When lawyers get in the way of PR

I received a press release via email a few days ago from a well-meaning PR person.

Guess what? I can't write about it because at the bottom of the release is this:

NOTICE: This electronic mail transmission contains confidential information intended only for the person(s) named. Any use, distribution, copying or disclosure by any other person is strictly prohibited. If you received this transmission in error, please notify the sender by reply e-mail and then destroy the message. Opinions, conclusions, and other information in this message that do not relate to the official business of AGENCY X shall be understood to be neither given nor endorsed by AGENCY X. Before opening any attachments please check them for viruses and defects. When addressed to AGENCY X clients, any information contained in this e-mail is subject to the terms and conditions in the governing client contract.

Yikes! The notice at the bottom of the press release says I cannot distribute the press release. This is what happens when lawyers get in the way of PR.

Or consider this typical press release from Shell that I found on one of the press release wires. Now, I'm not picking on Shell here, I'm making a general point. I could have chosen any one of a thousand releases for this example.

New Shell $aver Card(SM) Available at Shell-Branded Stations Nationwide

HOUSTON, Jan. 5 /PRNewswire/ -- Shell Oil Products US launched the Shell Saver Card today, becoming the first gasoline retailer to make an electronic check payment method available to consumers nationally. This latest Shell payment option provides consumers with a convenient way to pay for purchases with a direct link to a checking account and savings on each gallon of fuel pumped at Shell stations.

The body of the press release has several other paragraphs and contains 361 words. It is a well-written new product release. But then the lawyers get involved and add a 519 word "Disclaimer statement" (sometimes called safe harbor). The legal crap is much more lengthy than the news and includes minute definitions of things that aren’t even in the release such as these two sentences:

Forward-looking statements include, among other things, statements concerning the potential exposure of Royal Dutch Shell to market risks and statements expressing management's expectations, beliefs, estimates, forecasts, projections and assumptions. These forward-looking statements are identified by their use of terms and phrases such as "anticipate", "believe", "could", "estimate", "expect", "intend", "may", "plan", "objectives", "outlook", "probably", "project", "will", "seek", "target", "risks", "goals", "should" and similar terms and phrases.

Yikes! By including these statements, the press release says don’t believe a word we’re saying. This is what happens when lawyers get in the way of PR.

Over the holiday break I read a great book by David Henderson called The Media Savvy Leader. David talks a lot about what he calls "bad habits" around these sorts of disclosures. David says that the legal people include this sort of language so the company can't be accused of lying. That's a terrible strategy if you want journalists to believe you! David suggests: "Always tell the truth and you won’t need to hide behind an attorney or safe harbor."

Question to PR people: Have you ever had a lawyer ask you to review a contract in order to remove the jargon and legal gobbledygook? I never have. So why does it happen the other way?

I was fortunate when I was VP of corporate communications for several NASDAQ publicly traded companies (before I escaped the corporate world in 2002). I had an understanding with the lawyers and we only put the safe harbor in the quarterly financial releases, but not the others. I'd recommend that you come to an understanding with your legal department and do the same.

For more on this subject, check out David's book The Media Savvy Leader. It is a terrific book because David has been a success both as a journalist and as a media-relations practitioner. He is an Emmy Award-winning former CBS network news correspondent so he knows what it is like to be a working journalist. And as a media-relations advisor and strategist, he has been responsible for such stunning successes as generating massive national media attention on little Branson, MO. And Henderson knows the online world. He writes a terrific blog and knows how online communications fits into the mix.

Comments

[Suart Atkinson]

But it isn't just PR. Services that you purchase usually include a clause that states that 'if the service doesn't work, it doesn't matter' - because you don't have a service level agreement.

So lawyers get in the way of everything - especailly acting reasonably.

[Glen Turpin]

With respect to your first example, David, the PR person may not have the ability to dispute or opt out of that. Many businesses have their mail servers automatically append a disclaimer to all outgoing messages. So while it is irritating that you received the message with a disclaimer, the PR person is not necessarily to blame.

I'm not defending the disclaimers or arguing that PR people don't do stupid things sometimes, but they're not guilty of all the stupid things they get blamed for.

As for coming to an understanding with the attorneys you work with, I couldn't agree more.

[Dave Elchoness]

As an attorney myself, I know that lawyers lose perspective because of a very highly developed sense of risk aversion. This is not an excuse. It's a huge problem. Corporate dollars and efforts are routinely wasted by risk avoidance arising out of the law department to the point where the business is undermined. My suggestion: Push back. Understand the real cost, if any, of taking risk. Ask your lawyer for options. Then, proceed smartly.

[Mark Pack]

I've had fun teasing a few people who have sent me news releases about what their disclaimers say...

In most cases it's been an automatic footer stuck on all emails, and so as much due to their IT team as to their legal team.

At least, unlike software licenses, none of the footers have switched to CAPITAL LETTERS PART WAY THROUGH FOR NO APPARENT GOOD REASON OTHER THAN TO MAKE IT HARD TO READ.

[Mark]

David, as someone who has practiced both as a lawyer and a PR person, I couldn't agree more.

This drives me up the wall. As it does with general emails I receive where 50% of the email is a disclaimer.

As someone who now works in media - in editorial - I can tell you that I actively avoid communications like this.

Great blog. Thanks!!

