To suggest that an advertiser should assume the role of prosecutor in conducting its own inquiries is very likely to lead to a direct infringement of an American's right to privacy. It's also ludicrous. In a typical endorsement contract, which we've negotiated for countless advertisers, background checks and other routine information gathered from public sources are an acceptable standard procedure. Beyond that, scandal or no scandal, the role of the advertiser is limited to that of any other employer-employee relationship. Can an employer talk to an employee's doctor? Can it take fingerprints, blood tests, lie detector tests or engage in other questioning without the employee's consent? Of course not.
Until one's own right of privacy is infringed it is difficult to understand just how delicate and precious that right is. Celebrities, in particular, live under the constant pressure of the public limelight and have every right to guard their privacy. And they have every right to say "no thank you" to an endorsement contract for any advertiser who doesn't respect that right.
State and federal authorities perform a common set of agreed-upon investigative procedures that are designed to guarantee the right of the individual. Corporations should not interfere with that process by setting up a parallel or duplicate investigative team before, during or after a scandal breaks unless they are prepared to assume liability for their intrusions. Brief, private investigations-yes. Full scale investigations or interviewing doctors and police-never!
Celebrities are human beings. Corporations can't own them, nor can they predict their actions. It's not the job of the marketer to act as the endorser's or the public's conscience. That's why endorsement contracts include the morals clause, to release the corporation from an obligation to a celebrity in the case of scandal. Because the relationship stops there. While the corporation may then have to deal with the damage to its own reputation and good will, that is a risk it assumes when entering a relationship. If the potential for damage is of significant concern, the advertiser can cover most of its out-of-pocket losses through insurance. When O.J. Simpson contracted with Hertz, he did not sign away his constitutional rights.
Douglas J. Wood
Hall Dickler Kent Friedman & Wood