Legal Approvals Are Killing Brand Newsrooms. Here’s How to Get Past Them

When a brand publishes a story, the process usually goes something like this:

Marketing teams edit for voice, style, and compliance with industry regulations, licensing, avoiding slander, etc. → a lawyer reads the story, notifies the preceding stages which elements are noncompliant, and requests revisions → the writer, artist, editor, and marketing teams make revisions and resubmit → repeat until compliance is satisfied.

That process takes days, if not weeks or (sadly) months.

But when a media company publishes a story, it looks something like this: Editor presses publish. The process takes hours, even minutes or seconds when necessary.

It’s obvious from these two scenarios that media companies have fewer concerns about compliance and defamation. One would even imagine that unlike brand publishers, media companies cannot be sued for what they publish.

Right?

While it’s true that the nature of brand publishing sets a higher bar for compliance and introduces some complexities that media companies do not encounter, those companies also benefit from having well-established compliance structures in place. There’s no reason brand publishers can’t do the same.

The secret? Get the lawyers out of the editorial process. At media companies, the role of the legal department is to set the rules of compliance at the outset, establish a structure to ensure compliance, monitor it to ensure it’s functioning, and set contingencies when events require deeper review. In other words, write the rules once and write hundreds of stories that follow the rules. The bar is set higher for brand publishers, but that same approach ensures compliance regardless of where the bar is set.

Document it

The first goal for efficient compliance is to actually write the rules and distribute them so everyone is on the same page from the beginning of the process. As a brand, it’s key to get the rules in the hands of the writers and artists producing your content so they can deliver compliant work from day one. For brand publishers, there are three primary compliance issues to enforce:

1. False advertising
2. Guidance
3. Licensing

False advertising

The regulation here is the Unfair Claims–Deceptive Practices Act (UCDP). This basically means content cannot mislead readers about your products or services or those of competitors. The laws (in addition to the UCDP, which is administered by the FTC, each state has its own law regulating false and misleading advertising) will consider whether your stories could be interpreted by readers as making an untrue claim. The facts are fairly black and white, and it’s easy to craft guidelines for writers that can make the issue all but disappear. Some of the guardrails:

• Be honest, be factual. Don’t lie, don’t exaggerate. This is common sense.
• Talk about your product or service as little as possible. Good content marketing crafts a narrative around the issues faced by the audience, which isn’t very inclined to trust claims about your own product anyway.
• Unless you must, don’t make promises or claims. There are very few good reasons to make a product claim in content marketing. If you do, be certain it can be explicitly validated.

Certain industries, such healthcare and financial services, face additional regulations governing claims and dissemination of information from regulators like the FDA, and publicly traded companies fall under the SEC’s domain.

Guidance

When lawyers write columns or articles, they begin and end by making it clear that the written piece does not constitute legal advice. Some even begin conversations with their spouses and children the same way. Overkill? Yes, but content marketers should follow their lead by avoid overly specific guidance. Content as advice leaves brands vulnerable to and responsible for the potential outcomes if readers follow that advice: “Your article said I should invest in frozen concentrated orange juice, and now I’m broke.”

The solution isn’t to have an attorney read every article. Instead, just don’t produce articles that provide specific instruction. Good stories offer insight into an issue and present options and results without being prescriptive.

Licensing

Media companies have it easy when it comes to licensing. The rules in most cases allow reporters and photographers to record and publish—or broadcast—anything they see or hear. The jury is still out on whether brand publishing constitutes journalism or just plain marketing. At Contently, we believe it is the latter; we think brands need permission to use a person’s likeness or licensed entities in pursuit of marketing. The rules here are the same as in advertising: If you quote someone in a story, get their permission; if you mention a third-party organization, get its permission; if a photo contains a licensed entity—like artwork, logos, or even a product—get permission from the copyright owner. And document it.

Simple, repeatable, auditable

None of these rules requires sophisticated review. Content creators can follow simple guidelines to steer clear of the three major risks, and editors and marketing reviewers can enforce the rules. The compliance comes in from the monitoring and auditing inherent in any worthy CMS. By capturing every stage of creation and revision, all reviewers are accountable and monitors can be put in place to track compliance and correct problem stages. Brand publishers face a more complex compliance environment than media organizations, but they need not have an equally complex review process.

Illustration by Tara Jacoby for Contently

Note: This information in this article is not intended to constitute legal advice and should not be relied upon in lieu of consultation with appropriate legal advisors.