Ensuring marketing campaigns meet legal and legislative requirements is a vital step for brands. Here, we find out the best way for marketers to achieve that
Most campaigns are designed to be noticed, but every now and again a campaign attracts attention for all the wrong reasons.
Copyright infringement, advertising standards, defamation laws, ethical considerations and various other legal codes and laws such as the Australian Consumer Law and the Corporations Act all present significant hurdles that campaigns must clear if they are avoid becoming tied up in potentially lengthy and costly proceedings or run afoul of the court of public opinion.
But while the tests a campaign must pass are numerous, that does not mean achieving compliance needs to be an onerous process, or one that results in only the blandest material making it through.
According to Brigit Rubinstein, a practice leader at the commercial law firm, LegalVision, many organisations misunderstand their obligations in relation to the Australian Consumer Law and the Corporations Act.
“So they haven’t yet appreciated why they need to be so on top of their marketing collateral,” she tells CMO.
And while ignorance of the laws and codes is no defence, smaller organisations should also not assume their size will see them escape scrutiny, as Rubinstein says the Australian Competition and Consumer Commission (ACCC) will work to protect the rights of consumers regardless of the size of the organisation that has wronged them.
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Furthermore, even when the ACCC decides not to act, Rubinstein has witnessed an increase in the willingness of competitors to take each other to task via the legal systems, even for relatively subtle infractions.
“There is often litigation in many industries between competitors who are absolutely vigilant in making sure their competitors are describing products accurately and correctly,” she says. “You can get big penalties and reputation damage if those things are picked up, which they often are.”
Despite the potential penalties, LegalVision head of partnerships and growth, Taylor Gray, has noted resistance in many marketing teams when it comes to engaging with their legal colleagues.
“It’s a case of ‘marketing doesn’t want to send anything to legal because they destroy the creative energy in the campaign’,” Gray says. “But that is often only because there isn’t a good collaborative process from the outset. Because if you have the creative process operating within a confine of what is going to be compliant, you won’t get the bottleneck and that kind of obstruction.”
Increasingly, Gray’s firm is being brought to advise clients at the beginning of the creative development process.
“We think best practice is to avoid getting to a stage where you are three months into the campaign and when you send it to the lawyers, they say you can’t go with that concept,” Gray says. “Best practice is having your legal and compliance team involved right at the beginning of a big campaign.”
Gray says this can also make life easier for the legal team by relieving the pressure to approve work quickly at the end of the process, and when there is no familiarity with the campaign or the context around its creation.
Ad Standards also provides the Ad Standards Copy Advice Service, which for a fee will check whether a campaign is likely to meet community standard.
According to chief executive officer of Ad Standards, Fiona Jolly, knowledge of the AANA Code of Ethics is the best starting point to ensure advertising and marketing materials comply with the rules and minimises the risk of producing content that breaches the Codes.
“Complying with the advertising Codes means you’re not wasting money and you’re not risking brand damage by humiliation in the media,” Jolly says. “The higher compliance is with the Code and the more people that comply with the Ad Standards Community Panel decisions means it is less likely government will get involved in advertising regulation.”
Read more: How to get legal to say yes to your marketing idea
Seek legal advice at the earliest stage of campaign development. This can lead to the creation of safe frameworks within which campaigns can be developed, setting the scope for creative freedom while minimising the risk of a campaign needing to be changed prior to release.
Keep the legal team abreast of campaign deadlines. In-house legal teams are inevitably busy with a range of activities. Lodging requests for assistance ahead of time helps to avoid inevitable bottlenecks.
Create a repository of past approved decisions (and rejections). The rapid turnover within marketing teams can foreshorten corporate memory, leading to the same mistakes being made only a few years later. Having a library of past decisions can provide a framework for predicting future outcomes.
Log all sources for statements being made in campaigns: If marketing material makes claims about a product based on scientific research or other external sources, it is vital this information be made easily accessible to the legal team in the event that its veracity needs to be confirmed.
Mandate training across the marketing team: Ignorance of a code or law is no defence if it is breached. Knowledge of the basics of Consumer Law, the AANA Code of Ethics and other relevant codes and laws is the best starting point to ensure materials comply with the rules. Ad Standards has also provides access to online and bespoke training resources.
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