For those businesses in the endlessly dynamic advertising and marketing sector, it makes sense to focus resources primarily on what makes that industry so important – the innovation, the passion and the creativity.
But the world of advertising is also one that often finds itself walking a legal tightrope and if you’re not best-placed to prepare for these legal consequences (and the costs they can incur) then you could end up in hot water. And in this current uncertain climate, cool waters are always appreciated.
Advertising often deals with intellectual property by design and in that game, there is great potential for legal liability and serious claims. That’s why legal risk management is so crucial in the sector and should not be neglected as a minor consideration.
Managing risk in advertising and marketing means constantly asking yourself the following questions:
Who owns the creative?
If you’re working with any kind of creative content, whether it be words, pictures, logos and particularly the brand name, it all constitutes intellectual property and to use it legally, you must either own the rights to it yourself or have contractual permission to use it.
So, before submitting any content to your clients, always ensure you are 100% legally allowed to use every piece of creative in the campaign.
Did the third-parties sign off on it?
Creative ownership is also true when considering work done by freelancers and sub-contractors because while there is the assumption that all work created in the course of a campaign is owned by the employer, if there is no written agreement then the third-parties could potentially contest that the work you’ve handed into your client contains their intellectual property. To avoid this, ensure all contracts written up with third parties contain very clear working parameters.
Are there any non-disclosure agreements to consider?
If you’ve been asked to sign an NDA or confidentiality agreement prior to a pitch then all information you receive before the pitch should be kept under lock and key.
Indeed, even if there is no NDA involved, if the information you receive is quite obviously supposed to be confidential then if you share this information and the potential client experiences a loss as a result, they might have a legitimate claim against you.
Can I contact customers?
Any breach of the Data Protection Act of 1998 constitutes a criminal offence and in a post-GDPR world, the lines in the sand have been drawn with even greater clarity.
If you’re planning on marketing directly to a client’s customer base you must ensure you obtain a warranty and indemnity from the client that ensures the contact information was obtained legally. Otherwise, you could end up being stuck with a fine of up to £500,000.
Do I know who is and who is not an employee?
Job titles might not always reflect an individual’s employment status and it’s possible for some individuals to be treated as self-employed for tax purposes, but as an employee for insurance purposes.
Businesses must ensure they have put in place employer’s liability insurance and given the blurred line that often occurs between the employed and self-employed. This is particularly common in the creative and media industries, businesses would be wise to take out policies that cover both equally, preferably from a specialist insurance broker.
Should I be using comparative advertising?
Comparative advertising is as old as advertising itself and is used today by everyone from video game console manufacturers to political parties.
However, it’s a potentially dicey area to get involved in as if you put a foot wrong you could land your client in hot water.
Your marketing must not mislead the audience and can’t be seen to be piggy-backing on the reputation of a client competitor. It’s a tactic that has been used by Pepsi and Burger King in the past – but just wouldn’t float in this day and age.
Of course, there are dozens of other considerations to make and potential risks to juggle and as the industry continues to evolve there will be dozens more to come.
Although most marketing and advertising agencies set out to stick to the basic rules of advertising (be legal, be honest, be prepared, and be respectful), things can go awry unintentionally.
That’s why it’s so important to work with a specialist insurance adviser who really understands your risks, and to have a secure specialist insurance policy in your back pocket just in case you slip up.
Let’s be honest, it happens to the best of us.