Dos and don’ts of advertising and social media

At its best, advertising can introduce a product or service to the world and create a lasting brand-image. This can be via print, TV, radio, product packaging or, ever increasingly, social media. But done badly, advertising can lead to sanctions and potentially irreversible damage to reputation. Here we provide some “dos and don’ts” to follow when creating, or signing-off, advertising.

The Dos

Honest, Fair and Not Misleading
Your advertising must be honest and fair and should not be misleading.

Evidence to support your claims
You should be able to substantiate the claims you make about your product/service. For example, if your advertising says your product is “award-winning” you should have the award to back-up the claim. If you make claims about benefits of your product/service (such as health benefits or eco-friendliness) you should have the evidence to support your claims before you issue your advertising. You must be truthful in any use of quality marks or other accreditations.

Puffery
In your advertising you can make claims that are clearly not meant to be taken literally and are blatantly not true or exaggerated. These claims are known as “puffery”. Puffery can be used without being deemed misleading or having to be substantiated. To avoid being misleading, puffery has to be obvious. A café advertising the “world’s best cup of coffee” is an example of puffery – it is clearly not a claim to be taken seriously as it could obviously never be proven.

Important Terms and Conditions
Highlight any important terms and conditions – don’t hide them away in the small print. If you are running a special offer, make any important exclusions or limitations to the offer clear. You should not advertise a product/service as “free” if truly there are any costs payable in relation to the product/service, or if the customer must undertake some other type of obligation (eg. entering into a contract) in order to benefit. At present it seems to be accepted that this does not prohibit “buy one get one free” offers.

Testimonials
Only use genuine testimonials. You should obtain the written permission of the person providing the testimonial to its inclusion in your advertising.

Comparative Advertising
Be very cautious in the use of comparative advertising, that is advertising where you compare your product/service to that of a competitor. Comparative advertising can only be used to compare goods/services that are truly similar - that meet the same needs or have the same purpose. What is permitted is an objective comparison of verifiable features of the product/service, such as the price, rather than simply being a subjective claim to superiority. You need to be very careful not to be defamatory (libellous) of your competitor by making any false statement which lowers your competitor in the estimation of right-thinking members of the public; or to take unfair advantage of the reputation of your competitor or their trade marks; or to cause confusion between your product/service and that of your competitor; or to present your product/service as an imitation or replica of that of your competitor.

Industry-Specific Rules
Abide by any industry-specific or customer-specific advertising rules. For example there are specific rules which apply to advertising alcohol and specific rules which apply to advertising to children.

The Don’ts

Intellectual Property Rights
Don’t infringe the intellectual property rights of any third party, such as copyright, trademark or design rights. This is something you need to be careful about if using comparative advertising – do not overstep the mark and take unfair advantage of your competitor’s name or trade marks. Do not copy the advertising of your competitors.

Defamation
Don’t include anything defamatory (libellous) of your competitors (or any other person). Material is defamatory/libellous if it contains an untrue assertion against the reputation of a third party which serves to undermine that reputation in the eyes of right-thinking members of society.

Confidentiality and Privacy
Don’t infringe obligations of confidentiality and privacy. Don’t make reference to or feature specific identifiable customers or suppliers or other business associates without their prior written permission. Aside from potential claims that could be raised against you, you could seriously damage your relationship with the party concerned.

Offensive Material
Don’t use material that might be offensive to others, for example racist language.

Discrimination
Don’t use unfair discrimination in your advertising, for example on grounds of gender, race, disability, religion, sexual orientation or age.

Social Media Tips

Whilst all of the above “dos and don’ts” apply to any advertising via social media, below is some additional guidance in relation to social media.

  • Be as careful when using social media as you would be when using any other form of advertising.
  • Be selective in who you allow to use social media on behalf of your business.
  • Any staff who will use social media on behalf of your business should be trained in what is, and what is not, acceptable advertising. Having a staff policy on the matter will also assist.
  • Advertising should be identifiable as advertising. Using a “#spon” or “#ad” tag on tweets by endorsers will help to identify tweets as advertising.
  • You must abide by the terms and conditions of any third party social media platforms that you use. It is up to you to check that what you want to do is permitted before you upload the blog/post the video/tweet/comment.
  • Don’t post fake negative reviews/blogs about your competitors.
  • Don’t post fake positive reviews/blogs about you or your product/service.
  • If you allow third parties to post their own content to your website or any other social media pages operated by you, then you potentially could be liable if that third party content infringes the rights of others or is unlawful or misleading. Your website and other social media pages should have appropriate terms and conditions regulating what third parties may, and may not, post; permitting you to remove any third party content; and disclaiming your liability for such content. You will need to decide to what extent (if any) you will actively monitor and moderate third party content to ensure compliance with the terms and conditions – some businesses expressly exclude an obligation to monitor or moderate third party content in their terms and conditions in an attempt to distance themselves from liability for any non-compliant content.
  • In order to encourage feedback to help you to improve your products and services, it is often better to reply to genuine negative comments than to delete them.
  • If you wish to use any third party content posted to your website or other social media pages in your future advertising then you must ensure that you secure the permission of the person who created the content.
  • If you post something in error, correct it as quickly as possible and be upfront about the correction having been made. This will help to prevent anyone being misled by the error.

Sanctions

If your advertising fails to comply with the legal requirements, you will be at risk of a number of different sanctions (depending on the nature of the failure) including:-

  • you could be censured by regulatory bodies, such as the Advertising Standards Authority;
  • you could be guilty of a criminal offence and liable to an unlimited fine or up to two years imprisonment (or both). In the case of a corporate body, in certain circumstances a director, manager, secretary or similar officer may be prosecuted personally as well as the corporate body;
  • you could be issued with an enforcement order (this is a civil law remedy rather than a criminal law sanction) requiring you to take specific actions in response to unfair or misleading advertising;
  • you could be obliged to withdraw or change the advertising;
  • you could be subject to an injunction (or interdict in Scotland) preventing future use of the advertising;
  • an award of damages could be made against you; and
  • you could suffer significant adverse publicity and damage to reputation as a result of any ruling that you advertising falls short of the legal standards.

Conclusion

You need to be alert to the legal rules applicable to advertising to ensure that you are able to enjoy the full benefit of any advertising that you create. The key is to be honest, fair and not misleading, in particular in relation to your customers and competitors.

Please note that the above is not an exhaustive summary of the law relating to advertising but rather summarises some selected issues. If you have a particular concern you should seek legal advice.

Wright, Johnston & Mackenzie LLP, 302 St Vincent Street, Glasgow, G2 5RZ
Offices also in Edinburgh & Inverness


Contacts:

Angus G. MacLeod Email: agm@wjm.co.uk Tel: 01463 250 011
Martin O’Neill Email: mon@wjm.co.uk Tel: 0141 248 3434
 

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