Advertising Law and Other Marketing Minefields

Free and guaranteed

It’s easy to break the law with marketing activity, without realising it. As well as advertising law, there is data protection legislation, image rights, competition and prize draw rules and much more to keep on top of. In addition, specific industries such as the insurance and financial services sectors must abide by their own specific advertising guidelines.

There are numerous Acts and Codes of Practice in the UK that are too extensive to write about in one post, but here is a summary of five common areas where marketing activity can come unstuck. By the way, I would be remiss if I didn’t include the statement that nothing in this blog post constitutes authoritative legal opinion! If you require legal advice please consult a lawyer.

Advertising Law in the UK

Advertising Law - GuaranteedIn the UK all advertising is governed by the Advertising Standards Authority (ASA). They apply the advertising codes, which effectively make up UK Advertising Law. Any customer or competitor business can make a formal complaint against you to the ASA free of charge if your advertising is in breach of those codes. Since 2011 the ASA has also had claims made on websites within its remit.

Before you claim that an item or service is ‘free’ or make use of the word ‘guaranteed’ you need to pay attention to the legal definitions of these terms when in use within marketing and publicity.

Therefore if you make a claim or statement, regardless of which media it is on, make sure it is accurate and that you can back it up should you be challenged.  If you don’t, you would be forced to change your marketing messages (which could be costly) and the ASA’s judgment will be published thereby generating negative publicity which will undermine your brand’s standing.

Image rights and permissions

Any images (photos, illustrations etc.) you use in your marketing materials and website need to be lawfully used.  The owner of the image needs to provide their permission for its use or license it to you.  The terms ‘rights managed’ or ‘licensed’ mean that payment is required to use the image. ‘Royalty free’ means that the image is free to use and reproduce. Always check the licensing terms and conditions as a credit to the owner may be required in exchange for the right to use the image free of charge.

When image rights are not properly observed the consequences can be very expensive, as was the case at one organisation I worked at, who had not paid due attention to the rights of the photos they used in their direct marketing.  Likewise, a friend who set up her own business was contacted by Getty Images over illegal use of images from their database, discovered by one of their automatic web crawlers. Save yourself the worry and expense by getting this area straight from the outset.

Specifically, any photography or video footage you take or use which includes recognisable faces need to be used with the permission of the subjects, even if they are in the background.  It’s best to have permission in writing (not just verbally) and recording it with the images.  Crowd shots or photos of events can be covered by prominently displayed signage or text on a printed item that all attendees will have received (e.g. ticket). Always provide an option for people to opt out of they don’t want to have their image used in publicity.

Data protection – storing of personal details

The recording, storing and use of personal details are governed by the Data Protection Act (1998). *update 2018 – please see our post on GDPR for latest data protection information.*

If you are collecting data for marketing purposes then the provider of details (e.g. your prospect) needs to be notified at the point of collection how you intend to use their data. This is normally managed through a data protection statement and consent boxes on the data collection form. Naturally, your database needs to be able to record those opt-outs/ins so that you do not mail or phone anyone who has not given their consent.

Data protection statements are now so commonplace that it is startling that organisations are still getting this wrong. Think about all your data collection activities regardless of channel – online, paper forms, telephone – are you letting people know how you will use their data and giving them the chance to opt out? If not, your prospects have the right to complain to the Information Commissioner’s Office (ICO) about your business practices.

If mailing, emailing or phoning prospects that have not willingly provided you with their details (i.e. using a bought-in list or cold calling) then you need to check that they are not registered with the Mailing Preference Service or the email/phone equivalent. If you make a sales call to someone registered with the Telephone Preference Service (or the equivalent for other media) you can be reported to the Information Commissioners Office and receive a fine.

Use of Cookies on your website

The European ePrivacy Directive regarding Cookies (an extension of the Privacy and Electronic Communications Regulations) came into force in the UK in May 2012.  This means that every website owner who places cookies on a user’s machine must make it clear to the user. The guidance level on this issue changed over time, moving from a strict opt-in towards ‘providing clear information about the cookies in use and implied consent’.  Cookies are used for a variety of purposes on websites, from tracking visitor numbers to storing information about baskets/purchasing behaviour. At a minimum, every site should state clearly the cookies that are in use with the site.  The ICO is yet to pull anyone up on this issue, yet it remains an issue in the spotlight that you cannot afford to overlook.

Competition terms and conditions

Competitions, prize draws and raffles are great ways of engaging prospective and current customers but need to be properly planned and executed. All of these need written terms and conditions (T&C) published and available to anyone before they enter the competition.  Each type of competition has slightly different legal requirements and you need to be clear about which you are promoting. Always have your legal advisor check over the T&C before they are used.

The risk of not publishing your T&C is that any competition entrant could query your processes and tie your organisation up in a lengthy and costly legal claim.

Competitions publicised via social media sites have the added complication of the platform’s own requirements which are continually changing, so check each platform’s rules before you publish your competition. Claiming that you weren’t aware, or that ‘everyone is doing it’ is no defence in law.

Keep up with best practice and compliance

It pays for every organisation to keep up to date with advertising law and the legal requirements of marketing as the consequences can be very costly in terms of time and budget.  If you are not sure about your practices check with someone who does – start with your marketing expert and then your legal team.  Ignorance is no defence in the eyes of the law.

Also published on Medium.

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Roisin Kirby is an experienced Marketing Consultant based in Nottingham (UK), specialising in education and services marketing. A Chartered Marketer and Fellow of the Chartered Institute of Marketing.

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