Image crisis and protection of personal rights of a legal person

legal services for companies in Warsaw
Krzysztof Bardel|
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Everyone who runs a business knows how important image is. However, sometimes something can happen that will destroy it. And in an era when social media are very common, the risk of escalating such a situation by spreading information that destroys the trust of a given entrepreneur to wide - potentially unlimited - circles is enormous. Then we can talk about a full-fledged image crisis that needs to be resolved as soon as possible. What can you do then? Where to look for help? What laws provide the answers? And above all - what is the role of a lawyer in this?

What is an image crisis?

An image crisis will be an event that has a negative impact on the society's perception of a given entrepreneur. It will tarnish the image of the entrepreneur, the consequences of which may be truly disastrous. If the negative image of a given entrepreneur permanently sticks to it, it will have a direct impact on the revenues obtained by him, and in the worst-case scenario, the spiral of aversion towards him will lead to the complete collapse of his business.

That is why it is so important to end the image crisis as soon as possible. The key principle is "prevention is better than cure." If a situation arises in which the entrepreneur's image is damaged and the whole matter begins to escalate towards a serious image crisis, you should act efficiently, boldly, but at the same time responsibly and prudently. Violation of a company's personal rights may be all that will happen to such a company, or on the contrary - it may be just the beginning of an avalanche of problems.

What actions should you take when an image crisis occurs?

First of all, don't act hastily. You need to assess the situation reliably and with a cool head, analyze the range of options, and then take action. It will be no secret that image crisis management is usually handled by specialized PR specialists and entire marketing agencies. Therefore, it is pointless to go into their competences here, especially since each situation is slightly different.

However, to answer directly to the above - the first step after recognizing that the situation of a given entrepreneur bears the hallmarks of an image crisis, the scale of which he may not be able to cope with on his own, is to simply turn to professionals. For PR agencies and lawyers specializing in this field, managing social media crises is an everyday occurrence.

Or maybe it will be possible to alleviate the image crisis by acting on your own?

Acting on your own, especially under high stress, which is completely normal in such situations, usually makes the situation much worse. And all in all, you who are reading this text in crisis... you know it subcutaneously.

Real life example:

An entrepreneur producing cars was accused by the public of using engines in his products that do not meet emission standards. The amount of pollutants they introduce into the environment promotes its degradation and contributes to global warming. The entrepreneur, who was irritated by the accusations, posted on his company's social media in which he ridiculed ecologists and questioned the existence of the global warming effect.

Thanks to this entry, the case gained even more publicity, and the "pool of accusations" against the entrepreneur and his company included lack of respect for ecologists and activists and climate denialism.

For this reason, acting on your own can often do more harm than good. It should also be remembered that an image crisis is similar to a boat with holes in it - the more water you pour into it before the hole is sealed, the more you have to pour out later. If we do not react early enough or, worse still, we escalate it ourselves, the consequences and damage may be irreversible, even with the help of the best PR and legal specialists.

Therefore, the greatest chance of effectively averting the crisis is provided by cooperation with both a marketing agency and Law Firm. After all, if it does occur, there are legal measures to limit its scale (such as the so-called "notice-and-takedown" procedure) or to repair the damage if illegal actions have taken place during the "bashing" against the entrepreneur.

As a side note, it should be noted that there is another reasonable similarity in the metaphor of the leaky boat - yes, the boat can also go to the bottom quite quickly...

Why do you need a lawyer in case of infringement of an entrepreneur's personal rights?

The crisis itself should be managed primarily by a specialized agency or law firm; in fact, these functions overlap, and the work of a lawyer specializing in crises may often prove crucial. In the context of selecting the appropriate strategy, communicating with the media or preparing appropriate messages, the PR specialist often plays the main role, but at each of these stages a lawyer can "put in his two cents". It is important that he knows what he is doing, i.e. he has experience in such matters. Otherwise it may make the situation worse.

