Marketing Law - Watch-outs

At Five by Five we have to stay up with the play when it comes to Marketing Law…

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We certainly don’t replace a corporate lawyer, but we do know a thing or two about keeping on the straight and narrow.

One thing we do to stay across our responsibilities as Marketers is invest in constant up-skilling. Gemma recently attended the MA Marketing Law seminar on our behalf and brought back the skinny on watch-outs for Responsible Marketers:

Making Claims:

A handy resource for all advertisers and marketers alike is the Advertising Standards Authority - the code has been amended to 5 sector codes, making it easier to responsibly follow advertising standards.

Misleading claims gather the most complaints - the golden days of promising the world and not delivering are well and truly over. Customers are way too savvy and connected with one another for businesses to get away with it; as marketers, we are much better off being truthful and finding an audience to which that truth appeals.

The overall impression of the ad is key to delivering a truthful message. Both implied (Pictures and vague statements will be perceived as implied) and expressed claims must be able to be substantiated. Tests of interpretation are based on a 'reasonable consumer' defined by the ad’s target. And on that note, the ‘fine print’ needs to marry with the main message - this should not be used as an area to disguise or hide key information or to mitigate claims made in the copy.

Breaching advertising laws could result in significant damage to your brand and long term impacts on your business, so checking your ad copy, tag lines and images against the ASA code’s guidelines helps you to stay within advertising regulations. Doing this should be a regular practice, and you can find the guidelines here: https://www.asa.co.nz/codes/.

Causing Offense:

Another area that generates a lot of complaints is the public’s tolerance (and lack thereof) of racist, sexist, ageist and religious language. A useful guide to the zeitgeist is the BSA’s ‘Language that may offend’ survey which is based on what is acceptable on FTA TV. Despite being broadcast related, it gives a snapshot of the relative offensiveness of different terms within the general public in NZ and is a good litmus test as to whether copy or imagery might cross the line from funny to offensive.

The key findings of the survey include (find the full results from the BSA here):

  • Traditional strong swear words continue to be considered the most unacceptable regardless of the context.

  • Racial/cultural insults included in the 2018 survey ranked in the 12 most offensive words, suggesting the public are becoming more concerned about the use of derogatory language directed at a person’s race or culture, or sexual orientation.

  • When asked to identify other offensive words, 1 in 5 respondents pointed to words they consider to be racist or offensive from a cultural/ethnic context. Respondents said they find language which describes other races in a derogatory way and derogatory references to a person’s sexual orientation, unacceptable.

  • The context and audience expectations of the programme are important and affect whether the audience will find strong language acceptable. Offensive language is generally considered more acceptable in fictional, comedic or scripted contexts, particularly after 8.30pm. Respondents found offensive language less acceptable in factual/reality/spontaneous contexts, e.g. when used by a radio host on a breakfast programme, in sports commentary, or in reality TV. For broadcasters, this means that audience advisories warning about potentially offensive language and the time of broadcast are important, as this allows audiences to make informed choices about whether they or children ought to listen to potentially offensive language.

Flouting Privacy Laws:

This can be a minefield! Especially since the GDPR, everyone has been extra cautious around the collection and use of customer data. Having a good privacy policy and always operating with the consumer’s best interests in mind are the basics for staying on the right side of the law, but there are some surprising rules too, such as agencies (in this context anyone collecting or using the data) cannot use each others UID to identify a customer - e.g. Customer Numbers, Driver’s License Number or IRD Number.

Consumer rights awareness in terms of privacy of personal information is growing so this is an important area to consider for advertisers. Businesses need to follow privacy guidelines carefully to not be at risk - you’ll find a handy PDF of the privacy guidelines here.

Using Influencers:

There has been a huge increase in using celebrities or people with significant personal brands to promote/endorse/sell product. 

The ASA covers the use of influencers in the guidelines, specifically that influencers must clearly state when they are promoting a product for money or 'perks'. For example, the word 'ad' is at the beginning of the post copy. The relationship with both parties need to be clear to consumers to avoid risk and you can read more from the ASA here.

It's important for businesses to closely monitor user-generated content (e.g. comments) and delete anything that could cause risk or damage to both the brand and the influencer - this can be unanticipated workload and the strategy employed and manpower required should be factored into planning.

Formal arrangements (also basic scripts & product info) are recommended as the actions of the influencer can fall back on the business - this also clarifies the result of the collaboration as an ad and thus the responsibilities of all parties under the law.