Friday, 27 May 2011

Why injunctions are an outdated solution

I doubt many people in the country are really that interested in the love life of Ryan Giggs particularly if you consider the the personal issues faced by many of his team mates and peers in the premier league.

The Daily Mash parodied the fact that it is hardly an earth shattering news story.

Yet the story has been played out for weeks. Even before the discussion about injunctions rose, the rumour mill had been churning out suggestions over the Manchester United player.

Like cats, curiosity is something most people have as a nagging urge in the back of their mind. Who was it and why keep it secret? Why an injunction? It’s this that has driven the media frenzy. My cat certainly hates a closed door.

The world has been changing subtly over the last ten or so years. With the information age has come a democratisation of facts, statistics and documentation. With the world opening up, the old tried and trusted tactics of the crisis manager have changed.

Many companies have learnt that clamming up is costly and it’s not the first time that an injunction or super injunction has caused this type of furore. A similar thing happened with Trafigura, one of the world’s biggest oil traders who put an injunction in place over claims made by The Guardian that waterways were being polluted in the Ivory Coast.

The barring of comment brought anger, recrimination and a serious vault face by Trafigura and their law firm Carter Ruck. This damage of reputation was worse than the investigation itself. Not only was there a slur on their names, but there was a concerted effort to cover it up.

That’s basically what an injunction is and an individual or organisation has to think really hard about why they are using an injunction and what it will achieve. In a blackmail case it would be justified, particularly if someone was being set up. Equally there might be genuine privacy issues at heart.

Playing away, in my mind, isn’t a privacy issue. It is a choice that individuals have made and normally the actions caused are made in public buildings like hotels rather than in the home. Equally, if you do something wrong, you face the prospect of being found out. Trying to obscure and hide your identity from your wife and children is a choice unavailable to most and hardly a just cause.

The easiest way to prevent a crisis situation is not to get yourself buried in one voluntarily. If a situation arises, you have two options. Silence or honesty.
In the older days it was easier to assess the situation. Who knew what, what evidence there is and how would a situation arise? A journalist asking uncomfortable questions would be trying to find a fact he can’t prove by bluffing and bravado. Ignoring journalists and carrying on regardless used to be the best way.

Nowadays with more information, it is easier to request information and search documents which may or not prove guilt. It is far more practicable to be honest and open. It not only makes businesses think more about the decisions they make but it also impacts on their social responsibilities in the community.

Corporate Social Responsibility has been seen as a smoke screen for business decisions. BP still has the oil tankers which claim to be carbon neutral. But true Corporate Social Responsibility goes to the heart of a business, its values and its brand. Footballers, too, have a brand image linked to countless sponsors desperate for their endorsement. Brand Giggs is/was a wholesome family man, active with charities and a vital part of a big team.

So he, and possibly his advisors, tried the closed door approach to crisis management to protect the reputation of the Giggs brand. At the point the information was to come out, Giggs instead should have taken a different course of action. He needed to tell those closest to him the situation and what was to happen. He needed to manage the information flow, possibly getting an “exclusive” with a tabloid. The reaction would be "oh dear, another footballer in trouble, now where’s the news."

Being honest, open and holding up your hands is more of a virtue than running for cover at the first sign of trouble. What has made it worse is the litigious second half of this situation – the legal disclosure request from Twitter and the potential contempt of court. Telling people who believe in free speech to shut up and stop mentioning his name isn’t going to do anything other than infuriate that group. It is against the public interest to prosecute en masse thousands of people for a widely circulated rumour.

There have been similar issues over graffiti before social media, proving knowledge outside court injunctions. If one person is selected, it is then seen as a malicious prosecution: “why only me?”. If the originator of the rumour is ever found, how can you prove their knowledge of the injunction and that they hadn’t found out another way. Looking at the twitter account mentioned in the media, it looks like a list of guesswork, parody and speculation rather than someone with any real knowledge.

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