Wondering if your marketing tactics are legally legit? We interviewed our lawyer and Oh My Digital client, Riz from Foundd Legal, to find out!
In case you missed it last week, Katy went LIVE on Instagram with Riz to discuss some common marketing tactics you might be using that could actually illegal (if you’re not doing them the legally legit way)! Are you guilty of any of these?
Watch the video or read the transcription now below.
Watch the Recording: Is my Marketing Illegal?
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Read the transcript: Is my Marketing Illegal?
Katy from Oh My Digital: Hi, I’m Katy from Oh My Digital. We’re a digital marketing agency here in Brisbane and I’m with the amazing Riz from Foundd Legal. She has been our go-to lawyer ever since she launched her business in 2019. Honestly we were lost without Riz before, we don’t know what we did without her. She is incredible and what I wanted to do today is bring both of us together and talk about some things you might be doing with your marketing that you might not realise are actually not-so-legally-legit.
So let’s get into it!
Is it okay to offer an incentive for positive reviews?
Katy: So the first thing I see all the time is that I feel like is a little bit sketchy and a bit of a red flag is when. Brands offer an incentive for leaving a positive review. So can you walk us through is that OK? Is it a grey area?
Riz from Foundd Legal: So it’s a bit of a grey area in the sense that if it’s not disclosed it can be misleading and you will fall under Australian Consumer Laws and get in trouble with the ACCC for example. If you pay somebody to provide you with a review, they need to disclose that, and you need to disclose that you know that they’ve been paid for that review. So just be mindful of that. Disclosure is the best, transparency is the best if you’re going to pay somebody to give you a review.
The Takeaway: Ultimately, the best reviews are those ones your customers leave organically, so focus on generating those! Make it easy for customers to leave reviews by having your Google Business Profile set up, and for eCommerce, a reviews plugin on your website is a must. Remind customers to share their honest reviews and feedback with a great email thank you flow, or text message reminders if your customers are used to hearing from you that way (but only if they have opted-in; more on that below!)
How do I run a social media giveaway or competition legally in Australia?
Katy: Another one that comes up a lot as well is when you’re going to run a giveaway or a competition, particularly on social media. So I know Riz, is it right that in certain states there are extra rules that you might need to make sure you’re following?
Riz: So depending on which state or territory you’re based in, and depending on the prize, giveaway amounts, etc, permits may apply. So it’s always well worth the exercise of checking out the state legislation that may apply to your giveaway. And I also highly recommend having terms and conditions for your competition that are really clear, and a disclaimer to say that the social media platform hosting your competition or giveaway is not involved or endorsing your competition in any way, shape or form. So a little bit of extras there for you, but I highly recommend terms and conditions as well.
The Takeaway: Always check your local state or territory legislation for running competitions or giveaways and make sure to abide by these laws, as well as using your own terms and conditions to protect you and your entrants.
Shop Foundd Legal’s Competition Terms & Conditions template and save 15% off all Foundd Legal templates using our affiliate code OHMYDIGITAL.
Is it legal to use internet memes as a brand?
Katy: Okay, what about using memes for your brand; what if it’s a meme and you’re using an image of a celebrity or something from a TV show… You don’t technically own it so is it okay to use memes if you’re a brand?
Riz: Look, you need to err on the side of caution because there may be copyright in that image. And so it’s best to either have the consent, or create your own. So, you know, just be careful. Just be mindful.
There have been instances where people have been approached to take things down because they didn’t have the right permissions. And even instances where they’ve had to pay a penalty for the use of an image, not necessarily a meme, but a copyrighted image. So a meme can be a copyrighted image. So just be mindful of that when using the memes or any other image that you did not create and you found.
The Takeaway: It’s safest to create your own, and be mindful any image you don’t have a license to use could be subject to copyright.
Can I use an image off Google in my marketing?
Katy: So yes, that was my other point as well. The number of times I still see somebody just grabbing an image of Google or social media and posting it and actually using it for marketing purposes. Is this legal?
Riz: Yeah, OK. So again, be very careful of that because it may be copyrighted. So it’s best to create your own images to use for marketing purposes. It’s recommended you use something original or have a licence to use it. We did have an instance where, unfortunately a client of ours their contractor sourced an image online and used it. They then got approached on behalf of the original copyright owner and had to pay a penalty for that use because it was used in their marketing for their advertising.
