Reputation Matters: How to Protect Your Professional Reputation

‘In my line of business, if you aren’t working with Jonathan Coad, you aren’t doing it right.’

Max Dundas, Founder, Dundas Communications

‘A confident Coadification of the many perils and pitfalls of trying to bring the modern media to heel, this book should be on the shelves of all those who work in the reputation business. It contains a well-reasoned invective thread regarding what drives the conduct of print, online and broadcast media. Coad’s advice and experience lies at the intersection of the law and PR.’

Jon McLeod, Partner at DRD Partnership, previously Partner at Brunswick and Chairman at Weber Shandwick

‘Jonathan Coad is a giant amongst lawyers with a vast array of experience working for the great and the good from all walks of life as well as many powerful media institutions. This book is a fascinating insight and clear description of how the media and the law works in regard to reputation. It is a must-read for anyone who wants to protect their brand in today’s information age.’

Paul McKenna, hypnotist and author

‘It’s revealing when in his introduction, when discussing the British media, Coad states that "there is virtually no democratic restraint over these companies and individuals who are therefore substantially free to mislead us for reasons either of financial expediency and/or in pursuit of an agenda. The only limits to this power come from a modest array of regulations and laws by which the media is supposed to abide, but in the case of the press, frequently ignores."

‘But make no mistake, this is not the perspective of an unhinged conspiracy theorist, this is the view of one of the UK’s top media lawyers. A man who for the last 25 years has been in the room in those crucial hours before numerous high-profile media stories have been published.

‘Reputation Matters is a fascinating, sometimes worrying but always informative read into a pretty grubby and little known world at the centre of the British establishment.’

Ben Smith, founder, PRmoment

‘With integrity, huge skill and high-level knowledge Jonathan Coad guides you successfully through the ethical, legal and personal dilemmas of interacting with the media. A powerful and important book.’

Robin Dyer, Head of Ampleforth College

‘Jonathan’s vast experience and expertise shines through on every page, as does his warm story-telling prowess. A must-read for anyone responsible for the reputation of others.’

Mark Southern, Director, Polygon PR

‘This is a must-read book for anyone working in legal PR and corporate communications or media management. The cases are well selected, hugely insightful, and very relevant to our modern-day global and digital era.’

Yuliya Matvyeyeva, PR and Communication Professional, Ukraine

‘Buckets of sage advice from one of the very best media lawyers. Read it and save yourself millions in lawyers’ fees and settlements.’

Nick Bastin, Senior Consultant

‘Compelling and impressive. Coad’s book is a must for anyone potentially affected by unwanted press attention. This means it should be read by everyone, so they are ready to respond effectively. For, as Reputation Matters confirms, it is a myth that the press is interested only in exposing the crooked and corrupt.’

Professor Paul Wragg, Professor of Media Law, University of Leeds and Director, Hacked Off

‘With the rapidly evolving information landscape, companies have never been more in the spotlight. As a crisis management expert, Jonathan Coad provides in Reputation Matters a highly accessible tool for business leaders, communications professionals and individuals to understand the most effective strategies to mitigate reputational damage.’

Angela Gray, Senior Associate Partner, Consilium Strategic Communications

‘This book is a must read for anyone or any thing – e.g. a business or brand – in the public eye. And those advising them. Whether you’re a celebrity, politician, academic or Coca Cola, understanding the art and science of reputation management within the current legal framework is essential. Jonathan’s intelligent, practical and sage advice shines through in this brilliant book. He’s your man; in the boardroom and, if needs must, the court room.’

Angie Moxham, PR practitioner and founder of 3 Monkeys Communications and The Fourth Angel

‘Reputation Matters is a detailed, yet thoroughly engaging guide to navigating media hostility, informed by both technical expertise and professional experience. In the harrowing, true stories of press misconduct it describes, it is also a powerful expose of the practices which persist in parts of Fleet Street. It promises to be an essential resource both for individuals personally affected by press abuse, and for those of us campaigning for improvement to press behaviour.’

