defamation and free speech: impacts for public relations

Defamation is a published statement which damages someone’s reputation or holds them up to ridicule. A person’s reputation is a fundamental human right which must be balanced against the public interest of freedom of speech. This post will examine how these conflicting rights collide and what are the positive and negative implications for public relations.

Defamation law is costly in terms of reputation, time and money. Libel is a permanent form of defamation where the burden of proof is entirely on the defendant. In the McLibel case, defendants had to prove every point from primary sources such as official documents and direct witnesses. Such onerous requirements meant that most McDonalds’ critics backed down and apologised rather than go through the prohibitive expense of libel action. But the McLibel Two fought the case as a freedom of speech issue. They forced McDonalds to defend their operations in great and embarrassing detail. Although McDonalds won the three year case on a semantic judgement, they were refused costs and the case became the biggest corporate PR disaster in history. A newspaper headline of the day best captured their dilemma: “Big Mac pays high price for win over small fries”.

But defamation law need not always prevent free speech. Organisations get more of what they want when they give up some of what they want. Grunig and Hunt’s two-way symmetrical model is the most effective model for public relations because targeted publics benefit as much as the programs’ sponsors. The model is underpinned by the PRIA code of ethics whose first point says members “shall deal fairly and honestly” with all their publics. Reputations are integral to contemporary public relations. Defamation law is a vehicle to guard practitioners and clients reputations. But it should also be best PR practice to maintain the reputation of their publics when publishing any material about them.

Nonetheless, good intention is no defence to defamation. The test for defamation is whether an ordinary, reasonable person would consider a publication to be defamatory. Ordinary, reasonable people so found in the Nixon v Slater & Gordon case. The plaintiffs were identified in a digitally altered photograph (ironically used to promote the dangers of growing litigation). The photo imputed an unintentional meaning of malpractice. Media releases are the most frequently used public relations tactic. The public relations industry exists largely to manipulate news media and claim authorship of the news. Therefore public relations officers need to be guard against defamatory content in their published releases. Australia does not have a bill of rights or statutory protection of free speech which can lead to a “chilling effect”. Defamation action is extremely expensive, especially if appealed, and can cost hundreds of thousand dollars in legal fees for both parties. Practitioners need to be aware of the three valid defences to defamation: truth, fair comment and privilege. But as the McLibel case showed, a legal win is not always a public relations win.