Distinction Task (U20): Discuss the legal and ethical constraints within the planned campaign.

It is important to familiarise ourselves with the legal and ethical constraints that may potentially be
placed on our advertising campaign when promoting the Pause app. Reassuringly, we will analyse the
various legal and ethical factors that need to be discussed and how we can adapt or prevent issues
that may occur throughout the entire stages of production. Moreover, it is Mode Media’s responsibility
to regulate and understand the causes of legal and ethical issues and be able to, with confidence,
show how we as a company are trustworthy enough to create a campaign that is suitable and
appropriate for both the client and the consumer. We will also cover examples of cases where
companies/ businesses have breached legal and ethical constraints who by then succumb to loss of
reputation and business, and explain how we will prevent these instances from happening for the
Pause campaign. In addition to this, this report will cover areas linked to ethical and legal issues, such
as the ASA, Copyright, risk assessments, representation, stereotyping and moral responsibility of the
company.

All advertising and marketing regardless of the type of media used to promote a product or service
should comply, follow and act on these guidelines that have been set by regulatory bodies such as
Gov.uk and ASA (Advertising Standards Agency). These advertisements must be an accurate
description of the product/ service, legal, decent, honest and should be socially responsible.
The ASA (Advertising Standards Agency) is an independent advertising regulator established in the
UK. In summary, its main role is to ensure that advertisements across the UK follow and understand
the Advertising Codes (rules). Other roles include that they respond to any complaints or concerns
from businesses or consumers and investigate whether these advertisements breach the Codes that
ASA has placed. ASA can then put a ban on ads that are presented to be harmful, offensive and
irresponsible. On the other hand, ASA’s subsidiary, CAP (Committee of Advertising Codes) is
responsible for documenting the Advertising Codes. Members of CAP are representatives of the
advertising industry, coverage of advertisers, media owners and agencies. As we are responsible for
the creation of the advertising campaign, we shall follow these rules and conventions up to a
professional, honest and decent standard. We shall also confidently communicate with CAP and ASA
by letting them know the type of content we would prefer to advertise for the Pause campaign.
Misleading Content. As the product is an app that specialises in mental health and wellbeing, it is vital
to avoid any misleading or dishonest content which may deceive consumers into buying/ using a
product that does not function or work the way it was promised. For example, using illustrations were
showing the product in a picture as more exaggerated than it actually is. As a result, the use of
misleading material can put off potential buyers and limit the amount of interest towards the product or
service. This can then lead to the company going out of business, loss of reputation and loss of future
sponsorships/ opportunities for the business to accelerate. Another example of false and deceiving
advertising would be using an incomplete comparison by saying/ depicting that a product is better
than another but explaining nor providing valid evidence as to why it is better. Imitating popular
website interfaces can be a detrimental tactic that could lead to major mistrust between the user and
the company. This, in particular, could lead to legal repercussions where the authentic/ actual
company will then sue or receive compensation from the imitator for potentially causing damage to
reputation and prestige.
As an advertising agency, we can learn from cases where they have caused misleading content for
consumers from their ads. An example of a case study about misleading advertising would be when,
in 2013, Kelloggs claimed that their brand Frosted Mini-Wheats helped improve ‘’’ children’s
attentiveness, memory and other cognitive function’’’ and that the cereal could improve ‘’’a child’s
focus by nearly 20%’’’. The false advertising claims led to Kelloggs agreeing to pay $4 million, and
according to the Associated Press, people who consumed/ purchased the product (during the time the
advert ran between January 28th 2009 and October 1st 2009) could claim $5 per box with a maximum
of $15 for each customer.
Another case study about misleading advertising was when on March 29 2016, the agency FTC
(Federal Trade Commission) had filed a lawsuit against Volkswagen because they stated that the car
company had deceived their customers ‘’’ by selling or leasing more than 550,000 diesel cars based
on false claims that the cars were low-emission, environmentally friendly’’’. It has been allegedly
stated that the car company had been cheating on its emission tests for around 7 years as well as
also adding software in the car that would intentionally reduce harmful exhaust when it was being
tested. This scandal led to Volkswagen facing a $90 billion fine for breaching the Clean Air Act.
Misleading content can be found in many forms such as newspapers, magazines, television, radio
commercials, websites, shop signs, direct mail letters and catalogues, which can also be easily
exploited to audiences locally and nationally. Misleading content can be harmful because it will lead
consumers to think negatively about certain brands and companies. Incorrect information within the
advertisements could lead to the introduction of negative stereotypes and the representation of
specific groups and societies.

