This edition of The Reputation Ledger hands the pen to a guest contributor, and it is a pleasure to do so.
Matthew Howe is a Partner and Head of the Newcastle office at Samuels Solicitors LLP, where he leads the firm’s reputation management work. He has acted for media and sports personalities, politicians, journalists and multinational corporations, taken libel and slander claims through to trial at the Royal Courts of Justice, and secured settlements against national newspapers resulting in apologies, retractions and damages. He also does the quieter work that rarely gets discussed: libel reading books, articles and plays before publication, drafting public statements, and building crisis plans before they are needed.
The scenario he takes on here will be familiar to anyone who has handled a live incident. Something untrue has been published, it is gaining traction, and the client wants to respond now. Matthew’s answer is more disciplined than most people expect. He explains why the right course is sometimes to say nothing at all, why a hasty statement can weaken a defamation claim rather than strengthen it, and what separates a public statement that defends you from one that persuades readers the accusation had merit. The two sample statements he sets out are worth the read on their own.
Where his piece ends is where I pick up in the Pavesen Perspective: why the judgement call in those 48 hours is itself specialist work, and what becomes of a statement long after the cycle that prompted it. First, over to Matthew.
The Cost of Deciding Alone
The first 48 hours: drafting a public response when something defamatory has just landed.
It is an all too common scenario that comes across my desk; “Someone has just posted a lie about us online and it is getting traction! How shall we respond?”
Being a reputation management lawyer is tricky. It involves as much understanding of the public relations world as it does the legal arena. Approaching a scenario like the above with a purely litigation mindset can sometimes do nothing more than add fuel to the inferno. A nuanced approach is needed, which takes into consideration the wider factors at play.
In its simplest form, a defamation claim arises when an untrue statement is published to a third party which causes, or is likely to cause, serious harm to the subject’s reputation. A body that trades for profit has to prove that the statement caused or is likely to cause serious financial loss. It is often that last element of serious harm which determines how to respond to a defamatory statement.
A case for restraint
I once had a long-standing client in the property construction business. They were well known and respected in their region. They called me in a panic one day and said that a local charity had erected an art installation in the marketplace. I enquired as to why this was a concern and they explained that a series of paintings within this art installation contained an inference that their properties were poorly constructed. Photographs had been taken of these paintings and then published on social media as well. The client wondered whether they should publish a statement in response and wanted me to assist with drafting.
My first question was “what impact has this had?”. The client said nothing yet but they feared that it could cause long-term damage to their reputation. I took the view that publishing a statement, at that time, was unwise as:
- The accusation was an inference within a series of paintings and realistically, most of the individuals that viewed the paintings would not even realise the inference being made;
- This was a small and temporary art installation so even if some individuals were able to make out the inference being made, it would be a miniscule number and there was nothing at that time to suggest anyone had believed the accusation;
- Publishing some sort of statement would do nothing more than bring a spotlight to the paintings and subsequently the accusation, which in turn could do more harm than good.
Although frustrating for clients to hear, sometimes the appropriate course is to do nothing. At the very least, not acting too hastily is sensible. There can be an impulse to respond as soon as possible but in certain circumstances, this only exacerbates the situation. From a litigation point of view, drawing attention to and essentially further disseminating a defamatory statement, in an attempt to counter it, can create a hurdle to any claim. The court could take the view that to some extent, a claimant (the party bringing the claim), could have caused harm to their own reputation in sharing or bringing attention to a defamatory statement that might otherwise have gone under the radar.
When a statement is necessary
Unfortunately, some defamatory statements are too serious and too damaging to be ignored. Some do gain traction and immediately cause damage. For both individuals and companies, a public statement is necessary but needs to be carefully handled. A poor choice of words and timing, even with the right intention, can again result in doing more harm than good.
The first step is to again evaluate the level of serious harm. An accusation might have been published online and might be getting traction in terms of likes, shares and comments but that does not necessarily mean the majority of those liking, sharing and commenting believe the accusation. The public might be generally defending you or casting doubt on the legitimacy of the accusation. It is important to get a read of the room and determine how much of an impact the accusation is actually having on your reputation.
The 24 to 48 hour window
Assuming the accusation is causing damage, a response needs to be published within 24 to 48 hours from when the accusation was published. Sheltering down and staying quiet while a public relations hurricane is going on is not the answer in these circumstances. The general public views a lack of response as a sign of guilt. That is not a fair assumption but nonetheless, that is the position. Waiting too long to respond can arouse suspicion as to why you failed to respond sooner if the accusation is untrue. It is therefore important to take the time to draft the right response but not leave it too late.
