The Shockumentary

02 June 2016

Many businesses will have at one time experienced or will experience the shock of an exposé which contains damaging footage taken by an undercover journalist or activist posing as an employee or a visitor. In some cases, it will be nearly impossible to obtain a successful injunction to stop this information from being broadcast, particularly where there is a strong public interest in recording the information.

A recent case in point is that of Heythrop Zoological Gardens Ltd (t/a Amazing Animals) v Captive Animals Protection Society, 20 May 2016. Here, the Intellectual Property Enterprise Court refused to grant an injunction against an animal protection society which had published photographs and video clips it had taken in a zoo whilst posing as visitors. This included material provided by a former employee. Amazing Animals sought an injunction for breach of contract, breach of confidence and breach of non-property performer’s rights, but the application failed on the basis that the animal protection society’s Article 10 right to freedom of expression under the European Convention of Human Rights was sufficiently engaged and Amazing Animals would be unlikely to succeed in obtaining a permanent injunction at trial.

In these circumstances, the cost of pursuing litigation ‘after the event’ may be unattractive when set against the cost of repairing the reputational fall-out.

No company is immune from a crisis and, as most businesses know, prevention is always better than cure. In this vein, it is important to bear in mind that the value of a business can be determined by whether a company has adequate controls in place to, firstly, prevent adverse reputational events from happening and, secondly, manage issues when they do arise. Indeed, when a company can actively demonstrate its ability to manage and recover from a crisis, this provides confidence to investors and analysts that the management team is competent and well-equipped.

Reassuringly, there are a number of measures that businesses can put in place to better prepare itself for this type of threat, including:

  1. Risk mapping across key members of the business to identify potential key threats to reputation. In tandem with this, businesses should ensure that cyber-security buttresses are sufficiently bolstered to keep information safe and employees are trained to identify potential cyber-security threats. This will minimise the potential for highly confidential information to be obtained through cyber methods;
  2. Horizon scanning to identify information ‘out there’ that could potentially become the ‘public interest’ element to a journalist’s story; and
  3. Devising a ‘crisis plan’ to handle the various categories of emerging risk and, where risks cannot be avoided, test the readiness of the business to respond. The ability of company to respond quickly and substantively to false allegations and inaccuracies is key if a company wishes to have a positive impact on an impending broadcast.

By taking proactive steps to identify threats early, businesses will be better able to build their reputation resilience in the face of the shockumentary.

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About the Author

Hind Habib

Senior Associate

From defamation to data breaches, Hind advises prominent individuals and successful businesses to identify threats and mitigate risks to reputation both pre and post publication.

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