First of all, when preparing any communications, it is worth having a professional lawyer familiar with matters relating to the protection of personal rights analyze whether there is any unnecessary infringement of personal rights. Rather, you should act in accordance with the strategy described above and strive for de-escalation. In response to the violation of the personal rights of a legal person, a second violation of someone else's personal rights - this time of natural persons - will most likely only exacerbate the crisis.

Different types of responsibility

Next, if criminal liability may be involved, it is a good idea for the lawyer to include fragments in the message that may have a mitigating effect on the penalty. Let us emphasize - a lawyer is not a miracle worker who will change the situation of a person in crisis with a few magical phrases. If someone has committed a crime, he will have to answer for it, but a reasonable lawyer may be able to prove that no crime occurred or, already at the stage of crisis management, before the case inevitably goes to court, direct the actions of the person concerned so that the punishment is as lowest. The lawyer will also advise on what actions to take to keep the penalty as low as possible. Often, for PR reasons, it will be necessary to submit to punishment. Society demands retribution for a crime, so completely avoiding punishment would be perceived poorly. However, an effective lawyer will be able to raise appropriate arguments to make the amount acceptable to the client.

Example:

The celebrity drove a car under the influence of alcohol and hit another car parked on the sidewalk.

The marketing agency, in cooperation with a lawyer, will prepare a statement in which the perpetrator admits guilt, apologizes, confirms that he sees the reprehensibility of his actions and is sorry, and will also take steps to repair the damage he has caused. These actions may help both to repair the image and reduce the penalty.

An example would be a situation in which a car driven under the influence of alcohol hit a city bus. Fortunately, no one was hurt, but the material damage was very large. This celebrity, on the advice of specialists, published the following statement:

“Last night I got behind the wheel of a car after drinking alcohol and caused a collision in which, fortunately, no one was injured. There is no excuse for my lack of responsibility and imagination. I apologize to everyone for my behavior, especially my closest relatives and those who felt let down and disappointed by my attitude.

He then promised to get involved in actions promoting drivers' sobriety.

Ultimately, he was sentenced to a fine of PLN 20,000. PLN fine (the amount of the penalty was adjusted to his high earnings), a 3-year driving ban and a payment of PLN 5,000 to the Victims' Assistance Fund and Post-penitentiary Assistance. Taking into account that, in accordance with criminal regulations, he was liable to imprisonment for up to 2 years and that the act committed by this celebrity was reprehensible, it should be concluded that the court treated the perpetrator leniently.

Therefore, it is difficult to ignore the role of lawyers and PR specialists in this respect. The latter also repaired his image so much that after the incident he returned to his previous roles as sports director of a football club and an expert on one of the most popular television stations.

Another aspect a lawyer can help with is repairing damages resulting from the crisis. After all, in this respect, various types of compensation claims may be considered, which are based on the unlawful behavior of persons involved in attacking the entrepreneur. This may result in damage strictly material (e.g. destruction of the headquarters as a result of a campaign), but also image-related, as described below. Claims for unfair competition may also be considered in appropriate circumstances.

Protection of the entrepreneur's good name - legal aspects

However, the most important thing that a lawyer can do is to fight for the entrepreneur's good name. Many accusations made during a crisis will potentially be untrue. The role of a lawyer in this respect is to manage effectively to select appropriate legal instruments that minimize damage to the entrepreneur's image. This may result in undoing the lies that have destroyed the entrepreneur's image and then enabling him to return to normal business activities. Often, cleaning the image in the courtroom combined with publishing an apology is the only effective remedy. But is this the rule?

Our practice shows that rash threats of lawsuits and taking the case to court are not always - or even rarely - a good tactic. Although often an entrepreneur, acting out of emotion, demands it as a kind of "retaliation" for attacking his company, it will often bring more harm than benefits. So what should a lawyer's action plan be?

First of all, he should determine whether we are actually dealing with a violation of personal rights. At this point, it is necessary to outline the legal background of the situations discussed.

What specific legal provisions protect companies and their image?

