Essential Law for Marketers

Ardi Kolah

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136405358
• Edition: 1
• Topic: Business
• Subtopic: Business General
• Index: Business

'Essential Law for Marketers' offers clear and concise explanations of the laws that impact on the practice of marketing, advertising, sponsorship, design and public relations, providing expert guidance on crucial issues for the busy practitioner.
Each chapter in the book offers, in simple English, full analysis of the law on each subject, and illuminates it with numerous examples and cases taken from current industry practice. It also offers helpful tips and suggestions for 'keeping it legal' without losing sight of the overall commercial objectives. Uniquely written from the practitioner's point of view, the text is structured to offer a complete and accessible picture of how the law can impinge on the job: * 'Point of law' offers clear legal definitions or shows the generic application of a legal point in a real life context
* 'Law in action' outlines actual legal cases and their outcomes, with full referencing for the case available on the companion site
* 'Insight' offers background information, providing a broader practical or commercial context for a legal topic
* 'Checklist' at end of each chapter itemises the key issues to bear in mindEssential Law for Marketers covers all the key issues facing those working in the media. From making claims and statements, copyright, defamation, promotion and advertising, through to lobbying, cybermarketing and ambush marketing, it is an invaluable reference guide for anyone working within the sector. It also functions as an excellent learning resource for all marketing students who need to appreciate the legal implications of industry practice.

CHAPTER

1

INTRODUCTION

WHY DO I NEED TO KNOW WHAT THE LAW IS?

Knowing your legal obligations as well as your rights as a marketer is fundamental. No other profession – doctors, lawyers, architects, engineers, surveyors, teachers – is so poorly served in understanding the legal ramifications of its work in an easy and accessible way.

I hope this book demystifies the essential law for marketers and does ‘what it says on the cover’.

Why should we, as professional marketers, be any different from any of the other professions mentioned above?

Ignorance of the law is a very dangerous state of affairs as it can lead to an infringement of someone else's intellectual property rights, an expensive lawsuit, a cancelled marketing campaign, damage to reputation that could take years to repair, and potentially a downturn in profits and share price. In extreme cases, it could even lead to insolvency and prison.

It is important that marketers refresh and update their understanding of the law, as changes in the law affect marketing best practice in many different ways.

A basic understanding of marketing law is essential if expensive legal battles are to be avoided. For example, when low cost airline Ryanair obtained confirmation from the courts in 2001 to continue with its British Airways comparative advertising campaign, marketers were left with a much clearer picture of just how far they could go when it comes to trumping the competition.

Most marketers have a hunch that the more they know the better, but at the same time, they are tempted to think it is possible to get by with the bare minimum. If you want to be aware of the key issues faced by marketers in the course of their daily business, rather than become a legal anorak, then this book is for you!

Whether at the pinnacle of your career as the director of marketing for a global FMCG brand, a senior marketer with over 10 years’ experience, a marketing consultant with your own agency working with a small number of clients or new to the marketing profession, I hope this book will help to answer some of the basic and not so basic questions that as marketers we face daily.

A special web site to accompany this book can be found at http://www.bh.com/companions/0750655003.

HOW DO I USE THIS BOOK?

I suggest that you skim read the book cover to cover for the first time, stopping to pause at the chapters that interest you most. You will find that the examples of the legal points covered in the chapters are stories that help you to remember the points made a little bit easier. You will find these in boxes throughout the book.

Having skim read the book for the first time, go back and give the book a second, more thorough reading, but this time concentrate on the ‘spine’ chapters, i.e. Chapters 2–8. These are the core, non-industry specific chapters which give you the basic legal principles which underpin what follows in Chapters 9–17.

Your understanding of the book will be far greater if the spine chapters are mastered.

Write notes in the margins if you want to that will help you increase the sense of the topic the next time you need to consult the book.

APPLICATION OF THE LAW

The practice of law is much more difficult and more complex than learning the theory in the safety of the classroom.

As marketers, we need to understand and appreciate that an issue such as ambush marketing and the laws applicable to sponsorship may well have relevance to a marketing contract.

Likewise, an advertising and labelling issue may well have at its root a trademark infringement or a product liability claim.

As a marketer working in-house for a large corporation or partnership, many legal issues may present themselves throughout any given year.

There may be a dispute with a landlord over rent reviews or a difficult decision to be made in respect of selecting certain employees for redundancy.

Whilst acknowledging that marketers may face such issues given the financial and management burdens they have to bear, I have tried to elicit what I consider would be essential laws pertaining to their key functions, rather than everything you would ever need to know.

In doing this, no two individuals’ notions of what is essential would be the same – if there are other legal areas to explore we can deal with these in further editions of this book. Your feedback is therefore important.

What is clear is that I can only skim the surface by giving you a solid grounding. For example, books on contract law will often amount to two volumes – even the law of agency merits a volume on its own! Likewise, employment law, which is only touched upon in this book, would fill a major space on your bookshelf.

For the purpose of this book, I do not think it is essential to know about employment law but we may revisit this in the future.

LAW AS IT APPLIES IN ENGLAND AND WALES

This book covers English law and how it applies to England and Wales only. Scotland is a separate jurisdiction with its own laws and whilst there should be a reasonable correlation between English and Scottish law, I am not covering the latter at any stage and separate advice from a Scottish lawyer will be needed if a marketer has issues across the border.

