Elite digital marketing
Author: Sofia Tyson published:
Sep 25th 2020
last updated:
Oct 06th 2020
Content marketer with a background in law.
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Is Your Digital PR Campaign Going to Get You in Legal Trouble?

Reboot Line

Creating attractive digital PR content for journalists, clients and readers alike naturally requires some aspect of relatability to the real world  - whether this involves discussing live issues or commenting on brands or organisations. 

However, just as the ubiquitous nature of the internet can be a useful tool for us digital marketers, it can often pose a threat to the reputation of individuals and companies that we discuss, since the spread of disinformation or contentious opinion is both rapid and borderless thanks to the digital world. 

As a result, we are seeing brands fight fiercely against PR campaigns to defend themselves from reputational damage, often by bringing in the law. 

Like most, the Reboot team have experienced their own mishaps over the years. However, we have used these experiences to fine tune our brainstorming, writing and proofing processes to best prevent digital PR campaigns from going wrong and avoid liability.

To help other agencies and in-house PR departments avoid getting into trouble, we’ve taken what we have learned and compiled this handy guide. 

The Most Common Complaints 

First and foremost, it’s important to understand the most common complaints and risks which might arise in the creation and release of a PR campaign. Knowing these will help you reduce the risk of liability. 

  • Defamation (Libel) 

When you are discussing an individual or organisation in a PR, it is important to recognise whether your campaign is likely to put them in a bad light or could damage their reputation - particularly if your campaign is successful and widely circulated

Where serious harm has been caused to their reputation, that company or individual might seek legal redress by suing your agency and any corresponding authors for defamation, but more specifically libel - "the publication of false and harmful statements in some form of permanent, written format such as blog posts and articles". 

Unfortunately, the price to pay for libel can be significant, particularly where the damage caused has far-reaching financial implications. And, as well as the risk of having to pay a lot of compensation if you defame someone, you may also face a large bill for legal costs - including theirs. So, treading cautiously around brands, individuals and products is highly important to protect your agency and client’s reputation (and wallet!). Although these campaigns are challenging to get right, they typically have the highest reward.

Pro Tip: Adam Taylor, an Internet lawyer at Adlex Solicitors, says that there are various defences available to someone accused of defamation, for example that the statements are “substantially true”. But you have to prove this; the brand doesn’t have to show that your claims are false. Another defence is that you are expressing an “honest opinion”. (See more about these defences below). Adam says that it’s better not to have to spend a lot of time and money arguing these points in court. If you are writing negatively about other people and organisations, consider how they might react and, even if you think your claims are justified, whether it’s worth the cost and effort of having to defend yourself if you are sued.

  • Unoriginal Content 

Another widely experienced complaint is the publication of unoriginal content, i.e., the misuse of someone else’s content. Much creative work is protected by the law of copyright, meaning that you should consult any “licence”, i.e,. permissions to use the work (which may come in the form of terms and conditions) or, if necessary, contact the copyright owner before using within your PR. Regardless of whether it is data, text or images, copyright automatically protects the copyright owners from having their work copied and misused without permission. This guide will help you minimise the risks of violating copyright laws within your PR.

What to consider when brainstorming

Your company’s brainstorming process is arguably the most important time to prevent a PR campaign from going wrong because you’re able to assess the risks earlier, as opposed to later. This means that controversial or problematic ideas can be dismissed or amended, and another campaign can still be chosen in good time. 

Things to consider when deciding whether your campaign idea is workable include: 

  • A potential conflict of interest

Sometimes campaign ideas and the data that drives them are great, but the campaign might be restricted by a potential conflict of interest. For example, if you are using data which reflects negatively (but fairly) on a brand, if the client represented by the campaign is partnered with or co-owned by that brand, it can result in potential embarrassment at the very least.  

  • The broader social context

Checking the broader social context is part of being socially and commercially aware - something which all agencies should promote. Particularly when writing reactive campaign pieces, there are times where some people and issues are more topical than others. Aside from the risk of defamation mentioned above, it is important to be wary of publishing a piece of work which tarnishes the reputation of an individual or organisation at a time where the damage to their reputation might be intensified. Things like this should be considered when assessing the risk of liability.

You should also look further to other considerations such as the placement, matter, emphasis and the timing of your campaign.  For example, whilst a campaign about a company being racist during a time of political intensity, such as the 'Black Lives Matter' campaign, is likely to gain traction, it is also likely to trigger a response from the company’s legal team. It is worth calculating whether the risk is worthwhile and to follow any necessary steps to negate any potential liability further.

