Briefing: Public relations and the law
About the author
Richard Bailey Hon FCIPR is editor of PR Academy's PR Place Insights. He teaches and assesses undergraduate, postgraduate and professional students.
As Simon Goldsworthy and Trevor Morris write in their recently published book on the subject, ‘ethics concern what we should do and the law is about what we must do.’
This article is not an attempt to review all laws applicable to public relations; and it’s not to be viewed as legal advice. It’s simply an introduction to some broad areas of the law that practitioners need to be aware of – along with an explanation of why some legal understanding is becoming more important.
I fought the law, and the law won
First, a word on the tension between public relations advice and legal advice. In the last century, the two often appeared to be in conflict. The law is subject to being tested in the courts, and legal advice is usually directed at winning potential court cases (or protecting against the risk of being taken to court).
Public relations advice is subject to a different sort of scrutiny, often described as ‘the court of public opinion’. The potential for conflict comes in those cases where a defendant might win in court, but when the evidence that emerged in court causes such reputational damage that the narrow victory could be seen as a loss. (‘A win is a win’ says the lawyer. ‘Oh not it’s not’ says the public relations adviser in what had become a familiar pantomime routine.)
The textbook example of the tension between legal and public relations advice came in the case of PanAm, the airline whose flight PanAm 103 exploded over Lockerbie in 1988 with the loss of 270 lives. A Libyan agent was subsequently convicted of smuggling a bomb on board. PanAm was another victim, yet the legal advice to its executives to say nothing publicly for fear of legal liability did not help the airline recover from this crisis. It collapsed in 1991.
Another textbook example contrasts this case with that of British Midland, whose aircraft crashed at Kegworth on the M1 motorway embankment close to East Midlands airport in 1989 resulting in 47 fatalities. The quick response of British Midland’s owner Michael Bishop in making himself immediately available for media interviews (even though he was literally and metaphorically in the dark) resulted in a strong reputation and increased ticket sales for the airline. Yet the subsequent air accident investigation showed that pilot error was to blame in this case: one engine was on fire and the pilots shut the other down by mistake.
Today, law firms are much more alert to reputation risk and some market their expertise in this area. Meanwhile, some public relations consultancies work closely with legal advisers in providing rounded advice to their clients.
Morris and Goldsworthy explain why public relations practitioners were traditionally not required to pay close attention to the law. Media relations operated through informal agreements that were rarely legally enforceable; and what appeared in public was the legal responsibility of the publisher rather than the invisible hand that fed them. Besides, advice and promotional services were given to organisations that paid for it, ‘which is inherently low risk, certainly compared to journalism, which is often in the business of breaking bad news about people and organisations. PR practitioners are generally in the business of saying things that people want them to say and doing so with their approval.’
That was then. Now when so much media content is shared directly with the public rather than being filtered by journalists, public relations practitioners are more visible and more accountable for their words and actions. We need to wise up to the risks. It’s our reputation that’s now on the line, as well as that or our organisations and partners.
All citizens have an obligation to obey the law; in addition to this, public relations practitioners have responsibilities to their employers and clients not to bring them into disrepute. Some areas of practice are more closely regulated than others – such as healthcare and investor relations.
This briefing is an overview of areas of the law most applicable to public relations practice; it has not been written by or checked by a lawyer, and does not provide legal advice. Note that laws are territorial and differ from country to country. This makes interpreting the law applicable to social media even more challenging.
It draws on two related disciplines, where legal advice is more readily available to practitioners: journalism and marketing.
Note that CIPR members have access to a legal advice helpline.
How to change the law
The law is not immutable, but rather it adapts and changes over time.
Members of parliaments and assemblies are known as legislators (ie law makers): they are responsible for creating and amending the law in their jurisdictions.
So in cases of perceived injustice, citizens and organisations can seek to change the law or establish new laws. Citizens can write to their MP; they can start petitions; their campaigns may get picked up by the government or by a backbench MP and their petitions may get debated in parliament. In some cases, single-issue campaigners can run candidates at elections; the £500 deposit to run in a parliamentary election is a cheap way to highlight a campaign, and some single-issue candidates have run effective campaigns.
