10.16.09
ISSN:1528-3836
© 2009 Jonathan Bernstein
Circulation: 5,000+
Estimated Readership: 18,000+
JUST A THOUGHT
You can't solve a problem with the same mind that created it.
Albert Einstein
CRISIS MANAGER UNIVERSITY
From The Editor
First we take a stroll back in history with a new guest author, Thomas Lee, and The Evolution of Crisis Communication. Then Rene Henry returns to the pages of "Crisis Manager" with the second of a three-part series that started two issues ago. This time, Rene tackles the difficult, but vitally important topic of defamation, and how different countries interpret the relevant laws. Crisis communications often deals with this subject, both proactively and reactively, so practitioners would be wise to become talented amateurs regarding slander, libel, etc., even if they are not attorneys.
And -- heads up! I am testing a newsletter distribution option that will allow ezines to be received in either HTML (pretty-looking) or plain text, depending on how your email is set up. I hope to get my first issue out that way by early next month.
Enjoy!
Jonathan Bernstein
jonathan@bernsteincrisismanagement.com
The Evolution Of Crisis Communication
By Thomas Lee
After finishing Neil Swidey's 2-part story in The Boston Globe Magazine last week - Trapped Under The Sea, the untold story of two divers who died in the Massachusetts Water Resources Authority (MWRA) Deer Island Treatment Plant Outfall Tunnel - I was immediately transported back 10 years to one of the seminal events of my public relations career, making me reflect on how much crisis communication has evolved over the past decade.
On July 21, 1999 I was sitting at my desk at the MWRA in the Charlestown Navy Yard writing a mundane press release about summertime water conservation, when the phone rang. It was my boss, Executive Director Doug MacDonald, and he sounded uncharacteristically shaken. There had been a terrible accident on Deer Island, he said, and that I needed to get there fast to handle the press.
As the 25 year-old spokesman of the MWRA in 1999, I personified the classic "Flak" of the time. I wrote press releases, nurtured media relationships, proactively issued good news, spun the bad news and reacted to the unexpected accordingly. I carried a pager and a basic cell phone (used sparingly for outgoing calls), and sent press releases over the fax machine. I had email, but since most media members didn't, it was fairly useless. The Internet was several years old, but it was really still just a novelty. In 1999, the dissemination of news was still solely done by traditional news outlets. As a spokesman, controlling the media meant "controlling the message".
From a public relations standpoint, The Deer Island Outfall Tunnel crisis was handled perfectly. Pre-set protocols that had long been established were set into motion - notifications to key personnel were made quickly, a communications center was set up on the site of the incident, accurate and up-to-date information was disseminated to key communications personnel, and a single spokesperson for all public information was set (me). Within an hour of the incident, we had established control of the information and were in a position to release that information as we saw fit in a well thought-out, clear, concise manner. If the press wanted the story, they had to go through me...and they did.
Fast forward to 2009...If this same incident occurred today and the protocol we had established in 1999 was still all that was in place, I cringe to think of all the loose ends that would be flying around! What had been an airtight crisis communication protocol at the time would be seriously flawed today.
Advances in communications technology, and people's incredible access to it today in comparison to a decade ago, has created a playing field so drastically different for a Public Relations professional that it's not even comparable. The internet, which was just emerging in 1999, has become a critical conduit for news, communications, commerce, and social interaction. The internet has taken our vast world and shrunken it down to the size of an iPhone. Cell phones are no longer clunky mobile telephones with a single use and purpose. Today, "Smart Phones" are multi-faceted portable communications tools that not only allow users the ability to connect with each other anywhere, at any time, through voice or SMS; they enable users instant access to the internet and all of its mass communications tools.
Armed with a Smart Phone, every citizen has become a source of news and information. Look no further than Janis Krums, the blogger who happened to be on the first ferry to arrive on the scene a few minutes after US Airways Flight 1549 had plunged into the Hudson River in New York City earlier this year. Within ten minutes of the crash, Krums had used Twitter (and Twitpic) to post a photo of the downed plane with news of the crash and distributed that information to tens of thousands of people. It was roughly 30 minutes before the first news crew was even on the scene.
Controlling "the message" today as a PR professional no longer means controlling the press. Since everyone who has access to a computer is now a viable news source, it is now virtually impossible to completely control the message. It is still possible, however, to mitigate the crisis and influence public opinion.
With that said, I will share with you my Five Principles of Handling a Crisis in 2009 that will help you to minimize the damage of an unforeseen crisis and protect your company's short-term and long-term interests:
1. Prepare - Abraham Lincoln once said; "Give me six hours to chop down a tree and I will spend the first four sharpening the axe." Being prepared for a potential crisis situation is absolutely critical.
2. Develop a set protocol that will be placed into motion as soon as an unforeseen crisis strikes. This protocol includes everything from a strategic contact list (eg - key decision makers, communications personnel & legal council) to the creation of a physical command center.
