Christopher Gribbin, Managing Associate
Mishcon de Reya
We’ll give everyone a minute just to join before we get started.
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Okay. Hello, everyone. I am Christopher Gribbin. I’m a Managing Associate in the White Collar Crime and Investigations Team here at Mishcon de Reya and I’m very happy to welcome to you, welcome you to what is the third in a series of webinars we are running here on investigations. Over the course, over a series of short lunchtime webinars throughout this year, we’re looking at the full range of issues and challenges that arise in investigations, whether those are internal investigations or whether it’s dealing with an investigation by a regulator or another enforcement body and the idea is going to be to get a sense of the pitfalls, the risks and even the opportunities that investigations can bring. There is a chat box and feel free to drop questions in there and we’ll try and address them if we have time at the end.
In previous sessions, we’ve looked at how to manage investigations in the workplace and how to handle the issue of dawn raids and today, I’m very happy to say we’re going to be joined by Harry Eccles-Williams, a Partner in our Reputation Protection and Crisis Management team to look at how the management of the media intersects with investigations. Harry, thank you for joining us.
Harry Eccles-Williams, Partner
Mishcon de Reya
Thank you. Thank you very much for having me.
Christopher Gribbin, Managing Associate
Mishcon de Reya
The first thing I wanted to ask you about is what we mean when we say ‘the media’ in the context of investigations, as this seems to be a sort of constantly evolving landscape and in the time you’ve been in practice, what changes have you seen?
Harry Eccles-Williams, Partner
Mishcon de Reya
Well look, I think that that’s, that’s a really important question as to what actually do we mean by ‘the media’ because I think that often when we talk about the media, we are really referring to what we think of, or what is now referred to as the mainstream media so, in this jurisdiction you’d say the, you know the printed press, the BBC and news broadcasters, but actually you know over the past five/ten years you know we’re all aware of the sort of prevalence of social media and other online media, smaller media channels etc and so previously, you know, an investigation would very rarely be a high profile enough for it to be of interest to these what, what we refer to as ‘the mainstream media’ and if a story was high profile enough for such a sort of body, media body to be interested in it and you know if the right journalist found out about it and was contacted etc, that organisation would then follow the law and journalistic good practice usually and contact the relevant parties and give them time to provide a response and they would, you know, not do things that were obviously unlawful like breaching confidence etc. Now, with social media, with blogs, with smaller news sites, you know many of which are based outside of this jurisdiction, essentially anything can be posted by anyone, often anonymously and, and there’s, there’s very little that can be done about it, I mean action against social media companies is rarely possible, most of them are based in the US and there are you know reasons of US law why they are, you know, they can’t be held accountable for what they, what they publish and, and so the result of that is that these days it’s very difficult for, for a sort of investigation to be carried out in the dark or you know one must expect the light to be shone on it somehow and therefore, you know, organisations need to properly investigate serious issues and, and critically they need to be seen to be doing so.
Christopher Gribbin, Managing Associate
Mishcon de Reya
Just, you mentioned social media there, I mean it, and the fact that anyone can sort of post anything, I’ve certainly done investigations, been involved in investigations where people, subject to that investigation or involved in that investigation are, have sort of almost give a running commentary by social media, it’s, it’s been a real challenge and it seems that is, that clearly one of the big changes that, that the media landscape has undergone. What options does an organisation have when faced with, with leaks of that kind or commentary of that kind via social media?
