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The Ultimate Guide to Legal Advertising

Advertising has always been more of an art than a science. 

You can have the best advertising platform in the world, but without creativity when it comes to your campaign strategy and your ideas for Facebook ads, your outreach is not going to be that effective.

That said, there are certain aspects of advertising where it pays to take a more scientific, rigorous approach. One of these as online advertisers have been (sometimes painfully) learning over the past few years, is when it comes to GDPR compliance and other compliance programs. Another is meeting the legal and ethical standards that are required of you as an advertiser. 

These legal aspects of advertising are complex in many ways. First and foremost, you will need to conform with the legal advertising standards set out by the country you are based in, and potentially in another territory in which you post content. Second, you will need to be aware of the ethical implications of your work. Third, you should be aware that there are advertising regulations which, while not strictly legal requirements, will still have an impact on how you can advertise. 

Finally, there is a balance to be struck between collecting data on your customers – a very important part of online advertising – and respecting their privacy. In this article, we’ll take a deeper look at all these legal aspects of advertising, and show you how you can ensure that you are compliant with them.

  • The Legal Requirements for Advertising

When companies start to look into the legal requirements for advertising that apply to them, they often run into a specific problem immediately: there is no such thing as “the” legal requirements for advertising.

Both of the two biggest advertising platforms – Google and Facebook – stress that your primary responsibility as an advertiser is to comply with local laws. This includes the laws that apply in the country in which your company is based, and also those that apply in any legal jurisdiction you are targeting. 

As such, the first step in ensuring legal advertising is to make sure it is compliant with the law in the country in which you are based. Google has provided a tool for you to do this, which is a great place to start. 

You should also check the advertising regulations provided by the Office of Foreign Assets Control, which is a US body that regulates Google and Facebook, and which you must not cause them to fall foul of. Beyond the laws imposed by your home country, both of these platforms also impose rules on how, where, when, and what you can advertise through them. The lists of advertising regulations that both platforms apply are extensive, but both are fairly clear.

The rules imposed by these policies should be fairly straightforward for most companies. However, both Google and Facebook also stress that if you want to deploy an unusual (or perhaps slightly risky) ad campaign, you should contact them to make sure that it won’t be removed under their advertising policies.

  • The Ethical and Social Aspects of Advertising

Beyond the raw legal requirements that you are compelled to comply with as an advertiser, there are also social and ethical principles you need to comply with as well. 

Breaking some of these principles – such as outright deception in your ads – can carry legal penalties. Breaking others, such as advertising on behalf of disreputable companies, do not carry direct legal sanction, but can have a catastrophic effect on your reputation, and therefore ultimately on your profitability.

The social and ethical impact of advertising is an enormous subject, but there are a few key tips to making sure that your ads don’t break any of the unwritten rules that govern our trust with advertisers:

  • Don’t deceive your customers. Of course, a lot of adverts will slightly exaggerate the effectiveness of the product concerned, but you should be extremely wary of making direct claims for your products that cannot be proved. If you are found to be lying, you might face investigation by an advertising standards organization, or you might (perhaps worse) lose the trust of your customers.
  • Don’t try to cause offense. Just as in the tip above, there will be times when your advertising causes offense without this being your intention. However, offensive interpretations of your ads should be avoided as far as is humanly possible. When advertising on global platforms such as Google and Facebook, you should remember that your audience will not have the same cultural background as you, and that they may find offense in something that you think is fairly innocuous. 
  • Know where your money is coming from. A quick Google search will show you that plenty of advertising companies find themselves in hot water by “accidentally” taking money to advertise a disreputable company. To avoid this, make sure that your accounting systems are sophisticated enough to track the source of all the revenue you are generating, and that you carefully vet the companies you work with to ensure that they themselves are ethical. 

Finally, you could consider making a conscious choice to foreground your ethical approach in your advertising. This kind of “socially conscious” ad campaign has brought a lot of companies a lot of success over the past few years, and is a powerful tool for (at least) two reasons. 

One is that consumers today (and especially younger consumers) like to feel that the companies they buy from have a social conscience, and will respond positively to any company (even an advertising company) that shows they care about social issues.

