Business development · 13 March 2017

Promoting your business: The line between impact and illegality

Promoting your business
Discrediting another brand could result in legal action against you

For the first in a new Business Advice series on marketing a small company, Grid Law founder David Walker explains how to ensure your advertising strategy retains its message while staying within the law.

When you’re promoting your business, your products or your services you want your message to have maximum impact. To achieve this, many people will push the limits of what they say or do.

However, advertising and marketing are highly regulated activities and it’s easy to overstep the mark. When this happens, the results can be disastrous.

So, how far can you push the limits?

Where do you draw the line between impact and illegality?

As with many aspects of the law, people want a black and white answer but unfortunately, I can’t give you that. Instead, what I can give you today are some general principles to help you work through a particularly grey area. Then, in future articles, I will dive into these principles in more detail.

As I have said before, you need to start with the end in mind. Think about what you want to achieve and then we will look at how you can achieve this desired outcome. So, when it comes to promoting your business, products and services, you will probably want to achieve one or more of three possible outcomes:

  1. Create awareness of your products and services to boost sales
  2. Reinforce your brand values
  3. Cement the loyalty of your existing customers

Let’s look at how you might go about this.

You might start by making various claims about the quality of your products, their origin or what they are made from. Then you might compare your products to those of your competitors, saying why yours are a better buy. Sometimes, you might set an expectation of what results your clients will receive after using your services.

You will also want to make a lasting impact and really drive your message home so you’re remembered long after the advert has finished running. To do this, you might use humour or you might make your advert shocking or controversial.

If you’re making claims about your products, they must be true and not misleading.

For example, you can’t just claim that your products are organic or handmade when they’re not. People pay huge premiums for such products and making false claims is therefore a serious matter.

If caught, you could face fines or even imprisonment

If you compare your products and services to those of your competitors, you must be very careful. This is a very complex and highly restricted area of law. For example, the comparison must objectively compare one or more relevant features, which could include the price. When you’re making such comparisons, you must make sure you have the proper data to back up your claims.

Also, you mustn’t poke fun at your competitor or do anything to discredit their brand or build yourself up off the back of their reputation. If you do, you could face a whole host of expensive legal actions, including trademark infringement and passing off.

We all know certain brands or organisations that are prepared to be a bit more controversial than others in the way they put their message across. If people think they have gone too far, they can complain to the ASA (Advertising Standards Authority) who will investigate. If the ASA finds that the advert breaches its code of practice, it have the power to ban it.

Some of the most complained about adverts have come from health organisations such as the NHS and British Heart Foundation after they have used distressing images to shock the public into taking action. However, despite receiving hundreds of complaints that the images used were “too graphic” or “gruesome”, they avoided being banned because they had an important health message to share.

On the other hand, it only takes a handful of complaints for an advert to be banned if it shows a model who appears to be “unhealthily underweight”, or a sports car giving an “irresponsible” link between speed and excitement.

Clearly, when it comes to issues such as decency, people have very different views about what is acceptable. Therefore, to avoid a ban, it’s important to consider where and when the advert will be seen and be strategic about its placement. However, if the advert is misleading, it’s most likely to be banned wherever it’s shown.

Some people say there is no such thing as bad publicity, and I’m not here to debate whether that’s right or wrong.

Sometimes, when you push the limits and receive even hundreds of complaints, this is a drop in the ocean compared to the number of people who see the ad. It’s a risk worth taking, especially when these adverts become news items or go viral and your message is spread even further at no cost to you!

However, when you do get it wrong and go too far, it can severely damage your brand, your reputation and therefore your bottom line.

So, as a general rule, when you’re promoting your business, your products or services, take care to ensure that your advertising is truthful, decent and most of all, that it’s not in any way misleading. Always have data to back up any claims you’re making and if your advert is a little more controversial or “edgy”, think carefully about where and when it will be seen.

Finally, it’s no excuse to say you handed over responsibility for the content of your ads to an agency. You’re ultimately responsible for them so you need to know where the boundaries are and if you’re in any doubt, take advice.

If you have any questions about the legal aspects of advertising, marketing or promoting your business, please email editors@businessadvice.co.uk.

Catch up on David’s previous series for Business Advice – Starting a new business

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ABOUT THE EXPERT

David Walker is the founder of Grid Law, a firm which first targeted the motorsport industry – advising on sponsorship deals, new contracts and building of personal brands. He has now expanded his remit to include entrepreneurs, aiding with contract law, dispute resolution and protecting and defending intellectual property rights.

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