NDAs: Beware of what you wish for

Disputes invariably come down to money. Whether you already have much of it and want more, or too little and also want more. Let’s face it, most of us can be swayed in pursuit of it. And it’s the defining feature of an NDA – a contract between parties in which one receives remuneration in exchange for their silence (except in relation to criminal conduct). Yet the latest furore over the use of NDAs, involving a businessman that the Telegraph sought to expose, alleged to arise from claims of sexual harassment, racial abuse and bullying, has been cast as another example of money improperly buying silence – but for how long? 

Of course there are multiple considerations in making the decision to enter into an NDA contract. Those of us involved in advising on the media interest in litigation know the extent to which any intrusion of privacy can have long-lasting impact on the lives of the individuals involved, and those close to them. No innocent but injured employee blowing the whistle wishes to be forever defined as a litigant, or worse. No boyfriend, husband, wife or girlfriend of a complainant wishes to endlessly relive the stresses placed on their partner from the initial incident(s) right through to a trial. Which hurt party wishes to have their name splashed across newspapers and archived online for their parents, children, future work colleagues, neighbours etc to comment on or gossip about? 

In our experience, complainants usually want the misconduct acknowledged, for it to stop, a sincere apology given, remedial action taken and for them to continue their lives unfettered by the original action. Media exposure is a by-product of litigation.

However there are cases in which the experiences are not properly acknowledged, no admission or apology is given, the discomfort felt by the complainant is so severe that returning to the same workplace is unpalatable, the feeling that no one believes you is palpable, and concerns that if the detail were known to the public they would rush to judge you too – and so the maintenance of privacy becomes the primary objective. In these circumstances, the NDA, with its attendant pay off, seems the least injurious end to an extremely distressing and unwarranted episode, notwithstanding a desire to call out sexual misconduct.

That’s probably why two of the complainants in the Telegraph injunction story are supportive of the claimants’ efforts to injunct media reporting.

The other side of the coin is that the public deserves to know of serial sexual harassers. While the media spotlight rises and wanes, its lifespan is usually dictated by the arrival of the next cause celebre. However during its brightest glare any expectation of privacy diminishes, and where there’s moral judgment to be had, it’s even harder to keep issues hidden in the dark. Your rights as an individual complainant risk being trampled in the cause of a public exposure of wrongdoing. Where the matter involves a movement as strong and compelling as #MeToo, anonymising your involvement seems only a partial remedy to concerns over your privacy. There are some who condemn those who decline to expose others. Being caught in this wave of the righteous is an uncomfortable place to be.

As for an alleged perpetrator, seeking an injunction to prevent publication on the back of a breach of confidence – surely someone will have warned them such action brings greater attention to the matter they are trying to prevent becoming common knowledge. Injunctions simply can’t defeat publication somewhere in the world of the internet.

Here’s an alternative approach from those in the know – hold fire on the defamation and privacy lawyers’ letters and other recourse to the law as there’s often some way to mitigate historic behaviour, or publicly learn from mistakes of the past. Schadenfreude is a powerful thing but self-flagellation has a way of allowing people, in time, to forgive the transgressions of others, depending of course on their severity and frequency, and the sincerity of the self-reflection. 

Whereas using your money and the victims’ interests as a means to stamp on the media, particularly when there’s a worldwide campaign in full swing, rarely ends well. Money may not matter in the end. 

25 October 2018

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#MeToo – a year on: Lessons for law firms

It’s a year since the start of the #MeToo movement and perhaps more than any other profession, various big name law firms have found themselves tested by the challenges of this new era.

No longer are complaints of sexual harassment or misconduct an HR issue. A firm’s response now has to be considered through a more complicated prism of reputational risk – to ensure fairness to the victim and the accused; the right legal and ostensibly moral path. Management’s reaction is open to considerable public scrutiny whilst often the individuals concerned prefer a private and confidential process.

It’s clear the old ways of dealing with issues of harassment and misconduct have lost their viability. Yet there is no single route map to follow. Instead the following considerations are now deemed key to developing a credit worthy response: 

• Should firms conduct an internal investigation or appoint independent external investigators?

• Should NDAs and settlement agreements be used and if so, their use acknowledged?

• What level of information should be disclosed surrounding departures – did that person’s behaviour ‘fall short of company values’ or was it abusive or worse? 

• Is it realistic to think “inappropriate behaviour” will hold as a public line or will rumours of the real reasons for a departure cause greater reputational harm than transparancy?

• Should firms be proactive about changes to policies and procedures on alcohol, zero-tolerance, inter-office relationships which may cause a greater hostage to fortune? 

• Will leadership – managing partners, HR Directors and even Comms heads – find their decisions as heavily judged as those of the original perpetrator? (after all it’s often how an untowards event is handled that is critical to long term reputation, rather than the event itself.)

• Will firms who may find themselves serially in the spotlight and which fail to embed culture change, be boycotted by future talent and clients alike?

Wise counsel spanning various disciplines is required to help law firms steer the way through in these tricky times. Lawyers (criminal, employment, regulatory), HR experts, and reputation advisers need to work constructively together. (And partners accused should be probably be assembling their own team with similar expertise too).

From a communications point of view, the earlier reputation advisors are at the table the better; a full briefing of all the facts is essential; preparation both for a final outcome as well as leaks along the way is key; consideration for what can be said when the police or regulators may get involved must be factored in too; thinking about all potential audiences is important.

So far, the court of public opinion is favouring those firms willing to take a brave and robust response to problems. As much transparency as possible is critical to this trust. But the minute there is an inkling that an organisation has gone through the motions without making difficult decisions, or in extremis that we begin to see exaggerated claims and try-on situations and senior individuals fighting back, the reputational waters may prove even choppier to navigate. 

It will also be interesting to see if degrees of behaviour start to be judged differently. Will bullies or serial sexual innuendo pests come to be viewed differently to those accused of full-on sexual assault? Where criminal sentences are levied, there is surely no way back but if no criminal case is ever brought or won might it be possible for the accused to win back their reputation for legal prowess? A mea cupla I’ve changed interview might be a bold stroke but achievable for the right individual. 

Although the criminal case against Harvey Weinstein may be crumbling it is doubtful his reputation can ever be salvaged. What is certain is the forces he has unleashed and the shockwaves of #MeToo are rocking the legal community and causing serious and ongoing reputational risk. 

19th October 2018

We are recognised leaders in our field. We are proud to uphold the ethical and educational standards for the PR industry as members of the CIPR and PRCA.

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