In the presented scope, only three provisions will be helpful, but due to their disposition and intentional vagueness, they leave a lot of room for asserting rights. This is about Art. 23, 24 and 43 of the Civil Code. The first two of them define what personal rights are and what the injured party can demand in the event of their violation. They refer to violations of the rights of natural persons. Article is helpful in this respect. 43, which specifies that these provisions also apply in the event of infringement of the personal rights of legal persons, i.e. - in simple terms - companies, partnerships, enterprises, etc.

Art. 23 

Human personal rights, in particular health, freedom, honor, freedom of conscience, name or nickname, image, confidentiality of correspondence, inviolability of home, scientific, artistic, inventive and rationalization work, remain under the protection of civil law regardless of the protection provided for in other regulations.

Art. 24 

  • 1. A person whose personal interest is threatened by another person's action may demand that such action be discontinued, unless it is unlawful. In the event of a breach, he may also demand that the person who committed the breach completes the activities necessary to remove its effects, in particular to submit a declaration of appropriate content and form. Under the terms provided for in the Code, he may also demand monetary compensation or payment of an appropriate sum of money for a specified social purpose.
  • 2. If property damage is caused as a result of the infringement of personal rights, the injured party may demand its redress under general principles.
  • 3. The above provisions do not prejudice the rights provided for in other provisions, in particular copyright and invention law.

What are the personal rights of a legal person?

In this respect, the case law of the courts will be helpful, as it will be decisive in the event of a dispute regarding the personal rights of a legal person.

"Personal rights of legal persons have been defined as non-property values thanks to which the legal person can function in accordance with its scope of activities."

Judgment of November 14, 1986, II CR 295/86, OSNCP 1988, No. 2-3, item 40

"One of the basic personal rights of a legal person is the reputation (good name, prestige) of the enterprise understood as all the positive images and evaluations of consumers corresponding to the honor of the natural person.:

Judgments of the Court of Appeal in Warsaw of December 19, 1995, I ACR 1013/95

The protection of personal rights of a legal person basically covers goods related to its operation and ensuring its uninterrupted operation, in particular such as its name (company), trademark, commercial opinion, and confidentiality of correspondence. The personal good of a legal person is also its good name, understood as good fame, brand, reputation, and established position. However, attributing personal rights to a legal person that are related to the possession of feelings, such as dignity, has been excluded. It should be emphasized that the protection of a legal person's personal rights depends only on the objectively established fact of violating its personal rights by an unlawful act.

Judgment of the Court of Appeal in Białystok of November 6, 2015, I ACa 585/15. Specificity of the protection of personal rights of a legal person.

Generally speaking, without going into details, the personal rights of a legal person will primarily be its good name and everything that follows, i.e. market position, reputation, renown, commercial opinion, brand or authority. At the same time, personal rights that are related to the possession of the sphere of feelings cannot be attributed to a legal person. These are reserved only for natural persons.

When are the personal rights of a legal person violated?

Infringement of the personal rights of a legal person may take two forms and may have two types of nature. It may be a false fact or an unauthorized opinion and may be private or public in nature.

The fact/opinion criterion does not seem to raise any major doubts. In the event of violation of personal rights by providing a false fact, verification is carried out by comparing it with the actual situation.

What if the cause of the image crisis is opinion?

The situation becomes more complicated when the violation of the personal rights of a legal person bears the hallmarks of an evaluative statement. According to the judgment of the Supreme Court of November 10, 2005, reference number V CK 314/05: "An evaluative (evaluative) statement may lead to a violation of personal rights if it is not based on a real, assessed event." It is therefore much more difficult to prove that this type of statement is not based on reality.

In short, if a given statement that we analyze in terms of infringement of personal rights is factual, we assess whether it is true (no infringement) or false (there is an infringement). However, if it is an assessment, it must be determined whether it is justified or not.

