Tahir's Tips: The Laws of Digital Advertising

According to figures from the Internet Advertising Bureau’s UK Digital Adspend report conducted by PwC, advertisers in the UK spent a record £3.04 billion over a six-month period in 2013 on digital advertising. With this in mind, it’s clear that businesses are increasingly moving their marketing efforts into the digital space.

Retail websites, designers, brand owners and bloggers are all engaging with this growing world of digital advertising. It may be via the launch of an online campaign for a new brand via social media, posting adverts on an online retail platform or a blogger’s collaboration with a brand.

This week’s tips aim to give you a quick guide to the compliance and legal issues that should be considered when advertising online. There are two areas that you will need to consider, firstly advertising rules and secondly relevant laws. Failure to consider these could lead to (a) legal action against you by other brands or consumers, (b) censure, (c) wasted media space, (d) brand damage or (e) loss of reputation.

Advertising Rules:

The Committee of Advertising Practice is the body responsible for maintaining the UK’s self-regulatory rules for online advertising, including social media. These rules are known as the “CAP Code”. The CAP Code applies to companies, organisations, sole traders or bloggers that are going to market online.

The CAP Code is managed and administered by the Advertising Standards Authority (“ASA”).  The CAP Code says that adverts should:

1. Be legal, decent, honest and truthful and avoid causing offence on the grounds of race, religion, sex, sexual orientation and disability.

2. Be prepared with a sense of responsibility to consumers, society and principles of fair competition.

3. Not mislead by inaccuracy, ambiguity, exaggeration or in any other way.

4. Not make any unsubstantiated claims.

Bloggers should note that the CAP Code requires bloggers who are paid by third parties to make it clear that such blogs are a form of advertising. This complements the requirements laid down by the Office of Fair Trading on bloggers to disclose commercial relationships clearly (as discussed previously by The Industry. For further information on blogging guidance, see a useful recent ASA Q&A).

The CAP Code considers social media marketing in the same way it does traditional advertising. Therefore care should be taken when marketing on Twitter, Facebook or Instagram. If a label advertises via Twitter then the message must not be misleading or offensive and should allow consumers to make an informed decision regarding the product.

Care should also be taken when it comes to product endorsements online. It must be made clear if a celebrity is sponsored by a brand and when he or she then tweets about a product or designer from that brand that the communication is an advert. For example, Nike recently received a warning from the ASA in relation to posts from the Twitter accounts of the footballers Jack Wilshere and Wayne Rooney.

Relevant Laws:

You should always check that your advert is not infringing any third party’s intellectual property rights i.e. registered trademarks, copyright or designs. The advert should also not defame anyone or breach any contract that you may have with someone else.

You may also need to consider the European implemented rules on online commerce such as the Electronic Commerce (EC Directive) Regulations 2002 and Consumer Protection Regulations 2000. These contain details on the minimum information you must provide when selling goods online and other consumer protection rules.

Here are my tips for keeping adverts compliant:

1. Be as open, honest and as truthful as possible in the adverts.  

2. Don’t mislead consumers.

3. Check that your advert doesn't use someone else’s brand, artwork, music or content.

4. Check it doesn’t breach any agreements you have with third parties.

5. Seek professional advice if you are uncertain.

If in doubt, before releasing the advert (either online, broadcast or print) get legal advice on whether there are any likely issues and ways to reduce risk. If you have any queries about the above do get in touch.

For more information on Industry member, Tahir visit his personal partner page on the Sheridans website. To contact him directly, visit The Industry Directory, email tbasheer@sheridans.co.uk or telephone 020 7079 0103.