In light of Trafigura’s much-reported injunction, is it harmful to put lawyers – rather than communicators – in charge of protecting an organisation’s reputation?: Welcome to the Likemind Debate, a monthly email dialogue brought to you by Likemind.

Yes, says Stephen Waddington, managing director of London-based PR agency Speed Communications. Taking the lawyers’ view is Richard O’Hagan, a solicitor at Brittons in Beaconsfield and regular writer for the Daily Mail.

Dear Richard,

Good to meet you. This should be interesting.

Trafigura’s legal attempt to stop The Guardian from reporting on a question about Trafigura in Parliament and the resulting attention from the media is likely to become a text book case study for future students of both communication and the law.

It is unlikely that UK consumers had heard of Trafigura before this incident. But they almost certainly have now.

The speed of communication and network effect of the internet meant that the legal effort to sensor The Guardian backfired, generating widespread coverage across the internet and mainstream media. It’s a phenomenon called the Streisand effect after Barbra Streisand attempted to suppress photos on a website of her Californian home in 2003. It generated attention on the case and the images were widely publicised.

In a corporate environment when a legal situation arises that could have an impact on a company’s reputation it is critical that the communication issues are managed hand-in-hand with the developing legal situation.

Retrospectively mapping a communication plan onto a legal action rarely works. The communication team can’t possibly have a full understanding of all the issues in play and the legal team is unlikely to be aware of the full communication ramifications of its decision.

All the best, Stephen

Dear Stephen,

I think this is a classic case which emphasises that you cannot apply the same solution to every situation.

The very essence of the Trafigura case is that they didn’t want there to be any publicity at all. That, in itself, would seem to rule out the use of communications professionals.

To that extent, the involvement of their solicitors, Carter-Ruck, was entirely successful in the first instance. The problem only occurred because they went further and tried to ban the reporting of events in Parliament, which of course set every civil libertarian twittering like mad about it.

A solicitor has a responsibility to advise their clients of the likely consequences of the action which they (the solicitor) are being asked to take. It seems to me that, on this occasion, Carter-Ruck may have underestimated the power and resourcefulness of others, and the speed with which information can now be disseminated through media such as Facebook and Twitter.

This one mistake doesn’t mean that Carter-Ruck are bad lawyers or that the law should never be applied to protect a client’s reputation. That there are other Trafigura-type injunctions out there which have held good is ample proof of this.

Regards, Richard

“When a legal situation could have an impact on reputation, it is critical that the communication issues are managed hand-in-hand with the developing legal situation. Retrospectively mapping a communication plan onto a legal action rarely works”

Hi Richard,

Granted, not every legal situation will have an external communication component. But all have the potential to leak and have a devastating impact on an organisations’ reputation.

Best practice dictates that all organisations should have a crisis management plan – and in the case of an ongoing corporate legal situation the communication team should have a reputation management plan and be primed throughout.

The internet has changed the rules of reputation. Information can be published and dissipated through networks at high speed. Mainstream media gets in on the act by reporting not on the news itself but how it is being dissipated.

The damage is immediate and long lasting. Once content appears on the web it remains there forever – typically at the top of Google search results.

In this new era of media, stories take on a viral form, traditional media relations techniques don’t work and legal muzzles are meaningless. Quick response is critical. Organisations need to engage using the appropriate tools, namely blogs, Facebook, Twitter and YouTube.

It’s not easy for an organisation to engage in this way. It requires a strong planning framework and senior involvement. Communication cannot be a bolt-on activity or an afterthought. It needs to be at the heart of the decision-making process.

Best regards, Stephen

Dear Stephen,

That almost sounds like you are agreeing with me! If, in order to protect your client’s reputation, you need to obtain an injunction – or even one of the new super-injunctions – you need to act quickly. If you delay, there is likely to be some resistance from the court to granting the injunction.

Putting a communication strategy in place takes time that, frankly, the client probably doesn’t have. Indeed, if it leads to the injunction being refused, it would be counterproductive in the extreme.

The speed of response is, as you say, dictated by the speed of the media available to disseminate the information. In the modern world, it is going to be increasingly difficult to control this without the use of injunctions. If anything, the role of lawyers is going to be more, not less, important. I am not saying that there is no role for communications professionals, but I think that their role comes after the legal process, not before it. I think Trafigura is, perhaps strangely, a good example of this. Most people remember Carter-Ruck as the law firm who tried to gag Parliament, but not that the reason was to protect a company accused of dumping toxic waste on the Ivory Coast.

Kindest regards, Richard

“The very essence of the Trafigura case is that they didn’t want there to be any publicity at all. That, in itself, would seem to rule out the use of communications professionals”

Dear Richard,

No. There’s no danger of agreement breaking out.

There are two issues in play here: how and when communication teams are involved in an ongoing legal situation; and media fragmentation disrupting the legal process.

On the first point, communication planning has to be at the heart of the decision-making process, not an afterthought as you suggest. You’re not going to dissuade me otherwise.

Second point: legal process is out of step with social media; crowds online have no respect for injunctions. You can’t bring an injunction against a conversation online. You could block or shut down a web site but conversations simply move elsewhere.

Yes, there are reportedly 300+ super injunctions holding tight in the UK. But Trafigura showed the flaw in the legal framework and the need to participate and lead conversations not block them.

Best regards, Stephen

Dear Stephen,

I didn’t say that a communication strategy had to be an afterthought. I said that it was likely to be a hindrance to the legal process to try to construct a communication strategy at the same time as taking the sort of urgent legal action necessary to protect a client’s reputation.

That something went wrong in the Trafigura case doesn’t detract from this. As you say, there are another 300+ super-injunctions holding firm at the moment.

While the internet may be no respecter of injunctions, the fact is that injunctions have always been breached and always will be breached, but generally speaking there is little interest in the sort of global breach which occurred with Trafigura. After all, there’s been no Twitter campaign to persuade Andrew Marr to drop his injunction, has there?

For my part, I have always been happy to work alongside communication professionals and always will be, but there are times where I would be failing in my duty to my client if I delayed doing anything until we had decided upon a communication strategy. You are not going to persuade me otherwise, I am afraid.

Best wishes, Richard