Right side of the law

High profile libel cases are rarely out of the news, but PROs need to get involved before the lawyers. Alex Blyth reports

Do you know what to do if a journalist is about to run a damaging story about one of your clients?

Sometimes a quiet word with the journalist can spike a story; other times it takes an intervention from a lawyer.

But when an editor takes a gamble on a source and runs something inaccurate that destroys a reputation, you may have to take a publication (or publications) to court; a daunting, but often necessary part of setting the record straight and rebuilding a person or organisation’s image.

Take Robert Murat, a suspect in the disappearance of Madeleine McCann, who recently won his court case against 11 British newspapers.

The judge agreed that the newspapers had defamed Murat, and awarded him around £600,000 in damages.

However, this ruling is unlikely to stop the Daily Mail, Evening Standard, Metro, Daily Express, Daily Star, Sunday Express, Daily Mirror, Sunday Mirror, Daily Record (Scotland), Sun, News of the World, and other newspapers publishing similar stories infuture. One eleventh of £600,000 is still a tiny fraction of the annual marketing budgets of those titles, and the sad fact is that stories like this sell bucketloads of newspapers.

PROs representing both celebrity and corporate clients must always been on their guard against defamatory stories, and against invasions of privacy such as that recently suffered by Max Mosley.

Both of those cases ended up in court and involved lawyers. However, in many instances the savvy PRO should be able to stop it going that far.

For many celebrities and companies, court action is far from desirable. It is expensive, often damaging and not always successful. As James Wright, director of CSR at Trimedia, puts it: ‘Murat and Mosley were able to win in court, but what of all those people who are defamed but lack the money to take a media heavyweight through the courts? Even if you can afford it, you might not welcome the publicity it will provoke. We found out a lot more about Mosley than he might have wanted.’

Sean Fleming is the client services director of recently launched ShoutIT Communications, and a part-time lecturer in PR at Thames Valley University.

He often tells the following story to his students as an example of how PROs can help their clients avoid the expense of lawyers and the attention of the courtroom: ‘A few years ago a client of mine was facing a bleak situation. One hack had really got his teeth into a story about companies having their credit insurance withdrawn. Every time he wrote about it happening to a company, people stopped paying that company, and one by one they all went out of business.’

He continues: ‘When the journalist in question turned his attention to my client I had to resort to talking tough. I told him he had some of the facts, but not all of them, that we weren’t going to help him stand the story up, and I threatened him with legal action if he published the story and got even the smallest detail wrong. It worked. The story was spiked. Even better, we maintained a great relationship with the publication and the individual journalist.’

‘The way I see it,’ concludes Fleming, ‘no senior PRO can be taken seriously if they don’t know at least as much as their journalistic counterparts when it comes to this sort of thing. Media relations is more than buying journalists lunch or executing a well-timed Friday night drop. You’ve got to have what it takes to go toe-to-toe when you need to.’

As a former News of the World editor turned celebrity PR agent, Phil Hall frequently calls on his knowledge of the law to keep his clients out of the tabloids. He agrees that it can be a much more effective long-term strategy than immediately instructing the lawyers.

He says: ‘As soon as you press the lawyer button, you’ve damaged the relationship between your clients and the publication. Journalists know me, they know I don’t play games with them on this sort of thing, and I back up what I’m saying with evidence. So, very often a quiet word can be enough to stop a story, or to ensure it comes out balanced and accurate.’

If you are going to take this approach then you need to ensure firstly that you are clear about the relevant laws, and secondly that you are correct about your facts.

On the other hand, Ramona Mehta, partner at law firm Mishcon de Reya, counsels PROs against leaving it too late before calling in the lawyers. She says: ‘In the past PR people used to try to deal with it all themselves, and only brought us in when it got messy. It’s usually better to sit down with us at an early stage and agree a joint strategy.’

She concludes: ‘Sometimes it will involve issuing a spoiler story, often it will involve us taking a good cop, bad cop approach, and almost always it will involve us using the PRO’s knowledge of the publication and the journalists involved. By combining that with our legal expertise we stand the best chance of getting the result we all want for our clients.’


Jonathan Aitken Convicted of perjury

In April 1995 Jonathan Aitken sued The Guardian for defamation but in 1999 he went to prison for seven months for perjury.


Max Mosley Beat News of the World

Max Mosley successfully took on the News of the World in July over a story detailing his involvement in a sado-masochistic orgy.


Kerry Katona Sued the Sunday Mirror

This July TV personality Kerry Katona won damages from the Sunday Mirror over claims she was a prostitute before she was famous.


Naomi Campbell Breach of confidentiality

In 2002 model Naomi Campbell won damages after the Mirror published pictures of her leaving Narcotics Anonymous.



What is defamation?

Richard Green, partner at law firm Hill Dickinson, offers this definition of defamation and libel: ‘Defamation is an area of law that has developed its own particular procedure. Libel is one part of this law, and slander is the other. Libel is defamation in a permanent form, and slander is a temporary form of defamation, usually by spoken word, disparaging gestures or actions.

‘There is no statutory definition of defamation. Guidance has to be taken from case law. The best known case authorities include a false statement about a man to his discredit, and words which tend to lower the person in the estimation of right thinking members of society.

‘The most important distinction between libel and slander is that in libel damage is presumed, whereas in slander damage has to be proved, save in the case of four particular statutory exceptions.

‘Any claimant must prove on a balance of probabilities that the words complained of are defamatory, that those same words refer to him, her or it, and that there has been publication of them to a third party.

‘If a claimant can establish all three, the burden of proof passes to the defendant to prove on a balance of probabilities that one of the various defences available in defamation is made out, the main ones
of which are justification, fair comment, qualified privilege, absolute privilege and jest or vulgar abuse.’


Case Study The international footballer

We all read about the cases that make it to court, but what about the ones that do not get that far? Phil Hall recalls a case where his job was to keep his client’s name out of the media. He agreed to describe it on condition of anonymity for his client. Hall says: ‘Earlier this year one of my clients, an international footballer, received a call from a national newspaper. He’d been having an extra-marital affair, and the girl involved had gone to the paper. I called the paper and explained to them that if they published the story they would be in breach of defamation laws, simply because they had got many facts wrong.’

He continues: ‘Under human rights legislation we all have the right to a private life, so this would also have been an invasion of privacy. The journalist tried to argue the story was in the public interest because the footballer was a role model, but I pointed out that the argument wouldn’t stand up in court, because the footballer had never held himself up as a role model.’

‘In contrast,’ notes Hall, ‘in my News of the World days I broke the story of David Mellor’s affair with Antonia de Sancha, and that was reasonable because Mellor was a public figure who had been involved in the Back to Basics campaign, and had spoken widely about the importance of family values.’

Having outlined these facts to the journalist, Hall said that the paper could either back off or the lawyers would have to be brought in. The paper never ran the story.

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