How to avoid being sued for defamation, and PR strategies for defendants and plaintiffs .

Hello, my name is Jim James and I am your host on this EastWest Public Relations-produced Speak PR podcast. I'm the founder of the agency and have been an entrepreneur for over 25 years, and I recently returned from China where I was running the PR business but also a car import business. Now, that didn't all go so well, and on the way back to the UK, I posted on my social media channels that I wanted to look for a company that was interested in international expansion. Now, interesting enough, I only posted this on my LinkedIn and my Facebook and my Twitter, but I received then a defamation threat from this particular company. Now, interestingly enough, I then needed to engage a lawyer to publish a rebuttal.

Now, this is something that I don't wish on anybody because what has happened is this company then is accusing me of defamation.

Now, it's not quite as easy for them to do that as it sounds though, because in order for them to prove that what I wrote somehow was defamatory, they had to prove a couple of things. One is that I intended to say what I did, and secondly, that it made a material difference to their business. Now, obviously, a couple of words written by someone on their social media does not constitute a loss of earnings to this company. But it just goes to show how sometimes companies can try and threaten members of staff or other members or other companies, and we need to think about from a PR point of view what we can and cannot say, because we need to defend ourselves in the media, but we also need to know what our rights are in the media. We also need to know if we're working with agencies where, where and what they're allowed to say on our behalf. Now, I was reminded of a case that I worked on in China for a client, which was a company founded by 2 gentlemen, an Englishman and an American. And the American was trying desperately hard to get the, the British shareholders to buy him out. And the way that he wanted to do that was to try and leverage the, the word that he had that would be to basically spread false rumors about the company and about the other founders. His, his goal was to basically reduce the value of the company by saying nasty things about the company and the other shareholder on the grounds that it was better for the shareholder to buy him out before the company went out of business than it was for them to, to carry on and fight him. So it was an unholy mess really taking place between this company, this client in China, and the, uh, the other party who was residing in Hong Kong, who actually was a, was a lawyer himself. So the lawyers fought one battle against this errant shareholder, and we fought another. And our strategy was to basically drown out on social media all of the defamatory claims that this other person made. So he was making comments at events, he was making comments in articles, he was making comments to other people, and was basically making himself to be very unpopular, but all with this in mind that he might leverage our client to pay him. So what we did was we actively worked with our client to generate positive public relations, positive media coverage, nothing at all mentioning the case, nothing at all mentioning this other person's accusations, but all geared around increasing the amount of content online that there could be seen by any of the clients of our, of our, of our client. And of course, we helped them also with their messaging. We helped them do videos, and we helped make sure that there was a ratio of 10 to 1 in terms of news, so that anything that came out libelous, we would drench it with 10 pieces of positive news, which meant of course that on search engines and the like, our client was always on top. So this is a strategy that a company can take if it's in defense, and the The Defamation Act in the UK was updated in 2013, and it overhauled the, the, the act that previously was considered to be out of date. And really, defamation, as it's termed, includes libel and slander, where slander is the spoken and written is libel.

Now, it's defined as being a false statement that another party may find unjustly harms their reputation and usually constitutes a tort, so a breaking of a contract, or a crime.

Now, in several countries, and I know that people are listening to our podcast from around the world, including South Korea and Sweden, as well as Louisiana of all places, Communicating a true statement can also be considered defamation.

Now, interestingly enough, when we showed pictures of a car with the wheels falling off for this particular company, which was part of our case against them, and they considered that to be defamatory, we said, well, actually, it's simply true. This is a picture of a car with the wheels that have fallen off it on the streets of China. So actually, we were simply stating the truth. Now, if I'd been in Louisiana, that might have been a problem. So for, for someone to bring a case of defamation against you as a, as a, as a party, um, they need to demonstrate that you have written knowingly wrong things. Okay, so if it's a, a statement that they have written and they knowingly wrote it and they didn't check it and they didn't check their facts, then that can constitute defamation, especially if it's repeated. Um, so the measures that the 2000 law were seeking to protect were protection for people like scientists and academics who were publishing peer reviews which might have been negative about the original article and which the originator might have said was defamatory. Because if you think about it, if you publish a peer group paper which is saying that someone else's research is wrong, uh, or is inaccurate, they could sue you for defamation. So it also protected people that were publishing information that they believed to be in the public interest. So it might be true, and it— but it may harm the, the, the business. And if we think about, for example, the, uh, the emissions scandal for VW, this is massively damaging, of course, to VW, but it was in the public interest that it came out. So what we have to do now is to think about if you are going to suffer defamation, what can you do? But also if you're going to be sued for defamation. So suing the media for libel or slander, um, under this law of defamation, there is a responsibility to for the person bringing that action to prove that a journalist or a media outlet published something false, but also that they acted deliberately and negligently. But also you have to prove that they caused you harm. So if someone was to publish something and they believed that it was true and they'd done fact-checking and they had no intent to harm you, it may not be considered slanderous. Or libelous. Now, of course, in the US they treat public and private figures slightly differently, and there was, um, of course what we're seeing under President Trump, the, the use of the First Amendment which enables people to have the right to free speech. Now, in, in 1964 there was a Supreme Court case which was the New York Times versus Sullivan And they established that a public figure must prove that not only was a statement false, but that it was published with actual malice. So in other words, they have to prove that the media or another party had a reckless disregard for the truth. In other words, they published something without actually doing any fact-checking or printing a false story in spite of knowing that the facts— in other words, just publishing falsehoods. Now, interestingly enough, in America they also have, um, a, a clause which determines and distinguishes between people that are private citizens and people that are public, and they call it a limited public figure. So this is a non-famous person who deliberately injects themselves into the public debate or a position and therefore takes on a sort of quasi-public figure role and therefore becomes to some degree fair game. And we see this of course with the royal couple who are famous. And so to what degree is their private life now in the public domain? That's obviously an ongoing case. Now this idea of a limited public figure is quite interesting because if you look at social media and what we're all doing, including me now with this podcast, or you by speaking publicly, You may be ending up in a position where you are being seen as a limited public figure, and it may remove some of the rights that you have to privacy or to other people commenting about you and your well-being. Okay, so from a PR point of view, it's worth just thinking about whether you really want to take somebody to court for slander or for libel, under both— under the, um, the Defamation Act of 2013. Because you might find that a false story may get attention only for a day or two, or maybe a week, but under these current conditions, maybe not long at all. But if you took action against a party for defamation, then the case could drag out for years, and all the court and the details would then become public because the other media outlets could publish whatever was written, right or wrong, simply because they're reprinting and reporting the court records. So sometimes from a PR point of view, it's, it's better to turn the other cheek and to do as we did with our, with our partners and our clients in China And that was to drench the content out. So for PR now, there is an interesting paradox really, that because public figures can now be designated as anyone who is actively promoting themselves, it can actually apply to corporate executives or an organization. So it can mean that an organization that is prosecuting, for example, a member of staff or another company, may end up, through dint of their own public relations activities in other areas, be considered to be a semi-private individual and therefore actually not have same sort of rights to privacy. So it's not quite clear-cut now if you were to go for a libel action, but there are some great cases where people have fought and won.

