Negotiating Media Interview Terms: Where to Draw the Line – Jesse Dungan and Ivette Delgado write for NYLJ

“Building trust and credibility is paramount to fostering good relationships with reporters,” write Jesse Dungan and Ivette Delgado of Infinite Global.

New York Law Journal

By Jesse Dungan and Ivette Delgado

When a radio journalist resigned in July after agreeing to use questions provided by President Joe Biden’s campaign, it cast a spotlight on the often-used communications tactic of negotiating terms with journalists ahead of an interview. This common behind-the-scenes practice drew public scrutiny ultimately leading to the journalist losing her job, while creating a public relations blunder for Biden.

Weeks later, former President Donald Trump made headlines for delaying his panel appearance at the National Association of Black Journalists convention in Chicago over an alleged dispute about live fact-checking ahead of the interview.

While interview terms can vary by outlet and journalist, these high-profile controversies serve as reminders of the sensitive nature of media relations and the care required. For attorneys speaking about delicate matters or advising their clients ahead of interviews, they offer an opportunity to explore best practices for establishing essential interview ground rules to avoid misunderstandings and preserve the integrity of the reporter-subject relationship.

Expectation setting between journalists and sources is critical for a successful interview. Attorneys—as well as their clients and marketing teams—should know how to negotiate topics and specific questions and understand what’s “fair game.” Equally important, they must understand how these agreements can be situation-specific depending on issues, such as confidential information, client conflicts and what’s at stake.

Where to start? First, understand the interview’s objective and purpose. Is the attorney or client participating to inform, respond, promote or clarify? Will it be considered on the record, off the record or on background? And what is the format? Will it be a pre-recorded or a live interview for broadcast, or will it be a phone call or video chat for a story in print or online? The answers to these questions will help begin the back and forth that precedes an interview and help outline the terms of the discussion between the reporter and their source.

Can It Hurt to Ask? Yes …

Sources may think it can’t hurt to ask for questions in advance, or quote approval, or the opportunity to see a story before it goes live. In special situations, they may be right. But generally, going out of bounds in making such requests is a surefire way to deter a journalist from agreeing to future interviews. It could even offend a journalist and increase the chance of a hostile interview.

Recall the Biden incident. In that interview, the communications team got what it wanted. But it quickly turned into a PR hit that required significant damage control. The Biden campaign was forced to publicly state it wouldn’t suggest questions to journalists in future interviews.

So, yes, it can hurt to ask for unreasonable accommodations. But that doesn’t mean that establishing interview terms ahead of the discussion isn’t prudent. It’s the responsible thing to do, especially for attorneys who need to respect legal limitations when discussing sensitive topics that may be subject to confidentiality, privilege or other legal constraints.

What Is Considered ‘Fair Game’? 

Before agreeing to an interview, it’s crucial to set clear boundaries and define what topics are open for discussion. Attorneys who regularly counsel clients on legal restrictions should apply the same level of diligence during media interviews.

Properly vetting an interview opportunity will also allow a legal source to weigh any ongoing litigation or conflicts that could affect their firm more broadly. They may also need to consider regulatory or contractual obligations that may restrict what can be shared publicly. Ensuring compliance with these legal boundaries and adhering to a firm’s media policy not only protects clients but also maintains the integrity and professionalism of a legal practice.

If certain subjects are off-limits, be prepared to explain why and discuss with the journalist how to navigate those areas. There could be room for compromise. For example, if an attorney cannot discuss a specific company due to a client conflict, they might instead offer insights on broader industry trends or speak to an issue based on their subject-matter expertise. Collaborating with a PR or communications team to anticipate potential questions and planning how to handle sensitive topics will ensure a smooth interview experience and avoid potentially awkward situations.

The forethought required is crucial. Last-minute requests once an interview commences or has already occurred may not be honored. They may also discourage a journalist from working with a source in the future.

Aligning Expectations for Both Parties 

When coordinating with a journalist ahead of an interview, it’s important to manage expectations on both sides by confirming the format and duration, outlining any topics or specific mentions that are off-limits (understanding this might be a deal-breaker, depending on the opportunity), and providing relevant background information on what the source can discuss.

While the source may be prepared to address specific topics or questions, it’s crucial to clarify whether the journalist intends to explore additional questions beyond the scope of what was outlined in a pitch or mentioned in the media inquiry. For example, if there is a longer lead time before an interview, breaking news could shift the focus or angle of the story. The source should not assume the discussion will be limited to the prepared points unless the journalist confirms beforehand that no further questions will be asked.

Here are some safer questions for sources to consider asking (though certain situations may dictate when one would and wouldn’t make these asks and the answer won’t always be “yes”):

• Can you tell me what your story is about? Be careful asking specifically for a reporter’s “angle.” This can be a turnoff to a reporter whose angle may change or evolve over the course of reporting.

• Are you able to share the names of any specific companies that will be included in your coverage? For lawyers and firms with large conflict profiles, this information can help them steer clear of trouble down the line. Reporters may not always be willing to share this information, but it is fair to ask in many situations and can help sources prepare and calibrate responses during the interview.

• Are you able to share any of the questions you would like to explore—or any of the general topics or themes? Rather than providing questions—as the Biden campaign did—consider asking the journalist if they’re able to share any questions or broader topics in advance so that you may prepare. Understand that the nature of reporting involves new questions and topics arising based off your answers over the course of the interview.

• Would you be willing to go on background at certain points of the conversation so that I may provide appropriate context around certain sensitive issues I’m not able to address on the record? If you are discussing a particularly sensitive matter with a journalist, asking ahead of the interview whether they would be open to speaking on background at points can be a helpful strategy to make sure they have appropriate context around issues you can’t address on the record. If it’s a broadcast interview, consider setting up a pre-call to discuss the lay of the land.

• May I review any quotes you intend to use from me simply for accuracy? Use this question sparingly, and never ask to see a full article prior to publication. Some publications have policies against quote review, but if you’re addressing particularly complex or technical issues, it can be a fair ask.

Reporter Role and Rules of the Road

While working with the media can sometimes create a sense of unease, it’s important to remember that reputable journalists adhere to ethical principles, such as those set by the Society of Professional Journalists and the International Federation of Journalists. They prioritize accuracy, fairness and truthfulness in their reporting. They also don’t want to burn their sources because it can hamper their reputation and future reporting.

Before the interview, it’s essential to clarify how fact-checking will be handled, especially if the interview is on the record. Some journalists may fact check live, while others might allow a review of quotes for accuracy afterward.

Building trust and credibility is paramount to fostering good relationships with reporters. Maintaining honesty and transparency about what can and cannot be discussed demonstrates respect and understanding for a journalist’s role, which may sometimes involve asking tough questions.

Following an interview, it’s OK to reach out to further clarify any points but avoid trying to alter or make additional suggestions unless there are factual inaccuracies. Note that anything further shared with a reporter can be considered on the record unless otherwise specified. And keep the lines of communication open for future interactions to help ensure a positive and professional relationship.

Shades of Gray

Negotiating interview terms is as much art as it is science, revolving around factors such as conflicts and client sensitivities, a news organization’s policies, a relationship with the journalist, the type of source involved and many others. But by sticking to general best practices, sources can show respect for journalists and establish mutually beneficial interview terms.

Jesse Dungan and Ivette Delgado are vice presidents with international communications firm Infinite Global.

Reprinted with permission from the August 26, 2024 edition of the New York Law Journal © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.