How to get legal to say yes to your marketing idea
- 08 November, 2017 07:27
The rise of content marketing, influencer marketing and social media engagement is changing the way marketers work with their legal, regulatory and corporate affairs teams.
In this feature, we take a look at ways marketers can better work seamlessly with their legal teams and ensure campaign ideas are brought to market with speed and relevance without risking legal repercussions.
Starting the legal conversation at concept level
In an ideal world, marketers should go to legal with their high-level ideas for a campaign before they even commence work on the creative, according to principal and legal director of leading media legal firm Studio Legal, Jennifer Tutty.
“It is a good idea to go to legal with not just one idea for approval but multiple, just in case the first one or two are not suitable from a legal perspective,” she said. “The high-level ideas can be reviewed by the legal team in a more expedient fashion and marketers can take this advice on board and work through the ideas they presented.”
When it comes time to submitting the campaign for approval, it will take less time for legal to review and comment, Tutty said. “If high-level advice was given at the conception stage of the campaign, any tweaks required to the campaign should be more cosmetic rather than catastrophic,” she said.
For Tutty, legal reviews of marketing shouldn’t happen in a ‘closed black box’. She encourages open conversation and dialogue from early conception of a campaign to minimise stress and create a more seamless marketing process.
“Even if it’s a five-minute chat or ‘hey, can I run something by you’ chat, legal can uncover any critical problems with a campaign at a very early stage and provide guidance to the marketer on how to tweak an idea or whether they simply need to go back to the drawing board,” she said. “It is often way too late to involve legal once a marketer has completed their campaign, especially when the marketer believes there is an element of risk or that the campaign pushes the boundaries.
“Waiting and praying that legal will say yes, when your deadline is tomorrow, is not a great way of operating nor is it good for your stress levels. Legal and creative working in a closed black box environment is absolutely counter-productive on so many levels.”
Closer alignment for more transparency and seamless legal review
Better aligning with legal and enjoying more transparency and open communication of the review process requires creating good relationships with legal teams, whether they’re in-house or external, Tutty said. Open lines of communication will allow marketers to ask quick questions along the way.
“Also, marketers should come to lawyers with their ideas and questions in a manner that is structured and well thought through,” she said. “For example, use of a well-considered list of specific legal questions could be helpful so the lawyer can cut straight to the chase by providing advice on exactly what the marketer needs.”
Zendesk senior VP of marketing, Jeff Titterton, stressed a good, working relationship with the legal team starts from a place of empathy, where you are able to understand both intent and motivation.
“From there, you can develop strong working relationships with the person running the legal department,” he said. “Once you understand the risks, the concerns, and what legal is trying to protect you from, then you can share your priorities for the year.
“The two team leads should also work together and ensure the right people are put on the job to accommodate both the workload and the different - but always - complementary perspectives.”
Before any work is done, Titterton advised marketing and legal leadership to develop a formal process for legal review of marketing content, contracts and other work, with clearly stated roles and responsibilities among parties.
“Following a standardised review process will improve transparency and reduce wasteful back and forth,” he said. “It will help establish more fortunate relationship patterns.
"At the end of the day, marketing’s role is to drive the business and grow revenue. Legal’s role is to ensure compliance with the law and reduce business risk. These two things are incredibly aligned and intended to help each other. They are not at odds with each other. If the legal review process is done correctly, marketing should welcome legal advice on areas that could put the business at risk.”
Once both leadership and a team are aligned, both team leads can work together to discuss marketing reviews, strategies and tactics, Titterton said.
“This can be done formally on a yearly basis, and then refreshed quarterly during the campaign planning process,” he added. “Legal and marketing teams that understand each other and set aside time for planning will ultimately work together more easily.
“I also recommend setting ground rules to ensure a healthy working relationship between the teams. Poor marketing and legal relationships have a tendency to become rigid and intractable, with a marketing team that does not listen and a legal team that rejects anything that presents any risk, no matter how slight.”
Empowering creativity through a comprehensive legal review process
At Meat & Livestock Australia (MLA), group marketing manager Andrew Howie’s team has a very clear process involving both internal and external concept reviews at various stages of campaign production.
“We’ll have an internal conversation around the initial concept, so that’s very much top-level, and discuss the idea so we get an initial barometer feel for it,” he explained. “Then we’ll proceed into script development, at which point we’ll have another check-in. We’ll at this stage also consult legal – both in-house and a third party – for further consultation. Often at this stage we have a script that’s longer than we need because certain aspects do and don’t pass the test. So we can either edit or omit parts of the changes without losing a lot of the stuff.”
From there, the concept undergoes further development until the team gets to a point where they are fairly happy. It will then go through another internal and external review process.
“This is all in our production timelines,” Howie said. “We also have another review process prior the shoot and take any additional feedback before filming.”
A final review is taken post-shoot to ensure translation from paper to screen has been as seamless as possible, and the team at MLA haven’t diverted from any tones during the performance.
“Of course, with all these rounds of internal and external reviews there are costs, but it’s critical to have a rigorous and robust review process,” Howie said. “From brief to market could be five months, with longer production timelines, so we also need to factor that in to our marketing plan and process.”
To create a more tight production process, Howie said MLA leverages a robust management tool to understand ideal lead times for everything.
“Plus it allows our media agency to plan properly, do channel planning and connection planning,” he added. “It also helps us book with sufficient lead times to secure preferable rates.”