I personally fought back.

I wrote back with, um, a defamation lawyer, a barrister, and, um, it cost me £500 per letter, but we got the other party to stand down because they plainly were just trying to intimidate me. They didn't really have a case. And this is something to think about, whether the other party is simply trying to intimidate you, in which case, in my view, it's worth not, not letting one be bullied. I just want to share with you some, some high-profile cases where people have gone for defamation. And they've won. And this can be important because it's possible now to do things like crowdfunding, where you can raise money if you have a good case. And there's litigation funding as well if you have a good case. So Wilson versus Bauer Media— this is the Australian rebel Wilson, who's been a favorite of my girls for quite some time. So she complained that there were articles published by the Woman's Day magazine claiming that Wilson had lied about her name, her age, and so on. And, and she made a claim quite famously that she had lost from 2015 to 2016 job opportunities as a result of this defamation. And the court awarded Wilson $650,000 in damages and just under $4 million in special damages. Saying that she lost jobs, movie jobs, as a result of their defamation. Now, if you're a company, ABC News in America was sued by the Beef Products Incorporated for saying in a news piece that their low-cost processed beef equated to pink slime. So this company then brought a defamation lawsuit against ABC, and they won $1.9 billion in damages settling with ABC, um, Disney, the parent company. So quite obviously in America, if you win, you can win really, really big. And of course, with that news, the ABC competitors like the New York Times actually covered the story. Now Melania Trump famously sued the Daily Mail in England for saying that she had been working somehow in America illegally and that she had somehow not had all of her paperwork, that she'd actually been an escort. There we go, I finally managed to say it. That she'd been an escort.

So they claimed damages.

And the Mail retracted the, the statement and they published an apology, and she apparently was awarded $3 million as well.

So it's possible therefore to sue and to win, and one can only imagine that was quite painful. Now, in a smaller scale, but as an example of what happens on social media, and just to be careful about what you write or don't write about your staff, about your company, or otherwise. In the recent case, 2017 Monroe versus Hopkins, there were some defamation claims arising from social media. Okay, so food writer Jack Monroe sued against the journalist Katie Hopson—

Hopkins, rather—

and, and it was because Hopkins had made 2 tweets, only 2 tweets, that accused Monroe of desecrating a war memorial. And Monroe was awarded £24,000 in a judgment handed down by the judge.

And the awards were exacerbated by the continual harm caused by Monroe's reputation by the tweets, apparently, as well as the— this is interesting— as well as the injury to feelings caused by the defendants, okay, during their reprehensible behavior throughout the matter. In other words, because of the defendant's behavior through the matter, they were fined a judgment against them as well. So actually, Twitter innuendo was something that the court in the UK took into account. So it's possible then to think about if you are going after somebody or something, you just need to be really careful because tweets Facebook, Instagram, could be taken in court and used against you.

So just think as well about invasion of privacy, because if you're going to use your staff in any way, you must make sure that your staff are willing and have written and signed agreements that they're willing to be in publicity. Certainly the schools do this. My daughter's schools are very clear. I have to sign a waiver to allow them to use the children's photographs. We're not allowed to share pictures of children, other children at school, on our own social media. So if you are working with your own staff for public relations activities, make sure that your staff are all in agreement with that, because later on, if they have any issue with you as an employer, they may use the social media posts that you've posted so far against you. Think also about copyright law and what you're asking your agency to do on your behalf. As an agency, in our agreement, we have a disclaimer that we have the right to refuse anything that we believe to be unlawful and that we pass all responsibility for copyright to the client. So make sure that copyright belongs to you that you give the rights to your agency to use that. And I will tell you, once upon a time in China, we were sued by the, um, by the client, or in fact the original client, um, had his other, uh, opponent try and sue us for using their brand name, um, on their behalf. So it can get nasty out there when it comes to law. I personally had some experience of that I pray that you don't, but get some advice if you're not sure. But if you're going to tweet something or Facebook or Instagram or social media, think before you post. So thank you very much for listening to this podcast episode about PR and the law. My name is Jim James. This is the Speak PR Podcast. If you like this, please do rate it, subscribe, and even come across to our website at eastwestpr.com and subscribe to our newsletter to get this and more articles about how you can get yourself noticed. So from now, I wish you good health, a profitable business, and that you keep on communicating.