ASA lays down the social media law, stops short of Australia’s user generated content ruling—UPDATED

When the Australian Standards Bureau ruled that user generated content (UGC) on Carlton United Breweries Facebook page could be classified as advertising and was therefore subject to the same criteria as any other ad, advertisers and advocates smacked their gobs and quivered in their boots because they felt on-the-fly moderation required to deal with comments was commercially impractical and would nullify the immediacy and openness that make social media so powerful (others felt it was a positive step, however). Now the Advertising Standards Authority in New Zealand has released its views on the matter, and while it doesn’t go quite as far as its neighbours, there are some interesting rulings that affect how brands interact with consumers online. 

  • Check out the guidance note here

In Australia, the ASB found that advertising codes apply to material posted on Facebook by users or ‘friends’ because it is material over which the page creator has a reasonable degree of control, so any Kiwi company that operates in Australia and has a social media presence needs to be aware of that rule. The ASA also considers branded Facebook pages and websites to be advertising, and while it says user generated content does not come under its jurisdiction, it seems brands can still be liable for comments on their own sites if they aren’t moderated, with the key phrase being ‘reasonable degree of control’.

“Social media platforms allow individuals and groups to create environments that may refer to or comment on advertiser brands. Unless the advertiser has a reasonable degree of control over the social media platform in use and is promoting a brand or service to the public, it is outside the jurisdiction of the ASA … The degree to which a brand-owned social media page or site is moderated by, or on behalf of, the advertiser would likely be considered in the case of a complaint”.

The ASA’s chief executive Hilary Souter says it’s been dealing with complaints about social media for a few years now. But mostly it’s about advertiser posts (she mentions Basement Bar, Big Kumara and Tui). 

She says it’s not an unfamiliar discussion, but the ruling on user-generated content are about creating a level playing field across all forms of media. 

Asked about whether brands can still be held to account for offensive comments from users, she says most brands playing in this space already moderate. Plus, in many ways it’s a self-regulated by the users who may deal with that commenter. But while it’s about creating a level playing field, there are differences, because Facebook pages, for example, are visited by the users who are engaged with that brand, as opposed to advertising on other mediums that sometimes can’t be avoided.

“It’s not intended to create a whole lot of anxiety for the industry,” she says. And while she admits there are some great areas, it’s simply aiming to make brands aware that they need to be vigilant and, as always, it wil, take into consideration”context, medium, audience and product”. 

According to the document, examples outside ASA jurisdiction include: 

  • An individual posting a brand’s TVC on YouTube with additional footage/comments
  • An individual posting footage on YouTube using a brand or product but with no company involvement
  • A tweet from a brand re-tweeted with added offensive content
  • User-generated comments on brand social media platforms (moderated for harmful and offensive language and comments)
  • User-generated comments to media platforms for use in editorial content 

But if you can check any of the boxes below, you have to play by the ASA’s rules.  

  • Did the advertiser originally solicit the submission of the UGC from individuals and then adopt it and incorporate it within their own advertising?
  • Did an individual provide the advertiser, on an unsolicited basis, with material that the advertiser subsequently adopted and incorporated within their own advertising?
  • Did the advertiser solicit UGC (for example via an invitation to enter a competition) that resulted in content being posted on the site?

According to AJ Park’s Kate McHaffie, the United Kingdom’s Advertising Standards Authority has a similar remit extending to marketing communications on brand owner’s websites and other online spaces under their control, such as Facebook and Twitter, and its rules don’t cover comments from members of the public unless marketers include them in their own material, for example by retweeting.

As with a number of other environments, where advertising and other content exist side-by-side, the ASA says each complaint would be considered on a case by case basis, and “context would be a key matter for consideration”. 

McHaffie says the ASA has already considered
several complaints involving social media, including a complaint against DB Export beer regarding user content posted on its Facebook page. 

“DB conceded that it
was responsible for all content on its page, but the complaint was settled and
so the ASA didn’t have to determine the issue.” 

The ASA has also stated paid for Twitter endorsements require the hashtag #ad. Nike recently lost an appeal in the UK for a Wayne Rooney tweet that wasn’t clearly marked as marketing and this was the basis for the ruling, but Souter was unable to clear up a question we had about whether that rule also applies to those spruiking PR freebies. Again, there are some grey areas. But it’s more aimed at larger advertisers, she says. 

“We are a complaint based system, so if we got a complaint about it, we’d look at it,” she says. “But I think there’s a reasonable degree of awareness about that activity … I don’t think [paid endorsements]is a new issue and we don’t see a groundswell of complaint and disgust from consumers about it.” 

It also says advertisers should be careful about re-tweeting customer tweets, as they could be liable for that content if misleading (according to Rick Shera, “misleading endorsement is already covered by s13(e) of the Fair Trading Act”). 

Shera also points to the US Federal Trade Commission’s update of its 1980 guidelines that added examples relating to online endorsements via blogs and social media platforms like Twitter). 

The notes and official guide have some useful background and are worth a read by New Zealand advertisers even if not directly applicable here,” he says on his blog. 

In order to limit the potential for trouble, the ASA has encouraged advertisers to develop their own social media policies and suggests making sure terms of use for users posting UGC on the sites/pages are clear. 

It also says brands should consider a disclaimer and offers an example from Tim Newman

“This page is monitored daily by Your Company/Organisation. We support the discussion of free speech and engagement with others, however we reserve the right to remove anything posted to this page that we deem to be offensive, including:

  • violent, obscene, profane, hateful, suggestive or racist posts, links or images
  • comments that threaten or defame any person or organisation
  • solicitations, advertisements, or endorsements of any financial, commercial organisations
  • off-topic posts by a single user
  • repetitive posts copied and pasted or duplicated by single or multiple users.

Offensive users will also be blocked from our social network pages. Your Company/Organisation is not responsible for the personal, political, organisational or religious beliefs of its friends, fans or followers across all social networks. All contributors are asked to keep in mind Your Company/Organisation core values -including integrity, respect, and excellence – when communicating with or about us. Please feel free to contact us Your Company/Organisation email address.”


“Unlike some other countries, it is refreshing to see the NZ ASA approach to social media advice has been to produce a sensible and practical toolkit for advertisers,” said Laura Maxwell-Hansen, Chairperson, IAB New Zealand. The guidelines highlight what will and won’t fall within ASA jurisdiction and how best to protect your brand in the social media space such as being aware that user-generated content (UGC) could fall within the jurisdiction of the ASA and the Codes of Practice.

The ASA draw attention to a number of situations where they might draw the line but what seems to have everyone excited is around the use of the #ad hash tag when using Twitter, perhaps misunderstanding how this should be applied.

Hilary Souter, Chief Executive, Advertising Standards Authority says: 

“It’s great to see the level of interest in the new Social Media Guidelines. While the use of #ad is mentioned, it specifically relates to paid third party endorsements where it may not be obvious to consumers that it is advertising. In all advertising, context is important. If consumers are following a brand via its twitter feed, we are not suggesting that each tweet from that brand has to carry the #ad tag.”

The guidelines go on to say that where advertising and other content exist side-by-side, it would be considered on a case by case basis following a complaint and they have indicated they will be flexible if need be and tweak the note based on future cases.

IAB New Zealand supports the guidelines and believes they are a good step towards educating brands new to social media and reminding those already immersed to double check their social media policies.

“The majority of companies in New Zealand using social media already have company policies and guidelines in place. The ASA guidelines are there to help advertisers understand where the line between content and advertising might be going forward and encourage them to be transparent, just as they would in any other advertising environment.” Alisa Higgins, General Manager, IAB New Zealand.


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