Suppressing the press?

Superinjunction is a word that did not even exist two years ago. Now it connects the unlikely duo of former Royal Bank of Scotland chief executive Fred Goodwin and Manchester United winger Ryan Giggs.

Unless you've been on a different planet for the past few months, there's no need to detail the affairs they were hoping to suppress.

The issue for communicators is whether the success of Twitter users in scuppering their attempts to keep their affairs secret makes the legal route of information suppression too risky or pointless to continue to be an effective part of the armoury of reputation management experts.

The problem is that the modern-day information superhighway works like this. Superjunctions are different from ordinary injunctions in that they forbid the very mentioning that the relevant person has taken them out, as well as the information they are seeking to suppress.

To obtain them, however, the name of the individual or company seeking them has to be read out in court. Gossips then spread the word and thousands of people post the information on their Twitter accounts, relying on their sheer numbers for protection against being pursued for being in contempt of court.

The widespread knowledge that a certain person has an injunction then gives fuel to newspapers' attempting to have them lifted on the grounds that they are proving ineffective and MPs like John Hemming, who used parliamentary privilege to mention the superinjunctions issued by Goodwin and Giggs in the House of Commons.

It is a powerful combination that the law has yet to find a way of policing and it makes the legal route of reputation management increasingly treacherous. After all, chief executives and celebrities whose private lives do not fit with their carefully-groomed images stand to endure even more reputational damage if it becomes clear that they tried to use their wealth and power to suppress the truth.

So are there any communication professionals who are still prepared to advise a client to take out an injunction to suppress news of an affair?

There must be, since more than 60 individuals have injunctions outstanding. But they are not easy to find. 'Not with what has happened in the media over the last few weeks,' says Steve Earl, managing director of public relations agency Speed Communications, when asked if he would advise this course of action. 'There's now such intensive scrutiny that your reputation tends to be compromised more now by taking out an injunction than whatever it was in the first place. If something has happened, the best thing to do is to talk about the issue you're coming up against. That's better than trying to gag it unless there are genuine reasons like national security or public endangerment.'

His pragmatic approach is one that finds much support from senior corporate communication professionals with a background in legal or reputation protection issues. 'While a legal approach is always discussed when looking at ways to close down a misdemeanor, particularly when all around are in panic, even with the best lawyers in place the truth will always out,' advises Brian MacLaurin, founder and chief executive of public relations firm MacLaurin Media. 'Lawyers may buy some time but you are definitely not out of the woods. Inquisitive journalists, often dozens at the same time, will use every trick in the book to break the news first. We call it tree-shaking, and they're good at it.'

MacLaurin's advice to clients who want to pursue an injunction to prevent something appearing in the press is therefore: 'Save your money, and find a way to come clean in a controlled way that does the least damage.'

Then there are communicators who oppose injunctions on principle. Mark Allatt, the former head of corporate communications for accountancy group Deloitte and lawyers Bird & Bird who now runs Mark Allatt Consulting, says: 'My approach is to be open, honest, straight and early with the press and a superinjunction goes against all of this. I would therefore advise strongly against as it smacks of guilt and loses all sympathy that any of the media might have with your side of the story.'

David Bick, chairman of sports and corporate business consultancy Square1 Consulting, adds: 'If we are asked by a client whether they should seek a superinjunction the advice will almost certainly be don't.'

Bick believes that the notion that the media is prevented from reporting even an injunction's existence is a 'pernicious attack' on the freedom of the press, which in turn underpins the continuity of a civilised free society. 'I don't believe we have any clients who would want that,' he states. 'Such injunctions have also now been widely discredited by individuals who appear only to be suppressing details of their actual behaviour.'

However, this is a fast-moving field, with the very term 'superinjunction' being coined as recently as September 2009 by Guardian editor Alan Rusbridger.

Some commentators believe the legal landscape will change in response to the law-defying activities of Twitter users. Ross Gow, a former barrister who is now managing director of reputation management public relations consultancy Acuity Reputation, says: 'Understandably, the legal profession robustly observes that a few revelations on Twitter surrounding  Fred Goodwin's amorous dalliances does not change the fact that the vast majority of such injunctions remain intact. 'Similarly, some lawyers claim it's only a matter of time before the courts make an example of social media injunction-busters in an attempt to dampen online chatter.'

