Comms teams’ four frequently asked legal questions

As reputation law experts, our team has decades of experience in helping PR and comms teams manage crisis situations, respond to complex enquiries and figure out the best course of action when stakes are high. We’ve outlined the below questions which come up from PR professionals time and time again – and while no two situations are the same, the answers can help shed a little light on these common queries.

What do we do if we’re contacted by a journalist?

It’s important to understand your rights if you have been contacted by a journalist, before publication, giving you an opportunity to respond to allegations of wrongdoing. Journalists will usually contact you prior to publication. While they don’t have to if they’re certain a story is correct, it’s best practice as it is a way for them to manage risk. Providing balance also changes the meaning of an article giving better protection if allegations are doubtful. If the facts don’t stack up, it’s not in their interest to publish the article. When approached for comment, remember the following:

• For an effective right of reply, a journalist must give enough details for you to be able to respond to the allegation put forward.
• They must give you enough time to investigate before you respond – it’s normal to push back for more time. Consider whether the story is really urgent. Remember that the more serious the allegation the more journalists and their lawyers will expect that you may need more time to respond.
• Journalists won’t tell you who their source is, but should give an indication of the basis of the allegation.
• Don’t be cornered into giving an answer straight away. Don’t give a statement for publication before you’ve finished investigating – that guarantees the story runs.
• If the allegations contain confidential or private information, don’t confirm or consent to the use of this info straight away.

Are embargos legally binding?

It’s the Friday afternoon before a major announcement your client has prepared for Monday morning. You’ve briefed a reporter, under embargo, so he or she can release a great story at the start of the week to coincide with the announcement.

You get a call from the client at 2:47pm on Friday. The story has been published early, and their CEO and the board are furious. You’re scrambling to get a hold of the reporter to take the story down, but it’s been shared on Twitter thousands of times, and the damage has been done.

This is a horror story that has played out in the minds of tens of thousands of communications professionals.

Do you have any legal recourse if this happens and causes financial loss to you or your client? The short answer is no, unless the story contains market-sensitive information that could directly impact shareholder value (for example, the announcement of a new CEO).

The key points here for consideration for communications professionals:

• Embargos are generally considered to be in the category of a “gentlemen’s agreement,” and are not inherently protected by law – with limited exceptions, such as if the information protected is market-sensitive;
• You should therefore ensure that you are only working with journalists with whom you have an established relationship and a high level of trust (although note this isn’t bulletproof); and
• Consider supplementing any embargo with a legally binding non-disclosure agreement (NDA), which recognises that information of a confidential nature is being disclosed.

When it comes to court cases, is a ‘no comment’ response always best?

As communications professionals will attest, commentary during ongoing legal matters can be a sticky wicket. However, it’s not always the best policy to simply decline comment.

First, the absence of commentary often hands power to an intrepid journalist, who can choose to paint the lack of comment as an admission of wrongdoing. It may be preferred to provide a robust comment that denies the journalist that power.

Commentary can reflect a good faith discussion of public affairs or matters of public interest. So long as statements are fair and accurate and do not serve to bias proceedings, communications professionals can defend their client or employer’s reputation.

Lastly, tread carefully when using social media during ongoing trials (and that means right up to the day judgment is officially handed down by the court). Utilising public platforms in a manner that can be construed as trying to influence ongoing trials can harm reputation at best or leave you vulnerable to contempt of court proceedings at worst.

How can you remove content from social media?

Social media platforms are incredible tools for communications professionals. It has shortened the distance between brand and target audiences and created valuable forums for engagement.

However, the argument rages on as to whether social media channels are platforms or publishers. To date, they have fallen into the former category, which makes removing harmful content much trickier than with traditional media.

Generally speaking, our legal tools for content removal are defamation, data protection, privacy, copyright and the right to be forgotten. Battles have to be picked carefully on their merits; some content is more challenging than other content to remove.

If the requirements for a defamation complaint are met, we would request takedown on this basis, but in order to have a publication defence, the platform would forward the request on to the original author of the defamatory statement. This can create a delay, which is damaging as republication proliferates, as well as a volatile situation if the author opts to rebrand the story “the story they tried to stop” instead of just taking it down.

We are more commonly using data protection rules to remove content as the social media platform is required to deal directly with the content themselves. However, this is most effective in relation to “special category data” under the GDPR, such as race, sexual orientation or political beliefs.

We can also remove private information, if there was a reasonable expectation of privacy in relation to the information or if there is a competing public interest that displaces privacy or tips the balance towards disclosure.

More simple methods for requesting removal of content are when the content violates copyright law or the platform’s terms of service.

Please note: This is not legal advice. If an issue arises, contact Slateford or your in-house legal team.

Words by Natalie McEvoy, Jess Alden and Georgia Scarr