Nathan Sparkes, Chief Executive of the Hacked Off Campaign

Warren Buffett, who knows a bit about making a profit, says this: ‘It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently.’ He also said, ‘Lose money and I will forgive you. But lose even a shred of reputation and I will be ruthless.’ Corporate reputation really matters because the World Economic Forum has declared it to be the most important measure of success and it represents more than 40 per cent of a company’s market value. I could not find a suitable dictionary definition of reputation for the purpose of this book, so here is mine: ‘quality or character as perceived by others’. The purpose of this book is to empower you to protect your reputation.

This book is gratefully dedicated to all the clients who have entrusted their reputation and privacy to me; and to Charlotte, Emily and Benjy, whom I love dearly.

Acknowledgements

I am immensely grateful to Bloomsbury for affording me the opportunity to write this book. Thank you to Matt James for commissioning the book; and to him, Allie Collins and Jane Donovan for their expert advice which improved it immensely. Thank you to all my colleagues over the years who have so helped me in my work; especially to the wonderful Shelley Vincent and Stephanie Brunton. Thank you also to the brilliant Hannah Ready of 11 Kings Bench Walk for checking and correcting my law.

Contents

1. Introduction

2. Why Reputation Matters

3. Key Regulations and Laws

4. How the Media Operates

5. Avoiding a Media Crisis

6. Preparing for a Media Crisis

7. What to Do if a Media Crisis Looms

8. Dealing with a Media Crisis if It Breaks

9. Litigation PR

10. Looking to the Future

11. Conclusion

Appendices

Index

1

Introduction

Apart from the microscopic scope of our first-hand knowledge, we are almost entirely reliant on the media for our insight into the events that impact both our lives and society as a whole. Very few of us know how the media operates, or the characters and values of that small coterie of individuals who decide what we are told and what we are not told about what goes on in the world around us.

That is despite the fact that the power that these individuals and companies wield as arbiters of what information we are permitted to glean, and the extent to which that information is true, is immense. There is virtually no democratic restraint over these companies and individuals who are therefore substantially free to mislead us for reasons either of financial expediency and/or in pursuit of an agenda. The only limits to this power come from a modest array of regulations and laws by which the media is supposed to abide, but in the case of the press, frequently ignores.

In the UK most of the major media outlets are governed by some form of code of practice; the broadcast media being regulated with a degree of efficacy by Ofcom (Office of Communications), and most of the big beasts of the print media being tamely and inadequately ‘regulated’ by the Independent Press Standards Organisation (IPSO). Some major corporate news providers, including three of the Fleet Street titles and business news providers such as Bloomberg, have elected to be subject to no form of even token regulation.

The slight restrictions on the media imposed by the democratic state come primarily from the laws of defamation, privacy and copyright, which apply to all media content. However, these restrictions only impact if invoked – either prior to the article/programme at issue, or subsequently – by an individual or company who is either threatened by or has been subjected to some form of media abuse.

In practice this is done all too rarely, and since both reputation and privacy matter to all of us – reputation in particular so we can distinguish between the good and the bad – all society suffers the consequences. The PR industry has failed both its clients and society by not, as a matter of course, deploying the means whereby fake or misleading news about their clients can be curtailed. That needs to change.

Even when the media at least starts out by doing its job properly and is faithfully reporting events that genuinely engage public interest, its pervasive proclivity – particularly the press – is both to awfulize and ascribe blame indiscriminately. This ill-serves us all.

This book proceeds on the basis that the first priority of crisis PR is to prevent, or at least minimize the emission of damaging material by the media which threatens reputation when – as is usually the case – it contains at least some errant elements. The second priority is to minimize the adverse impact that the media can have by astute use of all the available regulatory means; and by communicating to customers, stakeholders and the public as a whole.

The book provides the key knowledge and tools that allow you to restrain the media from damaging commercial reputation for profit by deploying the full array of regulatory and legal tools available. It starts out as a guide to the media and how it works, and goes on to explain what methodologies are available to delimit its destructive power.

