Using New Media for Marketing Thursday 3 February 2011 Paul Jordan, Partner, Bristows Andrew Southam, Legal Director, BBH.

Using New Media for Marketing

Thursday 3 February 2011

Paul Jordan, Partner, Bristows

Andrew Southam, Legal Director, BBH

Using New Media for Marketing

• The law – ensuring compliance

• Spotlight on new media

• Product placement

• Conclusions and Q&A

Advertising Standards Authority (“the ASA”)

• “One stop shop”

• Broadcast and non-broadcast

• Digital (1 March 2011)

• “Legal, decent, honest and truthful”

ASA sanctions

• No legal power to impose sanctions but:

• Adjudications published

• Ad alerts

• CAP vetting of future campaigns

• Legal backstop - OFT

ASA – Digital Extension

• Extension of the ASA’s digital remit

• 1 March 2011 – ASA will regulate advertisers’ own marketing communications on their own websites and in other non-paid-for space online under their control

• Capture all adverts/marketing communications “directly connected with the supply or transfer of goods, services ...”

• Need not include a price or overtly seek an immediate/short-term financial transaction

ASA – Digital Extension

• Extension of the ASA’s digital remit (cont’d)

• Covers:

• Advergames

• User generated content: but only where marketer adopts and incorporates the content within their own marketing communications (whether submission was solicited or otherwise) – watch this space

• New sanctions

• Grace period and investment by the ASA into educating all stakeholders

Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”)

• 31 prohibited acts

• “buzz marketing”

• Enforcement and penalties

• OFT Investigation – Handpicked Media

Case Study – Handpicked Media

• What are they?

• Some statistics

• A practical example – Lynx Jingle

Spotlight on New Media

• “You agree to indemnify ... incurred ... as a result of ... Your breach of this Agreement ... or warranty made by You ... any claims that Your Applications ... violate or infringe any third party intellectual property or proprietary rights”

• “The Agency warrants that ... to the best of its knowledge and belief any creative work produced ... will be original to its authors ... will not infringe the copyright of any third party in the UK ... other than as contained in any legal or other advice provided to the Agency and communicated to the Client”

Apps

Apps

• Originality – two stage process:

1. Collected evidence of existing pens, manufacture, retail outlets, etc

2. Several scans of the Appstore for similar ideas

Apps

Apps

• Insurance

• Disputes

• Rejection

Apps

Apps

Spotlight on New Media

Social Networks and Twitter

• Social networks are far more advanced than Twitter (e.g. Facebook fan pages)

• Facebook “apps”

• Facebook Connect

Social Networks and Twitter

Yeo Valley

• Use of Twitter and Facebook to drive campaign

• Real time conversations with consumers

• High profile reaction

Yeo Valley

Nestle

Social networks – other considerations

• Defamation

• Confidentiality

• ASA

• Consumer Protection from Unfair Trading Regulations

Product Placement – what is it?

• Payment to a broadcaster or producer to feature a product or service in a programme

• Described by some as “an affront to basic honesty”

• Seen in films for years (and US shows), but not in TV programmes originating from Europe

• Big business – conservative US estimates 2006: $ 3.07 billion2010: $ 5.6 billion

Product Placement – The US

AVMS Directive (2007)

• Audiovisual Media Services (“AVMS”) Directive (2007/65/EC)

• Responding to technological developments and emerging AV media; seeking to preserve cultural diversity, protect children and consumers et al

• AVMS Directive: general prohibition on product placement

• BUT: permitted for TV programmes in the following FOUR genres: “cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes”

subject to certain safeguards

AVMS Directive: Safeguards

• Not permitted in children’s programmes

• Content and scheduling must not affect responsibility / editorial independence of broadcaster

• No direct encouragement to purchase

• No undue prominence

• Viewers to be clearly informed of placement at start and end of programme and after any advertising breaks (unless programme not produced by service provider or affiliated company)

• Following placements not permitted: tobacco products; prescription-only medicinal products

UK position: 2008 – present

• UK still refused to allow product placement, following 2008 consultation

• BUT: global recession, increase in Internet advertising and TV on-demand services broadcasters taking big hit on advertising revenue

• 2009: government u-turn on product placement in TV programmes

• Further consultation: November 2009 – January 2010

• Ministerial Statement of 9 February 2010: product placement to be permitted for UK television companies who make/commission their own programmes, in line with AVMS Directive (plus further UK-specific safeguards)

UK changes

• EU AVMS Regulation 2010 No. 831 came into force on 16 April 2010 as implemented into the Communications Act 2003

• 2 July 2010 Ofcom published a proposal for new rules relating to product placement on TV in the UK which reflect the new UK legislation. Revised Ofcom Broadcasting Code published in December 2010

• Product placement will be permitted, but only in FOUR genres cited in AVMS Directive (Ofcom to ensure that broadcasters do not overstep mark)

• Specific prohibition on product placement in current affairs, consumer and religious programming (and BBC’s licence-fee funded services)

• Radio – December 2010

• TV – 28 February 2011

Other UK safeguards

• In addition to tobacco/prescription medicines (as per AVMS Directive), UK Regulations will also prohibit placement of:

• Alcoholic drinks

• Foods/drinks high in fat, salt or sugar

• Gambling

• Smoking accessories

• Over-the-counter medicines

• Infant formula and follow-on formula

Conclusions

• Shift in marketing spend

• Increased sophistication

• Control of reputation

• Control of media channels

• Regulatory lag

Thank you for your attention

Bristows

100 Victoria Embankment

London EC4Y 0DH

T +44(0)20 7400 8000

F +44(0)20 7400 8050

paul.jordan@bristows.com

www.bristows.com

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