Just a little feedback from legal.


There are two words that every creative hates: ‘legal feedback’. It’s rarely a good a thing. You’ve drafted a brief, crafted a solution and come up with the best way to communicate. Then some lawyer tips it all over at the final fence. Right around the world, the same rules apply - what the big print giveth, the small print taketh away.

Better yet, there’s a growing appetite to capture the small print in a headline. That’s why we add extra words to ‘Win an iPad’. Just to make it super clear that you can only ever ‘be in to win an iPad’. Apparently it’s because a normally functioning human being can’t be expected to work out the difference between a prize draw giveaway. Personally I think there’s a clue in the word ‘win’. But I’m not a lawyer.

That said, the biggest challenge of legal feedback is that it’s often hard to argue with. Most lawyers are simply keen to tell the truth. Nothing definitive, nothing you can’t substantiate, nothing too fuzzy or confusing. It’s all there in black and white. Often it’s written into law. Lawyers really like straight up and down communications that clearly tell the story about the product you’re selling without over-egging it. And mostly, that’s not a bad thing.

So rather than cynically attack the compromise of honest communications, I thought I’d show up at this year’s Marketing Law Conference and find out how the ‘other side’ thinks. Here’s what I learned.

Someone will always complain.

The always-entertaining Hilary Souter kicked off the day with a backstage tour of the Advertising Standards Association. Fun fact: 43% of complaints had ‘no grounds to proceed’ last year. Some people have nothing better to do. But there are genuine challenges when advertisers say stuff that’s irresponsible, offensive or just not true. They don’t extend to the shemozzle around the Holden and the Isis salute. But the basic rules are don’t be mean, don’t use rude words and don’t tell lies. The latter is the theme of the day.

It’s not just what you say that matters.

Next up we heard from Ciska de Rijk on the challenge of “inferred meaning”. Simply put, if your apple juice doesn’t have apples in it, it’s best not to put apples on the label. Sounds straight forward until you reach into the arsenal of semiotic tools that designers use to tell a story. That and the many shades of grey between generic and ‘nutritious’. What does the colour say? What does the image say? What does the whole thing communicate to a reasonable person? And is it true?

One current conversation surrounds what makes a craft beer a craft beer. Is it the product, the label or the use of words ‘craft beer’? These are questions asked being asked by big and small breweries alike. And the answers sit with your customers. The legal crux of an inferred claim rests on what ‘reasonable’ people (defined as not ‘stupid’ or ‘fanciful’) might thin.  Get it right and you’ll sell a lot of beer. Get it wrong and you could get a serious bill. Summary: still don’t tell lies – even with pictures.

And a whole bunch of other stuff.

From there on in, I must confess it got a wee bit blurry. I tried to pay attention and mostly I did. But the themes overtook the specifics – much like the second page of a well drafted Privacy Policy.

Privacy was a session. There’s a new law coming. It’s much like the old one. Some people think we should push it harder and others don’t. But the key priorities seem to be ‘do the right the thing by the customer’ and ‘stay in the good books with the EU’. Sarah from Spark was well referenced with a quote of the day – “It’s not about what we can do. It’s what we should do.” Again, it’s about telling the truth and looking after customers.

Next was talk about the legalities of influencing on social. Primarily, it’s better not to pretend you just happened into those new sneakers. Selling through deception contravenes the Fair Trading Act. In other words, don’t fake it and don’t lie.

Then we saw some examples of people who lost sight of the truth and the level at which they got smacked by the Commerce Commission. Who, incidentally, seem to be the Marketing Law equivalent of the those Internal Affairs people you come across on police procedural shows. Their message: If you can’t back it up, don’t say it.

Finally there was a brilliant discussion on the cultural misappropriation of Maori Taonga. Long story short, don’t steal someone else’s stuff to sell your stuff because, funnily enough, they don’t like it. There’s more to it and that – and it’s always good to get advice.  

You can pick up the basics at Primary School.

That’s not to cast aspersions on the legal profession. Quite the opposite. There are plenty of tangles and technicalities that went totally over my head. But the basics are pretty-straight forward. Don’t say stuff that isn’t true. If you say your Dad’s got a helicopter, you’re going to be asked to prove it. And if you make stuff up just to get people to like you – they’re likely to find out and you’ll look like a dick.

Perhaps the biggest challenge in all of this is the elusive definition of ‘reasonable people’. More passionate creatives may find it hard to fit into that bucket. Many lawyers live on the opposite end of the ‘wing it and see’ spectrum. But somewhere in the middle is a customer who just wants to know what the Weetbix costs.

And that’s my summary of a morning with the lawyers, we’re all on the same team and rowing the same canoe – and the ultimate goal is doing the right thing by our customers.

Please can someone remind me of that on the next round of ‘legal feedback’.

That’s what I reckon, what do you think?  

Michael Goldthorpe