Ethics and Legalities of Digital Marketing: Defining a Marketing Essential
As a business, it is important to operate within the boundaries of ethical and legalities in digital marketing. As digital marketing takes centre stage is marketing strategies, knowing where to draw the line can be a bit blurred.
As an organisation that operates under a certain set of laws, how do you engage your audience while still the right professionalism and tone?
Defining Ethics in Business
To define ethics in business, with focus on digital marketing, it is useful to consider what good ethical standards look like in a company – and the reasons why they should be applied – as well as consider some examples and what they tells us about ethics in business.
Also, looking at the international laws and/ or regulations and helps with understanding application in specific digital marketing areas like email/ SMS, websites and influencer marketing.
Finally, this allows a clearer definition of ethics in business, particularly in the context of digital marketing, to be outlined.
Poor Ethical Behaviour – Examples
Turning to a broad view of the subject: if digital marketing can be defined as promoting a brand online using a variety of methods then ethical considerations come about through the challenge to be effective as often as possible in the face, potentially, of others using methods which are not ethical.
Brief examples of this could be poor ethical behaviour such as an influencer – undisclosed – using an intern or hired overseas help, ‘black hat’ SEO cheat techniques, buying email lists, clickbait (eg, the title does not match the contents of a video).
Ethical behaviour can extend off-line into everyday business practices by a company itself: ethical farming, animal testing, how suppliers treat their staff, pricing strategies, how customers are informed about products (for example, where harmful plastic beads are used in countries where there are no regulations preventing their use).
The final example is of note as digital marketing is a global industry, with differing laws in each country such as America’s tough anti-spam email laws.
If some decisions could lead to profit and are not illegal why, then, should companies not take advantage of these opportunities? Simply, a case of ‘win today, lose in the long run’ applies.
The ultimate goal is to achieve the same success without the reputational risk, and possible harm to others.
‘Don’t Be Evil’
Because digital marketing changes and grows more quickly than laws and regulations can be written – for example, emails are well-established but online advertising is still developing – perhaps Google recognised the need to be on the right side of history in the present, rather than waiting, when they adopted their first code of conduct motto of “Don’t be evil”.
A ‘twist in the tale’ exists in that any type of ethics lapse finding its way into open view will quickly become a digital marketing issue as the public reaction will quickly spill onto social media and even change how people respond to messaging in the future.
For example, the Volkswagen emissions scandal – involving the company’s cars having a test setting allowing an emissions standard to be falsely passed – saw owners take to social media. In the UK, where owners feel that their compensation was less than that given to US owners and that the recall fix has reduced the performance of their car, new marketing by VW continues to be swamped by replies from angry customers.
The Domino Effect
This shows that the simple business ethics truth of how you treat your customers and others potentially having a domino effect on your whole operation very much applies. Is there a line, then, between business ethics, marketing ethics and digital marketing ethics? It would appear that all three are extremely closely related and arguably amount to being the same subject and issue.
In fact, all three are linked to the question of what a business stands for and how businesses see their own values: honesty in things said by the company (be it avoiding clickbait or honesty about products), respect in dealing with customers and others (also applies to suppliers – see the Apple overseas low-pay manufacturing issue) and openness (including avoiding compounding an issue by being found to be disingenuous or lacking in good faith in the response).
If values are abandoned, an ethical lapse may occur. This may or may not be found out, but it is certain that reputation is very difficult to regain after such an incident.
Ultimately everyone – shareholders and investors, employees at all levels and suppliers – must buy into a firm ethical policy for a company.
That domino effect could begin anywhere, and potentially reach every part of the business.
What Exactly is Digital Marketing? And Where Do Ethics Come in?
Digital marketing is the process of promoting a brand using a variety of online tactics. These tactics include having a website, blogs, social media, mobile marketing and more. Although similar to traditional advertising, the reach occurs almost instantaneously and is more engaged with the public. The advertising is more sophisticated and can be tailored to specific audiences.