The basics of the law
Experts agreed marketers shouldn’t necessarily ‘think like lawyers’ in order to better align their concepts with a seamless legal review. Instead, they should understand the wider legal and regulatory frameworks while being open to discussion and review.
“We do not imagine marketers will know the details of every law that applies to campaigns in Australia - nor should they, this is the lawyer’s job,” Tutty said. “However, if marketers are able to highlight potential legal problems when their campaign is at the initial conception stage, they can research and deal with these issues before spending too much time on the creative development of the campaign.”
Ideally, Tutty suggested marketers take steps to develop a better understanding of the legal framework that applies to advertising and marketing in Australia. And having a broad knowledge of the various laws that may impact on a campaign will also help marketers ask the right legal questions particularly given the rise of new social and digital elements coming into the mix, such as influencer marketing.
“For example, will the use of an influencer in this digital campaign in the way we intend breach section 2.7 of the AANA Code of Ethics? Or, can we use this image from a past campaign in this new campaign in the way we intend, without infringing copyright of the photographer or the terms of any past licence agreement?; Can we really say in the campaign that this product is made in Australia when it is only designed in Australia?”
For MD of integrated marketing communications agency, Bastion Brands, Simon Davies, the key is not to necessarily think like a lawyer. “It has the potential to kill creativity and impact the intended message of the content,” he said. “But build a positive, working relationship with the legal department. And if you don’t know the legal team, then find out.
“Explain why you have developed the content you have and what you are trying to achieve. Also explain why you think it will be successful for the brand. Then negotiate with the legal guys to get the best outcome. Once again, a good relationship is the key here.”
According to Davies, one of the best things he did was to ask the legal team for a comprehensive checklist of dos and don’ts.
“And essentially, plan and give yourself time. You also need to work with other team members who are providing content to legal to prioritise, so legal has a bird’s eye view of all the content coming through. If it is reactive content to something that’s happening in the news, then it is about having a good relationship with the legal rep, as in these cases you will need quick approval.”
Gruden general performance manager, Costantino Marotta, agreed having everyone in the same room to air prior difficulties and successful engagements is the best way to define the policies governing content marketing and social media campaigns.
“For us, proactively involving key representatives from each of these departments at the beginning of the process – as part of the initial stakeholders’ meetings – has made everyone’s job a lot easier, and made everyone understand and appreciate each other challenges,” he said. “We can setup processes to manage the operations, including risk analysis, risk evaluation, risk treatment, and ongoing monitoring and review.
“The last component of the framework is the identification and rollout of systems and technologies to mitigate social media risks: Monitoring and analytics tools, libraries with pre-approved content, and campaign management systems.”
As an agency, Marotta’s team is working with a client who operates in a complex regulatory environment, where the number of stakeholders needed to approve a piece of content is up to five, including public affairs, customer service, public relations, investor relations and marketing.
“And that is before it gets to the legal team,” he said. “Our role is mapping out the approval process, understanding who, where and when people need to be involved, and bringing together all the relevant parties upfront.
“What is important is a broad understanding of the legal or governance parameters that marketers and other participants in the organisation need to work within. That includes those that are fixed, such as regulatory, privacy and defamation issues, and those that might be up for discussion or review depending on the circumstances of a campaign.”
Up next: 10 helpful hints to better align your marketing team with legal
10 Helpful hints to better align marketing with legal
- Marketing’s review submissions should be as comprehensive as possible before they are sent to legal.
- Never present half-baked ideas or incomplete work. If the marketing team can’t take the time to fill out and properly document the work they need reviewed, then it’s not worth legal’s time to attempt to review it.
- Marketing should develop a standard calendar of review priorities and share with the legal team.
- Priorities should be stack-ranked and signed off by marketing leadership, so that legal understands these are leadership priorities. All priorities should include business context to help legal more efficiently process them.
- Avoid last-minute requests. If you must make a last-minute request, make sure legal knows the context and reason for the rush.
- Don’t send dozens of different marketers of all levels to work with legal — this will understandably annoy the legal team.
- Establish one or two marketing liaisons to work with legal on the prioritised backlog of requests. These liaisons should be relatively senior and able to represent different kinds of marketing requests.
- Establish an escalation path for disagreements between legal reviewers and marketers. Marketing and legal need a clear process to escalate disagreements that come up on a specific issue.
- Marketing and legal leadership should agree to an approval model that includes a final tie-breaker at the top if the working teams cannot agree.
- Establish one or two internal marketing reviewers to review work before it goes to legal. These reviewers should be trained to review with a legal eye and should ensure that all required information, including documentation and citations, are included before the work is sent to legal.
- Source: Zendesk’s senior VP of marketing, Jeff Titterton
Key areas of law Australian marketers should be familiar with:
- AANA Code of Ethics
- Trade Mark Law (controls use of people’s brands, slogans and logos)
- Copyright law (controls use of ‘copyright’ such as photographs, images, poems, music and videos and also performer’s rights)
- Australian Consumer Law (particularly section 18 which deals with misleading and deceptive conduct and section 29 which deals with false representations)
- Trade Promotion Lottery Laws (places conditions on how competitions are run)
- Defamation Law (protects reputation of individuals)
- Injurious Falsehood (protects reputation of businesses)
- Privacy Laws (controls use of personal information)
- SPAM Act (restricts certain advertising practices)
- Source: Studio Legal principal and legal director, Jennifer Tutty