User Generated Content in Social Media Channels

POSTED BY Rick Shera

15 November 2017

posted in Information Technology | Media | Social Media | Advertising



The Australian Advertising Standards Bureau (ASB) issued two important decisions dealing with user-generated content (UGC) on Facebook in 2012. In both decisions the issue was whether the UGC fell within the definition of “advertising” and was therefore subject to the Australian Advertiser Code of Ethics (ASB Code).

In one case involving Fosters (1), the ASB concluded that the UGC did breach the relevant ASB Code; in the other involving Smirnoff (2), it concluded there was no breach. One of the main deciding factors in both cases was whether the advertiser had a reasonable degree of control over the UGC.

Here’s ASB’s Code’s definition of advertising and marketing communication:

“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, 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….”

The two ASB decisions caused significant industry rumbles not just in Australia but also in New Zealand.

The New Zealand Advertising Standards Authority (ASA) issued a short guidance note following the 2012 ASB decisions noting that UGC may be advertising in certain circumstances and provided the following preliminary areas of enquiry that it would use to assess this:

  • 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?
New Zealand is yet to see a case on point, but the 2012 ASB decisions and the rapidly changing world of advertising, particularly in digital channels, appear to have led the ASA to update its definition of “advertising and advertisement” in 2016.

The ASA definition of “advertising and advertisement” now states:

“Advertising and advertisement(s)” are any message, the content of which is controlled directly or indirectly by the advertiser, expressed in any language and communicated in any medium with the intent to influence the choice, opinion or behaviour of those to whom it addressed.”

The definition is now aligned with the ASB’s definition that was the subject of the Fosters and Smirnoff decisions.

So, if you have control over UGC in your social channel then that content is now clearly within the jurisdiction of the ASA and its codes. In other words, you can be liable for breach of the ASA codes for material posted by your users if you exercise control. The degree of control necessary is unclear but we expect that the Foster’s case referred to above provides a useful guide – where the UGC is a response to a specific invitation to contribute, then that UGC is more likely to be treated as advertising. Monitoring strategies need to be put in place to ensure it complies with the codes or is promptly taken down if it does not.

It is useful to note here that OMSA (the Online Media Standards Authority), although now disbanded, came to the same conclusion on UGC in a 2016 decision involving a complaint about material posted on the Campbell Live Facebook page. OMSA held that the material should have been taken down immediately where the broadcaster had been made aware previously of infringing content. It should from that point on have actively monitored the page.

Businesses need to have clear guidelines and user terms for their social media channels, which outline their purpose and provide guidance as to what type of material is appropriate and what material will be removed. The ASA has suggested a social media disclaimer which businesses are encouraged to use.

(1) Case Number 0271/12 Fosters Australia, Asia & Pacific, 11/07/12, Case Report here.

(2) Case Number 0272/12 Diageo Australia Limited, 11/07/12, Case Report here.

This article was first published on Marking Association's online blog.

Image courtesy of Rick Obst (size modified)

POSTED BY Rick Shera

15 November 2017

posted in Information TechnologyMediaSocial MediaAdvertising



COMMENTS (0) Post a Comment

Authorisation Code:*
To prove you're human, please type the code in the grey box into the white box. The code is case-sensitive. If you can't read the code, click on the grey box to see a new code.