The legal risks of ‘creative’ marketing tactics: Where to draw the line between clever and unlawful

Marketing is about grabbing attention and making your brand stick in people’s minds. In a noisy world, that often means pushing boundaries and trying things that feel bold or cheeky. But while creativity is great for business, it can quickly backfire when it crosses into legally risky territory. For South African SMEs, it’s important to understand where that line is so you don’t end up with a legal headache instead of a successful campaign.

One of the biggest traps is misleading advertising. Maybe you say a product is “free” but it actually comes with hidden shipping costs or fine print that cancels out the promise. Or you create hype about a limited offer that isn’t really limited. These tactics might get you short-term clicks but they can land you in trouble with the Advertising Regulatory Board or even invite a consumer complaint under the Consumer Protection Act. In South Africa, the law is clear that advertising must be honest and not mislead customers in any way.

Another grey area is piggybacking on another brand’s fame. Maybe you create a parody of a big-name company or reference a popular slogan in your own campaign. It can feel like a clever nod but if it confuses consumers or dilutes the original brand, you could face a trademark infringement claim. Even satire has its limits. If the other brand doesn’t find it funny and believes their reputation is being harmed, you might be forced to take it down or even pay damages.

Influencer marketing also comes with risks. If you're sending products to someone with a large following and they post about it, they need to make it clear it's a paid partnership or gifted content. It doesn’t matter whether you paid them in cash or free stuff. If there's any form of benefit, disclosure is required. Otherwise, both you and the influencer could be accused of misleading advertising.

Running competitions and giveaways is another area where creativity often goes unchecked. If you’re asking people to like, share, and tag friends to win a prize, you must have clear rules and comply with the relevant consumer and data protection laws. You also need to deliver the prize as promised. Failure to do that can damage your reputation and open you up to legal action. Plus, platforms like Facebook and Instagram have their own rules about how these promos must be run and not following them could get your page restricted.

Even using customer testimonials or before and after photos can be risky if you haven’t got permission or the claims can’t be backed up. Saying your product delivered amazing results is fine if it’s true and you can prove it. But if you’re exaggerating or fabricating results, that’s false advertising and could lead to serious consequences.

The truth is creativity in marketing is powerful but it needs to be paired with a legal filter. Before launching your next big idea, ask whether it could mislead someone, infringe on another brand, or fall foul of platform or advertising rules. If there’s even a small chance, take a step back and rethink it. Clever marketing should make your brand shine, not drag it into court.

The StartUp Legal offers expert legal services tailored for SMEs, helping you secure a winning edge. For personalized support, book a complimentary consultation: https://calendar.app.google/thxigR9yhDAu4LP86 or email us at hello@thestartuplegal.co.za.