Advertisers and social media users (importantly, social media influencers) must ensure that posts or comments made on social media platforms are compliant with the Australian Association of National Advertisers (AANA) Code of Ethics (the Code).
The Code is the overarching document that sets out the applicable standards across any medium for advertising or marketing communications, including social media. The Code has been adopted by the AANA as part of advertising and marketing self-regulation. Its purpose is to ensure that advertisements and other forms of marketing communications are legal, decent, honest and truthful and that they have been prepared with a sense of obligation to the consumer and society and a sense of fairness and responsibility to competitors. Other AANA Codes that may also apply to advertising or marketing communications include the Food and Beverages Advertising Code, the Environmental Claims Code and the Wagering Advertising Code.
‘Advertising or Marketing Communication’ is defined in the Code as:
‘(a) any material which is published or broadcast using any medium or any activity which is undertaken by, or on behalf of an advertiser or marketer,
(b) but does not include:
Given this broad definition, sponsored social media posts will more often than not fall within the ‘Advertising or Marketing Communication’ definition. It is important to note that payment is not a requirement of the definition. The Code will apply regardless of whether payment has been made, or the form of incentive (if any) that has been provided in connection with the advertising or marketing communication.
In March 2017, the AANA updated the Code to include a new provision 2.7: “Advertising or Marketing Communication shall be clearly distinguishable as such to the relevant audience”.
Provision 2.7 is very broad in its application and does not require that sponsored posts be labelled as such, provided it is clear to the relevant audience that the post is commercial in nature, and distinguishes the advertising as being that of an ‘Advertising or Marketing Communication’. The following examples would suffice:
There is also no requirement that sponsored posts on social media include the hashtags #ad or #spon within the post or adjacent commentary.
Despite there being no formal requirement to label an advertising or marketing communication, the AANA recommends that sponsored posts on social media use the hashtags #ad or #spon, as it is a clear and simple way of identifying to the public that the post constitutes an advertising or marketing communication.
The Ad Standards Community Panel is the body that responds to complaints and determines whether advertising or marketing communications meet the standards in the Code. If the complaint is upheld, the post will need to be removed. If the complaint is dismissed, the post is free to stay in its current format.
In the absence of explicit disclosure, advertisers, particularly social media influencers, should take care to ensure posts and other forms of advertising or marketing communications are clearly distinguished.
As with other forms of advertising, advertisers and social media users can fall foul of the ACL if statements amount to or include false or misleading claims. This obligation also extends to ensuring that third party posts or public comments that are made on your social media pages, are not false or likely to mislead or deceive consumers. If you were to become aware of such posts, it is important that they are removed as soon as possible.
Claims appearing on social media pages must be able to be substantiated, if requested by the Australian Competition and Consumer Commission (ACCC). If the ACCC is of the view that the ACL has been breached, the ACCC has the authority to commence proceedings against the relevant party, or, if applicable, issue an infringement notice.
The ACCC will be more likely to investigate cases involving false or misleading or deceptive conduct if:
With the increasing use of social media in modern businesses, advertisers and social media users must treat their “online” communications with the same caution as they would through other forms of advertising. In the case of sponsored social media posts the simplest way to distinguish your post as advertising and ensure compliance with the Code, is to use the hashtags #ad or #spon.
Antoine Pace, Partner
Alana Long, Senior Associate
Cassandra Krylov, Lawyer