As our app is solely aimed at a relatively young demographic, we must ensure that all our content
within the advertising campaign is clear, truthful and accessible for all who consume it. We will follow
guidelines set by regulatory bodies like ASA to make sure we do not deceive our audiences. Ways of
avoiding misleading advertising include:

- To not use exaggerations (‘’puffery’’) about the performance of a product since customers
may not take the product literally. For the Pause app, we will avoid using amplified claims like
‘this app will make you 100% better in your wellbeing and mental health’ or ‘this app will
change your life straight away’.
- Include sufficient evidence to back up your claims on the product. Usually, apps/ products that
specialise in health and wellbeing will likely need robust trials to approve that the product will
benefit the consumer. In this case, it is important to communicate closely with Peak Media to
discuss future focus groups where we are able to analyse the effectiveness of the product.
We will then potentially use the data and include it in the cross-media campaign for proof of
the app’s effectiveness.
- Avoid omitting material information. Therefore we must not misguide by covering up material
information or portraying it in an unclear, enigmatic or indecipherable manner.
- To ensure that comparative claims against other competitors and marketers are fair and
verifiable. Moreover, we shall include a signpost so competitors or consumers of the product
are able to access information on the comparative claims as well as a website address where
information on the verification of these claims is provided.

Freedom of Information Act

Freedom of Information Act 2000 is an Act of the Parliament of the UK where it provides the public
with the right to access the activities of public authorities unless there is a valid reason for them not to
do so. These public authorities include government departments, local authorities, police forces, state
schools and the NHS. All recorded information includes computer files, emails, photographs, printed
documents, letter and video or sound recordings. Organisations or industries, such as the news
industries, campaign groups or a company are able to make requests on the information held by
authorities under the act. Mode Media will, therefore, clarify in the advertising campaign that users
can access information with articles, videos and blogs about mental health and wellbeing- which will
all be under the Freedom of Information Act.

The Data Protection Act

The Data Protection Act states that everyone has the fundamental right to the protection of personal
data and the right to access data that has been collected that concerns the individual alongside
having the right to have it rectified. Examples of personal data include race, political opinions,
religious beliefs, genetics, health, sex life/ orientation, ethnic background and trade union
membership. Therefore, all information that is collected must be:

- Used in an honest, lawful and transparent manner

- Used for specified or explicit purposes
- Kept up to date and accurate to access
- Only used when it is necessary
- Handled securely and is protected against any unauthorised processing, damage or loss.

In addition to this, individuals have the right to see what information the government and organisations
have about you. These include having the right access to your own personal data; prevent or stop any
processing of the data given, and how and when the organisation is using your data. Examples of
breaching personal data include:
- The lost or theft of USB drives, computers, mobile devices or hard copy notes.
- An unauthorised individual gaining access to devices such as your laptop, computer network
and email account.
- Send an email or message which includes personal data to the incorrect person.
- An employee copying a list of personal contact for their personal use.

