Is Your Content Marketing Courting Legal Disaster?

Years ago when I was a young, naïve community reporter, I interviewed a crafty old attorney for a profile piece on his impending retirement. He’d been a highly successful litigator for 40 years, amassing vast personal wealth and – perhaps more amazingly for an attorney – the abiding respect of many in his community. I asked him to summarize the secret of his success in a single sentence. His succinct answer has resonated with me throughout my career:

“In America, anyone can sue anyone at any time for any reason.”

A glance at daily headlines could easily convince you he was right; we are one litigious society.

In the most recent year for which data are complete, Americans filed roughly 30,000 contract actions and about twice as many personal injury cases, according to U.S. Court statistics. The year before, medical malpractice payouts topped $3 billion, averaging one payout every 43 minutes, Forbes reported. And while I couldn’t find a definitive statistic on just how many social-media-related lawsuits occurred in 2014, typing “2014 social media lawsuits” into Google yielded more than 9.5 million results! Even if only half of them are relevant, that’s a staggering statistic – and a wakeup call for content marketers.

While you may be more aware of the potential legal ramifications of traditional marketing vehicles such as advertising, digital content marketing has added layers of complexity and risk to our world. Anything can happen on the Internet – and often does – and once it’s out there in the digital world, your content marketing is virtually immortal. Whether your content effectively achieves your intended goal is a different question. For good or ill, it’s out there forever.

Brew that “anything can happen” risk factor with our “anyone can sue” mentality in the “it’s forever” stewpot of the Internet, and you have the perfect recipe for some very nasty litigation. The financial and reputational costs of becoming embroiled in a legal battle can be devastating, even if a company has deep pockets and ample insurance. For smaller companies, legal battles can be a death knell.

Are you aware of the potential legal ramifications of your content marketing?

Could your content marketing expose you to a lawsuit?

If you have any trepidation about the legality of your content marketing, or are facing legal action as a result of marketing you’ve done, you’ll need to do more than just read this blog. Consult a lawyer versed in the area of law most applicable to your issue.

That said, knowledge is power, so here are a few possible types of lawsuits that content marketers should be aware of:

Copyright or trademark infringement. Some kinds of copyright or trademark infringement may appear obvious – one company uses another’s highly recognizable, trademarked logo without permission, or an enterprising legal marijuana company produces pot-infused products with names that evoke the beloved candies of a well-known chocolate company.

Other instances aren’t so obvious. A blogger lifts blocks of text from elsewhere on the Internet and fails to properly credit the material. A marketing staffer creates a social media post using an image he found elsewhere online – an image that just happens to be rights restricted.

With so much content appearing on the Internet every day – and copious amounts of sharing and recycling going on – content marketers must be vigilant to ensure their material is fresh, original and infringement-free.

Defamation. In a pre-Internet world, defamation lawsuits weren’t that common, and they were difficult to prove. Courts considered the scope of potential damage when determining awards. How many people really read/heard/saw the defamatory content? A few hundred? A few thousand?

Today, in an environment where anyone can say anything – good or bad, true or false – and have it travel around the world to millions of other people in the blink of an eye, saying something negative about someone else has the potential to cause massive damage.

Breach of contract. Your firm has a confidentiality clause in its contract with a certain client. The client launches a new product that’s gloriously successful. A well-meaning marketing intern posts a congratulatory message on your company’s website identifying the successful client as one of yours. You’re in breach of the confidentiality provision of your contract.

Failure to disclose. At their heart, disclosure regulations strive to make everyone aware of just who is sponsoring the content they consume. A whole lot of social media activity taking place these days seems to be blissfully oblivious to disclosure laws. But the Federal Trade Commission is pretty clear about its feelings on disclosure and online marketing: “The same consumer protection laws that apply to commercial activities in other media apply online, including activities in the mobile marketplace. The FTC Act’s prohibition on ‘unfair or deceptive acts or practices’ encompasses online advertising, marketing and sales.”

Here’s an example. If your company is paying a blogger to write nice things about you, someone – you, the blogger or both – had better disclose that to consumers.

Privacy and personal damages. Does your content marketing team maintain a database of consumer information for targeted campaigns? Those names and addresses can be a treasure trove for identity thieves and other cyber crooks. If your company experiences a data breach, not only is consumer privacy compromised, their financial well-being could be at risk, too. With headlines about massive retail and healthcare industry data breaches compromising millions of customers, consumers are more aware than ever of data breach and identity theft risks.

It bears repeating – this blog is intended only to inform content marketers of possible legal risks. Ideally, your marketing and legal teams should work closely with each other to minimize risks and maximize the profitability of your content marketing efforts.

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