Q:       What is native advertising?

A:        It is usually easy to identify advertising when you pick up a magazine or watch a television program because the ads are clearly differentiated from the magazine article or TV program. Native advertising is a form of paid media that may be harder to identify as advertising because it “looks and feels” like editorial content and is integrated with whatever a consumer may be reading or viewing.  

Q:       What’s the big deal?

A:        The issue is whether you, the consumer, realize the content is advertising.  Most of us approach advertising expecting that the advertiser isn’t objective and is trying to sell us something. But we tend to approach editorial content from a different perspective, and may be more likely to accept as “truth” advertising that is merged with content. Blurring the lines between editorial content and advertising could lead to confusion if not deception.

Q:       Is native advertising regulated?

A:        No, in the sense that there are no regulations set out in the Code of Federal Regulations that expressly address this. But yes in the sense that Section 5 of the Federal Trade Commission Act gives the Federal Trade Commission broad authority to prohibit “unfair or deceptive acts or practices in or affecting commerce.”  The FTC has enforcement power if it deems a piece of native advertising “deceptive,” even without clear cut guidelines. So, if the FTC finds a native ad to be “deceptive,” it can file a court injunction and apply “corrective practices” against the advertiser.

Q:       I run a small business, and wonder if the FTC might find my native advertising to be deceptive. How can I avoid an enforcement action by the FTC?

A:        Be as transparent and conspicuous as possible within the framework of the editorial content you offer. For example, some websites feature a “blog roll” with boxes running down the page showing a thumbnail photo and a snippet of the blog post. If the blog roll contains posts that are purely editorial and others that are native advertising, you should clearly identify the “native ad” posts. Use some background shading along with some text to indicate that the “native ad” content is paid advertising.

In addition, make sure your readers/viewers know what they are getting. Just using the words “sponsored by” may not be clear enough. For example, does “sponsored by” mean someone paid the website to write the content or does it mean that the sponsor actually wrote the piece? If the latter is true, you should consider providing additional text such as “sponsor-generated content,” which may be a more accurate description.

Q:       What should I keep in mind when developing native ads for my business?

A:        Native advertising potentially offers you two advantages.  First, it is less disruptive than traditional advertising. The advertising content flows more naturally with the editorial content. Second, it allows you to present interesting, engaging content that readers enjoy. You can easily make sure the reader knows that what you’re providing is advertising by offering transparency and clear disclosure.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cincinnati attorney John C. Greiner, partner at Graydon Head & Ritchey LLP.  Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       Are there places in Ohio where sperm and eggs can be donated?

A:        Yes. Many Ohio medical centers offer assisted reproduction technologies (ARTs); some Ohio cities have more than one center. Sperm donation has been available since the late 1940s, but now women can also donate eggs (ova) to each other. Sometimes gamete (sperm or ova) donations are preserved through freezing and may be used ten or more years after donation.

Q:       How do people use assisted reproduction technologies?

A:        Due to delayed childbearing, a decline in stable marriages, an increase in venereal disease and greater understanding of genetic issues, increasing numbers of people (couples and singles) are considering various types of technologies to make reproduction possible. These technologies can allow a woman to become pregnant and bear a couple’s own genetic child. Or, a single person or a couple may use gamete (egg or sperm) donors or use the services of a gestational surrogate.

Q:       How does Ohio law determine the child’s legal parent when more than two people make the child’s birth possible?
A:        Generally, Ohio law considers the child’s genetic parents to be the “real” legal parents. Genetic parentage can be determined through medical testing before or at birth, so if a gestational surrogate becomes pregnant using the intended parents’ ova and sperm, parentage questions don’t usually arise.

            If donor gametes are used to create a pregnancy in the intended mother under medical supervision, the physician uses a waiver and a contract to establish that the intended mother and her spouse/partner are obligated to serve as parents to the child. Ohio law recognizes ART procedures that occur under medical supervision.

            If the child is not the genetic child of the parties and is not born of the intended mother, the courts may rely on written agreements between the parties to determine parentage. Ohio’s public policy does not prohibit such agreements.

Q:       What legal risks are associated with assisted reproduction technologies?

A:        Pregnancy and parenting carry high legal risks that increase with the number of people involved in the process. For example, recessive genes can play strange tricks. Sometimes you get twins or triplets you didn’t expect, or children may be born early or have birth defects. Generally, the law assumes that people who choose to use ARTs accept such risks when they decide to participate in the procedures. Aside from medical and legal implications, the participants, their families and the child(ren) must deal with relational and psychological issues. Some ART programs strongly recommend that people planning to use assisted reproduction technology receive psychological counseling.

Q:       Why do we need laws, contracts and waivers when it would be a lot easier and cheaper to use home insemination?

