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04 August 2016

Public Image: Private Disgrace - how to limit damage at the very outset of a crisis

4 mins

The International Olympic Committee is yet again facing public outcry and intense criticism over its response to the doping crisis and Russian athletes. In a statement the IOC said it would “explore its legal options with regard to a collective ban of all Russian athletes – versus the right to individual justice”.

This is often the dilemma: how to protect a “brand” in light of potential wrongdoing by an individual employee while ensuring the individual’s rights are also protected. The response of the BBC in the wake of the Jimmy Savile crisis has been to take radical action against some of its employees – Tony Blackburn was dismissed as soon as the Janet Smith Inquiry suggested he had been less than candid in his evidence. In contrast, Sunderland AFC allowed Adam Johnson to play on full wages although he was to plead guilty to some offences at the beginning of his trial. Sunderland AFC suffered immense reputational damage as a result.

The common factor in all these cases is the difficulty of focussing on brand reputation when a Director or senior employee or the “talent” faces a criminal or regulatory investigation. But the two are not necessarily mutually exclusive. Sound advice for that individual from the outset could avoid a public relations disaster, and ensure that the individual is treated properly and fairly throughout.

How can damage limitation be achieved at the very outset? If an institution becomes aware that the police wish to speak to one of their employees/members, it is essential they immediately instruct good and experienced lawyers. Imagine, for example, that a senior member of an accountancy firm has been accused of fraud and the police are knocking at the door. If instructed promptly, a criminal lawyer can immediately negotiate with the police to persuade them that an arrest is not necessary.  If the member is not arrested, no fingerprints or photographs will be taken, travel to the US will not be affected and the member will not be detained in custody. The lawyer can also scrutinise any search warrants or production orders in the event the police want access to confidential files.

When there is no arrest it is far easier to avoid publicity. A media lawyer can place the press on notice that action will be taken if any disclosures are threatened and if necessary, apply for an injunction to prevent the disclosure of private or commercially sensitive information. Liaison with the PR team will ensure that the interests of the individual and their institution do not diverge, and, if they do, that there is constructive communication between different representatives.

Where relevant, the lawyer can advise regarding disclosure to the Regulatory Body and, if so, make the appropriate representations to try and ensure the individual can continue in their role. Depending on the allegation, the individual may require legal advice regarding family/child custody matters and knowing that an experienced lawyer can deal with this, may enable the individual to focus on their work rather than the distractions of an investigation. A police investigation may also have implications on an individual’s visa/ citizenship application and the institution will want to be confident that the lawyer can deal with these matters to ensure they can remain in the country to continue their work.

The Thomas Cook affair is now in the annals of PR folklore on how not to handle a personal tragedy and public crisis. Their “strategy” has been widely criticised as lacking humanity. A decision by the CEO to refuse to answer questions at the inquest may have been legally correct but was disastrous for the reputation of the company. The belated apology to the bereaved parents and the disclosure that Thomas Cook had pocketed the compensation created a public relations disaster. It has been reported that around £75m was wiped off the company share price in one week during the crisis. Thomas Cook has faced criticism from many quarters, but a coordinated approach between the lawyers and their public relations team could have dealt with this crisis humanely and effectively.

Through constructive engagement and quality advice from the outset, the institution may be able to maintain their reputation whilst also protecting that of the individual thus avoiding the pyrrhic victory of a glorious acquittal but irreparable media damage along the way. 

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