3. Media train key personnel. Establish a spokesperson(s) for the company and have them work with a professional public relations professional (or firm) to receive the proper media training.
4. Set up online monitoring tools. Every company should employ free online monitoring tools like Google Alerts and Tweet Grid, or paid services like Radian6 and Cision. It is critical to monitor your brand online 24/7. Whether it's a disgruntled employee smearing your company name on a blog or an online news article about a client or competitor, monitoring the web is a necessary step towards protecting your brand's reputation and to identify, or in some cases, avoid a crisis before it happens.
5. Get the facts - Stay calm and keep your wits about you! While it is important to respond swiftly to a crisis, it is even more important not to make any rash or reflexive moves. It is imperative to get all of the facts as quickly as possible from the most credible sources. Before you can successfully handle a crisis, you need to understand what happened, how it happened and where your exposure lies.
6. Be Proactive - Once you have all the facts, it is imperative that you take a proactive approach to responding publicly. Avoid taking a defensive posture. Make sure that your stance and message is carefully crafted and delivered in a clear and concise manor. Avoid live interviews if possible and never, ever say "No Comment!" In the court of public opinion, "no comment" means "I'm guilty!" The most effective way to ensure that your response is clear is to issue a written statement attributed to your designated spokesperson. A statement should consist of a two to three sentences that can each stand alone. The statement should be conciliatory in tone and firm and decisive. Make it clear that you are aware of the incident, state your stance on the matter and ensure people that you will get to the bottom of it and take action.
7. Monitor - Good intelligence is your greatest weapon for diffusing a crisis situation. Utilize your online monitoring tools, adjusting search terms as necessary, to monitor what people are saying about your company, what they are saying about the crisis itself, and how effective your response has been. This allows you to keep a virtual finger on the pulse of public opinion and enables you to uncover additional exposure that may warrant a response.
8. Take Action - Whether the crisis has been averted or you've simply mitigated the fallout, it is important to publicly take steps to remedy the cause of the crisis and ensure that it will never happen again. Announce new policy, hire a consultant, or fire your CFO. Whatever it is, make sure you announce it, so the public knows you intend to fix what broke.
While advances in communications technology and the advent of the "citizen journalist" have significantly added to the challenges faced by a crisis communicator, the key principles remain the same. Whether you own, manage or operate a company or public agency, you can be sure of one thing - you will inevitably be faced with a crisis situation. When you do, will you be prepared to handle it?
Thomas E. Lee is Partner & Director of Public Relations at 451 Marketing. Contact tlee@451marketing.com.
Libel: It's What You Say And When And Where You Say It
Second in a three-part series
By Rene A. Henry
If you can't get a publication or media organization to correct or retract a defamatory or malicious statement, then the only alternative may be litigation. Chances of winning in court depend where you sue and where you live.
Courts in the U.S. require the plaintiff, or party libeled, to prove that the defendant published the statement knowing it to be false, or published it with reckless disregard to its truth. However, under laws in England, Canada, Australia, the British Caribbean, and other countries, the defendant is considered guilty until proved innocent.
"One feature of a defamation action in the British Caribbean and throughout the Commonwealth is that the burden of proof is immediately placed on the defendant at the outset to prove what was said was true and thus not defamatory," said Desmond Seales, publisher and editor-in-chief of Caribbean Net News. "The plaintiff has to prove very little, if anything. All he has to do is make the claim that the offending statement is defamatory and it then is up to the defendant to prove that it is not."
At the opposite end of the spectrum, in the U.S., politicians and prominent public figures are fair game. The Supreme Court ruled in the case of New York Times Co. v. Sullivan, 736 U.S. 254 in 1964 that in order for the plaintiff to win, there had to be actual malice by the publication, knowing it was publishing false information. The court also extended malice protection to include speech about public figures and pubic officials.
Again, British laws differ, and a reporter or publisher can be criminally prosecuted for commenting on the conduct of public officials either negligently or with intent to defame. In fact, one Caribbean island newspaper editor went to jail for publishing a letter that was written by someone else and critical of a government leader.
A Caribbean radio station owner had to pay US$30,000 plus legal fees for both sides when it broadcast a live event during which a satirical song mocked two politicians. Both cases would have been thrown out of courts in the U.S.
In January 2004, the Privy Council, the final court of appeal for all British Caribbean states, ruled constitutional a criminal libel law that provided for a two-year imprisonment of publishers libeling government officials. Criminal libel had its origins in England in 1488 and came to the U.S. in the 18th century. Under libel law, only a living person can take action.
