Welcome to Unmade, and a Thursday special.

Today’s edition is our first video-led post. Media and communications industry lawyer Stephen von Muenster has recorded a presentation for Unmade readers that will bring you up to date with communications law.

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Communications law with Stephen von Muenster

Download the presentation here.

The full transcript is at the bottom of the post.

In Australia today there exists an ever increasing and complex coalition of laws, regulations, standards and industry codes that influence and restrict the claims and messages that advertisers and their agencies can publish to their consumer audiences.

We are presently in an era of significant law reform that will impact agencies and advertisers, including the Australian Competition Consumer Commission’s Digital Platform Enquiry and the numerous follow-on inquiries, investigations and reports that have far reaching consequences for digital platforms, publishers, tech providers, agencies and their clients.

A significant focus is the protection of consumer privacy and how personal data can be collected, used and disclosed for commercial and advertising purposes. 

Agencies and their advertiser clients are facing a confluence of consumer protection laws, intellectual property laws, privacy law amendments, new privacy codes and court decisions that are focused on better consumer and individual outcomes when it comes to their privacy and data, the content of advertising messages they receive and the terms and conditions that brands use to market and sell their products.

In this video presentation, von Muenster, partner at von Muenster Legal, will overview the numerous current regulator inquiries, investigations and reports and briefly discuss law reform impacting agencies and advertisers.

Through the lens of recent court decisions where advertisers got it wrong, he will also overview the most important legal and regulatory areas impacting the day to day work of agencies. Finally, he will suggest how agencies should prepare for and steps that might be taken to prepare for legal and regulatory change in the near future.

The presentation goes for around an hour and includes slides. The slides at time may be hard to read, so you can download them here as well.

Below you will also find a full transcript of the presentation.

I’m sure the presentation will provide you with important and useful information. If you wish to get in touch with von Muenster, you can email him on stephen.vm@vonmlegal.com.

Enjoy the rest of your Thursday. Tim will be with you on Saturday morning with Best of the Week, and I’ll be back on Monday morning on the Start the Week podcast.

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Damian

damian@unmade.media

Transcript with approximate time stamps

(00:00:26):

Well, thank you, ladies and gentlemen, for taking the time to join me virtually today for this webinar, hosted by Unmade. As my friends at Unmade have indicated, today's topic is Communications Law: Recent Developments in a Complex Legal Landscape. I am of course speaking from the Australian perspective, but many countries in the world actually have very similar laws to the ones that I will canvas in the seminar today. My presentation will go for roughly 50 minutes, give or take, and there's quite a bit of content that I will be getting through. So hopefully if you miss some of the things that I'll be saying, or if I move a little bit more quickly over some of the content, you'll be able to catch up with it, as this will be recorded on video.

(00:01:18):

Ladies and gentlemen, before I get underway with the presentation itself, I would like just to take you briefly back in time, to the 1890s, in fact. Now, what you have before you is the advertisement that was part of the famous Carlill versus Carbolic Smoke Ball Company case. It's an ancient advertising law case, and it shows just the type of [inaudible 00:01:43] that were out there in the 1890s. This ad appeared in the London News in 1892, and it was advertising what's called a Carbolic Smoke Ball, and a Carbolic Smoke Ball was a rubber device that you inserted into your nostril and you pressed a stream of carbolic acid into one's nose.

(00:02:04):

And I have here a replica of the actual Carbolic Smoke Ball, and you can see it is injected into one's nose by pressing on it and puffing up carbolic acid. Now, carbolic acid today has a number of uses, but predominantly it's a commercial paint stripper. You can see the claims that are being made about this product. It will positively cure the numerous ailments and influenza and diseases that are listed. It's also indicated to be an approved cure for all of those things, bronchitis, coughs, what have you. And it's also being promoted as suitable for children, and necessarily in the nursery.

(00:02:48):

You can see that there are influencers of the day giving testimonials, and those influencers in those days were royalty or minor royalty, the clergy, and military officers. Now, one Miss Louisa Carlill bought this device, used it as directed, and promptly caught influenza. And she requested her money for that. The 100 pound reward was there to be given to somebody, as I said, who caught it when used as directed. She asked for her 100 pounds, and back in those days, 100 pounds was a lot of money. Today it's worth about 12,955 pounds. They just said, "No, we're not paying you the money. We were just joking." And she promptly sued and took the case all the way to the English Court of Appeal, where she won. Now, this early advertising case actually established the modern law of contract and the principles around that when advertising to the public at large, and it also established a consumer protection movement that exists to today. For those of you that work in the therapeutic goods advertising sector and therapeutic goods sector, you would know that such a product would never be able to be published or promoted today.

(00:04:11):

And ladies and gentlemen, you would be forgiven for thinking that this sort of thing could never happen today, but you would be wrong. Even in the 2020s, we have a gallery of individuals and companies that are selling goods in a way that is unlawful. For example, this bio charge device, Peter Evans, the celebrity chef, he claimed this device could cure the Wuhan coronavirus, or coronavirus. The page for the bio charger also suggested it could be proven to restore strength, stamina, coordination, and mental clarity. It could assist you to recover from injuries and stress, and it would accelerate muscle recovery and reduce stiffness in joints.

(00:04:57):

I don't know how the device worked. It was some sort of electric field. But of course it had absolutely no basis for making the claims that it did. No therapeutic use was demonstrated whatsoever. And he was promptly fined $100,000 or so by the Therapeutic Goods Administration and told to remove it from sale.