I concentrate in this book on the risks posed by the commercial media because in addition to what I have learned in my own practice, all that I have read since its inception convinces me that on matters of importance to commercial enterprise the social media does not wield the influence sometimes attributed to it. It is normally only when its content is uploaded to the commercial media that real damage is done. Only a tiny proportion of the instructions that come to me concern the social media, which I nonetheless address during the course of this book.

This book is based on a crisis management seminar which I have delivered for over 25 years to audiences ranging from supermarket chains, PR agencies, charities, multinationals, elite sports teams, business continuity conferences and the cast of EastEnders. You can read crisis PR updates by following me on LinkedIn.

The ‘dark side’ of the media

Most people associate the dark side of the British media – primarily the press, though in its attempt to compete the broadcast media is catching up – with blatant criminality such as the phone hacking.

A PR professional must however factor into their work that the abuse by the media of its privileges – the prime culprits being the denizens of Fleet Street – is endemic. It goes on daily and frequently concerns issues of immense importance. It therefore impacts us all and can have seismic consequences; one being our departure from the European Union (EU).

In March 2016 in the run-up to the Brexit referendum, the Sun newspaper daubed ‘QUEEN BACKS BREXIT’ in huge capital letters all over its front page; a headline which was seen by tens of millions of people on news apps, newsstands, held up to TV cameras and heard when read out by radio stations.

The proprietor of the paper, Rupert Murdoch (a Europhobe republican), is reported to have complained that whereas he is influential in Downing Street, he is ignored in Europe. Since against nearly every expectation the wafer-thin majority was 52 per cent to leave against 48 per cent to stay, the Sun’s headline would only have to have swayed a small proportion of the 33 per cent of the then undecided voters for the paper’s disgraceful abuse of its Article 10 (free speech) right to have had the desired effect. If you add to this the refusal by the bogus press regulator that is IPSO, which Fleet Street unilaterally foisted on us, to order a front-page correction – which meant that 99 per cent of those who saw the headline would not see the retraction, then this illegitimate flexing of editorial muscle may have had immense and long-term ramifications for the UK.

There is much that is commendable in the media, which I have been privileged to serve throughout my career as an editorial lawyer. At its best, it plays a vital role in our democracy and informs us faithfully about issues of which we need to be aware. At its worst, it wields its immense power to inflict terrible damage both on society and on individuals within it.

The broadcast media is regulated by Ofcom with a degree of efficacy and generally serves us well. However, the grim revelations about the web of deceit spun by British BBC journalist Martin Bashir to secure his now infamous interview with Princess Diana, and the BBC’s failure properly to investigate him, shows that even that august and precious institution has feet of clay. The hypocrisy of Fleet Street in tearing into the BBC because of its governance failures when it invests vast sums of money covering up its own wrongdoing is, however, breath-taking.

The press’s lack of effective regulation and consequent lack of accountability means not only is it free to administer poison into the psychological and spiritual bloodstream of society by its predilection for damning awfulization, it can have a devastating direct impact on individuals and enterprises alike; as I have seen repeatedly in my practice.

How I became a media lawyer

I was born in Cambridge where my parents lived just a few hundred yards from Jesus College in the University of Cambridge. Neither had a university education. Mum was a dispatch-rider during World War II and Dad chased black marketeers around occupied Berlin in the RAF Police. Mum later told me he looked down into my cradle and decreed that I would read law at that beautiful ancient college and, 18 years later, that’s what I did.

After securing my degree, I turned from the straight and narrow to become a professional musician, at which I was so successful that I went on to train as a solicitor at a city firm.

I am trained by top media lawyers

I chose one with a media practice in an attempt to make some sense of my scrambled CV. My first of three ‘seats’ (training placements with a senior lawyer) was with a TV business affairs specialist and the third one was with Susan Aslan, a leading media lawyer who also specialized in TV work. While working for Susan I was exposed to the wonderful world of defamation, which I decided would be the future direction of my career.

