WHEN YOU SHOULDN'T COMMENT AND WHY



WHEN YOU SHOULDN’T COMMENT AND WHY

I take a very positive approach to engaging with the media and responding to media enquiries. In the vast majority of cases I encourage people and organisations to respond to the media.  Even if the news is bad or the situation is challenging there are still strong reasons to make comment. The key to making that decision is being able to identify a positive outcome from any engagement, creating a plan that gets you to that objective and believing that it can be achieved.

However, there are situations where it may not be appropriate to offer a full and detailed response to a media enquiry.

Criminal investigations or when the legal process is taking place; It would be wrong to comment where a police or regulatory investigation ongoing, or during court proceedings where matters are considered sub-judice. Any comment might potentially influence those involved with such situations or may constitute interference with due process. Such comments could be an offence in themselves, leading to contempt of court proceedings. In these circumstances refer the journalist to the police media team.

Commercial in confidence; This may be around the financial activities of a business and might include decisions around takeover, merger or sale of a business or investment decisions.  This is especially true for listed companies where share price might be affected. Sharing sensitive commercial information with a third party might be construed as insider trading. The Market Abuse Regulation (MAR) is the relevant legislation and came into force in July 2016. The Financial Conduct Authority take the management of financial information very seriously.

Where an injunction is in place; The use of injunctions has become increasingly common over the last two decades. In a media law context, primarily injunctions are most often granted to an individual or an organisation to prevent the publication of private, confidential, defamatory and/or inaccurate information or to require the removal of online content. If an injunction is in place then you can use that as a reason not to comment.

The above all have a basis in law and are fairly clear cut however there are cases where it is more about ethical considerations and there are some grey areas.

Personal confidentiality; All employees and those within the healthcare system as patients have the right to privacy. This is especially true in health but also industrial tribunals or where someone is going through disciplinary action.  An extension of personal confidentiality would be during an ongoing incident where relatives may not have been informed of an injury or the death of a family member.  There is sensitivity around when names and details are released to the media and the families must be informed first. If in doubt don’t go there.

Announcements affecting livelihood; Where there is an announcement affecting all employees such as redundancy notification it is important that employees should be told first. This is not enshrined in law, but it is good practice, unions and workers would expect this and journalists respect that they should wait their turn. 

ACAS are very keen that during an industrial dispute the parties involved don’t use the media to promote their cause or to rubbish the stance of the opposition as this rarely helps the negotiating process. This, it must be said, is frequently ignored.

Industry or sector issues; If your organisation is within a sector that is taking criticism and you are approached for comment don’t let your organisation become a lightning rod for criticism of the sector. It is absolutely fine to direct enquiries to the trade body or professional organisation that speaks on behalf of the sector. In addition judgement needs to be applied around situations where your comment might embarrass a trusted or valuable partner and damage relationships.

Planned announcements: Finally, if you are scheduled to make a planned announcement at an event which has been months in the planning it is pointless pre-empting the news by speaking about it ahead of your show as it rather spoils the event!

The key strategy to declining to comment is to explain the reasons behind your polite refusal rather than failing to respond to a request or uttering the dreaded, “No comment!” Journalists understand there are times you cannot say anything – although it may not stop them asking questions!

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