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Lawyers vs PRs

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By Steve Kuncewicz

December 8, 2011 | 5 min read

I spend my life warning businesses about the potential risks of social media to their business, so you think I'd know better than to tweet something as shamelessly provocative and career-damaging as : "PRs are more important than Lawyers in a crisis". Despite furious back pedalling, given that I'd just agreed to start blogging here on a regular basis, it was put to me as a great title for my first post.

So, how do I get out of the huge hole I've dug myself into here and put Lawyers back at the heart of the issue and with the keys to your budget, if not driving the whole process? I can't, and there's a good reason why.

The Media Industry is a massive, sprawling multidisciplinary landscape in which Lawyers rarely figure. Why? Surely they should be taking advice from us every step of the way? They need to protect their IP, know how to use third party content, make sure they don't end up on the wrong side of a defamation claim, do deals that don't cripple them and know which disputes to fight and which to settle. Like it or not, we are a necessary evil.

What we aren't, however, at least when it comes to dealing with the digital, creative media and PR sector, the most important people in the room.

Let me give you an example - a libel issue comes up and we have to vet a press release to avoid a client being sued over its content. Rather than reach for Gatley on Libel and Slander (a textbook that sits on my bedside table), the first thing I'd usually do is find out who does their PR and how they intend to deal with the fallout of the release as part of an overall or reactive crisis comms strategy.

A few weeks ago, I was asked to advise on whether or not a client could obtain an injunction to stop a negative story appearing in the Sunday edition. The usual scary letter was drafted, but to no-one's surprise the PR agency already knew about it and had been in touch with the Journalist to try and get a steer on what the final article would say. Bearing in mind that it's incredibly difficult to get a prior restraint injunction when you don't know what's actually going to be said (and so can't say whether or not it's defamatory) and whenever the "responsible journalism" defence is due to be wheeled out, where is the time and money best spent in dealing with the issue? In this case, it certainly wasn't in threatening the Journo. As it turned out, the piece was far less controversial than it could have been and the client got the best result-which is the whole point.

So, do we let everything go without causing a fuss? Do we ignore the legal issues when dealing with or contributing to the media? Not a chance.

What the DMC community should do is set different expectations for their relationship with Lawyers, and what Lawyers need to do is to step out of their Pinstripe Ivory Tower and get used to working collaboratively rather than dictatorially. Our advice is valuable, but a any Lawyer will tell you, it's sometimes ignored. More often than not,commercial considerations and a tolerance of risk will take precedence over every potential legal risk being dealt with exhaustively. We're taught to do so, and there are always more important points than others which should never ever be overlooked, but knowing what's important to the DMC industry and understanding (and appreciating) their place in the world is going to become at least as important as knowing when to sue over a comment on Facebook or over use of your jingle.

The DMC community has a lot to teach us, and vice versa. They deal with the real-world fallout of the advice we give and manage the consequences of the advice which we give. They make us smarter in the way we deal with crises and the deals we make on content and IP issues. Every now and again, they need to be stood up to and made aware of how much a particular decision could cost them if it goes legal, but let's face it-that's our job.

The fact is, though, that if Lawyers weren't here, the PRs would have to deal with the fallout of a negative story anyway. We add value to their process, and vice versa. The real challenge for the lawyers now is learning to work as part of a team, rather than the Striker. If not, we may end up either benched or simply screaming impotently at the game from the dugout.

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