New guidance from the Advertising Standards Authority confirms need for businesses to monitor social media sites

The guidance reiterates the importance of formulating and following a clear social media moderation policy for businesses looking to promote their brands on social media - a step that the ASA says it would take into consideration in the case of a complaint.

Social awareness

The ASA's position is consistent with recent Australian decisions (involving the brands Smirnoff and VB), and confirms that content added by users to a brand's page on social media platforms such as Facebook can constitute advertising and may therefore fall within its jurisdiction.

In particular, user-generated content will be regarded as advertising - and therefore will be within the ASA's jurisdiction - if a business has a reasonable degree of control over content on the page (for example, the ability to remove or block user content) and:

• the business has adopted and incorporated user content into its own advertising (whether solicited or not)
• the business has solicited content (for example, by inviting people to enter a competition, or asking users an open question) that has resulted in content being posted on the business' page.

The ASA has clarified however that advertisers are not responsible for "fan pages" for which the advertiser does not have control.

The position taken by the ASA means that businesses will need to ensure that content posted by members of the public on their social media pages is not offensive, misleading or otherwise falls foul of the ASA's Codes of Practice.

In a nod to a recent Australian Federal Court decision (ACCC v Allergy Pathway), the ASA has also reminded businesses that user content on a brand's social media page which is false or misleading could put them in breach of the Fair Trading Act.

#ad: cutting the astroturf

The guidance also states that any paid-for Twitter endorsements must use the hashtag "#ad" in order to distinguish the tweet as advertising, a requirement which is consistent with good practice in other jurisdictions.  This may be a response to the practice of "astroturfing" - using social media to create a false impression of grassroots support for a product or business when, in fact, comments are made by individuals paid by the business (whether as employees or otherwise).  However, the guidance does not elaborate on exactly when the hashtag would be required, including whether the hashtag is required when a person tweets about a product that they received for free.

Other updated codes and guidance

The ASA has also published updated Codes and/or guidance for alcohol advertising, comparative advertising and environmental claims, each of which come into force on 1 January 2013.  Of particular note is a clarification that absolute environmental claims - for example, that a product is "environmentally friendly" - can be made if they take into account the effect on the environment at all stages of the product's manufacture, distribution, use and disposal.  The current Code for Environmental Claims states that absolute environmental claims are not appropriate.

Buddle Findlay has helped a number of clients develop policies for using social media in their businesses, including policies for managing brand pages and moderating user content. For further information please contact a member of our team - Susie Kilty, Philip Wood, Steve Nightingale, Andrew Matangi and Allan Yeoman.