By David Summerhayes
As a PR professional you will manage, shape and protect the image of your client. But as a guardian of reputation, who is guarding you? Is it possible that you might trample on the reputation of others in carrying out your role?
The law of libel applies to every communication issued to anyone other than the individual or organisation defamed. Every press release, article, email or tweet is potentially a legal action in waiting. Without due care and attention you could become an unwelcome extension to the story.
This is unlikely to happen intentionally; it is rarely a good look to disparage others. But your intention behind a communication is irrelevant to whether a statement is defamatory. It is the perception of the ordinary reasonable reader that matters to a court. For example, if you publish a defamatory but true statement about a John Smith, but your readers believe it to be about another John Smith, the latter can probably sue. Defences may be available to those who act unintentionally and without malice, but an inadvertent libel is as actionable as a deliberate one.
There are also situations when referring to others in a negative way will be difficult if not impossible to avoid. These may include:
– responding to a statement made about your client which you believe to be unfair or untrue; or
– explaining action taken by your client in relation to an employee or third party.
Measures can be taken to limit the risks. There can be no action in defamation if the subject of a defamatory statement cannot be identified. Removing a name will therefore help, but may not be enough if a reasonable reader would still understand who the statement is about. For instance, referring to the CEO of Bloggs plc would almost certainly identify the individual, but describing the same person as the head of a large UK retailer would not, unless a reasonable reader would be able to deduce the identity of the person or retailer from elsewhere in the statement.
Where you do need to identify someone, you may be able to rely on a statutory or common law defence. Your client is allowed to defend itself where its character has been attacked, provided that statements are made in good faith and are relevant to the matter in hand.
There are also defences for statements which are true, honest opinion or matters of public interest, amongst others. But wherever a defence will be relied upon, it is prudent to consult with your client, employer and possibly a lawyer in advance of publication about the risks involved. It may not matter to your client or employer that you are on the right side of the law if it has to engage lawyers and possibly another PR specialist to respond to a claim.
A libel action could be very expensive and damaging to your client’s image and to your own reputation. Great care should therefore be taken whenever a negative statement is made about one person to another.
David Summerhayes is Senior Associate, Defamation and Reputation Management, DWF LLP
If you would like to find out more, come to Protecting Reputation – the Legal Issues and Remedies on 12 October, 2016, where David will give guidance on what the law says, the common defences to defamation and work through some thought-provoking case studies to help PR professionals ensure that we are aware of the implications of our actions. It’s being held at 6pm at Schroders on Gresham Street, London, and is part of the CIPR’s Ethics Festival.
Image courtesy of flickr user robertsharp