Dispute resolution

Reputation and Brand Management

Reputation and Brand Management disputes resolutions for start-ups, scale-ups and the entrepreneurially spirited

We understand that it takes a lot of time, investment and resources to build a strong reputation and brand but it can easily be damaged or destroyed in seconds by the publication of defamatory, private or confidential information. Information, whether it is true or false, has the potential to spread very quickly, but the increasingly popular use of social media means that it can immediately also go viral, often with little or no notice.

Whether you are a start-up, SME or individual, how you respond to a crisis is key to maintaining your reputation and limiting any potential damage. This requires fast and decisive action.

Reputation management experience

We have experience in many areas of reputation management including the following:

  • Advising publishers on pre-publication advice including content clearance
  • Advising employers on the misuse of confidential information by former employees
  • Preparing take down notices for material posted online or on social media including fake profiles, defamatory and private/confidential information
  • Preparing and advising on non-disclosure agreements and breach of them
  • Seeking and defending emergency injunctive relief to protect confidential information and enforce non-disclosure agreements

Legal Considerations

Defamation

Defamation is the publication of material that tends to lower the claimant in the minds of right thinking members of society or is likely to adversely affect a person’s reputation. There are two types of defamation: slander (transient forms such as spoken word or gestures) and libel (lasting forms of publication such as online, print, broadcasting).

To have a viable claim for slander, you need to prove tangible damage. In contrast, libel is actionable where harm is proven or is likely to be caused.

The courts have clarified that there is an enhanced threshold of seriousness for defamation claims. You must be able to demonstrate that the publication has caused or is likely to cause serious harm to your reputation. In the case of a body that trades for profit, you must show that the serious harm has caused or is likely to cause serious financial loss, such as a loss of customers or a significant drop in share price.

Confidentiality

In order to bring a claim for breach of confidence, you must be able to prove that the information is:
a) confidential and not in the public domain;
b) disclosed in a manner where there is a duty of confidence; and
c) used in an unauthorised way.

An action for breach of confidence is used in a wide range of situations, such as client data, technical information about a product, photographs etc.

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Other factors to Consider

There is a one year limitation period for claims of defamation which runs from the first date of publication. This means that claims in respect of articles online which continue to be accessed must still be brought within one year, regardless of the fact that they may continue to be published for many years, unless you can prove that the subsequent publication is materially different to the original publication.
There is a six year limitation period for claims of breach of confidence which run from the date of the breach.
A defendant may have a defence to a claim for breach of confidentiality if it can prove that there is a public interest in disclosing the information.
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Other factors to Consider

Company buyback of shares and subsequent cancellation.  This can be a useful route provided 75% of the shareholders will consent as the Company meets the acquisition cost; however it must have sufficient surplus cash.

If a founder is looking to step aside then perhaps a reorganisation can assist with the variation of rights but retention of financial reward.

An anti-embarrassment clause can operate effectively in any settlement agreement, with the sale price for shares being uplifted if an event such as a sale of the business occurs or funding is received subsequent to exit.

A key to the resolution of a dispute is often an independent valuation of the relevant shareholding.  To secure this the parties will need to determine the basis of the valuation.

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