“You are entitled to your opinion. But you are not entitled to your own facts.”
S. Senator Daniel Patrick Moynihan,1927 – 2003
At its core, the protection and recovery of reputation is driven by facts. In the United States, as well as in most Western legal systems, a statement that is factual is rarely held to be defamatory. Statements in any form of media that are framed as opinions (that is, the personal or institutional view of the speaker or writer), rather than as statements of fact, enjoy wide legal protections. In the United States, the right to voice, write and publish an opinion on any subject is enshrined in the First Amendment to the Constitution and has been consistently protected by the courts for more than 225 years.
However, when a public statement, article, posting or broadcast is false—not just unfair, offensive or embarrassing—rapid access to the relevant facts will almost always determine whether an assault on reputation can be quickly reversed. Simply stating that an allegation is not true—or that the publication cannot prove that a story is true—has nothing to do with establishing facts. Rather, the facts needed to successfully confront a published attack on reputation must be tangible and credible. A tangible fact is one that can be figuratively held in your hand and may be a traditional printed or electronic document, a photograph or other record of an event, or the sworn testimony of a witness. A credible fact, in the world of protecting and recovering reputation, is one that can be believed to be true without reliance on any other source. A photocopy of some printed text that bears no date or signature may be a tangible fact, but one that is entirely lacking in credibility. On the other hand, an original document signed by a corporate officer and filed with a government office in the ordinary course would be both tangible and credible.
The target of an attack will usually have superior access to the facts. But whether that information can be effectively used may depend on the nature of the false publication. For example, if a newspaper reports that a prominent businessperson met with a leader of organized crime at a hotel in Los Angeles on a particular day, but the target of the claim can show that he was at a public board meeting in London that same day, the attack on reputation can be quickly neutralized. On the other hand, if a news magazine reports that an intelligence or law enforcement agency is investigating a U.S. company for alleged ties to terrorism, the relevant critical facts—whether such an investigation is actually happening—will be much more difficult to establish.
When a published attack on reputation is imminent, or has already taken place, quick action to preserve documentation that will establish key facts is critical. Common steps taken to achieve this objective may include suspending document destruction or record deletion protocols, obtaining sworn witness statements under an attorney’s supervision, and conducting electronic searches of public and private databases for relevant factual material that may be lost with the passage of time. Where the situation is more complex, or the relevant information is less easily obtained, a reputable investigative or risk management firm may be useful in establishing the requisite factual foundation to effectively counter a sophisticated reputational attack.