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The New Public Interest

The concept of ‘the public interest’ is at the heart of the most significant issues affecting reputation, from protecting confidences to reporting controversial topics. The pandemic is changing the relationship between business and the state, and will change how you protect reputation.

The impact of the Covid-19 pandemic has reached far beyond the public sector and into private enterprise. With private businesses accepting public funds in the form of furlough payments, government loan schemes and tax payment deferrals, a sharper eye is now being cast over the conduct of companies, company owners and executives leading to new risk around the concept of public interest in reputation law.

Valid public interest arguments in reputation law can operate like a trump card – what would in other circumstances be unlawful to publish is legitimised because there is such overriding public interest in the material being disclosed. Typical company activity which may be considered to have a heightened level of public interest include misconduct, breach of regulatory codes and failure to safeguard public health and safety. Further, company owners and executives could see their private lives under the microscope, particularly where overlaps are perceived to exist between the individual’s business and private life.

The public interest defence comes into play in reputation law in a number of ways. The law provides protection for publishing false allegations, disclosing confidential information and intrusion into personal lives that would not otherwise be allowed where public interest arguments are found to be well-founded. Likewise the ability of employees to blow the whistle publicly on areas of concern in their work place centres squarely around the role the public interest plays in the disclosure.

How is the pandemic changing the public interest?

Businesses that have accepted state subsidies during the pandemic are likely to face a far greater level of scrutiny than ever seen before - likely for years to come - and the prominent individuals in receipt of dividends and bonuses from these businesses will equally be under the spotlight. We are expecting greater scrutiny of financial decisions taken by companies that have been beneficiaries of state subsidies during the pandemic, contractual disputes, redundancies and how businesses implement ever-changing and conflicting health and safety measures.

What can be done to help mitigate the risks?

In this stark and unprecedented climate, we suggest businesses take these five essential measures to help protect reputation and overcome the greater scrutiny:

  1. Forget about business as usual: Businesses will be judged on how they conducted themselves in the course of this pandemic and how they treated its employees, board members and community. Even when dealing with non-legal issues, the public interest will be prevalent.
  2. Tune the antennae:Having a keen ear to how company actions will be perceived and who might attack them is going to be absolutely critical. Tracking sentiment as it evolves and identifying the best way to handle emerging issues gives a better chance of successfully protecting reputation and privacy.
  3. Scenario plan for difficult decisions: While scenario planning is incredibly difficult in an unpredictable situation such as this, it is important to plan for what is coming down the line - what negative issues may arise and what difficult decisions which are going to have to be made as well as establishing how best to respond to them.
  4. Educate, educate, educate: No matter how seasoned a senior team or senior executive is, they will not have experienced a business climate such as this. Discussion and education around how actions will be perceived by the public are vital.
  5. Identify the public interest: We all know there is also public interest in businesses continuing to operate and the economy functioning. When facing issues such as those outlined above and looking at how to explain particular actions, perhaps such as executive pay or dividends, consider what the public interest argument in favour of your position is.