Footballer injunctions, Naomi Campbell's trip to Narcotics Anonymous, the late Max Moseley and Lance Armstrong's settled (then infamously re-settled) litigation against the Sunday Times 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, and sometimes salacious, cases such as these continue to capture the headlines in the English courts (as Johnny Depp and the participants in the Wagatha Christie litigation will attest). However, the role of the 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 reputation 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: from adverse media coverage; to damaging Google search results, online reviews and social media content; to harassment and information theft or misappropriation.
The exponential increase in digital content and the role of data in our society has had a huge impact on the way we all lead our lives. Greater engagement through a range of global digital platforms is all but essential for high net worth individuals, senior executives and family businesses. But with this need for engagement comes a range of risks to reputation and personal information that is no longer limited to the front pages of the 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, the juggernaut that is 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. Importantly, these legal principles have tentacles that are capable of stretching beyond the UK.
In the firing line: traditional media
For high net worth individuals and family businesses, however, the prospect of appearing on the front page of a national newspaper is still the nightmare scenario. Often the personal and professional interests of such clients are so inextricably linked that a negative story in the 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. And 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. This is in part because of the trust (even if it is diminishing among some groups) that the public continues to place in the leading media companies and in part because such stories carry significant weight with Google's search engine algorithms and therefore attain significant visibility in the long term.
All reputable newspapers and broadcasters (in the UK at least) will (in the vast majority of cases) provide the subjects of their stories with an opportunity to respond. This enables clients not only to 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 footballer Ryan Giggs, banker Fred Goodwin and retail mogul 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 (a principle that accords effective immunity to politicians when speaking in parliament). That said, injunctions remain an invaluable tool on the right case.
A joined-up approach with the client's public relations and communications advisers is essential, as a failure to comment on damaging allegations can be construed by readers as an implicit acknowledgement of guilt. Throughout, 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.
Digital dissemination and Big Tech
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, Google, Facebook and the other leading technology platforms increasingly have designated reporting mechanisms that enable clients (through their lawyers) 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. Crucially, “right to be forgotten” principles can be relied upon by clients from all over the world to try to combat content available to users in the UK and EU.
While 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 Google, Facebook and Twitter remain governed by the strong freedom of expression principles that subsist in the United States and by the belief that users should be afforded significant latitude in what they publish on their accounts. There is hope that promised online security legislation in the UK may go some way to increasing the accountability of Big Tech, although that remains to be seen.
World-Check and the due diligence databases
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 and rightly 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. But the legal principles discussed above (particularly defamation and data protection) can provide significant assistance in ensuring that the likes of World-Check correct inaccuracies and ensure the content of their databases remains up to date.
A set of tools that is fit for purpose?
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. Indeed, the risks posed by online material can manifest themselves in far more ways than this article has time to discuss. 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 is expanding so that they are no longer insurmountable. Legal causes of action are relatively well developed to combat these risks. Equally, though, legal advice and action invariably must be combined with other skillsets such 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.
If you require further information about anything covered in this briefing, please contact Thomas Rudkin or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2021