Lies, damn lies and media coverage: Leveson, defamation and the corporate crisis

media-leveson-reportBy Andy Cuerel

A recent analysis showed that around 60% of corporate crises originate with media reports. This means that any proposed regulation of the media will have its implications for businesses and crisis managers and reputation management as a whole – but what are these implications, and will anything actually change?

The Leveson Report

In the 2000 page report, Lord Justice Leveson does not pull his punches. Alongside specific anecdotes and catalysts for change, he notes the following in Section 38 on the subject of accuracy and misinformation:

“…..when the story is just too big and the public appetite too great, there has been significant and reckless disregard for accuracy… In an industry that purports to inform, all misinformation should be a matter of concern and distortion far more so”

Whilst this is hardly a revelation, it reminds us of a peculiar behaviour that is almost unique to the media industry – that wilfully lying is accepted by some, as long as you can get away with it and reader/viewer figures are maximised in the process. There will always be a proportion of the media-consuming public who are happy to take what is served up at face value, through apathy or because views and ‘facts’ stated match a particular partisan standpoint. For those who are a little more circumspect, however, it is a measure of how desensitised we have become that there is almost a tacit acceptance of misinformation for the sake of exposes, sensationalism and general entertainment.

Leveson states explicitly that it is not the aim for the proposed regulatory body to have any powers whatsoever in determining what is published by the media. However, it will have authority to impose financial sanctions on publications regarding issues of accuracy, and to direct the ‘nature, extent and placement’ of apologies when retractions are required. In other words the regulatory body would only be able to act when its new code is breached, not intervene at the point of publication.  Thus one could postulate that the risks to businesses from media assault will not change at all?

Changes in defamation laws

The above is true of course until somebody cries “enough is enough” and somebody reaches for the handbook marked libel and defamation. This type of action has become extremely contentious, associated with celebrities brandishing super-injunctions to cover up unsavoury acts, or powerful organisations wanting to stifle public debate. However it has also been a course of action for the people – famous or otherwise – to recover their or their companies’ reputations when unfairly portrayed in the media.

The UK defamation laws are potentially now on the cusp of reform, in an attempt to balance the right to privacy and protection of reputations with the demands of public interest and right to free speech. These proposed reforms would mean that defamation cases could not be brought against media institutions if they met the following defensible criteria:

  • The information is of perceived public interest
  • There is a belief that the information published is correct
  • A swift retraction and apology is issued if it is proved incorrect

Not all parties are in favour of reform, however, and arguably with good reason. Gavin Phillipson of the The Guardian stated his concerns recently, by comparing how the proposed amendments to defamation might have played out in the case of the incorrect child abuse allegations, made against Lord McAlpine on BBC Newsnight (for clarity, I am not suggesting this case comes under the banner of wilful lying). He concludes that the proposed three defence criteria would all have been met in relation to the allegations against Lord McAlpine, thus preventing him from pursuing a formal defamation action against the BBC. It would seem, therefore, that these reforms would in fact give the media a much freer rein than they have today.

defamationcartoon

The comparison between the Leveson recommendations and the defamation law amendments is a curious one and may in time pose a dilemma. The former is very much about significantly tightening media codes of conduct and resulting behaviours. The latter, if only as a by-product, could arguably facilitate greater abuses by the media depending on interpretation.

So what will it all mean?

The future of press regulation is yet to be decided, and only time (and perhaps a few test cases) will tell the full extent of the implications for the corporate world.  There is potentially a high risk that nothing changes and the process of complaint actually becomes more convoluted and complex. Significantly, the case of online publications and social media is barely touched upon in the Leveson report, meaning that companies are still wide open to online reputation risk without any proposed regulation. Ideally there will be change that reduces the likelihood of any repeat of the terrible abuses of privacy that have been conducted.  However, in reality a cultural shift would be needed in the readership of the media to remove the desire to feed people with salacious gossip and information based upon little or insufficient  fact …and this would be a huge step!

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