From time to time, almost every company will be faced with unfavourable to downright harmful media coverage. What should you do if your company is portrayed in the press in a bad light? What steps can you take to avoid this? And is a right of reply really a good idea?

Long before I started working in PR, I sometimes heard the phrase “There’s no such thing as bad publicity”. The theory behind it is that as long as people are talking about you, it’s a good thing. Even if terrible things are being said or written about you or your company, it doesn’t matter because the people who hear about it will remember your name. And this keeps/makes you relevant. In some cases, this is quite correct. One example is the recent furore surrounding the site RichMeetBeautiful, which puts sugarbabes and sugardaddies in contact with each other. Nobody had ever heard of the site before its name ended up in the news. Of course, there are numerous other examples. The common denominator is the fact that, as a result of people talking about them, they become visible to an audience which would otherwise never have heard of them.

In most cases, however, companies always try to be featured in the media in a positive light, e.g. by means of proactive communication about their unique strategy, well-considered vision, outstanding products or services, successes, good financial results and so on. However, communication with your target audience via the media is not always the same as free publicity. After all, this is where editorial freedom comes into play. As soon as you communicate with a journalist, you give him or her the chance to make a value judgement. And if a product or service fails to meet the journalist’s expectations, the outcome could well be negative. For example, whenever TestAankoop (a Belgian non-profit organisation which promotes consumer protection) compares different products, the test always leads to one best and one worst product.

 

What should you do if you get negative coverage?

The bad coverage may also hit you out of the blue: a clever investigative journalist might uncover disappointing operating results, your company might be going through a crisis, your CEO could be caught with his hand in the cookie jar, etc. It used to happen more often, but these days we still hear of companies demanding rectification or a right of reply in the event of bad coverage. However, this is never a good idea as the first step. After all, a rectification or right of reply isn’t exactly going to benefit the relationship between your company and the media organisation concerned.

  • In the event of negative but accurate reporting, the motto is as follows: don’t react to the media but work towards a solution, improve your product or service and make sure that you have an answer on hand.
  • If the reporting contains inaccurate information: first, provide the correct information. Then try to leverage this annoying occurrence and see it as an opportunity to strengthen your relationship with the journalist, and to allow him or her to get to know your company better, etc.
  • In the event of unfair reporting or a biased article: discuss it with the journalist or in the second instance with his or her chief editor. Once again, try to transform the bad news into something positive. Make clear agreements for future reporting and if possible try to reach an agreement which entitles you to check any subsequent articles before publication. If the problem persists, you could still opt for a right of reply or a lawsuit.

 

But what exactly is a right of reply?

If your company suspects that a journalist has included incorrect information in a piece with the (implicit) aim of causing harm, you could consider asking the media organisation for a right of reply. A right of reply is a special kind of legal liability for news media and is actually the legal equivalent of the professional and ethical obligation for both sides of the argument to be heard.

 

Rules applicable to a right of reply

  • Written press: in principle, you can ask a publication for a right of reply as soon as you are mentioned or even implied in it. However, this must happen within 3 months of the publication of the article. The reply may contain 1000 characters, or double the number of characters in the article to which you are responding. It must be printed in the same position and in the same font as the disputed article.
  • Audiovisual media: the rules for a right of reply in audiovisual media are stricter: here, the disputed broadcast must have had an erroneous or offensive nature and a personal interest must also be specified. The right to reply lapses if the producer spontaneously provides satisfactory rectification. The reply must be demanded within 30 days of the broadcast. The text of the reply may contain 4,500 typographical characters or take 3 minutes to read.
  • A right of reply is also subject to various other rules. It must always be directly related to the disputed text or broadcast, may not be offensive itself and must not needlessly involve third parties. A periodic publication must print the reply in the first edition which is published three working days after receiving the reply. Although the editorial team can add a rejoinder, it is also possible to submit a right of reply in respect of this rejoinder. In the case of audiovisual media, the reply must be included in the first broadcast of the same type. Here, no rejoinder or comments are permitted. If the media organisation refuses to publish or broadcast the right of reply, you can initiate an urgent procedure as a “complainant” with the president of the court of first instance. You may also be granted the right to a correction.

 

Not a guaranteed solution

To summarise, this means that you can request a right of reply if you feel that you have been treated badly or disadvantaged by a publication, but this published right of reply does not guarantee that the problem will be resolved. After all, it can take days before a right of reply is published (or broadcast), and even then the journalist may decide to formulate a rejoinder. This could well rekindle the (now often extinguished) fire, causing matters to escalate anew, perhaps leaving you exposed once again.

 

Therefore I would like to suggest the following rules of thumb

  1. If you get bad coverage, use your common sense and try to transform the unpleasantness into an opportunity. For example, ask the journalist if he/she would be interested in getting to know your company better and use this contact to start building a constructive relationship with that journalist.
  2. Discuss the problem directly with the media organisation, in the first instance with the journalist responsible for the item and in the second instance with the chief editor.
  3. Try to reach an agreement in consultation with the media organisation.
  4. If nothing helps: ask for a right of reply, but consult your lawyer first to ensure that everything takes place in accordance with the rules.
  5. If the matter escalates, you can also initiate legal proceedings against the media organisation (via the court of first instance)
  6. The last resort is a media lawsuit (before the Court of Assize)

 

But how can you avoid having to request a right of reply?

Prevention is better than cure, and good agreements make for good friends. These proverbs can certainly be applied to your relationships with the media. Establishing an open, sustainable relationship with the journalist can already help you to avoid numerous misunderstandings. The same applies to reaching good agreements with a journalist after an interview, or asking whether you can check the article in order to correct any (factual) errors.

A practical example

Earlier this year, one of our clients asked if we could prepare a right of reply. Despite the company’s willingness to provide insights into complex material, the reporting continued to include serious errors which proved detrimental to the company. As a result, the relationship with the journalist in question was also extremely tense. The right of reply was drawn up and sent, but – after discussion – was not actually published. It ultimately led to a discussion between all the parties concerned, including the chief editor. The result: the reporting has now become much more balanced and we are given a heads-up before publication. Ideally, you will achieve the same result without involving a lawyer, but on rare occasions you may have no other option.

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