Image crisis and protection of personal rights of a legal person

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?

A PR crisis is an event that will negatively affect how a given entrepreneur is perceived by the public. This is because it will tarnish the entrepreneur's image, the consequences of which can be truly disastrous. If the damage to the company's image permanently sticks to the entrepreneur, it will directly impact their revenue, and in the worst-case scenario, the spiral of hostility towards them will lead to the complete collapse of the business. That is why it is so important to resolve a PR crisis as quickly as possible. The golden rule is "prevention is better than cure". If a situation arises where the entrepreneur's image is tarnished and the whole matter begins to escalate towards a serious PR crisis, one must act efficiently, boldly, yet responsibly and prudently. The infringement of a company's personal rights can be anything that happens to such a firm, or quite the contrary – just the beginning of an avalanche of trouble.

What actions should you take when an image crisis occurs?

Above all, one should not act hastily. One needs to assess the situation reliably and with a clear head, analyse the range of options, and then take action. It is no secret that image crisis management is generally handled by specialised PR professionals and entire marketing agencies. Therefore, it is pointless to step into their territory here, all the more so because every situation is slightly different. However, answering the question posed above directly – the first step upon recognising that a business owner's situation bears the hallmarks of an image crisis whose scale they may not be able to handle on their own is simply to turn to professionals. For PR agencies and lawyers specialising 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 in such situations is completely normal, usually causes the situation to get significantly worse. And frankly, you folks reading this text while in crisis... subconsciously know that. A 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 one's own can often do more harm than good. It should also be borne in mind that a PR crisis is much like a leaky boat – the more water that enters it before the hole is patched, the more that has to be bailed out later. If we do not react early enough or, even worse, cause it to escalate ourselves, the effects and damage may be irreversible even with the help of the best PR and legal specialists. The greatest chance of successfully averting a crisis therefore comes from working with both a marketing agency and Law FirmAfter all, in the event of it occurring, there are legal means both to limit its scale (such as the so-called "notice-and-takedown" procedure) or to repair the damage if, on the occasion of the "witch hunt" against the entrepreneur, unlawful actions took place. It should be noted as an aside that in the leaky boat metaphor there is one more valid similarity – yes, a boat can also go to the bottom pretty quickly...

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

The crisis itself should essentially be managed primarily by a specialised agency or law firm – in fact, these functions overlap, and the work of a lawyer who specialises in crises can often prove crucial. In the context of choosing the appropriate strategy, communicating with the media or preparing relevant statements, a PR professional often plays the main role, but at each of these stages a lawyer can 'put their two pennsworth in'. It is important that they know what they are doing, meaning they have experience in such matters. Otherwise, they might make the situation worse. Above all, when preparing any statements, it is worthwhile for a professional lawyer well-versed in matters concerning the protection of personal rights to analyse whether any unnecessary infringement of them is occurring. One should rather act in accordance with the strategy described above and aim for de-escalation. In response to the infringement of the personal rights of a legal person, a second infringement of other people's personal rights – this time of natural persons – will most likely only exacerbate the crisis.

Different types of responsibility

Furthermore – if criminal liability might be at stake – it is worth the lawyer including in the message fragments that can have a mitigating effect on the sentencing. Let us emphasise – a lawyer is not a miracle worker who can change the situation of a person in crisis with a few magical phrases like a spell. If someone has committed a crime, they will have to answer for it, but a sensible lawyer may be able to demonstrate that no crime took place or, already at the crisis management stage, before the matter inevitably reaches court, guide the actions of the interested party in such a way that the sentence is as low as possible.

A lawyer will also advise on what steps to take to ensure the sentence is as low as possible. Often, simultaneously for PR reasons, pleading guilty will be necessary. This is because society demands retribution for a crime, so avoiding punishment altogether would be poorly received. An effective lawyer, however, will be able to raise the appropriate arguments to make the sentence 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 could be a situation where a celebrity, driving a car under the influence of alcohol, crashed into a city bus. Fortunately, no one was hurt, but the material damage was very high. On the advice of specialists, the celebrity published a statement reading as follows: "Last night I got behind the wheel of a car after drinking alcohol and caused a collision in which, fortunately, no one was hurt. There is no excuse for my irresponsibility and lack of imagination. I apologise to everyone for my behaviour, especially my loved ones and those who felt let down and disappointed by my attitude."

