Legal risks and unwritten research

How cautious should advocacy organisations be about legal risks? And how much important work goes undone, or the results unreported, because the threat of legal action could be existential for the organisation?

Earlier at the (virtual) office we were discussing the importance of considering legal risks in relation to some specific pieces of work, and to some upcoming possibilities. Without getting into the detail, all have the potential to involve individuals, multinationals or major accounting firms that might be quite happy to sue over perceived reputational damage.

What does the law say?

One solution, of sorts, is to be right: don’t make mistakes, and you ought to be covered. The Defamation Act identifies a range of defences, including truth but also ‘honest opinion’ (even if untrue), and ‘public interest’.

The recent ‘serious harm’ condition also acts to limit the scope for action:

(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

On balance, at least for me as a non-lawyer, it’s still easy to feel that there’s enough room for you to end up in court for saying reasonable things, with reasonable evidence.

What goes uncounted?

Needless to say, the things that will be left unresearched or unpublished, because of the chilling effect are not going to be random – they will tend to relate to powerful individuals and organisations. (Not entirely unrelatedly, presumably only the biggest advertisers can expect to see the type of rose-tinted coverage that Peter Oborne claims that HSBC enjoyed from the Telegraph.)

I suspect everyone who works in this broad area of work can come up with examples like these:

  • a colleague who has been sued (in one case, who lost for a careless, somewhat important word);
  • a major piece of research that never saw the light of day (I’m thinking of a case involving commodity pricing between a major resource-rich African country, and a small Northern European country, where it was felt the risk of being sued by a particular entity – even although it was not planned to identify it directly – was too high to risk); and
  • any number of pieces of work that were abandoned in the planning stage – so the questions were never asked – because of likely risks of trying to publish any answer obtained.

Not to mention Global Witness and Beny Steinmetz

What’s the answer? (May not contain answers)

So, I complained to twitter….

…and the twitterbrain provided a selection of answers. 

  1. Use (pro bono?) lawyers.
  2. Get sued, but have (really, really) wealthy backers.
  3. Get sued, but crowdfund a defence fund.
  4. Get sued, but have pro bono lawyers on hand.
  5. Get sued, but set up some kind of offshore structure to undertake/publish the research so it doesn’t threaten the main organisation.

I don’t much like any of the ones that start with ‘Get sued’. And lawyers are expensive. So it looks like a case of looking for ways into pro bono assistance where possible, and building in costs where necessary in funding proposals.  And, probably, just not doing some stuff that we might like to. Bah. 

Any further ideas (or offers of help, e.g. 2 above) would be most welcome.