| 2013 Popular What the Facebook ruling from the Advertising Standards Board (that comments are ads) means for agencies

There's been a lot of commentary this week in the media around the decision by the Australian Advertising Board (ASB) to rule that the comments of fans published on an brand's Facebook page are actually advertisements and must comply with industry self-regulation and consumer protection laws.

In face the ruling states that Facebook, and other social media tools, are advertising platforms - which may come as a surprise to long-term users of these services.

The ASB ruling is available as a PDF here. It involved Smirnoff Vodka and stated that content (comments and photos specifically) appearing on the company’s brand Facebook page constituted advertising, regardless of whether the company or members of the public posted it.

That's right - the ASB ruling states that all user comments in social media may be advertising.

The basis for this ruling was a recent legal decision:

The view that brands are responsible for consumer created content on their social media  pages has been supported by a recent decision of an Australian Federal Court (Australian  Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74)1  that a health company was responsible for Facebook and Twitter comments by fans on its  account in defiance of a court order that the company not make misleading claims about its  allergy treatments  The Federal Court concluded that Allergy Pathway was responsible for third-party comments where it knew of them and made a  decision not to remove them from its Facebook page 

Therefore as Smirnoff had the technical capability to moderate user comments on its Facebook page, it had an obligation to do so. If it did not moderate user comments which made untrue claims about the company or its brands (as well as sexist, racist or otherwise unlawful statements) it was guilty of false advertising.

The apparent consequence of the ruling, for organisations who participate in the ASB's self-regulation scheme, is that they are now required to moderate all comments by individuals on their brand and corporate Facebook pages, other social networks, blogs, wikis, forums and social media channels in which they have the technical ability to do so.

This requirement may even potentially extend to platforms outside their direct control but where they can identify and request untrue (or otherwise uncompliant) comments about their company or brand to be removed - such as on Facebook pages or forums moderated by people outside the organisation (such as members of the public).

Some facts

The Australian Advertising Board is the directing group over the Advertising Standards Bureau body appointed to oversee the self-regulation of advertising in Australia by the members of the Australian Association of National Advertisers (AANA).

It is a body independent of government and independent of advertisers. It is not underpinned by any government legislation or policy and it is a voluntary organisation which participating associations, corporations, advertising agencies and other bodies agree to abide by.

Decisions by the Board are neither legally binding nor, necessarily, reflective of government policy.

Where a participating advertiser does not abide by an ASB ruling (which is apparently very rare), the ASB can "liaise with industry and media bodies such as FreeTV, and the Outdoor Media Association which will either negotiate with the advertiser directly for the removal of the advertisement or in specific cases, take action to remove the advertisement."

The ASB may also refer advertisers to an appropriate government body and recommend a course of action.

However the ASB and its secretariat - the Advertising Standards Bureau - has no direct enforcement power, nor any ability to force other parties (such as industry bodies or government agencies) to take action.

Putting the ruling in perspective

This ruling needs to be considered seriously by ASB participants - corporations and advertising agencies in particular.

They need to have a long hard look at whether they can afford to maintain social media channels with the risk that anyone in the community who comments in a channels they can technically control - including, potentially, their competitors - can cause them a world of pain by posting untrue things about them.

I'm not sure if governments participate directly in the self-regulation scheme, however it would be bad form for agencies to ignore direct rulings against their advertising by the ASB.

Is it 'right'?

This is my opinion, but the ASB's position doesn't stand up to scrutiny in a technical, practical or fair sense.

It is based on 20th Century thinking whereby organisations control the channels, and therefore the conversations, with audiences.

In reality this control has slipped almost totally out of the hands of organisations due to the internet and particularly due to social media. Organisations can (and should) control their direct statements, however they can't control the statements of other entities and individuals, beyond having some influence and oversight based on Australia's legal framework around defamation, slander and copyright.

Redefining individual comments as 'advertising' is highly problematic and is a disservice to the already weak freedom of speech provisions in Australia.

If I say on my blog that the Honda Jazz is the best car ever made, it is reasonable to assume that this is my opinion, not an advertisement. If I made the same statement on Honda's company Facebook page this remains my opinion - I am simply directing it at the people who made the car, in tribute to them.