Case Study Example: Film studio

An example of the broader social context affecting how a PR campaign is received is a campaign looking into dated films from a particular film studio. The campaign suggested that some parents would not want their children to watch these dated films due to potentially racial stereotypes and sexist attitudes. Upon finding the campaign published in various outlets, the studio’s legal team contacted the offending agency’s client to ask them not to mention their name in future PR campaigns without permission first. 

Although the content wasn’t strictly defamatory, as the content was nonetheless shared at a contentious moment in time, the legal and marketing teams were particularly upset by the company’s portrayal. 

It is also worth noting that even if people are not explicitly named in a campaign, they are still able to sue insofar as they remain identifiable.

What to consider when choosing images or creating graphics

One of the most common legal headaches faced by digital marketers comes from their failure to comply with copyright in content, images and logos. 

Regardless of how big or small your marketing agency or business is, it is vital that you comply with copyright. Not only is it unethical to pass another’s work off as your own, you simply lack the legal right to do so unless you have permission. It is common among smaller start up agencies to assume either that a content creator will not care, or not notice their work being used, due to the company’s size. However, copyright infringement, especially on a campaign widely publicised by global or national publications, could cause trouble. The more exposure, the greater the risk that this sort of coverage will reach the original content creator. In fact, thanks to tools such as Google alerts, Copyscape and Google image search, content creators can quickly and easily identify copied content, regardless of their site’s authority and traction.

It is important to ensure all of your staff know that it is their responsibility to ensure an image can be used without violating copyright if it is found online. Many people wrongly assume that images on the Internet, especially those which show up on image searches, are available and free for anyone to use. More often than not, they aren't.

First and foremost, we recommend that you research who owns the copyright. Even if you can’t find the original creator, you should assume that it is subject to copyright, since ‘orphan’ images are still protected by copyright. You will find permission details attached to most images, which are made available online for others to use, and these should outline clearly what the content can or cannot be used for. 

If you are still struggling to identify content to use, we recommend doing the following:

  • Take and use your own photos

By doing this, you can be certain there are no legal issues. It's also been found that using unique images has a positive impact on organic web rankings as well as image rankings. (This is worth bearing in mind if you are writing an on-site asset for your PR campaign). 

  • Use stock photos

Most agencies will have a license from a stock photo site, such as Shutterstock, but this doesn't mean you don't have to give credit to the source. When using any image, be sure to check the permissions and give credit to the original owner where necessary.

  • Find images in the public domain

These are images where copyright has expired, has been removed by the owner, or has never existed. Ensure that they are clearly marked as being in the public domain, otherwise you may not be able to use them. 

  • Create your own graphics

You may even want to create your own graphics. However, when doing so, you should be wary about using logos and branding of companies without their permission. Whilst some companies will have usage rights posted on their website permitting certain uses, many will not and we advise you to avoid using these in that case.

Generally speaking, colours within graphics are less strictly protected, however you should still be sure that the colours you are looking to use aren’t trademarked in a similar industry or expertise. For example, Tiffany Blue is trademarked, as is Barbie Pink and Cadbury Purple. 

More detailed information about copyright and permissions can be found on Google’s support tool.

What to consider when choosing data sources

Another one of the most common mistakes made by agencies is that they fail to retrieve and analyse data from reliable and appropriate sources, which can later prove problematic for the entire campaign. Using inaccurate or outdated data sources often means that the conclusion and results are a poor or a false depiction of reality, and therefore you risk painting a completely untrue picture or conclusion about an individual or company. 

It is important to know that relying on information found from unreliable sources is not a defence to libel liability. Throughout all stages of your PR campaign, you should be sure that you have been diligent and feel confident to refer to the data and credit the sources that you are using. 

Here are some things to look out for:

  • Terms and Conditions of Data Use 

Comparable to using images, you should always check for potential permission or copyright issues by reading the terms and conditions for data use. For example, often data can be used for personal but not commercial use. This means you are prohibited from using it in a PR campaign. Failing to comply with the stated terms can either result in a very large fine or litigation, both of which can be easily avoided by taking greater care when sourcing your data. 

  • Currency of Data 

It is also vital to ensure that the data available is the most current and recent data available at the time of outreach, since failing to do so may reflect out-dated conclusions which are no longer true and therefore problematic. For example, if you are looking at the difference in calories in burgers between the biggest food chains - if one chain has recently changed their recipe, you are expected to account for these changes and the new data that is readily available to you. 

What to consider when analysing data

Behind most successful digital PR campaigns, there is often a great data set and strong analysis. However, drawing the wrong conclusion or falsifying the data to fit your conclusion makes your agency, client and publishing journalist susceptible to liability. 

That said, insofar as the calculations are correct and the data is reliable, then you are in a better position to rely on the truth defence against a libel claim. As explained above, this is a complete defence whereby a defendant can escape liability if they can prove that the allegations published are substantially true, since libel naturally requires the information shared to be false. Unfortunately, the burden rests not on the claimant to prove that they are false, but instead on the defendant (the agency) to prove that they are true. 

