According to research, just eight per cent of the PR professionals who attended a recent PRWeek seminar,
Issues Management & Media Law, felt their comms teams were well-versed in media law. A shocking 60 per cent of those attending the seminar under Chatham House Rule said their teams were ‘not very well versed at all’.
Despite these figures, 58 per cent said they had dealt with a media issue or crisis in the past month. More than three-quarters had worked with legal professionals on a PR-related issue. So to sum up, despite the majority of PROs finding legal issues creeping into their daily working lives, many are not as knowledgeable about media law as they should be.
PROs who do know their media law may be able to use it to their advantage without calling in the lawyers. The best starting point is what is commonly referred to as The Test of Responsible Journalism (see panel overleaf), a ten-point list of journalists’ obligations set out by Lord Nicholls in a high profile libel case in 1999 involving former Irish leader Albert Reynolds.
Media organisations may use this ‘Reynolds Defence’ to justify their actions. But pre-publication there are steps PROs can take to minimise damaging stories:
Make sure allegations put to you by journalists are specified. If they are incorrect, ring the journalist as soon as
possible, putting them ‘on notice’ that the allegations are false
Follow up with a written record, either by letter or fax, recording the time and content of what you told the journalist
If litigation should follow, this paper trail could form evidence. A rebuttal of this kind also delivers a shift in legal liability as there is a defence in publishing material if the publisher is unaware it is defamatory
Higher damages can be sought if publication occurs after the media owner has been told the allegations are untrue.
What is private?
The private lives of business leaders was one keenly debated topic at the seminar, with attendees pondering the extent to which they might have to respond in a hypothetical scenario involving a finance director’s extramarital affair. The best response, it was agreed, is to say no more than ‘this is a private matter.’ However, if the director has spoken publicly about his or her private life before, then this defence is blown out of the water. PROs should have a checklist of what information is already in the public domain.
Do not forget internal comms
Finally, internal comms should not be overlooked in the midst of a crisis. When dealing with an issue that is likely to attract external attention, it is vital to communicate with internal stakeholders and provide a clear comms channel to let them know what is happening.
This will minimise the risk of them contradicting the official company response. They will also feel more informed if they hear the news from within their own firm at a time of unnerving allegations.
When to call in law advice
Many PR professionals have concerns about consulting law firms on media matters and see it as a last resort. There is a widespread fear that involving external lawyers could prove costly, both financially and in terms of threatening important media relationships.
But Carter-Ruck partner Magnus Boyd argues calling in the lawyers can be a positive move. Boyd has worked on some high profile cases, successfully injuncting national newspapers and broadcasters to prevent them publishing private information. In September 2008, he obtained the first ever front page apology published by The Guardian on behalf of his client Tesco after a libel case relating to incorrect allegations about tax avoidance.
Dialogue with lawyers
Ideally lawyers can help PROs exert the right kind of pressure to stop the allegations appearing in the media in the first place. ‘Effective reputation protection stems from combining the skills of media lawyers and PROs,’ says Boyd. ‘To characterise the relationship as good cop, bad cop is too simplistic and does not recognise the real value for clients in using both together for long-term strategic planning. The reputation audit needs to become a recognised staple of the boardroom agenda and requires a dialogue between PROs and media lawyers. The most cost-effective way to manage crises is to involve the lawyers and PROs earlier and in so doing ensure 90 per cent of potential concerns never get the traction to turn into a crisis.’
Waggener Edstrom head of UK corporate practice Caroline Randle agrees: ‘Do not wait until you are in the eye of the storm or feel calling in the lawyers is your last resort. When you are considering how you manage issues, think of how and when to get legal support. Also consider the outcome you are looking for and whether or not legal action can help you achieve it.’
Create a partnership
A good partnership between PR and legal, says Boyd, can bring about a win-win situation. How that is measured depends on perspective and the immediacy of any crisis. In the long term that could equate to a year without a crisis because lawyers and PROs have anticipated potential trouble spots and avoided or navigated them successfully. In the medium term, it can be about using the law and communication networks to police accuracy and ensure unwanted stories do not grow legs. In the immediate term, it is about maintaining control of the story at the same time as
protecting the networks to allow the client to move on from the crisis quickly.
Defence: Test of Responsible Journalism
Carter-Ruck partner Magnus Boyd offers advice on using the Test of Responsible Journalism to safeguard corporate reputation
The more serious the allegation, the more responsibility required by the journalist. What you can do: convince the journalist of the seriousness, which makes it important that the journalist complies with their obligations
Checking the truth and reliability of the source and the story. What you can do: ask what steps have been taken to verify the story. Other sources of similar proximity should be interviewed. Tell the journalist who else they should speak to
Is it in the public interest? What you can do: challenge the journalist as to why he/she thinks the story is properly a matter for public debate. What is interesting to the public is not necessarily in the public interest
Examine the quality of the source. What you can do: if the source is not independent you can delay the journalist by pointing this out and suggest the need for verification by independent sources
The status of the information – is it bare allegation or based on an external authority? What you can do: remind the journalist they need to take great care in reporting rumour or gossip. Ask if they can prove whether the allegation is true
Urgency of the matter. What you can do: ask the journalist to explain why the allegations are time-sensitive – the urgency must be real, not dependent on a deadline or desire for a scoop
Seeking comment from the subject of the story. What you can do: do not let the journalist bully your client into replying before they are ready
Gist of the article. The article needs to contain the gist of the subject’s side of the story. What you can do: has the journalist reported your client’s exact response?
Tone of the article. What you can do: asking the journalist to specify exactly what they are proposing to write lessens the chances of things being reported in a sensationalist way
The circumstances of publication, including timing. What you can do: this is a catch-all, allowing you to raise any other issues relating to a journalist not acting responsibly, such as obtaining information by deception.