There are businesses now out there that you can pay a fee to who will monitor your intellectual property for you, and they take a cut as well. And there have been businesses like that out there, obviously for people with deeper pockets like celebrities, to monitor their intellectual property online as well. So be careful!
The Takeaway: No! Get your own original images created, or use stock imagery that you have an appropriate license to use for marketing purposes.
Do I own the copyright on marketing materials created using AI?
Katy: What if we’re using AI to create an image or write copy or something like that? I mean technically it was created by the AI tool, not by us. So who owns the copyright? Is that actually clear?
Riz: No, it’s not, and that’s the problem. So under Australian law as it currently stands, I’ve not been made aware of any changes. The language in the legislation is that it has to be a human creation. So unless changes happen in the future, anything that’s created by AI, you might not necessarily be the owner that copyright. So it’s a bit of a grey area at the moment. And also just be careful because you’ve got to ask yourself, well, where is all of that content coming from? Has it been sourced from other databases, cleaned, scraped from websites or something? So just be mindful of what you’re utilising when you use AI. And the legislation has always been behind advances in technology, so yes, it will catch up.
The Takeaway: At the time of writing, you might not! But watch out for future changes.
Is it legal to send marketing emails or SMS to people who aren’t subscribed?
Katy: I’m sure we’ve all got an email in the past where we think, ‘I don’t actually remember subscribing to that organisation’… So what about emailing people when they’re not actually subscribed or you don’t have consent?
Riz: Don’t do it. Please don’t do it. So that person can complain about you and you could get in trouble. There are penalties, there are fines and quite substantial ones as well. So just be mindful of that. There are requirements to have either express or implied consent and the implied consent can be a little bit confusing to understand, so just be really mindful.
When you are marketing to people, one of the things I would recommend for example, when you give away a freebie, you should be clear when you’re collecting that email for the freebie that you’re also going to be collecting and using it for future marketing purposes. So therefore that person can’t say, ‘I only signed up for the freebie and you’re now sending me all this’. So add that extra wording in your pop-ups as well and remember that just because somebody’s bought from you, or somebody’s worked with you, doesn’t mean they have signed up to marketing emails from you. And that’s where the implied consent can become a grey area as well. So just be mindful of that and don’t be sending marketing emails to somebody who hasn’t consented. All right, Absolutely don’t do it.
Download Foundd Legal’s Free SPAM Act Flowchart here for more guidance on sending marketing emails legally.
Katy: That’s such a good tip and just from a marketing perspective; I would say another good thing to do is be super clear about what their email will be used for, and how it will be used. Whether it’s a Facebook lead form or a form on your website, you can always add an extra little tick box so they have to explicitly consent and tick that box. You can also use like double opt in in your email system as well so that it sends a confirmation email to confirm that they definitely wanted to subscribe.
Riz: And also, there’ll be businesses out there who are listening to us today who also have clients in Europe or the US. And their legislation is slightly tougher and stricter than Australian legislation as well. So just be mindful, to include that wording that we were saying to add to your pop-up forms or any kind of lead generation forms that you have. So that it’s very clear that they’re not only getting that freebie, but they’re going to be getting future marketing emails as well and allow them to unsubscribe, of course, at any time.
The Takeaway: Always get explicit consent from your audience to send them marketing emails or SMS.
Is it illegal to share an affiliate link or sponsored post without a disclosure?
Katy: Another one I see a lot is influencers or affiliates not disclosing that they’re sharing an affiliate link or that they’re being paid for a promotion. So what would you say about that?
Riz: Yeah, they’re gonna get in trouble and so will the brand as well, potentially. There are again, hefty fines involved. There have been recent changes and tightening of the laws around that as well, especially in certain markets like the beauty industry. You’ve got to be really careful of the language you use as well as I mean that’s a whole topic in your own right. We could do a different live on that!
You do need to disclose and be very clear in that disclosure. You can’t hide it somewhere in your captions or whatever, you need to be really clear on that disclosure and you need to ensure in your contract terms that the influencer abides by those laws and regulations as well so that yet neither of you get in trouble.