Consequences for breaching the Data Protection Act could result in severe legal action and
punishment for the company where they could receive a large fine and imprisonment. This will also
lead to the company, to lose its reputation, loss of monetary value and the possibility of going out of
business.
In the client brief, the functionality of the app offers a personalised interface where users can use the
diary function to monitor and keep track of their mood and symptom, which, as a result, can receive
targeted support from the app. This means that these functions may require personal information and
data that must be securely kept confidential. To resolve this, we must include information on our
adverts to clarify that users must accept the app’s personal data policy and allow permission to
access their data- which, of course will be protected under an encryption-based security protocol,
such as a Secure Sockets Layer (SSL).

Copyright, Designs & Patents Act 1988

The 1988 Act gives creators their musical, dramatic, literary and artistic work the sole right to have the
authority and control of how their creations may be used. The main types of material that are covered
in this Act specifically include literary works, such as manuscripts, lyrics from a song, computer
programs, leaflets, newsletters and articles etc. For artistic works, this includes paintings,
photography, architecture, drawings, diagrams, logo and maps etc. Other works include typographical
arrangement of published editions, sound recordings and films. Creators of the materials have, in

©️
addition, the right to be identified as the author of the work, as well as object to distortion and
alterations. Authors/ original creators of the material can mark their with the copyright symbol ( ),
and also including their name/ logo, date of creation. Copyright is used to prevent people from
copying; illegally distributing copies of materials without consent or credit; making adaptation of the
work and uploading it onto the internet without permission. Those who commit these acts are subject
to copyright infringement (this can also be referred to as piracy)- these violations may lead to legal
action against them. Depending on the severity of the crime committed, those who are charged with
copyright infringement may face a hefty fine up to £50,000 and potentially prison time for up to 6
months.

(Far left) Photograph

Mannie Garcia – 2006
(via The New York
Times); Poster: Shephard Fairey – 2008 (via Wikipedia).

An example of a copyright infringement case was The Associated Press vs. Fairey. This was where
artist Shepard Fairey produced the ‘Hope’ poster of President Obama in 2008. This poster became
notable and highly popular during Barack Obama’s presidential campaign. Yet, in January 2009, the
photo which Fairey had allegedly based the design of the poster, was taken by an AP freelancer
Mannie Garcia. The AP (Associated Press) demanded compensation from Fairey, who, in defence,
believed to have used fair use and claimed his work did not distort or reduce the original photograph’s
value. As a result, in January 2011, under a private settlement, the AP and Fairey agreed to split the
profits for the work.

During our production stages of our creating the advertising campaign, it is inevitable that we will use
elements of assets such as illustrations, graphics, and logos that have been copyrighted by an
individual or company. Peak Media (our client) in particular will hold copyrighted material, which may
include its logo, diagrams of the Pause app and software code for a software application. It is vital to
ensure that all copyrighted material from Peak Media and other organisations have been notified that
we may use their material for the sole purpose of promoting an app. In order to avoid negative
consequences like copyright infringement, it is recommended to purchase a CPA (Copyright Licence
Agency) licence which will allow us to copyrighted material on a daily basis and for copying or taking
out extracts. If there is a situation where we cannot obtain a CPA, it is advised that we must write
directly to the owner/author of the copyrighted material/ creation. Permission slips and consent forms
will also be necessary for proof that we have the owner’s authorisation.

Intellectual Property Rights

Intellectual property refers to the material and work which can be treated as a piece of physical
property or asset. IP protects a person’s or company’s name of products or brands, inventions, design
or look of the product and the ideas you write, make or produce, from being stolen or copied. The
types of IP protection included are copyright, patents and designs- these are all things that a person
or company created using their imagination and innovation. In order to own intellectual property rights
you must have: created the product which meets the requirements of a copyright,a design or patent;
already bought IP rights from either creator or the previous owner, and have a particular brand that
could be a trademark. Usually, trademarks exclusively identify a creation as belonging to a company
alongside the recognition of the company’s ownership of a brand- these trademarks help differentiate

®️
between different brands and their company’s. Famous companies such as Kellogg's and McDonald’s
often trademark their brands, using a ‘ ’ symbol to indicate the brand is in full ownership which
cannot be used unless permission is granted from the rightful owner. Unauthorised use of one’s
intellectual property can result in a hefty fine and/or prison sentence.

