How to protect your content marketing against libel and litigation
A crucial editorial skill is how to avoid getting sued for defamation or a copyright-related issue. It is the iceberg in the publishing ocean and there are a number of publications that have been sunk because of it.
Content marketing is no different to journalism in this regard. If you are publishing something that can be read by at least one other person then you are at risk. Content producers often ignore or are ignorant of the legal implications of what they are writing; others are overcautious and suppress a good story or blog for fear they could be breaking the rules.
Neither of those paths are ideal. Here are a few quick pointers that may keep you out of court. Content marketing is designed to make money for you or your client — not for defamation lawyers.
The following points concern UK law. Even if you publish and work outside the UK, it is worth understanding them: the UK has been a popular destination for libel cases in recent years.
If you are publishing content, two areas to watch for are defamation/libel and copyright.
Libel is the more complex. In essence, libel requires someone to publish something (ie communicate it to at least one other person) that the subject thinks is untrue and damages them in some way.
There have generally been a number of tests for libel:
- Does the content lower a person in the eyes of “right-thinking” members of society?
- Does it expose them to hatred or ridicule?
- Disparage them in their trade or calling?
- Cause others to shun or avoid them?
There is a 12-month period during which one can sue for a particular piece of content.
In the UK one needs to be aware of recent changes to the law. In 2014, the Defamation Act and the Defamation (Operators of Websites) Regulations came into force. The new rules aim to bring current law into the internet age while altering the view that the UK is more sympathetic to defamation claimants from overseas.
If you are producing content marketing, you may need to refer to another company or a competitor’s products. If so, it is worth bearing in mind that defamation laws apply to businesses as well as to people.
One outcome of the new act has been to make it harder for a company to bring a successful libel or defamation claim. Any company looking to do so would need to prove it had suffered “serious financial loss” as a result of what was written.
Unlike under the previous rules, it is no longer enough for a company to allege it has been lowered in the eyes of society or will suffer harm to its reputation. Looked at through the prism of the new law, a company is harmed only if it suffers financially.
From a legal perspective, there is still some discussion over what this means. For example, there could be difficulty in proving future financial loss. The defendant could claim it is down to poor sales.
The single publication rule has also been changed. Previously, the 12-month window in which to make a defamation claim would be reopened if that content was republished in the original (or another) publication.
This has changed thanks to the growth of the web. Online, even old article pages are continually revised and updated with new related content or even ads. Unless a page is “materially different” this rule will not apply.
Other defences have also been brought in to help protect website owners, particularly with regard to the principle of fair comment. This stated that the alleged defamatory comment was a matter of opinion and not a fact — meaning one could only agree or disagree with it.
This defence has been replaced by, among others, honest opinion and publication in the public interest. Moreover website owners are not liable for defamatory statements posted by others. Something that affects social networks and content.
Under the new rules, if the site owner receives a notice of complaint they must refer it to the original poster within 48 hours. If the poster does not respond adequately within five days the operator must remove the statement. If this does not happen the above defences will not apply and the site operator will be seen to have acted with malice (see below).
Anyone who wishes to make a claim in the UK for something that was published in another country will have less freedom for manoeuvre. A UK court will not hear claims from outside the EU, Switzerland, Iceland or Norway.
Malcious falsehood is another version of libel, which consists of a story that is untrue rather than defamatory. A typical example would be to suggest a company no longer sold a particular product when it still did.
In this case a claimant could allege it stopped people from looking to buy. In the eyes of the court, the onus is on the writer to check their facts.
Copyright is categorised as “literary” and “artistic”. Editorial copy is literary and includes anything with text, including league tables. Artistic copyright covers photographs, pictures and infographics.
Even if you rewrite someone else’s copy, beware you could still be infringing literary copyright. Any errors that were in the original will link your version to it.
Additionally, be very careful when using images. If you are taking something from the web, make sure it has a creative commons licence or something similar, otherwise you will need to get permission for its use. Damages from photo libraries can outweigh the expense of paying up-front.
Copyright lasts 70 years from the author’s death.
There are exceptions. Sometimes you will need to quote or use copyright work. This could be if you were reviewing or critiquing it. Or your story was about that particular piece of work. This comes under the heading of fair dealing. You are not taking the content but referring to it.
This is by no means a complete guide and there are whole books written on media law.
We at FirstWord have always said that content marketing is journalism. And it may seem like some of these points are specifically written for journalists. But you would be wrong. It is worth reiterating: media law covers any kind of content that is produced and can be read by others.
Content marketing is about enhancing your brand and persuading people to buy your product. It should not be about getting sued. Bearing the above pointers in mind when writing and publishing should help to stop this happening.
Originally published at www.firstword.co.uk on January 25, 2017.
A free legal get out of jail card for anyone who hits the heart button! Thanks for reading and may your content exploits keep you out of court.