How an individual or a company responds – or doesn’t – to a media story is profoundly impacting their legal options if they feel they have been libeled or slandered by a journalist.

Background

Put simply, the high court ruled that a media story, while it must be in the public interest, doesn’t necessarily have to be true.

The ruling means journalists can make factual errors.  But as long as they take a series of steps – in other words exercise “responsible journalism” – to ensure fairness in stories that are deemed to be in the public interest, they cannot be successfully sued for libel.

Media lawyers have hailed the creation of the new defense as “a gift” and a major step towards reducing so-called libel chill, which can cause journalists to back away from contentious stories for fear of being sued, often by powerful interests with high-priced legal teams.

Interestingly, the ruling also extends to non-traditional journalists such as bloggers and users of other social media such as Twitter.

The ruling has changed the focus of court cases – and potential court cases – from the truth of the facts to the behavior of the journalist and of the individual or company that’s suing – or thinking of suing – a media outlet for a damaging story.

What it means for Your Clients

A good public relations person will always respond in an effective and timely way to media requests for information, reaction or interviews.  The reality is many don’t.  And now ineffective or untimely response can severely limit or negate a company’s legal options when it comes to a damaging report in the media.  The potential damage to your clients’ reputations can be enormous and permanent.

What happened to a major Canadian retailer recently could happen to your clients if they fail to respond effectively to a media story.   A recently aired news report which strongly suggested that the an employee of retailer created a safety hazard by tampering with the customer’s property, in order to sell him a replacement part he didn’t need.

That claim may or may not be true – there’s simply no way to prove it.  However, the reporter did reach out to the company for comment.  The head of PR then took three whole days to get back to the reporter and then responded with a written statement that did not adequately address the issue.  By the time the report appeared on online the company went into full damage control and demanded the story be pulled.  But it was too late; the story was out there.

After the report aired, the company served notice of its intention to sue for damages.  When the media lawyer presented the retailer’s legal team with the sequence of events – which made clear the untimely and ineffective response of the PR person – the retailer backed down.

The company realized – after they were reminded of it by the media lawyer – that they had handed the broadcaster a defense that would likely get the case thrown out.

The journalist had exercised responsible journalism by giving the company more than enough time to respond.  Because the company – through its PR person – chose not to, the reputational damage was done and the company was denied any legal recourse.

But the core foundation of that great idea – the notion that the state and its institutions are accountable to the people and not the other way around – is showing signs of fracture.

Politicians, egged on by special interest groups and too often by the liberal media, are spending as if there’s no tomorrow fuelling the fears of many fair minded taxpayers that there may not be.

Our immigration system, as Margaret Wente of the Globe and Mail recently pointed out, is broken as is our refugee system, further adding to the mountain of public debt.  And even the federal Conservatives – who talk tough but do little – shy away from meaningful reforms for fear of losing the immigrant vote.

Health care remains the third rail of Canadian politics.  Everyone knows what must be done but no one wants to touch it.

Our justice system now prosecutes honest, hard working business people for the crime of protecting their business.  And cuts deals with the crooks in order to do it.  Our criminal and family court systems have become paralyzed and perverse.  Human rights tribunals run wild stifling free speech in the name of not offending.

The response of our elected officials in Ottawa has been one of obfuscation and diversion – bogging the nation down in emotional, yet ultimately useless, debates on side issues like the long form census and the long gun registry.

At the same time our federal politicians continue to work tirelessly to keep the business of government secret from the people by blocking free and fair access to information by the public and the media– information about what our government is doing supposedly on our behalf.

And in a bizarre, almost inexplicable, decision, our Supreme Court Justices have just ruled that Canadians do not – and should not – have the same right that Americans do to have a lawyer present during questioning by police.

Democracy is being turned on its head. Increasingly, we the people are the ones who are being made accountable to the state and its institutions.  They no longer answer, not in a serious way, to us.

To be sure, people are starting to recognize this threat and push back.  The Tea Party Movement in the United States.  The HST revolt in British Columbia.  The Wild Rose Alliance in Alberta.  The Rob Ford insurgency in Toronto.  The nascent centre-right coalition emerging in Quebec.

