Copyright, Privacy, Fair Trading & Respecting Taonga: Key points from the Marketing Law Series 2021

If you missed the Marketing Association’s sold-out Marketing Law Series, here are the key regulatory updates and evolving issues flagged by the keynote speakers which will affect marketers. 

By Courtney Devereux, Clear Hayes, an official Content Partner of the Marketing Association. Courtney is the former editor of StopPress magazine and current editor of Nak-Ed magazine. 

I know, getting your campaigns and activities through the lawyers is one of the least popular parts of any marketer’s job. But the best brand custodians know that a good understanding of the rules avoids nasty surprises and can actually enhance creativity.

In 2022 there’s going to be a few new things to consider around sharing of UGC, protecting customer privacy, respecting Māori taonga, and more. I’ve distilled the tidbits from the Marketing Association’s recent Marketing Law Series on these topics below - but I’d recommend anyone operating in this area takes time to watch these sessions and get up to speed.

Let’s dive in.

1) The Copyright Act is Changing

In 2018 the 1994 Copyright Act was reviewed, and it was recognised that an update was needed to ensure its regime was fit for purpose in light of the rapidly changing technological environment.

Sarah Lee, Senior Associate at Simpson Grierson, says the review is currently on hold due to the delay in UK free trade agreement negotiations, but an agreement was reached recently on the key elements and what it means in terms of copyright and intellectual property.

“What will be of the most interest to the marketing industry would be that the term of protection for anything under the law of copyright would be extended by 20 years so that it will amount to 70 years. So, watch this space, and be prepared for the upcoming changes,” she says.

This will be the Act’s first significant change since 2004 and will have a direct impact on marketers, agency heads and creatives that deal with copyright on a day-today basis.

The change also affects copyright infringements as they relate to user generated content online - affecting how brands interact and use social media content.

Anchali Anandanayagam, Partner at Hudson Gavin and Martin says the industry needs to be thinking about the complexities of copyright in an increasingly digital world.

“Social media and digital is a very powerful marketing tool and is only going to increase,” she says. “But there are some risks that you need to be aware of when you use UGC to ensure that you are protected. The goal is to understand the terms of the platforms that you're working with, who owns the user generated content, and who can do what with it.”

2) The Commerce Commission doubles down on Fair Trading

In April of 2021, the Commerce Commision made the decision to break out its customer department into three separate branches. Venessa Horne, General Manager Fair Trading for the Commerce Commission says this was done in order to connect and engage easier with the general public.

“Now we have a competition branch, a Fair Trading branch and a credit branch. It’s a recognition that each of those three different regulatory roles requires slightly different types of tools and a slightly different way of engaging with people that we are regulating as well,” she says.

For Horne, advertisers now need to be cautious of specific vagueness and misleading customers by not being truthful and accurate with your advertising claims.

“One of the really important things is it doesn’t matter what the fine print says, the overall impression given by an advertisement is the most important thing. If overall it is misleading it can be a breach of the Fair Trading Act,” she says.

3) Changes to the Privacy Act will affect all

The enforcement mechanism of the Privacy Act has changed, explained Privacy Commissioner, John Edwards during his keynote presentation at the Marketing Law Series

“Before if somebody wanted to make a complaint that you breached their privacy, they had to show the action you took breached one of the information privacy principles, and that the action caused or was likely to cause some actual loss, damage, adverse impact on benefits, some significant loss or humiliation or significant injury to feelings,” he says.

That's changed in the Privacy Act 2020 which now has in it a mechanism for the Privacy Commissioner to enforce these obligations, whether or not they cause some actual harm or loss to that degree.

“The Privacy Act 2020 has given us much more flexibility and for the ​​first time in 28 years we now have the ability to enforce this law by issuing compliance notices,” says Edwards.

Those in breach of the Privacy Act who fail to comply with a notice can face fines of up to $10,000.

“The Inquisitor will probably know that I advocated much more substantial sanctions when the private sectors put it through,” says Edwards.

4) The continued importance of respecting taonga Māori in marketing 

Commonly known as the flora and fauna claim, Wai 262 was a Waitangi Tribunal report about the recognition of rights around, and control of, traditional Māori knowledge. Although it was first lodged in 1991 and not released until 2011, the guidance it provides is still relevant to marketers wanting to incorporate taonga Māori, or Māori imagery, into their brand.

“What the report said was that it is necessary to protect Māori culture and identity because that is how we protect New Zealand culture and identity,” says Lynell Tuffery Huria, Intellectual Property lawyer at Kāhui Legal.

“It imposes an obligation not just on Māori to protect our cultural identity, but introduces this idea that we all have a responsibility to uphold our culture and identity because it's good for the entire country, not just Māori,” she says. 

The Wai 262 claim and report is one of many resources available to the industry to consult when considering including any form of taonga Maōri in a marketing or branding strategy. The problem is that Māori act as kaitiaki, or custodians of knowledge, which includes the idea of collective ownership on behalf of the community, and the current intellectual property framework gives little protection to this practice. 

For Tuffery Huria, iwi and Māori are kaitiaki, but we all have a responsibility for upholding our culture as kaipupuri. “As kaipupuri, we need to respect the kaitiaki relationship and at the same time, maintain the authenticity and integrity of the taonga, so there is a role for all of us to play here,” she says. 

“It goes back to the report that this is all of our interest. It’s not about preventing use of te reo or the Māori culture, but it’s about supporting kaitiaki, protecting and fulfilling our obligations to maintain our culture and identity.”

Written by Courtney Devereux, UK Client Lead, Clear Hayes