Now, more than ever, a good relationship with in-house or outside
legal counsel is imperative for every PR practitioner.
Three new or amended Federal laws, and a relatively new development
on the litigation front in Ontario, have all impacted greatly on
the practice of public relations in Canada.
The amended Federal Competition Act makes it necessary to ensure
all publicized product or service claims have legitimate back up.
For example, claims such as "best", "newest"
or "fastest" must be carefully substantiated.
"The landscape is changing and even if a marketing claim does
not result in criminal charges pursuant to the Competition Act,
it may now and probably will be the subject matter of private complaints
which clearly would increase the possibility for a great deal of
new 'enforcement' activity under the Competition Act," says
business lawyer Richard D. Harlow. "The difference is that
the 'enforcement' may be of a private civil nature and not of a
The new Federal Copyright Law has also made the use of clippings
and broadcast tapes, particularly the electronic versions thereof,
tricky. There has always been an issue regarding where clips can
be used for "internal purposes" and where they become
used "for external/sales purposes" which can get PR, both
in-house and agency, in big trouble.
"Media rights holders have been very clear - no internal redistribution
without a license and definitively no external distribution,"
says John Weinseis, President, Bowdens Media Monitoring Limited.
"This is now reflected in many of Bowdens copyright licenses.
It's going to get more complicated as rights holders become more
aggressive in policing and enforcing their rights."
And there is the Federal Privacy Act, fully implemented in 2004
that could impact the use of news media lists. My practice has always
been to remove a journalist from my own database when they complain
about receiving news releases inappropriately. I always apologize,
remove them immediately and offer to notify the list services such
But if a freelance journalist uses a private E-mail to receive information,
could that journalist claim that the act of receiving unsolicited
news releases is SPAM and therefore violates their rights?
"Our distribution lists are carefully tailored to match the
subject interests of each recipient to mitigate any spamming concerns,"
says Neil Baird, Vice President of Marketing at CCNMatthews. "But
certainly, if anyone complains, they are immediately removed from
that list and asked if there is any other types of news they'd like
And finally there is the removal of restrictions against using
contingency fees in Ontario, one of the last jurisdictions in North
America to demand that retainers must be paid in litigation suits.
The Law Society of Upper Canada in 2002 removed this barrier, and
litigation can generally now be conducted on a percentage of winnings
PR contracts with clients now often stipulate that one million
dollars in general liability insurance is required - which is harder
and harder to get these days without an equal amount in professional
liability (or errors and omissions insurance), an expensive necessity.
Such coverage can cost several thousand dollars a year - rather
difficult for independents or small agencies to swallow.
"Our firm has been receiving an ever increasing number of
calls from people requesting professional liability," says
Bill Kirkwood of Erb and Erb Insurance. "This is unusual in
that these people for the most part have not had this kind of coverage
before. We are seeing the trend from both the government as well
as private sectors."
With these new developments in the Canadian legal landscape, it
is imperative that legal counsel be involved in the PR process -
not just to rubber stamp external communications - but also involved
in planning and protocol steps to ensure the PR process does not
run afoul of any of the new legislation.
Mark LaVigne, APR, is Past President of the Canadian Public
Relations Society (Toronto) and runs a media relations and media
coaching firm based in Aurora, Ontario. He can be reached at (905)
841-2017 or firstname.lastname@example.org.