Guide Through the Legal Jungle

Making Defamation Disappear: Turning Libelous Statements into Libel-Free Statements

What Is Defamation?

You defame someone when you make a false statement about the person and the statement harms the person’s reputation. The defamatory statement is libel if written and slander if spoken.

Reducing the Risk of Defamation

To be defamatory, the statement must be false. A truthful statement - even if unflattering - is not defamatory. Therefore, even when making controversial or potentially offensive statements, you can reduce the risk of a libel claim by focusing on the raw facts.

When doing a full pre-publication or libel review (also called vetting) of an article, book or script that is an exposé, I make word and editing suggestions designed to make the piece a more objective reporting of events and, thus, less likely to be libelous.

Here are illustrative examples of word selection changes that reduce libel risk:

DO NOT refer to John as Nick’s accomplice in an activity that did not result in a criminal arrest, charge, or conviction. INSTEAD refer to John as working with Nick on the activity.

DO NOT say John sabotaged the process (if John’s actions are not criminally or civilly actionable). INSTEAD say John opposed the process by {description of John’s actions}.

DO NOT say John misrepresented the process. INSTEAD say John misstated the process or John made an inaccurate statement {followed by a factual explanation of how John’s statement was inaccurate}.

DO NOT say John falsified claims. INSTEAD, say John made claims that did not withstand scrutiny.

DO NOT refer to a blog as a hate blog. INSTEAD, refer to the blog as a blog that is critical of {subject}.

DO NOT say Attorney Smith’s argument to the District Court begins with a list of poorly researched items accusing . . . INSTEAD, say In trying to convince the court, Attorney Smith used a list of items that were inaccurate or used out of context.

DO NOT refer to Mr. Smith’s years of stonewalling INSTEAD, refer to Mr. Smith’s delays in sharing the requested information.

How a Rights Clearance Company Differs from a Rights Clearance Lawyer

What is Rights Clearance?

Clearing rights means verifying that nothing in your book, film, artwork, advertisement, music, or other creative production is going to get you sued or halt distribution of your work. Other names for the rights clearance process include licensing, getting permission, and media clearance. Find a more complete definition of rights clearance here. Learn five reasons why every creative producer should conduct rights clearance here.

To conduct rights clearance, you might enlist the aid of a rights clearance house and/or a rights clearance attorney. While there might be some overlap, their functions are mostly distinct. Lawyers provide the legal analysis component of rights clearance. Rights clearance companies specialize in the hands-on aspect of clearing rights (e.g., tracking down and contacting rights owners to secure permissions). It is often more cost-effective for producers to retain a rights clearance house rather than an attorney for the hands-on aspects of clearing rights.

Services a Rights Clearance House Might Provide Include the Following:

• Review your television or film script for mentions of real people, locations, products, companies, organizations, or protected works; flag those mentions for legal review; and sometimes suggest fictional names to replace the real names (script clearance companies provide this service.)
• Research and suggest specific materials appropriate for your production (e.g., image researchers or picture researchers locate suitable photographs and visual images for your production)
• Identify and locate rights owners of the music, quotes, images, film clips, etc. you want to use in your production
• Contact the rights owner and request permission for you to use music, quotes, images, film clips, etc.in your production and negotiate the license fees for those permissions
• Research and prepare a report on the copyright history of a particular work. A lawyer can then use the copyright report to determine whether or not the work is still copyright-protected.
• Research the proposed title of your production and prepare a title report listing any other uses of that title. A lawyer can then use the title report to determine whether your proposed title is available for use on your production.

Questions a Rights Clearance Attorney Might Answer Include the Following:

• Whether you can rely on fair use when using quotes in your book or film
• Whether you must obtain permission before incorporating certain footage, images, film clips, real names, music and events into your documentary or parody film
• Whether your film or television production can include footage of individuals who have not signed personal releases
• Whether a particular work is in the public domain or is still protected by copyright
• Whether a television commercial complies with false advertising laws (i.e., Federal Trade Commission Act, FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising)
• Whether a production includes statements or other materials that are libelous
• Whether a specific title is available for use for your film, television show, book, etc.

A rights clearance attorney will often be asked to provide opinion letters on all the above which producers might then use to acquire distribution and errors and omissions insurance

10 Common Legal Mistakes for Contests and Sweepstakes Promotions – Part Two, Nos. 6 - 10

This is Part Two of a two-part blog posting outlining ten legal pitfalls to avoid when sponsoring a contest or sweepstakes. See Part One for legal pitfalls, numbers one – five. Here are numbers six – ten.

6. Taking Online Entries from Children in Violation of Privacy Laws.

Accepting entries from children in an online contest or sweepstakes requires compliance with the Children’s Online Privacy Protection Act (COPPA), applicable to children under thirteen, as well as compliance with state privacy laws, some of which apply to all minors under eighteen.

COPPA compliance requires parental notice and consent before collecting personal information from children under the age of thirteen. Personal information one may not collect online from a child without parental notice and consent includes name, email address, physical address, image of child, and other information. Federal regulators take kids’ privacy rights very seriously and have issued fines of up to $3,000,000 for COPPA non-compliance.

There are FTC-sanctioned workarounds – known as the one-time contact exception and the multiple-time contact exception – that let sponsors of online promotions collect certain personal information from a child before obtaining parental consent.