In our case, all pieces of work such as an image, script, article, graphic shall be registered under the
UK’s Intellectual Property Office (UK IPO) to show our claim of the creation. We may also consider
using a patent to protect the way our and Peak Media’s product works as well as what it is made from,
what it is used for and what it does. It is pivotal to also register designs with elements that include
colours, patterns, textures, icons and typefaces, to avoid people from stealing and selling the products
without authorised permission.

Permission slips

Permission slips are a form that is given to an individual or company in which they provide their
consent to be included in a product such as film, TV show, advertisement etc. During our advertising
campaign, there is a possibility where we may include people (mainly those that fit the targeted
demographic of the app) in our products (such as the magazine advertisement), therefore permission
slips (also can be referred to as a consent or release form) are needed, which will allow their image or
voice to be used. Signing these forms shows that the signer acknowledges that the company is
conducted professionally; is over the age of eighteen and certifies that they are now breaching
additional contracts by participating in the photoshoot. Those who are under the age of 18 will be
issued a minor release form where parents/ carers will authorise that the child is allowed to be
recorded. For photoshoots, a location release form will have to be issued where owners of a specific
location will grant us to use their land during or production stages. Failure to issue permission slips
can lead to individuals or companies wanting compensation or forcefully taking down the product
because you did not receive their consent to record their image and/or voice.

Risk assessments
Risk assessment is crucial during the production stages of a developing product- this is because it
methodically allows individuals and businesses to investigate the different work activities and consider
what could potentially go wrong in them. It also allows the production team to find ways to reduce and
prevent risks of accidents from happening within the workplace. During a risk assessment, here are
numerous things to consider, which include:

- Who within the production team or outside the team may be harmed and exactly how
- How the production team is already doing to prevent these risks from happening
- Further action that may need to be put in place
- Individuals, groups or companies who will carry out these action to prevent/ stop the hazards
- When exactly the action is acted upon.

Examples of situations which could ultimately lead to an accident would be if a person from the team
trips over a wire or a piece of equipment, or perhaps when someone slips on a puddle of water during
the production stages. Failure to conduct a risk assessment increases the likelihood of both
employers and employees being prone to injury and other hazardous/dangerous situations. This will
also heighten risk of halting production, as well as facing large fines against the company responsible
for allowing or causing the risk to happen. Mode Media, shall, with great confidence, extensively
conduct risk assessments within and outside the workplace to ensure that all employers, employees
and the population involved in the production of the advertising campaign, to be safe and secure.

Representation & Stereotyping

Representation is another subject to discuss with great sincerity and professionalism when it comes to
the creation of media products. Representation in media can be defined as how all media products
like TV, film, books, social media, radio and advertising portray different and specific types of people,
societies and communities. Communities including women, LGBTQ+ people, body types, religious or
non-religious groups, neurodiverse people, people of colour etc are often examples that are
misrepresented and portrayed in a specific way. Having representations of communities with certain
characteristics and traits in the media often lead to the creation stereotypes. Usually, stereotypes can
create a negative impact on people or communities as some of these generalised ideas become
stigmatised. An example of stereotyping would be if a company created an advert where only women
actors were using a vacuum cleaner or a domestic appliance- this would allude to the idea that only
women should do the cleaning. In addition to this, there are many ethical issues in mass media that
people face on a day to day basis.

