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Transparency is important in subscription campaigns

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To drive revenue, publishing companies are increasingly producing "premium editions" for their newspapers.

Many legal issues must be considered when preparing newspaper subscription promotions. What you communicate about "premium editions" – the cost and how they impact the length of a newspaper subscription can be critical, legally. These legal issues were brought into sharp focus in a recent lawsuit.

Imagine one morning at your office you are served with a class action lawsuit alleging the following:

  • Your newspaper has a business practice designed to take advantage of its subscribers.
  • Subscribers sign up for advertised offers such as "One-Year Subscription" or a "26-week Subscription." But that is not what they received.
  • Instead they receive, as frequently as once a month, a so-called premium edition.
  • This premium edition is filled almost exclusively with advertising and other "puff" pieces.
  • Subscribers are charged $2 per issue for the premium edition.
  • Rather than send the subscriber a bill or give them a chance to turn down the premium edition, $2 in value is deducted from the end of the subscriber's subscription.
  • Subscribers are not given the chance to opt out.
  • The details about the surcharge are buried in fine print that contradicts the explicit plain language of the advertisements that have bold headlines promising a fixed-length subscription.
  • Worse, subscribers who are signed up for automatic debit programs are likely to never notice their subscription has been materially shortened.
  • This practice was designed "to fly under the radar."
  • Advertising a fixed-length subscription and then modifying it in fine print is an unfair and deceptive act that violates the law.
  • The complaint cites Federal Trade Commission policy on deception: "Depending on the circumstances, accurate information in the text may not remedy a false headline because reasonable consumers may glance only at the headline. Written disclosures or fine print maybe insufficient to correct a misleading representation."
  • The lawsuit asked for two remedies:
    • Refund all subscribers the money charged for the premium editions.
    • Issue a permanent injunction preventing your newspaper from advertising fixed-length subscriptions that it intends to materially shorten with premium editions without sufficient disclosure.

Most states have consumer protection laws or unfair business practice laws that are broadly worded. In one state, the standard jury instruction given in an unfair or deceptive practice case reads as follows:

"In order to prove that the defendant engaged in an unfair or deceptive act or practice, it is sufficient to show that the act or practice had the capacity to deceive a substantial portion of the public. Plaintiff does not need to show that the act or practice was intended to deceive."

The law of each state must be examined to determine the legally appropriate language to be used in your subscription sales and promotion materials.

In conclusion, after reviewing your sales and promotion materials, you should feel confident your materials do not in anyway deceive your subscribers. You should feel confident that you can successfully defend yourself against the allegations in the lawsuit described above. This is an area where transparency is going to be important not only for legal reasons, but for good subscriber relations reasons. 

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

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