Thursday, February 10, 2005

Blogs and Libel - or Damn, NKK!

While walking back to her office from Jamba Juice, NKK said something that's stuck with me: be careful you don't get sued for libel, because that can get expensive.

I smiled at NKK, then told her I'd make sure to re-read the AP Style Guide libel section.

Side note - if you are in PR, and don't have the AP Style Guide, run - dont' walk - to the nearest bookstore and pick it up. Now. Stop reading, and go. Now.

What lead to this with NKK? While at the NewComm Forum, I was IM'ed by a former client of mine. He asked me if I had given his name to an SVP of another PR firm. This firm - bigger than my boutique - has offices in Chicago, San Diego, Indianapolis, San Jose, Los Angeles, New York. Plus, with the SVP having moved to Scottsdale, also now Arizona.

So, this woman had called and emailed my friend. My friend - let's call him "Doc" - let the woman know that if he did go with any firm, it would be with POP! Public Relations. She has since called a few more times, not taking "no" that well.

Prior, the same agency would not stop emailing and contacting a client of POP! PR. Even after the SVP was told that they had a PR firm, she continued to email and call, and I had to call her to tell her to give it up.

So, I let NKK know I was going to blog the situation, and name names and link to the agency. That's when she said ... it's inevitable that a blogger will be sued for libel. And, now, I can't get the issue out of my head ... damn, NKK!

Can blogs be sued for libel?

It is inevitable, and has already happened. Blogs have received notices from attorneys that they are being sued for libel, but typical of the blogosphere, they don't take these threats seriously. I have read in various blogs that libel suits are rarely won, or that the blog is protected by the courts. But, if push comes to shove, how many bloggers have the deep pockets to fight a libel lawsuit? Or, are most bloggers like Rakim, digging deeper into the pockets and still coming up with lint ...

Is it worth pushing the boundaries in a blog to get traffic, then end up in a libel suit? Are certain blogs that we all have seen - making fun of ugly people on the Web, making fun of Star Wars fans - worth the potential for a libel lawsuit?

To answer all these questions, I interviewed David E. McCraw, Counsel for The New York Times Co. I figured the counsel for a newspaper as prestigious as the New York Times would be able to provide some good insight on libel for bloggers:
It's going to happen that someone will blog, and the response will be a lawsuit. Look at all the high school journals with compromising photos of friends. It's going to be something that willl be sued over - an intra-high schol suit that won't get major coverage.

With blogs now being published under the writer's name, and easily identifiable and writing on public topics, there's no reason why blogs are not being sued for libel.

In public figure libel cases, the public figure has to prove that what's written is maliciously known to be false. The private individual, though, only has to prove that a reporter is being careless - was the individual called? Were questions asked? In reporting, these are the questions that need to be answered to protect against libel.

Bloggers, though, blog on belief. Bloggers are like disc jockeys rather than reporters - they say what's on their mind.

There are three interesting set of legal issues for bloggers:
  1. Republisher Liability: the site is used to post letters, responses, chat rooms, message boards. For the Republisher site, the Website is a neutral conduit, and cannot be sued. The Ninth Circuit Court of Appeals ruled that such sites - including blogs that republish/link from other sources - are protected against libel.
  2. Originator Liability: the Website can't be sued, but you can be sued. If you post on a blog, even though it is a neutral conduit and is protected, the originator is open to liability. The safe harbor is not true for everyone.
  3. Protection against subpoenas: the Website falls under the shield law case, with unpublished material you don't want to testify about. The third case is currently at issue with the lawsuits against the Apple bloggers - and, the issue is whether or not those bloggers are protected as a journalist would be.
Unfortunately, many bloggers think that their blogs fall under the protection of the Ninth Circuit Court's ruling. This isn't so. If a blogger posts libelous content that is original, it is still libel.

Do bloggers deserve the same protection as journalists? On one side, it obvious that bloggers are journalists, and on the other side, people are just having private conversations. Bloggers are trying to site on both sides of the fence - citizen journalists and personal journals. They want the protection of shield law as a journalist, but at the same time not worry about fact checking since it is just a blog.

Originally, people thought that since blogs had low readership there was no real reason to worry about libel. But, now the way that search engines work, blogs are being easily found - with comments and posts of an unflattering nature.

What happens on blogs now is that posts are being picked up by major media outlets. The lonely, personal essayist is no longer true for blogs. There are now blogs that are influential and being picked up, and if it construed as factual information, there needs to be a level of fact checking. If it is false, the original source - the blogger - may be subject to liability just as much as a newspaper.

