6 Ways to Risk-Proof Your Business Marketing

Practical Tips for Prudent Brand Management


Matt Shearing | 5 February 2019

You’ve done all the hard work. You’ve iterated on your products, honed your message and made sure that your services are appropriate for the market that you’re going to target. You’ve paid for experts to develop your documentation and checked with your insurer. Now it’s time for the marketing.

Believe it or not, this is one of the riskiest stages in a business workflow. Everything you’ve done up to this point has been internal – within your control. But once you begin marketing your products and services, you’re making promises and trying to meet the expectations of real people.

How you advertise can have big consequences if you don’t take some precautionary steps. Here are six ways to risk-proof your business marketing.


1. Ask yourself if what you’re promising is really accurate

Before approving any advertisement, social media post or website page, it’s worth reading through it and asking yourself if it’s truly a reflection of reality. This is particularly relevant for websites and social media. There’s a belief, especially among marketers, that as long as you put disclaimers everywhere on your material, you’re safe. Unfortunately consumer law doesn’t work that way.

While disclaimers are a useful tool if you’re looking to clarify something which may be misunderstood, they’re not a silver bullet. They won’t, for example, protect you if what you’re promising doesn’t match up with what you’re actually delivering. Likewise, overselling or inducing a customer using information that isn’t entirely true can be considered misleading and deceptive conduct no matter how much small print you have.

It’s increasingly the case that companies are held responsible for published material regardless of what’s in their terms of use or disclaimers. This isn’t only because most customers won’t read the fine print, but also because there’s an expectation now that your hidden terms will be consistent with what you’re saying in the open.

In short, make sure your marketing and web presence reflects reality. Avoid hyperbole, superlatives and claims which aren’t backed up by fact. If you can take that out of your marketing, you’ll help lawyers like me breathe a lot easier at night.


2. Build a profile of your ‘worst case’ consumer

Traditional marketing uses various techniques to evoke certain feelings and reactions in potential customers. Most consumers have an ‘in-built’ filter for many of these techniques. For example, when they see something advertised as the “#1 Product for (x)”, they don’t actually assume that it is the ultimate, unequivocal number one product in its field. Rather, they understand that’s just standard marketing talk for ‘we think it’s pretty good’.

Notice I said most consumers have this filter? There are a small minority that may see that advertisement for “#1 Product for (x)” and either feel or truly believe that it should be the best product they’ve ever used. While this may seem unreasonable to those of us who’ve spent life bombarded by this type of advertising, consumer law backs them up.

Generally, 10% of the customers cause 90% of the issues, and it’s this 10% that I suggest you build a profile of. Get in a room with a whiteboard, role play a particularly troublesome customer and ‘show’ them your marketing material. Ask what kind of assumptions they may make if they see your marketing and what they could use against you later if they have a bad experience. Once you’ve mapped that out, adjust your collateral accordingly.

Starbucks advertising

A hard statement to take seriously if you’ve ever had any other coffee.

I recommend making sure everything passes the ‘worst customer’ test before it goes out. While it’ll take a little longer and likely mean you have to iterate more on your marketing than you normally would, it’ll be worth it in the long run.


3. Have Policies for your Marketing and Social Media Teams

Marketers are great. They get excited about your product, make it look a million dollars and know exactly how to evoke positive feelings in potential customers. Likewise, having someone to manage your social media can really help increase customer interaction with your business. What they generally don’t think about is minimising your risk.

If you’ve got a marketing or social media team of any size, you should consider having policy documents for both. These will set the guidelines for how your teams interact with your customers and provide some ‘best practice’ advice for risk mitigation. I’d recommend they deal with at least the following:

  • What your expectations are;
  • Appropriate marketing and post content;
  • What may need a ‘second set of eyes’ or approval from executive level;
  • Who moderators are and what they should be looking out for on social media platforms;
  • When making promises on behalf of the business is appropriate;
  • Tips for responding to bad comments and reviews;
  • Tips for avoiding discriminatory, inflammatory or potentially controversial content; and
  • The Australian Privacy Principles and disclosure of information.


4. If you’re running competitions or exchanging resources for user details, make sure you’re across competition, privacy and data obligations.

Competitions can be tricky because you can fall afoul of obscure regulations which are a hold-over from an earlier time. Regulations vary in Australia from state to state on this front, but generally a ‘game of skill’ competition will be a lot easier to manage from a compliance and risk perspective than a so-called ‘game of chance.

Likewise, offering resources in ‘exchange’ for personal data can have difficulties. For starters, the new GDPR regime in Europe (which applies to anyone offering services to EU citizens) places some restrictions on how you can ‘induce’ users into giving over their personal data. Previously, most websites would ask users to put in their name and email to receive free e-books or other perks, and would automatically be signed up to a mailing list. Best practice now is to at least have a separate check-box which gets their permission for the mailing list, and allow them access to the resource regardless of their answer.

Photo of EU Flag and Building

Europe’s new privacy laws place strict new requirements on companies worldwide.

You must also be careful about what data you retain and how you manage user requests for that data. The best way to do this is with a Privacy Policy and (if needed) a Terms of Use.


5. Have a robust Privacy Policy and Terms of Use

Privacy Policies and Terms of Use are your first line of defence against potential privacy or security complaints. They should set out the way you manage data, what you may collect, how your platform/service will be used (if applicable) and what a user can expect from you when they engage with your content.

Some things you should be communicating to your user within your Privacy Policy and Terms of Use:

  • What data you take and why you take it;
  • Where that data is stored (AWS, Azure, Digital Ocean etc);
  • How that data is stored (encrypted vs unencrypted);
  • Who has access to that data;
  • When that data is shared;
  • How a user can get access to their data;
  • If you will sell that data to any third parties (and on what terms you’ll sell it);
  • How you are securing that data; and
  • How long you retain that data.

You’ll also need to consider things like GDPR and the recently passed Assistance and Access legislation when developing your unique policies and terms.


6. Have Your Marketing Reviewed

One of the easiest ways to mitigate risk across the board is to have someone on your staff (or if you’re a sole trader, your spouse or a trusted friend) who you consider pretty ‘straight shooting’ to review all of your marketing before it gets the green light. Give them a mandate to be critical and get them to make suggestions on toning down ‘marketing speak’. While you shouldn’t completely remove hype or excitement, this will probably help to find a middle ground which you’re both relatively comfortable with.

If you’re a larger company or selling in an area which carries particular risk (such as financial or retail services) consider getting your legal advisor to review your marketing to make sure it matches up with your consumer law obligations and your other policies and terms.


One Final Bit of Advice

Generally the more customers are spending, the higher your risk is. I’d recommend weighing your review decisions accordingly. If it’s something minor, you can probably afford to leave it up to your team’s discretion (with a policy in place, of course). For the more major things, I’d recommend you (or someone else in an executive/leadership position) always having a look over it before it’s approved.



Matthew Shearing

Matthew Shearing

Matt is a lawyer, consultant, podcast host and speaker. His passion is helping individuals and businesses understand, manage and overcome the challenges of doing business in the digital age.

He advises companies on many aspects of business and technology law, with a particular focus on commercial relationships, cyber security, risk management, compliance and brand protection. He also runs a podcast, hosts a meetup and consults in the area of blockchain technology.

If you’re looking for legal advice, please get in touch below.

* Note –  The views express here are my own and are opinion only. They don’t constitute legal advice, and shouldn’t be relied upon without first obtaining specific legal advice catered to your situation. Neither do they constitute the views of any other party, including any employer or company.

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