Have you noticed 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 ASB 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, defended the board’s interventionist approach to SmartCompany and said 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 says.
“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.”
How an investigation is initiated
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,” says 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 says.
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 says.
“We would tend not to send it to the board as it is very unlikely anyone else would take that approach.”
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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 says.
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.
However, Jolly defends the approach taken by the ASB.
“It is something we are always criticised for; if everybody is unhappy with us we are probably doing a good job,” she says.
“The community tends to say we go too easy on industry and industry thinks we are going too hard on them.”
Jolly says the ASB ensures it reflects a balance of the community’s views through its 20 board members.
The members are “a geographically diverse group” with a mix of ages, gender and backgrounds in an attempt to “try to have that group as representative as possible of the views of the community”.
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, told SmartCompany 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 says.
He says 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 says.
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