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October 2009

Reputational risks can catch charities unawares leaving destruction in their wake – Tamsin Turk’s guide to ‘media management’ offers some practical solutions

In August Acevo released the results of its YouGov poll which, it said, ‘revealed a dangerous perception gap between the public’s understanding of charities and the reality which could lead to an erosion of trust and confidence in the ‘special relationship’ the public has with charities (see Caritas, Issue 22, September 2009, page 4). The ‘special relationship’ arguably renders the charitable sector more vulnerable to the negative effects of adverse media coverage than even the public and commercial sectors. Negative media coverage can have a devastating effect on the public’s perception of the charities, offers of volunteer assistance and future income streams, both public and private. The current economic climate has brought this vulnerability into stark relief. On the one hand the Charity Commission in its ‘Economic Survey of Charities’ [1] reported in March 2009 that there had been an increase of 21 per cent in service demand, which in itself underlines the social significance of the charitable sector. However, Charity Market Monitor (published in June 2009 by CaritasData) has predicted that fundraising income alone could fall by £185m in 2009.

Reputational hotspots

There are numerous scenarios which can ordinarily give rise to reputational issues for charities. Employment disputes, fundraising and legacy management are particular hotspots. The use of charitable funds can also be a fertile source of contention and, like all organisations, charities can be tainted by the conduct of their officers and trustees. The YouGov poll identified that the commercial and professional bases on which charities operate are barely understood by the public. In a time when the media is endlessly filled with articles baying for the blood of one or other chief executive, MP, company or organisation by reason of financial imprudence or financial preferment – perceived or real – the basic misunderstanding identified by the YouGov poll is capable of giving rise to the full array of hotspots.

Preparation

So what can you do to enhance and protect the reputation of your charity? On a day-to-day basis your charity should be proactive in informing the media about your good news stories. You should follow all media coverage of your charity. This can help you identify those outlets which are supportive of your charity’s cause as well as potential minefields.

News travels fast, particularly where the internet is involved. So a speedy response, particularly to adverse media coverage, is essential. You should assemble a small crisis management team which is ready to deal with media crises and can authoritatively convey the charity’s core message without unnecessary delays. It is essential that this team has authority to take decisions and has a good spokesperson to implement them.

Journalists monitor the courts and the issuance of legal proceedings can be a good source of a potential story. If proceedings are about to be, or have been, issued your legal advisor should consider whether the court file contains private information and whether it is therefore appropriate to apply to block access to it.

Unwanted media approaches

As soon as a crisis situation seems to be developing, you should conduct your own investigation and ascertain all the facts.

If the media gets wind of a story it should contact you for comment prior to publication but where the story concerns confidential or private information journalists are not currently required either by law or by codes of conduct to notify the target of the proposed publication. Although the courts may ultimately penalise such behaviour with a large award of damages, once the ice cube of privacy has melted even a substantial award can, as the Max Mosley case [2] illustrates, appear a pyrrhic victory.

If asked to comment by the media do not panic or simply say 'No comment'. If you are unable to provide any information initially when approached, it may be better to say so but to find out precisely what information they want from you and the timeframe in which they want it. Remember that there is no such thing as an ‘off the record’ conversation and that you cannot rely on a journalist not to print what you say to him or her.

In a tricky situation, you should always contact an experienced media lawyer to determine what can lawfully be published or broadcast and advise you what you should say, when and how. They may be able to convince the journalist not to publish demonstrably false allegations or to publish a more balanced article once both sides of the story have been put to them.

It will probably be better for donors, employees, trustees and the Charity Commission to hear the news, however difficult, from the charity first than via the media. Indeed, the Charity Commission requires trustees to report serious incidents to it. If you fear a story may hit the headlines, consider approaching and warning the relevant parties first. The approach that you adopt with each may differ.

The law

Defamation and privacy law are the main tools in the reputation management lawyers’ armoury although the laws of malicious falsehood, registered and unregistered trade-marks, copyright, harassment and the misuse of computers and communications can also be utilised.

A statement is defamatory of a charity where it tends to discourage subscribers or otherwise impair its ability to carry on its charitable objects. [3] Also, statements made about trustees, chief officers and key benefactors can reflect badly upon a charity. A statement is defamatory of an individual where it discredits him or her [4], lowers him or her in the estimation of others [5], causes him or her to be shunned or avoided [6] or exposes him or her to ridicule or contempt [7].