Harry Eccles-Williams, Partner
Mishcon de Reya
Yeah, well it’s very frustrating, I mean there are options but, but they’re not straightforward, I mean you can engage with the social media platforms and we often do and we often draw to the social media platforms’ attention where there are breaches of their own terms and conditions and, and you know breaches of confidence etc often are. That doesn’t mean that the social media platforms will necessarily do what we request but we, we have good success with them, to be honest, it’s unpredictable but we certainly encourage engaging with the social media platforms and, and raising any concerns that we have. It’s also possible to obtain privacy or confidentiality injunctions against the, well, against the perpetrator of this even if you don’t know who they are but this will usually prevent the, the mainstream media from publishing private or confidential information and to be honest, social media companies will usually abide by such orders, although sometimes it’s, it’s necessary to sort of seek enforcement or to take action in the US and we, we often do that as well. However, if information has been disclosed online without warning it can be sometimes too late to seek an injunction, you know the, the, the horse has bolted. So, in addition, it’s possible to obtain disclosure orders in this jurisdiction known as Norwich Pharmacal Orders to find out who is behind online leaks. These again are imperfect but can be very powerful so, you essentially, you make, you make an application against the social media company and the application is on the basis that they’re innocently caught up in this wrongdoing so it’s, you are not, they are not an adversary as such but you’re seeking the, all information they hold about the person or persons that are behind the leaks or behind the relevant accounts. So we do that quite often in, in this kind of instances and, and it’s possible to obtain similar orders in the United States, they’re known as 1782 Applications so, some of the social media companies are more receptive to UK orders than others, so there are some where we have to go to the United States and, and, and you know work with local counsel there. And then I think that the other, the other way of dealing with it, which is you know sometimes appears unsatisfactory but is, is, is internal messaging, so reminding employees of their confidentiality obligations. Now this is quite fact specific, obviously if there are allegations of let’s say non-financial misconduct against a senior executive to send around an email to all employees to remind them of their confidentiality obligations is very unattractive and would be seen or may be seen as, as seeking to silence, you know, victims. However, if you know there are sort of leaks of confidential, commercially valuable information then it may be appropriate to write to all staff or to certain staff that, that have this information or access to it or, or, or particularly sensitive information and to remind them that they are, you know, under their contract they are not allowed to do this and, and that there is some jeopardy in, in, in doing so.
Christopher Gribbin, Managing Associate
Mishcon de Reya
That, that brings me on actually to a point that I wanted to, to come onto which is really this tension around, as you put it, silencing people and the need for transparency as against the need to preserve confidentiality both in respect of, of, of privilege and internal investigations but also if we’re thinking about potential future proceedings and the risk of prejudicing those and where that leaves an organisation, how it can seek to reassure its stakeholders when that’s employees but also third parties, at what is often a time of, of, of relative turmoil for that, for that organisation, what, what, what are the options in your view?
Harry Eccles-Williams, Partner
Mishcon de Reya
Well look, I think it’s always important that, to maintain the confidentiality of an investigation and, and that’s the sort of, that is the staring point. Now, there are instances where it is not necessary or, or preferable to make any form of public or internal announcement about an investigation, there may be somebody who can be investigated whilst, you know, giving the appearance of being on holiday and it can be done in a discreet matter such that it’s not going to leak and that there’s no, you know, especially if it’s not someone particular senior, there’s no need to start talking to the world about it. However, you know, often the investigation is likely to get out and, and in that instance it, it’s always best, you know, to get ahead of the story essentially. You don’t, you don’t want to be looking reactive, you want to be looking to be on the front foot and to have control of the situation and to be owning the narrative. So, the only way to do this whilst maintaining confidentiality is, is essentially to ensure that only very limited high level information is shared about an investigation, you know, a company can tell stakeholders that an investigation has been opened, that a matter has been taken seriously, that it will be dealt with expeditiously, they may wish to say that, you know, that, that they are hiring independent law firm to assist, they may wish to make the point that the fact of an investigation doesn’t suggest any wrongdoing, you know, depending on the facts, they may wish to say that any employee with any concerns should raise it with them and, and often they will want to make the point that they can’t provide a running commentary on the investigation due to confidentiality reasons but you know, updates will be provided at the proper time. So I think it’s more, it’s more about looking like you have the matter under control, that you are dealing with it in a professional way and that you are not trying to hide, you know, put it under the rug and, and, but then explaining that you won’t be providing a running commentary or a lot of detail, but I think that, although you’re not providing a huge amount of information, I think it’s really important to do it well and I think it can make an enormous difference.
