But is user generated content really advertising?

POSTED BY Rick Shera
01 August 2013

posted in l@w.geek.nz | Advertising | Consumer Law



I've written before about what seems to be a difference of opinion between the New Zealand Advertising Standards Authority (ASA) and its Australian cousin, the Advertising Standards Bureau (ASB), as to whether user generated comments (UGC) are subject to their respective codes.

The ASB, in two widely discussed 2012 decisions, concluded that comments posted to a brand's promotional Facebook page will be presumed to be advertising.  Therefore the brand owner will be responsible for ensuring compliance with the ASB codes.  In one of the cases involving Fosters, the ASB concluded that the UGC did breach the relevant code; in the other involving Smirnoff, it concluded there was no breach.

Conversely, the ASA in its October 2012 guidance note intimates that UGC will not be presumed to be advertising (although it may be in certain circumstances).

IAB Australia (the Interactive Advertising Bureau), the trade association representing online advertisiers (of which we have our own here in New Zealand) has now lept into the fray, with its own 2013 comprehensive Best Practice for User Comment Moderation (Links to pdf).

Here's what the IAB Australia has to say about a brand's responsibility for UGC:

Based on a careful analysis of existing laws and regulation and industry practice, the IAB believes that user comments directed towards an organisation or social media platform, or to other users who are drawn to a particular organisation, do not constitute advertising.[page 6]

That comment obviously caused significant industry rumbles and criticism of IAB Australia's position, which resulted in the "analyser" of those laws and regulations, IAB Australia's legal counsel, Samantha Yorke's "smackdown" guest piece in The Australian:

It [the ASB] is not a law-making authority or a regulator; and does not look to the law when making decisions. It determines the outcome of complaints based on the AANA codes, which apply to all advertisers and marketers across the country irrespective of whether they are members of the AANA and whether they have participated in the development of these codes. Therefore, the ASB determinations are only as good as the policy they are based on (ie. the AANA codes) and this is the centre of the debate.

Last August, the ASB determined that user comments on a branded Facebook page constituted advertising or marketing communication under the AANA codes and held the advertiser responsible for any comments being made by members of their community which fell foul of those codes.

There was no legal precedent for this decision in Australia or elsewhere in the global Internet community. Indeed the decision extended well beyond the existing Australian legal treatment of user generated content on the Internet which relies on a publisher or host of user generated content possessing awareness or 'actual knowledge' of an illegal user comment before being held responsible for it.

All good stuff, but where does that leave us?

Personally, I think the ASA's approach is best. There should be no presumption either way.  Focus on whether and to what extent the site owner invited the UGC and should have expected the types of responses it received.

If your promotion or competition involves creating a buzz based on social media engagement, beyond what is normal in just having a Facebook page for example (e.g. specifically encouraged posts, tweets, likes, pics etc) then, in effect you are leveraging exposure from that buzz, which sounds a lot like advertising.

In other words, live by the sword; die by the sword.

POSTED BY Rick Shera
01 August 2013

posted in l@w.geek.nzAdvertisingConsumer Law



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