Fishburn Hedges

24.03.2009

When an organisation’s reputation is threatened in the media a communicator’s first instinct will be to tackle the situation at an editorial level.

To give a sense of the alternative approaches, here, Keith Schilling, Partner and Founder of Schillings, the leading law firm, outlines the legal options in the face of an online onslaught.

Warren Buffet famously said that a reputation takes 20 years to build and five minutes to lose. He could be forgiven for not anticipating that his five minutes could seem positively luxurious in the face of the 0.3 seconds a well-targeted search can take to besmirch a reputation.

Two emerging legal trends suggest it is increasingly likely that reputation management, particularly in online media, will combine communications and legal action in any response to a media threat.

First, there is the “Googlisation of news”, whereby the most unfounded rumours rapidly escalate into major news stories.  A billion dollar run at the end of last year on United Airlines stock, based on an out-of-date story and a quirk in the search algorithm, would be an extreme example of this.

Second, is an increasing willingness for online publishers, with pressure on their legal budgets, to settle at the first sign of legal trouble.

In addition, the media trend towards scrutinising businesses and even the private lives of their directors suggests that commerce is becoming the new celebrity.

You need only look at the tone of press coverage that bonuses and lavish Christmas parties generate to see why. All of which presents a very real threat to boards and brands in a climate in which investors are easily spooked.

Rapid response and rebuttal

When your reputation comes under attack, the time it takes for your first response could determine how well and quickly it recovers. As well as containing any immediate threats, you should be mindful of the need to correct any inaccuracies that might become background references for future reporting.

Rumour can quickly become fact if left uncorrected online.

Effective use of PR and legal teams

Hence, in reacting, you’re likely to want to consider how your PR and legal responses should work in harmony. Together they can be very effective.

Very often, the PR team will talk to the journalists to ensure they understand the background, context and facts.

In doing so, they will be thinking about how to win over hearts and minds of both the media and their audiences.

Meanwhile, the lawyers may be able to take a firmer grip with the publishers, deploying legal instruments to prevent publication, enforce correction or limit exposure.

Proportional response

Legal action often won’t be the answer, but it may help to understand what those options are before deciding on that.

You will then be able to assess the risks, rewards and proportionality of your response.

Whether a business is under attack for paying excessive salaries to fat cat CEOs or for something altogether more scandalous, your response should be guided by which of three stages you are in:

Preparation

As in many fields, preparing for the possibility of a risk often goes some way towards mitigating against it.

A legal risk audit would look at areas like confidentiality clauses in contracts, understanding what information is already in the public domain and setting up systems to monitor what is published.

With this groundwork done, a great deal of time can be saved if a crisis hits, when every minute counts in getting contentious information out of the public domain.

Pre-publication

If you are alerted prior to the publication of contentious material, perhaps by being asked for comment or a reaction, there are a number of avenues to explore either to buy time to circle the wagons or prevent publication outright.

These would include reviewing whether the potential story is in any way defamatory, or whether it would be in breach of confidentiality clauses, copyrights, trade secrets of otherwise private information.

While the PR team may be able to use reasoned argument to balance any publicity before it appears, a legal route may apply the brakes far more abruptly.

Post-publication

Though too late to prevent publication, there are still steps that you can take to reduce visibility, take down offending material and prevent the bush fire spreading.

This might be through asserting copyright of wrongly-obtained materials or unmasking anonymous sources.

It could be by demonstrating that a story cannot be justified by a public-interest defence. It could be as straightforward as proving a fact untrue.

Here, the appropriate redress could range from reducing the visibility by instructing the search engines to “search and take down” to ensuring that the story is corrected with equal weight.

Then, of course, there’s also the possibility of damages.

Exercising your rights

The law is there to protect you from untruths, and the judgement on whether to exercise those rights will often be a fine one.

Equally, just as the media evolves at an alarming speed, so the law will adapt to keep up with it. When your reputation is on the line, it will often help to be clear of those rights before deciding on your strategy to protect it.