Marketing

This helpsheet has been issued by ICAEW’s Technical Advisory Service to outline the key principles governing the marketing of practice activities. It advises on the means by which firms make contact with potential customers, and the restrictions and requirements regarding what may or may not be said about the firm in order to attract new business.

Members may also wish to refer to the following related helpsheets and guidance:

• UK GDPR – Lawful basis for processing
• Practice names and letterheads
• Tips and guidance on marketing your practice

Note that additional requirements may apply for certain services such as insolvency and investment business.

All businesses need to market themselves to attract new business and deliver the prospect of growth, or at the very least, the opportunity to refresh or improve their client base.

Accountancy practices are no different. However, while they are entitled to advertise their practice and publicise their services, achievements and products, firms are required to ensure that their promotional material presents an image that reflects the dignity of the profession. Advertisements must comply with the law and with current codes of practice.

The basic rule to remember is that advertising material should be legal, decent, honest, truthful and clear.

Advertising and marketing are always evolving and new techniques are constantly emerging. Firms should consider such techniques in the light of the principles covered in this helpsheet and if in doubt seek advice.

Firms must ensure that all advertisements (including letterheads, invoices and other practice documents) comply with the law and conform with the requirements of the Advertising Standards Authority.

Legal requirements – GDPR and PECR

Firms must consider the requirements of the General Data Protection Regulation (GDPR) and the Privacy and Electronic Communications Regulations (PECR).

Under the GDPR, firms need a lawful basis to process personal data. For marketing activities the most appropriate lawful basis for processing will usually be consent (see UK GDPR – Lawful basis for processing) for which a positive opt-in will normally be required.

Under the PECR, additional considerations apply with regard to electronic communications such as marketing calls, emails and text messages. We recommend that all marketing emails (which includes firm newsletters) and other electronic communications include a clear opt out.

The Information Commissioner’s Office (ICO) has produced a number of resources to support organisations in considering their obligations under the GDPR and PECR. The following guidance on direct marketing is likely to be of most benefit to firms:

• Direct marketing guidance
• Direct marketing checklist

Advertising Standards Authority

The Advertising Standards Authority (ASA) is the UK’s independent regulator of advertising across all media. The ASA applies advertising codes and offers advice and resources on its website.

When undertaking marketing or promotional activities, firms must not bring the profession into disrepute (paragraph R115.2 of the ICAEW Code of Ethics). Specifically, firms must not do the following within their advertising (note that this is not intended to be an exhaustive list).

Make disparaging statements

Firms must not say anything in their promotional material that is disparaging of or discredits the practice or services of others. For example, it would not be acceptable to say ‘we provide a better service than X firm in Manchester’ even if such a statement is objectively and demonstrably true. It would, however, be acceptable to say ‘we pride ourselves on the service we provide’.

Make unsubstantiated claims of size or superiority

Firms should be careful not to make claims that they cannot substantiate. Firms should make it clear on what basis any claim is being made and ensure that it is justified. For example, if a firm claims to be the leading or most widely-used accountancy practice in a given area, they should make it clear on the face of the promotional material the basis or information on which the claim is made. We advise utmost caution in this respect.

Make exaggerated claims

Firms shall not make exaggerated claims for services offered, qualifications possessed, or experience gained. Firms should ensure that claims made are appropriately substantiated, justifiable and not misleading in any way.

Make unsubstantiated comparisons

Firms shall not make unsubstantiated comparisons to the work of another. Where firms intend to make comparisons, they should ensure that such comparisons:

• Are objective and not misleading;
• Relate to the same services;
• Are factual and verifiable (firms should have supporting documentation); and
• Do not discredit or denigrate the practice or services of others.

Harass a potential client

As outlined in paragraph R115.3 of the ICAEW Code of Ethics, services must not be promoted in such a way, or to such an extent as to amount to harassment of a potential client. The term ‘harassment’ has not been defined in the code.

One or two follow-up mailshots to a non-client over a reasonable period of time might not, by themselves, amount to harassment. However, repeated telephone calls or visits to a prospective client who is clearly not interested could result in a complaint. Although such a complaint would need to be supported by evidence that the recipient was subject to actual harassment, you should be sensitive to the fact that some people are more likely to feel harassed than others.

Firms should also be reminded that where consent is being relied upon as the lawful basis for processing personal data, under the GDPR such consent can be withdrawn at any time and where an individual withdraws consent they should not be contacted with further marketing materials. For direct marketing, opt outs must also be clear and should be adhered to.