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Robert Paydon, partner at Fasken Martineau Reputation Management, adds: 'Such a move will alter the perception that users of social media can act with impunity in what has been seen as a lawless environment.'

This may not be the only change to the legal environment. Bick believes that English lawmakers need to take 'a long, considered look' at this area of privacy law with a view to providing a workable protection of individuals from wild, unsupportable allegations.

In the meantime, few law firms specialising in such issues are willing to discuss them. 'This is quite a sensitive matter for our firm,' says Carolyn Finn, communications executive at law firm Olswang. 'Quite honestly I think it is an issue that, as much as it would make an interesting article, is not a topic we can ever have comment on in the media, even from a corporate communications perspective.'

Schillings, the specialist media lawyers who handled Goodwin's case, did not return calls, while Carter-Ruck requested emailed questions and did not get back with answers.

Some communicators also find the issue too hot to handle. Matthew Freud, chairman of Freud Communications, and Mark Bolland, the former deputy private secretary to the Prince of Wales who now runs communications agency Mark Bolland & Associates, did not return calls on this subject.

Nor does David Yelland, the former Sun editor who is now a partner at financial public relations firm Brunswick, want to talk about it. 'This is not something I think I want to get involved in,' he says. 'We don't do any of that stuff. We just refer it on.'

So which communicators will speak out in favour of injunctions? Step forward Phil Hall, the former News of the World and Hello! editor who now chairs PR company PHA Media, and Max Clifford, the now disgraced PR man still best-known for acting as an agent to people selling 'kiss and tell' stories to tabloid newspapers.

Hall acted for former Royal Bank of Scotland chief executive Goodwin until about 18 months ago and, while he says he had nothing to do with the recent injunction, he is prepared to take out superinjunctions in certain circumstances. 'My view is that if something is in the public interest, you should certainly not even seek legal advice,' he says. 'But if it is not, an injunction is something that should be open to you, provided you are sure of each situation.'

Hall says he has advised clients to take advice from lawyers (who then made them aware of the potential for an injunction) in instances where newspapers were about to reveal that the wife of a well-known personality was having IVF treatment and where a client's baby was photographed screaming in a park.

In both examples, he successfully advised the client to instead take the matters to the Press Complaints Commission, which advised prior to publication that the stories should be not published. The PCC is very often a better route in such circumstances, he argues. However, he adds: 'It depends on what the circumstances are. The difficulty with being a lawyer or a PR person is that you don't know the whole story. Look at the Giggs situation. You think you're potentially protecting him against reputational damage from half truths but then you see there's a pattern of behaviour which brings his reputation into question. And, with someone like Fred, if his family is already aware of the allegations, what purpose does an injunction really serve?'

One PR agent adds: 'You just make sure it never comes out. It's the most effective way of doing PR. You have to know your clients almost better than they know themselves. If you know that someone is having an affair with someone you make absolutely certain there's no way it would come out in any way that can be proven. 'Often it's a question of stage management. You know both sides involved and make sure it stays secret. It's all about PR. You use your PR skills to stop things coming out.'

Corporate communicators may balk at taking this kind of intimate confidante role with their clients but Brian Basham, the former public relations adviser involved in the 'dirty tricks' law case in which Virgin Atlantic successfully sued British Airways for smearing its reputation, argues that it's time for public relations to reassert itself over the legal option.

'When it came to Fred and his foibles,' he says, 'a wise adviser would have pointed out that the dry legal arguments were bound to be drowned in the fruity sauce that is prurience and the stock in trade of the most powerful force in our society today, the red top tabloids.

'A wise adviser would have persuaded Fred that the story was bound to come out and would have devised a plan to control, delay, minimise, mitigate, come clean or run.'

Most of these alternatives have the advantage of handing the opportunity to control the situation back to public relations advisers and the results can be successful in the long-term results.

'Very often in my experience, if people just admit something and say they made a mistake and are sorry about it, it goes away very quickly,' says Hall. 'It's lying about it that takes them down.'

Gow agrees. 'The trend for superinjunctions is driven in part by a preference for taking legal advice over PR consultancy,' he says. 'But, in terms of killing media interest in a story, it is about as effective as giving your children the key to the sweet shop and telling them to just have a muesli bar. Journalists don't like being lied to and they don't like being gagged. Declare war on the press and, in the end, nearly always, you lose. It's much better to work with them and at least have a chance to own and shape the story, and to submit your version of events.'