Invasion of privacy
  • Public relations staff must be particularly sensitive to the issue of privacy in four areas:
1. employee newsletters
2. photo releases
3. product publicity & advertising
4. media inquiries about employees

Employee Newsletters
  • An organization does not have an unlimited right to publicize the activities of its employees.
  • One should avoid anything that might embarass or subject an employee to ridicule by fellow employees.

Guidelines to follow when writing about employess activities:
  • keep the focus on organization-related activities.
  • have employees submit personals in writing
  • Double check all info. for accuracy
  • Ask: "Will this embarass anyone or cause someone to be the butt of the jokes?"
  • Don't rely on secondhand info: confirm the facts with the person involved
  • Don't include racial or ethnic designations of employees in any articles

Photo Releases
PR practicioner doesn't need a signed release if a person gives "implied consent" by posing for a picture and is told how it will be used.

Precautions to take for photo releases
  1. filing all photographs
  2. dating them
  3. giving the context of the situation

If a photo of an employee/customer is used in product publicity, sales brochures, etc., the standard practice is to obtain a signed release.

Product Publicity & Advertising
  • Must also have a signed release on file in order to disclose employees information.
  • Give some financial compensation to make a more binding contract.
  • Misappropriation of personality- taking the individuality of employees and using it to make a profit

Media inquiries about employees
Basic guidelines employers should follow when providing information to the media

  1. confirmationthat the person is an employee
  2. person's title and job description
  3. date of beginning employment, or applicable, date of termination

Should avoid providing information about employees:
  1. salary
  2. home address
  3. marital status
  4. number of children
  5. organization memberships
  6. job performance
If a reporter seeks any of this information, he/she can contact th employer and attempt to contact the employee to personally receive the information.

A biographical sheet can be provided to the reporter, it includes an employees:
  1. honors and awards
  2. professional memberships
  3. marital status and names of any children
  4. previous employers
  5. educational background
  6. hobbies and interest