There is not, and never has been, any concept of ‘UK law’.

European Union (EU) law has to a considerable degree been incorporated into English law, e.g. the anti-competitive provisions of the Treaty of Rome. Recently the European Convention on Human Rights has been enshrined in the Human Rights Act 1998 and appeals on intellectual property rights matters have been scheduled for hearing in Strasbourg.

Again, whilst EU is a highly specialised area, with relevance to marketers in England and Wales, I have concentrated only on the essential law as it applies to the subject areas outlined.

All references to English law in this book are as of May 2002.

Can I also draw your attention to the fact that the information contained in this book is for general purposes only. It does not aim to provide legal advice on any area. If you wish to obtain specific legal advice or information, then seek the assistance of a suitably qualified lawyer who specialises in your area(s) of concern.

CHAPTER

2

MAKING AGREEMENTS

In this chapter:

Distinction between liability in contract and tort

The key elements of liability in tort

Negligent mis-statements

Misrepresentation (including deceit)

Malicious falsehood

Slander of goods and title

Defamation

Checklist

Other useful chapters:

Chapter 3: Making statements

Chapter 4: Liability for defective products

Chapter 5: Intellectual property rights

Chapter 9: Advertising and labelling

Chapter 11: Licensing and merchandising

Chapter 17: Ambush marketing

INTRODUCTION

Contracts are based on agreement. The law of contract is the branch of law that determines when a promise or a set of promises are legally binding and enforceable.

A contract is made when two or more parties each promise to the other that they will do something (or refrain from doing something). In marketing, the archetypal situation is where the marketing agency says to the client: ‘I will do X for you in return for £Y’, to which the client replies: ‘I agree’ (which spelt out means: ‘If you do X for me I will pay you £Y’).

When the marketer makes an offer, which the client accepts (the offer could equally be made by the client, with acceptance by the marketer), the marketer has promised to do X and the client has promised to pay £Y.

A marketer, whether working in-house as a director or manager of marketing or within a marketing agency or as a marketing consultant, will need to enter into legal relations with a range of individuals and organisations.

The figure illustrates not only the stages in reaching an agreement, but also where issues such as performance, breach of contract and remedies fit within the overall flow of interaction between the parties.

A legal contract sits at the heart of the marketing process – whether it is for the artistic direction for the latest TV commercial, the design of a web site, a contract for public relations services or the provision of corporate hospitality at a major sporting event.

The contract can be written, oral or a combination of both. It should crystallise the intentions of the parties in a way that is recognised in law and is an instrument upon which both parties can rely should there be a dispute as to what is to be performed under contract.

Not all marketing activities are necessarily done under the terms of a contract. For example, when canvassers talk to the public about what they think about the latest detergent product or how many times they wash their hair every week – there is no contract created here between the public and the interviewers.

However, under the rules of the Market Research Society (MRS), the research company has agreed to comply with the MRS code of conduct as a condition of its membership.

This code is part of the contract that the company has entered into as a condition of its membership and breach of the code could result, in extreme cases, in expulsion of the company from the MRS for breach of that contract.

ANATOMY OF A CONTRACT IN MARKETING

Simple contract – offer and acceptance

A contract is made when two or more parties each promise to the other that they will do something or refrain from doing something.

POINT OF
LAW

For example, a design consultancy offers to create a brand identity for a new product to be launched later in the year and the director of marketing at the client company agrees to go ahead with this proposal and pay the design consultancy on a retainer basis £6000 per month.

In this straightforward example, the design consultancy has made an offer to the marketing director of the client company which he accepts.

It could easily work the other way and the client could have given the instruction to the design consultancy to create the brand identity for the new product.

Fundamentally, the design consultancy has agreed to create a new brand identity based on a brief supplied by the marketing director and the marketing director has agreed to pay the consultancy on a monthly retainer basis.

Provided that money (known as ‘consideration’ in legal jargon) is discussed and agreed, then the two parties are legally bound and the price fixed.

However, life is not always so straightforward and the evidence of a contract may well be found in a combination of both oral and written statements or it can be found in the conduct of the parties to one another.

INSIGHT

From a practical perspective, marketers should always ensure that whatever is agreed is written down in detail within the context of a contract.

For example, if the marketing agency thinks commission is 30% of gross profits and the client thinks it is 20% of net prof...

Table of contents

• Front Cover
• Half Title
• PRAISE FOR ESSENTIAL LAW FOR MARKETERS
• Dedication
• Title Page
• Copyright
• Contents
• Foreword
• About the author
• Acknowledgments
• 1. Introduction
• 2. Making agreements
• 3. Making statements
• 4. Liability for defective products
• 5. Intellectual property rights
• 6. Copyright
• 7. Data protection
• 8. Defamation
• 9. Advertising and labelling
• 10. Broadcasting
• 11. Licensing and merchandising
• 12. Sponsorship and hospitality
• 13. Promotions and incentives
• 14. Lobbying
• 15. Cyber marketing
• 16. Niche marketing
• 17. Ambush marketing
• i. Useful sources of information
• ii. Essential Law for Marketers Matrix
• General Index