Understanding Marketing legal requirements .pptx

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1. Comply with legal requirements and organizational and professional codes of conduct 252216

2. Outcomes The qualifying learner is capable of: Preparing marketing documentation which is compliant with legal requirements. Describing codes of conduct. Adhering to the organisational and professional code of conduct. Identifying and understanding ethical issues in marketing.

3. The legal documents most commonly used in the organisation's marketing activities Master Service Agreement A Master Service Agreement (“MSA”) covers the legal terms of an agency’s relationship with its clients. This agreement will typically cover critical terms such as: who owns the work product and when and how such work product will be transferred or licensed to the client; sequential liability (i.e., making it clear that the client will ultimately be directly liable for certain third-party expenses); confidentiality and non-disclosure requirements; nonsolicitation of the parties’ employees and contractors; indemnification and liability; and terms for terminating the relationship While a typical MSA will cover other important legal topics (e.g., invoicing terms, late fees, dispute resolution terms, etc.), the terms that discuss liability avoidance are perhaps the most fundamental to protecting your business and should always be carefully drafted.

4. The legal documents most commonly used in the organisation's marketing activities Statement of Work The details of the services be performed by the agency are typically set out in a Statement of Work (“SOW”), which is incorporated into the MSA. The SOW generally includes business and money terms like: the scope of the services and the deliverables the schedule for delivery of the work the fees and expenses associated with the performance of the services, including whether third party expenses will be included or billed separately The SOW is critical in setting client’s expectations before the work has begun and is often drafted in plain language and presented to a prospective client at the outset of the engagement in the form of a proposal. A well-crafted SOW should also state that no work will commence until the parties have executed the MSA. For engagements that are considered smaller (either in terms of dollar amount or in time or resource commitment), a shorter set of terms that cover the core legal commitments outlined in an MSA might be included in the SOW so that the SOW alone becomes the entire agreement between the parties.

5. The legal documents most commonly used in the organisation's marketing activities Employment Agreement There are a lot of good reasons why every type of business should consider employment contracts. But because your agency will often deal with the development of creative work product that is subject to intellectual property protection, or with work that involves the implementation of processes that are considered confidential in nature, you’ll want to make sure that all of your employees are respecting the agency’s confidentiality requirements and intellectual property rights. So in addition to basic employment terms such as salary, benefits or terms concerning the handling of company equipment, an appropriately drafted Employment Agreement should also cover the following legal areas: work for hire terms regarding ownership of work product confidentiality and non-disclosure requirements whether, and how, representative samples of the employee’s work for the agency can be displayed in the employee’s personal portfolio non-solicitation of other employees, clients, vendors or contractors any non-competition requirements

6. The legal documents most commonly used in the organisation's marketing activities Independent Contractor Agreement It’s a fact of agency life that your talent needs will at some point require you to supplement your internal team of employees with freelancers or specialized independent contractors to fulfill client needs. And for every one of these relationships, you’ll need an Independent Contractor Agreement The Independent Contractor Agreement feels similar in many respects to an Employment Agreement, since it covers legal terms like: issues of confidentiality intellectual property ownership and the work for hire doctrine non-solicitation of clients, employees and other contractors contractor’s representations and warranties indemnification However, unlike an employee relationship, work created by an independent contractor is not automatically considered property of the agency under the work made for hire doctrine (even if the agency has paid for it), and therefore U.S. copyright law requires that ownership must be expressly stated in a writing between the parties. And this agreement can sometimes be used to limit the agency’s exposure to liability by shifting some of the risk to the contractor for claims that arise from the contractor’s work or negligence.

7. The legal documents most commonly used in the organisation's marketing activities Mutual Nondisclosure Agreement Mutual non-disclosure agreements (NDAs) are legal documents that establish a confidential relationship between two or more parties. The purpose of a mutual NDA is to protect sensitive information that may be shared between the parties during the course of their business dealings. The terms of a mutual NDA typically include a definition of what constitutes confidential information, the purpose for which the information is being shared, the duration of the agreement, and the consequences of breaching the agreement. It is important for both parties to carefully review and understand the terms of the agreement before signing it.

