All posts by : janinepaterson

However, no one complained!

I have posted before on the ASA rules on gambling and that these were updated in October 2022.

The changes were made to try and prevent those under 18 from seeing ads for betting and gambling products and services by not associating them with youth culture.

The new rules mean that people or characters who will appeal to those under 18 should not be used in an advertising campaign.

In reality, this means that popular stars in sports and in the media will not be able to promote betting services.

In the UK, this will mean that in sports that attract a youth following like football and cricket, both players and managers will be off limits in promotions.

In football, for example, this will mean players and managers of the national teams, the Premier League and maybe the Championship will not be allowed to feature.

This is something Ladbrokes found out to their detriment.

In the month the rules came in, they sent out a promoted tweet:

“Can these big summer signings make the question marks over their performances go away?”

The video embedded in the tweet showed Premier League footballers Philippe Coutinho, Jesse Lingard and Kalidou Koulibaly, set against a background of question marks, together with “Ladbrokes” in an image box.

The ASA received no complaints about the tweet, so you ask, how did it become the subject of an ASA investigation?

The ASA themselves challenged whether the ad broke the new rules.

Ladbrokes said they did everything to remove those under 18s from the ad’s audience.

Trouble was, they choose Twitter, and despite their own internal targeting and age-gating processes, Twitter allows self-verification and everyone knows that some children will lie if they think they will get something they’re not supposed to have.

So, had the ad appeared in a different medium where there could be proper age verification, it probably would have been ok.

An example of the Right Message and the Right Time, but the Wrong Audience because the Wrong Medium I think!

Ladbrokes thought they had got it right but get one element wrong and you can derail your whole campaign.

…because sometimes you can’t wing it!

I have written about my first kitchen disaster where a fault with the design of the oven led to my beautiful French apple flan being knocked across the floor.

I’ve had other issues with my cooking over the years but on the whole, I‘d say I’m a pretty good cook.

Maybe not quite to the standard to appear on a popular Channel 4 baking competition, but enough to provide a wide range of meals and sweet treats to the family.

What I realised as I was making the Christmas cake is that cooking has many similarities with marketing your business.

Sometimes you can just throw in all the ingredients, cook, and out comes a great dish.

However, I have found that when it comes to baking, you need to follow the recipe to the letter otherwise it won’t work. The ratios of flour to butter to sugar and eggs are important if you want to achieve a tasty outcome.

And this is the case when it comes to marketing your brand. There may be a few areas where a “throw it all in and mix” process might work, but when it comes to the rules governing advertising, these need to be followed otherwise the consequences will be far worse than an inedible cake!

And this is when the problems start.

To properly follow the rules, you first need to know what they are, and then how to apply them to your business.

When you want to bake a cake, you turn to a recipe book.

But what do you do if you want to advertise your brand?

You ask a marketing law expert!

And it has nothing to do with money

I’ve heard many people say there is no need to worry about the ICO. Yes, they can fine you up to £4 million, but it won’t happen to you.

It’s true that most businesses are unlikely to receive a fine anywhere near this figure, or a fine at all.

So, why should you worry?

Because it’s not their financial penalties that have the greatest effect on a business, it’s the other consequences of a visit by the ICO that can sink a company!

Many people don’t realise the depth of questioning involved when the ICO starts an investigation. Questions not just on the issue raised, but questions about all aspects of your data handling activities. This can bring to light things you may not realise are a problem and can certainly cause a few sleepless nights.

Whatever the outcome, a visit from the ICO will have a toll on your business. There is the time spent finding the answers to those questions, which can involve auditing your systems and speaking with suppliers, then nervously awaiting their decision.

And even though you may not receive a fine, the reputational damage that inevitably comes from a regulator’s investigation could weigh heavy.

5 companies found this to their cost when the ICO investigated complaints about breaches of the Telephone Preference Service register. The companies had made marketing calls selling insurance for appliances, for example washing machines and boilers.