The second reason why this is a useful approach is that it takes one of the primary difficulties that advertisers face – complying with legal and ethical laws and norms – and transforms them into a selling point. In other words, this type of campaign takes a problem, and makes it into a solution.

  • Advertising Regulations

Beyond the laws imposed on how you can advertise, and beyond even the rules imposed by the platform you chose to do this on, there also exist regulations that affect the way in which you can advertise. 

As we noted above, these regulations are different for every territory on the planet, and can vary significantly between jurisdictions. It’s therefore critical that you understand the regulations in your base country. 

That said, there are some similarities between these regulations across the world. In the US, the Federal Trade Commission publishes an easy-to-use guide to what is allowed in advertising, and this is a great place to start if you are unsure if your content meets the regulations. The most important aspects of these regulations are:

  • As above, you should not deceive your customers.
  • If you advertise to children, you will need to meet a further set of requirements regarding accuracy and data privacy. In the US, these further requirements are covered in the Children’s Online Privacy Protection Act. 
  • If you use influencers and endorsements in your advertising, you will normally need to be up-front about your business relationship in order not to break the regulations on accuracy in advertising. The FTC’s guide sets out a process for you to communicate these relationships to your customers.
  • “Green” claims are becoming increasingly common in ad content, but to use them you will need to ensure that your company or product are actually green. There are guides available that can help you decide if your green credentials are strong enough to stress in your advertising. 
  • Similarly, health claims are an increasingly important part of advertising, especially for companies promoting foods and nutritional supplements. If you want to make a health claim, however, you will need to be extremely careful that it stands up to scrutiny. The rules in this regard vary widely by the country you are advertising in, but in general you should avoid making this kind of claim unless you have scientific research to back it up.

In many cases, and especially in the USA, breaking these advertising regulations will lead to legal exposures, and all the risks that this comes with. In other jurisdictions, breaking these principles will not expose you to legal action directly, but can still lead to significant deleterious ramifications for your company. Wherever and however you advertise, therefore, it’s a good idea to follow these regulations.

  • Online Advertising Behavioural Targeting and Privacy

If you work in advertising, you won’t need to be told that data collection is an incredibly important part of advertising today. The ability to profile customers down to an individual level, and to access detailed information on what they like and don’t like, is arguably what has led to Google and Facebook becoming the first-choice platforms for digital marketing. Although there are signs that this is changing, data remains central to the way in which most advertisers work today. 

If this holds true for your company, you should make data privacy a major component of the way that you work. Consumers have become increasingly worried about the way that their data is collected, with 41.7% of consumers feeling that advertisers have become too aggressive with online ads. This is why many have even gone so far as to download ad blockers to screen out ads entirely. 

For their part, governments around the world are busy passing privacy legislation that dramatically limits how advertisers can collect data, and what they can do with it. From a legal perspective, the debate around privacy mirrors that about the ethical and legal standards we’ve already mentioned. In many places, and particularly in Europe and California, not respecting privacy rights can mean that you will face legal sanction.

In other countries, digital privacy rights are not legally protected, but this does not mean that you can ignore them. Ultimately, collecting data on your customers without their consent, or allowing this information to be leaked or sold on, can have a catastrophic effect on your reputation as a company.

As with the FTC regulations we used as an example above, when it comes to privacy rights the best approach for most advertisers will be to try to conform with the strictest privacy legislation in force, which at the moment is Europe’s GDPR. Even if you don’t advertise in Europe, it’s worth working toward GDPR compliance, because this will – in the vast majority of cases – also make your content and processes compliant with any local privacy laws in operation in your home (or target) countries. 

  • The Bottom Line

As you can see, the legal and ethical implications of advertising can be complex, especially if you are advertising across multiple countries. For advertisers, these regulations and laws can sometimes appear to undermine the core value of what they do, which is providing innovative and creative ways of connecting consumers with products. 

In reality, though, it’s possible to still practice the art of social media advertising while still respecting the laws, regulations, privacy frameworks, and ethical standards that are required of you. In practice, this often means integration for marketing agencies, in which in-house experts on compliance, and perhaps even your legal team, are put in closer contact with your ad creatives.

The key is to ensure that you are able to meet your legal requirements without hampering your creative process. In other words, to add a little legal science to your creative art.

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Sam Bocetta

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