8. The legal documents most commonly used in the organisation's marketing activities Newsletter disclaimers These disclaimers can help a publisher to manage the copyright and liability issues arising out of the publication of newsletters. Commission agreements Under each of these commission agreement, one party will pay the other party commission in relation to a particular event or type of event. For example, commission may be paid in relation to the introduction of a customer by one party to the other. It also include clauses covering the confidentiality of information and/or the non-solicitation of connected persons. Sponsorship agreements Under the sponsorship agreements, an organisation may sponsor a person, team, event or other thing in exchange for the provision of sponsorship benefits: access, promotional activities, advertising opportunities and so on. A licence of the sponsor's trade marks is included in both documents, but only the premium version includes a licence of the other party's trade marks.

9. The legal documents most commonly used in the organisation's marketing activities Newsletter disclaimers These disclaimers can help a publisher to manage the copyright and liability issues arising out of the publication of newsletters. Commission agreements Under each of these commission agreement, one party will pay the other party commission in relation to a particular event or type of event. For example, commission may be paid in relation to the introduction of a customer by one party to the other. It also include clauses covering the confidentiality of information and/or the non-solicitation of connected persons. Sponsorship agreements Under the sponsorship agreements, an organisation may sponsor a person, team, event or other thing in exchange for the provision of sponsorship benefits: access, promotional activities, advertising opportunities and so on. A licence of the sponsor's trade marks is included in both documents, but only the premium version includes a licence of the other party's trade marks.

10. The legal documents most commonly used in the organisation's marketing activities Email marketing agreement This email marketing agreement can be used in relation to three different kinds of email marketing service. First, where a service provider is actively managing a campaign for the customer. Second, where the service provider is making available a platform to allow the customer to conduct their own campaigns. Third, where both types of service are being provided. Different legal issues affect the different types of service. For example, in relation to managed email services, the service provider will often require cooperation from the customer. In relation to platform services, the service provider will want to ensure that the customer does not misuse the platform. In relation to both types of service, the parties will want assurances that email marketing lists are being properly collected and that anti-spam laws are not being broken. An optional acceptable use policy is attached as a schedule to this document. It may be used to regulate the use of an email marketing platform by the customer. This document is very similar to our email marketing terms and conditions document, although in a slightly different form.

11. Group Activity Let’s research other Legal Marketing Documents Name at least four documents What are they used for? What information is contained in them? How are they completed? How is information that is needed collected? Who is responsible for completing these documents, and how do you work with them to ensure that you abide to the legal requirements?

12. Laws that relate to the Marketing environment

13. Laws that relate to the Marketing Environment The fundamental and overarching piece of legislation that addresses the conduct of the advertising and marketing industry is the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996). Specific reference to the industry in the Constitution is explicit in sections 9, 16 and 36. Flowing from the broad framework provided in the Constitution are the following Acts: Promotion of Access to Information, 2000 (Act 2 of 2000), Promotion of Administrative Justice Act, 2000 (Act 3 of 2000), Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000). The Consumer Affairs Act, 1988

14. Laws that relate to the Marketing Environment Prohibited products and services Besides for the ban on the advertising of tobacco products, there is no express ban on any other products. However, it is illegal to advertise any products that it is illegal for any person to possess or use under South African law. The Code of Advertising Practice (the Code) does not prohibit the advertising of any products or services that can be lawfully provided in South Africa. The Code's includes prohibitions against advertising that: plays on fear without justification; contains anything that might lead to or lend support to acts of violence; contains anything that might lead to, lend support to or condone criminal or illegal activities; contains content that is discriminatory or perpetuates gender stereotypes in a manner that is not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom; or includes sounds that are likely to create a safety hazard.

15. Laws that relate to the Marketing environment Prohibited advertising methods There are no express prohibitions on any specific advertising methods or techniques. This includes the requirement that advertising should be legal, informative, factual, decent and honest. There are also specific prohibitions against advertising that: plays on fear without justification; contains anything that might lead to or lend support to acts of violence; contains anything that might lead to, lend support to or condone criminal or illegal activities; contains content that is discriminatory or perpetuates gender stereotypes in a manner that is not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom; or includes sounds that are likely to create a safety hazard.

