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New libel law could boost emphasis on ethical public relations
14 February 2014

According to industry experts, a change in the libel law giving better protection to people expressing their opinions could bring a new spotlight on the role of public relations, reports David Banks.

The libel law known as the Defamation Act 2013, which came into force last month, gives several new defences to commentators and has been welcomed by journalists, scientists and academics for “moving legislation towards greater free speech”.

Sue Wolstenholme (pictured), a public relations consultant and author, said the change was a clear opportunity for public relations practitioners to prove their value.

“I think it's a good thing that the libel laws are now less easy to bring to bear. I'm optimistic and see the opportunity for public relations very strongly because the best defence against criticism is dialogue and the best prevention is a stronger reputation. My hope is that companies will reach for public relations before they speak to lawyers.”

Previously, the fear of legal action was enough to prevent publication of information that could be considered justifiable criticism. It was relatively easier for a company or individual to begin and win libel proceedings as the burden of proof was on the defendant. Libel tourism had become a problem as wealthy magnates around the world asked the English courts to “silence the critics”.

The US even passed laws under the Speech Act specifically to protect its own citizens from the threat of libel action in English courts. Now, anyone bringing a libel case has to prove it has inflicted serious harm on their reputation. In the case of a company bringing a case, managers have to prove financial loss as a direct result.

Defences against a libel case have been extended to include a public interest justification and there are extended privileges such as in the case of peer-reviewed academic articles and reports on government proceedings anywhere in the world.

Libel cases will also be less expensive and lengthy because they will be heard by judges rather than juries, reducing the cost burden on those who are sued.

Robert Sharp, head of campaigns at English PEN, which campaigned for the law change, agreed that companies or people who had been criticised were now more likely choose dialogue with their critics.

“The Libel Reform Campaign never framed the debate in terms of improved public relations practice, but we've always said robust noisy debate and open dialogue is much better for democracy, rather than shutting people down.”

He added: “Greater use of PR firms rather than lawyers would be a great knock on effect in the wider free-speech context. We always recommend people and companies go down the PR route as an alternative to using libel law. If the change to the libel laws led to a change in the way companies communicate, and a change in corporate behaviour that recognises the possibility of more open criticism, that would be a great achievement for the campaign”

Sue Wolstenholme, who was also the 2013 president of the Chartered Institute of Public Relations, added that she hoped the new libel laws would bring clearer contrast between professional PR practices, as promoted by the CIPR, and unprofessional practices by some publicists. It will also focus company managers’ minds on the role of PR to prevent, pre-empt and respond to criticism.

“These new laws are an opportunity for PR - that is professional, ethical PR - to prove its value. Reputations built by unprofessional PR people are wide open to public criticism. They create hopes, dreams and promises for clients, which are too often found out and which open their clients to the threat of ridicule and insult.

“PR practitioners will tell managers ‘you cannot venture down any route that is muddy or misleading, even if your intentions are good’. A bolder and more empowered audience will help PR people to put that point across.”

“The message to company managers will be to invest in PR, so if there is a disenchanted customer or ex-member of staff who wants to have a go, you can deal with it. Strong reputation is the best defence and before any person or company has received criticism, public relations would have provided some kind of shield against that trouble by building a reputation on strong foundations.”

Dr Chris Peters from Sense About Science, which also campaigned for the law change, said there could be a lag in the time it takes for people to understand their rights and for the full impact to be seen.

“It will take time before we see how the new law is working in practise. Potentially there is a job to be done to tell people what the Defamation Act means and the first cases will test its interpretation.”

He added that there is now potential for a lot more information or commentary on the Internet that might previously have been removed after a libel threat.

“Section 5 of the new act aims to require complainants to first take action against the author of an internet article where possible – rather than the discussion board or social network hosting the material. Previously we were seeing online publishers removing content from their forums in response to a libel action. They didn’t write the material and were not in a good position to defend the words being complained of. Now there is a rule which means a complainant must first, where possible, complain to the author of the possibly defamatory comment - not go direct to bully the host of the website or forum."

David Banks is a PR consultant and can be reached on davidbankscomms@gmail.com and found at @davidjbanks on twitter