Tim O’Callaghan is partner in Druces LLP, specialising in advice to the fashion and luxury goods business. In this month’s column, he discusses the legality of guerrilla marketing techniques
First it was Gail Porter’s naked backside on the Palace of Westminster, followed some years later by a provocative challenge from the Australian cricket team to the English, projected onto Big Ben, taunting them ‘not to forget the Urn’ when travelling down under to play the Ashes. Most recently, Ann Summers cheekily projected its advertisements onto competitors’ shops in the last shopping weekend before Valentine’s day.
Guerrilla marketing techniques are becoming more and more popular with brands who want to present their message in a new and revolutionary way. But how legal are these activities?
As well as projecting advertisements onto historic buildings, competitors’ shops and even clouds, new guerrilla marketing techniques include, reverse graffiti (which, basically involves blasting grime off a payment in the shape of your brand-name or marketing message). Other methods include ‘viral marketing’. This involves sending messages via Bluetooth, for example, to thousands of people at concerts or sporting events, thus reaching out to people in a different and often surprising way. As many in the advertising world confirm, repeated exposure to a brand’s name or message can have an effect on our subconscious, which can be translated into money in the till for the brand.
These new techniques are no doubt interesting and original but they are nonetheless advertising, and advertising law still applies. This means that any advertisement, irrespective of how it is transmitted, must be: an accurate description of the product, legal, decent, truthful, honest and socially responsible.
Some notable members of the intimate apparel world have, in the past, fallen foul of the obligation for adverts to be ‘decent’. M&S had to pull one of its lingerie ads in 2011 for being sufficiently explicit as to be indecent, after numerous complaints were made to the Advertising Standards Authority.
In that same year, a television ad featuring Gisele, for the lingerie brand Hope, was banned in Brazil for being demeaning to women. In the ads, titled ‘Hope teaches’, the model gives her husband bad news such as “honey I’ve crashed the car”– first fully dressed (which they teach viewers is wrong), then wearing lingerie (which, according to Hope, is right).
The guerilla marketing techniques referred to above are less likely to offend against decency as some lingerie advertisements have been found to in the past because the content is usually more limited, and often linked to a twitter campaign, as was the case with the recent Ann Summers ads hashtag #AnnSummersDay. It is interesting that these advertisements, whilst not falling foul of the traditional objection to many lingerie adverts – decency, offend against other laws. Most notably, the planning regulations.
Planning Practice Guidance states that ‘lasers, search lights, beams of light and projected illuminated advertisements need express consent from planning authorities’. Other marketing initiatives that require such express prior consent include large ‘wrap’ advertisements (where buildings undergoing major structural work are shrouded in a large and temporary advertisement). Not only do such adverts require the express consent of the local planning authority; the Planning Regulations also state that ‘no advertisement is to be displayed without the permission of the owner of the site on which they are displayed.
Therefore, any readers planning a similar guerilla marketing campaign to that run by Ann Summers should, for it to be legal, obtain the prior consent of:
1. the local planning authority;
2. the competitor on whose building the projected advert will be displayed;
3. The highways agency for any reverse graffiti on the pavement.
The penalty for failing to obtain these consents includes a fine of £2,500 and a daily fine of £250 until the advert is removed. In addition, the owner of the building on which the advert is displayed could bring an action in nuisance and the Environmental Health department may be able to stop any projections on the grounds of ‘light pollution’.
It is hardly in the spirit of a ‘guerilla marketing’ campaign to write to the planning authority, local authority and owner of the buildings on which you want to project to get their consent. In fact, it is highly unlikely that any brand wishing to use these advertising tactics will bother to get any consents at all (they are extremely unlikely to be forthcoming, for one thing), but anyone considering such a campaign should keep in mind the possibility that they may have to pay a fine. Although, perhaps they will calculate that if their campaign gets as much free publicity as the Ann Summers campaign received it will be worth paying the fine!