Advertising (whether on-line or off-line) is regulated by a combination of legislation and self-regulation. If you get your advertising wrong, negative consequences could follow:

• Bad publicity;
• Loss of reputation  and brand damage;
• Censure from regulatory bodies, such as the Advertising Standards Authority (ASA); Referral to the Office of Fair Trading (OFT) and possible court action and criminal prosecution;
• Costly advertising material recall of and reprinting of advertising;
• Wasted media space;
• Disappointed consumers and loss of consumer confidence in your organisation.
• potential devaluation of your intellectual property.

The area is huge and of great importance and as we said needs to cover the minimum requirements of the British Code of Advertising, Sales and Promotion (CAP) and ASA and the legal requirements; here are only some pointers:

The main legislation relating to advertising is the Consumer Protection from Unfair Trading Regulations 2008, protecting consumers from “unfair commercial practices”. A commercial practice is unfair if it contravenes the requirements of professional diligence and materially distorts the economic behaviour of the average consumer in relation to a product (or is likely to do so). An example would be making misleading claims (advertising misleading) about what a product does, to persuade a consumer to buy it.

If you are marketing online you need to consider the Electronic Commerce Regulations 2002 and the Consumer Protection (Distance Selling) Regulations 2000. These impose information requirements on those trading online and via SMS dictate that customers are given certain cancellation rights for orders made at a distance (either via an e-commerce site, by telephone or post).

In addition, the E-Privacy Directive 2002 has been recently amended (coming into force on 25 May 2011) to the effect that the use of cookies is only allowed on the condition that, the “user concerned has given his or her consent having been provided with clear and comprehensive information about the purposes of the processing”. So, from the proposed date, it will not be enough for the users to be told (through a privacy policy) how to disarm cookies, but they will need to have indicated their consent to receive cookies by opting-in. How the network operators are going to technically do this has not been addressed.

Another growing area of legal concern is social media including social media marketing. Companies should think whether they should adopt social media policies for their employees and also how to deal with potential defamation on the social media.

So, in conclusion, when advertising, you should avoid:

• Advertising which misleads potential customers, about the true nature of the product or offer;
• Denigrating competitors unfairly - for example, criticising a competitor without good reason;
• Unfair comparisons - make sure you compare like with like;
• Pricing errors; Infringing other traders' intellectual property rights - for example, using a competitor's trade mark;
• Offending decency;
• Producing advertising which is inappropriate for children to see;
• Watch out for “greenwashing”. The ASA has issued guidance for advertisers on eco-friendly claims. With effect from 1 September 2010, CAP has introduced new rules on environmental advertising for both broadcast and non-broadcast advertising;

If in doubt, seek appropriate intellectual property advice.