Smears, laws, and PR ethics

490201787Dr. Margalit Toledano, APR, Fellow PRSA, Fellow PRINZ

In November 2011 top international PR agency Burson-Marsteller was caught up in a scandal. They’d run a covert anti-Google smear campaign on behalf of their client Facebook. They had pitched anti-Google stories to newspapers and bloggers, urging them to investigate claims that Google was invading people’s privacy. When a blogger posted Burson-Marsteller’s pitch email on his blog and the PR agency refused to disclose the name of the client the strategy backfired. It led to wide negative publicity under the title “the Whisper Campaign”. Facebook was then exposed and this high profile case of defamation was criticized by the communication industry as unprofessional. The Public Relations Society of America (PRSA) stated bluntly that “Smear campaigns have no place in PR.” PRSA also accused Burston-Marsteller of violating the PR code of ethics: both by running the negative campaign and by not disclosing the identity of the client that hired them to do it. Eventually Burston-Marsteller had to publish a public apology reiterating their commitment to transparency about clients.

Dirty Politics, the new book by Nicky Hager, alleges that a similar, though longer and more sophisticated, smear campaign involved PR professionals serving the New Zealand Prime Minister. The argument that leaking negative stories about political opponents to media is common practice by all parties doesn’t seem to cover the outrage expressed by the public and other political parties about the access to privileged state secrets provided to specific bloggers collaborating with the PM’s spokespeople. Calls for legal action followed on the day the book was launched. They came from both sides – to inquire into both government spokespeople and Nicky Hager’s undisclosed sources. This promises to be a long-lasting and challenging task for court intervention as defamation cases are tricky and difficult to judge.

In many countries, the law recognises the value of reputation and credibility and balances it with the democratic rights of freedom of speech, expression and the freedom of the press. Malice and the intention to cause damage to a competitor, in either commercial or political cases, is often a major issue in defamation cases.

A precedent that is particularly relevant to public relations was set by an Israeli court in 2012. The Tel Aviv judge Dr. Michal Agmon-Gonnen ruled that negative campaigns were unacceptable practice and she fined a company for employing a PR agency whose plan included trashing the reputation of a commercial competitor. The company paid damages in negligence because the judge considered the PR plan as evidence for malice in its intentions to defame a competitor.

Agmon-Gonnen’s judgement stated:

There is no legitimacy in greater access to the media, which is achieved via public relations services that are bought with lots of money. It is a cynical and unlawful use of the freedom of press and freedom of expression . . . . A market in which media news are bought with money, and with irrelevant motivations, is a dangerous market of ideas, with destructive potential. This is not a free market in which the competition between different opinions and ideas leads to the exposure of the truth. This is a market in which the rich and the powerful have a clear advantage over others and they are the ones who dictate tomorrow’s headlines.

(Agmon-Gonnen, 2012 judgement, p. 26) [Author translation from Hebrew]

The law generally offers protection to defendants in defamation cases when the publicity meets two conditions – truthfulness and the public interest. The Israeli case exposed the unethical conduct of public relations practitioners who planned to spread untruthful stories and to argue that such a campaign to smear a competitor was an acceptable PR practice
In many cases public relations practitioners conduct negative campaigns to serve client goals not just in competitive markets but in political campaigns. At times this may serve the public interest by exposing essential information about public figures, political candidates, business people or even non-profit organisations that cheat or present a risk to society. But large questions remain. As long as the information provided in the negative campaign is true – should they be forbidden from publishing it on the grounds that a negative campaign could be considered illegal? However, as the Israeli judgment shows dirty trick campaigns have a long way to go before they can safely wrap themselves in a “freedom of expression” cloak. And the court of public opinion is more likely to support legal interventions to curtail smear campaigns that favour malice over substance.

For full paper on the Israeli case judgement of PR see:
Toledano, M. (2014). Judging public relations: An analysis of an Israeli court judgment on a defamatory and negative campaign. Public Relations Review Vol 40 (3). pp. 492-499

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