One of the striking contrasts between journalists and most PR professionals is that the former have a good working knowledge of both the legal and regulatory strictures with which they must comply, but PR people do not. This is a severe disadvantage for PR folk when it comes especially pre-publication, to influencing editorial decisions to avoid reputation damage for their clients.

I have been training journalists for years, and know their training is ongoing. Publishers insist on it because they recognise it is essential for journalists to be au fait with the regulatory and legal parameters within which they are supposed to work.

Most Fleet St and local news titles are regulated by IPSO, and all broadcasters by Ofcom, both of which publish editorial codes for inaccurate publications; codes which should be deployed for effective crisis PR.

Most of what you need to know about the law of defamation comes from the 2013 Defamation Act, the essential provisions of which are:

1. For a publication to be defamatory of a person it must have inflicted serious harm on their reputation. For a company trading for profit, that ‘serious harm’ must include ‘serious financial loss’ (Section 1).
   

2. A defamatory publication can be defended if one of the following is established:

• it is proved to be true (Section 2);

• it was a statement of opinion, where the basis of that opinion is indicated in the publication, and that an honest person could have held that opinion (Section 3);

• its subject matter is of public interest, and the defendant reasonably believed that its publication served the public interest (Section 4).

It is the Section 4 defence which a publisher is primarily seeking to establish. That is why a ‘right to reply’ is offered to prospective subjects of a defamatory publication. It is essential that the correct judgment is made at this point about how that reply should be formulated, and by whom it is sent.

If the threatened publication is inaccurate in whole or in part, then merely issuing a denial statement will almost always be a mistake. A summary will just be hidden in the narrative of a damaging article because the publisher will consider that the tick box exercise required to secure the Section 4 defence has been completed.

The correct response is to cite inaccuracies to the publisher with a detailed explanation of why they should not be published by reference to the relevant regulatory provision; normally the IPSO or Ofcom code.

The aim of the response should be to persuade the publisher that the threatened publication is vulnerable (in this order) both to a regulatory and legal challenge; that the publication is unlikely therefore to secure the Section 4 defence because the content of the reply will prove that the author/publisher of the article did not reasonably believe that the publication served the public interest.

This can only come from a recognised media lawyer, who – knowing the relevant regulation and law – can craft the response in the way which is most likely either to persuade the publisher not to publish the allegation(s), or at least to publish them in a far less damaging manner.

Read last week's tip on using Ofcom and IPSO to prevent a PR crisis