How Brands Can Avoid Being Sued Over Content
As an attorney, I get used to people asking, “Can you get sued for that?” The answer is generally, “Yes.”
So long as an American has money and a grudge, some lawyer will be happy to conjure up a complaint and drag you into court.
So, a brand publisher might well ask: “How do I create a bulletproof release? One that will stop me from getting sued in the event that one of my sources turns on me, claims he was misquoted, protests that he had no intention of promoting our brand, etc.?”
Asking sources to sign a legal release before being interviewed for brand content is generally a good idea, but it won’t solve all your problems.
Why releases are great: They can head off nasty altercations down the road.
Why releases are terrible: They can discourage potential sources for great content from talking.
So, where is the sweet spot?
The short answer is: A release is a contract, and no contract is bulletproof. That being said, the savvy publisher can still take steps to craft a release which lowers his risk of litigation.
The release form: your burly nightclub bouncer
Traditionally, photography and interview releases have audiovisual recordings in mind. In the pre-Pearl Jam era, you had someone sign a release before you published her image, or a recording of her voice. Facebook has changed all that. Today, loose talk quickly becomes litigation. Getting your source to sign a release is a good idea whenever her words could be used for promotional purposes.
Here’s a lawyer’s secret: litigation is 50% posturing. One guy makes a threat; the other guy makes a counterthreat; their lawyers say hurtful things to one another, and the vast majority of the time they settle out of court.
Here’s a lawyer’s secret: litigation is 50% posturing.
Problem is: before the case even makes it to settlement, you’ve already paid the lawyers thousands of dollars to write the threatening letters. You need to stop litigation before it starts.
That’s where your release comes in. Like a burly nightclub bouncer, a legal release serves as a friendly reminder that rowdies and hooligans will not be tolerated. The mere existence of the document puts your source on notice that you take your work seriously. The bouncer knows that because his muscle is there, his muscle will probably never have to be used.
Putting some muscle into your release
This attorney’s not going to dispense legal counsel herein. A release is, first and foremost, a contract, and contract laws vary from state to state. But by way of friendly advice, consider the following tips for a beefier, more lawsuit-deterring standard release form:
- Get a lawyer. Standardized release forms are widely available online, but be warned: most of the forms you find online are geared toward the needs of still photography and audiovisual recording. When it’s your own contract, there’s simply no substitute for personal attention from your own capable attorney. I realize that may not be an option for some, in which case you should seriously consider.
- 3-Page Minimum. No joke. There mere length of the document sends a message about its effectiveness (remember the bouncer?). Three and a half pages of text with signatures on the fourth would be even better. Your contracts are like your business cards: they tell the world who you are.
- Let your source know when she’s on the record. Going forward, we have to have an imaginary yellow 1989 Sony Walkman in our heads. Your source needs to know you’re hitting <Play + Record> (remember that?) when her statements could be used for promotional purposes. If she obviously thinks she’s speaking, blogging, emailing or IM’ing off the record, then don’t publish her words. Loose lips sink ships.
- Give your source veto power. It’s a courtesy, and your source will probably be more open and more willing to sign if she knows she’ll have a chance to okay the finished product before it hits the web. We all want to be read, quoted, tagged, pinged and promoted — we just don’t want to be sued.
The Fifth Estate
Glaciers move faster than law courts. All the glaciers will be melted before the courts recognize bloggers as commensurate with journalists and accord them the same protections as the traditional press.
The mere existence of the document puts your source on notice that you take your work seriously.
For the content marketer, it can be a red-tooth-and-claw world. No matter how careful you are, briefcase-toting legal thugs can still SLAPP you with harassing, speech-suppressing litigation. No contract was ever completely ironclad, bulletproof or watertight.
The trick is to stay alert, and dodge the bullets.
This article should not be construed as offering legal advice. If you need legal advice, consult a lawyer.
Image courtesy of ProgressOhio/flickr