ASB Ruling – Implication for Brands in Facebook

 Earlier this month, the ASB (Advertising Standards Bureau) who deal with complaints lodged by the Australian public on advertising, ruled that Carlton United Breweries was liable for the comments made by the public on VB’s Facebook Page . The ASB took the unthinkable position and declared that all social interactions occuring on the brands Facebook page were considered “advertising”.

This was brought on by  two academics from Queensland Nicholas Carah of Queensland University, and Bond University’s Sven Brodmerkel, who were investigating the interaction between brands and consumers in social media. These guys, doing it as an “academic exercise” (*sob*) submitted the complaints to the ASB against Smirnoff Australia (Diageo) and VB (Carlton United Breweries) on Facebook, and according to the ASB process, all complaints are investigated, and the relevant complaints taken to the Advertising Standards Board for determination. The codes administered are very comprehensive, covering every aspect of advertising -from making sure ads don’t make false claims to preventing the depiction of people in inappropriate stereotypes.

Of the 2 complaints, the ASB ruled in favour of Smirnoff Australia, dismissing the complaints which included the Facebook Page being visible to under 18 year olds.

However in the case of VB, the ASB ruling will hold the brand responsible for alleged racist, sexist and anti-gay comments made by fans of the brand, on the VB Facebook page, and therefore made the brand liable for prosecution.

When you read the case notes, there’s no denying the VB Page administrator let a lot of dubious commentary from fans stay public, without reminding the community what the acceptable standards for participation are.

What’s at the heart of this entire matter is the ruling that all Facebook brand activity, including fan comments have been declared to be “advertising”. This is in direct contrast to what the majority of Facebook fans of brand pages are there for – they want to participate and engage with the brands. Sure, they are their to win competitions (Facebook is now the default digital competition platform) and get “free stuff” and even whinge about products or bad customer service experiences. But if fans of brands considered even for one minute that every interaction they were having was considered part of the brands advertising, they would not be there in the first place. Number one rule of social media from a consumer’s point of view is “what’s in it for me?”. Particularly in Facebook, the brand is there to help lift the consumer’s status to their friends and their network – or fulfil other utilitarian functions.

Getting back to the ASB ruling, its been made by authorities who look at “advertising” and judge what breaks or meets standards and criteria. So the biggest flaw is that they are looking at a two -way conversation and saying that the brand is responsible for what the other people are saying about it or the opinions and views expressed on the branded Facebook Page.

The ASB has now confirmed that both cases have implications for businesses that may have once thought onus fell on the comment maker. Social media is now being treated in the eyes of the law as a deliberate branded published forum, which appoints brands as the gatekeeper of conversation.

While Facebook Timeline for Brands changed the layout so that posts by fans are minimised to a small section on the top right hand side of the page called “Recent Posts by Others”, fans can continue to comment on Brand posts, the bulk of Brand page content, and there is very little a Brand Page administrator can do to comply with the ASB ruling except to take down objectionable content posted by fans as soon as they are aware of it. This puts additional resourcing pressure onto brands, meaning after hours and weekend work for community managers will need to be paid for. Alternatively, the Brand Page can be locked down to prevent “posts by fans” from being seen on the Page, or to prevent fans posting video or image content. This goes against the entire premise of Facebook engagement for brands, which follows the same engagement model as engagement with friends.

The ASB ruling has been made without clear understanding of the functionality of the Facebook platform, particularly that there is no pre-moderation of Fan comments available to Page administrators – the limitation faced by all brands in Facebook. However, as it stands the ruling represents  a significant increase in the workload for Page administrators and could have a serious impact on a brand’s ability to have the sort of real-time conversations with fans that have come to typify social media engagement.

ASB chief executive Brian Gordon admitted there were no guidelines for advertisers as to how quickly a comment made on a brand’s Facebook page would have to be taken down to avoid prosecution. The ACCC came out this week calling for a 24 hour or less turnaround for dealing with inappropriate comments made on large brand Facebook Pages, and giving SME’s “a bit longer” to get to moderate the page

While the ASB ruling stands, its best for brands participating in Facebook to pro-actively manage their Facebook communities, by clearly defining rules of engagement, acceptable comments and behaviour and defining what is and isn’t appropriate content. Close monitoring and using the basic Facebook profanity blockers available to brands can help mitigate risk and assist with ASB compliance.

