What does it look like?
It is normal to face campaigns in the course of business or public life, perhaps against planning developments, changes to a business or where interests cross over with matters of public policy. However, one of the most challenging issues to deal with is when a campaign, and the publicity it brings, is being used for an ulterior purpose by hostile parties, be they those seeking to advance their own interests or those who feel they will benefit from harming yours. This article looks at some of the techniques Himsworth Scott employs when facing issues of that nature.
What can be achieved?
Scrutinising a hostile campaign is not an activity for the sake of it, rather because there are specific gains to be achieved from doing so. These can include:
- Halting the behaviour of the campaign, through legal means or public exposure, preventing further harm to your interests or remedying harm that has occurred.
- Exposing the activities of those really behind the campaign, causing them embarrassment to change course and even undermining what they were trying to achieve.
- Deterring innocent third parties from adopting the messages and objectives of the campaign.
- If a campaign checks out, avoiding the embarrassment of wrongly pursuing an innocent group and the reputation risk that would inevitably follow from that.
What are the tell-tale signs of dirty tricks?
Smear campaigns have increased in sophistication, and there are many businesses around the world who market their specialism in creating them. As they have become more sophisticated, so too have the ways to pick holes in them. The reputation consequences of wrongly believing a genuine group is false can be severe, so it is vital to take investigation of a group slowly so as to be sure your suspicions are well-founded. The first stage, therefore, is to look objectively at the nature and activities of the group. Some of the behaviours that indicate it is right to be suspicious include:
- Organisers and members are relatively new to social media or are single-issue campaigners. In some instances, fake identities may be used.
- The campaign does not behave in ways you would expect – for example, it may trumpet its scale and community involvement but show no evidence of meetings, ways for people to get involved or grassroots activities.
- The scale of activities may exceed the obvious resources. A very slick online presence or spending on expensive campaign materials like billboards without evidence of funding or fundraising is a strong indicator.
- Arguments used may mirror the overt statements of commercial parties or dovetail with their position in a supportive manner.
- Genuine community participants may have been contacted by the campaign and may have concerns about its activity.
How do we prove our concerns?
Two key principles apply to this type of matter: first, you need a team effort across your legal and communications teams to ensure that actions tally with your public position, second it is important to take small steps deftly to avoid misdirected actions.
The first step typically involves assessing what available information sources there are to discreetly substantiate concerns about an organisation. Except in very rare cases, we recommend seeking to engage with an organisation to see how it reacts. Very often a refusal to interact with the target of a smear organisation indicates the lack of a legitimate purpose.
After that, we look at the points at which an organisation would intersect with other organisations that would be required to register and disclose details of interactions, look for evidence of the campaign activities and highlight any unusual connections between the organisation and particularly its online activity and other parties that could be adverse.
If the concerns seem to stack up, what next?
Often by this stage, a campaign group will have committed some legal wrong against its target – this can range from defamation to misuse of confidential information and IP infringements. It will likely also have interacted with other third parties who are involved. Raising a well-founded but sensitively drafted legal complaint against an organisation is a good way of testing its intentions. If it does not reply or provides a disingenuous answer then it can often be a sign that there is something to hide.
Various legal techniques are available to probe into wrongdoing, ranging from orders against third parties like internet suppliers and mailbox operators to reveal who is really paying for their services, to pre-action disclosure against entities unveiled in the process to expose the true extent of their wrongdoing.
That can then lead into substantive proceedings against the parties involved using a variety of legal steps, from malicious falsehood and breaches of marketing law, through to economic torts such as unlawful means conspiracy.
How do I find out more?
If you believe that you are a victim of a smear or dirty tricks campaign and would like to speak to a member of our legal team, then please get in touch and we’ll let you know if we can help.