reputation and crisis management...> charterhouse clinical v richmond pharmacology (2003)...

Please treat all transactions and clients' names as confidential

Reputation and crisis

management – the legal

dimension

PTMG 91st Conference

Warsaw

Timothy Pinto

2 October 2015

http://www.taylorwessing.com/




˃ Threats

˃ 3 stages

˃ Defamation law

˃ Pre-publication

˃ Post-publication

˃ Germany and Poland

˃ Social media

Topics



Main sources of threat

Media

Ex-employees

Security breaches/data

loss

Adverse events & product liability

Whistle-

blowers

Directors' & employees'

conduct

Regulatory

Investigations

Social media

Where do the threats to a company's reputation come from?



Pharma specific

> Off-label promotion

> Failure to report negative clinical

trials

> Products causing death/injury

> Failure to report adverse events

> Animal testing

> Patenting life

General

> Security breaches/data loss

> Competition law violation

> Tax avoidance/evasion

> Treating employees badly

> IP infringement

> Paying bribes/corruption

> Environmental damage

> Fraud

> Misconduct by CEO/directors

(sex, drugs, etc)

Possible allegations



1. Early planning

– Identify potential vulnerabilities

– Crisis team/plan, including PR and legal

– Social media policies/confidentiality agreements

2. Pre-publication/broadcast – see below

3. Post-publication/broadcast – see below

3-stages



> Applies to all media (including Twitter)

> Defamatory if statement substantially effects in an adverse manner the

attitude of other people towards claimant

> Not defamatory unless statement caused or likely to cause:

– for a body trading for profit, serious financial loss

– for individuals, serious harm to reputation

Defamatory meaning - general



> Criticism only of goods or services is not defamatory

> Charterhouse Clinical v Richmond Pharmacology (2003)

– Email claimed: there was a question mark over Charterhouse's

provision of effective clinical trial services because most of its

clinical research team had left to join Richmond

– Held, no imputation against company itself. Not defamatory.

Goods and services



> U.S. Judge Easterbrook (1994):

– "…Scientific controversies must be settled by the methods of

science rather than by the methods of litigation.… More papers,

more discussion, better data, and more satisfactory models – not

larger awards of damages – mark the path towards superior

understanding of the world around us."

> British Chiropractic Association v Singh (2010)

– "…The [BCA] claims that their members can help treat children with

…frequent ear infections, asthma and prolonged crying, even

though there is not a jot of evidence…"

– English Court of Appeal:

Singh's criticisms were opinion not fact

Scientific debates should not be resolved by the courts

Scientific speech



> Publisher has burden of proof:

– Substantial truth

– Honest opinion

– Publication on a matter of public

interest

– Fair & accurate report of

proceedings of a scientific or

academic conference

– Peer-reviewed statements in a

scientific or academic journal

Defences



> A newspaper journalist emails a

pharmaceutical company at 3pm on a Friday.

> She says she is going to publish her article on

Sunday. She asks for an interview with a

senior manager and gives a 6pm deadline.

> How to respond?

> What can be achieved?

> Will the English court grant an injunction for

defamation?

> Use of lawyers and/or a PR?

Pre-publication - example



> What can be achieved?

– Right of reply

– Take down (online only)

– Amend article (online only)

– Clarification

– Apology

– Undertaking not to repeat the

allegation or similar allegations

– Damages and/or costs

> How to achieve it?

> Press and broadcast regulation

Post-publication/post-broadcast



> Civil Code protects against damage (including to reputation)

– Individuals rely on personality rights

– Companies rely on property rights

> Defences of truth (with exceptions) and public interest/good faith

> Obligatory right of reply

> Ex parte preliminary injunction possible shortly after publication

> Criminal defamation exists but rarely used in press context

German media law



> Personal rights protected under Civil Code (individuals and companies)

– See Stankiewicz v Poland - European Court of Human Rights

(October 2014)

> Obligation to respond to media queries

> Criminal liability exists for discrediting a person/business

Polish media law



> Intermediaries (e.g. websites and ISPs)

– Potential liability?

– Notice and take down?

> Discovering the identity of anonymous users

Social media



Europe > Middle East > Asia www.taylorwessing.com

© Taylor Wessing LLP 2013

This publication is intended for general public guidance and to highlight issues, it is not intended to apply to specific circumstances or to constitute legal advice. Taylor Wessing's international offices operate as one firm but are established as district legal entities. For further information about our offices and

the regulatory regimes that apply to them, please refer to: www.taylorwessing.com/regulatory.html

Europe > Middle East > Asia www.taylorwessing.com

© Taylor Wessing LLP 2014

This publication is intended for general public guidance and to highlight issues, it is not intended to apply to specific circumstances or to constitute legal advice. Taylor Wessing's international offices operate as one firm but are established as district legal entities. For further information about our offices and

the regulatory regimes that apply to them, please refer to: www.taylorwessing.com/regulatory.html

Any questions?

[email protected]

+44 20 7300 4287


mailto:[email protected]


Over 1,200

lawyers


reputation and crisis management...> charterhouse clinical v richmond pharmacology (2003)...

Documents