A party bringing a defamation claim must prove that the statement complained of is capable of conveying the defamatory meaning ascribed to it, that the defendant published the statement and that the statement would reasonably be understood to refer to the claimant. It is for the defendant to prove that the statements are not in fact defamatory, for example, because they are incapable of bearing the meaning asserted, are true or are fair comment based on true facts. Additionally, defamation claims can be defended on the basis that there was public interest (or some other duty) requiring the defendant to make the statement.

Charities are owed a duty of confidence by anyone or any organisation that receives confidential information, including commercial secrets, in circumstances where they knew or ought to have known that they were obliged to keep that information confidential [8]. The obligation of confidence can arise pursuant to a contract or because it is just and equitable to impose such an obligation.

Trustees, chief executives and other employees or volunteers of a charity will also have a right to privacy which, unlike breach of confidence, does not require there to have been a relationship of trust and confidence but which arises because an individual has a reasonable expectation of privacy, the protection of which outweighs the right of, for example, a newspaper to publish private details [9]. Claims in both breach of confidence and privacy will be defeated where the information is already in the public domain [10] or where there is public interest in disclosing private information, that is, that it would it make a contribution to ‘a debate of general interest’[11].

Increasingly, harassment is used to fend off photographers and reporters who hound individuals [12]. It could, for example, be used by a charity to limit exposure of a high profile charity trustee or chief executive in the midst of a media crisis that was reflecting badly on the charity itself.

Remedies

Emergency injunctions. In the event that you are given prior warning of a story it may be possible to obtain an emergency injunction to protect confidential/private information pending a full court hearing of the matter. In deciding whether to grant a privacy injunction, the court will have regard to various factors including whether the information is already widely available in the public domain, for example on the internet, and whether the disclosure is in the public interest.

It is however very difficult to obtain a pre-publication injunction in relation to allegations which would simply damage reputation. Before applying for an injunction you should ensure that your chances of success are high. Emergency injunctions are very rarely granted where the defendant says he will defend the allegation because it is true, is fair comment based on facts that are true or that there was some public interest (or other duty) that required him to make the allegation. You do not want the adverse publicity of 'The story they tried to ban', let alone the associated costs.

In addition, it is unlikely that the trustees will be able, prior to the initial hearing, to obtain the court’s sanction to incur the cost of applying for an emergency injunction. In order to avoid being personally liable for such costs, trustees should therefore ensure that they are acting on strong legal advice. However, an application for costs sanction could be made either to the Charity Commission or the court before any further hearing.

Litigation. This is expensive and time consuming and should not be threatened lightly and should be pursued only if the anticipated rewards outweigh the associated risks. Even if the charity ‘wins’ its case it can expect to recover only between two-thirds to three-quarters of its costs of bringing the claim. Despite receiving the biggest ever privacy award of £60,000, adding together his costs and damages awards, Max Mosley was still £30,000 out of pocket [13].

Alternative action. A cost-effective yet potent remedy for a claimant is the publication of a clarification or apology agreed by the parties. This can often be obtained on threat of
litigation but again expert media advice is advisable before any such threats are made. Alternatively a complaint can be made to the media regulators, either the Press Complaints Commission [14] or Ofcom [15].

[1] www.charity-commission.gov.uk/news/downturn.asp
[2] Mosley v MGN Limited [2008] WWHC 1777 (QB)
[3] Derbyshire County Council v Times Newspaper [1993] A.C. 534
[4] Youssoupfoff v Metro-Goldwyn Mayer (1934)
T.L.R. 581
[5] Skuse v Granda Television [1996] E.M.L.R 278 CA
[6] Youssoupfoff v Metro-Goldwyn Mayer (1934) T.L.R. 581
[7] Parmiter v Coupland (1840) 6 M. & W. 105
[8] Coco v AN Clark (Engineer) Ltd [1969] RPC 41
[9] Campbell v MGN Limited [2004] UKHL 22
[10] Mosley v NGN Limited [2008] EWHC 687 9 (QB)
[11] Von Hanover v Germany [2004] ECHR 294
[12] Sienna Miller sued the photographic agency, Big Pictures and its owner, Darren Lyons in relation to the dangerous and reckless tactics employed by photographers in their pursuit of her
[13] Ibid, at 4
[14] www.pcc.org.uk
[15] www.ofcom.org.uk

Author: Tamsin Turk

Tamsin Turk is a solicitor at Withers Worldwide and advises on a broad range of media law issues. She advises charities both pre and post publication, including clearance work and adverse media coverage.

www.withersworldwide.com

Click here for other articles written by Tamsin Turk

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