Tiger Woods is the most popular and recognizable professional athlete on the planet and the highest paid athlete and pitchman. However, his purported "transgressions" during the past several years that have recently come to light and his response or initial lack thereof to the rumors concerning his extracurricular activities may have permanently tarnished his marketability.
Tiger's image has been very tightly controlled for many years and he has allowed his great skills on the golf greens to do most of his talking. Tiger's car accident over the Thanksgiving holiday weekend combined with published reports that he has been unfaithful to his wife have forever changed his image. From a legal perspective, Tiger's refusal to speak with police or provide a statement regarding the accident was his best move. However, from a public relations perspective Tiger's initial silence concerning the car accident and his alleged "transgressions" have created a feeding frenzy throughout the social media world.
Everybody makes mistakes. Our country is very forgiving and in the past when our heroes have fallen down and they have worked to repair the damage, the public has accepted them with open arms. A prime example of this is how former President Bill Clinton has bounced back since the Monica Lewinsky scandal. Even though President Clinton had to deal with the 24 hour news cycle, cable news, and the Internet (albeit a much less robust one than we have today), he did not have to deal with the power of social media.
Social media has changed the game. Due to a multitude of news websites, blogs, podcasts, etc... there is no escaping a story. Unfortunately, Tiger's handlers still do not understand the power of social media and how to respond to legal issues that they encounter in the Social Media Age. This is evidenced by Tiger's 11/29/2009 statement concerning his car accident and his 12/02/2009 comments regarding his personal indiscretions. Neither statement provides a clear explanation of what has truly happened, which the public and many of Tiger's fans and supporters want.
From a legal perspective, the less said about a legal matter the better. However, from a public relations standpoint, it is usually advisable to defuse a story by getting out in front of it by either acknowledging it or providing evidence to debunk it. An excellent example of successful public relations is how Meredith Baxter, aka Elyse Keaton of Family Ties fame handled the story concerning her sexuality. Ms. Baxter had been seen on a lesbian cruise and immediate questions concerning her sexuality were raised. Ms. Baxter got wind that a tabloid was going to "out" her so she went on The Today Show to out herself and take control of her story. Ms. Baxter's proactiveness destroyed the sensationalism of the story.
A second example of how to successfully handle a sex scandal is the way late night talk show host David Letterman reacted during his recent sex scandal. Mr. Letterman admitted the sexual affairs on his show. In general, Mr. Letterman has so far come out relatively unscathed. The only criticism of the manner in which this scandal has been handled is that CBS has refused to post Mr. Letterman's admission on CBS.com and it has used its legal muscle to force Youtube.com to remove it on the basis of copyright infringement. Despite these actions, unauthorized copies of Mr. Letterman's public apology are easy to find on the Internet.
In contrast, Tiger has tried to ignore his current situation and it appeared that he hoped it would all blow over. There is a good possibility that it will no longer be in the news cycle in a couple of weeks. However, social media will keep it alive on the Internet. If Tiger would have come clean a few days ago and went on camera and stated something along the lines that he was upset when he left his house and this caused his car accident and that he has been unfaithful to his wife and he is sorry for the pain he caused the story would be over. However, refusing to come clean early in the news cycle of the story has only fueled the fire and allowed for tabloid fodder. The longer Tiger waits to come clean, the more he tarnishes his well-crafted image.
Therefore, due to the power of social media it is important to hire a legal and public relations team that understands the legal, business, and public relations consequences of each possible course of action. In my opinion, Tiger needs to reevaluate his legal and public relations strategy to incorporate the new reality of the Social Media Age.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Showing posts with label Blogging. Show all posts
Showing posts with label Blogging. Show all posts
Wednesday, December 2, 2009
Tuesday, October 6, 2009
Details In The New FTC Endorsements and Testimonial Rules May Curb False Product Testimonial Claims But It Will Create Confusion
The Federal Trade Commission just released its final guidelines governing the use of edorsements and testimonials in advertising. Implementing updated rules for the first time since 1980 is a great idea. A lot has changed since the Carter administration. In particular, the Internet has supplanted television, radio, and printed newspapers as the most important media communication tool. However, upon closer review of the new rules, it appears that some of the rules are beneficial, while others are ill conceived, difficult to enforce, and create more problems than then solve.
