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How to protect reputation from illegal conduct

The right use of civil law remedies can offer strong protection against reputation harm caused by involvement in criminal justice processes

The impact of crime on businesses and individuals, particularly those in senior roles and/or with a high net-worth, is seldom discussed despite the reputational repercussions of being a victim or becoming embroiled in investigations relating to a crime. Few are aware of civil law remedies that may be available to limit the fall-out and help mitigate financial losses, maintain freedom to operate and give those affected the peace of mind that their public profile won’t be forever tainted by someone else’s wrongdoing.

Difficult economic times usually increase remote crime and companies and high-profile individuals tend to be the targeted victims or, occasionally, the subject of the investigation. The main crimes tend to be:

In both instances, co-ordination with law enforcement is the first critical step to establish who the perpetrators are and to be able to bring these actions to a stop with minimal disruption to the business and its operation. However, civil action can be taken concurrently - further steps, such as Norwich Pharmacal Orders against third parties who refuse to disclose their identity, injunctions preventing disclosure of confidential information or reporting restrictions during criminal court hearings may also be considered.

1. Pre-charge and investigations stage

The civil courts recognise the subject of a criminal investigation up until the point of formal charge should be entitled to privacy - particularly because many investigations do not progress this far and, as such, it is not thought necessary for anyone outside the investigating force to know any details. There may be exceptions to this where the crime relates to an individual’s fitness to carry out their duty - for example a Finance Director being investigated for fraud. While it may not be possible to keep such investigations out of the public domain, confidential information relating to the investigation are usually off limits. Likewise victims of offences are also entitled to privacy in some circumstances, and anonymity in others. Identifying the rights at an early stage before publication begins offers the best chance of protecting against intrusion.

2. Protection during proceedings

During court proceedings, up to and including trial, reporters are constrained by strict liability contempt of court, aimed at preventing publication of articles which could prevent a fair trial, which usually serves to limit pre-trial publicity. Reporting of the proceedings themselves is protected so long as it is a fair and accurate account of proceedings. In some circumstances – including some blackmail offences to avoid the Court proceedings effectively executing a blackmail threat – victims are entitled to anonymity in the proceedings as a matter of public policy.

3. Moving on from historic problems

Most jurisdictions have some form of rehabilitation of offenders regime, allowing those who offended some time before to be treated as if the offence had not happened. Consequently details of an historic offence will be private too unless a serious element of public interest comes into play.

Given the role online search plays as a virtual CV, the quickest and most cost-effective route to move past historic details is through the “right to be forgotten” process. Search engines are deemed collectors and processors of data under data protection law and are therefore required to remove data which is “inadequate, irrelevant or no longer relevant.” There is no definitive answer to what Google will or won’t remove, but in considering whether material is inadequate or irrelevant search engines will look for publications containing material inaccuracies and/or private information. The “no longer relevant” element includes publications which are years out of date.

Delisting can typically be expected where it relates to a genuinely private matter with no outweighing public interest, such as information relating to a person’s personal life. Conversely, if relevant to a person’s professional life, for example if it may influence another’s decision as to whether to do business with them, it will be more difficult to achieve a delisting unless material inaccuracies are present in the publication. Much will depend on the individual facts.

Where Google refuse to delist, their decision can be appealed to the Information Commissioner’s Office. In our experience, if the ICO overturn the decision Google are quick to comply with the delisting.