CRISIS MANAGEMENT

Most (if not all) problems can be mitigated at the pre-crisis stage with an early and targeted crisis management plan.

Pre-crisis planning involves (1) foreseeing pitfalls that may escalate into crises; and (2) formulating crisis management plans for each eventuality.

Problems may be divided into 3 categories – those that resolve themselves without intervention; those that require monitoring and light touches; and those that require aggressive intervention. This is a judgment call that should be entrusted to experienced individuals with good foresight, excel in damage control strategies, and work well with news (scandal) chasers.

An under-estimation of the problem may result in inaction or inadequate action which may worsen the problem. An over-estimation of the problem may lead to an unnecessary sacrifice (e.g., disclosing the problem prematurely and causing unnecessary alarm).

Covering up a problem may be achieved by a Non-Disclosure Agreement. However, not all crises can be privately settled (e.g., criminal matters), and not all settlement agreements are legally enforceable (e.g., if the settlement agreement is poorly drafted or defective).

Some crises may involve a criminal offence which cannot be resolved by a Non-Disclosure Agreement and a civil liability which may be resolved by a Non-Disclosure Agreement. In the wrong hands, a poorly drafted Non-Disclosure Agreement may even fall foul of our criminal laws.

Where there is already negative media coverage or speculations on your crisis, a failure to respond may be interpreted by critics and the public as a silent acknowledgement of guilt. On the other hand, a measured and effective public statement may go a long way in preserving your reputation before public opinion is set against you. Unknown to many, “No comments” is one of the most common, and worst things, that a scandal-ridden individual could say to the media when given an opportunity to comment.

The ideal safeguard is to have comprehensive pre-crisis planning carried out so that all identified risks are minimised, and all identified eventualities are guarded against.

Where a crisis arises without the benefit of pre-crisis planning, it becomes even more crucial that your response to the crisis is formulated with crisis management advice.

Numerous legal options are available including injunctions to prevent certain acts from being carried out, enforcement of Non-Disclosure Agreements, commencing a defamation suit, taking action under the Protection from Harassment Act (“POHA”), etc. However, making a wrong judgment call to pursue a cause of action may cause the problem to spiral into a full-blown public relations crisis.

A wrong word or action may prejudice your legal options or worsen the crisis.

Crisis management is best left in the hands of experts who are law-trained. An individual who is savvy without being law-trained is the poster-boy of the saying “A little knowledge is a dangerous thing”.

If you give your side of the story without restraint, your adversary may subsequently pin you down in Court with your earlier admissions and concessions that you unwittingly made without legal advice. Your adversary may also discredit you with the inconsistencies between your earlier public statements and your factual account in Court.

Communications made in the heat of the moment without legal representation may also be emotionally charged and unnecessarily destroy business relationships or arm your adversary with evidence against you.

If you fail to communicate or act on certain issues, you may unwittingly waive your legal rights to take legal action. The doctrine of waiver (or estoppel) prevents an individual from enforcing his legal rights if his prior words or conduct are relied on by another.

As with any other contract, a Non-Disclosure Agreement requires offer and acceptance, consideration, and intention to create legal relations to be valid and enforceable. Its terms also must not be illegal or contrary to public policy. Thus, one can see the folly of a “home-made” Non-Disclosure Agreement.

The only way to be sure that your Non-Disclosure Agreement constitutes a binding and enforceable contract is to have it customized for you by a lawyer.

For every clause that can be found in a Non-Disclosure Agreement, there would be a plethora of case law that interprets that clause. The nuances of every word in every clause would have been litigated and deliberated by lawyers and the Courts. Needless to say, “home-made” Non-Disclosure Agreements would not have taken all these legal issues into consideration.

If your Non-Disclosure Agreement is binding and enforceable, you may apply to Court for an injunction to prevent the disclosure of confidential information protected by the Non-Disclosure Agreement, or damages for losses caused by such disclosures.

Even where you have a Non-Disclosure Agreement, insisting on its enforcement in Court may not always be the best response to your crisis.

To succeed in a defamation claim you must show that the statement was untrue, communicated to a third party, spoils your reputation, and caused you to suffer a loss.

The common defences to defamation include justification (i.e. the statement was true), fair comment (i.e. the statement was a fair opinion), and qualified privilege (e.g. the privilege given to newspapers to report certain proceedings).

Where anonymous attacks are made against you on an online platform, it is usually difficult to pursue a defamation suit as a result of the anonymity of the attacker.

Under the POHA however, the Court may make a range of orders against the online platform even if the poster is anonymous. Where the attacks involve false statements, the online platform may be subject to a Targeted Correction Order (i.e. an order for the platform to inform all users who accessed the statement that the statement was false and to provide a corrected statement of facts); a General Correction Order (i.e. an order for the platform to publish a general statement that the statement was false and to provide a corrected statement of facts) or a Disabling Order (i.e. an order to disable users from accessing the false statement).

Where the anonymous attacks amount to criminal harassment (e.g. doxxing, or provoking violence against you), you may make a police report. However, once a police report is made, you would have no control over the investigation or if it uncovers facts which you do not wish the public to know.

There may be situations where a strongly worded lawyer’s letter suffices to cow an adversary into backing down. Threatening legal action is also one way to reserve your right to commence legal proceedings. However, threatening legal action without first seeking legal advice may cause the opposite effect of emboldening your adversary if your threats reveal your lack of legal knowledge or undermine your legal position.

The threat of legal action may also drive your adversary into the arms of a lawyer which more often than not emboldens an individual since he now knows what he is doing.

Taking an overly confrontational stance may escalate an otherwise solvable problem into a full-blown crisis. Take for example the Horizon Group Management case. Horizon, a Chicago property leasing company, sued a former tenant for an allegedly “defamatory tweet” which complained about its apartments being mouldy. Instead of silencing the tenant, the defamation lawsuit made headlines and ignited public outrage against Horizon for making a grossly disproportionate show of force against an underdog individual.

In general, you would not be able to compel a news platform to stop publishing negative (but truthful) news about you. Seek professional legal advice if you wish to know whether the news publication has “crossed the line”.

Even without resorting to legal remedies, taking professional crisis management advice would assist you to make informed decisions about how to effectively respond to negative news coverage.

Compensation is usually recoverable only if you succeed in a civil claim. In certain criminal prosecutions, the Prosecutor may seek a compensation order on behalf of the victim; but they have no general duty to do so.

In defamation suits for example, the Court’s approach to assessing compensation would take into account your standing and reputation, the reach of the defamatory statement, and any evidence of harm to your reputation.

In some situations, starting legal proceedings may not be the best course even when you have a strong claim for substantial compensation. For example, when your compensation may be recovered in a private settlement; or when legal proceedings may attract further unwanted public attention.

While crises are usually seen as undesirable events, a well-managed crisis can be an opportunity to boost the standing of your personal brand.

In a well-managed crisis, there is some truth in the saying “There is no such thing as bad publicity”.

Even where you are forced to “pick your poison” in a situation where all the possible options seem undesirable, professional legal and crisis management consultancy is invaluable in helping you find the lesser of all the evils.

The answer to this question is “NO” if you already knew the answers to all the questions in our FAQ! Contrary to the saying, ignorance is not bliss and as another saying goes, a little knowledge is a dangerous thing. Are you wasting precious time in blissful ignorance when you could be taking certain actions to mitigate the situation? Are you worrying about any of the above issues unnecessarily? Information is the key to peace of mind. Time is your enemy in crisis management. The earlier you seek advice, the sooner you can mitigate (or even exploit) the crisis. Don’t waste precious time – seek crisis management advice as soon as possible.