CHAPTER12Public Relations

and the Law

Topics Covered in Chapter 12

A Sampling of Legal Problems

Invasion of Privacy

Copyright Law

Trademark Law

Regulations by Government Agencies

Other Federal Regulatory Agencies

Corporate Speech

Employee Speech in the Digital Age

Liability for Sponsored Events

The Attorney/Public Relations Relationship

A number of recent government recent government regulatory agency cases and lawsuits involved public relations materials and the work of practitioners.

Public relations personnel must be aware that they can be held legally liable if they provide advice or tacitly support an illegal activity of a client or employer.

This area of liability is called conspiracy.

A Sampling of Legal Problems

A public relations person can be named as a coconspirator with organizational officials if he or she:

Participate in illegal action Counsels policy behind illegal action Takes a major personal part in the illegal

action Establishes a “front group” Cooperates in any way with illegal action

A Sampling of Legal Problems cont.

A written falsehood is libel. A spoken falsehood is slander.

Today, there is little distinction between the two. Both are called defamation by the courts.

In general, private citizens have more success winning defamation suits than do public figures or corporations.

With public figures, there is the extra test of whether the libelous statements were made with actual malice.

Fair comment and criticism is also a defense.

Libel and Defamation

A person filing a libel suit must prove the following:

The false statement was communicated to others The person is identifiable Loss The statement was malicious or negligent

Libel and Defamation cont.

Invasion of Privacy

Public relations staff must be particularly sensitive to the issue of privacy in at least four areas:

Employee newsletters Photo releases Product publicity and advertising Media inquiries about employees

Copyright Law

Knowledge of copyright law is important from two perspectives:

(1) What organizational materials should be copyrighted(2) How correctly to utilize the copyrighted materials of others

Copyright means protection of a creative work from unauthorized use.

Copyright Law cont.

Copyright protection subsists . . . in the original works of authorship fixed in any tangible medium of expression now known or later developed.

The word authorship is defined in seven categories:

(1) Literary works(2) Musical works(3) Dramatic works(4) Pantomimes and choreographic works(5) Pictorial, graphic, or sculptural works(6) Motion pictures(7) Sound recordings

Copyright Law cont.

A work is copyright the moment it is created or “fixed.”

Authors should use the copyright symbol - ©

The formal step is done by depositing two copies of the work with the Copyright Office of the Library of Congress.

Copyright Law cont.

Fair use allows partial use of copyrighted material with attribution.

Permission is required if used in advertisements or promotional items.

Fair use is allowed for criticism, comment, or research.

Quantity reprints or videotaping are likely to infringe copyright.

Government documents cannot be copyrighted.

Copyright Law cont.

The Internet and World Wide Web raise new issues about the protection of intellectual property.

Two issues regarding copyright are:

(1) The downloading of copyrighted material(2) The unauthorized uploading of such material

Trademark Law

A trademark is a word, symbol, or slogan, used singly or in combination, that identifies a product’s origin.

It also serves as an indicator of quality, a kind of shorthand for consumers to use in recognizing goods in a complex marketplace.

A service mark is like a trademark, but it designates a service rather than a product, or is a logo.

An “SM” in small capitals in a circle.

Trademark Law cont.

There are three basic guidelines regarding the use of trademarks:

Trademarks are proper adjectives and should be capitalized and followed by a generic noun or

phrase.

Trademarks should not be pluralized or used in the possessive form.

Trademarks are never verbs.

Trademark Law cont.

Misappropriation of Personality is a form of trademark infringement also can result from the unauthorized use of well-known entertainers, professional athletes, and other public figures in an organization’s publicity and advertising materials.

Deceased celebrities also are protected.

The right of publicity gives entertainers, athletes, and other celebrities the sole ability to cash in on their fame.

Regulations by Government Agencies

The promotion of products and services, whether through advertising, product publicity, or other techniques, fall under the doctrine of commercial speech.

States and the federal government have passed legislation that regulates commercial speech and even restricts it if standards of disclosure, truth, and accuracy are violated.

Regulation…Government Agencies cont.

Guidelines have been established by major government agencies such as:

Federal Trade Commission (FTC)

Securities and Exchange Commission (SEC)

Food and Drug Administration (FDA)

Bureau of Alcohol, Tobacco, and Firearms (ATF)

Other Federal Regulatory Agencies

While the FTC and the SEC are the major federal agencies concerned with the content of advertising and publicity materials, public relations professionals should be familiar with the guidelines of two other major agencies:

Food and Drug Administration (FDA)

Equal Employment Opportunity Commission (EEOC)

Other Federal Regulatory Agencies

Food and Drug Administration (FDA) - Oversees the advertising and promotion of prescription drugs, over-the-counter medicines, and cosmetics.

Equal Employment Opportunity Commission (EEOC) - Charged with ensuring that workers are not discriminated against on the basis of their religion, ethnic background, gender, or even their English skills.

Corporate Speech

The First Amendment of the U.S. Constitution guarantees “freedom of speech,” but there is a well-established doctrine that commercial speech doesn’t have the same First Amendment protection as other forms of speech.

Essentially, the government may regulate advertising that is:

False Misleading Deceptive Promoting unlawful goods and services

Employee Speech in the Digital Age

A modern, progressive organization encourages employee comments and even criticisms.

Yet, in the digital era, organizations are increasingly setting guidelines and monitoring what employees say online in the following areas:

E-mail Surfing the Internet Blogging Virtual Online Communities

Liability for Sponsored Events

Public relations personnel often focus on the planning and logistics of an event.

Public relations personnel must also take steps to protect the organization from liability and possible lawsuits.

Liability for Sponsored Events

Areas of concern or precautions a public relations personnel should take include:

Extra liability insurance Security and traffic control Paramedics and an ambulance on site Restroom facilities Signage Crowd control Government permits Protection of celebrities or government officials Contractual agreements with vendors selling food

or souvenirs

Attorney/Public Relations Relationship

it’s important for public relations personnel and lawyers to work together to not only win in the court of law but in the court of public opinion.

Winning in the court of public opinion is the responsibility of the public relations professional, and such work is the practice of “litigation public relations.”

The cooperation was strengthened in recent years by court rulings that conversations between the two can be considered attorney–client privilege, if certain conditions are met.