I recently reviewed the text of Federal Register Notice 73 FR 72374 that was published last year. This notice discussed proposed changes to the regulations governing endorsements and advertisements. The new guidelines published in 16 CFR Part 255 are subject to go into effect on December 1, 2009. Under the new rules, bloggers will now have to disclose if they are receiving monetary incentives or payment in kind to write about a product or service. Additionally, celebrities will now be required to disclose if they have any economic ties to a product or service if they promote a product it on a talk show or via social media. I am in favor of the spirit of these rules because it will inform consumers about any possible conflicts of interest by those who are giving testimonials. Unfortunately, the rules appear to be intentionally broad and ambiguous and therefore they may cause more problems than they solve.
In addition, as part of the overhaul, there is a less publicized rule regarding celebrity endorsements that I like to call the Entertainment Lawyer Employment Act. Under this new rule, if a celebrity stars in an advertisement and reads a script that misleads the public about a product or a service, the celebrity may be personally liable along with the company who hired the celebrity. This new rule will force entertainment lawyers to include language in endorsement deals that requires advertisers to cover any attorney fees an endorser may incur related to the endorsement.
16 CFR Part 255 states, "[t]he addition of new Section 255.1 (d) and the new examples featuring celebrities, does not create new liability for celebrities, but serves merely to let them (and their advisors) know about the potential liability associated with their endorsement activities." I have to disagree with this assertion because it opens the door for celebrities to be held personally responsible for the information in their paid endorsements.
If you read example 4 on 73 FR 72391, you will understand the ridiculousness of the above statement about the rule. The rule places an unfair burden on celebrities and actors to ensure that the content of an advertisement is not misleading. This burden should only be with the company that is making the claim and not an actor. In the example that the FTC provides, a celebrity endorser is pitching a chicken roasting system. During the commercial's taping, the celebrity watches the roasting system cook 5 chickens incorrectly. However, the script calls for the celebrity to state, "if you want the perfect chicken every time, in just 30 minutes, this is the product you need." The celebrity follows the script as required by his or her contract and under the new rules the celebrity is subject to liability along with the advertiser for misrepresentation. The rationale given is that, "a significant percentage of consumers are likely to believe the celebrity's statements represent his own views even though he is reading from a script."
I have no problem with the advertiser being liable for intentional misrepresentations, but holding an actor, celebrity, professional athlete, or paid endorser liable also over reaches. This new rule may force paid endorsers to read scientific journals or memorize the Encyclopedia Britannica to ensure that their statements about products they endorse are true. Additionally, it may require specialized insurance to cover any claims that may arise from a celebrity endorsement. If a significant percentage of consumers in our country believe everything that comes out of a celebrity's mouth we have a bigger problem on our hands that no guidelines will be able to resolve.
If John Madden states, "EA Sports Madden NFL Football is the Perfect Football Video Game," he may be liable under the FTC's new rules for misrepresentation. Every Baltimore NFL fan knows this is a false statement because the perfect NFL football video game would have an All-Time Baltimore NFL team that includes both Johnny Unitas and Ray Lewis playing on the same Baltimore NFL team. Until Madden's NFL football game corrects this problem, Mr. Madden and EA Sports cannot claim that Madden NFL Football is the perfect product without incurring liability under the new rule.
Do you now see the ridiculousness of this part of the new guidelines?
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
I recently reviewed the text of Federal Register Notice 73 FR 72374 that was published last year. This notice discussed proposed changes to the regulations governing endorsements and advertisements. The new guidelines published in 16 CFR Part 255 are subject to go into effect on December 1, 2009. Under the new rules, bloggers will now have to disclose if they are receiving monetary incentives or payment in kind to write about a product or service. Additionally, celebrities will now be required to disclose if they have any economic ties to a product or service if they promote a product it on a talk show or via social media. I am in favor of the spirit of these rules because it will inform consumers about any possible conflicts of interest by those who are giving testimonials. Unfortunately, the rules appear to be intentionally broad and ambiguous and therefore they may cause more problems than they solve.
