Trade Libel: If you can’t say something nice, make sure you have proof

trade libel

By Kerry Gorgone, {grow} Contributing Columnist

We’ve all seen those commercials: a split screen with someone trying to get a stain out of a shirt. On person’s using the advertiser’s product and the other’s using a competing product. The demonstration always favors the advertiser.

But what if they rig the game?

What if the advertiser doesn’t mention that they let the stained shirt soak for 24 hours and didn’t soak the other shirt at all?

That could be considered false advertising. It might also be “trade libel,” which is making a false statement that injures someone else’s business or brand. (The complete legal explanation can be found in this court opinion, if you’re into that sort of thing.)

As marketers, we might think it’s our job to slam the competition, but that’s the wrong approach. First, you’re giving a competing brand exposure by talking about them. You’re also very likely to come across as petty—not an attractive trait. Finally, if you make negative statements about another brand without proof, you could find yourself on the wrong end of a lawsuit.

Here’s a quick and dirty guide to staying on the right side of the law when discussing competing brands and products.

Don’t discuss brands at all: talk about your audience instead.

The most effective marketing doesn’t discuss your competition (or even you). Instead, it focuses on your audience—their challenges and needs and, in some instances, how a product or service like yours can help them to overcome those challenges.

There are dozens of great books on how and why to create reader-centric content. Two of my favorite are Ann Handley’s Everybody Writes and Jay Baer’s Youtility. Why spend any time slamming the competition when you could be building trust and authority with your audience instead?

If you must say something negative about the competition, back it up with proof.

Negative statements about other brands aren’t illegal—false statements that injure other brands are. So if you can prove the truth of your statement, you ultimately won’t be found liable. You might do these by conducting your own primary research or citing secondary research, so long as there is actual data backing up your claim.

Of course, you’ll still have the hassle and expense of defending yourself in a lawsuit, which isn’t a great use of your time and money.

Remember that any statement—however short—might be considered libel.

There’s no minimum character count for libel—a tweet could subject you to liability. For example, if you were to tweet “ABC Tacos give people food poisoning, come to XYZ Tacos instead,” ABC Tacos could sue you for trade libel. That one tweet could cost XYZ Tacos thousands.

If you must say something negative, stick to opinions: don’t make statements of fact.

In the ABC Tacos example above, a competing brand made what appeared to be a statement of fact—XYZ Tacos claimed that ABC Tacos food gives people food poisoning.

Notice that this type of statement goes beyond an opinion. XYZ Tacos made a statement of fact (whether or not it’s ultimately true or false remains to be seen). If they’d stuck to offering an opinion, they’d be safer from a legal standpoint.

For example, if they were to say that their tacos taste better than ABC Tacos, that’s a matter of opinion, and far less likely to result in a lawsuit than an allegation that ABC Tacos food makes people sick.

Let everyone at your company know that slamming the competition is not allowed.

Think of all the channels available to marketers today—blogs, social media posts, podcasts, website copy, PPC ads, etc. Now think about how many people publish statements on behalf of the brand across all those channels. Everyone at your company needs to understand your policy on discussing other brands, products, and companies.

Employee advocacy is an admirable and valuable thing, but an overzealous employee might go overboard on social media with negative statements about a competing brand. Their devotion reflects well on your brand, but their statement could cost you.

Clearly communicate your policy to anyone who does work on behalf of your brand.

  • No one should make negative statements about competitors in any format (text, audio, video, or graphic) using any channel (email, social media, ad, blog post, etc.).
  • You will take disciplinary action against employees, contractors, interns, or anyone else working for your company who violates this policy.

Train your employees.

There are a lot of reasons to provide marketing training for employees: establishing and maintaining a consistent brand voice across channels, clarifying workflows and approval processes, and minimizing the risk of liability for things like trade libel, false advertising, lack of disclosure for sponsored content, and things like that.

An ounce of prevention is worth a pound of cure: educate anyone who publishes on behalf of your brand before you give them access to your audience.

Make nice with the lawyers.

Sometimes marketers fall into an “us vs. them” attitude in relation to the legal department, but we’re all on the same team. If you’re not sure whether a particular campaign tag line, blog post, social post, or other communication might cross the line into trade libel, ask.

Lawyers aren’t trying to squelch your creativity, they’re trying to keep you from “stepping in it,” so build a close relationship with your company’s legal counsel. You’re much more likely to regret publishing something without review than you are to regret waiting.

So go forth and publish: but keep it classy. “Going low” could cost you!

kerry gorgone

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Director of Product Strategy, Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Twitter.

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