“Disinformation and Litigation”: Maltin PR article for Chambers Global-wide Litigation Support Guide 2023, by Tim Maltin and James Lynch

Disinformation and Litigation

High-profile litigation is always a contact sport. Prominent litigants will see their cases placed under a microscope by journalists, with allegations entering the public sphere before they are tested by the courts. Though it may not be desired, media attention is a fundamental aspect of a free press, and reporting on legal proceedings is a key tenet of open justice.

Litigation PR focuses on the art of constructing a narrative around a court case, helping to steer the media interest in a case onto positive aspects for the client. Where this is not possible, damage limitation may be the main priority, with practitioners seeking to divert attention away from particularly damaging allegations made against clients.

Though legal cases rely on written pleadings, errors in reporting can still happen. Misinformation being published around a court case can be just as damaging as allegations made within a case, and sometimes even more so. Legitimate journalists and publications will of course amend such mistakes upon them being highlighted, but what if the “publication” has published incorrect information on purpose, or has been fed false “evidence”?

Spreading disinformation has become a widespread practice by malicious actors in many spheres of life. Campaigns have been particularly common in politics, in public health and around international events, but there is an increasing trend of such campaigns being undertaken during litigation, in an attempt to influence coverage from legitimate media outlets.

Campaigns vary in levels of sophistication and the resources behind them – going from securing the publication of articles written by non-existent people in small publications through to highly complex dossiers of fake but prima facie plausible evidence being sent to national and international media outlets.

Such campaigns will often seek to amplify damage to a client’s reputation with a view to pushing them towards settlement or to placing regulatory scrutiny on them to reduce their legal capacity to fully contest proceedings. Depending on the approach used in the disinformation campaign, the damage that this can cause may significantly outweigh any resource input from the responsible party, making it vital to understand how to deal with such efforts.

Fake Media Outlets

The first sign of a campaign will often be the appearance of Google Alerts from a publication that you have never heard of. Though it has likely been visited by few people other than those running the site, it is still able to be picked up by monitoring software, propagating disinformation to anyone with alerts for key search terms – such as employees at a client’s company, other stakeholders, financial analysts and regulators.

The first stage in tackling disinformation campaigns utilising fake media outlets is the rapid and effective identification of key indicators that the site is not what it seems. This allows the legal team to consider the optimal actions to take – defamation proceedings or otherwise – and communications teams to effectively undermine the legitimacy of the allegations to any journalists that may pick up on them. While it may be difficult to ascertain the party ultimately behind it, and satellite litigation can be a distraction from the main event, showing that there is a disinformation campaign underway against a client can have strategic benefits.

While no two campaigns are the same, there are certain initial hallmarks that many fake media outlets share, which can be used to cast sufficient doubt on the veracity of the website to stem the bleeding and minimise further coverage of their allegations.

Fake media websites will typically have no, or very limited, contact information. Usually, this will take the form of a generic info@ or contact@ email address, with an address (if included at all) that will often be a residential building. There will typically be no identifiable corporate entity behind the website.

More tellingly, the “journalists” supposedly working at the publication will often not actually exist, although their names may be very similar to real journalists, in order to create a legitimate air. Sophisticated campaigns may seek to seed fake social media profiles for these individuals, but many do not. If images are included for these individuals, they will often be stock images, or lifted from other websites.

Similarly, the social media profiles for the websites will tend to have almost no followers and a lack of engagement. While not a conclusive point in favour of a website being part of a disinformation campaign, it can provide strong supporting evidence.

More in-depth research can reveal the sources of articles published on such sites. Typically, they will draw from syndicated feeds, or even directly lift copy from publications from other countries, sometimes running it through translation software to make this less immediately apparent. Identification of this can be instrumental in showing to legitimate media outlets that they should not treat the website as a source for stories, and can help shut down efforts from the other side to push their disinformation into the legitimate media landscape.