Christopher Gribbin, Managing Associate
Mishcon de Reya
Thanks, that, you know, it is a balance. Just to change tack for a moment, if I could ask you, turning to the sort of subject matter of an investigation so, in particular thinking about where there is prospective criminal liability. Now, speaking as a, as a, as a criminal lawyer, the first thing to say is that there is no overarching obligation to report criminal allegations to the police or any other enforcement body. That said, the position is, is obviously more nuanced than that, for example, a regulated entity is going to be subject to its own reporting obligations and the position will also be different when one thinks about the liability a corporate might face in its own right and there have been a number of changes to the law recently and to related guidance that are intended to make it easier for companies to be held liable and to encourage what is known as, as self-reporting where those companies effectively refer the allegation, in so far as it relates to them, to an enforcement body most, most typically the Serious Fraud Office. So there are permutations of that kind, but to think about it very simply, to strip it back, where an internal investigation engages allegations of criminal conduct against an individual and the company wants to refer that individual to the police, for example, from a media perspective, could you walk us through what the implications are in terms of reporting thereafter.
Harry Eccles-Williams, Partner
Mishcon de Reya
Yeah, I mean look, that’s a, it, it, it’s a point that is, I mean we, we deal with this a lot of the time, I think that first to, as a, as a reputational or a reputation lawyer, I think there are many instances that I can think of where a company may not desperately want to report someone to the police but they’d be very wise to do so because, you know, if a, if a senior executive is accused of, well any form of apparently criminal behaviour, it looks reputationally quite unattractive not to go to the police I think in certain instances so I think that’s something that has to be borne in mind, but if a matter is reported to the police and the police, well, from that point the media are not usually permitted to report on it or at least they are not permitted to identify the subject of the investigation or, or to report on it in such a way that the subject of the investigation is identifiable and, and that is the case until the person or unless until that person is charged, at which, at which point they can, the media can, you know, report on, on the matter. There may be instances where it’s in the public interest for someone to be named or identified prior to charge but you know recent case law suggests that that will, you know, that will not be the norm, the norm is that up until charged, an individual has a, has a right to privacy and post-charge or upon charge, then the position changes.
Christopher Gribbin, Managing Associate
Mishcon de Reya
Yeah, that, that point you, you make about organisations sort of being concerned about what if something comes out down the line, that sort of precautionary principle being applied, we see that more and more I think a worry that something will come out and be reported later, it’s better to, to deal with it by way of referral at an earlier point. I wanted to, to ask you a slightly impossible question really, given that a lot of investigations work is unpredictable by its very nature in the sense that if you knew that something was going to go wrong, you would take steps or, or do what you could to try and stop it from going wrong, but noting that, what is there that you can do to prepare for the storm of media attention that can follow in the wake or, or concurrently with an investigation in advance? Is, is there anything?
Harry Eccles-Williams, Partner
Mishcon de Reya
Well, well I mean, I take your point that it feels like there, there may not be but, but actually preparation is the key to any media crisis. So, of course you can’t prepare for every eventuality, but there is a lot that you can and should do, I mean you should prepare a protocol setting out who does what in a crisis, chains of command when things get escalated etc. You should consider the most likely issues that will lead to a crisis, so all, all companies know what their weak points or, or, or you know, it, what, what will, is most likely to be of newsworthy etc and you know, the company should, should prepare you know draft internal, external messaging on that and, and update that on a regular basis and, and, and, and you know so there should be a whole sort of crisis, crisis document that is a working document and within that you should also you know ensure that you have your legal and PR advisors and, and they should feed into this document and they need to be ready to act urgently and so you need to, I mean I would say this wouldn’t I, but you need to have crisis PR advisors who are ready to advise and you need to have reputation lawyers who are ready to advise. That doesn’t, you know, that, they may never be called on, but you need to know who you are going to go to and, you know, I think it’s, it’s wise and this will depend on a company’s size but it’s wise just to have, you know, quite specific social media monitoring set up in relation to, you know, general issues that may come up for the company, but also when something flares up in any part of the company to then, you know, navigate the search somewhat towards that. And then I think it’s always wise to practice a crisis, so you do all of this work, you then need to, you know, it needs to remain a living document, not one that you, you know, return to once every two years just because you need to say you have, but, but once you’ve done this preparation work, you practice a crisis, you see what works, what doesn’t and, and, you know, you up, you update it so, there is a lot you can do and, and in relation to investigations specifically, I do think it’s helpful and, and you know usually this isn’t a problem, but I do think it’s helpful to ensure that employment contracts contain very ser… sorry, very stringent, non-disparagement and confidentiality clauses because this will help a) hopefully dissuade people from leaking in the first place, although often it doesn’t, but it will also help in any potential legal action that follows or any application for disclosure or for, you know, injunctive relief because, you know, a clear breach of contract argument can be made.