On a collective scale businesses, public sector bodies, charities and interest groups are keen to influence civil servants, MPs and ministers on the law that might affect them and the groups they represent in a process variously known as lobbying or public affairs.
Each new law will have winners and losers. A move to restrict traffic in city centres in order to improve air quality and the health of residents may be popular with many but cause mobility problems for those dependent on their cars. It may also have implications for the types of vehicles manufactured, and so affect employment in factories and supply chains. These competing interests are why legislation needs scrutiny to avoid the tendency to ‘act in haste and repent at leisure’, the so-called law of unintended consequences.
This is why lobbyists believe their practice leads to better legislation on behalf of their organisations and clients – and is also in the public interest – because of their focus on providing better information to civil servants and legislators.
Here’s a brief overview of areas of the law most applicable to public relations practice.
Defamation (Iibel) and free speech
Defamation is a concern to publishers, as they run the risk of being sued for libel. Now that every organisation (and, indeed, every individual) is potentially a publisher, this has wider implications.
The law protects an individual’s personal and professional reputation from unjustified attack. Defamatory statements are variously described as slander and libel. The law tries to strike a balance between an individual’s right to a reputation and a publisher’s right to freedom of speech, with the decision being made by a judge. The risk to publishers is that in the past courts have awarded huge damages to claimants (on top of the legal fees attached to the case).
The test that has to pass is that the publication of the alleged libel caused or was likely to cause ‘serious harm’ to a reputation. Often this has been interpreted as meaning a financial loss.
Intellectual property (IP), trademarks and branding
Intellectual property (IP) describes various legal rights including patents, trademarks, copyright (see below) and image or personality rights. While property and possessions can be viewed as physical assets, we call this ‘intellectual property’ because it describes an intangible asset.
One important distinction to note is that it’s not possible to protect ideas – only the ‘artistic expression’ of those ideas. This can affect agencies pitching work to potential new clients; there is no protection against those ideas being taken on and developed by the client or by another agency. (Just such an issue became public – and was later resolved in private – in the case of Manifest and Brewdog).
Trademarks are used to distinguish products and services, and they need to be registered to be protected. One way to protect trademarks (in the US) is through the law of ‘passing off’.
Celebrities seek to control their personality or image rights in order to exploit their personal brand for commercial gain. There is no single law offering this protection, and courts have in the past been reluctant to support personality rights, yet celebrities and their advisers are motivated to exert control over their brand.
Patent protection has its origins in ‘letters patent’, a royal monopoly granted to merchants giving them exclusive rights to trade certain products. Patents are now used to safeguard inventions. The three tests for a patent to be granted are that the invention must be novel; it must involve an inventive step (ie it must not be obvious); and it must be capable of an industrial application. Patent protection lasts for 20 years from the date of filing.
Under copyright law, the creator of artistic or literary works is the original owner. This includes photographs. Unlike with trademarks, the owner does not have to register their work to establish their rights. The ‘first owner’ can assign the rights to make copies to another person, for example by payment of a fee or by establishing the right to copy through a Creative Commons licence.
You should not assume that you have the right to copy or republish an image that you have found through an online search. Remember that if you can find an image online, so will the creator be able to find your use of the same image. They may pursue you to establish copyright, for fear that ignoring the breach might set a precedent.
Under the 1956 Copyright Act the commissioner of a work (eg written or photographic) owns the copyright. So if you had commissioned a photographer you owned the right to use and copy the resulting images, even if the photographer retained the negatives. This was amended by the current 1988 Copyright Act so a photographer now retains copyright of their work even if you commissioned it (unless you have specifically requested copyright to be assigned to you).
