Illegal Practices.

I think it’s probably a good thing that the average marketer doesn’t have a law degree, but it would definitely come in handy sometimes. There are a lot of things that an advertising company can’t do legally that it will sometimes try to get its ad agency to do for it. Media buyers can unwittingly become dupes for sleazy business practices.

Back in 1998, the agency I worked for spent about one out of six media dollars on the Internet. We happened to have a few of the first big spenders as incumbent clients. That meant that we had inordinate influence over the sites at the time. Some clients thought that was license to use their agency relationship as a lever to commit acts they otherwise couldn’t do themselves (or, at least, wouldn’t want to be caught doing).

We were sometimes asked by clients to tell sites that they must meet certain demands to even be considered for any of our media buys. For instance, one client wanted us to demand that they not accept advertising of competitors or even allow content from competitors on the site. One wanted the sites to build their pages in a certain way to work with one of their products and not with that of another company.

This made us very uncomfortable in several respects. Firstly, this doesn’t promote good relations with media vendors to start making irrelevant demands outside of the media sphere. Even though it wasn’t our agency making the demands, we were the agents of the asking. Secondly, we worried that we might be involved in something anticompetitive.

There is often a fine line between aggressive competition and anticompetitive behavior. Frankly, it’s a legal distinction that I can’t really make myself, so it’s hard to know when I should act to protect my agency against it.

Then, of course, there’s the concern that by not acceding to the client demand, we might burn the client relationship. After all, having grown up as an account guy, I’m supposed to suffer from the congenital desire to say yes to everything.

On top of these dilemmas, acceding to these wishes would have also had a strange effect of allowing one client to cause agency-vendor relationship changes that would have had great impact on other clients.

Sometimes this type of aggressive behavior can be done in a legal manner – purchasing exclusivities and incumbencies, for example. But, putting aside ethical issues, agency people just aren’t equipped to be able to determine when that crosses the line to illegal, anticompetitive tactics.

Fortunately, we discovered two different ways to defuse the issue. The first line of defense was to say no, and with a very good reason. We told our clients that we would never compromise the vendor relationships for our other clients. This is a particularly good answer because simultaneously rejects the client but affirms that you’d have the same integrity on their behalf.

When some persisted, though, we finally had to resort to the legal weasel method. We asked the client to put the request in writing and to indemnify our agency for any potential resulting litigation. In essence, we suggested that we were willing to accede to their demand, as long as they took public and legal responsibility for the tactics.

We never had anything go past that stage.

Ad agencies often employ lawyers for certain standard procedures, like creative review and contract approval. But it’s not a bad idea to have them review new business practices as well. Even the newest and lowliest media planner can stumble into issues of great importance.

By Tig Tillinghast
Courtesy of http://www.MediaPost.com