The Johnny Depp-Amber Heard defamation saga has drawn fresh attention to the concept of trial by media. As the BBC reported, the fact that the American trial was watched by millions on television — many of whom turned to social media to express support for Depp — meant Heard comprehensively lost in the court of public opinion, and in front of the jury.
Meantime, companies need to be aware of another legal-based threat to reputation: trial by lawyer’s media statement — where lawyers “pitch” a potential class action before it is even launched and compliant media play along with the story.
It’s nothing new that plaintiff lawyers persuade friendly reporters to promote a potential class action that may or may not see the light of day. But that tactic seems to have been taken to a new level with last week’s report of a purported class action against NOVA Entertainment.
In a story branded “exclusive”, Variety last week reported that “More than a dozen former employees of radio stations owned by NOVA Entertainment are planning a class action lawsuit against the Lachlan Murdoch controlled company”.
The report then declared: “It is understood that at least 15 former employees are part of the proposed lawsuit … alleging claims of workplace misconduct including bullying, harassment and discrimination.”
Apart from describing the lawsuit merely as planned, or proposed, and using the vague phrase “it is understood”, Variety quoted unnamed sources claiming that “while the majority of claims are mostly focused on one senior executive, there are some allegations involving multiple other NOVA Entertainment leaders”. Unnamed sources also boldly asserted the lawsuit “could reach the courts within weeks”.
Deep in the story, the privately owned company, which operates the NOVA and Smoothfm radio networks and other radio stations, denied any knowledge of such a lawsuit:
NOVA Entertainment is not aware of the filing of any class action or other legal proceedings related to alleged workplace misconduct. NOVA Entertainment has not been served with any court documents nor has it been contacted by any legal firms in relation to any proposed class action.
Notwithstanding that the lawyer promoting the class action was openly inviting other respondents to come forward with complaints against the company, other media outlets — including Mediaweek, AdNews, Mumbrella and the Daily Mail — carried much of the Variety story almost verbatim.
Without commenting on the merits of this particular case, the first question is whether generating publicity for potential lawsuits is a legitimate role for the news media.
Then there’s the appropriateness of naming senior company employees in a speculative report about a proposed lawsuit involving alleged workplace misconduct “mostly focused on one senior executive”. Such an allegation against an undisclosed individual can have some obvious legal risks, as Amber Heard found when she claimed domestic abuse in an op-ed but did not name her former husband.
In this case, it would appear other news outlets were more cautious and perhaps better advised than Variety.
The original Variety story named NOVA owner Lachlan Murdoch and two local NOVA executives, then added a disclaimer that they were not suggesting any wrongdoing by those individuals or any other NOVA Entertainment executive.
By contrast, Mediaweek, AdNews, Mumbrella and the Daily Mail all chose not to include the names of the local NOVA executives published in the original story, though Mediaweek mentioned that NOVA is owned by Lachlan Murdoch’s investment company and added that it was not suggesting any wrongdoing by him.
Not to be outdone, the Daily Mail’s version included photos of three of the NOVA network’s top presenting teams, carefully adding that the eight hosts depicted were “not accused of any wrongdoing”.
It even included two photos of Lachlan Murdoch and commented: “The news comes after Mr Murdoch, who is not accused of any wrongdoing, flew into Sydney on his $90 million private jet last week. Daily Mail Australia is not suggesting his visit to Australia is related to any proposed legal action against NOVA Entertainment.”
Whether or not the reportedly planned class action constitutes “news” is certainly a matter of opinion. But there is no doubt it’s a telling example of a plaintiff lawyer’s publicity machine in action and the consequent risk to corporate and individual reputations.
