This is a significant change, as it brings a large amount of new material into the ASA’s territory. The ASA will now have the power to, for instance, examine claims made about your product on your website, and pronounce that they are misleading, or socially irresponsible. The ASA would then require that such claims not be made again. Businesses which operate primarily online through their own website could find themselves subject to ASA investigation for the first time.

An adverse ASA adjudication can produce a great deal of negative publicity, and in addition the ASA have decided that they may in future place their own advertisements online, to be found by search engines, to name and shame advertisers who refuse to comply with their rulings. For this reason your competitors may look to instigate a complaint if they feel there is misleading information on your website. Businesses should take the opportunity now to submit their website’s content for review, to avoid the risk of a complaint.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

The precise extent of astroturfing online is unknown – though there are certain ways to detect if a review is genuine or fake. But in a world where the casual consumer relies heavily on reviews and averaged star-ratings (be it on Amazon, TripAdvisor or iTunes), astroturfing can clearly impact on sales if left unchecked.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

Changes include:

• an over-arching “social responsibility” rule for broadcast adverts
• clearer guidance for both broadcast and non-broadcast on what the ASA will consider are unfairly exaggerated “green” claims
• rules preventing marketers from collecting data from children under 12 and from exploiting the trust that young persons place in parents, teachers or other persons
• clarification on the acceptable use of the word ‘free’
• a requirement that prize promotions be clear about which prizes are available to win and those that are guaranteed to be won
• new sector-specific rules for charities, food and drink, adult products, debt advisers and lotteries

Advertisers should review their current marketing projects against the updated Codes, so that they do not get caught out by the changes – and so they do not miss out on any new opportunities now available.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

Kia had failed to sufficiently highlight that the warranty was subject to a 100,000 mile limit, and that not all items would be covered for the full length of the warranty – even though the 100,000 mile limit was referred to in the final frames of the ad, and was considerably in excess of the UK’s average annual mileage (around 10,000 miles).

Although the ruling is not fatal for Kia’s ’7 year warranty’ strapline, Kia will have to alter its adverts. Advertisers of course want to have a clear message, but this ruling shows how difficult this can be if there are significant qualifications to an offer, which need bringing to the consumer’s attention. If an offer is qualified – that information must be as clear as the strapline itself.

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

As a self-employed photographer, he logged every phone call and letter sent, then claimed for his loss of earnings. British Gas say they haven’t accepted liability, and the payment was made purely as a gesture of goodwill. However, consumers are being encouraged to record the time spent dealing with utility companies, and consider charging them for any loss of earnings.

Although courts do not award damages for mere inconvenience, Ombudsmen may recommend such a payment. Multitudinous consumer claims for wasted time would be difficult to cope with administratively (and economically, if the consumers are determined to go to court).

Does this case just give consumers another encouragement to complain or underline the importance of getting your customer service right first time?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

However the promotion went wrong when a 14-year-old girl’s status was updated with a reference to a hardcore pornography film, causing an outrage. Now Coca-Cola are reportedly considering moving their account from the advertising agency responsible for the promotion.

This shows the importance, when dealing with a novel promotion mechanic, of ensuring the promotion is carefully reviewed before it is run – not just for legal compliance, but also to establish what’s the worst that could happen?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

Now there are signs that the food industry is going to get even more respite. The Food Standards Agency (FSA) is going to be part of the government’s review of “arms length” agencies that is due to take place this autumn.

The FSA has been subject to much criticism from the food industry in recent years – particularly for it’s lobbying for mandatory traffic light labelling and restrictions on TV ads for foods high in salt, sugar and fat.

Many of those in the industry are of the view that the food industry is responsible enough to look after itself and consumers are big enough to make their own choices about what is and what is not good for them. But is the fiscal deficit really a good reason to abandon  the body which when it comes to food is charged with protecting public health and public safety?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

The E-Commerce Directive creates certain protections from liability for illegal material that appears on websites, although these protections have certain exemptions. This includes where the website is put on notice of unlawful material, at which point the ‘host’ must act expeditiously to remove it.

