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ASA lays down the social media law for Kiwi brands

ASA lays down the social media law for Kiwi brands

Changes are afoot in the marketing and advertising world affecting interactions with consumers online.

nz social media asa rulesWhen the Australian Standards Bureau ruled that user generated content (UGC) on the Carlton United Breweries Facebook page could be classified as advertising and was therefore subject to the same criteria as any other ad, advertisers and advocates smacked their gobs and quivered in their boots because they felt on-the-fly moderation required to deal with comments was commercially impractical and would nullify the immediacy and openness that make social media so powerful (others felt it was a positive step, however).

Now the Advertising Standards Authority in New Zealand has released its views on the matter, and while it doesn't go quite as far as its neighbour's, there are some interesting rulings that affect how brands interact with consumers online. Check out the guidance note here.

In Australia, the ASB found that advertising codes apply to material posted on Facebook by users or ‘friends’ because it is material over which the page creator has a reasonable degree of control, so any Kiwi company that operates in Australia and has a social media presence needs to be aware of that rule. The ASA also considers branded Facebook pages and websites to be advertising, and while it says user generated content does not come under its jurisdiction, it seems brands can still be liable for comments on their own sites if they aren't moderated, with the key phrase being 'reasonable degree of control'.

"Social media platforms allow individuals and groups to create environments that may refer to or comment on advertiser brands. Unless the advertiser has a reasonable degree of control over the social media platform in use and is promoting a brand or service to the public, it is outside the jurisdiction of the ASA ... The degree to which a brand-owned social media page or site is moderated by, or on behalf of, the advertiser would likely be considered in the case of a complaint".

According to the document, examples outside ASA jurisdiction include:

• An individual posting a brand’s TVC on YouTube with additional footage/comments
• An individual posting footage on YouTube using a brand or product but with no company involvement
• A tweet from a brand re-tweeted with added offensive content
• User-generated comments on brand social media platforms (moderated for harmful and offensive language and comments)
• User-generated comments to media platforms for use in editorial content

But if you can check any of the boxes below, you have to play by the ASA's rules.  

• Did the advertiser originally solicit the submission of the UGC from individuals and then adopt it and incorporate it within their own advertising?
• Did an individual provide the advertiser, on an unsolicited basis, with material that the advertiser subsequently adopted and incorporated within their own advertising?
• Did the advertiser solicit UGC (for example via an invitation to enter a competition) that resulted in content being posted on the site?

According to AJ Park's Kate McHaffie, the UK’s Advertising Standards Authority has a similar remit extending to marketing communications on brand owner's websites and other online spaces under their control, such as Facebook and Twitter, and its rules don’t cover comments from members of the public unless marketers include them in their own material, for example by retweeting.

As with a number of other environments, where advertising and other content exist side-by-side, the ASA says each complaint would be considered on a case by case basis, and "context would be a key matter for consideration". 

McHaffie says the ASA has already considered several complaints involving social media, including a complaint against DB Export beer regarding user content posted on its Facebook page. 

"DB conceded that it was responsible for all content on its page, but the complaint was settled and so the ASA didn’t have to determine the issue." 

The ASA has also stated paid-for Twitter endorsements require the hashtag #ad (Nike recently lost an appeal in the UK for a Wayne Rooney tweet that wasn't clearly marked as marketing) but we're not sure whether that rule also applies to those spruiking PR freebies. It also says advertisers should be careful about re-tweeting customer tweets, as they could be liable for that content if misleading (according to Rick Shera, "misleading endorsement is already covered by s13(e) of the Fair Trading Act"). 

Shera also points to the US Federal Trade Commission's update of its 1980 guidelines that added examples relating to online endorsements via blogs and social media platforms like Twitter. 

"The notes and official guide have some useful background and are worth a read by New Zealand advertisers even if not directly applicable here," he says on his blog. 

In order to limit the potential for trouble, the ASA has encouraged advertisers to develop their own social media policies and suggests making sure terms of use for users posting UGC on the sites/pages are clear. 

It also says brands should consider a disclaimer and offers an example from Tim Newman

“This page is monitored daily by Your Company/Organisation. We support the discussion of free speech and engagement with others, however we reserve the right to remove anything posted to this page that we deem to be offensive, including:

• violent, obscene, profane, hateful, suggestive or racist posts, links or images
• comments that threaten or defame any person or organisation
• solicitations, advertisements, or endorsements of any financial, commercial organisations
• off-topic posts by a single user
• repetitive posts copied and pasted or duplicated by single or multiple users.

Offensive users will also be blocked from our social network pages. Your Company/Organisation is not responsible for the personal, political, organisational or religious beliefs of its friends, fans or followers across all social networks. All contributors are asked to keep in mind Your Company/Organisation core values -including integrity, respect, and excellence - when communicating with or about us. Please feel free to contact us Your Company/Organisation email address.”

This story originally appeared on StopPress