ITL #562 PR and the law: battling in the court of public opinion

4 months ago

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What right does PR have to influence the legal process in an era of SLAPPS and ‘lawfare’? By Toby Doman.



In September of last year, Schillings made an unexpected announcement. The combative London based media law firm explained that it was launching a strategic communications operation that would sit in-house, alongside traditional legal practitioners.

At face value, the launch announcement was just one of a number of news stories picked up by the PR trade media that week. However, the move also represented a fascinating watershed in the relationship between two growing and strategically important industries.

Research shows that the global PR industry is set to reach a worldwide market value of around $130 billion by 2025. Meanwhile, the legal industry already looks set to achieve a global market value of over $950 billion. These are two industries that are increasingly proving their worth to businesses and wealthy individuals, keen to protect and enhance their reputations.

According to the World Economic Forum, 25% of a company’s value is bound up in reputation. This represents a significant dollar value that founders, CEOs, politicians and other stakeholders are willing to protect at a significant cost.  

When it comes to protecting, promoting and enhancing reputations, how much of a role will communications play in the future? What right does the function have to influence the legal process?

The court of public opinion is, of course, not a formal court setting. However, history is full of early adopters who understand the power of persuading publics to a particular cause. One such figure was radical atheist, member of British parliament and political activist, Charles Bradlaugh. As an elected MP in Victorian England, Bradlaugh was legally obliged to swear an oath on the bible before taking his seat in parliament. As an atheist, this was of course a Rubicon he was unwilling to cross.

Not only was he a skilled public servant, he was also a master orator and set about using speeches and publishing essays, calling for non-religious alternatives for oath swearing. And the court to which he appealed? The court of public opinion. His efforts were rewarded with the passing of the 1888 Bradlaugh’s Oath Act into law.

Fast forward to present day and we now live in hyperconnected societies, light years away from the experience of Charles Bradlaugh. Technological advances, overnight cancel culture and a rise in misinformation means that the management of reputation has become a lot more complex. Reputations are won and lost in the contested space. The ‘contested space’ (a military term which applies to the public realm where ideas, debates and information are consumed) is becoming more volatile and more challenging to navigate than ever before.

When it comes to PR and the law, this is no longer about footballers or celebrity drug scandals. The expansion of private wealth and private equity investment means that reputations in the business world now seriously matter.

If you were to compare the pre-internet age, with the present day arsenal of channels and platforms that are available to persuade the court of public opinion, the comparison would be stark. Where linear TV and daily print news outlets dominated, now everyone is a publisher. For anyone serious about reputation management, you can call upon PR support, hackers, private detectives and a whole suite of tools to influence opinion – and sometimes, the courts.

More possibilities for reputations to be damaged

This new multi-channel, multi-tool environment offers more possibilities for reputations to be damaged, but in some cases this fragmented landscape is being harnessed to enhance and burnish individual or organisational reputations.

Tucker Carlson was fired by Fox Corp for a string of issues that senior management became increasingly concerned with. As Fox’s premier polemicist and the main draw for their evening programming, Carlson would regularly attract up to 4 million viewers a night for his show.

After his firing, he took his show to Twitter/X and in his first online-only show, registered 120 million views. Despite the controversy surrounding his departure from Fox – and ongoing legal action at the time – he was able to migrate a huge audience to a new channel. It could be argued that it did his reputation no harm among a core group, by harnessing the reach and flexibility offered by modern communications channels.

The rise of SLAPPS

It is not just the communications toolkit that is evolving. Legal tools are transforming too. Recent years have given way to a rise in strategic lawsuits against public participation, also known as ‘SLAPPS.’ These are pernicious uses of legal tools to hinder or even grind opponents out of the justice system, sometimes labelled ‘lawfare.’ For example, an organisation or individual with deep pockets can bring legal proceedings against a smaller opponent with the ability to outlast them in protracted – and costly – legal proceedings.

Moves in the UK are underway to legislate against these practices. According to the celebrated British human rights lawyer, Geoffrey Robertson, the UK is “not the land of free speech. It is the land of expensive speech.”

At the heart of the relationship between PR and law are lawyers and PROs. In his 2020 book, titled, “Crisis Counsel: Navigating Legal and Communication Conflict,” Tony Jacques interviewed a number of lawyers and PR professionals about their perceptions of each other. Which yielded some fascinating results.

Because of the variance in fee structures it is often perceived that lawyers are the grown-ups when it comes to crisis management. PR professionals that Jacques spoke with felt that lawyers were slow at decision making and regularly showed an unwillingness to disclose information. Whereas among the legal professionals that he interviewed, many were concerned about PR professional’s desire to be ‘too noisy’ during litigation proceedings, in ways unhelpful to legal outcomes.

So, what right does PR have to play in the legal process? Of course, PR as a function is not physically present in courts of law. However, it can be argued that it is present in a much more diffuse, intangible way.

PR’s value to litigators and defendants

The ability of PR to alter public discourse and perception can be highly valuable to litigators and defendants alike. In open information societies, PR has every right to persuade, debate and propose alternative perspectives when it comes to reputational matters. In more closed societies, the space for debate – and therefore the space for PR to have any material impact – continues to be squeezed.  

For example, in 2022, Indonesia’s law makers passed a new criminal code which outlawed the criticism of government institutions. Thailand famously has its lèse-majesté codes, which outlaw the defamation or insulting of senior members of the Thai royal family. Indonesia’s code takes things a step further, and in turn limited the contested space for dialogue to have a beneficial (and indeed negative) impact on reputations.

PR and law will always be intertwined. When it comes to outcomes in court, the law will always have the final word. However, the court of public opinion has an increasingly high profile role in creating influential and persuasive backdrops to formal legal processes. It is also perhaps a test of the strength of a particular country’s legal system when determining how effective external pressure can when projected onto a judicial process.

The overwhelming and all pervasive nature of modern media consumption means it is almost impossible to ignore public opinion. The fact that legal firms are recognising PR tools as essential for their broader work demonstrates the importance of what the PR industry can deliver.

There is some way to go before the PR industry matches the legal industry in terms of global market value, but invoking the spirit of Charles Bradlaugh and nurturing the court of public opinion could go some way to accelerating the industry’s own reputation as a crucial part of public discourse.

 

 

 

 

 


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The Author

Toby Doman

Toby Doman is Group Head of Communications, Home Credit and board member of the Asia Pacific Association of Communications Directors.

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