Due to this responsibility, it is important to keep a detailed, accurate and credible methodology behind your campaign to refer back to throughout, and which you can forward to companies in the event of a complaint. Ensuring that this methodology is well-planned, explained and followed accurately throughout will provide the team with confidence that they can prove that their information and calculations are true.

It is also important that your methodology accounts for any anomalies and makes the best attempts at standardising data - tricky, we know - but it is particularly important when creating brand comparisons based on calories and prices. Failing to account for distinctions in currency, weight and other variations can significantly change and falsify the conclusion of a campaign, often making findings untrue. 

By adding greater detail into a methodology and noting any inconsistencies and how these were approached, the methodology used becomes far more credible. 

We also highly recommend that your team verify your results and the data that you have used against the campaign methodology. Doing so is a quick and effective way to ensure that any mathematical errors and typos are picked up quickly - and before the release of a PR campaign - since small errors are easy to make when looking at data, but still prove costly if it damages the reputation of an individual or organisation as a result. 

Case Study Example: University 

A prime example of a mistake made with regard to misread data led to a subsequent legal complaint from a university, which argued that a claim made with regard to the price and availability of accommodation was "defamatory and untrue". The student accommodation was portrayed as expensive and unavailable, despite this turning out not to be the case. The university’s solicitors argued that the comment was defamatory, since it was untrue and seriously damaged their reputation. 

The agency involved agreed to acknowledge the mistake and make an offer of amends, which is where an innocent mistake has been made and the parties are looking to minimise reduce damages and liability. In accepting the offer of amends, the university did receive a payment towards their legal costs. 

What to consider when writing the PR

The process of writing out your press release still requires you to be mindful of potential liability. The phrasing of titles, conclusions and data can be misleading or untrue, even if the data itself is not. Following these simple tips should help you ensure your writing is as accurate as possible:

  • Use Cautionary Language 

Using cautionary language is an important way to protect yourself from liability. For example, using indefinite and ambiguous statements or wording helps imply that the information discussed within a campaign is not strictly fact but is instead opinion. This is important since, as mentioned above, another defence against libel is ‘honest opinion’. This may apply if a publisher can show that what they published was merely a statement of opinion, that the statement indicates this, and that any honest person could have held that opinion based on the facts at the time that the statement was made. Make sure your content clearly sets out the facts on which your opinion is based, and clearly distinguishes between the two. 

  • Be wary of too much exaggeration

It is also important that you use adjectives responsibly. For example, if you are accusing a company of being the least sustainable due to their chemical release, accusing them of ‘poisoning the world’ without specific scientific support should be avoided. This is also the same with words like ‘best’ and ‘worst’. It is often better to explain exactly what you are describing (e.g. try to use terms such as ‘most calorific’ opposed to ‘worst for you’ since these are hard to qualify with certainty). 

  • Check your tenses

Additionally, the process of checking your tenses is important throughout creating a PR campaign. For example, to refer to a celebrity who stole something from a shop as a child as a ‘criminal’ would largely fail to reflect their personality and reputation today. This means it would be challenging to prove this was a factual claim. Within campaigns, we should always be wary of referring to past events without first verifying that they continue to be accurate and relevant.  This is particularly true where there has been a significant relevant change or event that supersedes the earlier one. 

What to do before outreach

Finally, before outreaching your PR, we recommend further proof-reading - particularly by someone new within your team. Fresh eyes are always useful for a campaign since they engage with the tone and purpose of a piece differently to how the author might. Envisaging the piece from the perspective of an outsider will enable colleagues to notice contentious phrasing, bold claims, and problematic or damaging conclusions which can then be addressed before sending the PR for outreach. 

It is also important to consider how any ambiguity might lead to your campaign being misconstrued, exaggerated or taken out of context by the journalists that publish it. Whilst it is not always your fault, because the client is often mentioned within the article, complaints and liability can reflect badly on both the client, and you as the original authors. One way to avoid this is by ensuring that not only is everything 100% accurate in your press release, but also by consulting others to see if they can see any way in which your campaign could be misinterpreted. If so, see if you can fix that linguistically, or use clearer and more definitive language.

If you are still concerned about your PR being too risky, then it is worth asking a manager or colleague to set aside time to discuss and assess the risk with you and find ways to minimise the risk even further. After all, prevention is far more important than cure due to the hefty price (and stress!) of settling a libel or copyright claim. 

 

And finally, following our own suggestions above, please don't treat this article as legal advice. 

Thanks again to Adam Taylor for his help with putting this guide together.

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