MEDIA LAW: Calling in the lawyers

A damaging story is about to break and a reputation is on the line. Time to get the lawyers involved, says Hannah Marriott.

While some PROs worry about being heavy-handed, there is no doubt that securing the services of a lawyer is sometimes an effective way of killing a damaging story

Celebrity PR expert Gary Farrow exp­lains when a newspaper editor ­rec­eives a call from someone like Keith Schilling (see below), ‘they know he isn’t going to muck around’.

Lawyers can help minimise reputational damage in a number of ways, ­inc­luding securing injunctions or helping to negotiate clarifications or ­corrections. While clients are keen to avoid huge legal bills, ‘sometimes there is a need’, says Farrow.

Mantra MD Lawrence Dore ­exp­lains that involvement with lawyers goes well beyond celebrity PR. If a ­story seems to be brewing in the corporate world, ‘we consult the lawyers on what we should say on the record. Anything we say could be used in court’.

But while some PROs consult lawyers on an almost daily basis, many ­others rarely think about legal matters.

Predictably, lawyers are keen to change this, and some offer PR agencies free counsel and organise workshops. The CIPR also offers legal advice on copyright, celebrity endorsement and data protection.

Here, PRWeek profiles three heavy-hitters that experienced PROs often call on for legal support.

OLSWANG

Dan Tench partner

Staff 85 partners and 248 lawyers, of which three partners and three lawyers work in the Media Litigation practice
Headquarters Holborn, London

Has acted for a number of undisc­losed FTSE 100 companies, Sunder­land Housing Group, broadcaster Jon Snow and actor Tom Cruise.

Olswang does a great deal of corporate reputation management work, often partnering agencies such as FD and Brunswick. Tench explains media crises have both a PR and a legal side.

The firm’s work covers high-profile individuals too. It recently secured a prominent apology in The Mail on Sunday, after the newspaper incorrectly accused Jon Snow of having an affair.

The ‘classic situation’, according to Tench, is for newspapers to threaten to run an extremely damaging story, and for PRs to call lawyers in when they cannot stop it themselves.

‘If it is a genuinely damaging alle­gation it is unlikely that it will be publi­shed without the say so of the news­paper’s in-house lawyer, so we try to predict what is going through that law­yer’s mind, then write to them telling them why we think it cannot be pub­lished,’ he explains. ‘Our aim is to ensure that it is not published at all and we are far more likely to have success than the PR or the client working alone.’

Another benefit to legal action is that lawyers can serve injunctions on all the media, meaning that no-one can pub­lish anything. But PROs should be aware if an injunction fails, the press will no doubt dub it “the story they tried to gag”,’ he warns.

The internet also presents an increas­ing problem. While traditional media will, more often than not, ‘take the sensible step’ on a story, the net is often used as ‘a plat­form for the misinformed and the male­volent’.

Olswang recently acted for Sunder­land Housing Group which was being targeted by an abusive website. FD Reputation Management MD Jonathan Hawker brought in Olswang and the site was closed down.

Developments in the legal world often have an effect on PROs, says Tench. Last September it was decreed that court ­files would no longer be sea­led – ‘this means that the particu­lars of the claim in civil proceeding will be avail­a­ble to third parties, including journa­lists,’ Tench explains, ‘but lawyers can apply for the files to be sealed.’

HARBOTTLE & LEWIS

Gerrard Tyrrell Head of litigation

Staff 22 partners and 82 lawyers
Headquarters Hanover Square, London

Has acted for Virgin Atlantic, Kate Moss, the Prince of Wales and Princes William and Harry, David and Victoria Beckham.

Tyrrell (r) has worked on some of the highest profile legal dis­putes in the country, often part­nering celebrity and corporate PROs.

Sometimes he works with the client’s existing PROs, although at other times Harbottle & Lewis will ‘bring a PRO on board or recommend someone’.

His experience includes representing Virgin Atlantic when it sued British Airways over an alleged ‘dirty tricks’ cam­paign: ‘It started off very much as a business case but was eventually fought out both in the law court and in the press, with Virgin’s Richard Branson and Will Whitehorn pitted aga­in­st BA’s PR machine,’ he recalls.

In 1993 British Airways apol­og­ised and paid more than £3m in damages and legal costs.

Tyrrell says his firm receives inquiries about injunctions ‘two or three’ times a day. But he dis­c­ourages anyone he thinks is being ‘trigger happy’.

‘The legal landscape has chan­­ged over the last few years. The issue used to be whether or not to sue for defamation, but the use of Article 8 of the Hum­an Rights Act 1998 [the right to respect for private and family life] and particularly the decis­ion in the case of McKenn­itt vs Ash – the ruling of which redefined the definition of ‘public interest’ –has opened up whole field of individuals and cor­p­orat­ions being able to prot­ect priv­ate inf­or­mation, both true and false. For the past six months that has been where the action is,’ he says.

The PROs Tyrrell himself deals with are – he says –’ very clued up on legal matters – but that’s what I would expect’.

‘PROs should have a good working knowledge of the legal restraints under which they can operate,’ he advises.

However, he adds: ‘It’s clear to me that not many people have a real apprecia­tion of what can be achieved, and also of the pitfalls that await them. I see that on a daily basis: clients who have got into trouble because of the ­advice their PR team has given.

SCHILLINGS

Keith Schilling senior partner

Staff Six partners and 15 lawyers
Headquarters Dean St (moving to Bedford Square in September), London

Has acted for: Naomi Campbell, GlaxoSmithKline, Britney Spears, JK Rowling, Roman Polanski, Las Vegas Sands

High profile media lawyer Keith Schill­ing (r) has worked on a raft of well-known cases involving celebrities, although the major­ity of his firm’s work is corporate.

‘The firm is known for being innova­tive. Where there is not a law we will strive to create one, as we did with Nao­mi Campbell and the privacy law. That is now a significant weapon in the PR arm­oury,’ he says, referring to the 2004 Camp­bell vs Mirror Group Newspapers case. Schilling says that it is often PROs who ‘set the agenda’.

Recently his firm was hired by Britney Spears US publicist to stop the flood of stories about her in rehab.

Schilling argues that injunctions such as these do not damage relation­ships between PROs and journalists: ‘Journa­lists understand companies have ­commercial reasons for wanting to keep cer­tain reports out of the press. But if any­one makes enemies, it will be us, not the PROs. We go to the head of legal or the editor and play the ‘bad cop’. The jour­nalists are more likely to curse “the bastards at Schill­ings” than PROs.’

And while ‘no editor wants to be the sub­­­ject of an injunction’, it does mean riv­als cannot publish the story either.

Lawyers and PROs work closely together during court cases. In some, Schill­ings aim to secure a blanket repor­t­ing ban. If not, the firm offers PROs ‘inst­­­­­an­­­taneous transcripts’ of court pro­ceedings, and will consult on whether a media response needs to be prepared.

 


Click here to watch Julian Pike of Farrer & Co. discussing media law in this week's Video Podcast
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