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How to navigate the minefield of advertising law
As social media platforms change at the speed of light, regulators are playing a “chasing game” to update advertising guidelines. Here, an associate highlights how it is moving with the times.
Malavika Santhebennur
Isabella Orlic is an associate at BlackBay Lawyers in its media and defamation law practice, an area that is evolving with the advent of social media. Ms Orlic told The Lawyers Weekly Show that businesses that advertise their brands and services on digital platforms (including social media) approach the law firm with “niche” issues.
“Australian legislation is unfortunately still trying to catch up to these new, really unique issues presented by operating in these online spaces.
“So, we’ve really geared and expanded our practices to help businesses, brands, or even individuals who operate and advertise on social media so that they can stay ahead of any new regulatory changes, any crackdowns that are coming their way.”
Staying abreast of the regulations and legislation could not only prevent the client from facing adverse reputational impacts but also engender trust with their audience and target market, Ms Orlic pointed out.
“We’ve really been following the regulated trends and market trends as well to see how we can help them and how we can provide a more holistic legal service for our clients who operate in this space,” Ms Orlic said.
What’s out there in advertising law?
Australian regulators have been attempting to crack down on and control the types of products and services that can be marketed on social media through avenues like the Australian consumer law.
This prevents brands and individuals in trade or commerce from engaging in misleading or deceptive conduct and applies to all sorts of advertisements, Ms Orlic explained.
Alongside this, the Australian Association of National Advertisers (AANA) has a code of ethics that regulates all advertising, including traditional video, audio, and online media.
“In section 2.7 of that code, it requires advertisements to be cognisant that they don’t camouflage the fact that their content is advertising,” Ms Orlic said.
“There’s this positive obligation on brands and individuals to disclose any sponsored content or any arrangements entered into by influencers or content creators. We’ve got some pretty good guidance from the AANA about what hashtags could be relevant to state to audiences that this is actually paid advertising.
“So, we know a hashtag such as ad or branded content is OK, but hashtags of sponsored or sponcon or gifted is really vague, and that would be in breach of the code.”
New guidelines for cosmetic surgeons
Some industry bodies create and release codes and guidelines specific to their own profession.
For example, following an independent review into the cosmetic surgery sector in 2022, the Australian Health Practitioner Regulation Agency (AHPRA) and the Medical Board of Australia released guidelines for registered medical practitioners who advertise cosmetic surgery.
While guidelines released prior to this one already prevented the making of false, misleading or deceptive claims in advertising or any claims about specialist registration, the new guidelines – which came into effect on 1 July 2023 – clarified the responsibilities and liabilities of registered medical practitioners who advertise their services, Ms Orlic said.
One of the guidelines covers titles and claims about training, qualifications, registration, experience, and competence. It states that “only a registered medical practitioner who holds specialist registration in a recognised specialty may use the relevant specialist title in advertising”, and “only a registered medical practitioner who holds a type of endorsement can claim to hold or describe themselves as having that endorsement”.
“Another interesting guideline is that now advertising must not offer any incentives or gifts or discounts that would encourage people to have cosmetic surgery, whether or not the terms and conditions are also available,” Ms Orlic said.
“As is before, testimonials have always been prohibited in the advertising of regulated health services, but the liability of health practitioners in this area have been clarified. So, practitioners need to be really careful that they don’t engage with any sort of third-party testimonial in any shape or form.”
Under these guidelines, it would be inappropriate for the health practitioner to share stories posted by patients on their social media profiles and interact with any testimonials (which could include liking and commenting on posts, tagging, and being tagged).
Furthermore, the guidelines state that images that are likely to give the impression that they represent the outcome of a surgery are not to be used as this can be misleading, idealise cosmetic surgery, and/or increase unreasonable expectations.
Examples of inappropriate use of single images include naked bodies or body parts or bodies in lingerie or swimwear, stylised single images, such as those with ‘mood’ lighting, soft filters or black and white images, and images of models or celebrities.
Constant change is exciting
Ms Orlic enthused that the evolving nature of advertising law excites her as each day is different from the last.
“There’s always new information or guidance or some really interesting dilemma or issue that a client may have. I think it’s a really dynamic area of law,” she said.
She concluded by urging other lawyers to do their research to stay abreast of not only the regulatory and legislative changes but also the client’s industry and how changing advertising guidelines could impact their brand.
To listen to the full podcast featuring Isabella Orlic, click here:
