‘It’s easier to sleep with a Chartered Accountant.’ Harmless puffery, and doubtless the ICAEW left nothing to chance and ran this past their lawyers before the launch of the campaign in 1995. Or did they? There was nothing wrong with the ICAEW’s campaign, but an accountancy firm embarking on a new marketing campaign or promotional activity should tread carefully. Some light-hearted creativity may end up costing dearly in terms of reputational damage, if not client defections.

Consider the lawyers who rashly published a long list of individuals from eminent clients and targets in an advert headed ‘If you’d like your name kept out of the legal pages, take a note of ours’.

The implication that the individuals were personally involved in litigation angered clients who lodged a successful complaint to the ASA. A high street bank responded: ‘We were a client. We are no longer.’
I cannot summarise all the pitfalls of advertising/marketing law in a single article, so here are a few tips and a round up of some newly arising dangers.

The Advertising Standards Authority

The Committee of Advertising Practice administers the British Code of Advertising, Marketing and Sales Promotion (the CAP Code). The Advertising Standards Authority adjudicates on breaches.

Firms generally focus on print advertising, so the CAP Code will be your most immediate point of reference. The ASA does not have power to fine, but can demand a change to adverts/marketing material.

The ultimate sanction is referring persistent offenders to the OFT ­ as it has over Ryanair’s bold pricing campaigns and its punchy press ads. Check out www.cap.org.uk for the CAP Code/guidance notes and www.asa.org.uk for ASA adjudications.

The ICAEW Code of Ethics

The ICAEW code contains the profession’s marketing guidelines. S250 broadly reflects key themes in the CAP Code, with emphasis on avoiding bringing the profession into disrepute. The code highlights unclear or subjective claims of size or quality as problem areas (eg claims that a firm is the ‘largest’ or the ‘best’).

Direct mail campaigns are a frequent source of complaint. Double-checking marketing lists (in particular consents obtained) is essential. Ensure you have appropriate contractual protections against any seller of bought in lists. Sample test how the list has been compiled and run it past the preference services.

ING Direct sent out a newsletter to its client database, with details of several new products. A recipient who had opted out of receiving marketing material from ING complained. The ASA upheld a complaint the newsletter was marketing material. All marketing activity needs robust checking; it is not just the Information Commissioner who adjudicates on data breaches.

Third party intellectual property rights

Marketing is a creative process with real risks of infringing third party IP rights. Claims for infringement frequently arise. Remember also the defamation threat.

Eddie Irvine v TalkSport is a classic example of over-energetic marketing landing leading to a passing-off action. Irvine was shown holding a TalkSport radio rather than the walkie-talkie of the original photo. The Court of Appeal agreed with him that ‘he would not get out of bed for less than £25,000’ for such an endorsement and awarded him that sum, plus (substantial) legal costs.

Recent changes

Unfair Commercial Practice Directive

The Consumer Protection from Unfair Trading Regulations and the Business Protection from Misleading Marketing Regulations came into force on 26 May 2008, implementing the EU’s Unfair Commercial Practices Directive. For the first time there is a general duty on all businesses not to trade unfairly with consumers.

Breaches mainly result in the commission of criminal offences. Pay particular attention to the banned list of 31 practices deemed unfair in any circumstances, and the new prohibitions for misleading actions/omissions, aggressive practices etc.

The CPRs are one of the most significant changes to regulation in recent decades. The OFT and Trading Standards have substantial new powers to stop almost any unfair trading activities. A separate briefing note is available on request from the author.

Gambling Act 2005: prize draws and competitions

Prize draws and competitions have often caught out those who stray inadvertently into the prohibited zone of an illegal lottery. The impact of the new Act on marketing is still unclear, but be aware that skill-based promotions require skill levels which prevent a significant proportion of potential entrants from entering/claiming a prize. A ‘free’ prize draw will only be free if there is no additional payment over the normal cost of entry.

The London Olympic Games and Paralympic Games Act 2006

Hailed as ‘the most draconian intellectual property law ever enacted’, the new London Olympic Association Right, is likely to produce a number of high profile casualties in the build up to the London 2012 Olympics.
The LOAR grants the London Organising Committee wide powers to prevent any form of unauthorised association in the course of trade between a business and the London Olympics. ‘Any’ association means just that ­ so any word, image or sound is caught. There is even a list of ‘banned expressions’ (eg the
use of combinations of the words ‘Games’, “2012”, ‘London’, ‘summer’ etc could amount to an offence).

Conclusion

Racy advertising does not come naturally to an accountancy firm, but, case law and adjudications show that even the most innocuous-looking marketing can land a firm in hot water. The best advice is to build legal consultation into the creative process as early as possible.

Top tips

Oliver Bray is head of RPC’s branding team. Contact him at oliver.bray@rpc.co.uk