An unprecedented situation after COVID-19
What can be done if the company or any of its executives have been affected by false or inaccurate news stories in connection with the coronavirus? How can the spread of false news stories that affect corporate reputation be remedied? What measures can be taken in the face of misinformation or misinformation? fake news that hinder the development of organisational or economic activity?
Certainly, during and after this health crisis, we are presented with an unfamiliar paradigm in reputation management as well. According to the IPSOS market research, the new consumer post-COVID-19 increase online shopping and video conferencing to connect professionally and personally. As of mid-March 2020, the main reputational recommendations point to four practical guidelines: 1. first, combat misinformation; 2. understand the risk profile of the company or organisation; 3. communicate openly and consistently; and 4. know what the expectations of the public and employees are.
In a short period of time, businesses and customers have been immersed in an accelerated process of digital transformation. In a situation of confinement and alarm, a speed of adaptation has been achieved that is difficult to achieve: the flexibility, scalability and security of the cloud allows millions of people to work from home, collaboratively, to maintain business continuity. Sometimes it is big global crises like Covid-19 that bring about big changes.
The telework will be the first thing that companies and public administrations will have to re-evaluate. Before isolation, remote working seemed to facilitate work-life balance. Today, it is already one of the systems for maintaining activity in the face of unforeseen events and guaranteeing contingency plans and business continuity. But this, in the context of disinformation, also exposes the social, business and economic fabric to the danger of anonymity in communications and media attack. "from home". o "from outside the organisation".
Paradigm shift: "in the age of immediacy and towards disinformation".
Fake news and rumours have always existed. However, nowadays, the enormous capacity of social networks to viralise all kinds of content has turned them into a phenomenon of unstoppable global dimensions. In the era of immediacy and towards disintermediationAs a result, false or inaccurate but damaging news takes centre stage. Consequently, as with the current health crisis, the fake news and its constellation of inaccuracies are on a difficult-to-control propagation path that causes confusion and, often, alarm.
The misinformation plaguing the world due to an "information crisis" is leading companies to take note of the current situation and, in the face of the paradigm shift, to take timely action in the face of information campaigns. fake news causing irreparable damage to their reputation.
Measures during and after: "communication and legality".
In addition to the communication measures to combat rumours and fake newsfrom a clear pre-crisis planFrom managing social media and brand presence in the digital ecosystem, analogue and digital corporate reputation management includes taking legal measures and actions.
Against the current backdrop post-COVID-19In addition, the involvement of natural or legal persons in legal proceedings is foreseeable, as well as the emergence of critical moments due to the consequences of court decisions (one need only think of liability claims, criminal charges for acts and omissions, as well as the liability of managers in a labour sphere collapsed with redundancies and other corporate measures).
The areas in which legal action may be taken to combat misinformation, especially when it is damagingly false or misleading, comprise a number of possibilities, with communication, economic and reputational impact:
- Privacy and the use of digital devices in the workplace.
- Digital disconnection in the workplace.
- Digital will.
- Rectification on the Internet.
- Updating of information in digital media.
- Forgetting in social networking services and equivalent services.
These actions can be exercised integrated in various scenarios:
- Crisis communication of the affected party, in order to coordinate the common reputation strategy (legal and communication).
- Business growth strategies.
- Recovery of damaged reputation.
- Monitoring of news, including social networks, and assessment, also legal, of the evolution of the corporate image.
- Reputation protection at different judicial moments (preliminary investigation, out-of-court settlement, hearing, trial, judgement, appeal, etc.), as well as accompaniment to hearings, trials and other judicial proceedings.
- Reputation protection in labour, health, data protection or data theft disputes, tax fraud, criminal, civil and administrative proceedings, or consumer and user claims, currently particularly from patients.
Legal actions can be exercised in an advised manner and with the appropriate, and often necessary, communicative accompaniment before, during and after their extrajudicial and judicial exercise.
Right of rectification on the Internet.