Weaponisation of Legitimate Websites

Other campaigns may utilise legitimate websites that accept submissions from editorial or opinion piece writers. These websites are typically relatively small and serve as a portal for thought leaders to comment on areas of their expertise. With many submissions, they may be unwittingly used as pawns in disinformation campaigns to attack the reputations of litigants.

While articles in such publications may be by-lined by legitimate individuals, disinformation that is published in these will often utilise pen names or entirely fake personas, as is the case in fake media outlets. However, there will be real editors behind these publications who are likely to be willing to engage with amending or removing false and defamatory information.

In some instances, however, these publications will be actively complicit in disinformation campaigns. They may treat the allegations that they have been sent as having come from a legitimate source of information, and publish them under their own staff’s names. This may sometimes be part of a campaign of paid news, and sometimes a desire to “break” a news story before larger publications. In the former instance, appeals to have fake information removed are unlikely to be successful. In the latter case, there is a reasonable possibility that the publication may retract its article, depending on the jurisdiction in which it operates and its relationship with the party that placed the story, provided a compelling argument to do so can be made.

Hack and Leak, Anonymous Dossiers and Dark PR

In particularly contentious matters, some parties may seek to secure an advantage by using any and all possible avenues. Such efforts will throw morality and legality to the wind, and are particularly difficult to combat. Undertaken in the shadows, such strategies may involve the wholesale hacking of a party and their associates’ private data, pretext calls to secure confidential information from banks and phone providers, and the compilation of dossiers full of fake information to be sent anonymously to journalists.

Such efforts are more likely to target mainstream national or international media outlets. The time and energy – not to mention illegal activities – required to undertake a campaign of this complexity will often rely on securing coverage in a much larger outlet to justify the financial outlay of the initial work. While these publications are more likely to offer clients a right of reply, once they have reached this stage they are unlikely to be dissuaded from reporting on the allegations.

The flip side of this coin sees illicit efforts to remove legitimate reporting on wrongdoing. Tactics deployed by unscrupulous individuals attempting to silence coverage against them include Distributed Denial-of-Service (DDOS) attacks being made to temporarily prevent websites from functioning, overblown threats of defamation claims made against publications without the legal budget or case to contest proceedings, and sometimes even direct intimidation of journalists.

Countering Disinformation Campaigns in Litigation

A rapid response to disinformation campaigns is vital, whatever form they take. Ensuring that a robust communications strategy is in place from the moment that litigation is contemplated can help ensure a team is on hand, briefed and prepared to handle crises rapidly. A candid conversation should be had regarding the client’s experiences with the counterparties to determine the actions that they may seek to take during the litigation, which can allow communications specialists to put additional monitoring in place to ensure attacks are picked up as quickly as possible.

Any journalists already following the case – and therefore likely wider news around the client – will know who to reach out to for comments on the new allegations. In combination with rapid research to show that the publisher of the allegations is false, this can help head off further coverage at the source.

While it is likely that disinformation campaigns will make deliberately wild and false allegations that are necessarily hard to disprove by reference to tangible evidence, ensuring that robust communication protocols are in place will minimise the damage.

Undermining the source of the allegations is often the optimal approach to preventing their proliferation. Showing that a publication or source is not to be trusted can be challenging but helps address the root cause of the disinformation campaign, rather than constantly seeking to fight fires each time a new false allegation emerges. While new sites can be found, or set up, being able to point to previous disinformation efforts targeting a client can give journalists pause in reporting on further “stories” emerging from similar sources.

Ultimately, if the opposing party in litigation is resorting to a campaign of dirty tricks, it highlights how worried they are about the upcoming proceedings. Presenting journalists with a stronger narrative around the case itself and focusing on the reputational weaknesses of counterparties can turn the tide – providing information to counter the disinformation campaign in much more prominent, well-respected publications.

Tim Maltin, Managing Partner, Maltin PR

James Lynch, Partner, Maltin PR

This article was first published by Chambers and Partners, here.