Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 45 44 / Venable Media Diplomacy and Defense Although every situation is different, here are some effective strategies for mitigating negative press: • Develop a protocol in advance, before your business is contacted by a media outlet or reporter (e.g., include a dedicated press phone number on your website and train customer support personnel on where to refer calls). • Research the media outlet, reporter, and recent stories to assess the likely content and tone of the anticipated story. • Engage the media outlet or reporter to understand the likely content of the anticipated story. • Present how and why the information relied upon is not accurate or reliable or would mislead the public if not presented together with other helpful information. • In written correspondence, memorialize the flaws in the information relied upon, as well as helpful information that the story should present. • Recognize that your correspondence may be included in the story, and therefore should be written in an even-handed, measured manner. • Where necessary, prepare a client representative to be interviewed with mock interviews, and clear, simple, and well-founded talking points and counter- messaging. • If faced with a product “attack” or a “will it work” story, provide a demonstration of the product following product instructions to show proper product efficacy. • Set and enforce ground rules for any interview (e.g., that a television interview be conducted live on-air to prevent the possibility of selective editing). • If a published story contains false factual statements, work with legal counsel to develop a strong written demand for a retraction or substantial revisions. • Use online reputation management techniques and public relations professionals to minimize the negative publicity, discredit the story, or share the client’s positive story. Roger A. Colaizzi rcolaizzi@Venable.com +1 202.344.8051 Negative media coverage can cause reputational harm for brands, retailers, and online advertisers. Reporters who call or show up at your office are usually looking for a “gotcha” story to publish. This scenario requires a well-prepared and measured response that forces the media publisher to comply with the law. While the First Amendment provides broad protection to all forms of media, it does not permit reporters to ignore or act with reckless disregard of the truth. Investigative journalism appeals to the public, and as media outlets compete for viewers, readers, ratings, and clicks, the desire to entertain or rush to publish can overtake accuracy and ethics. Many outlets engage in ambush-style journalism, where adequate investigation and fact-checking are often poor or nonexistent. Such stories can mislead the public and harm a business’s reputation. Engaging in effective dialogue and counter-messaging can persuade media outlets not to publish or to shorten a story, and ensure that a story is fair and balanced.