Joanne Kong covers some general points for consideration on Covid-19 sensitive advertising.

The Covid-19 pandemic has no doubt greatly influenced how businesses operate and the advertising industry is certainly one which needs to respond appropriately during these challenging times. In countries whereby new Covid-19 cases continue to be on the rise and even in countries whereby people have resumed their daily lives, physical distancing and the wearing of face masks continue to be the norm. The failure to observe such safety measures is not only likely to illicit discomfort from others all around but also a fine from the enforcement authorities. With the virus seemingly appearing like it would not be going away anytime soon, advertisers must take extra precaution to ensure that their marketing campaigns are not tone deaf towards the pandemic.

Back in August 2020, KFC was quick to suspend its well-known slogan ‘Finger Lickin’ Good’ which it had used for 64 years in numerous countries across the globe. The fast-food chain commented that the slogan did not “feel quite right” in 2020 given the environment. While the iconic slogan has recently resurfaced in certain countries, it has yet to reappear in most. Other companies have also taken steps to promote social distancing such as McDonald’s which created a version of its golden arches logo which separated the two arches. Closer to home, Malaysian telco operator, Digi, changed its network identity to include Covid-19 messaging so that its subscribers would instead see the tag “Digi-Stay Home” at the top of their screens. Currently, its network identity is displayed as “Kekal Selamat-Digi” meaning “Stay Safe-Digi”.

Aside from actively spreading positivity or encouraging the public to observe Covid-19 safety measures, there is an ongoing basic need for brands to reassess their marketing to avoid elements which may be perceived as insensitive or possibly even unlawful during the pandemic. In countries such as Malaysia, where advertising is largely self-regulated save for certain specific sectors, this responsibility will fall onto the advertisers themselves.

The following are some aspects which advertisers may want to consider avoiding for the time being:

• People without face masks in public areas.
• People being in close proximity with each other – a minimum distance of 1 metre should be observed.
• Touching of face, especially the eyes, nose and mouth.
• Physical interactions such as shaking of hands, hugging etc.
• Dining in – as far as possible, to depict takeaway or delivery services.
• Eating with bare hands.
• In-person meetings – online meetings should be encouraged.
• Crowded places and events such as night markets, bazaars, concerts, conferences, competitions etc.
• Activities which may be perceived as inappropriate depending on the prevailing situation such as shopping for non-necessities, traveling, parties, home gatherings, visiting etc.

In the event an advertisement depicting any of the above is shot before the pandemic, this should be clarified with a disclaimer. To encourage responsible advertising, it may also be prudent to disclose that advertisements shot during the pandemic were shot under strict compliance with Covid-19 Standard Operating Procedures (SOPs).

As the situation improves and businesses begin to reopen, it may be acceptable to depict certain activities such as dining in at restaurants. It is however important to ensure that such depictions reflect Covid-19 safety measures and proper SOPs such as physical distancing, wearing of face masks and limited persons to a table. To address the ever-changing situation and the varying risk levels in different locations, advertisers should also consider including a Covid-19 advisory statement at all times to remind the public to stay informed of Covid-19 SOPs, respect any regulations imposed, wear face masks and maintain physical distancing at all times.

Notwithstanding the fact that certain advertisements may not directly run afoul of the law, they are subject to tight public scrutiny and anything which may possibly be considered as insensitive to the Covid-19 situation may possibly give rise to negative PR. This is especially the case given the increasingly digital era whereby cancel culture has become a worrying phenomenon. While this article seeks to cover some basic points of advertising during the pandemic, there are a myriad of other aspects which may potentially be perceived as insensitive or which may be misunderstood as encouraging the public to flout SOPs. It is thus best for advertisers to adopt an err on the side of caution during these times or seek legal review to avoid running into unnecessary issues.

Joanne is a Partner at Wong Jin Nee & Teo. Her practice predominantly focuses on trademark prosecution, media and advertising clearance, and other compliance matters.