For content marketers, trying to balance quality content with substantial partnerships while continually monitoring the all-important bottom line has always been challenging. As content marketing expands in importance, so does the urgency of creating content that doesn’t simply tick all the boxes on a surface level but does so legally and in a way that honors your brand, partners and clients.
In highly regulated industries, content creators and marketers have to address regulations and compliance issues that can create what sometimes feels like insurmountable legal roadblocks. Then again, if you’re doing it right, you already know that paying attention to the fine print is almost as crucial as continuously creating great content.
So, how can you consistently create fresh, engaging content that appeals to your targeted demographic and encourages shares, discussion and purchases while also adhering to what feels like the frequently murky letter of the law? Wisely, consistently and carefully.
And make sure you have a strategy not just for kicking things off, but for paying attention to what to do if things go wrong, like that time Perez Hilton was sued for $2.1 million dollars for using photographs without permission.
Here’s how to ensure your content marketing efforts meet legal and compliance requirements:
Know your stuff.
“If you know your basics you’re probably not going to get into trouble,” said attorney Ruth Carter of the Carter Law Firm, who quite literally wrote the book on the subject: “The Legal Side of Blogging: How Not to get Sued, Fired, Arrested or Killed.”
She expanded on the basics that allow you to work smarter and stay on the right side of the law:
If you understand how copyright works; If you understand how to use the trademark database; If you know a little bit about the new privacy laws; If you know enough about the FTC regulations about when to reveal relationships and when to discuss the fact that you get free stuff, you should be fine.
But don’t assume that slapping a random disclaimer on your site or Instagram account protects you and your company. “Don’t just copy and paste someone else’s terms and put your name in place of theirs. I read some of my friend’s disclaimers and I think there are some of these things you don’t want to say you do or you don’t want to commit to,” Carter adds.
Manage your risks.
If you’ve ever worked on a contest you’ve done one of two things: Simply posted about it or ran the details past your attorney. It’s all about risk management.
“The very definition of risk management refers to the practice of identifying potential risks in advance, analyzing them and taking precautionary steps to reduce/curb the risk,” said Ken Paulin President of Entegrate, Inc. a Las-Vegas-based company specializing in creating promotions for entertainment companies.
Paulin reminds content marketers eager to expand their reach through giveaways or other promotions that risk management isn’t “just to cover you (as the sponsor) and any other participating entities for what you can imagine could possibly go sideways, but for the myriad things you can’t imagine.”
A blanket statement doesn’t work as “official rules.”
If you think posting something like “we’re not responsible if you don’t win our contest” gets you off the hook if something goes spectacularly wrong with your next promotion, you might want to rethink your strategy.
“Over the years, our official rules have evolved from what started as two pages of single-spaced terms and conditions to, on occasion, over 15 pages,” Paulin explained.
As someone who runs a promotions agency, a lot of what Paulin does started in-house:
For the most part, we’ve created the language that appears in our various rules configurations but count on our legal partners to review and as appropriate, modify as needed. Some of the more participatory level of prizes can sometimes demand more extensive protective language that cover prize-specific nuances that may not exist in other prizes we’ve awarded.
Don’t assume if you’ve done it once it works the same way every time.
Contain your market.
“The use of social media for communicating sweepstakes/contest information and offers has presented so many challenges for those involved in creating official rules,” said Paulin. He explains that not only is there “an immediacy available to sponsors that has never existed for them in years prior and it’s global. You can quite literally come up with the most amazing promotional concept in the world and then be online in every corner of the world with it hours later.”
While that’s great in theory, in practice it means that you have to tighten up your legalities, if not your entire approach. “It is the responsibility of the sweepstakes/contest sponsor to ensure that the execution of their campaign is compliant with any/all of the ever-evolving applicable rules and regs, whether their campaign is U.S.-based only or multi-national,” Paulin cautioned.
Not sure you can do any of this by yourself? Hire an attorney.
“It’s cheaper and easier to buy yourself an hour with a lawyer who understands legal and internet issues,” Carter urges.
“There’s a lot of bad information out there and I have yet to find a third-party service that does a good job. People ask me about LegalShield and LegalZoom. I know people have good situations with them, but if things go wrong you have to hire an attorney to clean up the mess. There are lots of laws that can trip up a content marketer.”
5 Potential legal issues for content marketers
Carter shared some of the potential content marketing pitfalls you may encounter on your journey as a content marketer — and how to avoid them.
1. FTC violations
FTC violations for not disclosing when you are compensated for providing an opinion — e.g., sending free stuff to an influencer. The FTC can go after the influencer who didn’t disclose the relationship or the company working with them. I suspect they’d go after whoever has money to pay the steep fines.
Solution: Clear contracts with influencers; check their posts to verify compliance.
2. Image rights issues
Pulling images from the internet without permission. Ditto for using music without permission.
Solution: Get permission or use images that come with a license to modify and commercialize the image — e.g., Creative Commons.
3. Trademark problems
You create a campaign for a client that inadvertently infringes on another company’s registered trademark.
Solution: Use the USPTO database to at least run a preliminary search before committing to an idea. If you want more protection, hire a lawyer to review your ideas before presenting them to the client or recommend that the client hire a lawyer to do so before launching.
4. Creating terms of service
You need terms of service for your website.
Solution: Hire a lawyer who creates these for a living. They have quality templates that they work from.
5. Privacy and anti-spam laws
There are so many privacy and anti-spam laws — GDPR, CASL, CCPA, etc. it can make your head spin.
Solution: Hire a lawyer who can explain the laws, which ones apply to your company, and the risks you take by ignoring them.
In case you don’t think you’ll get dinged by sloppy privacy statements or similar, Carter explained that it could take years to resolve legal issues that might have been avoided had you set things up properly in the first place. But don’t feel bad if you’ve been just coasting until now, it’s never too late to set up a bulletproof business plan.
Carter offers some incredible tips and checklists on her site including a legal checklist to protect online entrepreneurs and another checklist for social media influencers. She also has a YouTube channel where she posts question of the day videos.
Disclaimer: This article is meant as a guide for informational purposes only. It does not constitute a solicitation or provision of legal advice, nor does it establish a client-attorney relationship. Please consult a professional in making any decisions for your business.