Whenever the word “management” is used by lawyers it usually means that they are up to something. For example, there is “digital rights management”. And, of course, there is “reputation management”.
In practice, “reputation management” often means using – or threatening to use – the coercive and intimidating force of defamation law to “manage” away unwelcome publications. In doing so, libel is wrenched from its proper purpose of defending and vindicating personal reputations, and it is instead used as a “tool” for dealing with mere adverse publicity.
Because libel has the almost unique quality for a tort of being actionable per se, and because the threshold for what constitutes a defamatory statement is so low, it does not really require a great deal to churn out the requisite paragraphs in a letter before action and to get the letter sent out. The legal, evidential, and (often terrifying) costs burden then switches to the defendant.
The common consequence of this exercise is that blogposts and articles are removed, and apologies given, without any direct regard for the merits of the underlying libel case. The practice of libel litigation is now almost entirely out of synch with the merits of the individual cases. Whether a fact can be justified, or a comment seen as reasonable, is perhaps one of the least important factors in deciding whether to back down in response to a libel threat.
The wider effect of all this is libel chill: articles are now not being published, commissioned or even written, both in the United Kingdom and internationally, just because of the fear of a letter from an English libel lawyer.
There would be no serious problem about this if libel threats were limited to genuine matters of personal reputation. But many are concerned that defamation law is being used to close down or inhibit any debates about matters of public interest: for example, the efficacy of medical treatments or equipment, or the conduct of powerful corporations or individuals and of police officers in the exercise of their ever-increasing powers.
In my view, English libel law simply should not be used as a method of “reputation management” when there is any risk that the pretext of “reputation” is being used by a client to stop or limit adverse publicity in an important public debate.
Notoriously, lawyers are often not good managers; and “reputation management” is an area where lawyers should perhaps stick to the law, and leave the management of PR in the hands – capable or not – of others.