Storm watch

Footballer injunctions, Naomi Campbell’s trip to Narcotics Anonymous, the late Max Mosley and Lance Armstrong’s settled (then infamously resettled) litigation against The Sunday Times: these are but a few examples of the types of case that kept many UK media lawyers busy in the early years of the 21st century. High‑profile, often salacious, cases such as these continue to capture the headlines.

However, the role of the UK media lawyer has expanded greatly in recent years to become increasingly strategic and involved in clients’ needs on a more ongoing basis. This is due to a number of factors, including the different legal causes of action now available, the wider range (and greater scale) of reputational risks faced by clients and the need to adopt a proactive approach to reputation management, given the speed at which information is disseminated.

Media lawyers are invariably specialists in a variety of areas of law and frequently position themselves as reputation managers (since the term ‘media’ is too narrow). The role requires protecting clients against a variety of threats: adverse media coverage; damaging Google search results, online reviews and social media content; and harassment and information theft or misappropriation.

The exponential increase in digital content and the role of data in society has had a huge impact on the way we lead our lives. Greater engagement through a range of digital platforms is all but essential for high‑net‑worth individuals (HNWIs), senior executives and family businesses. However, with this need for engagement comes a range of risks to reputation and personal information that are no longer limited to the front pages of national newspapers. Reassuringly, there are a number of tools that enable lawyers to prevent and/or mitigate the publication of unlawful content, and the law (or at least its ability to apply to a variety of scenarios) is doing a reasonable job at keeping up with technological developments. In recent years, the greater breadth of available causes of action has provided clients with an increasingly effective toolbox to protect their reputation. Privacy rights in the UK have strengthened significantly through developments in case law. Meanwhile, data protection law has created new avenues for seeking the removal of online content, whether from Google search results, Instagram posts or online review websites.

In the media

For HNWIs and family businesses, however, the prospect of appearing on the front page of the Daily Mail or The Sunday Times is still a nightmare scenario. Often, the personal and professional interests of such clients are so inextricably linked that a negative story in mainstream print or broadcast media has a deep and far‑reaching impact. Of particular concern is the story that snowballs, with multiple publications picking up and running with different angles or versions of the same theme. It is certainly the case that negative stories published by a leading newspaper or broadcaster remain capable of causing serious reputational harm and commercial loss.

All reputable newspapers and broadcasters will, in most cases, provide the subjects of their stories with an opportunity to respond. This enables clients to not only consider whether they wish to comment publicly on a story, but also to take advice on whether any elements of the story can be stopped or toned down by highlighting to the publisher the legal risk. Much of the engagement before publication takes place on a background basis, with lawyers exchanging ‘not‑for‑publication’ correspondence with journalists and their legal departments.

Such correspondence may involve asserting that particular aspects of a threatened story are false and defamatory, or that they amount to private or confidential information that there is no public interest in disclosing. In extreme cases involving private or confidential information, the option of an injunction to prevent publication remains available, although it is increasingly seen as a very costly last resort. Over the years, the likes of Ryan Giggs, Fred Goodwin and Sir Philip Green have all found out to their cost that political antipathy towards the use of injunctions to ‘gag’ newspapers can manifest itself in the (mis)use of parliamentary privilege. That said, they remain an invaluable tool in the right case.

A joined‑up approach with the client’s public relations and communications advisors is essential, as a failure to comment on damaging allegations can be construed by readers as an implicit acknowledgement of guilt. There needs to be an understanding of where the legal boundaries for the newspaper lie and where publicity is likely or inevitable and may therefore need to be addressed in a more open way.

Such interactions with the mainstream press follow well‑established rules (or, at least, principles) of engagement. The same is beginning to emerge for some of the other sources of content that are of particular concern to clients for the reasons highlighted above. For instance, Facebook, Google and other leading technology platforms have designated reporting mechanisms that enable clients to report unlawful content. This is an area where data protection law, sometimes referred to in this context as the ‘right to be forgotten’, is especially helpful to clients. It imposes obligations on all organisations (including publishers of user‑generated content) that hold and control the way in which personal information is disseminated.

Although these obligations are set out in detail in the relevant legislation, a key overarching principle is that all publishers must achieve an appropriate balance between the rights of the individual (whose reputation, privacy or wellbeing might be at risk) and any interest the public might have in consuming the information. Demonstrably false allegations appearing in Google search results or published by users on social media do not, of course, serve any public interest. On the other hand, the likes of Facebook, Google and Twitter remain governed by the strong freedom of expression principles that subsist in the US and by the belief that users should be afforded significant latitude in what they publish on their accounts. There is hope that forthcoming online harms legislation in the UK may go some way to increasing the accountability of ‘Big Tech’, although that remains to be seen.

False information

A further increasing area of concern for private clients, especially non‑UK‑domiciled individuals, is the impact of false information appearing on due‑diligence databases such as World‑Check. Such databases, which pool together information from online and other publicly available resources to create profiles for individuals, are frequently used by professional services firms when onboarding clients and carrying out anti‑money laundering checks. Banks, accountancy practices and law firms understandably treat with significant caution any association of a potential client with allegations of unlawful conduct.

However, negative associations that find their way onto platforms like World‑Check may originate from false reports that have been published in the news media of jurisdictions where the press may be unduly influenced by state interests. It is also not unknown for the databases to have failed to include favourable conclusions in legal proceedings that would exonerate the potential client. Not only does the information on such databases have a reputational consequence, it also has significant practical consequences when bank accounts are closed or services refused. However, the legal principles discussed above (particularly defamation and data protection) can provide significant assistance in ensuring that these databases correct inaccuracies and ensure the content remains up‑to‑date.

Conclusion

As these examples help to demonstrate, digital content outside of traditional media is on a par with mainstream press attention when it comes to reputational concerns. Sustained harassment campaigns, targeted disinformation through multiple platforms and leaks of information that give rise to security concerns would all merit detailed discussion in their own right. The toolkit of legal remedies and awareness of these issues are expanding so that they are no longer insurmountable. Legal causes of action are relatively well developed to combat these risks. Equally, however, legal advice and action invariably must be combined with other skill sets, such as communications and public relations advice, and digital intelligence, wherein technology is used to research areas where reputation or privacy risks might be lurking and identify malicious actors.

None of this is to say that individuals and their families should not engage with traditional and/or non‑traditional media where the circumstances are right, but a proactive approach, grounded in pragmatic advice, is indispensable.