How to Avoid Being Sued for Defamation and PR Strategies for Defendants and Plaintiffs

By Jim James

Founder of EASTWEST Public Relations

Getting sued for defamation is tricky, but it’s important to defend yourself and to know your rights with the media. Defamation, as it’s termed, includes libel and slander, where slander is spoken and libel is written. It is defined as a false statement that another party may find unjustly harms their reputation and usually constitutes a tort such as breaking a contract or committing a crime. Communicating a true statement, however, could also be considered defamation. For someone to bring a case of defamation against you as a party, they need to be able to demonstrate that you have knowingly written wrong things. For instance, something could constitute as defamation if a statement has been knowingly written without fact-checking, especially if it is repeated. 

Defamation in the law and government

The Defamation Act in the UK was updated in 2013, overhauling the previous one which was considered out-of-date. It seeks to protect people like scientists and academics who are publishing peer reviews which could have been negative about the original article and which the originator could have said was defamatory. This is due to the purpose of the peer group paper which could be saying that someone else’s research is incorrect or inaccurate, and they could then turn around and sue you for defamation. It also protects those publishing information they believed to be in the public’s interest. Though it could be true, it could also harm the business, as seen with Volkswagen’s emissions scandal . While it was massively damaging to VW, it was in the public’s interest that the information came out. If you were to be sued for or accused of defamation, or if the media were to be sued for libel or slander, under this law of defamation, there is a responsibility for the accuser to prove that what was published was false, that the accused party acted deliberately or negligently, and that these accusations caused harm to the person or company. It may not be considered slanderous or libelous if someone were to publish something they believed to be true having engaged in the necessary fact-checking without any intention to cause harm.

Public and private figures are treated somewhat differently in the United States, as exemplified by the use of the first amendment  which enables people the right to free speech under President Donald Trump. A Supreme Court case in 1964, which was the New York Times v. Sullivan, established that a public figure must prove that not only was a public statement false but that it was published in malice. In other words, it is necessary to prove that the media or another party had a reckless disregard for the truth. They could have published a story without fact-checking or even published an entirely false story. There is a clause which distinguishes private and public citizens, the latter which is known as a "limited public figure." This means that a non-famous person who deliberately injects themselves into the public takes on a quasi-public figure role and becomes fair game. An example of this is the royal couple, who are obviously famous, which begs the question, to what degree is their private life public domain?

On social media, there is a debate on whether people are considered limited public figures, because if so, this could remove some of the rights to privacy, and it’s worth thinking about whether you really want to take somebody to court for slander or libel under the Defamation Act of 2013. A false story may only get attention for a day or two, and especially under these current conditions, not long at all. However, if you were to take action against the party for defamation, then the case could drag out for years and all of the court details would become public. The media could then publish whatever was written, whether it was right or wrong, simply because they are reprinting and reporting the court records. Therefore, keeping PR in mind, it could be better to turn the other cheek and drench the content out with positive news.

There is a curious paradox in PR, because public figures can be designated as anyone actively promoting themselves such as corporate executives of an organisation. An organisation prosecuting a member of staff or another company may not have the same rights to privacy, meaning pursuing libel action is no longer as clear-cut, but there have been cases where people have fought and won. Intimidation can be taken into consideration, because it is not worth getting bullied for. With a promising case, it is possible to raise money through a medium like crowdfunding or even litigation funding. 

High-profile defamation lawsuits

Wilson v. Power Media took place because Australian actress Rebel Wilson said that Woman’s Day magazine published articles claiming she had lied about her name and age. The actor claimed that she had lost job opportunities between 2015 and 2016 due to this defamation, and the court award Wilson with $650, 000 in damages and just under $4 million in special damages. Another successful case was a company that wanted to sue ABC News in America, the parent company of ABC Disney, for nearly $2 billion in damages because ABC said their low-cost beef product equated to pink slime, resulting in a dramatic decrease in sales. Melania Trump famously sued the Daily Mail in England for saying she had been working illegally in the US as an escort. She claimed damages and the male retracted the statement, an apology was published, and she was awarded $3 million in damages. 

An example of defamation on social media, which is highly prevalent in society and used by most companies, is the 2017 case of Monroe v. Hopkins wherein defamation claims arose from social media. Food writer Jack Monroe sued journalist Hopkins who supposedly had written two tweets accusing Monroe of desecrating a war memorial. Monroe was awarded £24,000 which was exacerbated by the continual harm caused by Monroe’s reputation and the moral injury caused by the defendant. That Twitter innuendo was something the UK court took into account, and this serves as a reminder to always think before posting on social media, as you could be taken to court and have your posts used against you.

Invasion of privacy is also a potential problem. If you are going to use your staff in any way or have them do public relations activities, make sure they have written and signed agreements stating they are willing to be in the public eye to avoid any potential issues regarding social media posts later on. Copyright law and what you are asking your agency to do on your behalf is another thing to consider. As an agency, having a disclaimer stating the right to refuse anything the agency believes to be unlawful and that all responsibility for copyright is passed onto the client. It is imperative to ensure the copyright belongs to you, and that you give the rights to the agency to use it. And definitely, always seek advice if you are unsure, and if you are going to share something on Twitter, Facebook, or Instagram, make sure you think before you post.

This article is based on a transcript from my Podcast SPEAK|pr, you can listen here.

Cover Photo by Tingey Injury Law Firm (Not related to the case mentioned in this article) on Unsplash

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