Are digital agencies ignoring legalities at their client’s expense?

Digital agencies are expanding and innovating at a rapid pace to take advantage of the increasing demand for their services. This morning’s news about the Brandsh, Cambrient and Stonewall+ merger to create Native is a pretty clear sign of the local digital agency ecosystem’s development and perhaps even its maturation. It also reminds me that, in this push to serve and stimulate local business’ demand for digital services, agencies may be neglecting the unpleasant legalities that impact on their campaigns, possibly at their clients’ expense.

Richard Lovett, Creative Artists Agency

The social Web is an exciting space to work in and it changes pretty quickly. Campaigns designed to take advantage of its dynamics are often innovative and push the envelope both from a marketing and legal perspective. These campaigns often introduce novel legal issues which both underpin the campaigns themselves and must be sufficiently addressed or risk a wasted investment in the campaign’s development, potential litigation for rights infringements and unwanted reputational harm.

So what should digital agencies be doing? My recommendation has always been that digital agencies incorporate a legal component into their campaign conception, planning, development and implementation. Think of it as a matter of prevention very possibly being better than the cure. Introducing a lawyer at an early stage and keeping that lawyer in the loop as the campaign is developed and implemented gives digital agencies the ability to identify and address any legal issues which may interfere with or even scuttle the campaign. Just as the agency’s planning process is designed to lay a good foundation for the campaign’s execution, incorporating legal advice from inception is intended to lay a sound legal foundation for the campaign. It is common sense from a legal perspective and while this approach is not a guarantee that legal challenges won’t arise down the line, it is a way to reduce the likelihood of a sustainable claim arising.

Some agencies are very much aware of the need to cater for legalities and they develop their own frameworks to cater for possible legal issues. Unfortunately this DIY-style process often involves copying terms and conditions from other websites and developing frameworks based on other campaigns. The problem with this is that the “templates” used to develop the agency’s legal framework are often poor copies of other templates or similarly drafted by well-meaning people who lack any meaningful legal training or competence. This is a recipe for disaster.

As self serving as this post sounds, the simple fact is that the legalities that impact on these remarkable campaigns are frequently not settled and require insight into both the law and the digital and social space these campaigns operate in to adequately anticipate and cater for possible challenges. DIY approaches or not taking adequate steps to cater for these legalities at all will only expose clients to a degree of risk they didn’t anticipate and have negative consequences for the clients, their agencies and perceptions of these campaigns generally.


Image credit: Richard Lovett, Creative Artists Agency by Robert Scoble, licensed CC BY 2.0

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