It is arguable whether Facebook’s approach brings it strictly within the protection offered by the Directive. But is it more important for Facebook to be seen to be promoting freedom of speech, even when it could be distasteful?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

The Distance Selling Regulations were introduced in 2000, following EU legislation on consumer rights. They are designed to protect the rights of consumers who buy goods online, and therefore do not have a chance to inspect the goods in the shop before buying them.

Although the sums involved are individually small, this could mean an administrative headache for businesses forced to address numerous claims for a refund. It could also result in Trading Standards getting involved. Under the Enterprise Act, they have wide-ranging powers to stop breaches of consumer law, no matter how small.

Consumers are not always aware of their rights – however it is important that businesses do keep up to date with consumer rights, as stories like this can result in bad publicity, and may even prompt legal action.

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

Mr Barrett had faced a maximum fine of up to £50,000, or jail time. He pleaded guilty after an investigation by North Yorkshire Trading Standards. He stated that he was not aware he was committing a crime. 

Though the prosecution is to be commended, the size of the penalty, combined with the admission by the authorities that shill bidding is difficult to prosecute, means that without more action being taken, this conviction alone is unlikely to deter future shill bidders.

So do you think that chasing internet crime is a good use of Trading Standards meagre resources – or should they be concentrating on the real risks to consumers like sale of dangerous toys or flammable furnishing?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

The suit claims that Apple knew that the antenna design of the iPhone 4 caused reception problems, but ‘wilfully, falsely, and knowingly misrepresented material facts relating to the character and quality of the iPhone 4 units.’ It also states Apple failed to use due care by failing to issue a voluntary recall, or at the least waiving the 10% restocking fee for returned iPhone 4s.

If it becomes a successful ‘class action’ suit, Apple would also have to pay damages to anyone else affected by the alleged defects. This case illustrates how quickly a product launch can damage a brand if design defects are discovered. The more high profile the product, the more extensive will be the consumer testing so due diligence is critical to ensure that new products are fit for the marketplace.

So once you ve done your testing and your due diligence is in place – is it ok to be like the CEO of BP and stand by your Brand – or do you bow to the inevitable and accept that whatever happens – the customer is always right?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

Whilst we wait to see what happens MPs north of the border have voted through the ground-breaking Alcohol Bill which could result in drink promotions banned full stop, an ability to raise the age for buying alcohol, and “social responsibility fees” for retailers who choose to sell alcohol.

Whilst it seems unfathomable that alcohol will ever stop being a big part of British culture, who could have predicted a near universal ban on smoking in public venues across the EU. When will the shackles on the sale of alcohol stop tightening? Will it stop at prominent health warnings on packaging being mandatory or will a far more draconian hand be dealt to the industry?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

The women are accused of contravening the Merchandise Marks Act by abusing a trade mark. However, the difficulty in this case is that no mark of the company is visible on the dresses and it is therefore hard to see exactly what trade mark has been used.

The case demonstrates that organisations such as FIFA take ambush marketing extremely seriously and will crack down hard where they see examples of it. However it also illustrates that, no matter how draconian the legislation or the enforcement of it, ambush marketers will always be one step ahead.

One thing is certain: during the 2012 London Olympics, ambush marketers will find new ways to advertise their brand without paying hefty sponsorship fees. So, let the games begin!

Posted by Nick McDonald
0115 976 6198
nmcdonald@brownejacobson.com

The judge recognised that any definition of “defamatory” must incorporate some qualification or threshold of seriousness, so as to exclude trivial claims. He preferred the following definition: 

“the publication of which he complains may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”.

This interpretation provides defendants with another weapon in their armoury. Plus in an increasingly pro-publisher environment, coupled with the prospect of claimants not being able to recover success fees and ATE insurance premiums from defendants, it may make potential claimants think twice before commencing an action.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com

This week a study by Nielsen has revealed that Nestle are not the only ones taking advantage of “ambush marketing” during the lead up to the World Cup. The likes of Nike and Carlsberg appear to got the upper hand over their bitter rivals but its not all bad news. Nielsen also found that FIFA partner Coca-Cola was found to have had five times the level of mentions around the World Cup than Pepsi did.