(00:05:16):

And there are other examples of those trying to take advantage of the pandemic and the fear that we all had. For example, on the 23rd of July 20, Lorna Jane, the apparel company, was ordered by the federal court to pay $5 million in penalties for making false and misleading claims relating to its active wear, which said it eliminated, stopped the spread, and protected wearers against COVID-19, which of course it didn't.

(00:05:44):

So today at the kind invitation of Unmade, I'm going to give you a tour of the laws, regulations, and codes that influence and restrict the claims, messages, and impressions that advertisers can make in the Australian context. We'll examine some recent cases where advertisers and brands have seriously got it wrong, and how the court decisions around those cases, together with some very significant law reform that is on the way, will impact the business of advertisers and their agencies.

(00:06:21):

My desire is that by the end of this presentation, you will have at least an awareness of the laws, codes, and regulations that may apply to your campaigns in order to improve compliance, protect you from risk, legal risk and commercial risk, and elevate the standard of advertising in Australia. If one day you say a bold lawyer said something about this at a seminar once, and you investigate further, well for me, that is a win from today.

(00:06:57):

So the outline for today, I will take you through a highlights tour of the legal landscape, just to give you a top down helicopter view. I'll take you through the law of copyright, the very important emerging area of privacy and data, the extremely important area of consumer law, spam. We'll look at trademarks, defamation, which has significantly elevated itself in the ranks in respect to marketing and advertising, and then look at this emerging or this mainstream area now of the law and influences and how will these laws that are listed there come together in the influence context.

(00:07:39):

So there is today a highlight. There is today a coalition of laws and regulations that, as I mentioned, will influence and restrict how products can be promoted to consumers. And every campaign needs to be very much assessed on a case by case basis to see what laws will apply. Not all the laws will apply, but some of them always will. Now, these laws don't just apply to the brand. They apply to the advertiser, as well as anyone else in the supply chain, and all can be liable if things go wrong. You really do need to demonstrate legal compliance to be able to manage the risk.

(00:08:20):

And the risks that really come out of getting your advertising wrong, of course, for the agency and brand in particular are legal, predominantly, commercial, of course, reputational, and regulatory and criminal risks. And there are a series of laws that influence the landscape. And as they are listed there, we have copyright, privacy and data laws, spam telemarketing laws, consumer protection laws. We have laws relating to defamation, [inaudible 00:08:57] gaming and gambling. We have, as I mentioned, privacy, and the laws that may apply ultimately to particular channels such as influencers, and you can see that there on the screen.

(00:09:12):

The first law that I'd like to take you through is copyright. And copyright is one that I mentioned initially because it's often overlooked by agencies and brands when they're developing their campaign material. It's also exceptionally important now in this digital realm, where content is freely out there, but just because it's freely out there and it's ubiquitous doesn't mean it can be freely used in the commercial context for advertising and marketing.

(00:09:49):

So copyright is a right that exists automatically on the creation of original content. And as you can see there on the screen, and I apologise if the screen is a little bit crushed. I'm not quite sure how it's coming out at your end, ladies and gentlemen, but copyright exists automatically as long as it's an original creation. And it protects from unauthorised use of a series of what I like to call content. And the content used could be anything from paintings, lyrics, scripts, dramatic works, as you can see. Today in that content sort of context, obviously film, music are two of the very important ones, and film can have up to seven different copyrights that exist in it, and music up to three.

(00:10:42):

We generally look at copyright lasting for about 70 years. 70 years for most forms of copyright. And all copyright actually is and exists automatically, as I said. It's just a bundle of exclusive rights that are given to the holder of the copyright. And in particular, those exclusive rights in the advertising context include communicating the word to the public, broadcasting the content, placing it on the internet, or reproducing it in some material way.

(00:11:15):

Separate to copyright, creators and performers also enjoy what's called moral rights. And these are rights not to be falsely attributed, to have their work attributed to them properly, and not to have their work subject to derogatory treatment, unless they of course consent to it.

(00:11:35):

Copyright, I mentioned there a little bit of reform. There's copyright reform that is on the way, and there will be some changes to the copyright law, particularly around orphan works. They're works that you can't find the owner of, but you'd still like to use them, provided you take certain steps to genuinely try to find the owner. And I'm not sure if you can quite read that on the screen, but there will also be an ability for private people in the non-commercial settings to use some content for private purposes, which they are doing every day anyway, in social.

(00:12:11):

You'll notice that there's a number of key takeaways in this entire presentation. So what I try to do is just leave you with a thought bubble on each area that I'm addressing. And the first one here for copyright is that everything you find online and social will likely be protected by copyright and moral rights, and you should approach it in that way. You just can't use them without permission, unless you have either a defence to use them, which generally is reporting the news. Parody and satire and criticism and review, we'll look at parody and satire in a moment. So just assume copyright exists and make sure you either have a license or ownership before you use it in your campaigns, and make sure the person who says they're going to give it to you actually owns it and has the right to give you that use right. So a couple of examples then of copyright cases in the advertising context, and this is a case using an advertiser's logo and copyright advertising get up, look, and feel without permission, and the use of the parody and satire defence. So you can see there that Greenpeace has taken AGL's advertising and logo, and they have used it to promote their particular message about pollution. And it's effectively, that was done without any consent of AGL. AGL sued Greenpeace and Greenpeace relied on the fair dealing defence of parody and satire.

(00:13:49):

And it was actually found that there was no infringement of AGL's copyright. It was because the court said that the way in which they copied this and used their copyright material and their logo was very much satirical. And the quote, I quote from the court, "The ridicule potent in the message is likely to be immediately perceived. Many would see these uses of the modified AGL logo as darkly humorous because the combined effect is ridiculous."