Contemplated in Article 85 of the current Organic Law on the Protection of Personal Data and Guarantee of Digital Rights (LOPDGDD), this right guarantees freedom of expression on the Internet to all. It is articulated as follows:
- What you are entitled toto rectify information disseminated by any means of social communication, including digital media, about facts concerning a person or entity, which he or she considers inaccurate and the disclosure of which could cause harm to him or her.
- Who has the rightall natural and legal persons.
- Before whom it is exercisedto any social media and equivalent service providers.
- Who is "responsible": information society services', provided that they represent an economic activity, including those defined in Law 34/2002 of 11 July 2002: "any service normally provided for remuneration, at a distance, by electronic means and at the individual request of the recipient".. For example, all those for sending commercial communications and providing information by telematic means.
- What may be required: rectification of content that violates the right to honour, personal and family privacy on the Internet and the right to freely communicate or receive truthful information.
- What requirements must be met: those provided for in Organic Law 2/1984, of 26 March 1984, regulating the right of rectification: inaccurate and damaging facts, a letter addressed to the director of the media outlet, specifying the facts of the information to be rectified, the director of the media outlet must publish or broadcast the rectification in full within three days of receiving it, etc.
- How the right is addressed: the media should publish in their digital archives a disclaimer stating that the original news item does not reflect the individual's current situation.
- How it is enforced on websites: the notice shall appear in a prominent place alongside the original information.
- What interest it has in practice: allows for informational contrast and can become a useful medium for the rest of the communicative reputational actions.
Right to update information in digital media.
This new right, regulated in art. 86 LOPDGDD, is specified in the following framework:
- Who has the right: all natural and legal persons.
- What you are entitled to: to request the inclusion of an update notice in the digital media.
- In which cases does it apply: into two main ones:
- (1) where the information contained in the original news item does not reflect the current situation as a result of circumstances occurring after publication, causing prejudice to the person concerned; and
- (2) where the original information relates to police or judicial proceedings of the data subject for the benefit of the data subject as a result of subsequent judicial decisions. In this case, the notice shall refer to the subsequent decision.
- Before whom it is exercised: to any digital media, including social media and equivalent services.
- How to apply: The information shall be accompanied by a summary of the factual circumstances, including any hyperlinks to the original information, stating the reasons.
- How the right is addressed: by including a sufficiently visible notice of the update next to the news concerning the injured party. The lawyer in charge of the exercise of the right shall ensure that this adequate inclusion is effectively complied with.
- How it is fulfilled on websites: the notice of update should appear in a visible place next to the news concerning the injured party. Relocation of information to secondary or non-accessible areas should be avoided.
- What is of practical interest: allows for the updating of information, which is essential for communicational reputational actions.
Right to be forgotten in social networking services and equivalent services.
This important right, contemplated for the first time in Spain in art. 94 LOPDGDD, should be exercised, like the previous ones, with the appropriate specialised legal assistance, due to the foreseeable legal action to be taken if correct attention is not obtained.
It takes the following form:
- Who has the right: all natural persons; it is not clear whether it can be applied to legal persons. Also the adult in respect of data published during his or her minority by third parties.
- What you are entitled to: to request the deletion of their personal data where it is inadequate, inaccurate, irrelevant, out of date or excessive or has become so over time.
- What additional factors need to be taken into account: the purposes for which the personal data were collected or processed, the time that has elapsed and the nature and public interest of the information.
- In which cases it applies: in three different situations: (1) where the data were provided by the data subject or (2) where they were provided by third parties for publication by social networking services and equivalent information society services; and (3) where the personal circumstances of the data subject show that his or her rights prevail over the maintenance of the data by the service.
- Before whom it is exercised: to any equivalent social networking services and information society services.
- How to apply: Data provided by natural persons in the exercise of personal or domestic activities are excluded.
- How the right is addressed: by deleting the personal data.
- What is of practical interest: allows for the updating of information, which is essential for communicational reputational actions.
In conclusion, legal action with legal assistance facilitates the reputation management of individuals, managers and companies, especially for the better development of communication strategies in pre-crisis and, where appropriate, crisis situations.
Efrén Díaz Díaz
Lawyer, Doctor of Law. Responsible for the Areas of Technology y Space Law at Mas y Calvet Law Firm.