In addition, as part of the overhaul, there is a less publicized rule regarding celebrity endorsements that I like to call the Entertainment Lawyer Employment Act. Under this new rule, if a celebrity stars in an advertisement and reads a script that misleads the public about a product or a service, the celebrity may be personally liable along with the company who hired the celebrity. This new rule will force entertainment lawyers to include language in endorsement deals that requires advertisers to cover any attorney fees an endorser may incur related to the endorsement.
16 CFR Part 255 states, "[t]he addition of new Section 255.1 (d) and the new examples featuring celebrities, does not create new liability for celebrities, but serves merely to let them (and their advisors) know about the potential liability associated with their endorsement activities." I have to disagree with this assertion because it opens the door for celebrities to be held personally responsible for the information in their paid endorsements.
If you read example 4 on 73 FR 72391, you will understand the ridiculousness of the above statement about the rule. The rule places an unfair burden on celebrities and actors to ensure that the content of an advertisement is not misleading. This burden should only be with the company that is making the claim and not an actor. In the example that the FTC provides, a celebrity endorser is pitching a chicken roasting system. During the commercial's taping, the celebrity watches the roasting system cook 5 chickens incorrectly. However, the script calls for the celebrity to state, "if you want the perfect chicken every time, in just 30 minutes, this is the product you need." The celebrity follows the script as required by his or her contract and under the new rules the celebrity is subject to liability along with the advertiser for misrepresentation. The rationale given is that, "a significant percentage of consumers are likely to believe the celebrity's statements represent his own views even though he is reading from a script."
I have no problem with the advertiser being liable for intentional misrepresentations, but holding an actor, celebrity, professional athlete, or paid endorser liable also over reaches. This new rule may force paid endorsers to read scientific journals or memorize the Encyclopedia Britannica to ensure that their statements about products they endorse are true. Additionally, it may require specialized insurance to cover any claims that may arise from a celebrity endorsement. If a significant percentage of consumers in our country believe everything that comes out of a celebrity's mouth we have a bigger problem on our hands that no guidelines will be able to resolve.
If John Madden states, "EA Sports Madden NFL Football is the Perfect Football Video Game," he may be liable under the FTC's new rules for misrepresentation. Every Baltimore NFL fan knows this is a false statement because the perfect NFL football video game would have an All-Time Baltimore NFL team that includes both Johnny Unitas and Ray Lewis playing on the same Baltimore NFL team. Until Madden's NFL football game corrects this problem, Mr. Madden and EA Sports cannot claim that Madden NFL Football is the perfect product without incurring liability under the new rule.
Do you now see the ridiculousness of this part of the new guidelines?
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Sunday, September 13, 2009
Lawyers Must Be Mindful of Their Social Media Usage
There is an excellent New York Times article by the paper's National Legal Correspondent, John Schwartz, that discusses some examples where lawyers have been sanctioned for their Facebook posts, blogs, and tweets. Lawyers who utilize social media must realize that the Code of Professional Responsibility that every member of the Bar must follow in their every day interactions with prospective clients, clients, opposing counsel, judges, etc...is also in effect in cyberspace. Even though the First Amendment protects most speech, a person still can't falsely yell fire in a public area. Attorneys as officers of the court have additional responsibilities. The bottom line is that every lawyer should thoroughly read their prospective posts, blogs, or tweets before they are published in cyberspace. Before I publish a post, I ask myself:
1) Will my post add value to an area of discussion?
2) Does my post violate the Code of Professional Responsibility?
If my post can add value to a discussion and does not violate the Code of Professional Responsibility I publish my post. If my thoughts do not add value to an area of discussion or if I think they may violate the Code of Professional Responsibility I do not make the post. In general, I try to avoid personal attacks on others. I try to live by, blog by, tweet by, and post by this adage that my late Grandfather instilled upon me: "Better to keep your mouth closed and be thought a fool than to open it and remove all doubt."
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
1) Will my post add value to an area of discussion?
2) Does my post violate the Code of Professional Responsibility?
If my post can add value to a discussion and does not violate the Code of Professional Responsibility I publish my post. If my thoughts do not add value to an area of discussion or if I think they may violate the Code of Professional Responsibility I do not make the post. In general, I try to avoid personal attacks on others. I try to live by, blog by, tweet by, and post by this adage that my late Grandfather instilled upon me: "Better to keep your mouth closed and be thought a fool than to open it and remove all doubt."