Of course there is an exception if Honda has given me money, privileges, or a Honda Jazz - in which case my comments are advertising and need to be treated as such. (Note that Honda has not given me anything and I've never driven a Honda Jazz, nor wanted to)

Of course this is just about a car - a product. How about if I say on a government Facebook page that, for example, "I think the Fair Work Act is the best workplace relations bill in the world". Would this have to be moderated and removed as, despite it being a potentially heartfelt personal opinion, it is considered advertising (aka - has no facts to back it up)?

Isn't 'opinion' by definition a personal view which may, or may not, be supported by facts?

Apparently not. It's advertising. Hmmm...


Let's take practicality. On a Facebook page with 15,000 fans, 1% being active any week, that's 150 posts to moderate. Assuming it takes 3 minutes on average to assess each, it will take 450 minutes, or 7.5 hours, solid work to moderate all content.

That's possible with a single part-time, trained, moderation officer.

Now let's consider the Tourism Australia Facebook page. It has 3,375,675 fans. If 1% are active in any week, that's over 37,500 posts to moderate. Based on 3 minutes per post, it takes 112,500 minutes, 1,875 hours, or 250 person-days (based on a 7.5 hr work day) to moderate. Each week.

On that basis, Tourism Australia would require at least 50 people (plus extras to cover for leave) to moderate the page to get rid of user 'advertisement' comments which are not evidentially statements of fact, such as these real comments on the page right now:

• "A very blessed country. It has almost all the best things in life. I love Australia"
• "Australia the land of grace and tranquility"
• "Best country in the world"
• "better hurry to this Whitsunday resort before it too is closed like so many of the others"

What have others said?

Generally industry bodies have come out cautiously and indicated that companies need to digest the ruling and consider its implications.

Those experienced in social media have been less cautious and mostly said the idea won't work (though a minority have said it just reinforces what brands already had to do).

Here's a few articles on the topic as a reference:

• Watchdog clamps down on Facebook
• Facebook ruling poses challenges for advertisers
• Rethink forced on the use of Facebook by brands
• Brands forced to get Facebook trolls under control
• Making Social Media accountable
• ASB rules brands are responsible for all fan comments on Facebook
• Facebook page comments must pass advertising laws

Can foreign digital gatekeepers unduly influence democracy?

One of the perils of the digital age, as traditional media goes digital or goes downhill and more and more people rely on the internet for their daily news, is that countries such as Australia are losing 'editorial' control over what news is promoted as the 'top stories' each day or what links appear at the top of search results.

Most of Australia's most trafficked websites are not Australian-owned and run. Some do not even have a legal entity or physical presence in the country, making it extremely difficult for Australian interests to get any kind of traction in decision-making processes or ensure that Australian values and perspectives are reflected.

Even more worrying, we've already begun to see digital 'gatekeepers' - the largest and most influential websites - begin to impose conditions which may distort elections or inappropriately influence democratic processes.

Let me give you an example. You're probably aware that Google is the most trafficked website in Australia, followed by Facebook. In fact for the week of 8 September 2012, Experian Hitwise reported that Google Australia received 149.5 million visits from Australians, and Facebook received 96.8 million visits. These were followed by Youtube at 47 million, Windows Live Mail at 23 million and Google.com which received 21.7 million Australian visits.

The top locally operated website, NineMSN received only 20 million visits. Yahoo7 received only 11 million visits from Australians.

In fact, if you add Google's top 10 sites (218.2 million visits) and Facebook, the total visits these two organisations receive from Australians, each week, is about 315 million. That's ten times the combined weekly traffic of NineMSN and Yahoo7 at 31 million.

With that level of traffic, being refused the right to advertise in Google or Facebook could have serious repercussions for a brand. In some cases it could destroy companies.

So what could it do to democracy?

What would happen if Google and/or Facebook decided, for whatever reason, to reject all the advertising from a particular political party in Australia, banning ads for that party in their sites during an election?

Well, actually, we don't need to speculate about this scenario. It's already happened.

Some of you might be aware that during the last Commonwealth election that Google refused to run any advertising for one of Australia's legal political parties - the Sex Party.

Following this, Google again refused to run any Sex Party ads during the recent Victorian byelection.

Facebook joined in by rejecting Sex Party ads during the recent Sydney City Council election.

