In the old days advertisers had to buy music and other content for their ads. They had to buy media space to run their ads. And an ad nearly always looked like what it was. If occasionally a print ad looked too much like editorial, the editor insisted the word “Advertisement” appeared at the top of the page.

But in the digital age, access to material and media has become so easy that advertisers risk forgetting that the old laws still apply.

Three recent events have highlighted this shift.

1. A video uploaded to YouTube by ad agency Leo Burnett, showing an internal creative exercise, had to be quickly taken down because it used music without permission or payment.

Shouldn’t a traditional agency know about music copyright?

2. Online media publication mUmBRELLA reported that “Ideas agency” Tongue, which recently rebranded from Ikon spin-off New Dialogue, has been forced to pay $22,000 to the communications regulator and make a legally enforceable undertaking about its future conduct after arranging for spam mobile messages to be sent on behalf of client Coca-Cola.

Shouldn’t a digital agency know about spam?

3. An article by Julian Lee, marketing editor of the Sydney Morning Herald, quotes Mathew Liu of YouTube as saying, “We hope that over time our advertisers will blur the lines between advertising and editorial.”

Didn’t John Laws and Alan Jones get into hot water over this?

Lee goes on to quote Freehills legal firm partner Sue Gilchrist. “Advertisers are going to have to be very careful in this space, as the fact that they have planted an ad and it is not made apparent (to viewers), in itself, could be seen as a contravention of the Trade Practices Act.”

That means that even viral films (created as marketing) that are not “addy” enough may be in breach of the code!

So while the digital sphere is incredibly exciting for marketers and their suppliers, it cannot remain a legal cowboy town forever.

The basics still apply:

  • Music (or images) used publicly must be paid for.
  • You can’t spam.
  • An ad has to obviously be an ad.

Kids creating mash ups may get away with it. But don’t think the old rules don’t apply in cyberspace, especially if you represent a large company.

Peter Fray

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