We’re currently working with the team behind, Festival800, an artistic response to Magna Carta. The sealing of that document 800 years ago is what provides us with the amazing powers of freedom of speech which we enjoy today. But in a marketing context, are we really free to say what we want about our company, products or services?
The short answer is no.
With regards to advertising, the law says that you must give an accurate description of your product and that your advertising must be legal, decent, truthful, honest and socially responsible.
So, how do you ensure your advert is legal? First of all, don’t lie, miss out any vital information or be aggressive in your advertising.
You need to be crystal clear about pricing too. If you quote a price that excludes VAT, then this needs to be clear. You also need to make sure you can prove any claims you make with solid evidence. If you say something is the best, then make sure you can qualify your claim. This is why you see all the small print at the bottom of adverts promoting beauty products. You know the bit where it says the product was tested on 20 ladies and 17 said it was amazing!
Talking of beauty products, that industry is covered by specific set regulations as are adverts are aimed at children or promoting food, alcohol, environmentally friendly products, medicines, political parties and tobacco.
If you’re unsure about what the law says then you should read the Committee of Advertising Practice code, which cover non-broadcast advertising (eg print, online), sales promotion and direct marketing. TV and radio adverts are governed by Ofcom’s broadcast rules.
If you are advertising to consumers then you should also read the consumer protection from unfair trading regulations.
Advertising to businesses? Don’t feature a competitors’ logo or trademark; don’t compare your product with a competing one that isn’t the same and don’t make any misleading comparisons between the two. You can find a wealth of information in within Business Protection from Misleading Marketing Regulations
Don’t’ forget if you’re gathering, storing or using information about potential or current customers then there’s also data protection to consider and this applies not just to printed direct mail but also e-mail marketing.
If you’re sending promotional faxes to individuals, then you’ll need their permission to do so before sending the fax. Using telemarketing, make sure the people you’re contacting haven’t registered with the Telephone Preference Service. If they have, then phoning them is illegal and could result in a £5,000 fine.
For traditional, posted, direct mail, make sure your mailing list doesn’t include people who’ve registered with the Mail Preference Service.
Email marketing and text messages
I suspect you get lots of unsolicited emails every day but you shouldn’t. Companies are only allowed to send marketing emails to people if they have permission to do so. If you’re using email marketing and have a bought a list from a data company, then check you have the right to use it for email marketing and make sure that in every email you send, you tell people who you are, that you’re selling and if you’re including a promotion, make sure the conditions are easily available.
Promoting yourself by sending out press releases? Then you still need to make sure you’re legal.
Avoid saying anything that’s misleading. Just like advertising, don’t say anything you cannot substantiate. Journalists won’t believe you’re the best without proof. That’s why many companies describe themselves as ‘the leading’, whatever that means.
You also need be aware of The Defamation Act 2013.
There are several definitions of defamation of character. One widely used definition is: “A statement which tends to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feeling of hatred, contempt, ridicule, fear or disesteem.”
The Act requires the claimant to show how exactly they have suffered serious harm or are likely to suffer serious harm as a result of the statement. Whether the statement will be considered libel or slander, depends on how the statement was made.
If it was said or is in a ‘transitory’ form then it will be considered slander, unless it was broadcast on television, radio or made in a public performance of a play.
A statement will be libellous, if it has been has been published; seen by a third party; and be easy for readers to identify the claimant even if it does not explicitly state his or her name.
Online And Social Media
Using Facebook and Twitter to promote your business? Blogging? Then remember, once you’ve published something online you, as the author are legally responsible for the content. That means you need to make sure you can substantiate your claims, that you’re not slandering someone or infringing copyright – do you have permission to use all of the images on your website?
And don’t forget the internet is global. Publishing on the worldwide web means the content can be challenged in other countries, and the laws governing defamation do vary from country to country.
When it comes to Twitter and Facebook, transparency is essential. Don’t create content that appears to come from other people. Don’t involve celebrities or pay others to post nice things about you. What is and is not allowable in social media marketing is a grey area, so I’d recommend airing on the side of caution as anything promotional that’s posted on social media needs to comply with the Committee of Advertising Code.
As you can see there are many factors and areas of the law that cover marketing activity, so perhaps whilst Magna Carta gave us freedom of speech to an extent, not all of its privileges extend to marketing.
Hopefully this short overview will help you stay within the boundaries of what is acceptable. And, if you’re unsure, remember this simple saying – “if in doubt, leave it out’.