and in
particular weíre looking at the recent Advertising Standard Board ruling in relation to the Smirnoff
and the VB Facebook pages which decided that those pages would be advertisements or subject
to advertising standards which include the posts of their third party users. Here to
discuss what this means for the social media industry and in particular business page owners
is Samantha Yorke, from Interactive Advertising Bureau, sheís the Director of Regulator Affairs
there, thanks for joining us Sam.
My pleasure Dave.
And also Kathryn Edghill, whoís a Competition and Trade Practices Lawyer at Truman Hoyle
here in Sydney, welcome Kathryn.
Thanks Dave.
Sam I just want to kick off with the VB and the Smirnoff decisions, what happened here?
Well Dave VB and Smirnoff like many other brands around the world created pages on Facebook
to promote their products and services and their brand more broadly. One complaint was
made to the Advertising Standards Bureau here about some of the third party user generated
comments that were appearing on those pages, and the complaint was that those comments
violated the Code of Ethics that the Australian Association of National Advertises have developed,
and the Code of the Conduct that the Alcoholic Beverages Committee have developed. And in
this instance the ASB found that the comments on the Smirnoff page actually were not offensive
to broader community standards and didnít violate those codes, but that in the VB case
there were some comments there that were offensive, did violate the codes and should have been
removed by the advertiser. I should flag that the controversial perspective on this and
this determination is that the advertiser ñ sorry the ASB found the advertisers to
be responsible for those comments, despite the fact that the advertiser didnít write
them, didnít publish them and didnít editorially select which comments to publish on the page,
so they appeared there through the acts of third parties, yet the advertiser was held
responsible for those.
Well itís certainly got social media marketeers into a spin, thereís a lot of frenzy over
this decision, and itís as if for the very first time those pages or content of those
pages means that the page owners would be liable, there seems to be two I guess issues
here. One is the advertising overlay that weíve just been talking about, and another
one is liability for misleading and deceptive posts that appear on Facebook pages, Kathryn
can you talk us through that?
Yes certainly Dave. Thereís nothing really new as far as the law goes with this recent
decision. What it really is, is sending a message though I think is that even though
social networks might be considered fairly informal forums or places for conversation,
theyíre subject to the law. From the misleading and deceptive conduct perspective about a
year ago, in February 2011, the Federal Court actually found Allergy Pathway and its director
guilty of contempt of court arising out of some third party posts on the Facebook account
and a Twitter account. Now those third party posts were testimonials and the Court had
previously found in the case of Allergy Pathways, that certain things that it had said about
its products were misleading and deceptive. They found that by allowing those testimonials
to basically repeat that misleading and deceptive conduct, the party that was liable for them
was the company and its director and it was liable for them because it knew about that
and it let it stay on its Facebook page.
And I guess sticking with the misleading deceptive conduct issue for the moment weíve seen one
of the ACCC Commissioners, Sarah Court, come out recently and state that at least for the
larger players with Facebook pages their expectation would be that illegal content on those pages
needs to be taken down in 24 hours or even less, again is this a new standard or was
this something expected?
Well thereís actually no standard in the Competition and Consumer Act, and I think
what the ACCC is just saying here is this is our expectation and from that perspective
itís great to know what their expectation is. The real issue here though is if youíre
posting your own comments onto your own Facebook page and theyíre misleading and deceptive,
youíre not going to get that 24 hour take down period, itís not like the Broadcasting
Services Act that does actually have a takedown provision, a notice and take down provision,
but what itís signalling is a bit of leeway, itís the ACCC recognising that companies
donít necessarily have somebody sitting monitoring their Facebook pages every minute of every
day, and itís recognising that you know sometimes people post things at odd hours of the morning
or whatever, so their view is 24 hours is enough time, and what itís really saying
is you really have to be vigilant, the price of social media effectively is frequent and
regular vigilance.
Absolutely. Sam just to bring you in here again on to the advertising side. The Advertising
Standards Bureau I understand is a self-regulatory body, it enforces the Code of Ethics on decency
et cetera, we had of course Smirnoff had a clean bill health, VB not so lucky, so just
talking penalties for now, what are the type of penalties are we talking about, and who
dishes them out?
Well the ASB is absolutely an independent complaint handling body that manages complaints
relating to the advertising codes, the self-regulatory codes, and in this instance of course Smirnoff
were found to not contravene those codes, but VB did. The penalty that the ASB is able
to deliver is to all intents and purposes to uphold a complaint, and if they do chose
to uphold a complaint they can require the advertiser either removes completely or amends
the content within the advertisement that was deemed to be in violation of the Code.
They also published their findings Dave on their website, so thereís a risk there for
some negative publicly around an adverse finding, but they have no ability to fine advertisers.