Not only did they ignore the fact that recipients had objected to receiving marketing calls, they also targeted a certain demographic, homeowners over 60 who had landlines. During the calls which were sometimes distressing to the homeowner, they used high pressure tactics to acquire payment details, providing false and misleading information about the policies.

These practices came to light because these companies ignored the law, which allowed the ICO to delve deep into their operations. The fines weren’t large by the ICO’s standards, the biggest one being £140,000, but the exposure of the people running these businesses as unscrupulous and uncaring, with the ICO commenting that 1 company broke the law on marketing to “maximise turnover and profit” will have more long-lasting consequences.

This behaviour is an extreme example of what can be revealed when the ICO become involved in investigating alleged breaches of data protection laws.

The vast majority of responsible businesses aim to operate within the law but it can be easy to miss something in your processes that inadvertently crosses the line of what is legal. And this can remain hidden for years until it comes to light as a result of a complaint about something completely different.

What you need is an expert eye that can review your marketing processes and provide valuable feedback, not just on its compliance with the law but also best practice.

Never seen this before…

I don’t know if you’ve had the weather I’ve had this past 2 weeks, but it’s not been this cold for years.

I hadn’t realised how cold it was until my husband brought in the milk!

We have a milk delivery, I know very old fashioned, and they deliver at about 3 am, so when we opened the door at 9 am, this was the sight that greeted us.

I’ve never seen this before! It took 2 days in the fridge to thaw out.

The cold weather has affected many things, including work. A training session I was hosting for a client has been postponed til the new year due to the snow (and the train strikes).

So I found myself in the office unexpectantly, allowing me to continue working on my goals for 2023.

The company will be 3 years old in January and I think I haven’t done badly, steering it through a pandemic and the more recent financial crisis.  We are still here!

I am sure you are all looking at what you want to achieve in the next 12 months.

Reviewing your marketing activities is a good start.

What worked and what didn’t? Can you do more of the former and less of the latter?

Yes – and that won’t look good on a CV

I was reading the enforcement cases on the Information Commissioner’s Office website the other day.

Yes I know this may sound like something only a data “geek” would do, and I don’t claim to be one of those, but sometimes you find some interesting things.

What caught my eye was a story about the ICO starting criminal proceedings against 8 individuals for allegedly accessing personal data on the databases of vehicle repair garages to gain “leads” for personal injury claims.

They gained access to the systems between December 2014 and November 2017 and took personal data relating to hundreds of thousands of customers who used the garages to repair accident damage. The garages were unaware of the activity

Personally speaking, the garages should have been aware of this, as they obviously have a responsibility to protect this data, but this is not part of the current case. There may well be further action around this in the future, as the investigation was a complex one, and I would suggest the actions or inactions of the garages concerned formed a part.

The individuals face charges under section 1 of the Computer Misuse Act 1990, which carries a sentence of up to 2 years imprisonment, and section 55 of the Data Protection Act 1998, which is punishable by a fine, as the alleged offences happened before the introduction of the GDPR. However there are similar criminal provisions in the UK GDPR, should offences since May 2018 come to light.

You will all agree that this is an example of how NOT to do lead generation.

And when it comes to the use of personal data in marketing, it is easy to forget that there are a number of negative consequences of getting it wrong, a criminal conviction is just one. Lead generation already has a less than rosy reputation, but it can be done legally and with a good ROI.

So, I hear you ask, how do we do it legally? Well, you start by knowing the rules and then applying them to your activities.

Simple?

No, this can be confusing and complicated for many business owners, so if you are looking at using lead generation services, and you want to make sure you do this legally…..

Not sure it is quite PC these days ?

We have the radio on during the day, which is great as it gives my husband and I some background atmosphere while we are working.

A song came on, National Express by Divine Comedy (probably showing my age here ?) and it reminded me of my daughter’s trip back from uni a couple of weeks ago.

She came home to attend an awards evening at her former secondary school, so we looked at how she could get back, apart from me going to get her!

We considered the train, but I would have had to drive for about 90 minutes to pick her up from the nearest station.

