EXCERPTED FROM CRISIS COM

Excerpted from CHAPTER ELEVEN of CRISIS COM

Does PR checkmate Media?

Crises are terrible times for almost everyone. A few people, like short-traders, may capitalize on crises but they are horrible times for most executives, employees, customers and the rest. However, crises can be overcome. In many cases, businesses at the forefront of crises have not only recovered, they have gone on to prosper, some with hardly a ripple in their balance sheets. Others, though, have been so damaged by crisis, they have gone under but for a majority of these, the cause of collapse wasn’t the big reveal, it was bad management, bad market conditions, bad luck, and bad weather. The crisis was just the final spasm of a slow and painful death.

Funny enough, a lot of executives and others refuse to acknowledge their own responsibility for a partially self-inflicted crisis. Among those they blame for the messes are media. The truth often is that it was not the external news media that put the organization in a bad light fairly or unfairly, it was the organization’s own crisis communications abilities. But, speaking of media, let’s see what defenses can be raised against journalism as the enemy?

Can you stop the media from reporting any part of a crisis affecting your organization?  The answer to this question is complicated. Freedom of speech is guaranteed in Canada, the U.S. and various other countries and this freedom goes even farther when applies to ‘the press’ which, today, means media published through print, broadcast and online media.

Without going into great and tedious detail, we’ll quote from Freedom House (https://freedomhouse.org/report/freedom-press/2015/canada): “Canada’s 1982 constitution guarantees freedom of expression and freedom of the press. The government may legally restrict free speech with the aim of ending discrimination, ensuring social harmony, or promoting gender equality, but the definition of hate speech, which is punishable by law, remains vague.”

So, Canadian media is assured by Canadian law with some restrictions. One point to keep in mind is this, from Freedom House:

“Defamation remains a criminal offense, punishable by up to five years in prison. A 2009 Supreme Court ruling allows journalists to avoid liability for alleged defamation if they are able to show that they acted responsibly in reporting a matter of public interest, even if the statements are found to have been untrue.”

Fashion industry leader Peter Nygard tested this area of the law after the CBC’s Fifth Estate documentary program aired a piece about him in 2010. According to Freedom House, Nygard filed a criminal defamation case against the CBC alleging that a 2010 CBC documentary about him had been defamatory. So, one can use the law to test the limits of freedom of the press… not so fast. That legal action was still dragging on in 2017, seven years after the Fifth Estate airing.

Defamation, libel and slander are words used to threaten media. We’re not going to get into debating or even explaining this area of the law except to say larger organizations are wise to bring in lawyers expert in these areas if they face potential losses because of a crisis. We add that this is a very specialized area of the law and, in our opinion, many, if not most, lawyer don’t have the knowledge or skills to advise or act in these areas. Smaller organizations, of course, can get advice from such practitioners but going too far down this road is prohibitively expensive and highly uncertain unless a knowledgeable lawyer says you have overwhelming evidence that you were legally defamed.

Both Dale and I have both been involved in crises in which affected organizations brought action to get injunctions to delay publication of articles which would have damaged their businesses. Some of the corporations’ arguments were accepted and publications were delayed. Others were rejected and publications went ahead. Freedom of the press may be protected by the law but the law itself is not guaranteed.

It is likely best to find every other avenue to protecting your brand, your products and your services before going down the road to the courthouse.