Article Story: DEATH BY MEDIA - HOW TO AVOID IT

Date: 01/11/2001

There is a common myth which is spread (for obviously self-interested reasons) by the media that it is all powerful, and there is nothing that can be done to defend yourself against it if it decides that you are a worthy target for its attention.  The eminent British journalist Hannen Swaffer observed caustically:

'Freedom of the press in Britain means the freedom to print such of the proprietor's prejudices as the advertisers don't object to.'

However, the experience of most large corporations is that even being, as advertisers, a substantial contributor to the profits of the media does not normally save you from its own particular 'sword of truth'.  This is the media's sacred weapon which is wielded to keep its shareholders happy.  You have probably all had the unpleasant experience of a PR crisis either coming completely out of the blue, or (worse still) when other severe problems have struck you or your business.  The aim of this article is to show that there is more than most people think can be done to protect yourself if you find yourself under attack.

With the exception of the BBC, the media is a group of commercial organisations who exist for profit just as any other commercial enterprise.  In order to make a profit the media must attract buyers (the print press and non-terrestrial television), and advertising income (all other forms of media bar the BBC).  The best way to do that is to publish spectacular allegations against well-known corporations (particularly those dealing with the consumer) or scurrilous tales of well-known individuals in commerce, industry or sport/entertainment fields.  This obviously includes you and the businesses that you run.  The appeal of truth and fairness as against the need to attract more viewers/readers and sell more advertising is unlikely to be heeded by the media in its harsh commercial environment.  In order to have any prospect of exercising any restraint over the media, you must threaten the financial penalty which balances the otherwise powerful commercial incentive on the part of the media to infringe your rights.  This penalty is the costs and damages which a court will impose if the media transgresses the wide (but not limitless latitude) it enjoys by virtue of the new legal entitlement to free speech which comes from Article 10 of the European Convention on Human Rights.

In this country such regulation as there is of the broadcast and print media has been delegated largely to the private sector.  The State, for good constitutional reasons, leaves the media largely to say what it wants.  Although both broadcast and print media are subject to a certain amount of government/statutory regulation (such as guidelines as to taste and decency), but even regulation by statutory bodies is largely driven by the reaction of the general public to broadcast or print material.  These institutions are rarely proactive.

The Broadcasting Standards and Press Complaints Commissions are hybrids, as they are creatures of their respective industries.  However they do also fulfil a quasi-official function in that they provide some form of remedy to a complainant (individual or corporate).  They therefore fall somewhere between the regulatory authorities and the courts.  However, they provide no form of compensation, and such remedy as they do offer is likely to take several months to obtain, and then have little significant impact on the PR damage caused by the original broadcast/publication.  As Anna Ford recently learned, there is in effect no appeal from their decisions.  As a consequence, the Broadcasting Standards Commission strikes little fear, and the Press Complaints Commission none whatsoever in their respective industries.

The courts provide far more effective remedies, and deal with matters with more intellectual vigour, especially where complex or technical issues are concerned.  Unlike the Commissions, the courts can also require for any publisher/broadcaster to reimburse legal fees and pay damages.  Perhaps more importantly the court can prevent media corporations from publishing damaging or confidential material on pain of severe (criminal) penalties.  The court, unlike the Commissions also has a pre-emptive remedy in the form of an injunction which can prevent publication or broadcast in certain circumstances.

Since the court has the power to order compensation, for corporate entities whose principal concern is their reputation, brand image, etc (rather than an award of damages) this element of the remedy which the court provides can be traded off for better PR restoration in the form of more prominent apologies and retractions.  It is therefore also much more likely that the threat of legal action, and the expense and disruption which it can cause to a media corporation will extract the swift apology and retraction that is needed.  By way of example of what can be done; I have obtained a front-page apology for a client on the day after I was instructed, and a full apology and retraction during the course of a prime time terrestrial television news broadcast within a few days of being instructed.  I also obtained damages as well as payment of costs in full for these clients, along with undertakings not to repeat the allegations.

There are various legal remedies such as defamation, malicious falsehood, negligent misstatement, breach of confidence, breach of copyright and the burgeoning law of privacy.  Some of those legal actions work less well for corporations, although the court has accepted that the privacy protection which is part of the regulatory framework to television broadcasting can be used to protect a corporate entity.  Although the media has made some recent inroads into the claimant-friendly UK law of libel, the prevailing burden of proof is still very much on the media defendant.  Why then do so few corporations, who spend vast sums of money on PR to create a corporate or brand image, launch a product, etc, then seeming so reluctant to protect their investment when the media threatens to undermine it?

I regularly deliver Media Management seminars to corporations, PR companies, etc, and during the question and answer sessions which take place after it emerges that it is the result of the sources from which corporations (particularly large ones) seek their legal advice.  It is normally sought from large commercial firms of lawyers with no recognised expertise in the media (normally for the simple reason that it does not pay as well as ordinary commercial work).  However, in order to understand the way that media corporations actually make decisions concerning publication/broadcast, and publications after publication/broadcast takes place, you need to work within the media.  Ideally, you want to both act for large media corporations and against them (as I have been fortunate enough to do).  Then you know what issues and considerations govern these decisions, which are the more robust media-defendants, even who will be making the decisions and/or giving the advice on which they will be made.

In the ever more competitive world in the commercial media, publishers and broadcasters are increasingly less (rather than more) inclined to fight potentially expensive legal actions.  There also have been significant corporate successes by such as The Body Shop and Marks & Spencer.  If a corporate-claimant takes on a media-defendant with the necessary vigour and determination, even if that corporate-claimant takes the issue to trial (and the vast majority of libel actions settle successfully long before then), then the media-defendant suffers a very substantial net expenditure in legal fees, of which it can only ever hope to recover a proportion.  Very few media corporations wish to suffer this impact on their profitability, and consequently will be amenable to proposals which will avoid such an outlay.

However, of perhaps greater importance, once a corporate entity has established within the commercial media world the reputation that it will protect its reputation, confidential information, etc, then it will enjoy substantial long-term PR benefits.  When subsequent editorial/legal decisions are made concerning broadcast and publication about that corporation, they will be made in circumstances where they know that that corporation will take advantage of its legal remedy when its rights have been infringed.  That will make future infringements significantly less likely.  I know because I have many times delivered just such advice to publishers/broadcasters.  That is a very effective long-term method of improving your reputation/brand image, and makes the job of your PR consultants much easier.

Some PR advisers will tell you that if you ever challenge the media, they will make your life more difficult in the long term.  As someone who regularly 'legals' print and broadcast publications, and therefore makes those decisions on behalf of media clients, I can tell you that absolutely the reverse is true for obvious commercial reasons.  It is also perfectly possible to enjoy a good relationship with the press, while there being the underlying understanding that if they impinge upon the rights which the law has given you, you will take advantage of your entitlement to go to the court for remedy.  Just as good diplomacy is based on a reputation for strength and resolution, so are good relations with the press.

In order to enjoy these benefits, you need to ensure that the source of your legal advice concerning the media has the regulatory, industry and legal expertise which will ensure that where the law or regulatory framework gives you a remedy, you obtain the advantage of it.  The money which you will invest in occasionally drawing a line in the face of the rampant media in saying thus far and no further will be money well invested if you wish your profits not simply to be sacrificed by the media in their efforts to ensure theirs.

Jonathan Coad

This article was first published in Mergers & Acquisitions, November 2001.

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