What constitutes proper conduct in marketing and communications? - Legalwise Seminars

Norton Rose Fulbright Partner Georgina Hey and Associate Isobel Taylor in the first of a two-part series on advertising regulations and trends, discuss advertising definitions and what requirements apply in each situation. 

Navigating the complex and often confusing maze of regulatory requirements, legislation and industry codes governing advertising and marketing communications can be difficult and, if not handled correctly, extremely costly – both to a business’ bottom line and to its reputation with consumers.

In Part 1 of this series on advertising regulations and trends, we consider the meaning of “advertising” and other representations to consumers which may constitute “conduct”, and how to determine which requirements apply to which representations.

What is “advertising” anyway?

The first thing to consider is whether the content falls within the definition of “advertising”. For ‘traditional’ mediums such as television, radio, billboards and print, the answer might be clear, but in the age of social media, brand activations and influencer alignments, the water becomes murkier. Is a Facebook post uploaded onto a company’s Facebook page by its social media manager promoting a free giveaway an advertisement? What about a #sponsored Instagram story by an influential blogger mentioning a product or service?

The Australian Association of National Advertisers (AANA), the national body for advertisers, has recently expanded its definition of “advertising” to ensure it captures these newer types of material. Ask yourself the following two questions:

1. Does the marketer have a reasonable degree of control over the material?

2. Does the material draw the attention of the public in a manner calculated to promote the product or service?

If the answer to both these questions is ‘yes’, then the publication will be covered by AANA codes. According to this definition, both the above examples would likely be considered advertising.

Even if it is not clear whether this definition would apply, virtually all publications to consumers (whatever their nature) are likely to fall within the umbrella of “conduct” in “trade and commerce”. As a result, such publications are likely to be captured by the misleading or deceptive conduct provisions of the Australian Consumer Law (ACL). As a recent case we discuss in Part 2 of this series has made clear, “conduct” can be interpreted even more widely still to cover actions taken by a company which indirectly affect the content of a third party review website.

Depending on the industry, the type of advertisement, the target audience and the specific claims being made, further considerations may apply in determining what type of communications with consumers ought to be evaluated for compliance with the relevant regulations.

Which regulations apply?

One of the hardest questions for businesses to answer when working out if their advertising complies with the relevant regulations is what legislation, regulations and voluntary codes govern their various advertisements and marketing communications.

This will depend on a variety of considerations, including:

• the specific product or service being advertised: industry-specific codes include the Therapeutic Goods Advertising Code, the AANA Food and Beverages Advertising & Marketing Communications Code, the Alcohol Beverages Advertising (and Packaging) Code and the AANA Wagering Advertising & Marketing Communications Code, among others;
• the medium of advertisement: for example, there are different codes of practice for commercial and subscription TV, commercial radio, outdoor media, direct marketing, online behaviour advertising, native advertising and more;
• the target audience: in particular, advertising directed at children is governed by various additional codes and standards, including the AANA Code for Advertising and Marketing Communications to Children, the Australian Food and Grocery Council Responsible Advertising and Marketing to Children Initiative, the Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children and the Children’s Television Standards; and
• the claims being made: for example, the AANA Environmental Claims in Advertising & Marketing Code applies to certain environmental claims.

Overlaid against all of these are also:

• the ACL, particularly the misleading or deceptive conduct provisions. As noted above, these provisions are not specifically limited to claims made in the context of advertisements and marketing, but can be (and often are) applied in this way; and
• the AANA Code of Ethics, a voluntary code by which advertisers self-regulate. Competitors can bring claims for breaches of the Code, typically around truth in advertising issues, and consumers can also make complaints, usually around taste and decency issues. While breaches of the Code may be seen by some as less serious than Court actions, the reputational damage can be significant (unless, of course, you are Wicked Campers, which seemingly takes pride in the record-breaking 79 complaints upheld against it and appears to take the approach that all publicity is good publicity).

Look out for Part 2 of this series, in which we consider current hot topics at the Australian Competition and Consumer Commission, and recent regulatory changes to be aware of when updating internal review procedures.

Georgina Hey is an intellectual property lawyer specialising in all aspects of trade mark brand and portfolio management. Her goal is to work closely with clients to ensure their brands are well cared for and their brand value is maintained. This includes working with clients to develop new brand clearance and protection strategies, advising on infringement issues, managing trade mark oppositions, advising on trade mark issues relating to the validity of registrations and intellectual property ownership structures, managing intellectual property issues for the acquisition and divestment of large portfolios (both pre and post completion), and implementing strategies to manage worldwide trade mark and domain name portfolios in a commercially efficient and effective manner.

Georgina regularly lectures and publishes on a wide range of topics, including developments in trade mark law, domain names, geographic indications, advertising clearance issues and how these legal developments interact with commercial business. In addition to being an admitted solicitor, Georgina is a registered Trade Marks Attorney and has a Masters in Intellectual Property Law, as well as a Graduate Diploma in Trade Mark Law and Practice, from the University of Technology, Sydney. Georgina was a Recommended Lawyer, Intellectual Property Asia Pacific Legal 500, and Euromoney, Australasian Woman in Business Law Awards, nominated ‘Rising Star’ in IP. Contact Georgina at Georgina.hey@nortonrosefulbright.com

Isobel Taylor is an intellectual property lawyer based in Sydney. Her work spans across all areas of intellectual property, including trade mark protection, enforcement and commercialisation, corporate transactions involving the transfer of intellectual property assets, and drafting commercial arrangements. She has also been involved in assisting with large-scale litigation matters covering a range of areas of IP. Isobel has experience in trade mark portfolio management and brand protection, assisting in the management of the IP assets of leading global and Australian brands.  She regularly publishes articles and legal updates on current topics of IP law and practice in Australia and the impacts of legal and regulatory developments on commercial business. Contact Isobel at Isobel.taylor@nortonrosefulbright.com

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