OPINION: Traversing legal minefields in your next big campaign

Ian Robertson and Aemelia Grounds
By Ian Robertson and Aemelia Grounds | 12 December 2012

Advertising and marketing campaigns can be a legal minefield. The pressure to craft the perfect pitch, sell the product, and execute the campaign that everyone remembers encourages out-of-the-box thinking, often pushing boundaries.

With campaigns traversing such a broad range of legal areas, it’s not always clear what the legal issues may be. Obvious problems are misleading and deceptive conduct, infringement of copyright and trade marks, and the breaches of the various codes and regulations that govern advertising, in particular the Australian Association of National Advertisers Code of Ethics (Code) which applies to all advertising and marketing communications, including Facebook.

The Australian Consumer Law contained in the Competition and Consumer Act (formerly the Trade Practices Act) covers many aspects of advertising – and this is the area where agencies and clients most often encounter difficulty.

The golden rule is to make sure the facts are correct, there is evidence to support the facts, and that consumers will not be misled.

If statements such as “fastest”, “thinnest”, and “smallest” are terms being used to promote products, then it is important that the product being promoted is in fact, the fastest, thinnest or smallest, and that the claim can be substantiated if necessary.

It is also important to remember that even though Commercials Advice (formerly CAD) clears TVCs for broadcast, it is not their job to tell you if your campaign is misleading or deceptive.

So what do lawyers actually do to assist those in the advertising industry? In an advertising context lawyers review all forms of advertising copy (including print advertisements, television and radio commercials, and OOH) to ensure legal compliance and advise on the legal issues that arise. There can be many legal risks involved with campaigns and it is a lawyer’s job to identify those risks and assist in overcoming them.

Our most important role is pre-clearance work. We review concepts, scripts, story boards and early edits, whether for print, television, radio, online or OOH. The earlier this is done in the creative process the better. If risks are identified, lawyers can work with agencies and clients to figure out how the legal issues can be satisfactorily resolved. Competent lawyers will tell you what the problems are – great lawyers will work with you to come up with a solution.

Risks associated with an advertising campaign
Some of the problems which can arise with a campaign which fails to comply with the law or codes include:
1. Complaints to the Advertising Standards Bureau or the Advertising Claims Board
2. Complaints directly to the brand
3. Social media backlash
4. Complaint to the Australian Competition and Consumer Commission
5. Court proceedings commenced by a competitor seeking to restrain the communication of the campaign
6. Requirement to publish corrective advertising

Other risks to be aware of are the reputational risk to your client’s brand if an advertisement has to be withdrawn, and your relationship with your client.

Common legal traps and pitfalls
How to avoid common legal traps and pitfalls:
1. Always get a release
When featuring images of people in your campaign you should ensure that the people featured sign a release.
In 2007 Virgin Mobile used a picture of a 16 year old Texas resident, in its “Free Texts Virgin to Virgin” OOH campaign with the slogan “Dump your pen friend”. The image was taken from Flickr where it had been uploaded by the girl’s youth counsellor and licensed under Creative Commons licensing. The girl and her mother commenced an action for unauthorised and exploitative use seeking damages.

2. Make sure what you see is what you get – a disclaimer is not enough
Disclaimers are generally used to expand or clarify an advertised offer or to make minor qualifications. Where possible, a disclaimer should be used at the same time as the representations or claims requiring qualification – such as “overseas model shown”. Disclaimers and “fine print” should simply explain the representation in further detail and should not be used in an attempt to correct a misleading impression created by the advertisement as a whole.

Metricon Homes was recently fined $800,000 after it published four catalogues between 2009 and 2011 which the ACCC considered to be misleading and deceptive. The photographs and images promoting the products were not depictions of what the consumer would be supplied if they purchased the product at the advertised price. The Chairman of the ACCC commented “If companies run promotions or advertise savings then those savings must be real, not a lure to attract customers to their products over competitors who might be doing the right thing. This is also another reminder to traders that fine print is not an antidote to misleading headline representations.”

3. Endorsement
Including images of celebrities or products in a campaign can present problems. By including an image of a celebrity you are indicating to the consumer that there is an association between the celebrity and the product that is being promoted, and that the celebrity endorses the product. This means that you are trading off the reputation and goodwill of that celebrity, which may, depending on the circumstances, be misleading or deceptive conduct. This equally applies to using celebrity look-a-likes.

4. Health and Safety
The Code requires advertising and marketing communications to comply with all relevant laws and not depict material contrary to “Prevailing Community Standards” on health and safety. It is important that the depictions in your campaigns do not show activities which are likely, if undertaken in real life, to be illegal, inherently unsafe, or contrary to community standards. This means, for example, that if you are featuring people in a car everyone should be wearing a seatbelt, drivers should not be texting while driving, and people riding bikes should be wearing helmets.

A recent TVC for Berocca featured a man running on rail tracks faster than a speeding train. The Advertising Standards Board (ASB) decided that the TVC was likely to encourage consumers to take unnecessary risks trying to out-run trains. In this instance the TVC was withdrawn.

In 2004 the ASB decided that an advertisement for Coca-Cola South Pacific Pty Ltd, which depicted teenagers doing activities and attempting different stunts, breached the Code. The ASB decided that some of the activities portrayed could be considered irresponsible and were contrary to prevailing community standards on safety. The ASB considered that the advertisement was a gratuitous inducement to teenagers to take such dangerous risks because the activities appeared to be “normal” and realistic things for teenagers to do. Because the TVC did not depict the activities in a ridiculous or satirical manner so as to send the message that the activities were far-fetched and not to be seriously attempted, the ASB considered that the advertisement breached the Code.

Ian Robertson
Holding Redlich

Aemelia Grounds
Holding Redlich

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