Regulations by Government Agencies
  • Promotion of products and services is not protected by the First Amendment – such activities fall under the doctrine of commercial speech.
  • This means the state can regulate messages in the in the interest of public health, safety and consumer protection.
  • The states and federal government have passed legislation that regulates commercial speech and even restricts it if standards of disclosure, truth and accuracy are violated.
  • PR personnel involved in product publicity and the distribution of financial information should be aware of guidelines established by agencies such as the Federal Trade Commission and the Securities and Exchange Commission.
  • The FTC
    • The FTC has jurisdiction to determine that advertisements are not deceptive or misleading.
    • The FTC has jurisdiction over product news releases and other forms of product publicity (such as videos and brochures).
    • The FTC considers advertisements and product publicity materials “vehicles of commercial trade” and therefore subject to regulation.
    • Article 43(a) of the Lanham Act states that anyone is subject to liability if that person participates in the making or dissemination of a false and misleading representation in any advertising or promotional material.
      • Examples: Campbell Soup mentioning the fact that their soups are low in fat and cholesterol, but failing to mention their high sodium content; A movie critic being quoted out-of-context as calling a movie, “good fun”.
    • Words that trigger FTC interest: authentic, certified, cure, custom-made, germ-free, natural, unbreakable, perfect, first-class, exclusive, reliable
    • The following guidelines should be taken into account when writing product publicity materials:
      • Make sure the information is accurate and can be substantiated
      • Stick to the facts; don’t hype by using flowery, nonspecific adjectives and ambiguous claims.
      • Make sure celebrities or others who endorse the product actually use it. They should not say anything about the product’s properties that cannot be substantiated.
      • Watch the language. Don’t say “independent research study” when the research was done by the organization’s staff.
      • Provide proper context for statements and statistics attributed to government agencies. They don’t endorse products.
      • Describe tests and surveys in sufficient detail so the consumer understands what was tested under what conditions.
      • Remember that a product is not “new” if only the packaging has been changed or the product is more than six months old.
      • When comparing products or services with a competitor’s, make certain you can substantiate your claims.
      • Avoid misleading and deceptive product demonstrations.
  • The Securities and Exchange Commision
    • The Securities and Exchange Commission closely monitors the financial affairs of publicly traded companies and protects the interests of stockholders.
    • SEC guidelines on public disclosure and insider trading are particularly relevant to corporate public relations staff members who must meet the requirements.
    • The distribution of misleading information or failure to make a timely disclosure of material information may be the basis of liability under the SEC code.
    • A company may be liable if, while it satisfies regulations by getting information out, it conveys crucial information in a vague way or buries it deep in a news release.
    • The three concepts most pertinent to public relations personnel are as follows:
      • Full information must be given on anything that might materially affect the company’s stock. This includes things such as:
        • Dividends or their deletion
        • Annual and quarterly earnings
        • Stock splits
        • Mergers or takeovers
        • Major management changes
        • Major product developments
        • Expansion plans
        • Change of business purpose
        • Defaults
        • Proxy materials
        • Disposition of major assets
        • Purchase of own stock
        • Announcements of major contracts or orders
        • Timely disclosure is essential. A company must act promptly to dispel or confirm rumors that result in unusual market activity or market variations.
        • Insider Trading is Illegal. Company officials, including PR staffs and outside counsel, cannot use inside information to buy and sell company stock.
    • A court may examine all information released by a company to determine whether they create an “overall misleading” impression.
    • Investor relations personnel must avoid such practices as:
      • Unrealistic sales and earnings reports
      • Glowing descriptions of products in the experimental stage
      • Announcements of possible mergers or takeovers that are only in the speculation stage
      • Free trips for business reporters and offers of stock to financial analysts and editors of financial newsletters
      • Omission of unfavorable news and developments
      • Leaks of information to selected outsiders and financial columnists
      • Dissemination of false rumors about a competitor’s financial health.
    • In 1988 the SEC passed new regulations supported the use of “plain English” in prospectuses and other financial documents. The cover page, summary and risk faction sections must be clear, concise and understandable.
  • Fair Disclosure Regulation
    • Expanded the concept regarding “material disclosure” of information by requiring publicly traded companies to broadly disseminate “material” information via a news release, webcast or SEC filing.
    • Ensures that all investors will receive financial information from a company at the same time.
  • Sarbanes-Oxley Act
    • Officially known as the “Public Company Accounting Reform and Investor Protection Act”, its purpose is to increase investor confidence in a company’s accounting procedures.
    • CEOs and CFOs must now personally certify the accuracy of their financial reports and are subject to criminal proceedings if they are not accurate.
    • Forbids companies from giving personal loans to officers and directors and places more independent fiscal responsibility on boards of directors to ensure that the company is adhering to good corporate governance and accounting practices.
    • The Act is still being clarified and challenged in the courts.
  • Other Regulatory Agencies
    • The Food and Drug Administration (FDA) and the Bureaus of Alcohol, Tobacco and Firearms (BATF) also have established guidelines.
    • The FDA
      • Oversees the advertising and promotion of prescription drugs, over-the-counter medicines and cosmetics.
      • Under the federal Food, Drug and Cosmetic Act, any “person” (including advertising and PR firms) that “causes the misbranding” of products through the dissemination of false and misleading information may be liable.
      • The FDA has specific guidelines for video, audio and print news releases on health-care topics.
        • The release must provide “fair balance” by telling consumers about the risks as well as benefits of the drug or treatment.
        • The writer must be clear about the limitations of a particular drug or treatment.
        • A news release or media kit should be accompanied by supplementary product sheets or brochures that give full prescribing information.
    • The BATF
      • Administers the Federal Alcohol Administration Act
      • Any advertising or publicity about products with alcohol must conform to various regulations regarding the risk and supposed benefits of such products.
    • “Food Slander” Laws
      • A dozen states have put “agricultural product disparagement” laws on their books, making it a crime to criticize or denigrate food with information that is not based on scientific fact.
      • Designed to curtail activist groups that often use scare tactics and faulty information to disparage a particular food product.
    • In summary: PR personnel have the responsibility to know, or at least be familiar with, all pertinent regulatory guidelines.
    • You can be liable for disseminating false and misleading information on behalf of a client or employer.
  • [On the Job Insights] FCC Clamps Down on “Indecent” Broadcasting
    • The FCC has sent a message to broadcasters that “indecency” on the airwaves will no longer be permitted.
    • PR personnel are feeling the heat as broadcasters express more caution booking talk show guests who discuss sexual and reproductive health.
    • The FCC’s aggressive policy has First Amendment experts concerned.

