Sam Yorke: Role of regulatory bodies in risk mitigation

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

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  • 21.7 hours a week online97% of online Aussies using social media3.2bn likes and comments on Facebook every day – 37k every second100m take a social action (likes, shares, comments etc) on YouTube every week: more than 50% of videos on YouTube have been rated or include comments from the community.Australians’ have embraced social media as a way of expressing their views, connecting and sharing with friends and family, and engaging with organisations and brands in new and powerful ways. This new ability for social media users to easily and rapidly coalesce around certain issues, causes, interests and campaigns is fast becoming a hallmark of the way in which Australians come together and express how they feel and what they believe to their friends, colleagues, former employers, charities they support, organisations and government. These virtual conversations are the modern day equivalent of the ‘water cooler conversation’. The new ‘word of mouth’ - 71% of Australian Internet users reading reviews/discussions/comments about brands and 83% researching products and services online prior to purchase
  • 92% NFP: cite LinkedIn, Twitter, Facebook and YouTube as most frequently used platforms
  • 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. In 2011, theACCC 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 successfullythat 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.
  • Odd to focus on control, rather than ownership or creation…….Which community standards should apply??
  • Consumers don’t perceive user comments to be advertising – so who is the AANA trying to protect?
  • Demonstrating that you have a policy and take the issue seriously will be a large mitigating factor.
  • Sam Yorke: Role of regulatory bodies in risk mitigation

    1. 1. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedThe role of regulatory bodies inrisk mitigationSamantha Yorke Acting CEO and Director ofRegulatory Affairs
    2. 2. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedAgenda• Scene setting – social media in Australia• Regulators and other decision makers• User comments – the IAB position• Summary
    3. 3. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedConsumeradoption ofsocial mediain Australia
    4. 4. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedConsumer behaviour……21.7 hoursonline97% usesocial3.2bn likesandcommentson FB100m takea socialaction onYouTube
    5. 5. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedBusinessadoption ofsocial mediain Australia
    6. 6. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedBusiness behaviour……• 30% small biz using social• Half report positive impact ofsocial strategies on their business• 47% medium biz using socialSME• 92% online• <$100k turnover most likely touse social mediaNFPSources: Sensis Yellow Social Media Report May 2013, Sensis E-Organisation Report2012 and Wirth Consulting Research “The State of Social Media Use in Australian NotFor Profit Organisations H12012
    7. 7. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedRegulators anddecisionmakers
    8. 8. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedAustralian Competition and Consumer Commission(ACCC)• Regulate misleading and deceptive conduct in the course oftrade• Allergy Pathways case 2009 and 2011: judge stressedimportance of “awareness” of the user comments at issue• ACCC guidelines:http://www.accc.gov.au/business/advertising-promoting-your-business/social-mediaIgnore Respond Delete
    9. 9. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedAustralianAssociation 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 usergenerated content on digital properties where advertiser hasa reasonable degree of control
    10. 10. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedAdvertising Standards Board (ASB)• Complaint handling of issues relating to theAANA codes• Not a legal authority – no enforcement ofdeterminations• Does not look to the law for guidance – seeksto reflect ‘community standards’• CUB / VB determination July 2012• Zoo Weekly determination November 2012
    11. 11. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedCUB / VB ASB Determination• Question was posed: “Besides VB, what’s the next essentialneeded for a great Australia Day BBQ?”• Responses included: “sluts”, “pussy”, “tits”, “big titted women”• Other user comments on the VB Page were homophobic andunnecessarily descriptive of sexual activity• ASB concluded that user comments were advertising ormarketing communications based on two factors:1. The advertiser has a reasonable degree of control over all of thecontent appearing on their Facebook Page; and2. Facebook is a marketing platform for businesses.• ASB based their determination on broader communitystandards, rather than the standards of the VB community
    12. 12. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedZoo WeeklyASB DeterminationZoo Weekly published this photoon their Facebook Page.ASB determined that the imagewas exploitative and degrading towomen. Encouraged sexistcommentary from their community.ASB required that Zoo Weeklyremove the photo and Zoo did sobut argued that Facebook postsshould be treated as editorial andnot marketing / advertising.
    13. 13. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedTreatment of user comments in other contexts…..• Broadcasting Services Act: regulated by the AustralianCommunications and Media Authority (ACMA).• Internet content hosted in Australia• Copyright Act: protects copyrighted material from unlawfulcopying or publishingBoth require “actual knowledge”before liability imposed on host orpublisher
    14. 14. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedUser commentary – the IAB take…..• Reject that user comments form part of an advertising ormarketing communication under the AANA codes• Requiring all businesses to proactively monitor usercomments 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 specificproblematic comment→ needs to be an element of awareness!
    15. 15. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedConcluding remarks…..• Resist the temptation to react conservatively to thisevolving area of law and practice• Risk remains mainly reputational, not legal• Develop an internal strategy for moderatingcomments that is based on your organisation’sneeds, engagement, and appetite for risk• Watch this space!
    16. 16. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedQuestions Answers
    17. 17. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedThank you.Samantha YorkeActing CEO & Director of Regulatory AffairsIAB Australiasamantha.yorke@iabaustralia.com.au
    18. 18. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedAppendix
    19. 19. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedAllergy Pathways case history - 2009Allergy Pathways – operates allergy testing and detection clinics.In 2009, found guilty of misleading and deceptive conduct overrepresentations 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 personhad an adverse reaction after Allergy Pathway’s treatment.The Court sought various undertakings from Allergy Pathways that it would notengage in such behaviour for three years.
    20. 20. 19 June 2013Social Media Risk Management © 2013 IAB Australia Pty LimitedAllergy Pathways 2011ACCC alleged that Allergy Pathway made representations in breach of its undertakings instatements published and adopted on its website at www.allergypathway.com.au and its Facebookand Twitter pages. Moreover, it was alleged that Mr Keir breached his undertaking as he wasknowingly 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 andTwitter 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 andTwitter 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 Twitterpage 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 Twitterpage and does not remove it, then it is liable for contempt.

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