(00:14:23):

So what does all that mean? Well, it has implications for charities, not-for-profits, and activist organisations, because they seem now to be able to use logos of brands with impunity and without facing legal consequences from a copyright point of view. But of course, it's not a license for advertisers to use another brand's material or someone else's material for a commercial purpose with, and say it's satirical or it's a parody, because that dealing would not be fair. So there's a commercial element. You're likely not being able to rely upon that defence.

(00:15:02):

Another interesting example is the use of music without permission in advertising. Some of you from Australia may recall back in the 2019 federal election Clive Palmer and his United Australia Party came up with an advertising campaign that had a song called Aussies Are Not Going to Cop It, and it was authorised by Clive Palmer. Now, the ads which included the song for the UAP were transmitted on TV, radio, and online streaming for some six months.

(00:15:35):

Universal Music Publishing sued on behalf of Twisted Sister and the court held that Mr. Palmer had infringed the copyright in the Twisted Sister song, We're Not Going To Take It, by authorising the creation of the Aussies Are Not Going to Cop It song. He was fined $500,000 for the commercial use, which would roughly equate to what he would've had to pay in the event that they were going to license him their song, which they probably wouldn't have, but he was fined a million dollars on top of that as what we call additional or punishment damages, because of the disregard he had to the copyright and the ridicule he made of the case during its process while it was going on. And he just ridiculed the case. So he copped a million dollar fine, one of the highest fines ever.

(00:16:26):

So the message there for advertisers and agencies is if you're going to use someone's copyright material with complete disregard to their ownership rights, be ready to cop a pretty high fine beyond the simple commercial use cost, which may be quite low, if someone takes you to court.

(00:16:47):

Another final one I just want to mention on the copyright before I move on is the State of Escape Accessories and Schwartz. That was simply a case where we had an established brand that sold these tote bags, which was State of Escape. They sold this unique looking tote bag, this...

(00:17:03):

... was State of Escape. They sold this unique looking tote bag. This lady, Ms. Schwartz, decided to sell a similar looking tote bag and promoted it on her online channels. And she was sued by State of Escape because they said their tote bag was a work of artistic craftsmanship, which is a class of work that can be protected by copyright, and that by selling her bag in that way, and making it look that way, they infringed the copyright. Unfortunately, for State of Escape, the court found that, well, it's a bag. It has some craftsmanship in the bag, but it's not artistic craftsmanship. So, they failed in copyright. And this really shows that it's very difficult to protect functional type of products, if someone copies them, in copyright. You may be able to protect them if you have maybe a patent or some sort of design registration, but from a copyright point of view, it's very hard, just because it looks similar to your product.

(00:18:13):

So, I'll now move from copyright to privacy and data. And privacy and data is hugely important, particularly in the world of digital, social, and data-driven growth for businesses. And what business today doesn't have data as its centre of gravity is not moving with the times. But there is significant reform coming, and there are some significant cases around it right now, which should throw up many red flags for those dealing in data.

(00:18:45):

Now, again, the slides are just popping up as they are. I'm not quite sure how they're looking to you, in terms of the broadcast mechanism that I'm using. But what I've set out there... And apologies if you can't see it completely well because of my takeaway. But at the moment, there's a significant number of inquiries, investigations, and reports that impact upon privacy and data. And some of you may have heard of the digital platforms inquiry that was released in 2019. And this was instigated by the federal government, giving the A triple C — and we'll talk more about the A triple C — the brief to go in and look at digital platforms and what is going on. And the huge report that came out in '19, 600 plus pages, effectively said that the law and regulation hasn't kept pace with technology.

(00:19:38):

Out of that, we're in a realm of persistent inquiries and reports. And the digital platform service inquiry is going from 2020 to 2025. There's been about three or four reports, and that'll conclude in '25 with the final report. And that is looking into absolutely everything about digital platforms, as you can see that I've written there.

(00:20:04):

As well as that, there's been a digital advertising services inquiry, which is looking at the whole industry of digital advertising, and the agencies, and the clients, and the technology at tech providers [inaudible 00:20:19] part of that ecosystem. The ad tech report was issued, and that's looked at particularly around the competitiveness, and the opaqueness, and the transparency of the big platforms, particularly Google and Facebook. So we have that report.

(00:20:33):

And concurrent to all of this, we're actually having a Privacy Act review going on by the OAIC, which is the privacy commissioner, or the Office of the Australian Information Commissioner. We're reviewing the Privacy Act to make sure it's up to date. That's coming. And at the same time, in the privacy context, we've got a draft online privacy bill that is going to be released, that has been released, and when that becomes more it'll be mandatory, and it'll particularly affect the big platforms; Google, Facebook, et cetera. And it may change their business models, and how agencies in particular are used to dealing with those platforms.

(00:21:11):

Key takeaways from these inquiries is that there will be new law. There will be new codes. Transparency consumer protection, and protection of their privacy and data is a huge focus. And the distillation of everything is that it's all about choice, consent, and control, that it will need to be afforded to consumers.

(00:21:34):

So, what is the current law of privacy right now? Well, we have a Privacy Act in Australia. And again, I'm not quite sure how you're seeing that screen. It looks a little bit crushed to me. Hopefully it's clear to you in the audience. Under the Privacy Act 1998 — it's been around for a while — there are 13 privacy principles. And most organisations, if you have an annual turnover 3 million you need to comply, or if you use personal information as part of your business model. You need to have a privacy policy. Most people know that. Your collection of personal information at the moment must be necessary for your genuine business purposes. And in addition to a privacy policy, you need an upfront collection statement, or notice, that tells consumers why you are collecting, using, and disclosing their information. A lot of businesses aren't doing that. And hence some of them have come unstuck, which we'll see in a moment.