A:        The state has an interest in protecting the rights of children and making sure they are supported, as well as an interest in protecting donors and intended parents. To make sure the rights of all parties are respected, the state uses laws, contracts and waivers to provide a clear path for making parentage determinations, recording parties’ intentions, and allowing educational and civil authorities to deal with families in an orderly manner.

            To protect donors from liability for child support and intended parents from custody claims by donors, the law requires procedures using ARTs to be medically supervised. Unsupervised procedures such as home inseminations (sometimes called “turkey baster” inseminations) carry particular risks. For example, it is possible to contract a sexually transmitted disease (STD) without direct sexual contact. A woman who contracts an STD from a donor through a home insemination creates additional complications that medical supervision might have prevented.

Q:       Can a child conceived through the use of donor gametes find his or her “donor parents”?

A:        Many donor contracts state that the donor’s identity will remain confidential, and medical professionals have long honored such commitments. However, with the advent of the Internet and DNA testing for genetic purposes, children can find their donor parents without help from medical personnel. Such searches can prove traumatic, however, and those making them should seek psychological counseling first. Donors may also be harmed by such searches. For example, a donor’s biological child may attempt to make claims on the donor’s estate. Because of this possibility, donors should protect themselves through careful personal and estate planning, and be sure to inform an estate planner of any previous gamete donations.

This “Law You Can Use” consumer legal information article was provided by the Ohio State Bar Association.  This column was prepared by Columbus attorneys Susan Garner Eisenman, chair of Ohio’s Adoption Law Roundtable and ARTS and AAAA fellow and Robin B. Baird, who represents medical providers of ARTS.  Articles appearing in this column are intended to provide broad, general information about the law.  Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.  

Q:       I criticized my employer to another employee in our company’s lunch room, and one of my co-workers called me a whistleblower. Am I?

A:        Probably not. Generally, a whistleblower is someone who reveals wrongdoing within or about an organization to someone in a position of authority or to the public. Many whistleblowers learn of an organization’s wrongdoing because they are employees, but whistleblowers can also be consumers, contractors, vendors or any member of the public who has a reason to know about suspected wrongdoing. Federal and Ohio law specifically defines whistleblowing as the reporting of fraud against the government or regarding specific types of suspected violations having to do with securities, tax, financial reporting, Medicare, waste of public funds, suspected felonies, specified crimes, abuse or neglect of residents at a health care facility, discrimination, wage laws and worker’s compensation. Ohio law protects whistleblowers if the whistleblowing is determined to be in the state’s best interest.

Q:       How would I make a whistleblower complaint?

A:        Follow the instructions given in your employer’s published policies or code of conduct. Those instructions will probably tell you to give your written or verbal concerns to your supervisor or to a human resources or compliance person, and may suggest an alternative to this process if is the suggested methods are not appropriate in the circumstances. If your workplace has no written complaint process, go to the appropriate supervisor or officer with your complaint. Many employers also have an established method so that anonymous complaints can be made and investigated.

            Ohio has a specific whistleblower statute that applies to certain employment situations. To receive statutory protection, you must first notify a supervisor or other responsible officer about suspected wrongdoing before you can receive whistleblower protection for reporting to state officials about your employer’s suspected criminal offenses. (Criminal offenses include a co-worker’s criminal activities, suspected felonies and actions likely to cause an imminent risk of physical harm to humans or produce a hazard to the public.) After you report the violation to state officials, your employer has 24 hours to correct the violation and inform you of the correction.  This advance notice requirement does not apply if you are reporting criminal violations of Ohio’s laws concerning air pollution, solid and hazardous waste, safe drinking water and water pollution. 

            If you are making a complaint to the federal government, you should seek help with how your complaint should be made, and to what government agency or department. The federal False Claims Act allows private citizens to bring lawsuits against federal contractors who commit fraud against the government. To bring such a suit, you must have some private knowledge of the fraud and be represented by an attorney. If your suit is successful, it is possible that you may receive a portion (usually about 15 to 25 percent) of any recovered money (“damages”).

Q:       What are my rights as a whistleblower?

A:        If your complaint is protected by Ohio or federal law, you may not be fired or have other retaliatory actions taken against you because of your whistleblowing activity. If you believe your employer has retaliated against you, you should use all of the same channels to complain. You have the right to bring legal action if the retaliation is not addressed.

Q:       What are my responsibilities as a whistleblower?

A:        Although you have the right to be protected from retaliation, you cannot take or access data to which you have no rights or disclose secret or confidential information. As the recent cases involving transmission of government documents to the website WikiLeaks illustrate, these are considered independent acts that can be disciplined or prosecuted even if the underlying complaint was based on a reasonable, good-faith belief. Also, your right to be free from retaliation does not protect you from your own performance issues or misconduct in the workplace.