Suing a blogger might not be worth the hassle, though. First, you have to prove that people have read the post, that you were damaged by it, then find the person that posted the libelous content, find the court that has the jurisdiction ... it is extremely difficult to deal with these hurdles in an economic way.

It is unlikely that a person of prominence will sue a blog, because of the high hurdle public officials need to take. But, blogs and the potential of libel raise interesting legal issues.

One more thought - In Europe, particularly the UK, libel laws are different. Unlike the States - where it is the plaintiff who is responsible for proving libel - in the UK it is up to the defendant to prove that what they wrote was true. (Interesting side note is that the Wall Street Journal just won a libel case in the UK, proving that only 5 people read the article).
I also spoke with a local attorney I know to get his views on libel, and Arizona laws.
Bartlet Brebner, of The Brebner Law Firm, noted that “First Amendment is such a moving and shifting area of law – new court decisions alter the lay of the land, the jury instructions – that nuances come along and change what can be done all the time.”

Bart also had a very interesting point on the value of blogs – it’s America’s equivalent of the Hyde Park speaker’s corner.
Why should we care about this in public relations? To protect myself a little bit, I did add that the blog is "my opinions and views" - that it's my views and opinions. But, as McCraw noted, that's not enough protection against libel. Simple labeling that something is an opinion does not make it so - the writer has to use "opiniony" words so that it is easily identifiable as not fact, less factual, while showing the basis of the opinion.

Another thing that bothers me, though, is should bloggers have the same protections as journalists? With the fast and loose nature of the blogosphere - where very little is fact checked, but opinions run rampant - it seems counterintuitive to extend the same protection that media gets. A recent Baltimore Sun article noted that the Web is changing reporting, but the fact is that such Online reporters are in a world of their own.

It appears to me that some bloggers need to be slapped down for what they write. Then again, I am one of the only bloggers that raised his hand at the NewComm Forum when Andy Lark asked the audience if anyone felt that corporations were right to fire bloggers in certain instances.

As amorphous communications grows, and blogs become part of the communications mix - both pitching to bloggers and having a corporate blog - we as public relations professionals need to keep in mind what we can and cannot say. And, we also need to be very aware of what is being said about our clients, and at times, about us. As McCraw noted - and I can attest to - bloggers blog on beliefs and emotions. Sometimes, that can be a dangerous combo that will lead to a libel suit, or at least some trouble.

Friday, December 31, 2004

Return of the Mack

I want to thank all the readers that have called me, emailed me, or IM’ed me or even posted on their own blogs in their support of me. And, each time, the people said or wrote the same thing: What was the issue? Why the attacks? Especially if my blog is, and I quote, "a little blog," what I write here should not have affected you the way it did.

And, to be truthful, I'm not sure. I wrote about PR and publicity, used one person as an example of things that happen in the industry, and it was taken personally. I could have used anyone for the example - and there are tons of examples in PR and publicity who would have been perfect - but Peter had the luck of the draw in being in an article that caught my attention.

So, I want to breakdown some things for my readers.

First: Declarations

  • This is my blog. It's a combination of news and opinions, as most blogs are.
  • I turned off the comments because unfortunately some people are immature and posted personal attacks; the comments will be brought back up down the road.
  • I want to thank the people for the groundswell of support via email, IMs, phone calls and posts, and for reminding me that I blog to bring up issues in PR.
  • I pulled down my old post - which I am reposting here in its entirety - not because of what I wrote, but because of the comments.
  • I get my ideas from the news I read, other PR and media blogs, and newspapers - something jumps out at me, and I blog about it. If there's a correction to be made, email me with the correct information, and I'll post a follow-up. I did it with Market Wire, I'm doing a follow-up to NewsBluntly, and I'm open to a real dialogue.
  • If you don't like what I write, well, you don't have to read my blog. Or, you can start your own blog (I like Blogger). Or, you can Email Me - the email address is right there under "Contact Me."
  • I've adopted the Code of Blogging Ethics. While not all fit for my blog, such as Blogger not offering trackback, I will continue to blog in such a way that is open to serious dialogue.
  • I have had disagreements before in the blogosphere - one where I have brought up my views with Steve Rubel (Ru Bell is the correct pronunciation). Now, yes, I have posted some testy comments on his blog, but we have spoken on the phone, and I have nothing but the utmost respect for Steve and Micropersuasion, his blog.