Things to do for Australian Facebook Page administrators in light of the ASB ruling:

  1. Under permissions, put the profanity blocklist to “strong”
  2. Add additional, brand relevant blocklist words into the moderation blocklist box
  3. Make sure your page has Community Guidelines, either as a tab, or you can just add a Note and then give it a link from the added page apps.
  4. When people post inappropriate comments or content on the page, hide the content until a decision can be made on whether it will breach standards.
  5. Remind the Facebook community about acceptable standards of behaviour, including what type of comments will warrant deletion or banning individuals from the page.
  6. Decide on a timeframe to manage and moderate. It’s unlikely the ASB will have a prosecutors’ leg to stand on if offensive commentary is removed in 24 to 48 hours.
  7. Don’t post “like bait” – posts like the Woolworths and Coles “finish this sentence….”, which is guaranteed to bring out the most juvenile to the most angry of fans to see who can out-gross or rant the most cleverly.
  8. Don’t leave any “isms” up. That means racism, sexism, discrimination against sexual preference, or any other hatisms should be removed immediately. Repeat offenders can be banned.
  9. If you have an iPhone, download the Facebook Pages app and get it to push notifications. That way, you’ll be alerted to fans’ posts and comments no matter what time, and can delete them quickly if necessary.

This will be a wakeup call will to brands who have neglected and/or abandoned branded Facebook pages. The other watchout will be brands with hijacked Facebook Pages. As Facebook reverts Page ownership to brands, the onus will be on the brand to make sure they administer all branded Facebook assets – even if they weren’t originally set up by the brand themselves. Because in the eyes of this ruling, they will be liable for all activity taking place on the Page.

Update: Have a look at this great legal summary from Stephen Von Muenster of Von Munsters Solicitors and Attorneys. His recommendations for tighter management completely  align with my suggestions for Facebook admins above.

What do you think of the ASB ruling? Do you believe it will dampen brand social media engagement in Australia?


  • Great summary; I think big brands will know enough to bring in experts, create the rules and so on – I don’t actually think too many top tier brands were blatantly wading into social without some form of risk management already in place. Where I’m most interested to see the impact of social uptake is amongst small business, who might find this to be a time related obstacle to entry, or an increase in perceived risk. Unlike the big brands – they can’t / won’t be able to simply pay someone to do it for them, so uptake and use of social media in this sector may start to plateau a little bit once this ASB decision becomes more widely known.

  • Hi John, thanks for your comment. Believe it or not, there are some very big brands who’ve abandoned their Facebook pages (with very active fan bases too) because they just didn’t believe in social or digital marketing in general. These are in for a legal wakeup call. The SME’s may be put off – or it may be that everything will just bland out for a while. Or move to other, less regulated social platforms such as Twitter or YouTube.

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  • Kerri

    How will this relate back to Twitter? I manage several business and government social media profiles (Facebook, Twitter etc) and there’s quite a few ‘fake’ accounts/pages for politicians and even the Government itself. Will we be liable for the often inflammatory, incorrect and offensive content tweeted out of these rogue/fake accounts? Twitter will not remove the accounts (we’ve asked). I’m interested to know how we can protect ourselves in this instance…?

  • Hi Kerri, thanks for your comment. In terms of “fake” profiles, its a tricky one. You can take over the fake pages in Facebook, but Twitter is really hard as you know with rogue accounts. I read this today, and CBA hired 2 sets of lawyers to get a rogue account shut down on Twitter.
    In terms of the ASB ruling, because no-one has complained about any Australian account to the ASB, like the VB Facebook Page was complained about to prompt the ruling, Twitter has not come under their scrutiny. In my opinion, it would be a hard task for ASB to prove that Twitter is an advertising medium, and that an @ reply to a brand would count as an ad. Because as you know, in the case of Twitter, there is no moderator, tweets not belonging to you cannot be deleted. Just hope that those academics don’t start a new case, and complain to the ASB about an Australian brand on Twitter to prove a point. So in terms of protection on Twitter, register as many names around the “brand” as you can to protect it and make sure the main official brand Twitter account has plenty of credible tweets, links and the word official in the bio. Using logos and background images can also help add to an aura of credibility. Only sophisticated Twitter hijackers go all in with branding, and where they lose out is the history. Having a long tweet history is the best protection you can have.