Given his well-earned reputation for playing fast and loose with facts, most who are not on the MAGA train tend to assume anything uttered through Donald Trump’s pursed lips is likely to have little if any resemblance to truth.
Still, when the Wall Street Journal published a report claiming the 47th US President had sent Jeffrey Epstein a sexually suggestive birthday message – accompanied by a crude drawing – he protested his innocence, labelled it a fake, and dropped a $10 billion lawsuit into the offices of the paper and Rupert Murdoch.
Trump is doing everything he can to make this story disappear, with his attempts to shift the narrative resulting in a series of questionable claims and sceptical headlines. Despite all of this, the story shows no sign of going away.
When the lawsuit was filed, legal experts were quick to question both the likelihood of a successful outcome and the wisdom of pursuing it in the first place.
On the surface, this appears to be a textbook case for legal action. The Journal did not publish the letter itself, and the question is: did it provide conclusive proof that it existed? A reputationally damaging allegation is made against a high-profile individual, and that individual seeks redress through the courts. Seems open and shut.
But beneath the surface, there’s a far more complex question: When is it strategically wise to litigate, and when is silence the smarter play? This is something that, at its core, is about reputation – both in the personal and brand sense.
There is a need to combine balancing the court of law and the court of public opinion, something which often sees legal and public relations professionals go toe-to-toe. And of course there is no simple answer; but there are considerations.
One of the most important, especially when it comes to media strategy, is this – when faced with a potentially damaging report, don’t assume that litigation will make the matter go away. It might be the catalyst for a whole mess of trouble, with things that would have been better kept out of the spotlight instead taking on a life of their own.
Before Trump filed his suit, the Epstein letter story had largely flown under the radar. After the lawsuit, it exploded into global headlines. What might have remained a single-day report became a viral narrative: a textbook example of the outcome communications strategists warn clients about.
For public figures, litigation is not simply a legal process. It’s a complex and sometimes very drawn-out communications strategy with serious short and long-term implications.
In many ways, a favourable outcome in the courts might be outweighed by the longer-term damaging implications. Public perception is shaped quickly and emotionally, and the court of public opinion often delivers its verdict long before any judge or jury does.
And when it gets to the nitty-gritty, lawsuits invite further scrutiny. In discovery, both sides are compelled to disclose documents, communications, and associations, and that means any litigation carries a substantial risk of unearthing damaging material – potentially including material not directly related to the litigation itself.
In Australia, former Attorney-General Christian Porter faced similar consequences when he sued the ABC over an article referring to historical rape allegations. Though the article didn’t name him, the legal action inadvertently confirmed his identity. Public scrutiny intensified. The legal action was eventually settled, but by then, the public had formed its conclusions.
There is an essential difference between litigation in Australia and the US. American public figures must prove that a defamatory statement was made with actual malice, meaning the publisher knew it was false or acted with reckless disregard for the truth.
Australia’s defamation laws, which are more in favour of the plaintiff, do not require proof of malice. Instead, the publisher must prove the truth of the statements made on the balance of probabilities.
Notable examples include:
- Geoffrey Rush, who won $2.9 million after The Daily Telegraph published unproved allegations of misconduct.
- Clive Palmer, who has successfully sued for derogatory comments in media columns.
- SAS VC recipient Ben Roberts-Smith, who ultimately lost his case, showed how defamation trials in Australia can command major public and legal attention.
So, given all the risks, why litigate when saying nothing and riding it out might be a better strategy? It’s a question that applies not just to public figures, but also to organisations and CEOs – and the path chosen often comes down to whether or not the offended party is prepared to take advice.
A good example can be found in the publication of an article that, while not defamatory, contains an error or is perceived by a CEO as unfair. The immediate response might be to seek a correction, yet all it does is perpetuate the story for another day when it might well have been finished.
In the Australian media landscape, genuine cases of malicious reporting are rarer than a truthful Trump statement and going straight for the litigation button rarely delivers a positive outcome. If protecting brand or personal reputation – and ensuring an organisation can continue to operate successfully – is indeed the end goal, a far better approach is to look at the situation through a strategic communications lens.
A good communications adviser will consider the issue, the risks and the potential pathways to mitigation, which may include:
- Issuing a clear, calm denial through trusted media or personal platforms (e.g. a press statement or social media)
- Changing the narrative by launching a new initiative, making a high-profile public appearance, or promoting positive news
- Using surrogates – respected third parties who can credibly challenge the claims without the individual appearing defensive
- Letting time pass – news cycles are short, and the public moves on quickly when there’s no fuel for the fire
These approaches often protect reputation without reigniting public interest or risking the exposure of sensitive personal information, or incurring long-term damage.
Of course, there are times when litigation does make sense, but generally only as a last resort. This includes addressing allegations that are demonstrably false and harmful, where there is no other way to correct the public record, and there is a clear chance of success, after weighing up legal and reputational risk with expert advice.
These decisions are difficult, and will involve challenging and robust discussions where the outcome almost invariably won’t please everyone, but having trusted advisors in your corner and being prepared to listen to them, is crucial. In the end, their sole aim is to protect their client’s reputation by weighing up all the possibilities and potential outcomes.
Sometimes, the loudest and strongest statement is silence.