All of these movements have been spawned by the underlying belief that government has become unaccountable.  That it’s too big, too intrusive.  That our debt load is becoming unmanageable.  Hillary Clinton recently said the U.S. public debt is becoming the single biggest threat to America’s national security.   Too bad her boss hasn’t yet got the message.

Good thing the people of our two great nations are starting to.

Bias exists and there’s no denying it. It’s not that the story is wrong, badly written or even slanted in one direction or another, although stories often are.

Bias exists in other, more insidious places.  What stories are covered.  What stories aren’t.  How stories are played – is it the lead, is it buried?  How much prominence is a story given, how is it headlined?

Take these two headlines on the Omar Khadr trial at Gitmo.

KHADR SAID HE WAS A TERRORIST: PROSECUTOR

-National Post

OMAR KHADR INNOCENT, LAWYER TELLS TRIAL

-CBC.ca

One story.

Two very different headlines.

And headlines, and occasionally the first paragraph or two, are all many readers pay any attention to, or at least remember.

Yes, the CBC and the National Post have their biases as all media outlets do.

They’re on display every day.

And they do matter.  They do have an impact on how we view – and ultimately judge – the world around us.

Never mind that Israel is the only state in the Middle East where gay and lesbian relationships are recognized and protected by law.  Never mind that homosexual activity next door in Palestine is punishable by 10 years in prison.

Those marching in denunciation of Israel might want to read (but probably won’t) a fascinating and comprehensive study conducted by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) and reported by Britain’s The Independent.

Incredibly there are 76 counties around the world – including Israel’s Arab neighbours – where being gay is a crime.  In seven of those countries it’s a capital crime, punishable by death. Now that’s something worth marching against.

By contrast only 56 countries, Israel included, have anti-discrimination laws that protect gays and lesbians.

There are few who understand the meaning of hate better than the gay community.  That sad fact alone should make one thing perfectly clear:  groups that promote hate should have no place in the Pride Parade.  It sullies everything we’ve achieved, everything we’re proud of.  Pride organizers should stand tall and say so.

If the mainstream media were doing their job, they would be reporting aggressively on this issue instead watching from the sidelines like star struck teenaged cheerleaders.

And if groups like Queers Against Israeli Apartheid had even a passing interest in human rights in the Middle East they’d be marching under a very different banner.  Unfortunately, their hatred for Israel trumps any real desire to promote gay rights in repressive and, in some cases, medieval regimes where just being gay will land you in jail.  Or worse.

Beefy local employees in hardhats have been conscripted into BP’s television ad campaign which tries to convince a cynical public that the oil giant really does get it and is committed to putting things right -  no matter how long it takes or how much it costs.  All delivered earnestly to camera in a heavy southern drawl that says, “look at me, I’m about as far from British as you can get!”

Tony Hayward, the British CEO who suffers both from an oily personality and an uncanny ability to stick his well polished Oxfords in his mouth at the most inopportune times, has been banished to Siberia and replaced by an American, Bob Dudley, who had been banished from Siberia.  All this aimed at trying to redeem BP in the eyes of a furious American public and an administration that came to office with an anti-corporate bias already built into its DNA.

But there’s only so much a PR campaign can do when it’s up against images and stories of ravaged coastlines and marine life and the ravaged livelihoods of those families who depend on both.

Nor can a PR campaign – no matter how brilliantly executed – make up for a dismal safety record.  Even before the Gulf oil spill – the worst in U.S. history which also took the lives of 11 workers – 30 other workers were killed and 200 seriously injured in two separate disasters over the past 5 years.  BP has admitted to breaking the law and has coughed up hundreds of millions of dollars to avoid prosecution and possible jail time for its top decision makers.

It paints a picture of a company that likes to make big deals but doesn’t make a big deal out of safety.

An effective PR strategy can and does go a long way in preserving or restoring a company’s good name. 

The pre-requisite, of course, is a good name.

The first happens when things go south; something has gone very wrong and the media smells blood.  Although there is no such thing as a one-size fits all solution in these cases there is a general rule of thumb.  And that’s based on the assumption – one I believe to be true – that Canadians are a very forgiving people provided there’s been no wilful wrongdoing or cover-up and provided the company or the individual steps up to take responsibility.  In other words fesses up and puts things right.

