One of the major consequences of advertising in the digital and social media sphere is the elevation of the issue surrounding the blurring of advertising and content.
The Australian Advertising Standards Bureau (ASB) was one of the first advertising self-regulation complaints handling bodies in the world to clearly determine that social media, and consumer comment on a brand/product website, falls within the scope of the self-regulatory systems and needs to comply with relevant standards.
The approach taken by ASB was supported by the Australian industry, with The Communications Council in Australia compiling a Social Media Code of Conduct to help businesses to determine their responsibilities. The Australian Association of National Advertisers (AANA) has released a Best Practice Guideline for Responsible Marketing Communications in the Digital Space. The Interactive Advertising Bureau (IAB) has since released a guideline for Best Practice for User Comment Moderation. Similarly, the Australian Competition and Consumer Commission quickly confirmed their view that advertisers can be held responsible for consumer comments made on advertiser social media pages which are false or likely to mislead or deceive consumers after a 2011 court case found that a company accepted responsibility for fan posts and testimonials on its social media pages when it knew about them and decided not to remove them.
The ASB's view of social media being part of advertising and marketing communications is now shared with international approaches particularly the approach of our counterparts in Ireland and the UK and New Zealand, and has driven the development of a consistent position across European self-regulation organisations.
Is it an ad, or is it not?
Whether material is advertising or marketing communications matters because such material must comply with content codes. These Codes, primarily the AANA Code of Ethics (go to www.adstandards.com.au for full details), ensure that advertising and marketing content meets community standards.
In determining what on social media is advertising and what is not, the ASB must consider the definition set out in the AANA Codes. Under the Codes advertising and/or marketing communication means “any material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, and over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct.”
Sponsored posts on media such as Facebook are clearly identifiable as advertising or marketing communications and are dealt with as such.
The more tricky area is advertiser own Facebook or Instagram pages. Is everything on such a page to be within the ASB’s jurisdiction? The reality is that, similar to an advertiser’s own website, some material on an advertiser’s own Facebook or Instagram page will be considered advertising or marketing content and other material will not. Just because the page itself is branded, doesn’t mean every post is considered marketing.
What is advertising, and what is not?
Branded material on social media sites, such as games featuring the product, recipes using the product, suggestions to buy the product, or competitions related to a product will all be considered as advertising or marketing communications and subject to the requirements of the AANA Code of Ethics. Similarly, advertiser posts on a Facebook page which feature the product or encourage purchase or consumption of the product or service will also be considered advertising or marketing communications, as will user generated comments appearing on the page in relation to such posts.
User generated content in response to a post by an advertiser is content which the advertiser has a ‘reasonable degree of control over’ and must also comply with relevant standards. In 2012, the Advertising Standards Board (the Board) upheld complaints against a post on an advertiser’s Facebook page, due to comments made on the page by users posted in reply to questions posed by the advertiser. In their determination the Board noted that:
“Social media is an advertising platform that requires monitoring to ensure that offensive material is removed within a reasonable timeframe and that content within a Facebook page should, like all other advertisement and marketing communication, be assessed with the Code in mind.”
However, some material on a Facebook page or Instagram will not be considered advertising or marketing communications and complaints about such material may be considered by bodies other than the Advertising Standards Board. To date, there are two main categories of material:
- complaints about the content of news reports, articles, editorials, letters, cartoons, images and other material published by Australian Press Council members will be referred to that Council for consideration.
- material such as references to news reports, articles, editorials, letters, cartoons, images and other material by other advertisers, which is not calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct is not within the jurisdiction of the Advertising Standards Board. These will be considered content and complaints will be referred, as far as possible, to appropriate regulatory agencies.
The determinations made by the Board, in relation to the use of social media, show that advertisers using social media to promote goods or services also need to consider carefully and follow the codes and initiatives which underpin the advertising self-regulation system.
Compliance with Code breach determinations
A successful self-regulation system relies on the good will of advertisers. Responsible advertisers will ensure they are aware of the standards for advertising and, in the event that they have complaints about one of their advertisements upheld, will ensure that the affected advertising or marketing material is removed promptly. The advertising self-regulation system has a compliance rate of almost 100% (98.7% in 2013). The social media environment is no different to traditional media in terms of compliance expectations. Facebook too is supportive of ensuring advertising and marketing content meets relevant Australian standards and has taken the approach that advertising on Facebook pages needs to comply with determinations made by the Board.
In the very few cases where an advertiser does not comply voluntarily with a determination by the Board, Facebook has agreed it will remove an ad or marketing communication in line with its advertising guidelines: "Advertisers are responsible for ensuring that their ads comply with all applicable laws, statutes, and regulations.”
Facebook will review all complaints that the ASB refers to them in relation to content that is posted on Facebook for compliance with their policies. If there is content that is posted on a Facebook Page that violates the AANA Code of Ethics, or another relevant code and that is the subject of an Upheld complaint to the ASB, which is not removed by the advertiser, then Facebook will take steps to ensure that it is not available out of respect for the applicable Australian regulations.