Truth Is Not A Defense In Foreign Courts
American writers and publishers are facing a new problem today according to John J. Walsh, senior counsel of Carter Ledyard and Milburn, New York, and someone I consider to be the nation's foremost attorney on First Amendment Law. "Wealthy foreigners who believe they have been offended by something written and published in the U.S. are trying to get around 'actual malice' and our libel laws by bringing action in England and other foreign courts where the laws are plaintiff-friendly," says Walsh.
"This type of action, called 'libel tourism,' has prompted legislative action to prevent foreign libel judgments from being recognized and enforced in U.S. courts unless they are consistent with the same protection afforded by First Amendment laws," Walsh adds. "New York and Illinois have enacted such laws and similar bills have been introduced in both the Senate and the House of Representatives.
"Free speech for Americans under the First Amendment now stops at the Atlantic and Pacific shorelines and the Canadian and Mexican borders," says Walsh. "However, some proposed legislation that would award damages in a U.S. lawsuit against a foreigner who sues an American for libel in a foreign court not only is ridiculous and insulting to the courts of our best foreign friends, but is unconstitutional because of a lack of due process of the law."
Truth often is not a libel defense outside of the U.S. The actual malice standard of the Sullivan case, which is a cornerstone of free speech and the First Amendment, is not accepted in the U.K., Canada, Australia, British Caribbean of any of the 41 member states of the council of Europe.
A Saudi billionaire filed suit more than 30 times in England against writers who accused him of terrorism and also in Belgium, France and Switzerland for those who repeated the accusations. In her book, "Funding Evil," author Rachel Ehrenfeld, wrote that the man and his family deposited "tens of millions of dollars in London and New York directly into terrorist accounts and transferred another $74 million to an international organization run by a U.S.-designated terrorist." Ehrenfeld, who pioneered investigation into the financial roots of terrorism, is an adviser to the U.S. Department of Defense and director of the American Center for Democracy, New York. The British court ordered her to pay £10,000 to each of three plaintiffs, plus costs, and apologize for false allegations. On a website, the Arab billionaire boasts of court victories over The New York Times, The Wall Street Journal and The Washington Post.
"English lawyers now refer to the 'Arab effect' to describe the surge of English libel actions by wealthy, non-resident Arabs accused of funding terrorism," wrote Samuel A. Abady and Harvey Silverglate, in The Boston Globe. "This trend has produced a succession of rulings, settlements, and damage awards against English and American media defendants costing millions of pounds."
Two years ago actress Kate Hudson won a libel case in the U.K. against the British edition of the National Enquirer magazine after it published an article suggesting she had an eating disorder. Richard N. Perle, an advisor to George W. Bush, threatened to sue Pulitzer-prize winning investigative reporter Seymour Hersh in London because of a series of critical articles he had written. Hersh is a regular contributor to The New Yorker magazine and writes about military and security issues.
Criminal Libel and the Internet
There are criminal libel statutes in 17 states, Puerto Rico and the U.S. Virgin Islands. Most libel litigation in the U.S. is civil, and there are fewer cases today than in previous years, but with larger financial awards. Freedom of speech and civil liberties advocates are seeking to get many state laws declared unconstitutional while at the same time it is becoming more prevalent for people to post false information on the web to ruin someone's reputation. Common defamatory remarks on the Internet include accusations of criminal acts, marital infidelity, dishonesty, or having a sexually-transmitted disease.
Electronic technology led to a bill introduced February 2009 in the North Carolina legislature to criminalize defamatory statements made on the Internet. Protection was given to the person responsible for administering and providing the facilities for the defamatory material unless the person was guilty of negligence.
Last year a Colorado man was found guilty for posting comments about his former girlfriend and her lawyer on the Craigslist "Rants and Raves" section, accusing of her of child abuse and welfare fraud and making crude comments about her sex life. Another Colorado man was charged with pasting pictures of the face of a woman on the body of another and publishing and disseminating the pictures electronically.
A third Colorado man was sentenced to more than 20 years for making false statements on line that included calling a college professor a sexual deviant and sending an Alaskan newspaper a false obituary claiming a living person had died of AIDS. The Colorado law, enacted in 1963, is a felony with up to 18 months in prison and a fine of up to $100,000 for the first offense.
A Utah teenager who used the web to call his school's principal the town drunk and demeaned several of his female classmates, spent a week in juvenile detention and was ordered to live with his grandparents in California.
Recently some lower courts have found criminal libel laws unconstitutional because restrictions are placed on free speech.
Does Libel Impede Free Speech?
On March 20, an organization lobbied the British government and asked Prime Minister Gordon Brown and members of Parliament to repeal and amend legislation on criminal libel. "One of the problems with criminal defamation is that a breach may lead to harsh sanctions, including a criminal record or imprisonment," said Dr. Agnes Callamard, Article 19 executive director. "In some countries, unduly harsh penalties under criminal libel laws are used to suppress the right to freedom of expression. The U.K. libel statute signals other countries that such laws are acceptable."