Example:

Patryk posted a comment online saying: "Don't eat at restaurant X! The conditions in their kitchen are disgusting, there are even rats running around there! Therefore, he first made an evaluative statement: "the conditions in the kitchen of restaurant X are disgusting" and then the fact: "there are rats in restaurant X." In reality, however, restaurant This means that Patryk's opinion about the conditions in the kitchen is not true (there is a violation), and the fact that there are problems with rats is false (there is a violation).

Restaurant X can easily prove its case because Patryk provided both a false fact and a false opinion.

The second criterion mentioned in the introduction is the public/private nature of the infringement. However, it does not affect the fact of its occurrence, but rather its severity, and therefore the extent of the infringer's liability. Moreover, in order to recognize that there is a violation of personal rights, it is not necessary to demonstrate that the violation of personal rights caused a specific social reaction. According to the jurisprudence of the Supreme Court: "it may be sufficient to establish a violation of personal rights to establish that a specific statement could potentially cause a negative assessment of the person demanding protection of his or her rights."

What are public infringements and when are we talking about private infringements? Crisis in social media.

An infringement is public when it is addressed to a potentially unlimited or indefinite group of addressees (e.g. expressing an opinion during an interview on live television). Private behavior is characterized by the fact that the behavior is directed to a specific group of recipients. Without going into unnecessary speculations on this topic, we should only consider the probably most typical, but ambiguous situation - what is it with Facebook?

It is difficult to say unambiguously - on the one hand, there is a court ruling stating that posting an entry on a social networking site accessible to everyone is public, but unfortunately it is widely criticized. Therefore, each situation must be assessed individually. In our practice, we have already encountered different views of authorities on this matter. Although we are definitely closer to the court ruling that has already been issued.

When is an infringement unlawful?

Last, but not least – illegality of the infringement. Infringement of the personal rights of a legal person must also be unlawful. Any action that is contrary to the legal norm, the legal order, as well as the principles of social coexistence should be considered unlawful. Any action violating personal rights is considered unlawful unless one of the specific circumstances justifying it occurs, and the circumstances excluding the unlawfulness of the violation of personal rights generally include: action within the legal order, i.e. action permitted by applicable law, exercise of law subjective, consent of the injured party and acting in defense of a legitimate interest.

Judgment of the Court of Appeal in Kraków of December 20, 2018, I ACa 922/18. Presumption of illegality under Art. 24 of the Civil Code. Illegality of the perpetrator's actions.

What is also important, Art. 24 of the Civil Code determines the presumption of illegality of the infringer's actions. This means that it is assumed that this action is unlawful, and the infringer, in order to demonstrate his innocence, must prove that he acted in accordance with the law.

To sum up - infringement of the personal rights of a legal person:

  • This is an action that harms her broadly understood good name
  • It must be unlawful, but there is a presumption of unlawfulness
  • It may involve providing a false fact or an unauthorized opinion
  • It may be private or public
  • It entitles the injured party to claim:
    • Failure to act;
    • the infringer completes the actions necessary to remove the effects of the violation;
    • submission of a declaration of appropriate content by the infringer;
    • Payment of compensation;
    • Payment of compensation;
    • Paying an appropriate amount for a selected social purpose.

In the case of an image crisis, especially in social media, a lawyer should act in such a way as to minimize losses, but also not to allow harm to the client's good name. Therefore, we can talk here about both defensive activities and consulting in the field of published communications or simply defending the client in court, but also - let's say - offensive activities. This includes defending the client's good name in the manner provided for by law, i.e. both in court or through appropriate letters and firm but balanced summons at the pre-trial stage. This also includes, for example, correspondence with host providers such as Facebook or Google regarding the removal of false entries about the client.

The above text is fully based on the experience we have gained while helping clients. We have experience that allows us to assess what actions should be taken at a specific stage of an image crisis, but also what actions that seem necessary should not be taken. We have helped many business and private clients. We have exchanged correspondence with Google and other online opinion aggregators many times.

We invite you to contact us, ensuring the highest quality of services provided. We are aware of the specificity of this type of orders, so we often operate as an emergency service, and therefore also "after hours" if necessary.

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