Reputation Matters – FAQ from the legal perspective

Tracey Walker of Simpson Grierson, author of Reputation Matters, A practical guide to managing legal risk, blogs for PR Central on legal issues relating to Reputation Management.  First up – some of the most frequently asked questions of defamation lawyers. Part 2 next week – press releases and defamation.

Defamation law is about the balance between protecting reputation and freedom of expression. Most communications professionals have a basic understanding of the rules.  But, the law is complicated (more complicated than it should be) More importantly, its practical application requires fine judgment calls.  Previously unknown defamation risk is now the day to day reality because of immediacy of archived electronic media, the impact of search engines and news aggregators, proliferation of social media and the beguiling intimacy of cyber communications.

The characteristics of new media affect the level of defamation risk including the ease and speed of republication and volume of user generated content.  This means that a working understanding of the rules is all the more important in a fast paced communications environment.

Who can sue?
Any individual identified in the defamatory statement, directly or indirectly, is entitled to sue but so too is a corporate provided the defamation has or is likely to cause it financial loss.  In short, if it hits the company in the pocket, it can sue.  A Council is not entitled to sue because of the principle that a democratically elected governmental body should be open to public criticism.  Statutory corporations need to show a trading reputation before they can sue but remember that a statement about such a corporation can, by implication, defame individual leaders of that organisation.

Am I liable for repeating someone else’s defamation?
Yes. If you republish, you are just as liable even if your statement is as simple as “Joe Bloggs said so and so” and you haven’t endorsed the statement. Importantly, the “repetition rule” means that you have to prove the truth of the underlying sting of the allegation; merely proving that Joe Bloggs made the allegation is no defence. A possible exception to this principle is a developing public interest defence for media known as “neutral reportage”. This is reporting without adoption or embellishment of attributed allegations of both sides of a political dispute.

Can I be sued in respect of a press release issued on behalf of a client?
All those who participate in a publication are liable for defamation, subject to available defences. An organisation can be vicariously liable for the acts of employees and agents, even without knowledge of the defamation. In at least one well known case, a claimant sued a PR company, a trade rival, a hired expert and a politician for a press release alleging that all had contributed to the content of the press release or played a part in its dissemination. The case settled before trial.

How far does defamation law apply to Twitter or Facebook?
The first rule of the new order is that defamation law still applies in cyberspace including on social media platforms such as Twitter.  Lahlit Modi discovered this when he libeled Chris Cairns in an ill-fated tweet.  The tweet cost Modi GBP90,000 in damages and substantially more in legal costs. [1]  Twitter poses particular risks because it’s hard to provide balance and context in 140 characters. Courts will however judge statements on Twitter and Facebook more liberally since the mode of publication and surrounding circumstances are relevant when determining meaning of a statement.

Next time – how do I bulletproof my press release against defamation liability?

  • Download the brochure on Reputation Matters.
  • Order online; PRINZ members offered a 10% discount – enter code ‘NREPPR’ at checkout.

Tracey Walker is a speaker at the Senior Practitioners Forum in Wellington on 5 October 2012, more information on the Forum here.

[1] The judgment has been appealed by Modi. The appeal was heard at the end of July and a decision is expected any day now.

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