So we looked at alternative transport. As part of Maddy’s welcome pack from Loughborough, she had 2 free return tickets for a National Express coach journey. So we looked at the routes and timetables, and there was one that actually picked up from the uni campus, and although I had to drive almost as far to pick her up from the coach stop down here, the ticket was free!

She booked her tickets, although free travel’s downside was catching the coach at 7.10 am!

She arrived at the pickup point but was a little confused about where to wait for the coach coming south, as both directions seem to leave from the same point. There were a couple of elderly ladies who were also waiting and they helped her catch the correct coach. They were heading to London to see a stage show that a friend of theirs was directing. She had a lovely chat with them about a variety of subjects, and thanks to them she made it back home.

It is very helpful when you don’t really know where you are going or what you are doing to find a helping hand to direct you the right way.

And when it comes to marketing and advertising law and best practice, I am that helping hand. I can advise on how to ensure your lead generation data is compliant, so you won’t have a visit from the ICO or advise on what information you need in your adverts so a complaint isn’t made to the ASA.

Not as easy as it may seem

I have been asked by many clients what they’ll need to do if they make claims about their product/service or the price in their advertising.

The advertising codes, administered by the Advertising Standards Authority state:

3.7

Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.

What this means is, if you make a claim in your adverts, you need to have the evidence to back those claims up.

If a complaint is made to the ASA, they will ask for the evidence you have to support your claims, and this may need to be extensive.

Unfortunately, the answer I have for my clients is not black and white, as it will depend on the product/service and the claims you are making.

To try and give some help in answering this question, let’s look at a recent ASA case where the complaint was not upheld.

Direct Wines Ltd, trading as The Sunday Times Wine Club, placed an ad in the Sunday Times newspaper in March 2022 offering “Half Price White Bordeaux”. The ad stated, “six bottles for £74.94, just £12.49 per bottle”.

The ASA received a complaint that the normal price of the wine had been inflated so they argued the half price claim was misleading.

In order to substantiate the claim, Direct Wines produced sales data covering 8 months from September 2021 when the wine, a  L’Epiphanie de Bordeaux Blanc 2020, was available to buy and sales data for the promotional period (3 February – 11 March 2022, a period of 6 weeks). In addition, they provided sales data for 3 other time frames, September to October 2021, October to December 2021, and December 2021 to April 2022.

The offer was available through the Sunday Times newspaper and digital ads and the only way to redeem the promotional price was to enter the URL address in the press ad or click on a link in one of the digital ads.

Throughout this promotional period, if you did not qualify for the offer, the price of a bottle of wine was £25. There was a slightly reduced cost per bottle, £22.50, if you purchased a case (12 bottles) as this was standard quantity pricing.

The extent of the evidence meant the complaint was not upheld. Direct Wines had been able to show a consistent normal price of £25 per bottle prior to the promotion starting, and the 6 bottle case continued to be sold at £25 per bottle on the website during this period for those people who did not have access to the promotional offer.

The adjudication goes into further detail about the data they looked at, see https://www.asa.org.uk/rulings/direct-wines-ltd-a22-1149166-direct-wines-ltd.html for more detail.

As you can see, substantiating a claim you want to make in your advert is not straightforward, and this needs to be considered when planning your marketing campaign, not thought about only if a complaint is made.

Such beautiful birds

One of the benefits of owning a dog (although I sometimes question that when it is chucking it down with rain and blowing a hooley) is that you have to take them out for walks.

This means I get the fresh air and exercise that everyone who has any connection to the medical profession tells me I need!

But it also gives me the opportunity to enjoy the outdoors and the wildlife surrounding our home.

We live in a hamlet and take Archie around the block through the field behind our home. There are trees and bushes around the edges and a big playing field (if you don’t mind the rabbit holes!)

On our walk the other day we went through the field and down to the gate. While we waited for Archie to catch us up (he had decided there were important smells along the way that he had to check out), my husband and I stood watching a kestrel, above the edge of the path down to the gate.

It was an amazing sight! It hovered silently, hardly moving a muscle for what seemed ages and then flew off. I guess breakfast was off the menu!