In the client brief, it follows that the target audience is to be between the ages of 16 to 22 years old
who are in ‘part-time or full-time education’, which also covers all genders, ethnicities, behaviours and
cultural backgrounds. Therefore, all media that we produce and create must be as inclusive as
possible and make sure that there is plenty of representation amongst genders and ethnicities. As the
product’s main purpose is to improve mental health and wellbeing, it is essential to avoid including
any stigmas about the topic of mental health and wellbeing as it may lead to individuals being
offended and in distress. These stigmas will ultimately lead to individuals feeling discouraged, causing
them to feel more isolated because of fear, alongside making recovery difficult since the media often
portrays them as outsiders. Furthermore, other ethical issues such as shockvertising can cause
danger to both the advertising campaign and the consumer, mainly because it can become subject to
arguments as well as creating negative associations and feelings. The use of shock advertising could
stimulate people to cause offense as it tends to violate social ideas and personal views or interests.
Therefore, in our campaign, we will not be using shock advertising mainly because our demographic
is relatively young, and using this extreme method could distress and anger people. Another reason
being is that our goal is to promote a wellbeing app that will benefit young people without the input of
alienating and violating sensitive topics such as mental health.
To prevent misrepresentation and negative stereotypes upon our target audience, secondary
research and perhaps primary research, such as focus groups, would be a beneficial way to
understand individuals and how their communities should be represented/ introduced into the media.
Another idea to consider is to attempt to challenge popular stereotypes that are frequency found in
mass media. Having unfamiliar stereotypes helps develop a better appeal and approach to various
groups and communities, for example, more men portrayed as carers, who stay at home and take
care of their children. Showing representation in the campaign will lead consumers to feel welcomed
and valued as they are being recognised through the media; therefore, there will be more attraction to
the product.

Responsibility
Essentially, it is our moral obligation to ensure that the product we create embraces all communities
and social groups, by avoiding using misconceptions and negative stereotypes. Moreover, it is our
main responsibility to make our advertising campaign to be as honest, truthful and decent for both
client and consumer, so that there are no unlying issues in the future such as legal action. In order to
prevent further issues from occurring, we shall follow guidelines from regulatory bodies such as the
Advertising Standards Agency, which will teach us the ways we should present the cross-media
campaign appropriately and effectively.. We shall also conduct extensive research and testing for the
Pause app campaign in order to educate ourselves on subjects such as mental health, wellbeing,
demographics, media platforms and advertising techniques.
In terms of the appearance of the advertising campaign, we will ensure that all designs, graphics, use
of language and technique of promoting the app is age appropriate for the audience. Most importantly,
it is our sole responsibility to purchase, credit and receive permission for all copyrighted and
registered material, so that all legislations or regulations are met. GOV.uk in particular, will help us to
understand the laws and ethics of advertising, which will help prevent involvement in legal action
against us (the advertising agency) and the ad campaign.

References Used

18 False Advertising Scandals (businessinsider.com)

Misleading advertising - ASA | CAP
03 Misleading advertising - ASA | CAP
Your Rights under the GDPR | Data Protection Commissioner
Data protection - GOV.UK (www.gov.uk)
https://www.startuploans.co.uk/business-advice/what-is-copyright-law/#:~:text=If%20found%20guilty%
20of%20copyright,the%20infringement%20has%20an%20impact.
https://ico.org.uk/for-organisations/guide-to-freedom-of-information/what-is-the-foi-act/
Marketing and advertising: the law - GOV.UK (www.gov.uk)
Copyright, Designs and Patents Act 1988 - Wikipedia
How copyright protects your work - GOV.UK (www.gov.uk)
https://www.copyrighted.com/blog/protect-intellectual-property
What Are the Different Types of Ethical Issues in Advertising? (bizfluent.com)
List of Ethical & Legal Issues When Advertising | Your Business (azcentral.com)
Ethical Issues in Marketing - Tutorialspoint
https://www.nicva.org/data-protection-toolkit/templates/personal-data-breaches-are-you-prepared#:~:t
ext=Examples%20of%20a%20breach%20might,data%20to%20the%20wrong%20person
https://yourbusiness.azcentral.com/difference-between-unethical-ethical-advertising-6071.html
https://www.tutorialspoint.com/business_ethics/ethical_issues_in_marketing.htm