Reputation Management
What we saw in 2023
De-banking The closing or refusing of bank accounts to political and/or public figures came under the spotlight because of Nigel Farage’s Coutts account being closed and the intense media fallout, culminating in the resignation of NatWest CEO Dame Alison Rose.
Strategic Lawsuits Against Public Participation (SLAPPs) Conversations regarding Strategic Lawsuits Against Public Participation (SLAPPs) and an “anti-SLAPP” movement only grew in 2023. This included the introduction of a provision in the Economic Crime and Transparency Act 2023. This provision paves the way for early strike out of claims that are intended to restrain the publication of information relating to economic crime, where the claimant’s behaviour is intended to impact upon the defendant in a way that goes beyond the ordinary cut and thrust of litigation. Both sides of the SLAPP debate have been vocal. Those in favour of further legislation are concerned about the perceived use of litigation to intimidate journalists and others from exercising rights to free speech, whereas the other side of the debate reflects on whether the issue is overstated and whether there are in fact sufficient existing mechanisms in the legal system.
ZXC v Bloomberg Scrutiny of allegations of serious misconduct by high profile individuals was a major theme, and a key area of interest for the media. Examples (albeit all very different) included the coverage involving Huw Edwards, Russell Brand, Philip Schofield and Bernard Looney (former CEO of BP). The media’s ability to report these cases is considerably greater before an individual is under investigation by the Police and where an independent journalistic investigation has been conducted, due to the 2022 decision of the Supreme Court in ZXC v Bloomberg.
Generative AI and media law Conversations around generative AI and media law began to really take hold, with some reported cases being commenced in the US, and a claim relating to Google’s Bard in the offing in the English High Court.
"In the past much journalism has consisted of bringing together information sourced from the internet, papers, or databases. That is no longer adequate. Thanks to large-language models, almost anyone will soon be able to sythesise reports with the minimum of fuss. As a result, the focus of successful journalism needs to shift towards original content that depends on access, creativity and craft—including interviews, data analysis, editorial discussions, and more."
Deputy Editor British Newspaper
2024 trends and insights
The Online Safety Act 2023 will start affecting user-to-user services (such as social media platforms) and search engines, as well as their users, when the Secretary of State implements regulations and Ofcom publishes the necessary Codes of Practice, bringing the vast majority of the Act to life. The Act and any changes in behaviour by platforms will be subject to considerable scrutiny when it comes into force in 2024. Users are likely to look to exercise their rights in relation to online content to an even greater extent, and there may be an ancillary proliferation of litigation against social media platforms/search engines in a new age of greater accountability (even though the Act does not itself create new civil causes of action).
It seems likely that complaints and/or litigation involving inaccurate and/or defamatory information being published by generative AI systems (in the form of “hallucinations”) will increase in 2024.
Deepfakes and similar generative technology (not always, but often malicious) will almost certainly increase in prominence and may spread even more throughout various industries (such as the entertainment industry) and will undoubtedly become an issue when it comes to elections, conflict and wars as a method of propaganda. 2024 is scheduled to be the biggest year of elections in history, and there is considerable concern about the integrity of elections as a result of manipulated digital content.
Climate and ESG will continue to be very high on the agenda for corporates and senior executives, as climate and governance in particular remain major issues of concern to the media and wider population. ‘Greenwashing’ allegations in the press, and litigation relating to organisations’ approach to climate change, may become even more prominent. Personal conduct of senior executives is also likely to remain in the spotlight as #MeToo investigations in a multitude of sectors continue.
Debanking issues will continue due to the surge in people complaining about it. The financial ombudsmen is introducing new regulation in terms of banks having to provide reasons for it.
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