(00:22:36):

There is an exception in the privacy and law for direct marketing. I won't dwell too much on it, but the bottom line is, interestingly, the law or the privacy principles actually say it's illegal to use personal information for direct marketing. So it is prohibited, but then there's some exceptions, which is a curious way to come at it. But in APP 7.2, you can do it if your customers will reasonably expect to receive marketing material using their personal information, and you can achieve this through a collection notice that I've just spoken about.

(00:23:15):

And then there is an exception under 7.3, where you can use it, where they would not expect to receive direct marketing from a brand, provided you accommodate those steps that are there, and you comply with them, as predominately someone hasn't opted out in the past.

(00:23:39):

But it's important to understand that, really, in today's digital environment, [inaudible 00:23:45] impractical to obtain consent, is arguable and questionable, because you can get consent using people's phones, and opt in screens, et cetera. So, we'll see why people haven't been out or businesses that have come unstuck haven't been able to rely upon that.

(00:24:07):

The Privacy Act 1998, as it currently exists, has a definition of personal information. But I'd like to talk about personal information in the context of data, particularly, as I said, data, and databases of consumer data is where everyone is heading to, or is at at the moment, and increasing that for data driven growth. There's a definition of data there, under Privacy Act. What is personal information? Which is just a form of data. By the way, it's information or opinion about an identified individual, or an individual who's reasonably identifiable. An identified individual is easy; name, address, and serial number, et cetera. But someone who's reasonably identifiable is less understood. Even under the law today, that means if you think you have anonymous data, but you could reasonably, and at a reasonable cost, combine that with other data, you will then be able to identify somebody, that means you have personal information already, even if you think you don't.

(00:25:21):

I do mention the other laws in the other parts of the world, the GDPR, the General Data Protection Right in the EU, and the California Privacy Law, because their laws have a much broader definition of data. Sorry, personal information. And their definitions of personal information include indirect data, internet browsing history, location data, various online identifiers, and behavioural data that isolates and targets.

(00:25:56):

And so today we are looking at our law, drifting into the location where pretty much any data that relates to an individual, even if it's only a small number of data points, will be taken to be personal information, because of data analytics technologies and artificial intelligence. We'll see where this gets to with the law changes that are coming, but be prepared for anonymous data to equal personal information in the future.

(00:26:28):

So under the current law, where, as I mentioned under the privacy reforms, and the reforms of all these platform inquiries, the digital platform inquiries, new law is coming. But because of that, the regulators, the office of the information commissioner, Australian Information Commissioner, and the A triple C, are using their current role very aggressively right now. And one of the important cases at the moment, which we haven't got decided yet, is the OAIC and Facebook case that commenced in March 2020. Effectively a case about having people download a This Is Your Digital Life app. And once someone had downloaded, it sucked in all the personal data of all their friends, and then sent it to Facebook for commercial purposes, allegedly. And there is an allegation that this was something that was sent to Cambridge Analytica. And the Cambridge Analytica scandal was one of the reasons for the digital platforms inquiry to start with way back in 2019.

(00:27:39):

So, the case hasn't been decided yet, but — it's not on the screen that I can see — but the potential damages, or the potential penalty that Facebook could be facing, is 500 billion for each and every unlawful disclosure of personal information. We'll see where that goes. Key takeaways from the case, though, the light bulb is that agencies and advertisers need to understand that you need to get consent. It needs to be obtained directly from the person. The users need to have reasonable choice and control how their PI is used and disclosed. And to ensure that you are doing the right thing, you really need strong contracts with the people in your ecosystem, from the client to the agency, from the agency to third party suppliers, that they might provide consumer data to, to assist them with providing their services. Otherwise, all could be liable.

(00:28:37):

I've spoken about privacy and data. I'm now moving into... And then before that, copyright. Australian consumer law is a law that, again, is not so well understood, but it applies to advertising and marketing all the time. It's just how it applies, and to what extent it applies. So you really need to be across this one to stay safe and reduce risk. It's also, as we will see from those that have got it wrong, some silly mistakes have been made, and continue to be made today. Now the Australian Competition and Consumer Act contains the Australian consumer law. The Australian consumer law has a number of provisions, but the predominant ones are section 18 that prevents misleading or deceptive conduct, and prohibits a number of specific misrepresentations under section 29. For example, false testimonials, false associations. There's a number of them. False product claims; that kind of thing. These only apply if it's trade or commerce. So it very much applies in the sale of goods in the advertising and marketing of goods context. Doesn't apply, actually, to advocates and Green Peace, for example, because the work that they do tends not to be in trade and commerce.

(00:29:59):

The federal government regulator is the A triple C, I've have already mentioned that. And to understand if something is misleading or deceptive, you need to put yourself in the shoes of the consumer. And it's based on what the overall or dominant impression is to the audience that receives the message, the target audience. Understand the target audience can always be broader than the one you are deliberately targeting in your advertising. It applies to any channel, any markups channel, any product, any claim message, and in infinite ways. As advertised, the burger is there. If that's what you get in reality, technically that's misleading. My most of my burgers are advertised that way and look that way in reality, but there you have it.

