Anybody over the age of 40 can recall a time when news was delivered by television, radio and newspapers. Two things that each of those mediums have in common are a substantial capital investment and an existential desire for editorial integrity. The equation was simple. Income was generated primarily through advertising revenue. Advertisers would purchase space in a newspaper or commercial time on a radio station or television network. The larger the number of readers, listeners or viewers—the more advertisers were willing to pay for access to that audience.
The thing that attracted the largest collection of subscribers—and so drew advertising dollars—was editorial integrity. People understood that when their news came from a major newspaper, news magazine or broadcast network, they were getting the product of sophisticated reporting, experienced editors and a publisher with a reputation to protect. While a tabloid with screaming headlines about UFO landings in Nevada might be found at a supermarket newsstand next to The New York Times, everyone knew the difference. One was about inexpensive entertainment and the other was about hard, fact-checked news and editorial content. The broadcast world followed the same rules. The evening network news broadcast was a mainstay of popular American journalism. The late night FM radio talk show was where the conspiracy theorists prowled the airwaves.
News about business was no different than any other kind of print or broadcast journalism. When an investigative piece in a major newspaper or a television documentary exposed dangerous products, consumer rip-offs or corporate corruption, readers and viewers understood that they were getting the news. False claims rarely made it through the filter of skilled professional reporters and editors and onto the newswires or airwaves.
The Internet has changed everything. What once required automated printing presses and broadcast towers—conveying news and information to a large audience—can be done on a computer or even a smartphone. A recent study by the Pew Research Group reported that 45 percent of Americans get their news from a single social media platform. The sinister manipulation of social media is now viewed as a serious threat to democratic institutions and is at the center of public policy debates.
The capacity of businesses to protect their reputation has not been spared. False attacks on the products and brands, leadership, securities, markets and overall integrity of major corporations can now originate on an obscure electronic bulletin board—and be “trending” on social media in a matter of hours. From there, Internet news providers, with none of the checks and filters of the mainstream media, can give an online media assault legitimacy that would have been unimaginable a generation ago. False attacks on corporate reputation may originate with commercial competitors, political activists, protectionist foreign governments or just someone with an axe to grind.
The law provides some tools that can be used to deflect an organized attack on reputation, but there are some important steps that should first be taken to understand and respond to the threat.
- Monitor the electronic marketplace. Knowing what is being written and said about your company is a simple task and worth the effort. Orchestrated online attacks may start as public electronic bulletin board entries or Tweets from obscure accounts.
Dealing with false allegations before they expand into a broader forum and threaten real harm requires a high level of vigilance—and an appreciation of the fact that the Internet never sleeps.
- Know the facts. The First Amendment to the U.S. Constitution and the legal doctrines that flow from it protect the truth and provide broad bounds for editorial opinion. Sometimes allegations that begin to circulate online are offensive, unsavory and seem fundamentally unfair, but are basically true. In these circumstances, trying to fight the facts will rarely lead to a happy and satisfactory result. When the facts are bad, go to work on fixing the underlying problem and make no secret of what you are doing.
- Understand when a threat is real. The kind of damage that can flow from an organized reputational attack is a serious matter. Equally important, however, is the long-term harm that can result from treating every unhappy murmur on the Internet as a potential four-alarm fire. Knowing the difference— and separating online rumbles that signal a real and documented threat from adverse stray chatter—is a skill that anyone charged with protecting corporate reputation should work to refine.
- Choose your targets. “When you got nothing, you got nothing to lose.” When Bob Dylan wrote those lyrics in 1965, he could have been describing many of the Internet goblins of the 21st century. Sources of false accusations, dressed up as Internet news, frequently originate in a basement bedroom of a parent’s house or a table in a coffee shop. A letter from a large law or crisis management firm, instead of conveying a clear and appropriate warning, may instead suggest that the purveyor of the untrue tales of corporate misconduct has reached the big leagues. A good question to ask before pushing the “send” button on a typical “cease and desist” letter: If this letter is published online and even finds its way into the mainstream press, will we have done more good or more harm to the goal of protecting our reputation?
- Act when necessary – and play to win. When faced with an adverse story, rooted in a false narrative that may threaten real harm to corporate reputation, aggressive legal action may provide the best and most direct road to a solution. One of the most effective tools of civil litigation in the United States is the discovery process. Whether intentionally false reporting is the product of business competitors or Internet conspiracy theorists pursuing their own agenda, civil discovery offers the best available avenue for exposing the truth. The civil suit brought in 2017 against Alex Jones and his Internet platform Infowars by the yogurt company Chobani, LLC—that resulted in a full public retraction and apology by Jones—is one example of the effective use of legal action in the corporate fight against fake news.
Another generation may pass before the necessary legal and regulatory tools emerge to address the abuse of public media platforms for false attacks on corporate reputation—in the broader context of a free society and the protections of the First Amendment. In the meantime, the best defense in protecting the hard-earned good name of any business enterprise is vigilance, caution and a willingness to act when the threat to reputation is real and immediate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.