16. Laws that relate to the Marketing environment Protection of minors The Code's general rules in respect of advertisements aimed at children are set out in clause 14 of section II of the Code. These include: clause 14.1 (Children and safety), which provides as a general principle that any such advertising should not contain statements or visual representation that might harm children mentally, morally, physically or emotionally; clause 14.2 (Children's credulity and lack of experience), which prohibits advertisements that seek to exploit the credulity of children or their lack of experience or strain their sense of loyalty; clause 14.3 (Portrayal of children), which prohibits advertising that portrays children as sexually appealing or provocative or in any manner that involves sexual innuendo; and clause 14.4 (Use of children in advertising), which seeks to draw advertisers’ attention to the fact that the use of children in advertisements should also be done in compliance with South African labour laws.

17. Laws that relate to the Marketing environment The Liquor Act 2003 (the Liquor Act) also prohibits advertisements of any liquor or methylated spirits in a false or misleading manner or in a manner intended to target or attract minors (section 9). Similar prohibitions can be found in Appendix A of the Code, which relates to the advertising of alcohol products whose very first principle is a caution against liquor advertising that is ‘directed at persons under the legal drinking age’. Appendix A prescribes additional restrictions aimed at protecting children, including restrictions on the timing and placement of television, radio, cinema, print, advertorial and digital advertisements.

18. Laws that relate to the Marketing environment Credit and financial products Advertisers of capital or financial products are required to observe the general provisions of the Code and to ensure that consumers are fully aware of the nature of any financial commitments that they may be making by responding to any advertisement (clause 6.1 of section III). Advertisers of financial products also bear the responsibility to ensure that their advertisements do not wittingly or unwittingly take advantage of consumers' lack of experience or knowledge of the complexities of financial products (clause 6.1 of section III).

19. Laws that relate to the Marketing environment Therapeutic goods and services The Code does not prescribe any specific rules in respect of advertising claims made in respect of therapeutic goods or services. The South African Health Products Authority (SAHPRA) is the relevant regulatory authority for the regulation of health products intended for human and animal use in terms of, among others, the Medicines and Related Substances Act 1965 (MRSA). The MRSA deals with various matters in respect of medicines and related substances, including provisions that allow for the promulgation of regulations and sector codes in relation to the marketing of those products. The MRSA also expressly prohibits: the publication or distribution of false or misleading advertisements concerning any medicines, medicinal devices or in vitro diagnostics (IVD); or claims to the effect that the therapeutic efficacy and effect of any medicine, medical device or IVD is other than as stated by SAHPRA, or suggestions that any medicine, medicinal device or IVD should be used for a purpose or in circumstances other than stated by SAHPRA (section 20).

20. Laws that relate to the Marketing environment

21. Laws that relate to the Marketing environment

22. Laws that relate to the Marketing environment Consumer Protection Act (CPA) The Consumer Protection Act (CPA) is a South African law enacted in 2008 to provide consumer protection and promote a fair, accessible and sustainable marketplace for consumer goods and services. The act sets out consumer rights, such as the right to equality, choice, information, fair value, and quality products and services, and requires businesses to provide pre-contractual and contractual information, handle consumer complaints and disputes, and adhere to fair marketing and business practices. The CPA also establishes the National Consumer Commission and Consumer Tribunals to enforce the act and provide dispute resolution. The CPA's Purpose The purpose of the CPA is to balance the rights and interests of consumers and businesses, promote responsible consumerism, and ensure a fair, accessible, and sustainable marketplace.

23. Laws that relate to the Marketing environment

24. Laws that relate to the Marketing environment Promotion of Access to Information Act (PAIA) The Promotion of Access to Information Act (PAIA) is a South African law enacted in 2000 to promote transparency, accountability, and the protection of the right to access information. The act provides for a system of access to information held by public and private bodies and sets out the procedures for requesting and accessing information, including the grounds for refusal. The act also provides for the appointment of an Information Regulator to enforce the act and ensure that public and private bodies comply with their obligations. The Promotion of Access to Information Act's Purpose The purpose of PAIA is to promote transparency and accountability by allowing members of the public to access information held by public and private bodies, subject to certain limitations, and to provide a framework for the protection of personal information.