(00:30:46):

Key takeaways from the consumer law is that, just because you've got terms and conditions, elucidation or disclaimers, that cannot cure misleading conduct, if the dominant impression of the ad is misleading, the overall impression. You need to look at the media channel used and the dominant impression conveyed by all the elements. So are you on TV? Are you using influencers? Are you on a billboard as people zip by on a train? What can they see? And the combination of the talent you use... And I say talent because influencers have an influence, and they can con people into things through their voice, images, music, text, and film. All of that taken together is the dominant impression. So you got to ask yourself, what claim are you making? And then what is the consumer thinking you are saying? And if there's a disconnect between the two, you've got misleading conduct, generally.

(00:31:38):

There have been a myriad of recent cases, in the advertising context, with big brands that are getting it wrong. And I've just given you a smattering of them here. There's Dodo who was fined 2.5 million in penalties because they cherry picked their fastest network speeds, and weren't clear about the slower speeds that they could have. 2.5 million. Mosaic Brands taking advantage of the pandemic saying, "We have a sanitizer that is 70% alcohol," but it only contains 17%; $630,000 in penalties. And in April this year, most people would've heard, Uber has admitted that it breached the ACL, and is agreeing to penalties up to $26 million to be imposed, because of their misleading message in their ride app that said, "You may be charged a small fee because your driver is on the way." Even though their own terms and conditions said that that was not the case for a period of time, a cancellation period. If you do not comply with your own terms and conditions, in a privacy policy or wherever, your brand, or whoever is doing it will be liable if you say one thing and your terms and conditions say another. And that's cost them 26 million at the least. Another very interesting case, and I mentioned this one because it involves an algorithm and a brand being caught up by the use of their algorithm, and a 44.7 million fine to Trivago for their aggregator website, where consumers could go in and search for the cheapest hotel booking using Trivago. But unfortunately for consumers, and as the A triple C brought proceedings against them because of, it was all misleading because really the top placed 227 that you see there, was the person who paid the most per click, the hotel that paid the most per click, and wasn't the cheapest. It was only when you went into more deals on the second blue one, just above it to the left, that the circle... that you found out that actually it wasn't the cheapest. They also came unstuck cause their strike through pricing was misleading. They're not comparing two same rooms, they're comparing the cheap room with the premium room. And when you do that it's comparing the cheap room with the premium room. And when you do that, it's misleading because you're not comparing apples with apples. So, there you have it. Trivago, $44.7 billion fine for misleading algorithm use and position of the search results on screen.

(00:34:21):

Another one is misleading search engine marketing. And again, apologies if there's a bit of cover up going on, on the slides. That's what I see before me here, but we'll press on. That's okay.

(00:34:34):

We have Employsure, which is a company here in Australia, an employment-style advice company that bought some ad words, and used the dynamic keyword insertion feature to display the ad that you see there in search when people looking for the Fair Work Ombudsman or Fair Work Australia type that into their search, and up popped that ad there, and it showed everything to do with the Fair Work Ombudsman, nothing to do with Employsure.

(00:35:14):

Now, Employsure was sued by the ACCC. It was fought by Employsure because they said, "Well, come on. It's got a little square ad there, and it's FairWorkHelp.com.au, not FairWorkHelp.gov.au, so consumers should have known." And interesting, the Federal Court agreed with Employsure at first instance, but then the ACCC appealed and the full Federal Court unanimously ruled in favor the ACCC, and said that was misleading. And effectively, it's the dominant impression when you first look at it, to any member of the audience going, "Oh, that's the Fair Work Ombudsman," and when you click through it, you would've been surprised when it was... Probably surprised when it was Employsure. They were ordered to pay $1 million penalty, but the actual ACCC has now appealed the penalty and wants $5 million. The key takeaway from this case is, in SEM, you need to be clear about who is promoting that ad. And if you use key terms of your competitors or key terms of government departments, be very, very careful that you display your ad correctly.

(00:36:29):

Now, the ACCC... Just like the Office of the Information Commissioner, the ACCC with the OAIC have formed a bit of a pincer movement. And as I said, they're just going after undercurrent laws they're not waiting for the new laws which are coming, and they're just going after a whole league. We've seen the OAIC case against Facebook. We've now got a range of cases where the ACCC is suing businesses because of misuse of consumer privacy and data under consumer protection laws. So, in misleading or deceptive conduct, because I'm not being told how my data's being used. Not a privacy law issue, but a consumer law issue. They're having significant success.

(00:37:12):

On the 20th of August 2020, a $2.9 million fine for Health Engine who was using data collected through a doctor booking health app to share with insurance companies, and it was buried in the fine print and consumers didn't know.

(00:37:29):

There's proceedings against Google in '19 that have been successful where they've, Google, have been found liable for misleading representations on its screens, in relation to how it collects sensitive and valuable personal location data, and how people could opt out for that. We don't have a fine yet, we don't know what that is, but ACCC is seeking a significant fine, as well as looking for Google to publish a detailed notice about how they use location data. Google doesn't want to do that, I don't think.

(00:38:03):

There's another case against Google which was commenced on the 27th of July 2020. This is even probably more serious where they were, in a obfuscated way, in a camouflage way were trying to obtain consumer consent to grab more data from consumers to combine and use for targeted advertising. And the way in which they were trying to get that consent, and what they weren't saying is the subject of this case, and we will see how ACCC goes against Google on that one.

(00:38:40):

There's more. The ACCC themselves have also gone after Facebook. So, Facebook is having its case with the OAIC on Cambridge Analytica. Facebook is also being sued by the ACCC.

(00:38:54):

This one's Eurasian; the Onavo Protect mobile app. People thought they were downloading an app that gave them a virtual private network and keeping all their conversations and data secret, but in fact all it did was collect an aggregate significant amount of data for Facebook's commercial benefit, allegedly. And we will see how that goes with a case and the decision there, and the penalty there, misleading or deceptive conduct.

(00:39:20):

Again, in March '22, the ACCC has again gone after Facebook in another case where Facebook didn't do anything about scam advertisements where overseas and probably local scammers were falsely claiming personalities like Andrew Forrest, Dick Smith, David Kosh were promoting and endorsing financial investment products, that really were just scams and taking people's money and they wouldn't take them down. So, they're being sued for letting their platform being used for misleading purposes.

(00:39:58):

And concurrent to that, Andrew Forrest has also commenced a private criminal proceeding against Facebook for the same thing, because he was the subject of it. They're different cases, but there for the same reason. So, there we have it.

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There's a lot of cases. There's a lot of decisions yet to come, and it's very hard to predict exactly what's going to come out. But my sense of it is that many of these larger platforms will be liable multiple times with multiple fines. It's changing the law. But if I can draw out any learnings from all of that, I've listed them here.

(00:40:37):

The key one is, and I've said it in the centre box there; the key issue is choice, consent, and control. And if that is afforded to consumers in a transparent and easy to digest way that is consistent with a privacy policy and a collection notice that explains all of that, and there's a choice screen that allows them to opt in and giving control; you will be on the safe side of the current and the future of all. Obviously that's not always palatable. Sometimes we don't want to tell consumers what we're collecting, and there's good reasons for that commercially, but the laws will be what they are.

(00:41:20):

Remember, if an agency assisted brand or an advertiser do this, then the agency can also be liable as with the individual employees within the agency as well. And there have been cases, historically, where that has happened. So, I just mentioned that.

(00:41:41):

I'll just briefly touch upon spam, because the spam laws have been around since 2003, and there's also a Do Not Call Register Act that has been around since 2006. It's part of laws that regulate the marketing mix. You just need to be aware that you cannot send commercial, electronic messages to consumers unless you have their consent. And you do do a few other things; a clear, accurate centre identification and a functional unsubscribe. Most people know that.

(00:42:14):

Remember, I told you there was an exception to direct marketing for privacy. If the Spam Act applies, that exception doesn't apply. So that exception in the privacy, that really only applies in the direct mail setting these days. Because electronically, if you're sending emails or SMSs, that type of electronic message; you need consent to be able to do it.

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There are brands that are still getting this wrong, even the big ones. In July 2020, Woolworths was fined just over $1 million for sending marketing emails to consumers that opted out. Optus was fined $500,000 were doing the same thing in January 2020, and then a couple of smaller companies were fined 25,000, roughly, and 21,000 for calling people on the Do Not Call Register. The laws have been there for a long time, mistakes are still being made.

(00:43:13):

Some reform on spam is coming up. We haven't seen many changes to the Spam Act for nearly 20 years, but we had a significant number of complaints occurring in relation to the UAP Party member Craig Kelly here in Australia who sent out thousands and thousands of emails about who he was and what he wanted to do politically. ACMA, the regulator, the Australian Communications and Media Authority received 4,000 complaints, but there was nothing they could do because, one, they weren't commercial messages because they were about politics, and there is an exception in the act for political parties. So, I think there'll be some more reform coming up to stop that kind of spamming that is currently legal.

(00:44:03):

Shifting gears again to trademarks. We've been through a number of very important laws. I mentioned trademarks because it is super important if you get it wrong and it can have drastic consequences. Now, some of you may know that trademarks are there to protect brands, product names, taglines, and slogans. Copyright is automatic. Trademarks must be registered and they can take a long time, months, or years to obtain. And there's an example of the very first trademark in Australia, Trademark No. 1 for PEPs coughs and colds from 1906. So, that's a trademark.

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There's 45 classes of goods in which a company can register their trademark. If someone has a trademark for a particular class of good, say Class 5 chemical substances, no one else can use that for that class of goods or services. And if you do use a mark that's substantially identical or receptively, similar to that, you will end up likely infringing the owner's trademark. So, the key takeaway is you really need to check and do a roadblock type search to ensure that there is no registered trademarks, or some other what we call common law marks where reputations have built up that will stop you using your new brand name or product name, or what have you. And most get this right, and don't do it wrong, but there've been some really interesting examples.

(00:45:43):

Back in 2011, I was trawling through my historical records and I recalled this one, and this was a case where Honest to Goodness Organic marketing had the Honest to Goodness trademark for food, and Woolworths went out and with Margaret Fulton and decided to come up with a range of Honest to Goodness family meals, food again, and Woolworths was sued. The case was settled. There was no final decision, but it was obviously settled because you can see how the mark was being used, and Woolworths probably should have known better at the time.

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Another example which I like is Easton Corp and Pacific Brands. It's another fail. They just didn't check. But East Corps does and still owns a Hottie brand of apparel. Pacific Brands, who owns the Bonds range of products of apparel for their 100 year anniversary released a range of Boyfriend Hottie, Hipster Hottie styles. They were sued by Eastern for trademark infringement. This matter, again, settled because they had the trademark.

(00:47:01):

There was probably quite significant brand dilution and damage at the time that happened in Eastern Corps, because this was a big campaign, and I'm assuming there was a significant settlement sum, but we don't know. So, that's trademarks.

