All posts by : janinepaterson

I saw the other day that the European Commission, one of the bodies that passed the GDPR 6 years ago, has been accused of breaching its own legislation!

A German resident, assisted by a German organisation that helps those affected by data breaches is taking legal action.

The EC is running a conference, which sounds fine you might say. However, the website collecting the registration data transfers it to the United States.

You can transfer data around the world, but you need to be satisfied that the data will be protected to the same level as if it stayed in the EU.

There are a number of agreements between the EU and countries around the world that say the data standards are adequate. The UK has one, as this was necessary when we left the EU.

However, where the US is concerned, its Intelligence Services have unrestricted access to the data coming from the EU. And as you can’t challenge this or claim damages, transfers to the US do not meet the necessary protections under the GDPR.

The US did have agreements in the past which have allowed data to be sent there. However, the first version, Safe Harbor, introduced in 2000, was struck down in 2015 as not adequately protecting personal data. The replacement, the EU-US Privacy Shield, was also successfully challenged and declared invalid in July 2020.

There are continuing talks about Privacy Shield 2.0, but these have been slow.

So, what do you do if you want to send data to the US?

As a data owner, you have to make the decision whether that data will be protected, which with the situation in the US at the moment is a very difficult thing to do.

Deciding whether you can send data abroad is just one decision a business owner has to make when dealing with personal data, and if the lawmakers can potentially get this wrong, you as a business owner may think what chance have I?

And when it comes to using data for marketing, it may seem that it is not a risk worth taking.

However…

… you can use data in your marketing, as long as you follow the rules.

And if you don’t know or understand the rules, ask an expert.

But don’t worry if it’s a jockey.

The rules for advertising and marketing gambling products are set to change in October this year,

That will mean if you currently have a topflight football player or manager promoting your betting services, this will have to stop.

Why?

Gambling services are an age-restricted product and there are rules to protect the under-18s.

Advertising of betting and other gambling services must not appeal to children in the way it’s presented and through its content. This is why the use of football stars and other popular sporting celebrities has caused concern.

Football managers, such as Jose Mourinho, who promotes a well-known betting company, and many English footballers and athletics stars have many social media followers, many of which are under 18.

However, if you’re using a well-known jockey then you’re OK… probably.

What’s the difference?

Well, the ASA has decided that most kids aren’t overly interested in jockeys and horse racing. So, as their fanbase is predominantly (or exclusively) over 18 then there’s no issue as the ads won’t appeal to children.

This change is a prime example of why learning the dos and don’ts of marketing and advertising for yourself can be a bad idea.

Many responsible business owners invest considerable amounts of time to figure it all out.

They may even think that their hours of study have been worthwhile and will save them a fortune by not paying for the expert.

But then the rules change or are updated, and they are back to square one!

To be compliant in your advertising you need to understand the rules and regulations that apply, but you also need to know if they change.

Keeping up with changes can be difficult, especially with a business to run.

Sometimes engaging an expert makes business sense. Marketing spend is not an expense, it is an investment in your future.

I was talking to a client the other day and he told me he signed up for a free webinar.

As part of the sign-up process, he had to agree to receive marketing emails – he received 7 on the first day!

For the avoidance of doubt, this is illegal!

This is one of the easiest ways to come to the attention of the ICO, as people are more aware of their data rights and more likely to complain.

Once the ICO become interested, your whole business practices come under scrutiny. Responding to their questions and requests for evidence of your data handling will take time and effort and can be very stressful.

Now, I am sure you are not sending 7 emails a day. But make no mistake about it, if you force people to opt-in for regular marketing emails to access a free webinar or other lead magnets, you are breaking the law.

And not only that, would you trust a company that did this?

Forcing someone to opt-in is the wrong start to your relationship with potential customers. You are not being honest and you are not respecting their right to choose how you use their data.

If you have a good offer, potential customers will come. They may not flock to you, but those that do will be a high-quality lead more likely to convert into a paying customer.

There are a lot of legal experts out there that are shouting about the enormous amounts of money (potentially millions of pounds) that you can be fined by the ICO, and that you need to be worried about this.

And I could do the same, but I’m not going to.

Here’s why: Whilst you could get hit with one of these fines, evidence to date indicates this is unlikely to happen to your small business.

