We can all accept that social media has established itself as one of the most powerful marketing tools a brand can employ. In terms of advertising potential the consumer pool runs deep: during September 2013 Facebook logged on average 727 million daily active users. This brought the total of monthly active users to 1.19 billion.* Brands must, therefore, be aware of what content constitutes ‘advertising’ under New Zealand law and appreciate the way in which methods of attracting consumers are regulated.
Advertising in New Zealand is governed by the Advertising Codes of Practice (ACPs) under the authority of self-regulatory body Advertising Standards Authority (ASA). The ASA operates a free complaints service for alleged breaches of the ACPs, which is overseen by the Advertising Standards Complaints Board (ACB).
And brands should be aware - some New Zealanders like to complain! Earlier this year, Schick featured an advertisement on its Facebook page depicting a woman with a beard alongside the caption “Would you Kiss you?” A complaint was lodged with the ACB, in which the complainant stated “I find this type of advertising demeaning and demoralising and just in bad taste. Was the intent to make sufferers of this genetic disorder feel worse than they already do?”**
The ACPs contain a Code of Ethics, which sums up the basic principles for ‘responsible’ advertising:
- Advertising must comply with the laws of New Zealand.
- No advertisement should impair public confidence in advertising.
- No advertisement should be misleading or deceptive or likely to mislead or deceive the consumer.
- All advertisements should be prepared with a due sense of social responsibility to consumers and to society.
- All advertisements should respect the principles of free and fair competition generally accepted in business.
The ACPs also provide specific rules for advertisements targeting particular consumer groups, products and/or services, including those that involve alcohol, gambling, vehicles, pharmaceuticals, children and food.
The Schick complaint led the ACB to consider the Code concerned with people in advertising, which prohibits (amongst other things):
- the portrayal of people in a manner that might cause hostility, contempt, abuse or ridicule;
- the portrayal of people in a manner which, taking into account generally prevailing community standards, is reasonably likely to cause serious or widespread offence; and
- the use of stereotypes which, taking into account generally prevailing community standards, is reasonably likely to cause serious or widespread offence, hostility, contempt, abuse or ridicule.
In the Complainant’s view, the Facebook advertisement ridiculed people - especially women - who suffered from the genetic disorder hirsutism (excessive hair growth). The ACB, however, saw the ‘light-hearted’ and ‘humorous’ side of what Schick saw as a clever marketing device to sell Schick shaving products to men. While “having the potential to offend some people, it was not a deliberate attempt to ridicule anyone with facial hair”.
The threshold of “serious or widespread offence, contempt or ridicule in the light of generally prevailing community standards” had, in this instance, not been met.
But keeping in mind that some people are, understandably, more sensitive than others, what must brands be aware of when incorporating advertising within their overall social media strategy?***
- Remember that the word “advertisement” is defined in very broad terms, and can include “any form of advertising including advertising promoting the interests of any person, product or service, imparts information, educates, or advocates an idea, belief, political viewpoint or opportunity.”
- User-generated content will fall within the jurisdiction of the ASA and the Codes of Practice if the advertiser has a “reasonable degree of control” over the social media platform in question and is promoting a brand or service to the public. For example, user-generated comments on Facebook or Twitter that might be deemed offensive will not be eligible for review under ACB unless the advertiser actually solicited it and incorporated it within its advertising. Each complaint will be judged in context and on a case-by-case basis.
- Where Twitter endorsements are paid for, the hashtag #ad is required. Brands should be aware of possible liability for re-tweeting customer tweets if the content is misleading.
- Advertisers should also know that in Australia the Competition and Consumer Commission treats any false or misleading comments on a brand’s social media page as part of its marketing communications. There is no distinction between user-generated and brand-generated content.
Our experts are keen to assist with improving your overall marketing strategy and, more importantly, to ensure that it falls within the bounds of the law. Email or call us to find out more.
** Complaint Number 13/055
*** See ASA Guidance Note on Social Media, www.asa.co.nz