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This is the last major area of law that I need to talk about, and defamation is becoming very, very important because of a particular High Court case in the advertising context. Now, defamation is really where someone publishes, either orally or in writing, someone says something or writes something about another person and publishes that is untrue and harmful to their reputation. That's what it is. In the old days, we called it slander and libel, but now it is just called defamation under the Defamation Act of New South Wales 2005, and there's similar laws around Australia. Recently, I always like to talk about what more reform is coming. We have had some more reform in New South Wales, Victoria, and South Australia, and there's a new public interest defence that has come out. If the defamation was for public interest, obviously you've got to meet certain number of tests there. There's a single publication rule that has come out, particularly in the digital environment. Understand that every single time an impression it goes under somebody's screen in the digital environment, that is another defamatory publication. What this does is set the time running to bring the action from the first publication so it just doesn't go forever, because there is a one year time limit to bring an action.

(00:48:46):

The problem of course with digital channels and the digital realm is that defamatory material can be significantly... Can go viral, and can be published millions of times and creates much more damage than the old, perhaps, tabloid publications and the paper press used to.

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The key takeaway is that, while highly unusual in practice, you can defame individuals in advertising, you just need to be careful because there is a publication. And if you're going to use someone's image, like the one there on the left hand side, which is actually an example from a Virgin Mobile campaign back in 2007 where that lady's image was used without her even knowing about it. But you see her being set up there, "Dump your pen friend," and then Virgin to Virgin, and putting that person in a pretty awkward light without her even knowing about it, because the image was just taken from Flickr. Interestingly, she didn't bring proceedings against Virgin here. She actually sued Virgin in Texas, and that's another story.

(00:49:57):

And so, that's something that you'd need to bear in mind. Now, the reason why it's so important now, in my view, is because of the Voller case, and this case is a case that went all way to the High Court. And effectively what happened was the man, Dylan Voller, was subject to very serious abuse in the Northern Territory Youth Detention Center.

(00:50:21):

The newspaper publications, The Australian, Sydney Morning Herald and others put up... Broke news stories about what was going on, obviously in mainstream media, on TV, but also on their Facebook pages that they controlled and moderated. And what happened was the community responded to their posts in a very... in some of them did, in a very vitriolic and very hateful and contemptuous way. And he was defamed by those comments, but they left them up there and he sued for defamation and the New South Wales Supreme Court and of the Court of Appeals said that, "Look, he..."

(00:51:03):

... appeal said that look, he was defamed by the publishers because the publishers control their page. They can moderate their page. They're responsible for their Facebook page, and they should have known, or they found that they knew that putting out such a hot topic would draw in that type of commentary from quarters of their community. They didn't like that answer so they appealed to the High Court of Australia and Sydney Morning Herald ran that. But unfortunately for the newspaper publishers, they were found to be ... the High Court found that yes, he was defamed. They are responsible for their publication.

(00:51:44):

So once he got the High Court case very quickly we had a settlement in March '22 with Mr. Voller. Don't know what he got, but he would've received some funds. Just on the 6th of June another case, our former deputy premier here in New South Wales, John Barilaro succeeded in a case against Google where Google refused to move Facebook or YouTube videos that had been published concerning him by a comedian. And Google has been successfully sued for that. It's interesting that Google didn't learn their lesson from a case back in 2012, where Google was also successfully sued by another individual who, when you typed his name in, in the image results was published next to a series of well-known Melbourne gangsters. And Google was liable back in 2012 because they didn't remove it.

(00:52:43):

So not quite sure why they fought this one, but there you go. Key takeaway for advertisers and their agencies, of course, is that brand Facebook pages or other social media pages are your responsibility to moderate. And if someone says something in response to brand posts that identifies an individual that is defamatory, then the brand will be liable. Okay? So that is the key takeout that I wanted to say there in this digital world that we live in. Closing out now on law and influencers, law and influencers is fascinating. Whether you consider influencers to be a mainstream channel or not, or the centre of gravity of all campaigns now, whether you think of influencers as a media channel influence the influencers as an art, the art of influence, or however you want to use them in your marketing communications mix, how does the law apply to them?

(00:53:43):

And the cross section of laws applies to influencers, particularly the Australian Consumer Law. There are many, many ways that the Consumer Law can apply to the way influencers work. And of course it's always been there. The Consumer Law has been around since 1979 or something. It's always been there. The critical sections, as I mentioned before, section 18 and section 29. The key questions from my point of view, my respectful opinion, it's twofold. And that's the top right hand over there. Do social influencers need to be accurate and truthful about their testimonials and expressions of personal support? Well they do.

(00:54:26):

They say that they have been to a place or that they use a product and they like a product, that needs to be true. The second issue is of course, with influencers, is the disclosing the rewards, monetary payments and gifts and commercial connections. We'll look at that in a moment. Briefly though, all the other laws apply, copyright, privacy and data, trademarks and defamation. All that will apply in the influencer channel. We don't have time today to take yow how it could apply but they do. Then there's self-regulation. We have self- regulation in Australia, the Advertiser Code of Ethics in 2.7 and Ad Standards determinations. We'll look at 2.7 very briefly in a moment.

(00:55:08):

And then there's a series of voluntary and mandatory codes that apply to influencers. In particular, recently in Australia we've seen some pronouncements on influencers and financial services influencers, therapeutic goods influencers about making testimonials versus endorsements, and what's legal there under the Therapeutic Goods Ads Code, which is just changing and the new one's coming into force on the 1st of July, alcohol ABAC, and then AiMCO as an influencer body we'll look at very briefly. From the Australian Consumer Law point of view, it is very important to understand that there will be times that you must disclose the commercial connection and brands must disclose it, the influencer must disclose it, and the agency helping to do this must make sure they disclose it because everybody can be liable.

