In 2003, a legal settlement was reached that continues to have a huge impact on the communications industry; the only problem is that many people just don't know it. At the
heart of Nike v. Kasky was the issue of "commercial speech" and all regulatory restrictions relating to false/misleading advertising.
The case, according to Michael Lasky of Davis & Gilbert LLP, "established that many, if not most, of the activities undertaken by public relations firms for non-public
affairs accounts will be regarded as commercial speech and therefore not entitled to full First Amendment protection."
So, what does this actually mean in a real-world application? Communications initiatives are becoming more and more integrated; thus, the marketing and PR messages that make up
most campaigns are blurring the lines between editorial-style promotional speech (which is entitled to First Amendment protection) and straight-up advertising (which, as it turns
out, is not). Because of this, the laws that govern the execution of creative initiatives (including intellectual property laws) are increasingly relevant to PR executives. What's
more, this is just one of many legal issues that communications professionals must consider in order to avoid being nailed for what is broadly known as "deceptive practices."
However, lawyers are quick to point out that their legal expertise comes from three tedious years of higher education that are then punctuated by a grueling multiday exam. If
any communications executive wants to endure that solely to understand and comply with the laws that govern the execution of their ideas then, by all means, he or she should do
so; for the rest, Lasky offers these 12 compliance guidelines to avoid deceptive practices (the guidelines are adopted from the Marketing Law and Ethics training program conducted
by Davis & Gilbert for Ketchum).
1. When pitching the media, always identify the client you represent.
2. Be forthright with information about clients' sponsorships of information, spokespeople or events.
3. In all written materials, clearly articulate the client, product or service being represented.
4. In booking an interview, conduct a straightforward discussion of messages the spokesperson wants to communicate to ensure that everyone's expectations are clear.
5. In preparing spokespeople for media interviews, create messages and provide training that allows them to be transparent and to portray accurately who they represent.
6. In video news releases, B-roll and audio news releases, fully disclose to TV or radio stations who produced and paid for them. In writing, identify the sponsor on packing
and highlight the sponsor on slates. Also disclose the sponsor verbally in the actual VNR and B-roll.
7. When producing a video news release, do not allow the narrator to use the word "reporting" or refer to themselves as a reporter.
8. Web sites should clearly disclose their ownership (private or public), name their parent company and/or sponsors and reveal any relevant business relationships, including
sponsored links to other sites.
9. When blogging, use your real name. Be clear who you are and for whom you work.
10. Word-of-mouth advocates should disclose their relationship with marketers in their communications with other consumers. Do not blur identification in a manner that
might confuse or mislead consumers as to the true identity of the individual with whom they are communicating, or that might instruct or imply that others should do so.
11. Revise contracts and train personnel.
12. Know what types of claims need substantiation.
Regarding guideline 12, The Federal Trade Commission has a policy on advertising substantiation, which establishes that marketers must have a "reasonable basis" for claims made
in marketing materials prior to dissemination. Lasky notes that this applies to both expressed and implied claims, and that PR agencies can also be liable. He offers the following
"reasonable basis" test:
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The type of product;
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The type of claim;
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Benefits if the claim is true;
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Consequences if the claim is false;
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The ease and cost of developing substantiation for the claim; and,
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The level of substantiation that experts in the field would agree is reasonable. PRN
CONTACT:
Michael Lasky, 212.468.4849