And also it’s kind of, I don’t know if icky is the right word, but you do need to be transparent because then you’re not creating a good relationship with your potential clients, the audience. And having that lack of transparency is just not good all round. Not to mention the legal implications, but also the relationship implications in regards to your brand reputation.
Katy: Especially today’s consumers; they are really savvy and they will call that stuff out and your brand will be cancelled very quickly. So just just don’t do it.
The Takeaway: If you’re an affiliate or influencer, always disclose if you’re being paid or receiving an incentive to endorse something. If you’re a brand, always have a solid contract in place that sets this expectation for everyone you work with!
Working with an influencer? Protect your business with Foundd Legal’s Brand and Influencer Agreement template, or Brand and Agency Agreement (if you’re hiring them through an agency).
Save 15% off all Foundd Legal templates using our affiliate code OHMYDIGITAL.
Do I need Terms & Conditions on my website?
Katy: What about not having terms and conditions on your website?
Riz: OK, there’s a couple of things here to unpack. Website terms and conditions protect both you and visitors to your website. It’s really important to have them. They make you look more professional.
So for example, whether you’re eCommerce or a service provider, it’s important to have clear terms or any refund policies, or cancellation policies. For example, if there are bookings through the website, you definitely need a cancellation policy. As an eCommerce businesses, you’d be crazy not to have clear terms and conditions that set out your refund policy and your shipping policy.
I wouldn’t buy from you if you didn’t have any of those things on your website. I always check in the footer to see. So it’s really important from the point of view of protecting you as much as it is protecting the visitors and customers. It sets out your boundaries and expectations of people who visit your website.
It also protects your intellectual property because it’s telling everyone, hey, if you see any content on my website where there’s a blog, where there’s images or video content, I own it. You can use it while you’re visiting, but you can’t take it and then use it in your business.
The Takeaway: If your business has a website, it must have a terms & conditions page to protect your business and your website visitors.
Shop Foundd Legal’s Website Terms & Conditions for Service Providers template we use on our website.
If you’re an eCommerce business owner, check out their Essential Legal Kit for eCommerce.
For our beauty business owners, check out the Essential Website Kit for Beauty Biz.
Don’t forget to save 15% off all Foundd Legal templates using our affiliate code OHMYDIGITAL.
Katy: Riz, thank you so much. You are such a fountain of knowledge. I had to do this with Riz because every time we chat about these things, she is so knowledgeable and just has all of the answers, and it makes just running a creative business a million times easier.
On that note, Riz has actually just opened doors again to The Legally Legit Lounge, which is definitely where you need to be if you are running a creative business, whether you’re a photographer, you have an ecommerce store, if you have an agency like I do, anything like that; The Legally Legit Lounge is perfect to literally have Riz in your back pocket anytime you have a random question or you just need an answer to something.
I know in my business that’s always been a big source of stress when you’re up at night thinking, how do I handle this or how do I prevent that kind of situation?
How to get legal support for your business from Riz at Foundd Legal
In The Legally Legit Lounge, you can:
- Ask Riz unlimited questions, similar to the questions she answered for us today. You’ll get a response pretty much the same day, if not within 24 hours.
- You can also browse previous questions and answers in the FAQ library. Over the years since Riz opened up Foundd Legal she has created a library of bite-sized video FAQs, so that even if it’s the middle of the night and you’ve got a question that’s really bugging you, you can access the FAQ library and likely find an instant answer there. Much better than panic googling!
- You’ve also got access to essential templates and checklists to make managing your legals a breeze.
- A monthly mentoring session with Riz; that’s an hour every month where you get to deep dive on a specific topic and ask all your burning questions.
- Acces to an incredible community of other creative entrerpenuers on the private Facebook Group
- Plus, there is now a platinum membership, which includes $5000 worth of templates from our website template shop.
As you will see from this interview, Riz is an absolute fountain of knowledge and we could not run our business without her. If you’d like access to Riz in your back pocket for any ad-hoc legal questions that pop up (and they will pop up), doors to The Legally Legit Lounge are currently open! Learn more here (affiliate link).
General Advice Disclaimer: This article is for general information purposes only and should be used solely as general guidance. It does not and is not intended to represent legal advice or other professional advice.