On qualification two years later, I managed to blag my way into Schillings (one of the two market-leading firms of reputation and privacy lawyers, the other being Carter-Ruck), where I was hired as Keith Schilling’s assistant, despite his wanting someone two or three years qualified. Apparently I got the job because when he took me on during the interview I stood my ground. Although it was the professional equivalent of white-water rafting, my learning curve was vertical.

When I walked into Schillings’ offices on my first day I found two files on my desk. To my immense good fortune, which shaped the whole of my career, one was for a claimant and the other was for a defendant. Both were – in their different ways – wonderful pieces of work.

The claimant file

This started out as a defamation action against a glamour magazine for a young woman who was called a Page 3 Girl because she appeared topless on page three of the Sun. The claim was based on the commentary to nude photographs of her and another female model published in the magazine, which suggested they were having an affair. The difficulty was that even back in 1991 an allegation of homosexuality was probably not defamatory – especially of a glamour model.

The claim subsequently became a breach of confidence action when my enterprising boss Keith Schilling noticed that the model release form signed by the client for the photo shoot was executed before she was 18.

Think of the excellent court scene in the fantasy comedy film Liar Liar where Jim Carrey wins the day at a trial when he realizes that his errant client was too young to sign a pre-nuptial agreement and so would secure a vast sum in her divorce. Our client could not as a matter of law consent to the publication of the photographs, which therefore comprised a breach of confidence in those areas of her body not previously in the public domain. Yes, I really am serious!

A few days later I had the surreal experience of sitting with a barrister – for obvious reasons I selected female counsel – where we went through a number of other glamour magazines to ascertain how much more of our client’s frame was visible in the magazine that we were suing as compared to other publications that she had graced. I was working with the brilliant Adrienne Page, who was then a junior barrister at the leading media set, 5 Raymond Buildings, and is now a distinguished QC.

The defendant file

The other file was a key factor in enabling me both to do my job as a PR lawyer well and to write this book. Despite Schillings being a claimant firm, it had been asked for a second opinion by a broadcaster which was being sued by a local councillor whom it had accused of corruptly manipulating the planning process to make large sums of money. Its panel firm had advised that the claimant be offered substantial damages.

The feisty in-house lawyer at the broadcaster was not happy with this advice and asked Schillings to review the file. To my immense good fortune it arrived the week before I started work there and so I had first look. I was also fortunate that whereas I had spent two-thirds of my time as a trainee doing media work, the other third had been spent in the planning department, so I was able to understand the planning documents in the file. I was also blessed that all my defamation experience as a trainee was defendant work for broadcasters.

The allegation against this local councillor was that he was buying up local land on the cheap where there was not the slightest prospect of securing planning permission; using his masonic contacts to secure planning permission, and then selling the land at an immense profit. He had sued for libel using a large city firm which was pursuing the claim aggressively.

After reading the file I had no doubt that this individual was justly accused. I dictated a note of advice to that effect to Keith Schilling, which then formed the basis of the advice to the broadcaster, and we were duly instructed in place of their panel solicitors. Despite my lack of experience, Keith had sufficient confidence in me to let me run the file. I loved it.

Within a couple of weeks we had to tackle an application to strike out the not-very-convincing defence which had been served by our predecessors, a leading firm of defendant solicitors and a less-than-expert QC whom I had sacked.

The hearing turned out to be a farce. The judge walked into the courtroom and made two announcements. The first was that he knew nothing about the law of defamation and the second was that he had not read the papers. As to the former, that now does not happen as we have a Media and Telecommunications List with specialist judges. As to the latter, they are all of high quality.

What both legal teams should have done was to have stepped outside the courtroom, flipped a coin to decide the outcome of the application, and then gone out and spent the morning drinking coffee and eating cake. As it was, most of the hearing was taken up by both barristers trying to teach the judge, who looked like he had enjoyed an evening of excess prior to the day of the hearing, the basics of the law of defamation; and in particular those principles relevant to the application.

It was evident that this was not working, which became abundantly clear when in his judgment the judge wrongly identified the issue before him, misapplied the principles he had been taught during the course of the hearing and decided a point which was never before him to determine – and managed even to do that wrongly. The effect, however, was that the defence was struck out and so we were back to square one.

