To sue or not to sue

Tiger Woods will be wondering what legal recourse he has today as the tabloids have a feeding frenzy about the circumstances leading to his car crash last week.  This is a issue a colleague of mine in London, Rob Clayton, has written a lot about. Here are his latest thoughts on the thorny issue of when to sue and when not to sue.

“Publish and be damned” is one of the duke of Wellington’s most famous remarks. It was his response to Joseph tockdale, a pornographer, who was about to publish the memoirs of Harriette Wilson, a famous ‘escort’ of the time. Stockdale had offered to remove all references to the duke, but the duke refused to pay. The memoirs were duly published, making a fortune for both Stockdale and Wilson. Yet, though he was married with children, the duke’s towering reputation was unaffected, perhaps even strengthened by his standing firm in the face of adversity.

Not everybody is so sanguine at the prospect of the media reporting on matters they consider private. Recently, in England, the trading company Trafigura agreed to pay millions of pounds without admitting any liability regarding certain allegations. When a question was asked about this in parliament, however, Trafigura’s lawyers obtained an order preventing a newspaper reporting the question and a further order preventing reporting of the initial order. American readers used to first amendment protection may be scratching their heads, but English law takes a very different view on where the balance lies between freedom of speech and the freedoms of those being spoken (or written) about.

Hence a number of states in the US have enacted laws nullifying the effect of English libel laws in their jurisdictions. But the difficulty of enforcing such laws nowadays is demonstrated by Trafigura’s lawyers abandoning these efforts after Twitter users worked out and wrote about what was going on anyway.

Of parliament, Wellington’s best known remark is “I never saw so many shocking bad hats in my life.” Most of us recognise that our legislatures are not perfect, but the concept in England of parliamentary privilege is clear and we value freedom of speech strongly. In this context, it is surprising if it did not occur to Trafigura and its advisers how massively their efforts could backfire. Once a company makes payments, even without acknowledging any wrongdoing,  the reputation game changes. Fair or unfair, people want to see corrective actions. Certainly, they do not want to see aggressive attempts to coerce the media. It seems inescapably the case that the bulk of the criticism that Trafigura now faces is less about what it is alleged to have done and much more about how it handled those allegations. This is actually bad for everyone. It means that the underlying issues may fester without resolution and, crucially, that the company now has far less chance of convincing the world community that it stands for values that many people would hope to see it (and anyone) support.

A contrasting case is instructive. When Dole Foods’ Swedish subsidiary sued a Swedish documentary maker for defamation, critics accused the company of stifling free speech. It transpired that Dole’s main accusers in the film were paid by a lawyer to say what they said, but Dole dropped its lawsuit anyway. Perhaps it determined that being perceived as attempting to silence criticism could harm its reputation and – given pressure from retailers – its business. So while still maintaining that the film is “fundamentally flawed,” Dole’s General Counsel now says that he looks forward to an “open discussion” with the filmmakers.

Many PR professionals who are averse to “getting legal” with the media may feel that Trafigura’s experience supports this view. Yet it is important to emphasise that legal recourse is usually worth considering and sometimes vital. A false statement published at the wrong time in the wrong place can have devastating consequences.

 It may be imperative to enjoin publication. Without such a defence, rebuilding an unfairly tarnished reputation could take years and may well be beyond the means of many individuals, even of some companies. Investigative reporters pursue agendas and it is understandable that their targets can be concerned not only about getting a fair hearing at the time, but also about how they recover quickly from any loss of reputation.

The big picture is crucial. A successful strategy will have evaluated the benefits of both the assertion of legal rights and the communication of strong, positive messages. Having a close understanding of the opinions of the public and important stakeholders – how you are viewed, how your strategic options would be perceived, what people need to see and know – is crucial in order to get the balance right.

 Far less well remembered than the celebrated quotation with which we started is what Wellington said next. He made clear that “if such trash is published”, he would sue. Many of those mentioned in Harriette Wilson’s memoirs did indeed sue for libel, and their claims ruined the publisher. Yet in the event, Wellington held his fire. Meanwhile the unabashed Stockdale went on many years later to sue the parliamentary publisher Hansard… for defamation!