Now whether you support or oppose the Sex Party's views, they are a legitimate Australian political party and field legitimate candidates in elections. However both Facebook and Google decided, citing different reasons, that they would not accept any advertising from the Sex Party during election campaigns.

Facebook said its reason was that the Sex Party was "promoting adult products or services".

Google claimed that the Sex Party was being deceptive by having a "donate" button on its site which "breached its rules which prevent solicitation of donations by a website that did not display tax exempt status.". 

When it was pointed out that the Greens, Family First and Labor all did the same thing, Google stuck to their guns. Even when the Sex Party adjusted their site's content to include the tax exempt status, Google continued to refuse to run ads - contrary to their own policies. Only when the Sex Party went to the media did Google relent, on the eve of the election when the opportunity to influence votes had been lost.

In this case the party was a minor one and potentially the events didn't change the outcome, although the Sex Party has taken Google to court over the matter alleging unlawful interference in the election.

This example highlight a risk democracy is facing. 

When 'media' providers control such a large chunk of the online market, when these are domiciled overseas in state that wish to influence Australian politics, and when they can thumb their noses at local concerns without significant legal or financial cost, democracy has a problem.

It doesn't have to be a full-out blocking of ads or comments - as happened in the example above. Instead it could be more subtle techniques. 

Such as placing ads lower down on the page than their competing parties, thereby reducing the probability of a click, it could involve adjusting search results to keep certain ideas at the top, or the bottom. It could even involve 'reporting errors' which would convince people that they'd received the impressions they'd paid for when they hadn't.

There's many other subtle ways to influence behaviour online, and you can be assured that companies like Google and Facebook have built a strong understanding of how to do this. It is their bread and butter and they are testing, trialling and learning more all the time.

So can digital gatekeepers unduly influence the outcomes of democracy processes? 

I think yes. And, intentionally or not, the big players have already demonstrated that they are capable of taking this step. 

But maybe not quite yet, while nations still have robust national media and competing theatres for ideas.

In the future we are likely to see the balance of power unfold in new ways, and learn through practice whether democracy will survive technology intact, enhanced or destroyed.

However it is already clear that democracy will not survive unchanged.

Is it theft if you personalise & retain an official social media account when you leave an organisation?

One of the legal and ethical dilemmas organisations are beginning to struggle with is the ownership of social media accounts.

When a staff member creates and uses a social media account solely or mainly for official organisational purposes they can build a large following over months or years based entirely on their paid work activities.

However are they entitled to take that account, and the accumulated goodwill it holds, with them when they leave?


This might seem like a trivial question, however the followers and reputation built by a social media account may be no different to the brand name value that organisations such as Google and Coca-Cola count on their balance sheets.

Almost every organisation that deals with the public values its name and reputation with the public as an asset alongside the physical property of the business.

Whether you think of Starbucks, Microsoft, Ford or Joe's Mowing Service, the name and reputation of the business, as well as its contact list (like followers or Likes), has an asset value.

I believe this is also true for digital accounts, and there are cases going to court at the moment around the world where individuals who took an official social media account with them are being sued for the asset value by their employers.

One such case last year, as reported in Sean Clark's blog, involved a company called Phonedog, where a former employee, Noah Kravitz, tried to take a Twitter account with him by changing the name of the account from @Phonedog_Noah to @NoahKravitz.

The account had 17,000 followers and Phonedog took him to court for the value of $2.50 per follower per month ($42,500/mth), calling the followers a customer list, with the value attributed to the cost associated with growing and maintaining the list.

You can read more about this at What's a Twitter follower really worth.


So let's consider this in an Australian context. There are several senior public servants who use Twitter for official purposes - using their actual name in the account.

In particular Hank Jongen (@HankJongen) from the Department of Human Services and Sandi Logan (@Sandihlogan) from the Department of Immigration, whose accounts were primarily established and are operated as official communications channels for their agencies.

Besides these is another senior public servant, John Sheridan from AGIMO in the Department of Finance, whose Twitter account (@sherro58) is used for official purposes, but also for personal use - it was not primarily established or is operated mainly as an official communications channel.

My view would be that both Hank and Sandi's accounts are organisational assets, whereas John's account is his personal asset that he lends to the agency - similar to how, when I worked in government, I occasionally retweeted official agency tweets to bring them to the attention of a wider audience (my larger follower base), but my account was never an official agency channel.