A sampling of Legal Problems
  • Many People may have difficulty imagining exactly how public relations personnel can run afoul of the law or generate a suit simply by communicating information.
  1. Porter Novelli sued two employees who left to start another public relations firm, claiming that theyhad planned the new firm on company time and took a client with them.
  2. An 81-year-old man sued the United Way of America for using his picture on the campaign posters and brochures without his permission

These examples above provide some idea of the legal pitfalls that a public relations person my encounter.

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 emplyer.

  1. Participates in an illegal action such as bribing a government official or covering up information of vital interest to the public health and safety
  2. Counsels and guides the policy behind an illegal action
  3. Takes a najor personal part in the illegal action
  4. Helps establish a "front group" wherby the connection to the public relations firm or its clients kept hidden
  5. Cooperates in any other way to further an illegal action

These five concepts also apply to public relations firms that create,produce, and distribute materials on behalf of clients.

Libel and Defamation
  • Defamation is any false statement about a person (or organization) that creates public hatred, contempt, ridicule, or inflicts injury on reputation.
  • Libel was a printed falsehood and slander was an oral statement that was false.
  • corporations are also considered "public figures" because they engage in advertising and promotion.
Avoiding Libel Suits
  • Libel suits can be filed against organizational officials who make libelous accusations during a media interview, send out news releases that make false statements, or injure someones reputaion.
  • Accurate information, and a delicate choice of words, must be used in news releases.
  • Dangerous practice is making unflattering comments about the competition's products.

The Fair Comment Defense
A corporate reputation may be damaged and product sales may go down, but a defamation case in difficult to win because, as previously mentioned, the accuser must prove actual malice.

Trademark law
· Trademark – a word, symbol, or slogan, used singly or in combination that identifies a product’s origin.
- Coca-cola may be the world’s most recognized trademark, according to some studies, but it is one of almost a million active trademarks registered with the federal Patent and Trademark Office.

The Protection of Trademarks
  • Trademarks are always capitalized and are never used as nouns.
· They are always used as adjectives modifying nouns.
· Organizations take a step of designating brand names and slogans with various marks.
· A service mark is like a trademark, but it designates a service rather than products, or is a logo.
· These symbols are used in advertising, product labeling , news releases, company brochures, and so on to let the public and competitor know that a name, slogan, symbol is protected by the

Public relations safeguard trade guard and respect other organizational trademark in the following ways:
1. Ensure that company trademarks are capitalized and used properly in all organizational literature and graphics.
2. Distribute trademarks brochures to editors and reporters and place advertisements in trde publications, designating name to be capitalized.
3. Educate employees as to what the organization’s trademarks are and how to use them correctly.
4. Monitor the mass media to make certain that trademarks are used correctly. If they are not, send them a gentle reminder.
5. Check publications to ensure that other organizations are not infringing on a registered trademarks, if they are, the company legal department should protest with letter and threats of possible lawsuits.
The Problem of Trademark Infringement

A few examples of lawsuits claiming trademark infringements:
· Entrepreneur magazine was awarded $ 337,000 in court damages after filing a trademark infringement lawsuit against a public relations firm that changed its name to “EntrepreneurPR.”
· Fox News filed a suit against satirist and author Al Franken because the title of his new book was Lies and Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. Fox claimed that that the phrase “fair and balanced” was trademarked.
· Phi Beta Kappa, the academic honor society, filed a $5 million trademark infringement suit against Compaq Computer Corp. after the company launched a “Phi Beta Compaq” promotion targeted at college students.

Some guidelines used by courts to determine if there has been trademark infringement as follows:
· Has the defendant used a name as a way of capitalizing on the reputations of their organization’s trademarks- and does the defendant benefit from the original organizations investments in popularizing its trademark?
· Is there an intent (real or otherwise) to create confusion in the public mind? Is there an intent to imply a connection between the defendants’ product and the item identified by trademark?
· How similar are the two organizations? Are they providing the same kinds of products or services?
· Has the original organization actively protected the trademark by publicizing it and by actually continuing to use it in connection with its products or services?
· Is the trademark unique? A company with a trademark that merely describes common product might be in trouble.
Misappropriation of Personality
· A form of trademark infringement can also result from unauthorized use of well known entertainers, professional athletes, and other public figures in an organization’s publicity and advertising materials.
· Permission has to be sought before a well- known person can be featured in ads,etc.
· Deceased celebrities are protected as well and a user must pay a licensing fee to an agent representing the family, studio, or estate of the deceased.
· The legal doctrine is the right of publicity, which gives entertainers, athletes, and other celebrities the sole ability to cash in on their fame.

