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The ASA have again this year issued warnings to companies creating Halloween or Bonfire Night themed adverts. The ASA have reiterated that unless it is an ad promoting a safety message, fireworks must not be shown as being used irresponsibly in advertising. Not showing responsible use can include showing fireworks being used alongside alcohol consumption, or without adult supervision where children are involved.When it comes to Halloween advertising, the ASA have said that care should be taken not to cause undue fear or distress to the audience and to target the ads appropriately.Last year, the ASA ruled that Spotify’s Halloween themed ad, which featured a doll brought to life by Camilia Cabello’s popular song ‘Havana’, breached the Committee of Advertising Practice Code rules on social responsibility and harm and offense. The ASA ruled that “although violence was not explicitly shown in the ad, it was implied,”, as the doll stalked teenagers around a house, and that this made the ad “not suitable to be seen by children because it was likely to be distressing to them.” It is worth bearing this in mind when designing Halloween themed adverts. Further, advertisers should  be careful not to promote negative stereotypes which are likely to cause offence, this may include negative portrayals of mental health or race. Though the ASA have taken a broad approach to their rulings in this regard, and a ‘Psycho Clown’ costume was considered to not be a reference to a person suffering with a chronic mental disorder, and instead to a villainous horror movie character.This is in addition to the ASA’s decision to ban harmful gender stereotypes in advertising, which may also come into play for the first time this Halloween. If the costume in your ad involves a gender stereotype that is likely to cause harm, or serious or widespread offence, that it may fall foul of the ASA rules.In their approach to assessing these publications, the ASA has looked at the targeting, audience and effect.The ASA does not have specific rules for seasonal advertising, but it is worth bearing in mind how their general rules affect these types of adverts. Furthermore, new rules coming into play recently, involving harmful gender stereotypes and negative stereotypes involving mental health and race, may put limits on what has been allowed in previous years. Seasonal advertising might be scarier than you imagined if you do not consider the contents and the guidelines appropriately.

In a recent case (Neocleous v Rees [2019] EWHC 2462 (Ch)), the Court held that a binding contract for the disposition of land could be formed by a string of emails signed with a solicitor’s email signature.A contract for the sale of land must include: offer, acceptance, consideration and intention to create legal relations (section 2 of the Law of Property (Miscellaneous Provisions) 1989 Act). It must also be in writing, incorporate all the terms that the parties have expressly agreed and must be signed by or on behalf of each party.In the case of the present email chain, the lawyers identified the land and included an agreed price. The key decision for the court was whether the emails were signed for the purpose of a sale of land contract. The Court held that that the emails were signed by the automatically generated email signature included at the bottom of emails. For these purposes, the Court held that the necessary requirements were met for the sale of land and to create a contract which was binding between their clients.The Defendant argued that the signature requirement had not been met. It was argued that because the email signature was automatically generated, it was not sufficient to bind a party to a contract. The Court rejected this argument.In support of its decision, the Court referred to a Law Commission consultation document on Electronic execution of documents, where it was stated (in a provisional view supported by case law) that an electronic signature is capable of meeting a statutory requirement for a signature if an ‘authenticating intention’ can be demonstrated.The Court noted that the ‘ordinary meaning’ of the word signature has changed and that the Court should be guided by recent case law and the Law Commission report.In this case, the Court considered that the email footer was sufficient to act as signing for the following reasons:The footer was present because of a conscious decision to insert the contents;the sender was aware that their name was being applied as a footer (and the sender could presume this);the use of ‘Many thanks’ before the footer, showed an intention to connect the name with the contents of the email; andthe name and contact details in the signature was in the conventional style of a document signature .The offer which was the subject of the email chain came as a settlement for a dispute involving a right of way. It is important to note that the Defendant client had given the solicitor instructions to accept the offer. The Defendant later attempted to renege on this settlement due to a technical difficulty in vacating a subsequent court hearing.  ConclusionThere is arguably little danger in allowing contracts to be formed in this manner, as in the present case it can be shown that there was intention to create such a contract, it was in writing and it was concluded by a sign off from a solicitor.In this instance, as considered by the Court in the case, this interpretation is in line with the policy decision behind the 1989 Act, to avoid uncertainty.Though we should note the Court’s evolving view of signatures and be wary of what may constitute a signed and binding agreement.

