As the toll of the coronavirus rises daily, we are getting calls about what to do if you cannot put out your print newspaper. That might happen either because your advertising drops to the level you cannot afford to print on paper or because you no longer have enough person-power to physically put out the paper. The statute gives you a grace period to miss up to four weeks of publication without losing your status as a newspaper qualified to publish legals. That doesn’t answer the question of what to do about legal notices already scheduled. And can you keep taking legals if you’re only publishing online? Some of you have asked is publishing online “good enough”? The answer to both of these questions is we don’t know for sure, but here are a few thoughts. I want to stress that these considerations are offered in the midst of a true state of emergency. Don’t try these arguments once the world returns to normal (whenever that might be).
Before you consider alternatives to printing, entertain reducing your number of pages or printing fewer days per week. There is nothing in the statute that says how many pages you must publish, and you need only publish once per week to qualify under the statute.
If the catastrophic happens, and you cannot print your paper, reach out. With the pull-together spirit that is a hallmark of North Carolina newspapers, some publishers already have offered their help in the event the worst happens for another paper. Call NCPA Executive Director Phil Lucey to connect you with someone who can help. You also might consider applying for a low-interest disaster loan from the Small Business Administration. https://disasterloan.sba.gov/ela/
If all else fails and you can’t put out a hard-copy paper, even with the help of others, here are some things to consider.
With regard to existing contracts for legal notice advertising, pull out your contract and review it. I hope you have an actual contract with your advertisers. If not, look at the terms that you have posted online. Or on your rate card. Or wherever you outline terms for your advertisers. See if your contract terms contain a provision that excuses you from performance in the event of unforeseen and uncontrollable circumstances. You may have heard the phrases “act of God” or “force majeure.” The coronavirus outbreak and the virtual lockdown ordered by the government is a textbook force majeure: an event or effect that can be neither anticipated nor controlled. If you don’t have an escape clause in your contract, you may still be able to make an “impossibility” argument that forgives you for not complying with your promise to publish legal notices. If these legal arguments are correct, you could just cancel the contracts.
You might not want to cancel the contracts if you don’t have to, though. If you can’t publish on paper, reach out to your legal advertisers and ask what they want you to do. Section 1-598 of the North Carolina Code describes the “publisher’s affidavit.” That statute calls on you to make a statement that your newspaper meets all of the requirements and qualifications required by G.S. 1-597. If you haven’t missed four weeks of publishing, then you’re still a qualified paper. But you haven’t published the legals in print on their original schedule. If your legal notice advertiser wants you to keep including the legal ads in your online-only edition, then I suggest you replace your traditional affidavit with a temporary new one. The new affidavit should state specifically and in detail what was published when and how. Both you and your advertiser may be in a better position to argue that the legals were effective if you have the ability to push out your paper directly to your subscribers. If you have a database of subscribers and send them even an abbreviated version of the paper – including legal notices -- that would be good. The law requires publication “to actual paid subscribers,” and you might be able to argue that this is sufficient.
What about accepting future legal notice advertising? I imagine that for some time, the need for legal notices will recede. I doubt it will disappear entirely, though. If someone calls to place a legal notice, consider having a candid conversation about the perilous times we are in. If you think you may be at serious risk of not being able to publish a hard-copy newspaper, tell advertisers what steps you will take to print on paper as long as you can. Tell them also what you intend to do if you cannot and include in that plan any direct-to-subscriber publication you anticipate. If you can get their consent to that plan, include an explicit force majeure clause in those future contracts and modify your publisher’s affidavit. If you do these things, then you have done all that you can do.
The value of local news media has never been more obvious. The New York Times and CNN are wonderful resources with skilled reporters providing invaluable information. I check in with them almost hourly now. But they can’t provide your readers all the information they need. North Carolinians are relying on you to let them know about school closures, outbreak hotspots, the actions of local hospitals and health departments. This information is local and critical. No national media can provide that; you are it. Just this week I heard Wake County officials in a press briefing say, “We would ask you to help us ask the public” to stay home. You’re the mechanism for local officials to get out their message.
I want you to be here – healthy and financially successful – for decades to come. It’s in that spirit that I offer these ideas. In this uncertain world, the efficacy of these steps is also uncertain. As we grasp for ways to move forward, though, I hope they provide some ideas with the goal of resuming operations robustly just as soon as you can.