            Before whistleblowing, you must base your report of wrongdoing on your reasonable belief, and make your report in good faith—never casually.  Your complaint does not have to be proven right, but if you make intentionally false or unfounded complaints, you may face workplace discipline or penalties for reporting false information to the government. You should expect to be questioned during an investigation of your complaint, and you must be able to support it. If you are not complaining anonymously you cannot insist on confidentiality, since your employer or the investigating agency must be free to investigate and take action in response to your complaint.

                 

Q:       Where can I get more information about whistleblowing?

A:        For general information about whistleblowing, visit the National Whistleblowers Center website at www.whistleblower.org. The federal Department of Labor lists whistleblower protections under federal labor laws at www.dol.gov/compliance/guide/whistle.htm. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Julie Davis, partner at James E. Arnold & Associates, LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

            Serious educator misconduct is exceedingly rare, but stories of neglect and abuse of children by teachers are deeply troubling. In Ohio, laws help to ensure that unprofessional educators cannot simply leave one school and commit further misconduct at another.

Q:       What is educator misconduct?

A:        Ohio law has long prohibited “conduct unbecoming” the teaching profession, and in 2008, the Ohio State Board of Education specifically defined such misconduct in the Licensure Code of Professional Conduct for Ohio Educators (Code). These rules require educators to:

• behave in a professional manner;
• maintain a professional relationship with all students;
• accurately report information required by the local board of education or governing board, state education agency, federal agency or state or federal law;
• adhere to federal, state and local laws and statutes regarding criminal activity;
• comply with state and federal laws related to maintaining confidential information;
• serve as positive role models and refrain from using, possessing or unlawfully distributing illegal or unauthorized drugs;
• ensure that school property, public funds or fees paid by students or the community are used in the best interest of students and not for personal gain;
• fulfill all of the terms and obligations of their employment contract.

Q:       What happens when an educator is accused of violating the Code?

A:        It depends on the seriousness of the allegation. The vast majority of allegations found to be true are handled internally by school districts. A school does not have to report violations to the Ohio Department of Education (ODE) if the teacher continues to be employed, but if the teacher leaves the school’s employ due to actual or alleged misconduct, then the school must file a report. When ODE receives such a report, it determines if an investigation is appropriate. Nearly 90 percent of these reports are found to be without merit, either due to a lack of evidence of misconduct or because ODE determines that the alleged misconduct is not serious enough to warrant discipline. When discipline is warranted, possible penalties range from admonishment to denial, suspension and revocation of an offending educator’s license.

Q:       Who makes a report to ODE, and when is it required?

A:        Anyone can report suspected educator misconduct. Reports of prior criminal convictions, which are automatically generated from licensure applications and periodic background checks of current educators, represent the vast majority of reports ODE receives. Children services and school districts are the next largest sources of reports. Some school district reports are voluntary, but districts must report to ODE whenever an employee leaves employment due to actual or alleged misconduct, or when an investigation into alleged misconduct is underway. This report is required whether the employee is fired, resigns or leaves the employment in another way. The superintendent must provide all employee reports (except for those involving the superintendent or treasurer, which must be reported by the school board president).  Only school superintendents and board presidents are required to make reports to ODE, but any person may make a report and is protected from liability if it is made in good faith.

            Also, “mandatory reporters” (those holding certain state-issued licenses, including children services and law enforcement personnel, as well as teachers and school administrators) must report to law enforcement or children services if they suspect any person, including an educator, of child neglect or abuse. Unlike reports to ODE, these reports are required even if the school still employs the suspected individual, and all licensed educators (not just superintendents and board presidents) must report. Further, the law requires educators to err on the side of reporting if there is any doubt, so even a low level of suspicion can trigger a report. Once the reporting requirement is triggered, it is illegal for an individual to delay reporting while an internal investigation is completed. Children services staff conducts most investigations internally, but law enforcement agencies become involved in serious matters. Failure to make mandatory reports can result in criminal charges for the licensed individual, along with professional sanctions.

Q:       Can schools allow an employee to resign quietly to avoid the reporting requirements and bad publicity for the district? 

A:        No. Schools must report to ODE whenever a separation of employment results from actual or alleged misconduct, even if the employee resigns before the school completes its investigation. This reporting requirement is not negotiable, and the school superintendent’s failure to make a required report is a criminal violation. Moreover, in cases of suspected abuse or neglect, the school must make a separate report to children services or law enforcement without delay and regardless of the employment decisions made by a district or the suspected individual.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Bill Deters and Jeremy Neff, attorneys with Ennis, Roberts & Fischer in Cincinnati. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.