With the raft of brands that are currently and will continue to engage in ambush marketing, is it time for sponsors to start taking advantage of their alignment to the World Cup by being more creative, since “owning” the tournament is clearly not enough?

Would money be better spent on savvy marketing strategies rather than on potentially fruitless attempts to try and go after arguably more creative (ambush) marketeers?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

With major sporting events, “ambush marketing” can be rife with advertisers other than official sponsors keen to piggyback on the popularity of the event without expressly associating themselves with it.

Although sporting associations often publish guidelines as to what references they will permit, which prohibitions are actually enforceable is a question of law. There is obviously a line which must not be crossed. However Nestle say they have taken advice, and feel that the campaign is permissible.

If the law doesn’t protect the rights which official sponsors have paid for, whats the point in paying ? – or maybe we are all “fair game” when it comes to making money for football?…

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

Abortion has been legal in the UK for more than 40 years, but advertising rules still restrict commercial providers from advertising their services. Though clearly the advert will be highly controversial, Marie Stopes say they have taken legal advice and have been given permission to air the advert, as they are a “non-commercial organisation.” Such organisations, including the Government, are permitted to advertise “pregnancy advisory services.”

Similar, the ASA have said that non-commercial providers of post-conception advice services have long been permitted to run such advertisements. Any advert that is broadcast has to comply with all the relevant rules in their Advertising Code. However, the ASA cannot act on objections that viewers might have about the service being advertised at all – they can only act on complaints, after broadcast, that the advert has breached its codes, for instance on its actual content, or inappropriate scheduling.

Nevertheless, the Society for the Protection of Unborn Children is considering making a challenge to the legality of the advertisement. As the ASA have set out the limits of their involvement, it will be interesting to see what other route SPUC try to pursue to prevent such advertisements – potentially arguments about human rights, including the right to life and the right to free speech, may be involved.

From a legal perspective, this shows the importance of seeking advice before embarking on an advertising campaign, because Marie Stopes are now able to state that they have taken such advice ahead of any controversy which might be brewing. It shows the limits of the ASA’s remit, even in highly controversial cases – but also that these limits do not prevent offended groups from seeking to take other forms of legal action.

advertisement will ask women “are you late?”, and will direct those facing an unplanned pregnancy to Marie Stopes’ helpline. It is anticipated that the advertisement will cause uproar amongst pro-life campaigners.

This may be Legal Honest and Truthful – but is it Decent?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

We are all likely to find ourselves receiving more and more promotional material. So much so that the Advertising Standards Authority (ASA) has felt it necessary to remind voters that although it regulates nearly all forms of advertising – it does not regulate election advertising.

Adverts that are designed to persuade voters in a local, national or international election referendum are not covered by the Advertising Code.

Does this represent a true example of protecting our human rights to free speech or does it give politicians a right to free unregulated publicity to say whatever they want – at whatever price to win votes and power?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

Publishers welcomed the move but the oncoming election has led to the reforms being derailed. A number of MPs have also openly opposed the reforms because the proposals would not adequately protect the “little guy” who sues the publisher. Does this mean these same MPs disagree with the conclusions and recommendations of the Jackson report? It is only a matter of time before defendants are given greater protection against liability to pay success fees and after-the-event insurance premiums in defamation cases, and publishers will feel that not passing this legislation is an opportunity missed.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com

Amongst other controversial posts, Stuart MacLennan reportedly described the elderly as “coffin dodgers”. He has now been dropped as the Labour nomination for the seat in Moray.

One interesting point is that the Labour Party have said that Mr MacLennan’s tweets were in fact posted a year ago, when Mr MacLennan was still a student. Nevertheless they are still available to be found and reported, and can still be used against him. As a side note, from a legal perspective, material posted online is “published” each time it is downloaded to view – not just when it is first posted. This means that potentially defamatory material (including material which has been “cached”) can be unearthed years after it is posted, and the maker of the statement can be sued. This rule is however currently under review, and may change soon. 

Do you think this incident will make students more careful about what they post online, in case it is used against them in the future?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com