The remit of the Advertising Standards Board seems to have been creeping.

Last week underwear company Bendon came under fire from the ASB for a Facebook competition that encouraged participants to “take selfies with Besties to win weekly loveable prizes”. Before that the it was investigating a “degrading” advertisement on Facebook for a livestock company and prior to that there was the ASB’s determination that Smirnoff Vodka was responsible for comments left by fans on its Facebook page.

Fiona Jolly, chief executive officer of the ASB, defends the board’s interventionist approach and says the ASB hasn’t increased its activity but instead has taken a more proactive approach to publicising cases and making sure people are aware of the ASB’s decisions and role.

“We haven’t had an unusually busy time. We have just had a couple of quite interesting cases that have generated publicity,” she said. “It is important for the industry to know we are here and what the rules are and also so for the community to know there is somewhere for them to complain.”

It only takes one complaint for the ASB to launch an investigation into an advertisement, which means there is a constant stream of complaints before the board. “If nobody complains it is not a matter that the ASB can investigate but we do find that if there is a problem with an advertisement somebody will certainly complain,” said Jolly.

The administrative body for the ASB, the Advertising Standards Bureau, sends an advertisement to the Board to be investigated if it falls within the Australian Association of National Advertisers code of ethics. “As long as the advertisement raises an issue within our jurisdiction we will send it to our board,” Jolly said.

The only time a complaint will not proceed to a determination by the ASB is if it raises an issue which the board consistently dismisses. For example, Jolly says this occurs when a complaint about an advertisement interprets the advertisement in a way that a reasonable person would not interpret it.

“There was an advert a couple of years ago with two milk cartons on their side with a drip of milk dripping from one of those and there was a complaint it was sexually suggestive,” Jolly said. “We would tend not to send it to the board as it is very unlikely anyone else would take that approach.”

A similar approach is taken by the ASB when complaints are made about road safety advertisements, as Jolly says although some people are badly affected by these advertisements they are important messages for the community.

“Generally if it is just one or two people affected by it, we may bypass the process but we do take the approach that if people have taken the time to make the complaint it needs to be given consideration by the board,” she said.

The ASB has sustained criticism for its recent determinations, with claims the board is over-policing advertising and has extended its reach too far by regulating Facebook pages. Jolly defends the approach: “It is something we are always criticised for; if everybody is unhappy with us we are probably doing a good job. The community tends to say we go too easy on industry and industry thinks we are going too hard on them.”

The ASB has been looking at internet advertising since 2006 and Jolly says that has now evolved from traditional third party advertising on a website to social media such as Facebook and Twitter. Controversially, the ASB found in August that businesses needed to monitor comments left on their Facebook pages as a Facebook page can be viewed as an advertisement.

Michael Pattison, a partner at the law firm Allens, says uncertainty around the use of social media by business has resulted in “ad hoc guidance”. Pattison says this uncertainty was not helped by the Australian Competition and Consumer Commission weighing into the debate, saying its expectation was that big brands should take down inappropriate comments within one day.

“That was all done without public consultation or legislation and it envisages a different standard applying to big brands and small brands and that is not normally a distinction that is common within our legal system,” Pattison said. In light of the ACCC and ASB’s approach it would be “very dangerous” for a business that has an official Facebook page not to moderate and not to review it regularly.

Although the majority of cases in this area have been determined by the ASB rather than the courts, Pattison says courts are unlikely to approve of businesses that want to “take advantage of technology [by using social media] without exercising responsibility”. “The courts would take the view there is a commercial benefit for your company and having taken that advantage it is then not up to you to say ‘It is all too hard to police what is going on’,” he said.

There is going to be some relief for small business with Alina Bain, the director of codes policy and regulatory affairs at the AANA, revealing the association is working on guidance along the lines of that issued recently by New Zealand’s Advertising Standards Authority.

“It’s an internal matter for the AANA, there are a couple of things we are looking at which are collective thinking from our members as to how to approach the social media space and we are collating that in terms of how often you should monitor social media and particular activity which will get you to monitor more carefully,” Bain said. “Because it is such an evolving space it is not possible to think of each and every scenario.”

Jolly says the work by the AANA in conjunction with its members means there is likely to be “less controversy” from large advertisers in relation to the use of social media and there is likely to be more guidance available soon on behaviour on social media for advertisers. She says the ASB will work with the AANA on the guidance if needed and expects the guidelines to be released before Christmas.

“We will give guidance on what we think based on our understanding of the code and what we think is the type of material that comes within our jurisdiction,” said Jolly.

As the body which polices advertising and now social media, the ASB’s power is actually fairly limited. “We operate a self-regulating system, which means there is no legislative underpinning or backup for ASB decisions,” explained Jolly. “The ultimate penalty is the requirement for an advertisement to be taken down, or if it has already ceased it can never be used again.”

Jolly says this is “quite a significant cost” for most advertisers along with the publicity surrounding any decision: “The other implication of a ban is very negative publicity, the naming and shaming is quite effective.”

Pattison thinks the problems with the ASB’s determinations did not stem so much from the penalty imposed but the outdated AANA code which the ASB uses. “You are trying to deal with a very modern phenomenon with an advertising standard that is quite old and that is why we are getting the results we are getting. It is quite clear [the AANA code] is not meant to deal with these circumstances,” he said.

Pattison says the regulatory framework is not keeping up with developments in technology, which suggests what is needed is better guidance for business. “I think we will get some guidance like New Zealand’s but what would be better still is to have a revision to the code, as it has been there since 1997. That was when there was web 1.0 with static webpages that companies put out to advertise their wares and we are now talking about user generated content which is really untouched by the code,” he said.

In New Zealand the Advertising Standards Authority has also warned in its guidance of the dangers of retweeting customer tweets (in case they are misleading) and requires people who are paid to tweet support for a product or service to add the #ad hashtag to make the endorsement obvious.

However, Jolly says the ASB is unlikely to follow the Kiwi lead in regulating paid tweets. “We don’t have a role in saying how advertisers should be identifying themselves, we work from the other end, if someone says something is an advertisement and they are concerned about it,” she said. “That is something that the industry will be doing some work around.”

Jolly says the ASB is also unlikely to follow the lead of America’s Federal Trade Commission, which requires that endorsements and testimonials on blogs and other social media must reflect the honest opinions, findings, beliefs, or experience of the endorser, and that endorsements may not contain any representations that would be deceptive, or could not be substantiated, if made directly by the advertiser.

When there is a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, the FTC requires the connection is fully disclosed.

“The key for us is whether what is out there is in the control of the advertiser,” Jolly said. “Whether someone can advertise or market something without identifying it is a paid conversation is not our concern, our concern is whether they are sexist or racist or promoting unsafe behaviour.”

*This article was originally published at SmartCompany

Peter Fray

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