Given the copyright of an image is held by the creator (ie the photographer), this means an individual does not have an automatic right to share their own image if it has been taken by another. There have been some disputes between celebrities and paparazzi photographers relating to the sharing of images on photo sharing sites such as Instagram, often settled out of court. There is tension between the status of a celebrity as a money-making brand and as an individual deserving equal rights to privacy as any other citizen. As law lecturer Hayleigh Bosher writes, ‘In the social media and influencer age, it is more common and lucrative than ever to be using one’s own image for remuneration.’
Exceptions to copyright protection in the US as known as ‘fair use.’
The new EU Copyright Law passed in 2019 means that internet service providers are required to make ‘best efforts’ to block content that contains copyright material at the point of upload, though the counter argument is that this could infringe free speech.
Copyright protects works for 70 years after the death of the artist or author in the case of literary, musical and artistic works.
In general, there is no risk of breaching copyright by linking to original content online, but publishers (represented by the Newspapers Licensing Agency) had attempted to extract fees for links from the public relations industry, a claim overthrown in court in the Meltwater case in 2014.
Privacy and data protection
The UK is currently governed by a version of the EU General Data Protection Regulation (GDPR), though there is talk of further post-Brexit changes to privacy laws in the UK.
Anyone who collects private information other than for personal, family or household reasons needs to comply with UK GDPR. This covers all businesses holding data about customers, employees and other stakeholders.
Data protection is about ‘the fair and proper use of information about people’, part of their fundamental right to privacy.
Organisations have an obligation to process personal data ‘lawfully, fairly and in a transparent manner’. They should retain the data only as long as it’s required and should strive to keep it accurate and safe. Under the law, organisations keeping personal data are viewed as ‘controllers’ and can be held responsible for how the data in their possession is controlled.
The public body responsible for UK GDPR and individual privacy is the Information Commissioner’s Office (ICO), which has published a Guide to UK GDPR.
Freedom of Information
The Freedom of Information Act was passed in 2000 and it governs access to information held by public authorities. Citizens can make written freedom of information (FOI) requests and public bodies are obliged to respond in a tactic frequently used by investigative journalists to unearth information for news stories, or by activists to pursue their campaigns.
There are exemptions allowing FOI requests to be refused (for example when they are deemed to be ‘vexaxious’), but processing and responding to FOI requests can be time consuming for public bodies (this role is often the responsibility of comms teams).
Obligations on stock market listed companies
Listed companies (those whose shares are publicly traded on a stock exchange) are tightly regulated and have obligations to provide fair and equal disclosure of information to shareholders and other groups through carefully timed releases of information. Any announcement deemed to be stock market sensitive (ie likely to affect the share price) is subject to rules on disclosure. In effect, this means that those working on announcements are often in early possession of sensitive news and need to take great care over confidentiality and to avoid any purposeful or accidental leaks to avoid any suspicion of ‘insider dealing’, a criminal offence.
This is the most obvious field in which a public relations practitioner could find themselves in breach of rules and laws.
Sensitive financial announcements will be scrutinised by legal advisers and financial advisers as well as by the public relations teams responsible for drafting the announcements.
This diligence by public limited companies (PLCs) is often in stark contrast to the power of founder-owners to make public statements through their social media channels that can move markets and alter public sentiment. How organisations communicate is a reflection of their purpose and values, and debates around governance (the g in ESG) are increasingly important for investors and for public relations teams.
Codes of conduct
Professionals are governed by codes of conduct as well as being subject to the rule of law.
In the case of public relations and communication, the CIPR and PRCA both have their codes of conduct that members sign up to follow. Breaches of the code are not a criminal offence, but may lead to the loss of professional membership.
In addition to these general codes, the PRCA has specific codes relating to public affairs and lobbying, and to healthcare communication.
Bosher, H (2021) Influencer marketing and the law in Yesiloglu, S and Costello, J (eds) Influencer Marketing: Building Brand Communities and Engagement, Routledge
Dodd, M and Hanna, M (2018) McNae’s Essential Law For Journalists (24th edition), Oxford University Press
Kolah, A (2002) Essential Law for Marketers, Butterworth-Heinemann
Morris, T and Goldsworthy, S (2021) Public Relations Ethics: The Real-World Guide, Routledge