    Did I always have that utmost respect? No, but then we spoke. We hashed things out. We discussed blogging and the press. And, I ribbed him a little bit.

    But, you know, if someone is going to put themselves out there to be quoted, you are going to have to be able to take some heat. Rubel takes the heat like he's wearing asbestos boxers. And, for this, he has earned my respect and I will defend him until I draw blood (and I believe he'd do the same for me).
Second: Hating Lizzie
  • A lot of the commenters had nasty, spiteful comments about Lizzie Grubman. Most of the comments had to do with her wealthy father, buying her way into public relations / publicity.
  • The fact is - from sources that I respect - Lizzie does a bang-up job for her clients.
  • What is the problem that people have? If there is such hatred about Lizzie over her family wealth, these people need psychological help.
  • But, if there is such jealousy against Lizzie, those people - and they know who they are - must also hate and be jealous of the Edelman family for being involved in Edelman PR and the Zeno Group; ironically, Richard blogged about running a family business today.

    Or, they must hate the Pritzker family, for owning the Hyatt Hotels.

    Or, they hate the firms of Ruder Finn and RF/Binder Partners, which are also family-run PR firms.

    Or, they hate almost every owner of an NFL team.

    Are we beginning to see the hypocrisy of hating Lizzie so much? So, she started Grubman PR with the help of her father. She's succeeded into building it into quite the publicity shop, getting press for her clients.

Third: Responding to the commenters
  • I'm not the NY Post - if you were misquoted there, take that up with them. I am just doing what most bloggers do - linking to a story that strikes my fancy, and can be used for a larger post.
  • An IPRA/UN Grand Award, an IPRA Golden Award and 2 Silver Anvils. 'Nuff said.
  • If you can't take the heat or criticism, don't put yourself out there to be quoted as an analyst, an expert, or a consumer using the product.
  • When responding to a reporter's request for a user, a PR firm should not present one of its employees. I had this discussion today with a WSJ reporter; she chocked and started laughing when I asked her what she would have done if I had presented her with myself as a customer for a client.

    So, in the defence that you were in the article for Upoc, a client, seems flimsy. Why wouldn't a PR firm have a database of users to forward to reporters? And, reading the quote from the Upoc CEO, he seemed not that thrilled about the celeb stalker press.
  • PR people and publicists shouldn’t waste their time taking pictures of stars. We should be inured to such people. When I worked in LA at Shandwick, I’d see stars all the time in the building or at Rogers & Cowan. When I lived in NY, I’d see famous people walk down the street, and partied with some of them. I never went up to people … because in the end of the day, they are just people that want their privacy. And, who am I to steal that away from them?

Now, I have spoken to Peter in the past about Skype – we share a love for Skype – and he notes that we have spoken on other issues.

I will give him the benefit that he was grossly misquoted in the NYP article. As PR people, we have all been on the phone during an interview with a reporter – either going on background or on the record – and have that tingly feeling that everything we said is going to be taken out of context or misquoted. It appears that is what happened with Peter.

Peter seems like a good guy, and a mutual friend has vouched for him.

And now, the original post. And, this is the end of it on this subject.

There have always been discussions about the differences between public relations and publicists. Some people are in public relations, but call themselves publicists because they see that as more glamorous, while other PR professionals tend to wince when called publicists.

But, either way, both PR professionals and publicists are the face of PR/publicity, and it is how our industry is judged.

Recently, Liz Smith from Page Six had a screed against publicists, and Jack O'Dwyer, the industry stalwart, wrote a column on what she had to say.

The O'Dwyer article on Liz's story was:


Liz Smith, whose column is syndicated in 65 papers across the U.S., including the New York Post, used her entire Sunday, Nov. 28 column to attack PR people who she says are blocking access to their clients and employers.

The column not only rapped the big celebrity-handling PR firms like PMK, but PR pros working for "government and big business."

"Where the press once dominated publicists and treated them like slaves, the situation is reversed," she wrote.

PR people become "royalty" themselves when they represent a famous person and get in the position of being able to block access to that person, she said.

"The gates are locked against the press and much of the press, unable to do an end run, stands outside begging to be let in," she said.

PR's "iron control of the players themselves has created a vacuum where rumors, fancies and imagination run absolutely riot and the line between truth and fiction is utterly blurred," she continued.