As it turned out, this was the best thing that could have happened. At the time there was a long queue for the Court of Appeal, where, given the hopelessly inept judgment, we were seeking a remedy. This meant that we had at least a year to go back to the drawing board and construct a new defence.

I took on the job of thoroughly investigating the facts. One summer’s day I drove out in my scruffy but much-loved convertible to the constituency where the claimant was a councillor and surveyed the various pieces of land that were the subject of the planning applications at issue. This came to an abrupt end when I was chased off by a guard dog!

My favourite moment was when I arranged a meeting with the Leader of the Council and his lawyer, where I confronted him with these two options. Either he provided me with the documentation which he was withholding and that I needed to prove that this councillor was corrupt, or I would take the whole local masonic lodge down, and him with it, since I had no doubt that he too was part of the local masonic fraternity.

It was a complete bluff. There was no way that I could have done it, but by his reddened face and perspiring forehead I knew that I had convinced him that I could. The documents I needed arrived a couple of days later and proved beyond doubt that my man was a crook.

I was fortunate to be working again with the excellent Adrienne Page who was my ‘go to’ junior barrister. Armed with the extensive evidence I had managed to gather against this individual, she produced a stunning defence running to over a dozen pages, which not only asserted that we could prove all the allegations made against him in the programme but also several more. We served this defence in draft on our opponents and then applied to a judge to amend it formally.

At that point the case took a surreal turn. Out of the blue I received a phone call from a senior local police officer who offered to act as a mediator between me and the councillor to resolve the defamation claim. I can only conclude that he was part of the same masonic lodge as the claimant and was trying to protect one of his own. It was a remarkable gesture since it was an utterly inappropriate offer for a police officer to make, and I can only wonder at his sense of invulnerability in making the call. I declined his offer and told him that the right course was for the councillor to abandon his claim.

Our application was to be heard on a Friday and the trial was listed for the following Monday. The unfortunate representative from the insurer had not fully appreciated the potentially catastrophic state of affairs until the morning of the hearing. All that was left of our defence was a paragraph admitting publication. We were about to go into a jury trial with serious allegations of corruption against a local councillor for which we had no defence unless that day’s application succeeded. If not, the only issue at the trial would have been how much the councillor would have been awarded in damages, which would have been substantial; at which point we would have had to pay an even larger sum in costs. The poor insurer looked like he was about to walk the Green Mile.

I had spent days drafting a detailed witness statement in support of the application, which set out all that I had learned about the activities of this individual, exhibiting planning applications, maps, etc. I was much assisted in this by Adrienne whose gutsy defence drawn from that statement pulled no punches. All this was before the judge and it was clear that he had read it carefully.

A leading defamation QC, Tom Shields, representing this individual, realized that there was no prospect of keeping out the new defence unless he could persuade the judge of at least the possibility that his client was innocent of the array of grave allegations set out in my witness statement and much more elegantly in Adrienne’s defence.

Tom opened his submissions to resist the amendments we were seeking by extolling the virtues of local democracy; how local councillors did an important job for their constituents, and should be protected from unwarranted attacks on their integrity by the media.

Before he had finished, the judge in a rare gesture raised his hand to bring his oration to a halt. I can hear his next words as clearly now as I did then: ‘Mr Shields, I entirely accept from you that there are many local MPs and councillors who do a good job and are true public servants. However, you must accept that there are some who abuse their positions for their own personal gain’; i.e. ‘Your client is obviously a rank crook so don’t waste my time in trying to persuade me otherwise.’ At that point we knew we had won.

The judge allowed in our amended defence in full, including a section which Adrienne and I were not sure we would get in because it concerned events which were damning of the councillor but also somewhat peripheral to the issues in the case. It was a triumph and the trial was duly postponed to give the local councillor an opportunity to put in a reply to the defence, which is imaginatively called a ‘Reply’.

In fact no such document was ever served and a few days later his lawyers served a