Top Five Legal Tips For Surviving A PR Crisis

The recent seismic shift in awareness brought about by the Black Lives Matter movement has thrown many brands into controversy overnight. In this piece, Clint Fillipou and Heidi Bruce, Principals of Anisimoff Legal, an advertising and media legal specialist firm, join B&T to discuss these issues and look at the best ways to diffuse this kind of PR bomb.

Seemingly each day there is a new racism scandal and another brand in the headlights. At the same time, brands and brand managers that legitimately care and want to show their support can be hamstrung from fear of looking opportunistic, or of creating their own PR storm.

With these big changes in what is, and is not, considered socially acceptable, a growing list of brands are being called out as being insensitive and pressured to change. Other public scandals have turned brands into media spectacles that need to be handled in a way that is in tune with the current social environment. It is the first rule of PR – prevention is better than cure. And that’s really useful and everything, but what happens when a PR bomb goes off in the middle of a recession, during a pandemic, seemingly out of nowhere?

In the current emotionally and politically charged climate, what are some of the more consistent sources of PR dramas, and what is the best way to protect yourself legally?

Brand problems

The current Black Lives Matter movement is raising many questions for brands, some out of nowhere, but other brands should have definitely been expecting for some time. Clint Fillipou has advised numerous large brands recently on PR and brand issues, arising from an increasingly politically correct (PC) commercial landscape.

“From a legal perspective yes, prevention is better than cure, and that will always be the case.  What we consistently see is that our clients with the strongest brands before crises are generally able to maintain that strength during a time of crisis, provided a few simple strategies are implemented,” Fillipou said.

A growing list of existing brands have faced turmoil with their names or insignia linked to historically racist or oppressive icons. Colonial Brewing Company and Coon Cheese have faced pressure to change their names, Nestlé has announced a renaming of ‘Redskins’ and ‘Chicos’ and Kellogg’s has been accused of racism, for promoting Coco Pops with a monkey.

Many of these brand insignia and names were probably prime candidates for a refresh for some time. For other brands the PC controversy has hit more out of the blue. Brands that survive these PR crises all display consistency of response and calmness in delivery, and an ability to not jump at shadows, all of which can be very difficult in the face of the hellfire that can be a PR storm.

How to avoid this sort of issue in the first place?

“It goes without saying that you carry out strong brand due diligence before adopting a brand, with an IP specialist firm, so you know what you are looking at beforehand. However recent events have shown us that community mindset and society expectations can shift rapidly, with the Me Too movement and now the Black Lives Matter movement,” said Bruce.

“What may be acceptable one minute, can fall loudly out of step with social (and consumer) sentiment the next. So it pays to conduct brand audits over time and check your brand is still in line with the current climate, and stay ahead of the game.

“Brands that see a PR issue coming and get out in front of it, can diffuse the situation more successfully than trying to weather a storm that is already hailing down on them.”

Putting your head in the sand, it seems, is no longer an option.

There can be hidden traps with how a brand translates into other languages, any meaning with regional colloquialisms, and terms that may be common in other markets but not used so much in your target market. These can be ticking time bombs for later.

The word ‘Pajero’ while the name of a car, is infamously also a Spanish slang term for ‘wanker’. Similarly, Saputo Dairy Australia, owner of the “Coon Cheese” brand for example has made it clear that the name “Coon” was selected in recognition of an American food scientist Edward William Coon whose patented ripening process (the “Cooning Process”) was used to manufacture the original Coon cheese product around 100 years ago, but questions still remain as to whether the name is appropriate in 2020.

Third-party problems

Another situation playing out more regularly in these times of shifting sentiment, is where a brand ambassador causes a major storm, or an old talent-related event resurfaces.

Sunrise host Samantha Armitage and commentator Prue MacSween were involved in a segment discussing children being removed from Indigenous families for their own safety in 2018, this is again in the headlines with new racial discrimination action looming and court papers yet to be filed. While always slightly risqué, Chris Lilley’s characters across various television programs (including Summer Heights High) have become major problems for Lilley overnight, with sentiment turning strongly against his Tongan schoolboy character and others he played in varying degrees of blackface or ‘yellowface’.

Where you have positioned your brand to be associated with a third party like a sports team or brand ambassador, you can also be drawn into scandals very quickly and need to respond to a raft of legal and PR problems simultaneously.  What legal options do you have if the proverbial hits the fan?

Let’s say your music artist influencer is involved in a graphic sex scandal, or your football player talent is charged with domestic violence, or accusations (or worse videos) emerge of sexual misconduct.  Or, your brand ambassador takes sleeping pills and tweets something racist overnight.  You wake up in the morning and see a tweet or a notification pop up in your newsfeed and your heart skips a beat, and you know you are about to have a shocker of a day. What do you do first?

Anisimoff Legal has 5 top tips for successfully managing this sort of PR crisis:

1. Create your war room

While dealing with frontline PR problems is largely the domain of PR agencies, stronger brands are frequently seeing the value of engaging their marketing and PR specialist legal counsel in their “PR crisis war room”, as early as possible, to work as part of a coordinated team along with the brand’s agencies. Why? Because many of the problems have partially legal solutions, and may create other legal repercussions, say Clint Fillipou and Heidi Bruce.

2. Check your contracts

Fillipou recommended: “First things first – find your sponsorship/ambassadorial contract and brief your lawyer on what has happened straight away, before issuing any press releases, responding to media or contacting the talent. If you don’t have a contract, you are off-contract or still negotiating terms, that may be ok too but you need to check your legal position and be armed with your legal options. A wrongful termination for instance could leave you with an even bigger legal hangover. If it is well-drafted, your agreement will have a ‘serious social misconduct’ clause, that gives you the right to terminate the contract where the third party’s conduct is inconsistent with your brand’s values or dilutes the reputation of the brand.”

3. Assess the facts against your brand ideals

Ascertain the facts – how serious was it, have charges been laid or is it an accusation, does the talent admit it, is there another side to the story or mitigating circumstances? Getting a good sense of the seriousness and the likely media impact will help formulate your best response strategy.

Assess whether the event is one that is inconsistent with your brand ideals. In the above examples, this is likely to be the case, but not always. There may be opportunities for a positive or creative response. Depending on the nature of the event, you may decide that immediately terminating your relationship is the way to go.

4. Craft your message

Engage with your agency about crafting your message, while being careful not to expose your brand to other legal risks like defamation, misleading conduct or other such issues.

Bruce said: “It is always possible that despite acting on the best available information, the brand may have acted too swiftly or the story may continue to unfold – you do not want to come out too strongly and denounce a brand ambassador for misconduct if it later turns out they were innocent. Outside of any contract issues, you may also have a defamation claim on your hands.”

5. Check-in with your long term strategy

Again, prevention is better than a cure and that involves having your lawyers draft your contracts well before there is an issue. Bruce said: “You want robust social misconduct clauses in place that give clear rights for a scandal and clear language on what triggers them. You also want restrictions on public discussions of the brand after the contract ends, so you maintain control over the long term story well after the event. It is more important than ever to have a clear brand identity, and plan for events that threaten it. Marketers that know what their brand stands for, can articulate that in the media and can respond with clarity and empathy to those inevitable changes, will do best in these times.”

To discuss a related media or advertising legal issue with one of the experts at Anisimoff Legal please contact us here or email us at enquiries@anisimoff.com.au