There are a number of things to consider when dealing with ethics of digital marketing. There are a number of ethical traditions:
Personal character-driven and decision-driven
Considering the greatest good. This is making a decision that is judged as ethical or unethical based exclusively on outcomes or consequences.
Putting the consequences aside. This is when a decision is judged as ethical or unethical based solely on the intentions or reasons of the party making a decision.
In the bigger realm of things, it may be wise to follow standards of conduct based on the American Bar Association (ABA). They have specific guidelines that discuss advertising, rules for blogging, social media, and marketing activity. While the rules change based on state, having your legal specialist develop a set of rules and regulations based on these documents can cover you in the event any legal matters come to light.
Here is a general overview:
- False statements
When advertising and using social media, it is important to be as transparent and truthful as possible. Users appreciate brands that can own up to their flaws, missteps and mistakes.
- False promises
You should be able to stand by every statement you make regarding promotions and advertising. If you are advertising a prize, make sure you stick to the terms and conditions.
There are a number of ethical issues in digital media, including:
- There are a number of vulnerable customers.
- Benefits vs. costs
- There is a lack of transparency
- Ownership of information
- Concerns of trust and integrity
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What are the Ethical Issues in Social Media?
With so many ethical and legal issues present in the digital marketing space, how can companies successfully balance these issues in that space? There are a number of things that can be done to counteract ethical and legal issues for your organisation.
First, the company must be committed to being socially responsible for every move made through digital media. If not, the company faces legal implications. This could be as simple as having a disclaimer throughout your digital advertising pieces. Your marketing team should operate with the highest ethical standards, straying away from the risqué or questionable posts that could harm the brand.
In every promotion or contest, there needs to be a disclosure so your audiences will not feel as if they have been deceived. This is very simple. Either have a link that leads to the terms and conditions, or add a line at the bottom with pertinent information to make sure the organisation has operated with the best ethical judgement and the highest legal standards. Because brands are accountable for disclosing information to their audiences, it is wise to take the proper steps to remain protected. Here are a few suggestions:
This should be provided to all the influencers and bloggers the company employs. It should include the best practices you follow as an organisation, along with other facts about the company. This way, your company will have legal standing in the event a blogger or influencer misrepresents the brand.
Have an Authentic Network
This is key. If you have a strong network of users who are familiar with the brand and your ethical standing, you will not have to worry about whether or not they will misrepresent your brand.
Use the Word “Sponsored”
This is a quick and easy way to ensure your digital media is always covered. Using the word “sponsored” on all your digital campaigns and other media will alert your audiences it is a sponsored post from your brand.
Open the Lines of Communication
When using digital media, it is best to maintain an open door policy and communicate with your audiences on a consistent basis. This not only helps build brand integrity, but can help in the event of a mishap. When audiences trust you, it is easier for them to forgive a mistake, rather than having disgruntled customers that make things worse by sharing their experiences on social media.
Don’t forget, of course, the requirements of GDPR: something which should be covered by specialist support for your business.
Cloud Storage and Security Methods
You must make sure all customers know you have protocols in place to secure their sensitive information. There should also be disclaimers on how this is done.
This is by far the most complicated issue facing digital marketing. Protecting your intellectual property through trademarks and copyright is crucial in this day and time. It is just as important to make sure you have not used anyone else’s trademark or copyright. How can you accomplish this?
- Register your trademark
- Copyright your marketing language
Under the FTC, all advertising and marketing must be above board with no elements of unfair or deceptive advertising. There is also an anti-spam law in effect in the US, which is called CAN-SPAM which could affect your global digital marketing efforts. There are a number of guidelines under the CAN-SPAM act that should be followed for compliance.
Having an legal adviser working with your marketing team will assist in drafting ethics and legal policies for your organisation that will protect you in every aspect of your digital marketing efforts. Understanding the ethics and legalities of digital marketing can help your company avoid litigation and questions about your ethical integrity now and in the future.
