You shouldn’t respond to a damaging article when asked for comment, says media lawyer Jonathan Coad
28th June 2017
The temptation for many internal and external PROs when confronted with the threat of a damaging article or broadcast is to reach for their metaphorical pen and draft up a statement to offer in response. It is often entirely the wrong thing to do.
Why shouldn’t I offer up a statement?
For a number of regulatory and legal reasons, a newspaper or broadcaster will provide you with summary of any forthcoming publication or broadcast to enable you to respond to the allegations which are being intended subject of an article for programme. This is done is much as anything else to protect the position of the paper/broadcaster should there be any legal or regulatory complaint post publication/broadcast. You assist the tick-box process if you deliver up what may be the last element necessary for the publication/broadcast to take place.
If you are approached by a newspaper, most of which are regulated by the Independent Press Standards Organisation, then the regulatory provision the paper is accommodating is section (i) of the IPSO Code which provides thus; “The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.” The key words are “take care”.
Journalists have been trained by their lawyers to provide the subject of forthcoming articles with a key points summary because they know if that is done, and at least half a statement is then published, if there is subsequently a complaint to IPSO that the article is inaccurate, then the newspaper will be able to defend it by saying it had done all reasonably be expected, which is to publish both sides of the story.
For a broadcaster, the obligation to give notice comes from paragraph 7.11 of the OFCOM code which requires broadcasters to notify the subject of any programme where allegations of wrongdoings are being made so that they have the opportunity to respond. The legal reasons for this exercise overlap.
Paragraph 4 of the Defamation Act 2013 created a statutory version of a public interest defence first by the House of Lords in 1999 by a case called Reynolds v Times Newspapers. In that case the House of Lords set out ten criteria by which it would judge whether the publication was responsible or not, and one of those was whether, it has been sought by the subject and the “gist” of the response published in the article.
You can therefore ignore the suggestion by the journalist that the approach is just so that they can publish both sides of the story; there will an editorial decision that has been made which will be evidenced by the damaging article or programme with which you are confronted, and the desire will be to leave the reader/viewer in no doubt about the “true” case affairs; and your statements will be deployed in a way (especially by the press) which ensures that has the minimum impact on the reader.
Where the allegations and issues are either wholly or partly inaccurate, then the right response is to challenge those allegations robustly, and demand that in compliance with the relevant provisions of the IPSO and OFCOM codes they not be published because they are inaccurate. If however you send a statement, they will simply be published pretty well as a matter of course.
By contrast a statement will be taken by the newspaper/ broadcaster as effectively your consent for false allegations to be published to your detriment on condition that some of what you say is published afterwards – which will usually be in a short concluding paragraph which many readers will not even reach having formed their view long before getting half way through the article.
If the story is wrong the publisher/broadcaster should be told that, then it should not be published or broadcast, because if it is the Ofcom/IPSO Code will be breached. This should be communicated in such a way that the publisher/broadcaster perceives that there is a genuine risk that they will be held to account of the publication/broadcast takes place.
How best to deploy a statement
If a statement is appropriate, then the second key principle is that it must be kept short whether it is for publication or broadcast. If it is too long it will either be brutally cut and the parts that were most important omitted; or it will be summarised briefly in a way which will have the same effect. There is no obligation on a newspaper or broadcaster to carry any statement in full, but if you keep it short, moderate and factual you have a fair chance of getting it set out/read in its entirety.
You have a better chance of it being faithfully reproduced if you raise the risk level as perceived by the publisher/broadcaster of it being held to account after publication or broadcast. That is going to be achieved if the statement is sent under the letterhead of a known-quantity media lawyer, who the paper/broadcaster knows equips the subject of the broadcast/article with an equality of arms should the article/programme be challenged; and the use of a media lawyer will make it clear that there is a real risk of that to the editorial decision makers.
How do I know this? I have participated with media clients in editorial decisions about contentious programmes/articles for over 25 years. Please don’t let anyone (especially a journalist or ex-journalist) spin the nonsense that by making a proper stipulation that your legal and regulatory rights should be respected you are going to give the impression that you are guilty as charged. This is just self-serving black propaganda. Even if you were dealing with a journo so shriveled by cynicism to think that then they are still going to be more careful before writing copy about you they cannot stand up.
In the end, in Fleet Street at least, editorial decisions are taken primarily based on an assessment of risk rather than a bona fide assessment as to whether the article is or is not true and accurate. If you present your client or company as being a high-risk target for poor journalism then you will less often be the victim of it. If you are passive in the face of such journalism you will attract more of it.
Article written by Jonathan Coad is a consultant solicitor at Keystone Law