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, August 24, 2009
"Skanks in NYC" Blogger Planning to Sue Google For Following Judge's Order to Out Her
According to a CNN article, the "Skanks in NYC" Blogger who lost her lawsuit to keep her anonymity is planning on suing Google, the host of her blog, for not doing more to protect her privacy.
Some background for those who have not followed this story. An anonymous blogger made derogatory and possibly defamatory remarks against a model, Liskula Cohen. Ms. Cohen sued to compel the blogger's web hosting company, Google to release the personal information of the anonymous blogger. Ms. Cohen won her lawsuit and as ordered, Google provided the blogger's email address to Ms. Cohen. Ms. Cohen utilizing her gumshoe skills figured out the identify of the anonymous blogger. The media also found out the identity of the anonymous blogger.
Ms. Cohen received several days of positive press and during her media performances she was viewed not as a vindictive and helpless victim but as a person who is willing to forgive and forget and move on.
The anonymous blogger was vilified in the media and wants to blame Google for her self inflicted problems. As I said several days ago, if the anonymous blogger wanted to stay anonymous she should have covered her tracks better. Filing a frivolous lawsuit against Google only continues to demonstrate the blogger's vindicative nature and that she is looking for someone else to blame for her own actions. It is time for the anonymous blogger, Rosemary Port to cut her losses because the longer this story stays viral the more damage it does to her reputation.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Some background for those who have not followed this story. An anonymous blogger made derogatory and possibly defamatory remarks against a model, Liskula Cohen. Ms. Cohen sued to compel the blogger's web hosting company, Google to release the personal information of the anonymous blogger. Ms. Cohen won her lawsuit and as ordered, Google provided the blogger's email address to Ms. Cohen. Ms. Cohen utilizing her gumshoe skills figured out the identify of the anonymous blogger. The media also found out the identity of the anonymous blogger.
Ms. Cohen received several days of positive press and during her media performances she was viewed not as a vindictive and helpless victim but as a person who is willing to forgive and forget and move on.
The anonymous blogger was vilified in the media and wants to blame Google for her self inflicted problems. As I said several days ago, if the anonymous blogger wanted to stay anonymous she should have covered her tracks better. Filing a frivolous lawsuit against Google only continues to demonstrate the blogger's vindicative nature and that she is looking for someone else to blame for her own actions. It is time for the anonymous blogger, Rosemary Port to cut her losses because the longer this story stays viral the more damage it does to her reputation.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, August 22, 2009
Getting Fired For Blogging
The Wall Street Journal and CNN once again have reported on the legal ramifications of blogging and tweeting about your job. In particular, the CNN article discusses what is becoming an almost every day occurrence in the American workplace: an anonymous blogger is terminated after being outed or after he or she reveals his or her true identity under their own free will and accord.
In general, most employment situations in the United States are employment-at-will. This means that an employer or employee can terminate the employment relationship for any reason. Over the years, three main exceptions to this rule have been recognized:
1) A Public Policy Exception
2) An Implied Contract Exception
3) A Covenant Of Good Faith and Fair Dealing Exception
Some states recognize all three while other states may only recognize 1 or 2 of these exceptions. Every organization should have a social media policy. In the 1980's, creating a sexual harassment policy was all the rage. In the 1990's, creating an Internet usage policy became necessary. Now, all organizations that have employees should have a written social media policy. These policies should strike a fair balance between employee and employer rights. Unfortunately, until these types of policies become the norm and not the exception in the American workplace more employees will be terminated for their blogs, posts, and tweets.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
In general, most employment situations in the United States are employment-at-will. This means that an employer or employee can terminate the employment relationship for any reason. Over the years, three main exceptions to this rule have been recognized:
1) A Public Policy Exception
2) An Implied Contract Exception
3) A Covenant Of Good Faith and Fair Dealing Exception
Some states recognize all three while other states may only recognize 1 or 2 of these exceptions. Every organization should have a social media policy. In the 1980's, creating a sexual harassment policy was all the rage. In the 1990's, creating an Internet usage policy became necessary. Now, all organizations that have employees should have a written social media policy. These policies should strike a fair balance between employee and employer rights. Unfortunately, until these types of policies become the norm and not the exception in the American workplace more employees will be terminated for their blogs, posts, and tweets.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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