[Torsten herrmann]

We in Europe are sometimes forced by American lawyers to include those statements. I hate them and German journalists hate them. I wonder why companies do not include at least something like "unless it is a generally available information like press releases or brochures. I mean, how do you do sales or lead generation with those kind of statements? Don't give our brochures to anybody else involved in purchase decisions?

[Steven Woods]

David, it's a great point that you make. I often see discussions about how blogging will/is "going mainstream", and I think you've hit on the point of why it will work best as a personal/periphery media type. As soon as corporate entities are the actual bloggers the constraints of various legislative requirements MUST put that kind of damper on their expression of thoughts (forward looking or not).

It's the personal viewpoint of blogs that adds speed and non-hindered communication - as well as the refreshing authenticity.

Thanks for raising an important point.

[David Meerman Scott]

Glen Mark and Mark,

If it is the case that the company servers automatically stamp emails with a disclaimer, then the IT people, the CEO, the HR people, the PR people, the legal people, and anyone else who has a say in the matter are either a) ignorant, b) lazy c) insane and d) stupid.

The simple solution is to get another email account on another server. Make a new URL (maybe instead of "company.com" it is" companyPR.com") and send the mails out with no disclaimer.

It is just ridiculous to spam people like me with PR emails only to have a disclaimer saying I can't tell anyone about it. It's better to do nothing than to waste money annoying the media in this way.

[Holly]

Did you hear the one a few months ago when Del Monte sent out a press release about Milk-Bone(R). Yeah, the symbol didn't always translate correctly, so they sent out a release that mentioned "boner" several times. Thanks a lot, lawyers.

http://2thebacon.blogspot.com/2008/04/bad-pr-idea-of-week.html

[Francis Moran]

My favorite horror story stems from many years ago when I was part of a crisis communications team brought in to help an oil company respond to a gasoline leak at one of its stations that had caused the evacuation of several city blocks.

After being beaten up badly by municipal leaders, our client took our counsel that it should do the right thing and take care of people. I wrote a news release that contained the phrase, "...a gas leak attributed to one of our stations...," and fired it off to the lawyers for approval.

I'm giving away my age here but this was in the days when faxes were the swiftest mode of communication and we stood by the machine waiting for the approval. It didn't come, our client went off to its news conference, took full responsibility, gave details of how it was going to compensate everyone affected, and won huge praise from the same municipal officials who the day before had been excoriating the company.

We got back to the office in ebullient spirits. The lawyers' now-too-late amendments were on the fax machine. Among other changes, their version of the release now read, "...a gas leak attributed to an unattributable source..." It was more than bad grammar; it was very bad counsel and worse business practice.

I'm with Shakespeare (who's just a little older than me...), who wrote, "The first thing we do, let's kill all the lawyers."

[Zach Pavol]

I have another horror story related to marketing/advertising. We worked with a telecommunication company a few years ago that was in desperate need of a clear niche in a very competitive industry. The ad agency they hired conducted tons of research and found that this company had a huge advantage over the competition when it came to technology because their network was much faster. So the advertising and marketing departments furiously started creating material to focus on that strength, but then the legal department got involved and wouldn't let them say things like "we're faster" or "we have the fastest network". The messages that came out instead were so watered down that the company's competitive edge did not come across at all. The ironic thing is now the competition has caught up and has TV commercials running all the time touting the "fastest network".

[Ari Herzog]

It could be construed your above inclusion of the "notice" breaks the intended confidentiality clause, as the notice was part of the email.

Morons.

[David Reich]

Yes, the legal people do sometimes get in the way. In the case of the news release you mentioned, I have to think it was an automatic footer, as another commenter said. But still, it is funny... and frustrating.

[Jen Zingsheim]

I've received a few of those releases, and as a former PR person have been baffled by why anyone would send out a release that states well, that you can't release it.

Even if it's an automated signature on an outbound system, it makes the PR person look really clueless. Were I still in PR and this goofiness was at the bottom of each email, I'd use it as the reason the releases weren't getting picked up every chance I could until it changed (and honestly this might not be that far off the truth).

[David Meerman Scott]

Jen, you're right. Why would anyone risk legal action to simply talk about what is in a release? I wouldn't.

[Ann H. Shea]

Thanks for a chuckle, and a reminder for all of us to pay attention to the little details!

[Kay Ross]

I'd like to respond to Suart Atkinson's comment of January 6: "...the PR person may not have the ability to dispute or opt out of that. Many businesses have their mail servers automatically append a disclaimer to all outgoing messages. So while it is irritating that you received the message with a disclaimer, the PR person is not necessarily to blame."

Any PR person worth his or her salt IS to blame. It's his/her job to educate EVERYONE in the company that EVERY communication influences people's perceptions of the company. SOMEBODY in the company made the decision to "have their mail servers automatically append a disclaimer". But a good PR person must review EVERY way in which the company communicates with its publics (and most especially every communication with the media!), and make a nuisance of himself/herself to ensure it's done effectively.

[David Meerman Scott]

Kay, I absolutely agree with you. I've told PR people who face the automatic generators on email to get a gmail account for the PR department.

David

[Surreptitious Evil]

You might have a look at some of the UK military documents published online - like this one.

I quote, "Not to be communicated to anyone outside HM Service without authority." So why have you put it on the public internet?

[Surreptitious Evil]

Sorry - first time I have commented here. Here is the link: http://www.mod.uk/NR/rdonlyres/6F94F9BE-76DD-4487-BEAA-C1F8CCD3EFDE/0/2008DIN03_020.pdf