What is the legal status of a press embargo?
If you've never seen one before, an embargo is a restriction placed on a press release. Frequently, PR companies will put out press releases with words like "EMBARGOED: Not for use before 0001 hrs, Monday 4th June" or whatever.
This is because they understand the practical needs of the media - newspapers are written in advance, broadcasters have to plan where they will send reporters and camera crews. Only big stories and disasters get covered live, so PR companies plan events for one day, but embargo the coverage until the following day. The media gets the story, the PR gets coverage, everyone's happy.
But are journalists under any obligation to stick to an embargo?
I don't believe that any embargo has any legal status. Journalists can break embargoes if they want, and I have seen this happen many times, deliberately and by accident.
Recently, someone on a mailing list I subscribe to posted the following message:
--- Original message begins ---
I may, hypothetically, be about to host a news site for disgruntled journalists to release scoops and embargoed news early - they kind of stuff that they can't do normally because it will cause them problems with PR channels and sources later.
So I want them to be able to post anonymously.
The way I've gone about this is to have the domain registered to myself (otherwise DNS and Registrar updates might be tricky) but no IP addresses are logged for either people surfing or submitting stories. There is a single password to get to the CMS which will be handed out without my knowledge but by trusted people (yes, there are anti DOS measures in place).
At the moment I'm not being ultra-paranoid - sticking this on a server in Cameroon, accesing everything through an anonymiser, having it registered to a throwaway, anonymous email account, hacking bind so that traceroutes appear to pass through the machine etc etc
Currently the site is hosted in the UK on a co-lo I share with some friends.
Whilst i don't anticipate legal trouble I'm wondering if anybody knows what I may or may not be liable for. Or the other people on the box.
--- Original message ends ---
What sort of trouble could this web site run into, I wondered? Could it be threatened with lawsuits? Unlikely, if there's no law saying that an embargo must be followed.
I decided to ask the UK Press list ...
... for their collective opinion. There are dozens of experienced journalists and PR professionals on the list, so their thoughts would be useful.
Here's a selection of the responses (separated by *s):
--- Selection begins ---
"It would be relatively easy to know who posted the info because you don't usually give news under NDA to lots of contacts. Also, should such a 'service' come to life, I doubt any PR agencies would give news under NDA anymore, both to the newswires', nationals' and clients' loss in my opinion."
*
- in response to that:
"yeah, but sometimes in corporate PR you find out things that utterly disgust you about a company... like unethical trading, sexual harassment cases that they are trying to cover up... in these situations I would have loved to have a service like this (or do I live in my own little socialist utopia and no-one else has a conscience?!). obviously I'm not in corporate PR anymore else I'd be fired pretty sharpish after admitting that...!"
*
- in response to that:
"I suppose corp-bitch is already taken as a domain."
*
"I'd say that either it won't be used or he won't see the doormat for writs each morning. I don't think there's a comfy yet commercially-viable middle ground there."
*
- in response to that:
"So do embargoes have legal standing? Given the number of times I saw them broken by news editors, I was under the impression that they didn't."
*
- in response to that:
"I believe it would be up to a court - if a company decided to issue a writ, perhaps for criminal libel based on the subsequent damage done to their business ."
*
"Oh right - this person thinks a journo is going to telegraph their OWN scoop just for the greater good? And they're news editor won't sack them when the paper/site has lost the story? Meanwhile the founder of this service has to hire a skip to handle the incoming writs from disgruntled companies. What a fantastic idea - was this person involved in letsbuyit.com or boo.com by any chance?"
*
"the point is even if the venture gets off the ground, the journalist using the embargoed release - no matter where it came from -will carry the can...have seen too many pissed off individuals publicly informing a group of assembled hacks that so and so from the such and such publication - no matter how worthy or powerful, national or not is now effectively barred and will no longer receive embargoed information..
while the journo could presumably continue to get the embargoed releases from this site, if they need to talk to the organisation, company or whom or whatever the release originates from they are buggered as they ain't going to help them any more...that is not to say sometimes an embargo is not utterly ridiculous or you can't get away with it or it shouldn't happen, but the story would have to be a pretty good one to risk alienating good sources and contacts, who won't trust you or help if you need them for information on other stories."
*
"Whistle blowing is very different from breaking an NDA - one is socially responsible journalism and one is racing for a scoop by breaking an agreement you've entered in to. There are companies (eg Apple) who refuse to even give details of products in advance, which makes it really hard to plan ahead; they say they don't trust journalists to hold to NDAs.
I'm not sure why journalists would want to put up news stories that scoop their own magazine; will he pay well enough to make it worthwhile? If it's anonymous, the trustworthiness of the whole site stands or falls together; how's he going to police it? I'm all for freedom of the press but it's not like most NDAs are hugely important to journalism so I can't see the point.
And there are some (not on this list I think but there are some) who'd use it to get stories out for their own ends (misleading scoops to discredit the site, partial news to ramp a story or a small partner wanting a bigger bite of the cherry in a joint announcement). It's pretty fraught. And the company law issues are interesting - signing an NDA for the company, making you an officer of the company and jointly and severally liable on any legal comeback"
*
"Unless you've signed something, an embargo is toothless. Busting them would likely ruin a few professional relationships though, so I'm not sure how many people would be happy to do it.."
*
"Surely the point here is that if this service does become popular, news will no longer be given out under embargo. While the system is sometimes misused, with news being embargoed for no good reason, embargoes are given for the convenience of journalists. Media outlets have lots of different deadlines, the point of the embargo is to allow the journalist time to prepare the story in advance of the release time/date, therefore making it possible to meet a close deadline.
If the embargo system goes to the wall, many will find themselves in the position of being unable to do a story justice because they received the information only just before or even after their deadline. Competitor media, with slightly different deadlines, may then find they have 'beaten' their arch rival as they have the story and the other does not.
The embargo system is by no means perfect, but used properly it can be a useful system for both the journalist and the news source."
*
--- Selection ends ---
So, in summary: it would seem that there is no special legal status granted to press embargoes. By releasing information under embargo, the PR is trusting in the journalist to stick to the unwritten rules of the embargo system.
But any journalist caught breaking that system is unlikely to get any future assistance from that PR, should they ever require it.
(Aside: after all that discussion, it turns out that the intention for the secret web site is not so much for the breaking of embargoes per se, but for journalists to post content which has been vetoed by editors for fear of upsetting advertisers and sponsors. But the stuff about embargoes is still of interest, hence this post.)