Christopher Gribbin, Managing Associate
Mishcon de Reya
Thanks Harry. Just finally, I mentioned at the very start that we’d also look to potential upsides that can come out or opportunities arising out of an investigation and the interaction with the media and I just want to make good on that if I can and ask you how in respect of managing the media, an organisation can emerge stronger for, from, from an experience such as this.
Harry Eccles-Williams, Partner
Mishcon de Reya
Well I think no organisation will, would choose to be in, in, in a crisis, but at the same time all organisations find themselves in crisis from time to time and these crises may, you know, vary in their, their seriousness and I think that, you know, I don’t know whose mantra it is and, and, and whether I’m being quite accurate but, but essentially you should never put a good crisis to waste and once a crisis is over, you know an organisation needs to take stock and consider the effectiveness of its response, you know, what worked, what didn’t, what needs to be improved etc, you know, update the crisis plan that I’ve suggested should exist or, which is often the case, create a crisis plan and you know go through the steps that, that, that I suggested so that going forwards, you know, you, you are better prepared. I think that the thing about a crisis is that, as I said, you know everyone gets into crises at times and some are, some are more desperate than others but the fact of the crisis is often not the worst, the worst element of, of, of the issue, it, it’s how you deal with the crisis and stakeholders and that can be employees, shareholders, you know, the public etc, they watch how companies act in a crisis, do they deal with it well or not, you know, how is their messaging etc, etc and so, you can very much succeed in dealing with a crisis well and you can come out of it stronger and or you can at least mitigate the damage as best as possible.
Christopher Gribbin, Managing Associate
Mishcon de Reya
Thank you, that is, that’s so interesting. I wanted, we, we’ve just got a couple of minutes in which one question has popped up which I want, ask you if I can Harry from, from an anonymous attendee, is…
Harry Eccles-Williams, Partner
Mishcon de Reya
I’m already nervous.
Christopher Gribbin, Managing Associate
Mishcon de Reya
What are your views on the public interest versus what the public is interested in? Are you able just to unpack that?
Harry Eccles-Williams, Partner
Mishcon de Reya
Yeah, I mean this is, this is, we mainly, although not solely, we mainly act for claimants in, in reputation work and so, you know, we, there is, there is a, there is a stark difference we would say and I believe between what is in the public interest and what the public is interested in. The public is interested in all sorts of, and I obviously I am part of the public, we are interested in all sorts of scandal and solacious behaviour and gossip and everything else because we are and that’s, and you know allegations true or false and confidential documents that really we shouldn’t be seeing but you know it’s interesting, we’re interested in all of this, but or at least many of us are, and, but whether it’s in the public interest that we have access to this is, or, or such information, is completely different because, you know, whilst we are interested perhaps in, in, in some scandal, private scandal or confidential information, at the same time we don’t want to live, and it’s not in the public interest to live in a society where everybody’s, if you’re a private individual, personal details are available to everyone else and everything that we do, good or bad or you know somewhere in-between is, is, is sort of publicly available and so, I think that, you know, I, I, I think what is in the public interest and there are many times that you know, it is in the public interest for, for there to be reporting on issues which are negative, but yeah, I think there is a, a, a, a big difference between what’s in the public interest and what the public is interested in and I think the courts are very, very aware of that and, and you know they are very clear that, that, you know, the, what they are interested, what the court is interested in, both as a matter of breach of confidence, misuse of private, intimate information, but also in the public interest defence in, for defamation, is, is, is public interest not of interest to the public.
Christopher Gribbin, Managing Associate
Mishcon de Reya
Thank you, yeah, I hope that answers that question. I think it does. We are now definitely up against our time so, thank you very much Harry, thank you everyone for joining us.
Harry Eccles-Williams, Partner
Mishcon de Reya
Thank you.
Christopher Gribbin, Managing Associate
Mishcon de Reya
We’re going to continue to explore different aspects of investigations and the management of them over the coming months so, please look out for those invites, please sign up and we hope to see you next time. Thank you.