ASB's Facebook decision to deter 'Wild West' thinking

By By David Blight | 8 August 2012

While the digital industry has chastised the Advertising Standards Bureau's (ASB) determination that brands are responsible for users' Facebook comments, a social media lawyer has said this was just the wake-up call advertisers needed.

Over the past two days, the digital industry has been up in arms about a ruling from the ASB which stated advertisers are responsible for all content on their Facebook page, including user-generated material. The determinations were in relation to a Diageo page and a Carlton United Brewers page.

Advertisers and digital experts have claimed this sets a dangerous precedent in the world of social media, which will be incredibly difficult for brands to monitor, and will scare advertisers away from the space.

Today, the Interactive Advertising Bureau has come out against the ruling, saying it places an unnecessary burden on businesses using social media. IAB Australia director of regulatory affairs Samantha Yorke said: “Businesses who use social media platforms to promote their products and services should consider their options for moderating user generated comments on their pages to manage the image and reputational risks associated with negative user expressions.

“This risk assessment and any resulting actions undertaken by businesses are best left to businesses to determine on a case by case basis.”

However, a leading social media lawyer Jamie white, who is solicitor and director at law firm Pod Legal, said the ruling from the advertising watchdog is a reasonable step, which will make brands realise that the online space is not the “Wild West”.

“It's reasonable that there is an expectation for advertisers to comply with existing laws,” White told AdNews. “Many business owners in the online space have long thought it is the Wild West, and that the rules don't apply. Well, they do.

“This case sends a message that you won't be able to get away with things just because you are online.

“Advertisers should be responsible for all content irrespective of whether it's been placed there by the brand or a third party. I understand the concern, because not all companies are properly trained and have the resources to monitor this. But this does not mean companies should be exempt from the material published. In this instance, the brand is the publisher of the forum and the content, and someone must take responsibility.”

White said advertisers should take five steps to make sure they are compliant. He said they should monitor their social pages, correct misleading comments, provide brand managers and other staff with specialist social media training, implement social media policies and integrate relevant legal terms and conditions onto social media pages to mitigate legal risk.

“The law is being formed, a precedent is being set. Companies will be liable. The third party who posts the comment may also be liable, but it can be hard to find them, and the advertiser is still the publisher of the page and its content.

“Of course, the greater concern is the damage to the brand's reputation, but this case is not about that, it is about establishing the brand owner as being liable for third party content.

“I'd like to caution people to not be ignorant. You will be scrutinised legally in the online space, and people often forget that.”

Meanwhile, as the majority of the digital industry clamours against the ASB's decision, Jayson Hornibrook of social media marketing start-up Peazie has welcomed the determination.

He has argued the decision will elevate social media into the mainstream.

"A brand page is just like a website only social, which means you’re now legally responsible for the content,” Hornibrook said.

“Social media is not black and white and this finding will only make things clearer for brands on Facebook.”

“Every other mainstream media channel is responsible for what it says and does and it should be no different for social, making rulings like the ASB’s necessary.”

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