Publicity is a necessary commercial consideration for any organisation, particularly within the context of a criminal or regulatory investigation, or a prosecution. Placing it high on the company's agenda ensures that organisations are able to respond swiftly and effectively to the announcement of such action, enabling them to steer some of the narrative promulgated by mainstream and social media. Any communications strategy needs to be carefully pitched and aligned with legal advice to avoid unintended adverse consequences. Missteps in communications can have a real impact on prosecutorial behaviour and a company's ability to effectively engage with prosecution agencies.
This chapter sets out a number of factors an organisation should consider before and after the commencement of an investigation or prosecution. It goes on to consider the legislation that governs the publication of information and the effect that remote hearings may have on the principle of open justice.
38.2 Before the commencement of an investigation or prosecution
38.2.1 Identify a public relations team
One of the first things an organisation should think about when considering publicity in an investigation or prosecution is who should be at the table when news breaks. Alongside the most obvious candidates (chief executive officer, head of public relations), individuals such as the chief technology officer and the chief data officer or data protection officer should also be considered. That is because once an organisation is placed under investigation or made subject to a prosecution, it will have to put in place document holds to ensure that information is not inadvertently destroyed. Equally, data that is required to be handed over to enforcement agencies is likely to contain personal data, as defined by the General Data Protection Regulation 2016/679 (GDPR). Therefore, data processors should contemplate how such data will be processed in compliance with the GDPR.
Beyond internal stakeholders, an organisation should consider whether to engage reputable and experienced public relations advisers who can help to coordinate any engagement that the company has with other external stakeholders and mainstream media. In addition, if it has not already done so, the company think about whom it intends to instruct as external counsel.
38.2.2 Determine the remit of the public relations team and a response plan
Once an organisation has identified who will be part of the core public relations team, it will need to devise a response plan; that is, determine what needs to be done upon becoming aware of the investigation or prosecution. Actions relating to the response plan can be split into two categories: internal and external. The public relations team will need to determine the role of each member - including who has ultimate sign-off on each decision - and to assign each (internal and external) action to one or more individuals. The team needs to be able to act nimbly and to make and effect decisions in real-time. Many organisations have difficulty in delegating appropriately and getting ahead of the narrative. An ineffective and purely reactive team will lead to poor internal and external relations.
38.2.3 Undertake tabletop exercises
Individuals often do not operate at peak performance when they are panicked or caught off-guard. The same can be said of organisations. It can be worthwhile for a company to invest time in carrying out a rehearsal. A simulation can help to highlight common pitfalls, such as a senior executive providing comments to the press that are not founded in fact. It can also ensure that an organisation can respond to an announcement promptly and effectively, so as to mitigate any damage that can flow from it. Appropriate media training for any individuals interacting with the press is essential.
If an organisation decides to self-report to a prosecutor, where there has previously been no publicity on the relevant conduct, that will afford the company more time to consider how to respond to media interest once the self-report has been made public. It also places a company in the advantageous position of knowing in more detail the facts surrounding the relevant conduct, minimising its risk of having to provide subsequent corrections or clarifications. After self-reporting, a company would be well advised to agree any media reporting with prosecutors.
Originally published in the fifth edition of The Practitioner's Guide to Global Investigations, published by Global Investigations Review.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.