Picking your digital battle

Schillings’ Rod Christie-Miller on when to use the law to defend your brand

We all know that the financial consequences of a damaged reputation can be long lasting. Businesses suffer globally in all the markets in which they operate, the speed with which negative news and comment spread across the web means that the damage to a reputation is felt across the globe more quickly than was ever possible before.

One of the most powerful features of the internet is its capacity to allow anyone with access to a computer to become a publisher – and to do so anonymously.  As lawyers who specialise in protecting the privacy, reputations and confidential information of our clients, we have noticed a huge increase in the number of anonymous attacks directed towards businesses and their executives through the digital media.  These can come in the form of hate-sites, anonymous websites “revealing “ private information, the dumping of confidential documents on Wikileaks, or the planting of fictitious yet seemingly authoritative reports as part of a dirty tricks campaign. The legal profession itself has not escaped the trend. The tells its own story.  Surprisingly, it has only 1,000 entries already.

It used to be the case that in the old pre-digital days you might damn anyone who published with an injunction, or libel writ, but in these digital days the best lawyers are taking a more sophisticated approach to problem solving for clients and using legal tools to complement PR, lobbying, technical and even investigative talents to protect a business or executive’s reputation and privacy.

How to deal with the Threat

It is a common misconception of those publishing information anonymously that they are guaranteed to stay behind the mask, or can post without consequence online.

There are generally three simple stages to be adopted to combat anonymous postings – investigation, assessment and action.

The investigative stage can often be the difference between containing a reputational threat and hesitating long enough for that threat to mushroom. Through considered and timely intelligence gathering one can usually identify the source of the information quick enough to establish the upper hand.  A number of investigative techniques are now available ranging from sophisticated deep searches of the web, simple IP address searches and old-fashioned private eye intelligence gathering which can often offer a wealth of information as to the source of a problem, or examining meta-data buried in photographs within websites. Court orders remain a powerful weapon whether against the source, the host or against an internet service provider obliging them to provide the identity of the person responsible for publishing the information.

Armed with this source information, the assessment of the reputational risk and how to deal with it takes on a much more nuanced form.  There is of course a wide margin of difference between the proportional response to a bedroom blogger who is still at school and a disgruntled ex-employee seeking to leak information or a business or political rival undertaking a dirty tricks campaign.

Geography is also a factor. More often than not the reputational risk will have a number of international elements, and these will impact upon the assessment necessary. Dealing with a blogger in Moscow is very different from dealing with one in Milton Keynes.  Therefore, local knowledge – in both PR and legal terms – is vital.  Often you will need to question whether local lawyers can assist with that assessment by inputting their local knowledge. However, valuable time can be lost if these lawyers are not conflict checked and ready to be deployed.  For precisely this reason, we have developed a network of international specialist lawyers who we work with regularly on such matters and who can advise at short notice.

As to acting on that assessment, sometimes the right course is to do nothing, to let sleeping dogs lie, and clients will thank you for that advice rather than embarking on a legal expedition when a PR or communications approach will do the trick.

Yet, there are other times it will be necessary to exert the legal rights of a business or its executives.  Lawyers can exert influence in a number of ways, via their established contacts in the legal departments of the mainstream media and their digital presence; by pointing out the legal risks of publication to less established digital publishers; by engaging directly with the ultimate source of an untrue allegation or invasion of privacy; or in liaising with the automated take-down procedures of Google and YouTube.

In short, there is no one-size fits all legal response to a digital threat and, much will depend on circumstances and will involve a collaborative approach between the legal, PR and technical advisors in order to reach the right end result and to protect reputation and privacy. There is usually a legal case that can be made – the real skill comes in knowing when and how businesses and their executives should press that button.

Rod Christie-Miller is Chief Executive and Partner at Schillings, one of the UK’s top law firms.