How PRs can fight fake news – a lawyer’s perspective

This is a follow-up to Daney Parker's article.  It is written from the perspective of a media lawyer who has done both editorial and PR work for over 25 years, and therefore approaches the issue of fake news from both ends.

This article deals with fake news published by the commercial news media, which is by far the most dangerous from the perspective of a company or brand. It deals both with the relatively rare situation where the news piece is entirely errant, and also - which is more usual - where it is a mixture of truth and falsity.

The best way to deal with fake news is to prevent is publication

For legal and regulatory reasons, a newspaper or broadcaster will almost invariably give advance warning of any news story which is damaging to a company, brand or individual prior to its publication. This is the point when the PR professional's 'Golden Hour' begins.

Where the news item is errant either in whole or in part then the correct PR response is to notify the publisher or broadcaster of this fact, and cite the regulatory and/or legal principles which militate against its publication.

The hedges against fake news provided by the media industry and Government

Most Fleet Street titles are regulated by the Independent Press Standards Organisation ('IPSO'), which publishes an Editor's Code; as are many regional titles and magazines which are owned by the major publishers.

Paragraph 1(1) of the Code requires newspapers to take care not to publish inaccurate or misleading material, and headlines which are not supported by the text. Where a newspaper regulated by IPSO proposes to do that, it should be pointed out to them robustly that they would do so in breach of a code which was written by editors.

All linear broadcasters are regulated by Ofcom, which also publishes an editorial code, which both requires prior notification of adverse broadcast material subjects, and that they should be treated 'fairly'.

The perils of providing a statement

Where a company or individual is confronted by the prospective publication of material about them which is both incorrect and damaging, the mere provision of a statement in response will be taken by the publisher/broadcaster as effectively your consent to the damaging and inaccurate allegations being published so long as they are accompanied by a statement; which is invariably right at the end of the article and is of precious little use.

The publisher or broadcaster should be told that the allegations in question are wrong, their publication will breach the relevant regulatory code, and if that is the outcome, then a formal complaint to the regulator will follow.

The supplemental value of the legal restraints against fake news

Democratic process has provided that, for the protection both of the company/individual in question, and society as a whole, there are legal restraints against the publication of certain sorts of fake news.

Again, these provisions are not just for the protection of companies or individuals. Society derives no benefit from the publication of fake news, which is why these legal provisions exist. One of the recent changes in society - which is to be welcomed - is a gradual recognition of the danger to all of us of fake news, be it about commerce or the virtue of vaccines.

How will such a communication be received by the newspaper or broadcaster?

As someone who has for many years legalled out (inter alia) newspapers, magazines and broadcast material, I can answer that with some confidence. The very reason why advance notice is given of such material for publication is because regulatory and/or legal issues are thereby engaged. It follows then that the appropriate respondent is someone whose stock in trade are those very regulatory and legal provisions.

All material published/broadcast is legalled by media lawyers, and it is that species of professional that gives the key advice on content. It is therefore with that individual that you should be communicating if you wish to exert influence over editorial decisions.

How are editorial decisions made?

Editorial decisions are made via a two-stage process. The first is whether this information is something that merits publication. The second is whether any regulatory and/or legal issues arise as a consequence of that publication. It is on the second part of that editorial decision that a PR professional should be seeking to exert influence.

That second editorial question is determined primarily by an assessment of risk. It comes down to this: how likely is it that this company or individual is going to hold us to account via the regulatory authorities (and potentially the legal process) if we decide to publish these allegations? If the perceived answer to that question is 'yes', then cautious editorial decisions are made accordingly, and allegations which the publisher does not think it can stand up in the face of independent scrutiny are likely to be dropped.

What if false and damaging material is published nonetheless?

For all IPSO-regulated newspapers, then a complaint to the regulator is the appropriate way forward. The Financial Times, The Independent and The Guardian are all outside the IPSO system, but all have their own editorial codes, and a complaints process.

For problems with broadcasters, which because of their different ethos and form of regulation will be much rarer than those with newspapers, there is Ofcom; at the BBC there is a bespoke complaints procedure for which you make reference to (inter alia) the BBC Producer Guidelines.

Are there any long-term benefits to adopting this approach to reputation management?

Absolutely. When I legalled out a number of series of South Park, I was confronted in most episodes with allegations which were defamatory either of a company or of an individual; that being the nature of the satirical cartoon. I would then undertake research to establish whether that individual or company had adopted a policy of the robust protection of their reputation and/or brand. In each case, I found that this was not the case, and almost invariably that the allegation which was carried (obliquely or otherwise) in the episode was already in the public domain and nothing had been done about it.

I hope the lesson is obvious. If you are perceived by the media (and in particular the press) as a 'free hit', then you will inevitably suffer the consequences. Lions do not seek fit prey, but those that they perceive as vulnerable. The press is no different.

Written by Jonathan Coad.  Coad’s book Reputation Matters is published in May.