7. Using Entrants Names, Images, and Materials without Permission

Sponsors should obtain permission prior to using the names and pictures of winners and entrants in any advertising and marketing materials. Sponsors can often obtain such permission through their official rules or through winner affidavits.

In the worst case scenario, failure to obtain such permission can result in a right of publicity lawsuit against the sponsor. Review this cautionary tale of a sponsor who did not obtain the necessary permissions.

8. Ignoring Email Solicitation Laws

Sponsors planning to use email as part of their promotions must comply with the federal anti-spam law, CAN-SPAM, and with other state anti-spam legislation. These concerns are relevant for promotions that include Refer a Friend or Forward to a Friend features.

9. Failing to Protect Itself from Potential Mishaps

Ideally, sponsors should structure and administer their contests and sweepstakes in a manner that minimizes the risks of problems from printing and other inadvertent mistakes, winner disputes, ties, copyright issues, public relation mishaps, and fraud. For complicated promotions, these are areas in which a competent contests and sweepstakes attorney can be valuable.

10. Ignoring Tax Issues

Contests and sweepstakes winners must pay taxes on the prizes they win. The sponsor of a promotion offering an expensive prize such as a car should consider the tax implications on the winner and might consider other prize alternatives that do not trigger a significant tax obligations for the winner. Also, for any prizes valued at over $600, the sponsor must make an informational filing with the IRS (and potentially state tax regulators).

For More Information on Contests and Sweepstakes Law

Contests and Sweepstakes Law: A Guide Through the Legal Jungle Practice Manual provides marketing, business, and legal professionals with understandable answers and guidelines to their questions about contests and sweepstakes law. This 498-page book provides best practice suggestions for maximizing the operational success of contests, sweepstakes, and promotions while minimizing the risk of legal problems. It includes an overview of federal law as well as a separate, detailed legal synopsis for each state. Get a complimentary 40-page excerpt of the book here.

10 Common Legal Mistakes for Contests and Sweepstakes Promotions – Part One, Nos. 1 - 5

Contests and sweepstakes must comply with an assortment of federal and state laws, regulations, and rules. In this two-part blog posting, I outline ten areas of contests and sweepstakes law featured in my book on Contests and Sweepstakes Law (Get a free 40-page excerpt of the book here).

HERE ARE LEGAL PITFALLS TO AVOID WHEN SPONSORING A CONTEST OR SWEEPSTAKES:

1. Offering an Illegal Lottery or Gambling Game

Many laws relevant to contests and sweepstakes focus on preventing the promotion from being an illegal lottery or illegal gambling game. A lottery combines the three elements of chance, prize, and consideration.

To avoid being a lottery, a legal contest or sweepstakes may have only two of these three elements. Sweepstakes have the elements of chance and prize. Contests have the elements of prize and potentially consideration. (Read why non-profit raffles are the exception to this rule and why raffles are promotions that may combine all three elements of chance, prize, and consideration.)

What qualifies as chance, consideration, and a prize is not always straight-forward. As a result, sponsors sometimes inadvertently structure their promotions in a manner that turns their otherwise legal contest or sweepstakes into an illegal lottery or gambling game.

2. Failing to Provide Entrants with Complete Rules

I often see the statement that all contests and sweepstakes must have official rules. This statement is not completely accurate.

There are certainly circumstances in which sponsors are legally required to have official rules and to make those rules publicly available. For example, promotions requiring rules include a promotion in which the sponsor uses direct mail, a promotion offered by a broadcast station, and a promotion offered on a social media platform requiring rules.

There are many types of contests and sweepstakes and there is not one general law that requires written rules for all of them. Hence, in some circumstances, having published promotion rules might not be legally required. Nevertheless, it is always a good idea for a contest or sweepstakes to have written official rules.

Promotion rules serve as the contract between the sponsor and each participant. Well-written rules are one of the sponsor’s best defenses to complaints from disgruntled entrants, inquiries from government regulators, and promotion mistakes.

3. Making the Official Rules Hard to Find

Consumers interested in the promotion should be able to obtain or access a copy of the rules with ease. Sponsors of online promotions should not require a social media connection or other like-gating techniques as a prerequisite to seeing the complete official rules.

4. Diverging from the Official Rules

To obtain the maximum value from written official rules, the sponsor must adhere to them. A sponsor’s failure to follow its own rules can lead to accusations of fraud, lawsuits from entrants, and negative interest from state attorney generals.

5. Offering an Invalid Free Alternative Method of Entry (AMOE).

The “no purchase required necessary” language means that entrants in chance-based sweepstakes must be able to participate without making any payment. If, for example, consumers are automatically entered into a sweepstakes when making a purchase, the sweepstakes sponsor must also offer an entry method that requires no purchase – often referred to as a free alternative method of entry, or AMOE for short.

Sometimes sponsors do not realize their contest or sweepstakes requires payment (referred to as consideration in the promotions law context). While money qualifies as consideration, consideration is not limited to money. Other factors that might qualify as payment or consideration include the following:

• Requiring significant effort or personal information from entrants
• Requiring participants to submit entries of original photos, videos, and other original content (depending on the structure of the promotion)
• Accepting entries via text message
• Restricting entry to paying customers

PART TWO OF THIS BLOG POSTING INCLUDES MISTAKES SIX - TEN.