Who is liable if an agency's advertising breaks the rules?

A UK recruitment agency signs off a campaign in outline and leaves the wording to the agency it has hired. The landing page goes up and the paid search runs. Eleven weeks later a letter arrives, addressed to the recruitment agency rather than to the people who wrote the page.

That order of events is ordinary. In March 2019 the Information Commissioner's Office issued a £40,000 penalty against Grove Pension Solutions Ltd over 1,942,010 marketing emails. A specialist marketing agency had sent every one of them on the firm's behalf, and the recipients had given consent. They had given it to the companies holding the lists rather than to the firm being promoted, and the firm being promoted is the one that paid.

So the question worth asking before a campaign is approved is not whether the agency knows the rules. It is which of the two of you the regulator writes to when it turns out somebody did not.

The advertiser is the firm, not the agency that wrote the advert

The Committee of Advertising Practice Code states that primary responsibility for observing the Code falls on marketers, and that others involved in preparing or publishing marketing communications, such as agencies and publishers, also accept an obligation to abide by it. That is a structure of two obligations rather than a transfer of one. The marketer is the party whose product or service the advertising promotes, which for a UK practice means the practice.

The Advertising Standards Authority says the same thing about the evidence when it explains how the system works: marketers bear principal responsibility for what they produce and must be able to prove the truth of their claims. The party that has to hold the proof is not the party with the copywriters.

What a ruling actually does to a firm

Advertising Standards Authority rulings are published on the public record and indexed under the advertiser, so the lasting cost is usually the search result rather than the correction. The rulings archive is open and searchable by company name. It also carries a separate list of organisations that agreed to amend or withdraw advertising without a formal ruling.

Where a UK firm does not comply, the Authority's published sanctions escalate past the ruling itself. Media owners can be asked to withhold advertising space, search providers can be asked to remove paid advertising, future marketing can be made subject to pre-vetting, and the Authority can place its own paid search advertising naming the advertiser. Persistent cases can be referred to Trading Standards or the Competition and Markets Authority. There is also a standing list of non-compliant online advertisers.

Marketing email reaches further than the agency's outbox

Regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 prohibits a person from transmitting, or instigating the transmission of, unsolicited communications for the purposes of direct marketing by electronic mail without the recipient's prior consent. The two verbs are the whole point. The party that presses send is caught, and so is the party that asked for it.

The Information Commissioner's Office is explicit about what that means when the work is outsourced. Its guidance on electronic and telephone marketing states that where a firm asks another organisation to send its marketing, both are responsible, and that enforcement action would usually be taken against the instigator. A firm is likely to be instigating if it encourages or asks somebody else to send its marketing.

Which returns to the pensions case, because it failed in the least obvious way available. Consent existed. It was held by the list owners and it had been given for marketing. What it was not was consent to hear from the firm whose service the emails promoted, because that firm was never named when it was collected. Four questions would have surfaced that before a single message went out.

What can be delegated, and what cannot

A firm can delegate the drafting and the placement. It cannot delegate being the advertiser. What that changes sits inside the practice rather than inside the agency.

Two documents carry most of the weight. The first is a written allocation of responsibility, which belongs with the paperwork that should exist before an agency starts work. The Commissioner's own guidance recommends a contract setting out the contractor's responsibilities and suggests asking for an indemnity against a breach.

The second is duller and more useful: a claims file the practice keeps itself. For every factual statement the advertising makes, the firm holds the evidence and the date it was checked. Where a claim rests on the agency's word, the practice is standing behind something it cannot produce, and the standard the firm can otherwise hold an agency to is set out in what a firm can hold an agency to when results do not come.

When a firm should not be commissioning advertising yet

If nobody at the practice can approve a claim on the day it is needed, the campaign will either stall or publish unapproved, and both outcomes belong to the firm. Fix the approval route before buying the media.

The harder case is a firm that wants a claim it cannot evidence. A practice that wants to advertise a turnaround time it has never measured is not short of an agency, it is short of a measurement, and an agency paid to make the claim land is poorly placed to talk it out of one. Three things have to exist before the money is committed: the claim, the evidence for it, and the person at the firm who signs both off.

An agency that never asks who holds the evidence is showing you something early, which is one of the signals worth walking away from. Partners who would rather test that before appointing anyone can see what we assess before recommending an agency.