Marketing legal slip-ups that can kill your company
“We didn’t mean to" won't hold up in court
[At my lawyer’s insistence, a disclosure: I’m not a lawyer, my MacBook isn’t a lawyer, and this isn’t legal advice. It’s just opinion.]
Defamation, plagiarism, and online litigation cases aren't just for the giants like Gawker, Vanity Fair, and Robin Thicke - they can happen to anyone.
At least that's the lesson that many entrepreneurs draw from their jarring legal troubles that all stem from a little careless fact checking. In recent widely circulated story Parker Conrad, founder of HR software Zenefits, was sued by ADP for defamation. It will be up to the world to decide whether ADP simply wanted to hip-check an upstart competitor or whether they were truly worried about the infringement, but they had grounds to do so under the banner of misusing client information and straying too close to their messaging.
You have the right to remain compliant
When you place things out in the public domain, you're taking on more risk than you know. As NOLO, the legal resource organization puts it, "the internet and social media are … a uniquely effective breeding ground for potentially libelous statements.” The added fungibility of digital information means that things are more easily broken up and shared, and it’s more likely that their sources are stripped away and lost.
The result is that businesses that aren’t careful are left exposed to potentially ruinous court cases.
Let’s explore the two most common types of such cases.
If defamation is written, it’s called libel. If it’s spoken, it’s slander. Most of what transpires on the internet is the former.
What makes something libelous? It has to be false and your subject has to consider it damaging. For example if I, in an irrational rage, post an errant Yelp review claiming that my competitor MegaCorp Media steals money from the elderly, they can claim libel, provided that it is in fact false. This is the claim that Hulk Hogan made against Gawker.
Libel is broad, and what constitutes “true" is sometimes very hard to elucidate. For example, if something is couched in opinion, as in, “I think that MegaCorp steals money …,” that opinion is technically true (I do believe that) while the facts remain false. In this case it’s potentially not libelous, yet people have still been prosecuted regardless. And if the Gawker case taught us anything, you don't even have to be guilty for the process to ruin you. Gawker was forced into bankruptcy because they couldn't afford the onslaught of legal fees before the oversized settlement was set.
What are the most common types of online libel cases?
- Social media posts
- Comments on posts/forums
- Articles posted in publications
Now, the vast majority of libel cases are handled out of court. A simple cease and desist letter from the subject's lawyer typically suffices, but when the author refuses to remove the media or perhaps doesn’t have the means and the damage is considered done, it goes to court.
What’s the best way to avoid committing libel? Don't write it.
Isn’t it funny how lessons from pre-school keep circling back and making appearances? If you don’t have anything nice to say … save it in a draft. Take a day to think about it (perhaps, cool off). Ask others for their opinion on whether you should share it and really, if you even have to ask them, you probably already know the answer.
Let’s just not have any Trump-like twitter tantrums, okay?
Plagiarism, as anyone who went to school knows, is stealing other people’s work.
That, according to Reddit, is pretty much the definition of most of what happens on the internet:
Humor aside however, if you improperly reference someone, selectively quote them (it happens all too often as our messages keep getting shorter), or fail to cite your source, they have legal grounds to come after you.
And of course, we get it. On tight deadlines and under pressure to make the most of juicy stories, we're all under the gun to publish rather than pause. And in smaller startups, nobody is watching, right? Right. Except, as you scale, that old content can come back to haunt you. Whenever a company rises, legal trolls of all kind want to hitch a ride on the way up. That’s how patent trolls make a living and why so many investors sue their investments when they’re acquired, hoping to claw out even more money. Everyone wants a piece of the action.
That’s why If you have ambitions to grow you should make your marketing bulletproof from the beginning.
What are the top ways that you can run afoul of copyright law?
- Fail to cite a text source
- Fail to cite an image source
- Plagiarize entire content sections
- Trademark infringement
- Citing something because others did
- Citing questionable sources
How can you protect your company from committing plagiarism?
It all starts with you. Never copy any text without citing your source (which includes linking back to it) and giving credit to it’s progenitor. If your team grows, publish marketing content editorial guidelines that include a section on plagiarism. Have employees acknowledge that they understand those guidelines and the severity of falling short of them.
And for gosh sakes, consult a real lawyer.
A citation a day keeps the rogue lawyers away
Are you now feeling the hair stand up on the back of your neck because you've got some glaring, public facing, perhaps illegal or libelous copy on your website? That's okay, we won't tell, but do like we did and go clean it up.
From here on out you're on the straight and narrow. Publish your editorial guidelines and you'll hopefully steer clear of any litigation as you grow!