Many businesses are now using AI to streamline their operations, making life easier for their employees. One of these industries is digital marketing, which has embraced AI and allowed it to shine along with their own practices to help boost the online visibility of their clients. However, you need to be careful when using this technology in your business, as it’s not perfect and can result in legal fallout if things start to go wrong.
Generative AI models have become deeply embedded in digital marketing agency workflows, which has turned it into something that is funny to post on social media that promotes a brand to a legitimate source of professional negligence lawsuits. This guide will explore this in more detail, as we talk about the ethics of automation in marketing and whether it can lead to professional negligence claims. Continue reading to learn more.
Standard of Care in Marketing
To win a negligence case when AI-generated marketing goes wrong, a client must prove that an agency failed to meet the standard of care. In 2024, that standard might have been vague but two years later, the Bar Council and various Solicitors Regulation Authority guidelines have made it clear that relying on AI output with no research is considered negligence that breaches the standard of care owed to clients.
For example, if an agency uses AI to draft a white paper for a medical client and the AI creates a clinical study that doesn’t exist, the agency has breached its duty of care and can be liable to hit with a claim from a company like Bond Turner.
Courts are also increasingly applying the doctrine of vicarious liability. While an employer is usually responsible for the actions of an employee, they are now also being held responsible for the actions of their automated systems. If your chatbot gives a customer a guaranteed discount that crashes your client’s profit margins, the agency is to blame for the losses.
How Most Lawsuits Occur
Copyright Infringement
Using AI can lead to copyright infringement when models are trained on protected data without authorisation or when they generate similar outputs to existing work. Risks include producing infringing content via specific prompts or using AI-generated work that is not protectable, which can land marketing firms in a lot of legal trouble if the generated images or content is used for their clients.
Defamation
Automated systems can generate and publish misleading statements about individuals or organisations without the marketing company knowing about it. AI tools often lack contextual understanding and ethical reasoning, so they can misrepresent facts, which can cause serious harm to brand reputations. People have used AI to invent scandals about public figures that have led to massive settlements.
Bias & Discrimination
AI algorithms used within digital marketing can be trained on limited data, such as past hiring, purchasing or customer behaviour data. This can reproduce existing inequalities, for example, if it suggests that only one type of demographic buys a product, AI will only target that group and exclude others. This leads to bias and discrimination that brands would like to avoid.
Hallucinated Truths
Primarily because Large Language Models (LLMs) are designed to predict plausible language rather than verify facts, it can lead to hallucinated truths within the marketing campaign. In marketing, where speed and persuasion are valued, these fabrications can quickly damage brand reputation and create legal risks for the agency.
Final Thoughts
So, can you be sued for professional negligence when generating AI content as a digital marketing agency? The simple answer is yes, as you can potentially destroy brand reputation, leading to them to want to claim for your negligent services. When you use AI, you need to ensure that it’s always done ethically.