Article 19 has offices in the U.K., Brazil, Mexico and Africa and believes that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers."
However, the organization does not address the issue of freedom of opinion and expression that can be blasphemous, seditious, obscene or defamatory, and the rights of an individual or organization with regard to character, image and reputation.
Before the American Revolution, anyone could successfully sue a writer or publisher even when what was published was true. This changed with the Supreme Court's New York Times-Sullivan ruling that protects free speech. Today, to win a libel suit in the U.S., a public figure must show not only that the statement is false, but that the writer or publisher knew it to be false and it was written with malice and a reckless disregard for the truth.
(Next in the series: Does the media have a double standard when it comes to athletes, entertainers, celebrities and public figures?)
Rene A. Henry is an author and columnist and lives in Seattle, Washington. His latest book, "Communicating In A Crisis," has a specific chapter on how to fight back and win. Many of his widely published commentaries are posted on his website.
We Have Blogs!!
Bernstein Crisis Management, Inc. hosts two blogs on which you are invited to participate:
Bernstein Crisis Management Blog and
Crisis Thoughts
The former is a fairly traditional series of blog posts, at least five new ones per week, usually making points about crises in the news. The second blog, Crisis Thoughts, is...different. You have to see it to understand!
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PLAIN ENGLISH DISCLOSURE
Bernstein Crisis Management, Inc. has formal or informal co-promotional and mutually beneficial business associations with a number of the services we mention periodically in this newsletter. No, we can't go into details because that's confidential, proprietary, etc. But our relationship is NOT "arm's distance" and you should know that, since we regularly write about these services as we use them for crisis and issues management or other purposes. That said, you should also know that Bernstein Crisis Management sought the relationships because its staff is convinced that these services are the best of their kind for Bernstein Crisis Management's needs and those of its clients. If you have any questions about these relationships, please contact Jonathan Bernstein, (626) 825-3838.
ABOUT THE EDITOR & PUBLISHER
Jonathan Bernstein is president of Bernstein Crisis Management, Inc., www.bernsteincrisismanagement.com, a national crisis management public relations agency providing 24/7 access to crisis response professionals. The agency engages in the full spectrum of crisis management services: crisis prevention, response, planning & training. He has been in the public relations field since 1982, following five-year stints in both military intelligence and investigative reporting. Write to jonathan@bernsteincrisismanagement.com.
GUEST AUTHORS
GUEST AUTHORS are very welcome to submit material for "Crisis Manager." There is no fee paid, but most guest authors have reported receiving business inquiries as a result of appearing in this publication. Case histories, experience-based lessons, commentary on current news events and editorial opinion are all eligible for consideration. Submission is not a guarantee of acceptance.
LINKS
When I find a site that I think will be useful to my readers or site visitors, I put it on our Links page. If you have a site that would be of specific use to crisis managers and want to discuss a link exchange or other cooperative effort, please write to me, jonathan@bernsteincrisismanagement.com.
LEGAL DISCLAIMER
All information contained herein is obtained by Jonathan Bernstein from sources believed by Jonathan Bernstein to be accurate and reliable.
Because of the possibility of human and mechanical error as well as other factors, neither Jonathan Bernstein nor Bernstein Crisis Management is responsible for any errors or omissions. All information is provided "as is" without warranty of any kind. Bernstein Crisis Management and Jonathan Bernstein make no representations and disclaim all express, implied, and statutory warranties of any kind to the user and/or any third party including, without limitation, warranties as to accuracy, timeliness, completeness, merchantability, or fitness for any particular purpose.
Unless due to willful tortuous misconduct or gross negligence, Jonathan Bernstein and Bernstein Crisis Management shall have no liability in tort, contract, or otherwise (and as permitted by law, product liability), to the user and/or any third party.
Under no circumstance shall Bernstein Crisis Management or Jonathan Bernstein be liable to the user and/or any third party for any lost profits or lost opportunity, indirect, special, consequential, incidental, or punitive damages whatsoever, even if Bernstein Crisis Management or Jonathan Bernstein has been advised of the possibility of such damages.
A service of this newsletter is to provide news summaries and/or snippets to readers. In such instances articles and/or snippets will be reprinted as they are received from the originating party or as they are displayed on the originating website or in the original article. As we do not write the news, we merely point readers to it, under no circumstance shall Bernstein Crisis Management or Jonathan Bernstein be liable to the user and/or any third party for any lost profits or lost opportunity, indirect, special, consequential, incidental, or punitive damages whatsoever due to the distribution of said news articles or snippets that lead readers to a full article on a news service's website, even if Bernstein Crisis Management or Jonathan Bernstein has been advised of the possibility of such damages. Authors of the original news story and their publications shall be exclusively held liable. Any corrections to news stories are not mandatory and shall be printed at the discretion of the list moderator after evaluation on a case-by-case basis.
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