Special considerations apply to certain types of marketing communications or statements made in such communications, a selection of which are explored in more detail below.

Testimonials

It is in order to use clients’ testimonials if the client has consented to the use of their comments in this way. Firms should remember that the relationship between a firm and a client is confidential and therefore without consent it would be inappropriate to use a testimonial. Firms should also be careful to ensure that the content a testimonial is in accordance with the applicable guidance.

References to fees

If reference is made in promotional material to fees, the basis on which the fees are calculated, or to hourly or other charging rates, the greatest care shall be taken to ensure that such reference does not mislead.

Any such comments should be clearly explained and should specify any time periods to which the fees specified relate along with any exclusions.

Firms may offer initial free consultations at which time fees can be discussed. Guidance can be found in the helpsheet Initial free consultations.

Cold calling

Firms must not make unsolicited live calls to:

• Anyone who has told them they don’t want their calls; or
• Any number registered with the Telephone Preference Service (TPS) or Corporate Telephone Preference Service (CTPS), unless the person has specifically consented to their calls.

Firms must therefore screen against the TPS, CTPS and their own ‘do not call’ list before placing any marketing call.

Firms must always say who is calling, allow their number to be displayed to the person receiving the call, and provide a contract address or freephone number if asked.

Firms must not make automated calls (i.e. a call made by an automated dialling system that plays a recorded message) unless the person has specifically consented to receiving this type of call.

Outsourcing

Firms are entitled to outsource their marketing work to agencies and specialist professionals, or to use external sources to publicise their practice. Irrespective of the quality or reputation of the companies chosen, firms remain responsible for any marketing or publicity carried out on their behalf. Firms should, therefore, give careful consideration to the material and the company carrying out the work. Work in the reserved areas (such as Insolvency or Financial Services) may carry additional restrictions that will need to be observed.

Referral fees

Firms are entitled to pay for the introduction of a client but will be responsible for ensuring that the methods used to obtain such work are ethical. Such payments will create a threat to a firm’s objectivity and therefore they will need to consider appropriate safeguards such as making sure that the client is aware of the arrangements with the referrer. Firms should consult paragraphs 330.12 A1 and 330.12 A of the ICAEW Code of Ethics for further information.

Direct mail

Firms electing to send printed marketing materials via post should ensure that they check the persons they are contacting are not registered with the Mailing Preference Service (MPS) before sending any such communications.

Websites

Websites can easily give a misleading impression of the size and scope (especially websites for sole practitioners unless the structure of the practice is made clear). Refer to our helpsheet Practice names and letterheads if in doubt. Firms should be careful not to infringe the trademarks, trade names or other distinguishing marks, goods, services, activities or circumstances of their competitors.

Care should also be taken to ensure that the requirements of the Privacy and Electronic Communications Regulations (PECR) are adhered to especially with regard to website cookies. Consultation with website providers may be required to ensure compliance. The ICO has published Guidance on the rules on use of cookies and similar technologies.

A range of guidance and marketing tips are available on the Marketing your practice section of the website.

ICAEW logos

ICAEW logos are available for use by ICAEW members, ICAEW licenced insolvency practitioners and ICAEW probate accredited firms to help them promote the value of services provided. ICAEW logos along with the relevant criteria and guidance can be downloaded from the ICAEW logos webpage.

ICAEW copy checking service

For just £25 for an A4 sheet or equivalent the Firms Information team will check marketing material to ensure that it is consistent with the requirements of the ICAEW Code of Ethics.

Checking material before publication can avoid complaints and unnecessary expense and our normal turnaround time is five working days.

The Firms Information team may be contacted on +44 (0)1908 248 250 or email firms.information@icaew.com.

ICAEW letterhead checking service

Practice letterhead and other stationery must comply with legislation, including the Companies Act requirements as well as ICAEW’s Regulations on The names and letterheads of practising firms.

Unnecessary expense and other problems can be avoided by using the checklists and templates available on the website. Draft stationery can be checked by the Regulatory Information team before sending it to print.

There is no charge for this service and our normal turnaround time is five working days. Please email your letterhead to information.centre@icaew.com.

ICAEW members, affiliates, ICAEW students and staff in eligible firms with member firm access can discuss their specific situation with the Ethics Advisory Service on +44 (0)1908 248 250 or via webchat.