“Trending” of late has been the introduction of social media best practice recommendations and guidelines from a variety of bodies. Last week saw the release of the Interactive Advertising Bureau’s (IAB) Social Media Comment Moderation Guidelines, which attempt to address confusion over the requirement for moderation of user comments on social media sites.
The IAB is the peak industry body for online advertising in Australia. Part of the IAB’s mission is to make interactive advertising a “simpler and more attractive medium” for agencies, advertisers and marketers. Member organisations include big social media players such as Facebook, LinkedIn, and Google.
It is great to see representative bodies trying to help their members navigate social media legal risk. Making the task harder though, is that this is largely being done in a vacuum. There are almost no legal cases on point. For instance, the Allergy Pathways case has become almost apocryphal when we discuss the legal effect of user comments in Australia, even though the facts of that case were confined, and the lessons taken from it are inferential (see the post of our friends at In Competition here). Likewise, when a representative of the Australian Competition and Consumer Commission (ACCC) discusses legal liability associated with social media use, we digest the nuances almost with bated breath!
The lack of hard law in the space heightens the risk that – when matters are open to interpretation – reasonable minds can differ, leading to a degree of confusion about which are the “right” guidelines.
In the present case, the IAB is concerned that based on existing guidance, “organisations [will] moderate comments very conservatively, which will adversely impact their presence on social platforms and which arguably undermines the very spirit under which social media thrives”. Therefore, its guidelines suggest that organisations moderate user comments to the extent resources allow, at the same time as posting a new comment, and more frequently if controversial responses are directly solicited.
Arguably, this threshold is lower than some other guidelines we have reviewed. For instance, the Australian Association of National Advertisers (AANA), which is also a member driven organisation (sharing members with the IAB such as Google, Ferrero, and McDonald’s), takes a more hard line view, recommending that brands actively participating on social media should moderate at least once every business day, and for two hours immediately following a post by the brand (and more frequently in periods of increased engagement). See our previous post on the AANA Guidelines here.
Tensions between representative bodies
It therefore does not surprise that the AANA takes issue with the IAB’s new guidelines, leading to questions for the rest of us about ‘which is best’, ‘who to trust’, and how much of these competing guidelines involve positioning rather than hard legal graft.
The AANA has been unequivocal in its approach to the IAB guidelines, recently releasing a statement in which they were described as “irrelevant”. The AANA’s new CEO Sunita Gloster said that:
“The IAB is entitled to its opinion but the reality is that…[t]he IAB’s comments will have no bearing on brand owners’ commitment to abide by ASB judgments and the ASB will continue to adjudicate on consumer complaints according to the AANA Codes.”
All these acronyms are enough to give anyone a headache, but for completion, we note that the Advertising Standards Board (ASB) adjudicates consumer complaints about inappropriate advertising, and makes determinations largely adhered to by advertisers on a voluntary basis.
As for ‘who is right’, the IAB and AANA guidelines have much in common. Both suggest that user comments need to be moderated, the unspoken assumption being that the host might otherwise be liable for misleading content if such moderation does not take place. Both bodies also acknowledge that the level of required monitoring will differ based on the brand, its level of activity, the particular platform, and its digital community.
The controversy possibly stems from the rather bold statement by the IAB that “user comments…do not constitute advertising”, partly because “user comments…are not perceived as advertising by users of these [social media sites]” (see page 6 of its Guidelines).
The difficulty with this proposition though, is that it contradicts a more authoritative source, namely, the ACCC. The ACCC is no representative body, or self-regulated organisation. It is the government regulator of the Australian Consumer Law (ACL). The ACL prohibits, amongst other things, conduct likely to mislead or deceive in trade or commerce.
The ACCC supports the ASB’s position that advertisers are responsible for user comments on their social media sites, and that advertisers may be liable for any user comments that are misleading or deceptive in some way.
The ACCC is empowered to commence court proceedings and seek substantial penalties for breaches of the ACL. The ACCC has indicated it may act if content in breach of the ACL is left up for more than 24 hours (this time frame varies depending on the size of the organisation etc.)
What do we recommend?
Rather than becoming overly caught up in a game of ‘Who comes up trumps with their competing social monitoring recommendations?’, we recommend some independent due diligence into the law, having regard to the specific context of your social media presence.
It is helpful to see what others say about social media monitoring. We would probably give these recommendations the same status as Wikipedia (which we love!). They are a great first start, but not to be treated as legislation.
Here are some questions to help you test your current methods (before you call us, of course):
- What is the applicable law?
- If in the realm of the Australian Consumer Law (ie. conduct likely to mislead or deceive), what is the relevant conduct, and how might consumers respond to it?
- Having regard to the full context of your social media presence (which only you will know best), could the totality of your conduct be construed as, say, endorsing the consumer comments which appear on it? [Eg. If you are highly engaged with consumers on social media, then people might think a misleading user comment which has been left alone is, in fact, something of which you approve.]
- How do you know whether a comment might mislead or deceive, and what House Rules do you have in place to help your team test the veracity of user comments?
- If you were standing in front of a judge explaining how you monitor user comments, would you – hand on heart – feel comfortable that your approach is reasonable?
We hope this helps get you started!
By Natalie Hickey, Samantha McHugh & Daniella Phair