Corporate/Employee Free Speech
  • Commercial speech does not have the same First Amendment protection as other forms of speech
    • Governement may regulate advertising that is false, misleading, or deceptive as well as advertising for unlawful goods and services.
    • Courts have ruled that product news releases, brochures, and other promotional vehicles intended to sell a product or service constitute commercial speech.
  • Corporate free speech is the right of corporations and other organizations to express their views on public policy, proposed legislation, and other issues that may be of societal or corporate concern.
    • In 1978 the Court struck down a Massachusetts laws that prohibited corporations from publicizing their views on issues subject to the ballot box.
    • In 1980 the Court ruled that a New York Public Utilities Commission regulation prohibiting utilities from making statements of public policy and controversy was unconstitutional.
    • In 1986 the Court ruled that the California Public Utilities Commission could not require PG&E to include messages from activist consumer groups in its mailings to customers.
Nike's Free Speech Battle
  • The case, Nike v. Kasky, highlighted the issue of " corporate free speech" versus "commercial speech."
    • Marc Kasky, an activist, sued Nike for false and misleading statements that constituted unlawful and deceptive business practices.
    • Nike claimed it had the right to express its views and defend itself against allegations by activist groups that it operated sweatshop factories in Asia and paid subpar wages.
  • The California Supreme Court ruled against Nike.
    • It cited that Nike's statements were commercial speech because its intent was to maintain and increase its sales and profits.
  • The U.S. Supreme Court reviewed the case and sent the case back to the lower court without rendering a decision.
    • According to Eugene Volokh, professor of law at UCLA, Justice Stephen Breyer made a point of defining Nike's action as both commercial speech (buy our shoes) and corporate free speech (our political opponents are wrong).
      • According to Volokh, who continued on Breyer's point, this mixed messaging and its presentation outside a traditional advertising medium should have been fully protected.
  • Nike settled the case for $1.5 million that would go to the Fair Labor Association to monitor American factories abroad.
  • Many questions were left unanswered about the right of corporations to speak out on issues and defend themeselves against the charges of activist groups.
Employee Free Speech
  • A modern, progressive organization encourages employee comments and criticisms as part of a healthy two-way communication system.
  • Freedom of expression can be limited by some organizations.
    • According to Barbara Ehrenreich in a Time magazine essay she wrote:
      • a grocery worker was fired for wearing a Green Bay Packers T-shirt to work at a time when the Dallas Cowboys were sheduled to play Green Bay in the conference playoffs.
      • A worker at Caterpillar, Inc. was suspended for wearing a T-shirt titled, "Defending the American Dream," a slogan of the union that fought the company in a strike.
    • Many oraganizations monitor company e-mail
      • A court sided with Pillsbury in a suit brought on by an employee who was fired forposting an e-mai message to a colleague calling management, "back-stabbing bastards."
    • The trend is for increased monitoring of employee e-mail by employers
      • Employers are concerned about being held liable for the actions of employees who may post inappropriate material.
  • State and federal laws generally protect the right of employees to "blow the whistle" if an organization is guilty of illegal activity.
  • An organization has a legal right to fire employees or sue former employees if they reveal proprietary information to the competition.
PR Casebook- A Suggested Recipe for Martha Stewart: Litigation Public Relations
  • Litigation practices in public relations firms deal with the reputation management aspect of both celebrities and organizations who are involved in potentially damaging litigation.
  • Martha Stewart's reputation and business suffered as a result of being convicted of lying to federal investigators about a stock sale and possible insider trading.
    • The stock price of her company declined.
    • Total revenues dropped 33 percent in the three months following her conviction.
    • Stewart's television program lost half of its viewers, and the program's revenues dropped 50 percent. The show was suspended.
  • Public relations experts say that the basic concepts of litigation public relations practice could have saved Stewart, or at least mitigated the painful outcome.
    • Stewart stonewalled the media even though there was intense public interest because of her celibrity status
      • Studies have found that nearly three times as many presumed an organization to be innocent when the company responded to all allegations as opposed to saying, "no comment."
    • Stewart did not follow the basic rules of crisis communications.
      • She appeared unapologetic throughout the course of the event including when she was accused, tried and convicted.
    • Stewart showed up to court with a $5,000 designer purse, which the media reported.