Shield or sword: the wording
The actual wording of a public response will be either your shield or a sword that wounds your position. It is crucial to understand the nature of the accusation and the audience. A statement needs to be clear on whether the accusation is denied but not come across as evasive, confrontational or unprofessional. Unfortunately, there is not one-size-fits all template and that is why it is crucial to have an expert in reputation management to assist. What would be appropriate in one set of circumstances might not work in another set of circumstances.
The below is a normal public statement that I have seen time and time again:
The issue is that although this statement does clearly deny the accusations, it comes across as rather unprofessional and overly defensive. If the above statement was in response to a customer complaining online that they received rude service then publishing such an aggressive and confrontational response might in fact convince any readers that there is some truth to the complaint. A more appropriate response might be:
The above addresses the accusations directly but does not simply deny them. Instead, it sets out that the accusations have been investigated. This gives a degree of accountability that such accusations are taken seriously and not outright denied. There is no aggressive or confrontational tone but rather a clear and concise response that allows readers to understand exactly where the business stands on the matter.
The disclosure test
It is always important to bear in mind that any public statement can and will be part of disclosure in any defamation claim. Thought therefore needs to be given as to how such a statement might be perceived by a Master of the High Court.
The Second Reader
The temptation on reading Matthew’s piece is to take away a simple rule: say nothing. That is not what he wrote, and it is worth being clear about the distinction, because it matters commercially as well as reputationally.
Silence is not a default position. It is a decision, and it is only the right one in a narrow set of circumstances. Matthew’s art installation example works because someone with a trained eye looked at it and concluded the accusation had almost no reach, almost no credibility and no measurable harm. That assessment is the valuable part, not the outcome. Get it wrong in the other direction, as he sets out, and staying quiet during a live news cycle reads to the public as guilt, whatever the reality. The cost of the wrong silence is every bit as high as the cost of the wrong statement.
What his piece really demonstrates is that the judgement itself is specialist. Whether a statement helps or harms, whether the serious harm threshold is met, whether responding would strengthen a claim or hand the other side an argument that you amplified the accusation yourself, whether the audience is turning against you or already sceptical of the allegation. These are not instinctive questions and they are not answerable by committee at nine in the morning while the phones are going. They are answerable by someone who has taken these matters through to trial and knows how the decision will look eighteen months later on disclosure. Bringing in counsel like Matthew early is not a cost centre, it is the thing that prevents the far more expensive version of the same week.
And when a statement is required, the drafting is where the money is saved. The two examples he sets out make the case better than any argument. The first is the version most businesses would publish, and it is the one that persuades readers the complaint had merit. The second says materially the same thing and does the opposite. That gap is not stylistic, it is the difference between closing a matter and financing a claim against yourself.
Our own caution about public responses runs along a line that is newer. A statement is not a moment, it is a document. It is indexed, archived and, increasingly, ingested. When an AI system is asked about a person or a business, it reads the denial alongside the allegation and treats both as part of the record. Matthew rightly asks how a statement will look to a Master of the High Court. We would add a second reader to that list, one that never forgets and is consulted far more often. It is a reason to draft with more care, not a reason to avoid drafting.
That is where the two disciplines meet. We are frequently in the room once a legal strategy is settled, doing what litigation cannot: making sure an apology, retraction or settlement actually reaches the places where people form their impressions, and correcting what search engines and AI systems understand a client’s identity to be. Equally often it runs the other way. Our audits surface matters that need a lawyer’s eye before anything else happens: a publisher’s conduct, a pattern of harassment, a data protection failing, a claim with a limitation clock already running. When that happens the responsible step is to put it in front of counsel, not to manage around it.
The common thread is sequence. Assess first, act second, and let the assessment be made by people who do this for a living. Before deciding whether to speak, a client needs an accurate picture of what is visible, what it is doing to how they are perceived, and what exposure sits underneath it. That is the purpose of the Pavesen Audit: presence, perception and exposure, established before the decision is taken rather than in the middle of one.
Reputations built over decades, whether an individual’s or an institution’s, should not be defined by a single episode. Whether the right protection is a statement, a claim or a quieter piece of work, the one thing that never helps is deciding it alone and at speed.