Farr on PR: legal redress – just cause, or panic attack?
Jezz Farr
“Print and we will sue.” I had that said to me a few times as a journalist. Mainly in Hong Kong, when I was learning the ropes. Often, being a rather aggressive publication, we printed anyway and sometimes were indeed sued. But we were confident in our sources and, in the end, most cases didn’t even reach court.
As a PR, I have faced irate senior bankers on many occasions, steam coming out of their ears, demanding we sue a media outlet. This would follow publication of a story that either touched on a sensitive topic or was negative about the bank or the banker and, in their eyes, was inaccurate or out of context.
I would play along for a while, sympathising with their angst, until they calmed down enough to hear the likely outcomes of a legal attack.
The obvious one, which bankers fail to see through the red mist, is that any litigation could draw far more attention to a story than was likely in the first place (the so-called Streisand effect). And if the story was indeed negative or about something sensitive, and readership jumped significantly on the back of legal action, the one big winner would be the journalist, who would be delighted. The bank would be the loser. Worse – any legal action could reveal additional information that the bank certainly did not want publicly known.
I write those last couple of sentences with the confidence that in most cases a banker shouting for the lawyers is not looking at the situation calmly as if through the eyes of a practised litigator but through those of, say, an M&A specialist who is embarrassed and feels exposed. They may have been reported saying or doing something they wish they hadn’t. And now they could be in trouble with the bank, a client or a regulator. They panic.
I think it is a macho thing. Bankers think that appearing to go in hard reflects better on them, as if we PRs and other insiders might in turn think, wow, the journalist must have made a serious mistake to justify such a tough response.
Tyre kicking
But you say “inaccurate” and I say “semantics”. Most media organisations have fact checking systems and their own lawyers to kick the tyres of a story. Sure, mistakes are made but they are rarely severe enough to warrant being sued.
It can be an awkward moment having a senior executive bark down the phone demanding I liaise with the bank’s inhouse lawyers and then call a journalist to threaten legal action. We are on the same team, after all, and I do want to help. Of course, I normally advise, strongly, against such nuclear tactics and the inhouse lawyers, being a sensible bunch, usually concur. Once a story is out there, it’s out there. Better often to take the hit, let the dust settle and then think about any remedial activity. In fact, sometimes such a situation enables me to squeeze more positive media engagement out of a banker than otherwise.
Prying eyes
Threatening to sue before publication is a different game. Not surprisingly, it flags to a journalist that they are possibly onto something interesting and juicy – maybe the kind of story a bank wants to keep hidden from prying eyes.
It also immediately changes the journalist/bank dynamic from friendly to adversarial. The journalist doubles down on the hunt, the bank gets defensive.
Again, I would normally advise against such a punchy approach. If we really didn’t want an article to see the light of day but also wanted to avoid messy legal threats, I would look to slow things down. Buying time allows for further conversations with the journalist, providing an opportunity for me to address sensitivities or question elements of the story. Hopefully I can get the story morphed just enough, or delayed, for my irate banker to calm down.
That is not to say litigation, or more accurately the threat of litigation, should always be dismissed. At various times, inhouse lawyers at my employers have met with lawyers at newspapers. This achieves two things – first, it lets the paper know the bank is taking the issue seriously and watching closely, and second, as above, it keeps the conversation going.
If a bank really wants to crank up the pressure on a media outlet, the next step would be to flex greater legal muscle and hire a specialist media litigator. As one experienced senior lawyer put it: “they are worth their weight in gold as a deterrent.” Not only will they know the law but will likely know the media outlet’s own lawyers and the journalists themselves. Just their hiring sends a powerful message to the media outlet – that this is an issue about which the bank’s management feels particularly strongly and is now pretty much only one step away from filing an injunction.
But these moments are infrequent. And even more rarely lead to actual proceedings being brought. In the more than 20 years I was a PR for various banks, I was not involved in any formal legal action against a media outlet by my employers.
Often it is simply a matter of timing. A journo wants to write a story that a bank is not ready for the world to see. If the journo and the bank’s PRs have a good relationship, and no other hack is sniffing around the same topic, it is possible to negotiate an exclusive. This means the journo still gets their story ahead of the competition but takes their finger off the “send” button temporarily, giving the bank some breathing space in which to prepare. Everyone wins, sort of.
After the initial rush of blood to the head subsides, most bankers see sense. Aggressive legal tactics come with much heartache. Readers might like the sport, but the bank doesn’t.
And the bitter aftertaste takes a long time to disappear.
Jezz Farr has been a senior communications adviser to major international banks for more than 25 years