Marketinglaw Update | February 2020

Written on 6 Mar 2020

Hello and welcome to the latest edition of marketinglaw.

Happy 2020! It may be a new year and decade but themes from the past continue to ring true in 2020 (namely influencers around the globe still failing to label content appropriately).

This month's edition includes coverage on: the Advertising Standards Authority (ASA)'s rulings on hot topics including gender stereotyping, health claims (and endorsement by the ASA) and objectifying women; hefty fines from the Italian regulator (€11.5 million in total) for improper direct marketing practices; the Information Commissioner's Office's Age Appropriate Design Code; France's updates to cookies guidance and gambling regulation; misleading promotions (including one that attracted a fine of £150,000); and a judgment reminding advertisers of the importance of conducting checks and obtaining all releases before publishing an ad.

As a reminder, the consultation for the Information Commissioner's Office new draft direct marketing code of practice closes on 4 March 2020. The draft code provides plenty of insight into how to be legally compliant throughout the 'lifecycle' of direct marketing with a strong focus on data protection by design. It also introduces a number of interesting concepts that may compel you to respond to the consultation, including: clarification on the meaning of an "electronic communication"; the application of soft opt-in; the tone of service messages; using online advertising and new technology in a compliant manner, including guidance on the legal basis for social media advertising and audience and 'lookalike' tools; and profiling in the context of direct marketing. Further information is available here.

Latest news

Reform of gambling regulation in France: France refreshes its gambling rules, including those on advertising, and beefs up its sanctions. Claire Bouchenard and Etienne de Dreuille report.
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£150,000 fine for scamming the elderly: A Yorkshire-based company was fined £150,000 for advertising a promotion with £10,000 cash prizes that transpired to be only £0.91 for each winner. Emma Finlayson reports.
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Influencer and manufacturer both infringing Dutch advertising rules with YouTube video: The Dutch Advertising Code Committee (the RCC) ruled that a YouTube video focused on the production process of crisps qualified as an advertisement. Advertiser and influencer failed to label the video as a paid collaboration and thus violated the Dutch Advertising Code Social Media & Influencer Marketing. The RCC also confirmed that the onus is on advertisers to inform distributors (such as influencers) of their respective responsibilities under the applicable laws and regulations. Advertiser and Influencer were ordered to correctly identify future advertisements.
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Exaggerating will get you busted – or is this exaggerating?: The ASA has upheld a complaint against Nestlé by deciding that their advertising claim greatly exaggerated the chances of winning as would be understood by consumers.
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Not so bouncy for Bounce Back Drinks: The ASA ruled against Bounce Back Drinks Ltd over endorsement and health claims.
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The Italian Data Protection Authority fines Eni Gas e Luce €11.5 million under the GDPR: The Garante imposed two fines on EGL, concerning respectively illicit processing of personal data in the context of promotional activities (€8.5 million) and the activation of unsolicited contracts (€3 million). These are the first fines in the Italian framework determined in the light of the parameters set out in the GDPR, taking into account the wide range of data subjects involved, the pervasiveness of the conduct, the duration of the infringement, and the economic conditions of EGL.
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AW v VW: if it looks that good, it's probably art: Looking back to summer 2019 when the Danish courts found that Volkswagen improperly exploited the artwork of Ai Weiwei in a marketing campaign for the VW Golf, infringing copyright and breaching Danish good marketing practice in the process. Charlotte Groom reports.
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People Per Hour 'girl boss' ad campaign banned by the ASA: ASA bans People Per Hour "girl boss" ad campaign for reinforcing harmful gender stereotypes. Lucy Price reports.
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Pretty big things: two upheld ASA complaints in two months for PrettyLittleThing divide opinion: Online retailer has two complaints upheld but the rulings split opinion: Did PLT have control over an influencer's post? Did an ad objectify, empower or simply promote PLT's products? Chloe Deng reports.
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ASA #ad(vice) refresh for influencers and brands: ASA and CMA consolidate and refresh advice to ensure that influencers label their communications properly. Chloe Deng reports.
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The ICO publishes its Age Appropriate Design Code: The ICO has officially published its Age Appropriate Design Code of Practice for Online Services. What things do websites, apps and services caught by this code need to think about? Ben Dunham reports.
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