She expressed sympathy for the "free-wheeling in-depth reporter out to get the truth (who) is stymied at every turn."

Dart Firing Cited

The starting point for the Smith column was the recent firing of Leslee Dart from PMK by Pat Kingsley.

Smith theorizes that the "powerful" Kingsley, after losing her No. 1 client, Tom Cruise, wanted to show that she was not "weakened in any way."

Another theory advanced by "Page Six" of the Post on Nov. 19 was that Simon Halls, a partner in the firm of Huvane Baum Halls, which was acquired by PMK, helped Kingsley to make the power play.

One possible reason thus far unmentioned by the newspapers is that parent Interpublic lost a record $587 million in the third quarter and that IPG may have sent word out to its many units to trim highly paid executives wherever possible.

Smith Likes 'Good Old Days'

Smith expressed her fondness for the "good-old/bad-old days" when publicists had to supply four newstips in order to place one favorable item about a client.

"There are no truly famous bylines anymore because PR types are more powerful than anybody writing or editing," she complained.

"Magazine editors and columnists alike go to the powerful PR companies and beg to be allowed to interview their clients, or even to get a simple question answered," she wrote.

The reversal of roles of PR and editors evens things up but the relationship is now "intensely adversarial," says the columnist.

She feels this "overt and sometimes hostile-guarded protection of stars and stories" is hurtful to the public.

"The reader of entertainment news is not made richer, nor is he much enlightened by so much control, spin and political correctness," she concluded, feeling "the three-headed dog of spin control (he can look many ways) is probably here to stay."

While Smith had some good points - points brought up by Jack O'Dwyer in the past - her main beef seemed to be that she misses the power that she had over publicists, making them bend to her will. You know, just like the good ol' days of the Sweet Smell of Success.

Jack had a good rebuttal of certain points, but had to agree on the barrier PR has become:


Liz Smith's venting about non-helpful PR people in big business as well as entertainment and government has a lot of truth in it.

The corporate pullback from actively building relationships with reporters started in the 1970s and was partly due to a wave of ethics that swept journalism in the wake of the Watergate scandal.

There was too much wining and dining of reporters in the '60s and '70s.

More to the point, it didn't have much effect on the media's coverage of the scandals of that day.

Companies figured, if it's not going to help us in time of need, why bother?

Our most frequent experience in calling a major company currently is that a PR aide will take the call and ask the reason for it.

Corporate PR pros almost never answer their own phones.

Whether they ever call back is a function of the status of the news medium you're calling from, the nature of the story, and the particular tack you're taking.

It's defensive. Large companies have major advertising and promotion campaigns under way and mostly don't need another mention in the press.

The marketing and legal depts. may have to be brought in on any dealings with the press, further complicating the situation.

Mid-Sized Firms Can Talk

However, mid-sized and smaller firms usually have no such worries.

Some have taken up the traditional PR burden, which is "educating" beat reporters and even roving reporters on how their particular company and industry operate.

There are plenty of companies like Omega Travel, the fifth biggest travel agency, that have a policy of spending time with reporters and helping them to get their stories straight.

"Reporters want to be educated and they're very grateful for it," says CEO Gloria Bohan.

This is where we see growth for PR in the future.

PR can get back to its roots if enough CEOs practice good press relations.

Traditional advertising has become too expensive for many mid-sized companies but an entire galaxy of communications techniques are now available, especially those that use the internet.

PR firms are moving into this area by positioning themselves as marketing communications firms.
Firms tell us they get much more attention and accounts when they bill themselves as marcom.

Short Definition of Marcom

What's marcom? The blunt definition is "pressless PR." Another definition is "everything but ads."

Clients don't have time these days to wait weeks or months while a newspaper, magazine or TV placement is set up. They need sales now.

Savvy "PR" firms are pitching "customer relationship management" to clients, stealing a page from the largest ad agency of all – Omnicom.

OMC says a third of its $10 billion business (actually $70B+ in value of ads placed, sales promotion, direct mail, etc.) is CRM.

The short definition of CRM is teach clients to improve communications with their biggest customers.

This is the quickest, easiest route to more sales and more profits. OMC practices this itself by concentrating on its 250 largest clients.

Activities include building websites for clients, creating direct mail pieces, staging special events, improving the graphics of clients, finding new markets, getting clients to participate in more trade shows, etc.

A major company told us that its biggest marketing goal at the moment is attracting prospects to its website. This involves having the proper "key" words that will multiply volume of visitors.