Next, he promised to get involved in campaigns promoting sobriety among drivers. Ultimately, he was sentenced to a fine of PLN 20,000 (the amount of the fine was tailored to his high earnings), a 3-year driving ban, and an order to pay PLN 5,000 to the Fund for Victims and Post-Penitentiary Assistance. Considering that under criminal law he faced up to 2 years' imprisonment and given the reprehensibility of the act committed by this celebrity, it must be considered that the court dealt leniently with the perpetrator. Therefore, it is difficult to ignore the role of lawyers and PR specialists in this regard. The latter also managed to repair his image to such an extent that, after the whole incident, he returned to performing his previous roles, namely as the sports director of a football club and an expert on one of the most popular television stations. Another aspect in which a lawyer can help is repairing the damage caused as a result of a crisis. After all, various types of compensation claims may come into play here, based on the unlawful conduct of persons involved in attacking the entrepreneur. This may include damages 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 a lawyer can do is to fight for the entrepreneur's good name itself. Many accusations hurled during a crisis will potentially be untrue. The lawyer's role in this regard is to manage effectively so as to select appropriate legal instruments that minimise damage to the entrepreneur's image. This may ultimately lead to the "unspinning" of lies that have destroyed the entrepreneur's image, and subsequently enable them to return to normal business operations. For often, clearing one's image in a courtroom combined with the publication of an apology is the only effective remedy. Is this a rule, however? Our experience shows that it is not always—or even rarely—a good tactic to rashly threaten lawsuits and take the matter to court. Although an entrepreneur acting under the influence of emotion often demands this as a sort of "retaliation" for the attack on their company, doing so will frequently bring more harm than good. What then should be the lawyer's course of action? Above all, they should determine whether we are actually dealing with an infringement of personal rights. At this point, the legal background of the situations in question should be outlined.

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 regard, case law, which will be decisive in the event of a dispute concerning the personal rights of a legal person, may prove helpful. "The personal rights of legal persons have been defined as non-material values thanks to which a 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?

The infringement of personal rights of a legal person may take two forms and may be of a twofold nature. It can be a false fact or an unjustified opinion, and it can be of a private or public character. The criterion of fact versus opinion does not seem to raise major doubts. In the case of an infringement of a personal right through the provision of a false fact, verification is carried out by comparing it with the actual state of affairs.

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 the statement we are analysing for a breach of personal rights has the character of a fact, we assess whether it is true (no breach) or false (a breach occurs). If, however, it has the character of an assessment, it must be established whether it is justified or not. Example: Patryk posted a comment online reading: "Don't eat at restaurant X! The conditions in their kitchen are disgusting, there are even rats running around!" He therefore first provided a value-laden statement: "the conditions in the kitchen of restaurant X are disgusting", followed by a fact: "there are rats in restaurant X".

In reality, however, restaurant X cares greatly about hygiene and its kitchen meets all the requirements set by the sanitary inspectorate, and there have never been any problems with rats. This means that Patryk's opinion regarding the conditions in the kitchen is not grounded in reality (an infringement has occurred), and the fact of the existence of problems with rats is false (an infringement has occurred). 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 of a public nature when it is directed at a potentially unlimited or indefinite circle of addressees (e.g., expressing an opinion during an interview on live television). A private nature, on the other hand, is characterised by the fact that the behaviour is directed at a specific circle of recipients. Without going into unnecessary digressions on the subject, one should consider only what is probably the most typical yet ambiguous situation – what is the case with Facebook? It is difficult to say unequivocally – on the one hand, there is a court ruling in circulation determining that posting an entry on a social networking site accessible to everyone is of a public nature, but unfortunately it is widely criticised. Every situation must therefore be assessed individually. In our practice, we have already encountered various 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.

A lawyer specialising in reputation crises, particularly on social media, should therefore act to minimise losses, but also prevent any damage to the client's good name. One can therefore speak here of both defensive measures and advisory services regarding published communications, or simply defending the client in court, as well as – shall we say – offensive actions. This refers, for instance, to defending the client's good name through legal means, both in court or via appropriate correspondence and firm yet measured pre-litigation demands. It also refers, for example, to correspondence with host providers such as Facebook or Google regarding the removal of false posts about the client. The text above stems entirely from the experience we have gained in helping clients. We have the experience to assess what actions should be taken at a given stage of a reputation crisis, as well as which actions might seem necessary, but should not be undertaken. We have helped many business clients as well as individuals. We have repeatedly exchanged correspondence with Google and other online review aggregators. We therefore invite you to get in touch, guaranteeing the highest quality of services provided. We are aware of the specific nature of this type of instruction, and therefore often operate on an emergency-response basis, including "out of hours" when necessary.