These days a promotional campaign needs to reach audiences through social media as well as traditional publicity channels. But promoting your content through social media can increase legal risks. A well known example is the case of Hockey v Fairfax, where Joe Hockey failed to win defamation damages from Fairfax over an article it published about him, but won $80,000 for tweets promoting the article.
It is therefore worth paying close attention to the promotional aspects of your project. These ten tips will start you thinking about how to ensure your campaign is successful.
Ten tips for managing legal risks when promoting your content
- Establish the aims and risk appetite. How controversial is the campaign going to be? What kind of publicity is good publicity? Is social media a key plank? Will multiple online platforms be used? Is there an appetite to defend a threat of litigation?
- Identify high risk projects. For example, such projects could include (but are not limited to) those which disparage a person or their business, material which allegedly exposes confidential information or private matters, alleged evidence of illegal behaviour, use of secret recordings, unauthorised access to property, projects featuring persons who are vulnerable or underage, which deal with matters before the courts, or which concern terrorism or other security issues. These projects may carry a higher risk of a promotional campaign drawing a legal claim in advance of the project launch. Your promotional campaign will therefore need to be legally reviewed as carefully as the content itself.
- What potential impact might the promotion have? Will the promotion be the first thing a potential complainant sees? Are they aware of the project already or will it be a surprise? How might the promotion, viewed in isolation, come across?
- Review who could be liable. Who is most likely to be sued? The publisher is the likely target, but depending on the circumstances, others such as the author, producer, distributor and even third party platform operators posting material online can also be drawn into a legal action. So it’s important to understand who has final sign-off on promotional items and who has the right to review proposed material.
- Are you insured? Are you insured for liability arising out of the promotional aspects of the project, including the social media campaign?
- Have any representations or promises been made to talent? Ensure that personnel securing interviews or participation from talent are careful not to make unwise promises or representations on issues such as what will be said about them, whether they will have consultation or approval rights on any aspect, and whether they will be included. Keep copies of all correspondence.
- Establish a compliance team. Determine who is going to create promotional and online ancillary materials, moderate social media and give interviews on behalf of the project. Establish a briefing loop and quick contact list.
- Establish a UGC moderation strategy. Are social media platforms going to be monitored for user generated content? Who controls the administration of the page or site? Are administrators legally briefed and available to take down problematic user generated posts after hours? Who is tweeting or posting on behalf of the project?
- Review promotional items as standalone publications. Assume that each promotional interview, clip or social media post or tweet could potentially be the subject of a legal claim independently of the publication it is promoting. Plan to obtain legal advice on general posting guidelines for your team.
- What is the plan if a legal threat is received? What would be the effect on the project if a legal threat was to delay the launch or a demand for edits is made? Who will handle correspondence and any settlement negotiations? Who will handle any media inquiries?
These tips are not legal advice and are general in nature. If you would like legal assistance on a particular project please contact me.