‘Season of Protest’
Civil societies around the world are being subject to unprecedented levels of stress. After the disorienting effects of the pandemic and lockdowns, people everywhere are faced with cost-of-living and energy crises and a likely biting recession. This at a time when respect for the traditional political process is at an all-time low and single-issue political movements predominate.
As a result, we are seeing ever-greater levels of public protests. There are protests on the streets and protests online. We are even seeing litigation being brought as a form of protest. These protests can often be disruptive and sometimes violent. And it is not uncommon for protests to be directed at specific businesses. For that reason, more and more clients are asking what can be done legally in response.
Typically, a business is likely to be reluctant to involve itself in legal action against protesters. Far better to avoid the issue entirely or reach an amicable outcome. There is now a plethora of environment, social and governance (ESG) material for businesses to take into account and specialist advisers to provide counsel on a range of matters from green issues to supply-chains issues. Businesses may be able to best avoid being the target of activist movements with the proactive adoption of the above approach together with deft communications.
But not always. Sometimes the nature of the business means that it is necessarily controversial. Or maybe there is a fundamental misunderstanding on the part of protestors about the business, which cannot be assuaged. Or sometimes both situations apply. Either way, even the most well-meaning company can find itself at the centre of a disruptive and commercially damaging protest movement.
When a business is targeted in this way, it will want to weigh its response carefully. If the protest is largely a peaceful attempt on the part of the protestors to vent and draw attention to a public-interest issue, any proactive response by the business may be unwise. But if the protest is violent or disruptive and involves breaches of the law (both criminal and civil), a firmer approach may be appropriate.
Protests can take many forms. Perhaps the most typical is a physical protest where activists mass outside business premises, block access and otherwise cause disruption. One avenue the business may wish to explore is criminal law. In the UK, new laws are being proposed that would not only extend the range of offences, which may be committed at protests (e.g. “locking on” or chaining oneself up as part of a disruptive protest), but also to grant significant new powers to the police to stop and search potential protestors.
Here the relationship with the police is likely to be key and any business that may be vulnerable to a physical protest is well advised to embark on a long-term engagement strategy with the local police. In this way, they are best prepared should the worst happen. In such circumstances, businesses may also wish to ensure that their own staff, in particular their security personnel, are fully aware of the position in criminal law so that there is no risk of any transgression, which from a communications perspective could be disastrous.
Another route is a civil injunction against protestors to seek to prevent them committing unlawful activity. In the UK, this is a productive but sophisticated area. Often the business will not know the names of those protesting, but in these circumstances the courts are prepared to grant injunctions against what are known as “Persons Unknown being the person(s) responsible for the activity”. Crafting the form of the order and determining the best means of services is a complex area, and the courts have proven to unforgiving with businesses if there is any slip.
Another option regarding civil claims could be a damages action. Sometimes protestors move quickly when causing damage (e.g. protestors in the UK who enter supermarkets and spill milk on sale). An injunction in such a case is unlikely to be granted until the protest is long over. But the protestors could be held accountable for the damage they have caused. The central point of course would not be reimbursement but deterrent. Many protestors may have insufficient means for this to be a realistic option. Increasingly, however, activists undertaking these activities are well heeled and may have something to lose. A business would no doubt wish to calibrate the PR consequences of such an approach carefully, but the public mood appears to be hardening against disruptive protestors. Such damages claims may be an effective weapon.
A campaign against a business may be advanced online, either together with or separately from physical protests. This may be on a bespoke website (known colloquially as a “sucks” site) or on social media. Protestors on social media often proceed on the basis that they can do so anonymously with entirely free rein. But there are many legal techniques, which can be used to track down posters on the internet and identify them, including obtaining information from internet service providers. Victims of online abuse can even get orders from the court requiring those responsible to come forward and identify themselves. Often, once someone on the Internet knows they have been identified, that alone can substantially change their behaviour for the better going forward.
Another form of protest is when a legal claim is brought as part of a campaign of protest. One example we have seen is a judicial review brought by an activist group against the environment agency alleging unduly emollient actions against a client’s site. Also, numerous private law claims in nuisance were brought against the client. The judicial review failed but was then reconstituted. The private law claims continue.
Another example is protestors seeking to use the derivative action procedure to stand in the shoes of the company and sue the directors for alleged breach of their duties. The claimants need permission from the court to bring the claim, but if they get it, they may be able to force the company to fund the claim, which would be disastrous for the business financially, reputationally and practically.
The derivative action procedure is well established in the UK. In respect of shareholders, it is on a statutory footing with one approach being for protestors to buy a token share in the target business and use that as the basis for the action. But applying the procedure to protestor actions is novel. We are taking the leading case in this area to the Court of Appeal, which is due to be heard in the course of 2023.
The final concern in this area is employees. Currently, there appears to be a much higher propensity for employees to judge their employers and hold them strictly to account. This can lead employees to take vocal public action against their employers as part of protest campaigns, which can give rise to a range of legal issues. For example, employees have employment and whistleblowing rights, which need to be safeguarded. Also, employees may have access to sensitive confidential information, which may need to be protected. And sometimes it can be hard to distinguish between an employee who is a bona fide protestor and one with an unwarranted grievance who is using the protest issue as an excuse.
We have highlighted some of the legal complexities facing businesses when they are targeted by a protest. In every area, it is important to pay close attention to the disclosure of information and ensure that the theme of any litigation is consistent with the public messaging of the client. Taken together, what is optimal is a clear, coherent and coordinated strategy combining legal, communications and operations that is sensitive to developing events. Such a strategy is most likely to produce a successful outcome for the business.