Right so monetary, direct monetary penalties.
No thatís right.
Well with these rulings are they now set in stone, can the rulings be appealed for instance
or could we even be looking at law reform here if the Government are able to be convinced
that this type of liability for page owners is excessive or too burdensome?
Well advertisers have no right to appeal an ASB decision, whether thatís fair or not
Iím not here to say. If a complaint is dismissed the complainant may appeal that decision and
have that reviewed, but the advertiser upon whom an adverse finding can be made has no
right to appeal. In this case Dave I think Kathrynís mentioned a couple of pieces of
legislation that impact on this space. The Broadcasting Services Act sets out what is
really global standard for social network operators which is a notice and take down
standard, so that once a company receives notice that thereís content on their site,
thatís been posted by a third party, that is illegal or which violates the terms of
service for that site, the operator has an obligation then to promptly investigate that
and take appropriate action, and that usually is to take the content down. And there are
a number of tools that are available on all of the big social networking services that
enable people to flag content for review, and to report abuse, so there are good mechanisms
in place. Where this decision by the ASB I think is a little inconsistent with those
precedents, is that they havenít required that notice be received by an advertiser before
the need to investigate the content and take it down kicks in.
Well I guess moving on to some hints and tips for the page owners out there, whether itís
for Facebook or for Twitter, Kathryn may be the first one to you if a page owner sees
a post on their site that is actually plain wrong, what are their options; what should
they do?
Well Dave it really depends on how itís wrong. A simple thing that somebody puts a post that
says this product is wonderful and I like it because it comes in green and yellow and
blue, but forgets to mention red, well that can be easily corrected, it can be a you know
a post from the owner which says yeah thatís fabulous and it comes in red too. But if itís
a misleading and deceptive post, so if itís particularly something about the performance
or characteristics of a product, for example if somebody posts something like your wonderful
washing machines also iron my clothes, and they donít, then thatís clearly misleading
and deceptive and if you leave it up there, youíre going to be held liable for all the
people who rely on that wonderful post and buy your washing machine and find out it doesnít
iron your clothes. So in that instance itís a takedown mechanism.
And Sam I guess a more of an advertising one for you, if we see something that is posted
and it more falls in that indecent realm, itís not outright abusive, weíd hope that
most people would take that sort of content down, but something thatís treading that
more of a finer line, what would you think?
Well those boundaries arenít always very clear are they Dave, and it is a very subjective
judgement call, because whatís offensive to you may not be offensive to me and vice
a versa and one of my concerns about the potential for this ASB ruling is that it will force
companies to very conservatively moderate content appearing on their social networking
pages, just because theyíre frightened of that risk and it may ruin the opportunity
for online communities to engage in free expression of ideas and healthy debate which is what
a lot of these sites are really designed to engender because people are frightened and
their risk managing and theyíre employing very knee jerk moderation policies to take
anything down which might be remotely controversial, which I think would be a great shame.
Are you starting to get that feeling from members and feedback that youíre getting?
Definitely, definitely because people are concerned about this decision and the impact
that it has on advertisers and advertisers feel like they canít just wade into this
half way they have to make a full commitment to moderating these pages now. And to avoid
that risk of somebody perhaps being offended by something and making a complaint inevitably
moderation policies will become a lot more conservative.
Well just to wrap up I want to talk about maybe itís a risk mitigation measure, but
some companies are starting to employ terms of service on their actual Facebook page,
so rules about using their Facebook page. Does that add any value here?
Terms of use those things that people often canít find and usually donít read, they
are of value Dave, theyíre of value in some ways as a preventive measure, because theyíre
warning people that content will be taken down which is in breach of the law or violates
policies or prevailing community standards or whatever. The real value of them I think
is that theyíre a reminder that there is a legal context to social media, and there
are legal consequences about what goes on to social media, and I think there has been
a little bit of a disconnect between the two for a while, people have thought of them as
just informal forums for conversations, when I think these decisions are starting to say
no, they really are a little bit more and you have to be mindful of the laws that apply.
Absolutely.
I think the question just comes down to who is responsible though at the end of the day
Dave. Should it be the advertiser whoís created the forum for people to exchange their ideas
or should it be the individuals who are publishing the offensive or illegal content themselves.
And these terms of use do exist today on every site and they are enforced on receipt of notices,
but thereís a risk too that if advertisers create their own versions of terms of use
to sit on top of the platform providers terms of use they may complex, inconsistencies,
which one overrides the other, it leads to a lot of interesting questions I think.
Absolutely. Well it is very early days as we all learn grapple with this technology
and the pace in which it changes, but thank you again so much for your insights today.
Pleasure.
Thanks Dave.
And viewers thank you for tuning in, we look forward to having you join us for next weekís
BRR Legal Brief.