Kestrels are the only raptor in the UK that has developed the ability to hover indefinitely, like a helicopter. They use this ability to hunt prey, waiting for the optimum time to go in for the kill.

There are some skills that I wish I had. I wish I could write with both hands (see the story about the ambidextrous student in a previous email), I wish I could run for 30 minutes regularly (I could do this about a year ago, so it is just a matter of building up my stamina) and I wish I could teach Archie, my golden retriever not to wake me up at 6 am!

Some of these skills I am never going to have, but some, with hard work I can achieve.

A skill I have worked hard on for over 15 years now is gaining the knowledge and experience to advise CEOs and marketing directors on how to improve their marketing to attract new clients by ensuring they stay on the right side of the law.

Marketing and advertising law, like most areas of law, is not black and white. There are always those grey areas, and these usually mean CEOs and marketing directors find themselves on the wrong end of an ICO or ASA investigation.

So, if you need help navigating the rules when it comes to your marketing…

Case could affect all social media platforms

The High Court in England and Wales has seen a claim filed which alleges Facebook has failed to respect the right under data protection legislation to object to direct marketing and in particular to profiling of personal data to use for advertising purposes.

The claimant in the case, Tanya O’Carroll, is a rights campaigner and has claimed that despite numerous requests to Meta, Facebook’s parent company, they have processed her personal data for direct marketing, including profiling and continue to do so.

Ms O’Carroll seeks a declaration that Meta is breaking the UK GDPR (Article 21(2) – (3)) and has , and is still infringing her rights, and a compliance order requiring Meta to stop this.

“This case is really about us all being able to connect with social media on our own terms, and without having to essentially accept that we should be subjected to hugely invasive tracking surveillance profiling just to be able to access social media,”

The Competition and Markets Authority, the UK competition regulator, told the Government in 2020 that a pro-competition regulatory regime was needed to deal with the online market, in particular with the power that Facebook and Google have.

They commissioned a report which found Facebook “uses default settings to nudge people into using their services and giving up their data”. This includes the need to accept personalised advertising as a condition for using the platform, which is contrary to UK data protection legislation.

What was interesting was that in the report only a small minority of users (13 per cent) were happy to share their data in return for relevant ads! This is obviously why they don’t ask for consent upfront!

This is the beginning of a long process and we will have to wait for the final verdict. However, social media platforms will be hoping that Ms O’Carroll will be unsuccessful, as if she wins, their influence will be significantly diminished.

Fingers crossed the improvements continue

In a previous post, I explained about our golden retriever Archie who has epilepsy.

He was diagnosed when he was three and a half and once we had him on a regime of mediation, we were experiencing a seizure every 4 – 6 weeks. These were quite bad and usually happened in the early hours, leaving us exhausted the following day.

However, back in the summer, he started having seizures every 2 weeks, which proved tiring for all of us.

We spoke with our vet and she suggested using a different type of medication which had helped another dog who also suffered from epilepsy. It was a human painkiller and had been used to treat arthritis, but while the dog was receiving it he didn’t have a seizure.

So, we started on the new pills. He seemed a little more tired in the first week or so, which was probably the effect the painkiller element was having, but he then seemed to be more alert. This was so pleasing to see as I am sure the medication he was on was suppressing a lot of his natural joy for life, which had always concerned us. 

Then 3 weeks in he had a fit at 4 am one Friday morning. However, this was nothing like the previous ones. When we got downstairs and opened his crate he was already coming out of the fit.  He was more aware of what was going on, and we didn’t need to give him as higher a dose of the medication we used to following a fit.

He allowed himself time to recover before trying to get up and there was no manic running around the kitchen bumping into everything.  There was also no in/out, in/out of the garden which had been normal and we even managed to put him back to bed (which meant we could go back to bed too)!

We continued with the new pills and after a month, we phased out one of the others. This really pleased us as he has started coming back to the old Archie the one we had before all this began. He is more active and interested in life and I believe a lot happier in himself.

Fingers crossed it continues.