Don't Give Up On Press

There's no need to give up on the press. A company will get plenty of press if it makes its CEO and other executives available to reporters.

"Treat the press as you would a major customer," was advice given by West Coast PR and marketing guru Regis McKenna.

That advice is still worthwhile. Medium and smaller companies can build sales by considering themselves "educators" of reporters rather than adversaries and by using the host of communications techniques short of buying ad space that are now available.

The red carpet should be rolled out and a brass band should play when a reporter calls.

"Press calls have to be answered immediately," says Bohan, who has stacks of clips to prove the efficacy of this policy.

What companies don't need is a junior staffer blocking press access to their executives. Quite often executives have no idea of the number of press calls that come in.

A West Coast PR source told us the following story.

The CEO of a utility happened to be with a reporter from the Los Angeles Times and the utility's PR head.

The CEO complained to the reporter, "Why don't you ever write about us?" The reporter replied, "I call you all the time."

It turned out the PR head was pocketing such calls. The next day, the PR person lost his job.

Jack has previously noted that the job of PR is to be a bridge, not a barrier - including his interview with POP! PR and its blog.

So, looking back at both columns made me think of how public relations and publicists are viewed by both the public and the industry.

Lizzie Grubman seems to be vilified at every step of the way. As readers of my blog know, I have nothing but Lizzie love - and I think the vilification is pure schadenfreude. But, come on - the woman is a publicity machine - and not just for herself. She not only runs her own agency, but is partnering with another PR person to open another agency. When I read about Lizzie, I'm not embarrassed about our industry - well, we'll ignore the Hampton's car debacle - but think that she portrays a relatively good picture of PR and publicists. Let's just hope that the MTV show doesn't screw her over.

On the other hand, this story made me wince. The article was focused on the new generation of publicity hounds - people with no lives that snap camera phone pics of famous people. Out in front - the first few paragraphs, actually - is Peter Shankman, of The Geek Factory.

From this story - and apparently, there are plenty of stories with Shankman front-and-center - Petey reminds me of a person from the old Shandwick office in New York. The kid responded to every single Profnet query that he was a fit for. It became a joke in the office, and a redflag to his supervisors. The redflag was that he was concentrating so much on personal PR for himself - for that next job - that he was ignoring the billable work for his clients.

Now, I admit, I too have replied to Profnet queries - this USA Today article lead to the paper calling me about an editorial. It's only good business sense if you are starting out a small firm, and are trying to get recognition and press to get on the radar. But, I try to limit it to issues that have to do with public relations or communications. Case in point - recently, a reporter from a large business paper had contacted me about satellite media tours. That's PR related.

But, of all the ways to be presented to the public for PR people, does the industry really need publicists running around making fools of themselves? It's not the Lizzie articles that make me wince, it's these types of articles that present PR people as bunnies.

Self Censorship - Don't Do It

Yesterday, I posted on PR, publicity, Lizzie Grubman and Peter Shankman.

Those of you that read my blog know that I have tried to make my blog into more than just about starting my agency, but about issues in PR that need to be raised, and trying to raise the bar. And, yes, sometimes rattling cages.

Apparently, I rattled the cage a little too hard and it offended some people.

Naturally, I saved the original post, and will likely repost portions of it. I had a great dialogue with Josh Hallett of Hyku on some points that I raised about the bridge / barrier issue, and he pointed to a similar post on BuzzMachine.

I have those emails, and with his okay, will repost them as well.

I blog to try to bring up issues in PR and the PR blogosphere. It's as pretty much cut and dry as that. I have had this discussion in the past with a few other PR bloggers, particularly Robert French at InfOpinions.

Why should we blog? Should we be trying to better the industry? With students - like the lovable Auburn bloggers - should we be mentors, helping them out and trying to get them to be better PR people? I know that I have helped out at least two PR students in the past month with interviews and jobs, as well as having volunteered to be a mentor for the University of Missouri PR Club, when asked by Heather Pugh of Buzz Magazine.

So, yes, I will continue to tear down what I see as bullshit in public relations. Potential clients may read my blog, and if they find offence with what I have written, it's pretty obvious that we might have not been a good fit to begin with. I didn't open POP! PR, though, to take everything and everyone that crossed my door but to work on things that interested me, and that I would find exciting, interesting, and, yes, fulfilling.

Keep an eye out, though, for the pulled post. It will reappear in some form soon enough.