Great you say…

… but there’s more to the story.

Because you should worry about the effect an encounter with the ICO will have on your reputation plus the time and stress of being on the receiving end of one of their investigations.

If the ICO receives a complaint and decides to take it forward, they will ask questions about ALL aspects of your data handling, not just about the specific case in hand. This will take time and effort from you and your senior managers, and your IT team (or outsourced company).

If after all this they find a breach, they may fine you or they may issue strong words of advice.

Either way, you will almost certainly be named and shamed on their website, and this could have a long-lasting effect on your credibility. This is because when people search for your business on Google, Bing, and so on, the chances are the ICO investigation will be one of the results returned.

The reputation of your business is valuable and is worth protecting.

To do this you need to comply with the rules around the use of personal data in your marketing.

But understanding the rules and then applying them can be a time-consuming process and can be difficult when you have all the other aspects of your business to get right.

Sometimes you have to accept that you need expert advice.

If you regularly run product promotions to boost your brand, you will know the difficulties involved if you want to include Northern Ireland residents.

The law in Great Britain (England, Scotland and Wales) was updated in 2005. This allowed promoters to require consumers to purchase their products to enter the competition.

Before this, if you had to buy something before you could take part in the promotion, this was seen as an illegal lottery.

The update was great if you wanted to run a product promotion in Great Britain but was a pain for brands that wanted to include Northern Ireland. Trying to make your terms fair to all when some don’t have to buy your product –  always a tricky balancing act.

But this has all changed. The NI law has now been updated and is now in line with the rest of the UK, which will make planning a promotion across the UK easier.

Many responsible business owners invest considerable time to learn how to compliantly run a successful product promotion.

But the challenges arise when the rules change or are updated.

Because to be compliant in your advertising you need to understand the rules and regulations that apply, but you also need to be aware when they change.

Keeping up to date with what’s right and what’s not is just another ball you have to keep in the air when you run your own business.

And you can’t do everything. Sometimes you have to accept that you need help from an expert. You pay your accountant to do your books and your commercial lawyer to handle your contracts. Maybe now is the time for expert marketing law advice.

My husband’s family are catholic, but when I met Jon, our local church did not have a permanent priest. There were visiting priests for weekend services, but the problem was neither Jon nor I liked any of them.

But that changed in June 2009 when Father Denis arrived.

He was unlike any other catholic priest I had ever met. One reason for this I believe is that he came late to the priesthood, having worked as a carpenter for 16 years before answering his calling.

He lived a normal life, gaining experience in many situations. This gives him the ability to relate to many of the challenges his congregation face.

He has been a priest for 20 years and had brought an overdue sense of family to the parish. His mixed life experience has left him well placed to provide advice and support.

It is great when you can find the help and advice you need from an expert, especially when they are approachable as well as knowledgeable.

And this applies when it comes to your business, and in particular your marketing and advertising.

I’m sure you want your business to flourish. And we both know the best way to do that is to make the best possible impression on your new and existing customers.

So, you need to deliver the right message, to the right person, at the right time, over the right medium.

But how do you do all of that without falling foul of the ever-changing mix of rules, regulations and laws?

The truth is there’s no substitute for expert advice.

It won’t be free, but the consequences of getting it wrong will probably cost you a whole lot more.

Such a small word for an important quality.

Trust is one of the cornerstones of a successful business.  Trust in people, your colleagues and suppliers, and trust in your processes.

And speaking of trusting processes, recently I had hand surgery and my consultant decided to do the procedure under a local anaesthetic.

In reality, this meant numbing the whole of my right arm, from the shoulder down.

The process for this was complicated and precise. They used an ultrasound machine to make sure the injections were in exactly the right place.

It took nearly an hour from start to finish and not one, not two but THREE doctors!

My trust was well placed. I gradually lost the feeling in my arm as the anaesthetic took hold – to the point that I didn’t know where my arm was! (Apparently, this was a sign they got it right).

Sure, the processes in your business may not be so life-affecting but making sure they are correct is vital to your success. And, making sure your marketing and advertising processes are legal and working for you is critical to ensuring new and existing customers get the best impression of your brand.

For example, a clothes retailer got into trouble with the ASA again recently when one of their influencers promoted one of their dresses on social media without making it clear they were acting on behalf of the brand.

