Presentation by Sam Yorke (IAB Australia) at the 2013 Social Media Risk Management conference run by Dialogue Consulting in Melbourne, 19 June 2013.

1. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
The role of regulatory bodies in
risk mitigation
Samantha Yorke Acting CEO and Director of
Regulatory Affairs

2. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
Agenda
• Scene setting – social media in Australia
• Regulators and other decision makers
• User comments – the IAB position
• Summary

3. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
Consumer
adoption of
social media
in Australia

4. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
Consumer behaviour……
21.7 hours
online
97% use
social
3.2bn likes
and
comments
on FB
100m take
a social
action on
YouTube

5. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
Business
adoption of
social media
in Australia

6. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
Business behaviour……
• 30% small biz using social
• Half report positive impact of
social strategies on their business
• 47% medium biz using social
SME
• 92% online
• <$100k turnover most likely to
use social media
NFP
Sources: Sensis Yellow Social Media Report May 2013, Sensis E-Organisation Report
2012 and Wirth Consulting Research “The State of Social Media Use in Australian Not
For Profit Organisations H12012

7. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
Regulators and
decision
makers

8. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
Australian Competition and Consumer Commission
(ACCC)
• Regulate misleading and deceptive conduct in the course of
trade
• Allergy Pathways case 2009 and 2011: judge stressed
importance of “awareness” of the user comments at issue
• ACCC guidelines:
http://www.accc.gov.au/business/advertising-promoting-
your-business/social-media
Ignore Respond Delete

9. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
AustralianAssociation of NationalAdvertisers (AANA)
• Develop self-regulatory codes for the advertising industry
(http://www.aana.com.au/pages/codes.html)
• Concerned with content within advertising which is;
• the use of language,
• the discriminatory portrayal of people,
• Protecting children,
• portrayal of sex, sexuality and nudity,
• health and safety.
• Marketing and advertising communications now include user
generated content on digital properties where advertiser has
a reasonable degree of control

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Advertising Standards Board (ASB)
• Complaint handling of issues relating to the
AANA codes
• Not a legal authority – no enforcement of
determinations
• Does not look to the law for guidance – seeks
to reflect ‘community standards’
• CUB / VB determination July 2012
• Zoo Weekly determination November 2012

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CUB / VB ASB Determination
• Question was posed: “Besides VB, what’s the next essential
needed for a great Australia Day BBQ?”
• Responses included: “sluts”, “pussy”, “tits”, “big titted women”
• Other user comments on the VB Page were homophobic and
unnecessarily descriptive of sexual activity
• ASB concluded that user comments were advertising or
marketing communications based on two factors:
1. The advertiser has a reasonable degree of control over all of the
content appearing on their Facebook Page; and
2. Facebook is a marketing platform for businesses.
• ASB based their determination on broader community
standards, rather than the standards of the VB community

12. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
Zoo WeeklyASB Determination
Zoo Weekly published this photo
on their Facebook Page.
ASB determined that the image
was exploitative and degrading to
women. Encouraged sexist
commentary from their community.
ASB required that Zoo Weekly
remove the photo and Zoo did so
but argued that Facebook posts
should be treated as editorial and
not marketing / advertising.

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Treatment of user comments in other contexts…..
• Broadcasting Services Act: regulated by the Australian
Communications and Media Authority (ACMA).
• Internet content hosted in Australia
• Copyright Act: protects copyrighted material from unlawful
copying or publishing
Both require “actual knowledge”
before liability imposed on host or
publisher

14. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
User commentary – the IAB take…..
• Reject that user comments form part of an advertising or
marketing communication under the AANA codes
• Requiring all businesses to proactively monitor user
comments is extremely onerous
• There may be circumstances where a business is responsible:
• A comment is ‘liked’ or endorsed in some other way
• A comment is highlighted or promoted
• A comment is responded to or directly engaged with
• Because all of these qualify as having knowledge of a specific
problematic comment
→ needs to be an element of awareness!

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Concluding remarks…..
• Resist the temptation to react conservatively to this
evolving area of law and practice
• Risk remains mainly reputational, not legal
• Develop an internal strategy for moderating
comments that is based on your organisation’s
needs, engagement, and appetite for risk
• Watch this space!

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Questions Answers

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Thank you.
Samantha Yorke
Acting CEO & Director of Regulatory Affairs
IAB Australia
samantha.yorke@iabaustralia.com.au

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Appendix

19. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty Limited
Allergy Pathways case history - 2009
Allergy Pathways – operates allergy testing and detection clinics.
In 2009, found guilty of misleading and deceptive conduct over
representations made in advertising that it:
(a) could test for allergens;
(b) could cure or eliminate virtually all allergies or allergic reactions;
(c) could successfully treat a person’s allergies or allergic reactions;
(d) treatment of persons with allergies was safe and/or low risk; and
(e) it was safe to have contact with a substance or allergen to which the person
had an adverse reaction after Allergy Pathway’s treatment.
The Court sought various undertakings from Allergy Pathways that it would not
engage in such behaviour for three years.

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Allergy Pathways 2011
ACCC alleged that Allergy Pathway made representations in breach of its undertakings in
statements published and adopted on its website at www.allergypathway.com.au and its Facebook
and Twitter pages. Moreover, it was alleged that Mr Keir breached his undertaking as he was
knowingly concerned in Allergy Pathway’s publication of the offending representations.
The publications were grouped into several categories:
(1) statements and links to statements posted by Allergy Pathway on its website and Facebook and
Twitter pages and in a video posted on YouTube and embedded on its Facebook and Twitter pages;
(2) testimonials written by clients and posted by Allergy Pathway on its website and Facebook and
Twitter pages;
(3) testimonials written and posted by clients on Allergy Pathway’s Facebook “wall”; and
(4) Allergy Pathway’s responses to queries posted by members of the public on its Facebook wall.
The ACCC argued successfully that if a person posts on Allergy Pathway’s Facebook wall or Twitter
page a statement which, if placed there by Allergy Pathway, would render it liable for contempt,
once Allergy Pathway is aware of the statement having been placed on its Facebook or Twitter
page and does not remove it, then it is liable for contempt.