SA Australian Law - Scope of Liability in Advertising

[Luke7]

I’m a direct response copywriter and new in the business. I was recently approached by somebody in the cosmetic surgery business who wanted me to write some google ad words, squeeze and landing pages. There was a note that I would be advised on the legal aspects of the project in terms of what I would be allowed to say and what would be illegal to say in this particular industry.

What I would like to know is this: What is the scope of my accountability as a copywriter in Australian Law? What if I were to write something that turned out to be illegal. Would I be responsible for it, or is the responsibility of the company/individual running the advertisement to make sure that all statements are true and that they conform to the relevant advertising laws/regulations? What if my client gets fined? Would he or she be able to sue me? Would he or she have a case?

What if I’m required to write an advertisement for something like an over-the-counter drug, or health product, that makes some claims for its effectiveness based on spurious or deliberately falsified research? Again, would I be responsible, or is it my client’s responsibility to ensure that the claims can be substantiated?

 

[Sophea]

Hi Luke7,

I would use some sort of short agreement with your clients whereby you get them to agree that they bear all responsibility to comply with relevant industry advertising laws and regulations and that you are not responsible for any liability resulting from the content that you provide to them howsoever arising and to indemnify you for any such liability.

Normally if something was to be non-compliant, the regulatory body or other would come to your client first and they could then join you as a third party to seek indemnity from you. However, they would have to prove that they relied on you to provide compliant content. If you can set it straight at the outset that you are not the one responsible for doing this, you will go a long way to protect yourself.

 

[Luke7]

Hi Sophea,

Thank you for your response. I know that agreements are always a good idea, but unfortunately, clients tend not to be particularly happy about signing and returning them. Especially for small assignments.

Your answer seems to confirm that it always the responsibility of the individual/company to seek legal advice with regard to what can and cannot be said in a given advertisement and to inform the copywriter accordingly.

Now, when you say that my client would have to PROVE that he or she relied on me to provide compliant content, does that mean that in the absence of any agreement between us, it would be virtually impossible for him or her to obtain any compensation from me if the content I provide turns out to be non-compliant?

Usually when I work with clients I ask them lots of questions abut their product/service via email, so most of the information comes from them. Often if I'm not sure about something I wrote e.g. some feature/benefit or even guarantee, I make a little note within the actual advertisement asking my client to check that it is true and correct. I'm assuming this act alone would give me sufficient protection. Am I correct in assuming this?

 

[Luke7]

I do have an agreement drawn up by a lawyer to comply with Australian law, but so far I've done work for clients in Canada and UK. In the event that a client wanted to seek indemnity from me would they have to do it here, in an Australian court of law?

 

[Sophea]

Hi Luke7,

With regard to ...

Now, when you say that my client would have to PROVE that he or she relied on me to provide compliant content, does that mean that in the absence of any agreement between us, it would be virtually impossible for him or her to obtain any compensation from me if the content I provide turns out to be non-compliant?

No. I would not say that this is impossible.

Usually when I work with clients I ask them lots of questions abut their product/service via email, so most of the information comes from them. Often if I'm not sure about something I wrote e.g. some feature/benefit or even guarantee, I make a little note within the actual advertisement asking my client to check that it is true and correct. I'm assuming this act alone would give me sufficient protection. Am I correct in assuming this?

And yes while this may suggest that you are placing some responsibility back on the client to check the work, I would not rely on this for protection.

While the chances of this occurring are unlikely, if or when it does happen, you want to be able to extract yourself from the litigation very quickly - i.e. before someone is tempted to join you. Because even if it isn't your fault you may be dragged through the process, and this will cost money. It's up to you, of course, but I would be getting something in writing no matter how much bother it is.

 

[Luke7]

Thank you so much, Sophia. It looks as though I will need to get my clients to sign and return the agreement every time.

Cheers

 

[Luke7]

Sorry, there is one more thing I forgot to ask. I'm assuming that an electronic signature on the agreement document emailed back to me will suffice, and there is no need to get my clients to physically sign it with a pen and scan it before emailing it back to me. Is this right?

 

[Sophea]

yes usually any indication of agreement to your terms would suffice.

 

[Luke7]

That's good as it will make it somewhat less of a hassle.

Once again, thank you for your help.