ASB’s Latest Facebook Ruling: Regulatory Retardation?

Are businesses responsible for user-generated content on Facebook? The freedom of speech seems to be at stake due to Australia´s latest Facebook ruling.

ASB’s Latest Facebook Ruling: Regulatory Retardation?

In a recent article from the Telegraph, it was reported that the Australian Advertising Standards Board (ASB) has ruled that businesses are responsible for user-generated content (posts or comments) on their Facebook pages to be in compliance with advertising regulations. The test case was brought against Smirnoff concerning comments that were deemed potentially misleading, sexist and offensive. As a result of this ruling, companies will now be forced to vet comments and posts made by the public on their Facebook pages or face the consequences in court. The ruling not only lacks foresight, but also logic.

Not only will this effectively kill the conversation that business may have with its customers, but it will also add greatly to the (until now, negligible) cost of maintaining a corporate presence on Facebook. Companies will most likely err on the side of caution and remove anything that they would not be willing (legally) to publish themselves. This includes not only positive claims, but also any negative responses. Pages will be dull and lifeless, showing only the most innocuous of customer interaction. Facebook pages are more akin to ‘conversations’, than to one-sided slogans in a vacuum and, in that regard, are more of a public forum than a billboard. The pages themselves are ‘pull’ rather than ‘push’ advertising, if they can be considered advertising at all. You are not forced to look at a company’s page, you direct your browser there.

The ruling seemingly only applies to Facebook, but sets a legal precedent that could impact all social media in Australia and beyond. This is just a further slide down the slippery slope of government control of the Internet, paving the way for further abuse of Internet freedom. The ruling is practically unmanageable and unenforceable. It would require constant company policing, by lawyers no less, to comply. Content would have to be published first, then removed by the page owner, or automatically hidden by default, until someone got around to ‘unhiding’ it. This brings the conversation to a standstill, removing the immediacy and ultimately, the relevance of social media.

Facebook may be an easy target due to its scope, reach and popularity, but this could just as easily apply to Twitter or comments on a YouTube video, or even a personal blog. This ruling is an infringement on free speech. Not the free speech of companies, but the free speech of the public.

Some analogies come to mind that make this ruling look absolutely ridiculous. Is a company responsible for graffiti on a poster or billboard? Would they need to hire someone to police their physical advertising wherever it may be? Are they liable for comments made at a sponsored sporting event? Something said about their product at a bar where they were running a promotion? The ruling is vague and begs the question, ‘what’s next?’

The ASB ruling should be overturned lest it lead to even more nonsensical regulation and potential abuse. The spirit of the law could be fulfilled by a simple disclaimer at the top of the page. The consumer has the right to promote (or denigrate) any product or service they choose, especially in the public forum for that product for it to have any effect or meaning. It is the responsibility of the company to encourage that conversation in order to improve their product, service and relationship with their customers, not to censor or stifle it due to government regulation or intimidation.

A few weeks ago, we set the standard for Socially Devoted companies and this ruling undermines the efforts that businesses are making to improve the dialog they have with their customers.

Jan Rezab


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