Why Using Litigation for PR is a Double-Edged Sword

I recently learned that litigation can be and often is used for PR purposes. Either a legal case that arose gets used for positive PR to a company or – in extreme cases, a litigation can even be provoked for PR purposes only. This blog posts tries to explain what litigation as PR is and why this practice is a double-edged sword.

What does litigation as PR mean?

Litigation as PR (or litigation communication) means using legal actions or lawsuits for shaping public perception and opinion of the organization or person in question. This can involve initiating or defending lawsuits, using legal arguments to influence the public’s opinion, and engaging in media relations to get favorable coverage.

Litigation as PR is often used by businesses, organizations, and individuals (usually people of public interest) to protect their reputation, counter negative publicity, and influence public discourse. The idea behind it is that victory is gained outside the court, not inside. However, it is a controversial tactic: critics argue that using litigation as PR can stifle free speech and intimidate opponents, as it’s highly influential.

How litigation can be used for PR

If an organization or public individual decides to strategically use litigation for PR purposes, they might proceed as following:

First, they would need to identify the issue that is causing negative publicity or harms their reputation. From that, together with a litigation PR specialist, a legal strategy needs to be developed that not only addresses the harmful issue, but also has the potential to gain positive media attention and public support. The expert(s) should know when the organization should or should not speak with media representatives regarding the lawsuit.

The organization in question would then proceed by filing a lawsuit or defending themselves against one by using legal tactics that are carefully selected to sway public opinion and generate positive media coverage. Releasing court documents as soon as possible and engaging with the media ensures that the positive points of the litigation are being reported and that the organization’s position is accurately displayed to the public. Also, they should invite journalists to trial dates for maximum press coverage.

Within the process, it is important to monitor the public opinion and to adjust the legal strategy if needed to continue being supported. As this can easily go wrong, using litigation for PR can be quite risky of a strategy.

Risks of using litigation as PR

As stated above, there are some risks and ethical concerns regarding the use of litigation for PR purposes. These are some of them:

Misleading the court by influencing the opinion: Companies may use litigation as a way to draw a misleading picture of their business practices, in order to gain business advantage over their legal opponents – although there are a lot of debates concerning if the court is actually influenced.
Transparency in question: the goal of PR is always to generate a favorable reputation, which in the case of lawsuits being involved can also lead to lacking transparency while trying to advocate for transparency.
Time and costs: Companies may use litigation as a way to gain strategic advantages in their legal battles, rather than as a way to resolve disputes in a fair and impartial way. This can lead to long and expensive legal battles (more than actually needed) not every party could afford, and may harm the integrity of the legal system.
Ethical conflicts: The use of litigation as PR can create ethical conflicts for lawyers and other people involved in the lawsuit, who are tied to professional working standards. They are supposed to act in the best interests of their clients and to uphold the integrity of the legal system. Lawyers may experience conflicts between their ethical obligations and their clients’ desires for favorable media coverage or public opinion.
Damage to reputation (as opposed to the actual goal): Companies that engage in unethical litigation tactics that are being uncovered or noticed by the public may damage their reputation and lose the trust of their customers and stakeholders. This can harm their long-term business prospects and may lead to a decline in market share or profitability.

An example case of litigation used for PR: Apple vs. Samsung

Because they claimed that Samsung had copied elements of the iPhone and iPad designs, Apple filed a lawsuit against Samsung in 2011. The case generated extensive media coverage and was widely seen as a battle between two tech giants. Both companies engaged in aggressive PR tactics, with Apple pretending to be a defender of innovation and Samsung arguing that the lawsuit was an attempt to stifle competition. But how did that happen?

First, Apple claimed that Samsung had copied elements of Apple’s iPhone and iPad designs, including the look and feel of the devices, the user interface, and various software features. Apple stated that Samsung had infringed on multiple patents and sought damages of over $2 billion. Samsung, on the other hand, countersued, claiming that Apple had infringed on its own patents.

Then, both sides experienced a long discovery process, during which they exchanged evidence and information about their products and patents. The actual trial then began in July 2012 and lasted for several weeks. Both sides presented their evidence and arguments, and the jury ultimately found that Samsung had infringed several of Apple’s patents. They both appealed various aspects of the verdict, so that the case went through multiple rounds of appeals within several years.

Throughout the legal process, both Apple and Samsung engaged in aggressive PR tactics, with each company seeking to portray itself as the “rightful” innovator and defender of intellectual property. The case generated huge media attention and was seen as a key battle between two of the world’s largest technology companies. In the end, Apple initially was awarded damages of over $1 billion, though that amount was later reduced on appeal.

This case can be seen as an example for litigation as PR, since both companies used the media coverage of the case to generate publicity and promote their brand image. They released statements and press releases, gave interviews to journalists, and made public appearances, all that with the aim of shaping the public perception of the case and their respective roles in it. Nevertheless, although Apple won on paper, they failed to gain a competitive advantage over Samsung, which was supposedly their goal of their PR practices.

The topic of the case and the media attention it generated also allowed both companies to show their products and technologies, and to demonstrate their commitment to innovation and excellence. Thus, the Apple vs. Samsung case is an example of how litigation can be used as a PR tool, allowing companies to gain publicity and promote their brand image even in the midst of a legal battle.

References for further reading: