Social media danger looms for soloists

Decisions by two Australian regulators create an entirely new environment for all small business people who use social media to promote their businesses.

The decisions mean that a small businessperson using Facebook or other social media, like YouTube or LinkedIn, is legally responsible for users’ comments in the same way you’re responsible for ads published on TV, radio or newspapers.

That is, if someone posts a comment on your Facebook page, then that comment is officially your ‘advertising’. You are responsible for the content.

Here’s what’s happened:

Advertising Standards Board (ASB)

Australian advertising standards are applied under a voluntary code of ethics through the Australian Association of National Advertisers.

The codes are primarily about stopping advertising of inappropriate language, images, portrayal of people, violence, sexual appeal and sexualised images. That’s good.

Anyone can lodge a complaint, which the ASB then considers and decides upon.

Recently the ASB handed down a decision on a complaint about social comment on a Facebook page run by Smirnoff (a vodka drink brand). The ASB found that Smirnoff had not breached the advertising code. But the ASB declared that comments/postings made on the Facebook page are advertising.

Here’s the Smirnoff decision.

The consequence is that if you run a social media site relating to your business (big or small), comments other people post on your site are your advertising. You are responsible and you must control the content.

Australian Consumer and Competition Commission (ACCC)

The ASB decision also needs to be considered in the light of an ACCC prosecution and conviction last year (2011) against a company for allowing false and misleading statements to be made on the company’s Facebook page.

Here’s information from the ACCC on the case (ACCC v Allergy)

It’s not surprising that Allergy was convicted because it had:

• previously been found to have made misleading statements and had given undertakings to the ACCC that it would not make any more; and
• been made aware of the Facebook posts and not done anything to correct the misleading statements.

Australian Association of National Advertisers (AANA)

The AANA is the peak national association for advertisers. It has given advice to the advertising industry as follows:

• “If you have a Facebook page, the user generated comments will be regarded as part of the page’s advertising and marketing communications.”

• “Advertisers should take reasonable control to moderate comments once they have been posted … a few times during the business day”.

• “The usual rules about comparative advertising and misleading and deceptive conduct apply under the Australian Consumer Law and the ACCC”.

What the lawyers say

There’s been a flurry of comment from the big legal firms. Here’s what Maddocks, Gadens, and vonMuenster have said.

The great thing about the internet and social media is that it’s liberated small businesspeople, in particular, to ‘do our own thing’.

It’s a fabulous new world in which businesses ‘of one’ can have a global presence, opening up new, personal business possibilities.

As seems to happen with all liberating possibilities, eventually, the regulators move in. It’s called red tape, and it usually creeps in by stealth. Now we have a new example.

It does seem absurd that comments that someone else (who you most likely don’t even know) posts on your social media site should be defined as ‘your advertising’. That seems to be stretching the limits of common sense.

You haven’t paid for the comment and you didn’t initiate or design the comment.

Certainly misleading, or deceptive ‘advertising’ must be stopped. Inappropriate comments and images (sexualised or other) must be stopped.

But the regulators need to have a good think about how small business people should be expected to control such material that they themselves do not even create.

And small business people cannot be expected to understand the fine detail of how the regulators will interpret comments made.

Some common sense guidelines from the regulators are needed.