So as well as appearing on the ASA website with an upheld complaint, things like this can make people wary of shopping with them because some people will see this behaviour as untrustworthy.

Even with the best of intentions, it is easy to fall into one of these traps. And being ignorant of the rules won’t change the way the ASA deal with any complaints against you.

So the only course of action is to make sure there is nothing to complain about and if they do (because people will always complain about something) then you will have nothing to fear as you have done nothing wrong.

The ASA has banned 160 adverts in the last year for including misleading information.

The reasons for these run from something as simple as implying you’ve been trading longer than you actually have to unsubstantiated claims about your product’s environmental pedigree.

It seems it’s easy to attract complaints that your marketing does not comply with the advertising rules.

Now you may think (and many do) – why should I worry about this?

The ASA can and does act on one complaint about an advert.

This means that just ONE person complaining about your ad could trigger an investigation into your marketing activities.

Sure, they can’t fine you like the ICO can, but an upheld adjudication could have a detrimental effect on your brand’s reputation.

Now, you can’t stop people from complaining to the ASA, but you can make sure that the complaint won’t be upheld.

How?

By ensuring that your ad complies with the Codes.

Many of the rules are common sense:

• don’t lie or exaggerate the benefits of your products or services
• ensure testimonials from happy customers are true and in their words
• make sure you can prove any statistics you quote.

If in doubt, ask an expert.

It will cost you something, but an awful lot less than getting it wrong.   

Using personal data for your marketing activities can be a scary prospect, especially if you are a small to medium-sized company without a large in-house legal team to hold your hand.

Reading about the tens of thousands of pounds of fines issued by the ICO alone can be enough to make you throw away any marketing ideas you might have had. And that before we get into the reputational damage that comes with being “named and shamed” on the ICO website!

The truth is it shouldn’t have to be stressful to promote the goods and services you offer.

However, there is no getting away from the fact that there are rules and regulations that apply to your marketing activities.

Understanding the rules isn’t easy, as so many factors must be considered.

Including, whether you’re a 

• A B2B company or
• A B2C company or
• A bit of both?

Then there are the channels you use for your marketing:

• Email, SMS, Social Media,
• Phone,
• TV and Radio,
• Direct mail,
• Billboards…

… the list goes on.

Then whose products and/or services are you marketing?

• Your own, or
• A 3^rd party partner/sponsor?

For example, let’s say you’re a builders merchant and you want to promote your new range of screws and nails to your local builders’ firms. The first question you need to ask is, what is the best way to do this?

Once you’ve decided that, you need to make sure your marketing speaks to your audience, grabs their attention and builds desire. Then you must ensure your marketing is legal and complies with the regulations enforced by the ICO. Not only because of the fines and reputational damage I mentioned earlier, but because you want to make the right first impression. 

You see, if you send an email campaign to customers who have not agreed to receive marketing, you will lose the credibility and loyalty you have worked so hard to build.

The bottom line is, knowing the rules, and being able to apply them to your marketing activities will ensure you stay ahead of your competition.

Another government “suggestion” to help businesses tackle the cost of living crisis and help their customers.

Slash your marketing budget so you can lower your prices!

The new cost of living Tsar, Just Eat co-founder David Buttress has urged brands to “refocus” their marketing spend to reduce prices for consumers. And he is using taxpayers money to promote this campaign!

This is wrong on so many levels and comes from the misguided belief that marketing is a cost to your business.

As Henry Ford once said:

“A man who stops advertising to save money is like a man who stops a clock to save time”

An analogy best to describe marketing is that it is an engine. If we harness it and harness it well it becomes more efficient. You can’t stop-start your marketing as this is when the money just drains away.

What’s more, if you stop spending on marketing, this will not only hit your bottom line now, but for months if not years to come. The pandemic taught us many things, one of them being if you don’t keep your brand in the consumers’ minds, they’ll go elsewhere.

So now is not the time to cut your marketing activities, as this will affect your turnover, your staffing levels and your future.

But if you’re going to spend money on promoting your brand, then it’s important to know how to market your brand compliantly and successfully. Because when times are tough, the rules don’t change.

In fact, it becomes even more important that your marketing works for you so that you’re talking to your ideal customer and making the right impression.

Right message, right audience, right medium, right time.