Ethics Laws and Regulations: A UK View
It is valuable to note that, in terms of ethics, law sits below ethics. That is, a decision may not be illegal – but that does not make it the right decision for a business.
While law focuses on win-lose disputes, the goal of ethics is a win-win scenario.
The prevalence of the internet in business has caused new ethical debate, and the requirement for ethical awareness, for many companies and individuals: issues like Kodi (downloading in breach of copyright), privacy (cookies, personal data) and direct marketing (email and SMS) have created a new ethical landscape in a digital world.
‘State of Anne’
Turning to the rules and regulations underpinning modern ethical decision-making, 300 years ago the Statue of Anne (AKA Copyright Act 1710) was the first statute to provide copyright by government and courts rather than individuals. It remained in place until 1842. Prior to this the Licensing of the Press Act 1662 was kept in renewal by the Stationers Company.
Today, the overaching concept of copyright is major element of ethical behaviour for digital marketers. While material can move into the public domain (despite a Trans Pacific Partnership attempt to move the period to 70 years) after 50 years after the author’s death a blanket approach of ‘assume something has copyright unless known otherwise’ is used by ethical digital marketers as it is accepted that once a piece of work is created it is subject to copyright.
The complexities of the law itself, and the strength of lobbying to change the law, are neatly summarised by the below summary of Disney’s work to campaign on the issue.
Taking the example of images used with permission, such as Creative Commons images, the emphasis is on attributing the image correctly and using it within the terms of the permission given (such as with/ without any modifications). Still, due to the huge volume of visual material used in social media and digital marketing, as well as the continual move towards more and more video content, it is easier than ever to breach copyright unless a firm ethical stance is taken in a very practical and ongoing way.
Meanwhile, the collection of data and therefore breach of privacy has also become easier and easier. Law-makers were slow to act on this issue, however businesses have been forced to become more conscious due to a 2011 EU Directive commonly called the Cookie Law which states that a person must be told that a cookie is in use, leading to the ‘informed consent’ approach bringing privacy by design to the fore.
A company must ask itself: what do we plan to do with the information? Will we store the information? The user must be informed, and informed as soon as possible (along with the relevant national security body) if any personal data breach has taken place.
Email and SMS
It should be noted that the Republic of Ireland, UK and USA all have different rules governing such issues.
Email and SMS marketing also have clear ethical requirements, such as gaining clear consent from the recipient in advance, keeping clear records, following local laws (eg, there are more stringent rules in the USA) and ensure the required footer information is included. Also, when working with another company on email marketing both are responsible and must check each other for compliance such as ‘soft opt-in’ customers being given the option to opt out and purchased marketing lists being cleaned by sending an email to see who unsubscribed.
On social media, it is noteworthy that companies are responsible for libel even in posts by others. Meanwhile, the use of influencer marketing will mean a need to watch for ethical issues such as non-disclosure of payment/ reward by the influencer (a declaration should be made and a disclosure policy published) and fake reviews. It will be the responsibility of the business to ensure the influencer follows the law.
The overall privacy and electronic communications regulations are overseen by the UK-based Information Commissioner’s Office who have ownership of rules around marketing calls, emails, SMS, faxes and cookies. Information is passed to the marketing industry via sources including online factsheets.
Companies must also have awareness of the consumer protection arrangements (regarding competition, sponsorship and similar commercial issues) overseen by the Competition and Markets Authority alongside the Advertising Standards Authority.
Every country will also have regulatory bodies and an awareness is needed of each when operating in that jurisdiction: for example, the Advertising Standards Authority for Ireland.
Summary: Ethics and Legalities of Digital Marketing…a Brief Definition
Ultimately, while traditionally marketing and advertising were governed by rules such as fair and truthful advertising materials the need to understand that children may not understand exaggerated statements, the digital marketing ethical climate requires a new definition.
An overall definition, then could be the following: ethical digital marketing can be defined as a win-win approach to marketing through the use of decision-making – on-line and off-line by a business and by all persons connected to the business at every level.
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