Legal Update

From the Legal Hotline (877-NEWS-LAW)

Game promotions, political advertising rates and more in today’s Legal Hotline recap.

Q. We are considering an advertising/circulation promotion where we contract with a local car dealer that would run a weekly ad promoting a game of chance to win a car or use the proceeds toward another vehicle of the participant’s choice. As part of the chance to win, participants would be encouraged to subscribe to the newspaper with a sign-up option. They could enter as often as they like, for free–no purchase necessary.

A. This would likely be considered a game promotion in connection with a sale of consumer products/services regulated under section 849.094.  We reached out to Susan Tillotson Bunch at Thomas & LoCicero, who is an expert in the area. She advises the promotion would need some clarifying rules: more detailed and prominent disclosures, clarity on entry language and confirmation on treatment of subscriber/non-subscriber entries. This seems onerous but can be accomplished fairly easily. She points out that the game would need to be registered/bonded with the Department of Agriculture and Consumer Services because it hits the $5,000 threshold. Finally, the deadlines for submitting forms/bond to FDACS is 7 days before the game commences–this is important because they can impose fines for late filings. Here is the FDACS website with questions and answers, filing packet, bond form, and agency rules implementing the program: https://www.freshfromflorida.com/Business-Services/Game-Promotions-Sweepstakes


Q.  From time to time at our paper, the question comes up about who has the “right” to cause an obituary to be published (we do charge, but not much, for obits over 65 words, in case that makes a difference). In the current example, the doctor died. His longtime wife, whom he apparently divorced shortly before his death, wrote a beautiful obituary tribute.

Just as we were getting ready to publish it, the ex-wife got a call from the doctor’s son and/or stepson, saying the divorce meant she was prohibited from submitting an obit for the doc.

My thought is that any Tom, Dick or Sue who cares enough can publish an obit for someone else, as long as the information is not defamatory, or so long as it’s reasonably factual, as near as we can determine. Or something like that.

Here’s another element of this. When there is division in families, sometimes people want to list different sets of survivors (only the ones they like, usually).

What say you, Oracle Sam?

A. Looking beyond my crystal ball to the statutes and case law, there appears to be nothing that restricts who can submit an obituary upon the death of a person. Conversely, there are no laws on who is authorized or obligated to submit one. As you know, the largest newspapers actually have (or did) have a staff of obituary writers that compose the life stories of “famous” people. I am sure they receive complaints from time to time from different “sides” of the family or the public, just as the ex-wife here has regarding her own obit.

Of course, the ex wife’s obit– as you point out– cannot be defamatory, that is, contain language that seems to injure reputation or ridicules (either deceased or others mentioned). That does not seem to be the case here, however, as the ex-wife’s language is apparently complimentary.  Of course, you can also edit the obit in accordance with your own editorial standards.

In this case, the stepson may consider the piece (if he has seen it or after it is published) to be inaccurate in one way or another but, apart from editing for typos and style errors, it is not the newspaper’s responsibility to verify every biographical detail or timeline of events. Many newspapers use Legacy.com for their obituaries and the company has Terms of Use that disclaim the accuracy of the content submitted by others.

More likely the stepson is objecting here just because the author is the doc’s ex. Emotions can run high and there is anxiety to tell the story “right” despite the well-meaning ex and all the tricky issues involved. Fortunately, that is not the job of the newspaper to sort out—though I suppose you could offer wording suggestions, if that is even something you want to do.

The stepson of course is also free to submit his own obit—at additional cost.

As for listing different survivors, I don’t think you have much control over that and you can publish (and they can pay for) different versions if submitted.

Oracle Sam has spoken. Let me know if you have any questions!


Q.  There was a meeting on a coastal access project related to Deepwater Horizon oil spill last night where DEP and NOAA was present. The meeting was not published in the local newspaper but was published on various government websites, which they considered sufficient notice. Other than the officials themselves, there were only two people in attendance—and one of them was a county employee. Should they have been required to put this notice in print in the local newspaper?

A. This is terrible notice — the typical citizen is simply not perusing these innocuous websites. It belongs in the local newspaper. That said, these federal and state agencies are not required to do so unless there is a specific statutory/regulatory requirement, which does not appear to be the case here. On the other hand, nothing prevents them from doing it—and, in light of the low turnout, they clearly should have.


Q. A national weekly newspaper organization we belong to is setting up a national political network for the upcoming 2020 “season”.  Each paper sets their own rate, but they are seeking a very competitive rate to encourage sales.  My question/concern is this…once you provide a published rate, am I bound to maintain that equally available for all candidates including locals?  My thinking is if I provide a discounted rate…and quite honestly having them go after national content I would never see…that is now my overall published rate.

A. Political ads like those here are not “legal ads” regulated under Chapter 50. As a result, the required legal ad rate (e.g., minimum established rate) would not be relevant here—so that is not a worry.

As for political ads, there is a provision in Florida law that says you cannot charge one “candidate for state or county public office…in excess of that charged another political candidate.” Section 106.16. So long as you are charging the candidates in these races the same lowered rate, you would not be violating that provision. Further, if you decide on the lower rate for some part of the year, you are not locked into charging that rate for the remainder of the year. See Div. of Elections opinion DE 79-02 – August 20, 1979.