All posts by : janinepaterson

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.

Don’t make the same mistake

After the normal fines for spam emails and ignoring the TPS, the ICO had a more “interesting” breach of data protection to investigate.

Interserve Limited, the parent company for a group of construction companies has been hit with a £4.4 million fine after an employee opened a phishing email allowing a hacker access to the personal data of 113,000 employees including special category data.

Interserve failed to take appropriate security steps to protect personal data when they implemented working from home as a result of the pandemic. This meant the phishing email was not picked up by their secure email gateway, which had been designed to restrict access by employees to malicious sites.

The employee downloaded a zip file from the email which meant the hacker could compromise 283 systems and 16 accounts, uninstall anti-virus software and encrypt 4 HR databases making them unavailable!

The pandemic caused a lot of companies to implement working at home, and for some, this meant the business survived. But any change needs planning and careful thought to ensure it still protects your business and your employees.

Interserve is an extreme example of what can happen if you fail to properly deal with changes in your business, so if you’re considering any changes to the way you do things and what to make sure you don’t miss any consequences…

Wish I had that ability!

When the restrictions of the pandemic started to ease, I started working at my daughters’ school, helping them to get back to the new normal.

When they started to return to on-site teaching, I was a Covid tester. That was an eye-opener, but that is a story for another time!

Once the school no longer had to test pupils and teachers for Covid, I started to work as an invigilator for both mock exams and then GCSE and A-levels in the summer.

I was not aware of all the rules there are to ensure exams are carried out properly. I had to do online training and take tests (something I have not done for a good couple of decades!)

During recent mock exams for A-levels, I came across one student that had an amazing skill, one I have never seen before.

We were about halfway through the exam when my fellow invigilator pointed out a student who was taking English Literature. I initially thought he was doing something wrong, but no.

I watched as he started writing a sentence with his left hand and then swapped the pen to his right hand to finish the line!

Wow, I thought. Wish I was able to do that. My right hand wouldn’t have ached so much after exams.

I continued to watch him as he seamlessly swapped hands while I kept an eye on his fellow students. It was amazing to see how he made the most of this ability.

We all have our own skills, some making our own lives better like this student, but some skills help to improve other people’s lives.

Doctors and nurses learn skills to assist people to live better lives and to be there to treat them when things go wrong.

Accountants and solicitors gain knowledge and experience in their areas of expertise so business owners get the best financial and legal advice to reach their goals.

And when it comes to marketing and advertising law, I use the skills I have gained over the past 15 years to help businesses effectively promote their brands whilst keeping within the rules.

It could save you money, and your company’s reputation!

Being investigated by the Information Commissioner’s Office can be the start of your problems and now those problems have just got a whole lot bigger!

Why?

Because the ICO is now naming third parties involved in their investigations. Previously they redacted this information.

This means that if a supplier of data to you is investigated and found to have breached the rules, your business name will appear as part of the record of the case, which is available on their website. Similarly, it will appear if you supply data to a client and they break the law.

You may not have done anything wrong, but you would be associated with a fine, again not your responsibility, but the effect on your reputation could be immense.

This is why you should follow the rules, but also make sure your suppliers and clients also follow the rules.

So what can you do?

Due diligence!

Yes, I know this may seem boring and a waste of time, but it can save you money and potentially your company’s reputation!

It’s just a matter of asking the right questions and making sure you have proof of the answers. So, if you need help protecting your reputation, and maybe saving money when it comes to choosing the right people to do business with

Houston, we have a problem!

It seems my chicken saga will run and run.

At the end of the last episode, I found my neighbour in the field behind our house, emerging from the brambles and bushes around the edge with a chicken in her arms having spent 20 mins pursuing it.

Off she went to take it home and I thought that was the end of that.

I was wrong.

A couple of days later, my neighbour called at my house to update me on the saga.

She‘d returned the hen to its enclosure and thought nothing further about it.

But, a while later her husband went up to settle the hens for the night and met a hen wandering around in the garden. So, he let her in the gate and went to check on their food and water. Looking around he realised something was wrong.

He counted the chickens 4 times and, after coming to the same number each time, he went back down to the house and asked his wife:

“How many hens do we have?”

“8”, she replied.

“Oh, we have a problem. We have 9!”

It turned out that the hen she had pursued through the undergrowth was not theirs.

It belonged to another neighbour and had been missing for 3 weeks. Our neighbour had assumed it was hers as she had one that was always escaping.

Luckily, the result of this assumption had a happy ending. Hen returned safely to its rightful owner, and all was well with the chickens.

But making an assumption in your business, and in particular, in your marketing and advertising could have a very different outcome.

Don’t assume anything.

Whether that’s a data list purchased from a reputable broker is compliant for an outbound email campaign without doing due diligence, or the terms and conditions for your product promotion are fine without getting them legally reviewed. This is a dangerous proposition and could lead to an embarrassing and costly encounter with a regulator.

Get expert help to ensure your marketing is legal and provides the right impression to your customer and prospects.

Poor data management.

I was reading the results of a survey of 500 senior marketers on the use of data within marketing.

The results were disturbing

• 74% of those asked acknowledge they have organisational blind spots with their data which hamper their marketing activity.
• 61% don’t feel equipped to get the most out of the data they use for their marketing.

And poor quality data had caused

• Inaccurate targeting (30%)
• Lost customers (29%)
• Lost leads (28%)
• Wasted marketing costs (28%), and
• Reduced productivity (27%).

As the saying goes “Garbage in, Garbage out!”

It is therefore not surprising that if you work with poor-quality data, you will not achieve your marketing goals.

And using poor-quality data is an easy way to get the ICO’s attention.

An effective marketing campaign starts with good quality data. the prize draws and giveaways are just the decoration.

So, you can see that making sure you properly check the data you acquire for your next campaign is the best it can be – quality, not quantity – should be your number 1 priority.

This means proper due diligence, asking questions such as

• when was it collected,
• how was it collected,
• who collected it,
• what were individuals told their data was to be used for,

You need a set of questions to ask the supplier of the data and don’t be afraid of asking for proof. As the marketing sender, you will be responsible if there is a complaint.

So, if you want to make sure you are asking the right questions and the data you buy is good quality…