Based on the model used by PhoneDog ($2.50 per follower per month), the value of Hank and Sandi's accounts are as follows:

Account	Followers	Value/month	Value/year
@HankJongen	807	$2,017	$24,210
@SandiHLogan	3,912	$9,780	$117,360

Now the values are based on the number of followers remaining static, which is unlikely, and the actual value of a follower may vary based on the customer relationship. However there is a real value for these relationships, which is a real asset for their organisations - particularly when trying to communicate or defend complex positions.

In all the cases I've illustrated above the public servants behave very ethically, and I would not expect this to change, so I don't see them as risks to their organisations of leaving and taking their followers with them.

However this will not always be the case for all social media accounts.


In fact there is a recent example I can think of where I think the ethics are much grayer and which may even require an investigation.

This is in relation to the former QLD Labor Premier, Anna Bligh.

Anna was an enthusiastic adopter of social media for engaging citizens - and I applaud her for this - however I don't know if there has been much consideration of the asset value of the account she used to Tweet as the QLD Premier, or whether she had the right to rename this as '@AnnaMBligh' and take it with her when she resigned from politics.

Let's run through the history....

Anna became premier in 2007 and continued to use the Twitter account she'd been using up to that point, renaming it '@Premier_Bligh'.

At this point you could argue that this was her personal account, which she lent to the State of Queensland for official use. I would have no issue if she took it with her when she left politics (it also only currently has 4,769 followers).

However in 2009 Anna set up a specific account as the "official Queensland Premier's twitter account". She even announced it on her pre-existing account as below:

My view is that the language and manner of the launch of this account makes it clear that it was to be the property of the Government of Queensland. An official Twitter account to be used by Anna and all Queensland Premiers following her. It was not to be the personal account of Anna Bligh (who already had one) or the property of the QLD Labor party.

However, following the recent Queensland election, where the Labor party lost government and Anna, while retaining her seat decided to resign from the QLD parliament, Anna did not hand this account over to the incoming Premier, Campbell Newman.

Instead she renamed the account as @AnnaMBligh and has continued to use it as her personal account since the election.

Meanwhile her former personal account (currently named @Premier_Bligh) has remained inactive since May 2009.

The incoming Premier has repeated the initial and, in my view, quite legitimate steps taken by Anna Bligh. His personal account @Campbell_Newman is now inactive, and he created a new Twitter account on March 26, naming it the same as former official QLD Premier account @theqldpremier.

So it all balances out - or does it?

The Twitter account that Anna Bligh designated the "official Queensland Premier's twitter account", that she now operates as a personal Twitter account, currently has 30,773 followers.

The new official Twitter account that Campbell Newman has designated for the Premier has only 4,496 followers.

That's a difference of 26,277 followers that Anna accumulated over three years while tweeting officially on behalf of the government.

Let's go back to the Phonedog case... If we consider these Twitter followers as a 'customer list' (for the purposes of official government engagement), we can attribute a lost value to the QLD Government - and thereby QLD citizens - associated with the costs of growing and maintaining the list.

Let's use that $2.50 value per month again - noting that a court would have to test whether this is the right value for each follower of any particular official Twitter account.

On this basis the difference of 26,277 followers is worth  $65,692 per month to the QLD Government.

Ergo, the cost to Queensland of Anna Bligh taking the official Premier's Twitter account home with her for personal use, and denying its use to the Government of Queensland, is currently running at a rate of $65,692 per month.

The maximum potential cost to Queensland to-date, assuming the official QLD Premier account has had the same level of followers since start of May 2009 to end of April 2012 (36 months), would be $2,364,930.

I estimate a more reasonable cost would be in the $1-$1.5 million range - based on $2.50 per follower per month.

So is this actually theft?

Should it be considered similar to a Minister taking home their office furniture for personal use after they lost office?

That's for governments and courts to decide for certain.

However it is undeniable that the 'official Queensland Premier's twitter account", its followers and their relationship with the Government have been removed from Government control and now reside in the hands of a private citizen, to do with as they will.

Other organisations, both public and private sector organisations really do need to think about this example in their own context:

• Are your official social media accounts assets?
• What asset/brand value should you place on them?
• What should you do if a staff member leaves and takes one, or more, accounts with them?
• What guidance or policies do you need in place to prevent and manage this?