During the festive season, many businesses come up with innovative advertising campaigns with a bid to attract customers. The Christmas season has become very commercialized and advertisers are not to be left behind.


The main aim of advertising is to sell. Sometimes advertisements do not really focus on the welfare of the consumers as the main motive is to make sales. This has put advertisers and consumers on a collusion path as consumer rights activists argue that some advertisements take advantage of innocent consumers by misrepresentation. Some advertisements are inappropriate considering the cultural and societal norms of a country. An advertisement that goes down well with a segment of the population in a developed country may not go down well in Africa, due to cultural differences. Many countries are enacting stringent laws on advertising….with the spirit behind such laws being consumer protection. The consumer has always been viewed as innocent and vulnerable.


The advertising industry through whatever medium faces a number of legal issues.  These issues are peculiar to either the selling and advertising departments or to firms that specialise in advertising. Before creating an advertisement a number of legal issues must be considered and adhered to. Firstly in creating the advertisement the basic rights of citizens must be upheld as contained in the Constitution. Advertisements that are deemed to be discriminatory whether on gender, race or tribe must be avoided at all costs. Advertisements that promote hate speech should be avoided completely.


There is no specific law for the advertising industry. However a number of laws interface with advertising and which advertisers must always be aware of.  Consumer law is another law that must be taken into account. The rights of consumers are now enshrined in the Constitution. An advertisement must not be seen to be harmful to consumers. Other than upholding the basic rights of consumers, when doing an advertisement ensure that the advertisement is as factual as possible. False and misleading advertisements should be avoided at all costs. The tort of misrepresentation in advertisements has attracted a lot of litigation in the West. A new Consumer law has been scheduled as one of the laws to be passed by Parliament. The trend in Kenya might change with consumers being able to recover from advertisers as a result of misleading advertisements.


The issue of false and misleading advertisements may also attract sanction by the professional body that regulates marketing. Comparative advertising must be done with a lot of care. Comparative advertising occurs where an advertiser compares his products to a competitors ‘and urges the consumer to choose his goods over the competitor’s. It must be done with the provisions of the Competition Act in mind. Unfair trade practises must be avoided in advertisements….misleading comparative advertisements must also be avoided.


Intellectual property laws are important for the advertiser. Many advertisements are innovative and meet the criteria for copyright. Advertisements must always be copyrighted by the seller or the advertising firm where applicable. This means that no third party can use the advertisement in an unauthorized manner. Further the moral right of the creator must be upheld, meaning that use of your advertisement in a satire is illegal. The advertisement should also be trademarked where applicable.


Advertising firms must be cautious as to the extent of disclosure made to clients. When making presentations to potential clients, always ensure that a confidentiality agreement is already in place and where possible that your firm has ownership of the copyright in the work. Sometimes ownership of the work has to be negotiated beforehand….the client might insist on full ownership.


In making the advertisement unauthorized use of a third party’s intellectual property must be avoided. For example improperly including copyrighted songs or trademarks owned by others is illegal.


Depending on the mode of advertising used, a number of regulatory approvals have to be issued. For example distribution of flyers cannot be done without consent and approval of the Municipal Authority. It is also illegal to put up sign posts in public places without the requisite fees and licenses issued by the Municipal authority.


These are just but the main legal issues that advertisers must keep in mind when making advertisements.


The writer wishes you a Merry Christmas and a prosperous New Year.

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