The Advertising Standards Agency (ASA), in collaboration with the Competition and Markets Authority (CMA) have recently published a new guide to outline the advertising rules which apply to social media ‘influencers’. This came following their investigation into social media advertising in August 2018, after concerns that celebrities and social media ‘influencers’ do not properly declare when they have been paid or rewarded to promote services or products. Shahriar Coupal, Director of the Committee of Advertising Practice (CAP) said: “Responsible influencer marketing involves being upfront and clear with the audience, so people are not confused or misled and know when they’re being advertised to. The relationship between influencers and their followers relies on trust and authenticity, so transparency is in the interests of all parties. This guide on the standards will help influencers and brands stick to the rules by being upfront with their followers.”Social media is quickly becoming the most important platform for advertising. A recent survey showed that 70% of millennial consumers are influenced by the recommendations of their peers in buying decisions.Instagram is one of the most popular social media platforms for advertising, with 87% of marketers citing Instagram as the most important platform for their influencer marketing programs and this summer it reached a billion active monthly users. It can be a lucrative platform for those with a high volume of followers: celebrities such as Beyonce and Selena Gomez have been recorded as receiving $1 million and $550,000 per post respectively. Others have made a name for themselves through social media influencing alone, with the likes of Jen Selter and Zoella making $15,000 and $14,000 per post.Instagram is also one of the places where influencers have been seen to fall foul of advertising regulations. Over the last few years posts from Louise Thompson, Millie Macintosh, and Marnie Simpson have been subject to ASA action.  There are lots of rules that could apply, but the ASA pays particular attention to the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). What counts as an ad? Affiliate marketing – if the content you post promotes a product or service, especially if it contains a hyperlink to the product or service or a discount code with commission, that counts as advertising.Advertorial – if you work with a brand to create content and are paid in some way for doing so, this is an ad. There needs to be both payment and control for this to apply. Control is considered to be asserted if the influencer does not have complete freedom to do and or say whatever they want. This includes the brand having final editorial say over the content.  What counts as being paid? Being ‘paid’ for this purpose can include receiving goods for free, it is not only a monetary reward. Similarly, any sort of profitable relationship with a brand, such as a being a paid ambassador, receiving gifts, products, trips etc. for free or in return for your services, constitutes a payment. What counts as prohibited content under the CPRs?  using ‘editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial);falsely claiming or giving the impression that an individual is acting outside of their business purposes or falsely representing themselves as a consumer;failing to identify a commercial intent behind a social media post;and omitting or hiding ‘material’ information.What does not count as an ad under the CAP code?Posting content for a brand for no gain ie they control the content but you receive nothing in return;Receiving freebies and posting about them but the brand having no control over the content;Discount codes with no commission; orRecommending products or services which you have bought yourself and with no influence from the brand.Key things for influencers to remember:Ads should be recognisable as ads (section 2 CAP code) the code requires it to be ‘obvious’ and the ASA recommends using labels such as ‘ad’ ‘advertisement’ ‘advert’ etc. and notes that just ‘@’ mentioning the brand will not be sufficient;Advertisers must avoid misleading people (section 3 CAP code);Promotion marketing (eg competitions, and giveaways etc) are subject to additional regulations (section 8 CAP code); andPromoting some products may be subject to other rules e.g. food or supplements or age restrictions (for products like gambling or alcohol).The ASA and the CMA are by no means discouraging advertising by influencers or on social media. It is simply important to ensure that any advertising complies with the regulations already in force in the UK. The key is transparency. Consumers should be able to recognise that what they are viewing is advertising and it is the duty of both the poster and the brand to make sure this is clear.