The role of in-house counsel in protecting the image of an organization

With only 10 days ahead of the 2019 federal election, the Canadian Broadcasting Corporation (CBC) filed a claim against the Conservative party of Canada over seven CBC clips used by the Conservatives in a campaign video titled “Look at What We’ve Done,” which criticized Liberal leader Justin Trudeau and the Liberal Party of Canada.

The CBC’s Statement of Claim alleges the unauthorized use of these clips constitutes copyright infringement and further argues that the use of their content, which included images of notable CBC journalists Rosemary Barton and John Paul Tasker, could lead the Canadian public to conclude the CBC and its journalists are biased in favour of the Conservatives.

In addition to the CBC, the Statement of Claim listed both Barton and Tasker as plaintiffs – a strategic error that led to an uproar on social media as many, ironically, accused the CBC and the two journalists of having bias against the Conservative Party. 

On this specific point, if the CBC was trying to protect the professional reputations of its journalists, then listing Barton and Tasker as plaintiffs certainly did not help.  Shortly after the outcry, and countless nasty personal attacks against Barton and Tasker online, the CBC released a statement that it would seek to amend its claim to remove the journalists’ names as plaintiffs.

At least one expert suggested the entire legal strategy was poorly thought out and that the damage may have already been done.  Ottawa University Law Professor Michael Geist wrote that the copyright infringement claim is “based on an odd collection of unconvincing arguments” and that the entire fiasco has “placed [the CBC’s] reputation and that of its journalists at risk.” http://www.michaelgeist.ca/2019/10/cbc-vs-cpc-why-the-cbcs-attempt-to-use-copyright-to-stifle-expression-backfired-badly/

The CBC’s strategy to preserve its reputation as an objective and unbiased public broadcaster seems to have completely backfired and what this entire series of unfortunate events illustrates is that in today’s age, general counsel must be versed in public relations and issues management. 

As lawyers embedded directly within our clients’ operations, a strong understanding of our organizations’ strategic goals and an appreciation for the impact our legal advice will have on their public image is essential.  Sometimes the law may be on our side, but the public’s perception will not and in those instances our organizations could end up with damaged reputations.  The CBC’s claim against the Conservative party is a good illustration of this.

So how do we address this? For starters, as general counsel it’s just safe to assume that every legal action your organization takes could become front page news.  Here are some questions you should be asking:

1. What is the current public perception of your organization? This may seem odd but consider the industry you’re in. For example, the public may be much more sympathetic to the cause of a hospital than that of a tobacco producer.
2. What is the current public perception of the party adverse to you?  For the same reasons explained above, the public could very well be more sympathetic to the party adverse to your cause.
3. How will the public perceive your legal action(s)?  While the law may be on your organization’s side, it may not be easily understood by those without the benefit of formal legal training.  Assessing the initial reaction the public may have is an important part of the legal advice you should be providing to your organization’s leadership.
4. How will news of your legal action be reported by the media? Consider the current state of affairs as it relates to your organization and industry.  There may be recent news stories or a current media narrative that could have your organization positioned as either a protagonist or antagonist.  Knowing where your organization could stand will help you figure out how you move forward, assuming you do at all. 
5. What is the key messaging you want to convey around your action?  You will want a clear and easily understood statement explaining why your organization is taking these steps. You will also want to brainstorm what may be said in the media by commentators (or your adversaries) and develop effective counterpoints in advance.  Preparing for the impending public discourse is just as much a part of your strategy as preparing your legal arguments.

Today’s general counsel needs to be well versed in PR and issues management strategies and how they can inform the legal advice we provide.  If you have the ability to do so, working with PR professionals to develop appropriate strategies would be your best option and considering some of these questions in advance can be a good start.

David Mousavi is general counsel of the Toronto Regional Real Estate Board. His practice encompasses board governance, commercial, data/technology, and privacy law. Prior to joining TREB, David practiced in-house at Canada’s largest telecommunications company and worked as an associate at a full-service national law firm.