It’s not rocket science but I’m surprised how many clients, usually on the advice of counsel, find that so terribly hard to do.  (On a side note, when it comes to public and media relations I’m always struck by how badly served companies are by their legal advisors, who tend to see events as though they’re looking through a straw.  A company’s or an individual’s reputation is often times far more important than a narrow legal issue and the default position of far too many lawyers is to say nothing to the media.  That strategy invariably prolongs a negative story and further damages reputations.)

Seeking media attention – for your company, product or cause – is actually a lot tougher than avoiding it.  Reporters are loath to print or air stories that smack of free publicity.  That’s what advertizing departments are for and Lord knows they could use the revenue these days.

So that’s the sniff test you have to pass when pitching a story.  If you want news coverage it has to be newsworthy.  I’ve discovered that most companies are sitting on all sorts of great news stories, real gems – they just don’t recognize them for what they are.  And even if they do, they don’t pitch them in a way that will get a reporter’s attention.  Much of what a company thinks is interesting or newsworthy actually isn’t.  But almost all companies have stories that reporters would love to do – stories that can and do raise a company’s profile in a positive way.

You’ve just got to know where those gems are hidden and how to polish them up in a way that no reporter can ignore.

Lisa LaFlamme and Dawna Friesen – the new hosts of the CTV and Global national newscasts – are first rate, hard working journalists and the country is lucky to have them.  Kevin Newman and Lloyd Robertson are two of the last true gentlemen in the business.  And Lloyd is nothing short of a Canadian icon.

Still outside the chattering class – and in spite of the last minute and somewhat childish scramble by CTV to beat Global to the punch in announcing a female anchor – the transition of chairs was met by nothing short of a national yawn.  And frankly that’s not surprising.  Network audiences are aging and starting to die off and younger replacements are nowhere to be found.  It’s an outdated and now dying format and the networks know it.  They just can’t bring themselves to pull the plug.

Today we get our news on the go from the sources that suit us.  We’ve become our own line-up editors insisting on – and receiving – news the way we want it, when we want it.  The mainstream media is racing to keep up but still struggling with some very basic questions; foremost among them – how to make money from their digital delivery systems.

And still the network newscasts linger– lumbering and once proud behemoths, relics from another time, whose time has come – able only to serve up warmed over information that is largely stale and flavourless – adding little to what the informed viewer already knows.  Half a dozen packaged stories in half an hour –seven on a good night – with a sprinkling of odds and ends thrown in for pacing.  No wonder the news of who gets to introduce those stories was greeted with little more than a shrug.

Fast forward to now.  We’ve gone from what seemed like a trickle of information back then – brought to you exclusively by what we now refer to as the mainstream media – to a virtual flood of it.  And the waters just keep rising.

And amid it all we keep hearing predictions (there’s even a Twitter feed that’s counting it down) about the death of traditional media.  If you buy that line, you do so at your peril.

While it’s true that the glory days of the mainstream media are long gone, there remains one undeniable fact confirmed recently by a major study by the Pew Research Center’s Project for Excellence in Journalism:  most of what the public learns – in other words, most of the news that’s reported and consumed – is still generated by traditional media, particularly newspapers and local television news.

By contrast, the world of new media – blogs and social media sites including Twitter – serve more as online “echo chambers” that pick up that original content and pass it around with added commentary.   You can’t ignore it, you have to deal with it, but it’s unlikely you’ll learn much new from it.

It’s also true that traditional media outlets are facing unprecedented financial challenges.  Many have already folded; others are teetering on the brink.  In order to survive those that remain are struggling to redefine themselves and what constitutes hard news.

What used to be “just the facts, Ma’am” now comes injected with increasingly large doses of opinion and analysis (just look at the growing popularity of Fox News in the U.S.).  The managing editor of the Vancouver Sun refers to the transition as going from newspapers to viewspapers.

And that presents huge challenges for your company’s media relations strategy.

Now, when things go wrong and your company finds itself in the news it’s just as likely the media will be writing about how you handled the issue – your PR strategy – as it will the issue itself.

Consider this recent headline from Reuters:

“Toyota grapples with PR bungles, tarnished brand”

In other words, your public and media relations strategies are now considered newsworthy.  The good (Maple Leaf Foods), the bad (Toyota) and the ugly (BP and Tiger Woods).