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And we don't have a case at the moment where an influencer non-disclosing has been prosecuted by ACCC. We've had user-generated content liability for misleading and deceptive conduct on Facebook from the Consumer Law point of view, just as we've had now with the defamation where a consumer post went up saying something about a product that wasn't right and the brand left it there. We've had cases about modified or moderated genuine customer reviews. We've had fake testimonials and false testimonials on review sites and false testimonials on brand pages being prosecuted. Apologies again if the slide isn't quite showing all of the points there, but the key takeaway is that between '22 and '23, so from now until next year, the ACCC is actually targeting fake reviews and social media influencers who do not disclose that they are paid to promote products they pitch to consumers.

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So we are now seeing, in addition to all of the other prosecutions you've seen from the ACCC and there've been a lot, they've been very, very aggressive. They are now coming after the influencer world. So please bear that in mind if you're in influencer marketing. Some guidance there on when you do need to disclose commercial connections and rewards. It's hard to know, we don't have a case, but a little bit of my guidance is there. Generally speaking, I spoke to you about the dominant impression. If the dominant impression to the consumer, the target audience, is that it's obviously a commercial post, it's obviously someone who's being paid because of the combination of everything that sits on the post or who the influencer is, like they're a brand ambassador or something like that, then it won't be misleading.

(00:58:04):

But if the post is camouflaged as an organic uncurated, unsolicited post, and it's paid for, it'll be misleading. And as I said we haven't had a case, but way back in 2012, something that I found in my files was this Kangaroo Island campaign where celebrities like Matt Moran and Shannon Noll were posting things all of a sudden on their Twitter feeds about Kangaroo Island. And a whistleblower went to Media Watch and said, "Do you know that we have been offered to be paid $750 to deliberately make a post look organic and not endorsed?" It was misleading then, it would be misleading today, and whilst the ACCC didn't commence action then, they did have some hard words to say about it. In fact, the commissioner at the time said, "You do that, it'll end up with a messy end," she said. Anyway, it'll be misleading. It is always misleading to do that.

(00:59:12):

So finally, just the last couple of slides, I've mentioned to you that there is self-regulation in Australia, we have self-regulation, 2.7 of the Advertiser Code of Ethics, the overarching code of ethics for advertising in the self-regulatory realm, says advertising shall be clearly distinguishable as such. And that covers influencers. You can go in and have a look at that more deeply, but the key takeaway is to determine if that applies it's there. The last couple of slides though, are very interesting. So, sorry. I'll just mention, before I move on to the last couple of slides on influencer decisions, there is AiMCO, which is the Australian Influencer Marketing Council, and they have a code of conduct which has some excellent guidance on the use of working with influencers. And also how influencers should work with brands, particularly a section on disclosure and staying safe.

(01:00:10):

If you're following their rules, you're going to be staying pretty safe of the self-regulatory environment and also the Australian Consumer Law and the other laws that I've mentioned as well. Two quick last slides that deal with the Advertising Standards Board that takes complaints from consumers in the self-regulation context. They're not court cases. They're based on prevailing community standards at the time. And we had a complaint. There's been many of these, I'm just giving two examples. One complaint, the determination was upheld. The complaint was upheld, and it was found that Nadia Fairfax, who was posting for Samsung by using the hashtag #workingwithSamsung was not enough to clearly distinguish and identify that she had a relationship. And that wasn't enough. They needed more in that case.

(01:01:06):

And what you can't see in the red writing there is that it's quite possible that would also be a breach from my point of view of the Australian Consumer Law. So if you're not complying with the code, self-regulatory code, you're arguably not complying with the Australian Consumer Law section 18, misleading or sector conduct. However, this one in 2021 was dismissed, and this is a case where we have another influencer for Volvo, Ms. Sefton. She was a well-known brand ambassador for Volvo. There wasn't a huge degree of control that they exercised over what she was doing. They used #Volvopartner, and the combination of all of those things, it was found that it was clearly distinguishable and it was in compliance with the code 2.7 so therefore that complaint was dismissed.

(01:02:02):

But the point I want to make, the final point I want to make is just because you comply with self-regulation codes, like 2.7, or you get a cab number for TV going to air or whatever, doesn't mean that the ad or the post or whatever is complying with the Australian Consumer Law, because they're different. They do follow each other a bit, and in practice compliance with one could be compliance with the other, but you need to assess your social media influence campaigns from the ACL point of view separate to the 2.7 point of view. Because you could comply there, but still the ACCC may believe that you are not complying with their law, which is section 18 and section 29. So please bear that in mind. Apply the tests that I've told you before.

(01:02:59):

Well, ladies and gentlemen, I know I've probably gone a little bit over time and I thank you for persevering with me today. We have done a brief highlights tour of the legal landscape. I've taken you through copyright, the very important area for the future privacy and data, the omnipresent Australian Consumer Law and section 18 and 29. We've touched on spam. We looked at trademarks, the rise of the importance of defamation and bringing it all together and looking at the influencer channel and how the laws can apply there. I thank you for your time today. I'm very much grateful to Unmade for allowing me to give a presentation to the Unmade audience and network.

(01:03:47):

If you have any questions at all, you can always reach out to me or my team. We're here in Surry Hills in Sydney, and we have a lot of articles on these things published at our knowledge centre at our website there. So hope to see you around in the industry at some events. Please make yourself known if you bump into me, I'd be delighted to have a chat with you. So thank you very much.