Prudence alone will not win the day

Ong Hock Chuan, Jakarta

Things are different in Indonesia now. Like it or not, Reformasi has unleashed a dynamic and free, if often cavalier, media. One of the characteristics of a society with a free media is that influence goes to the party that can successfully court the media, and through it, public opinion.

Those that can mount a successful Public Relations (PR) or information campaign via the media come out on top; those who can't are seen as weak and ripe for further bullying, extortion attempts or plundering.

Two high-profile cases over the past two years argue the case that it is imprudent for companies to maintain the stiff upper lip if they should go to court.

The first involves Manulife. There are many uncanny similarities with Prudential. They are both insurance companies and they share the same court, the same lawyer for the plantiffs and the same controversial bankruptcy law.

Manulife began to mount a litigation PR campaign after it was declared bankrupt and forced to close down by the courts. It adopted a high profile in the media and began actively pushing its messages and information to journalists. At the same time it also applied diplomatic pressure and lobbying.

The combination of all these efforts resulted in the Supreme Court overturning the Commercial Court's decision, but one can't help wondering whether the lower court's decision could have been different if Manulife had resorted to Litigation PR when the hearing had begun in the first place?

Another high profile case was when the Anti Monopoly Commission (KPPU) found a host of companies, including Deloitte Touche Financial Advisory Services, "guilty of conspiracy" to sell Indomobil shares on the cheap. The offended parties took the KPPU to court. They engaged the best lawyers but they also realized that without effective public relations public opinion they would be unlikely to receive a fair trial.

This was because the KPPU was staffed by prominent Indonesians who were known for their integrity. The plaintiffs needed to get through the message that while the KPPU members were full of the best of intentions, their decision was just plain wrong because it ionwas based on erroneous "facts" and was arrived at without due process of law.

Working with their lawyers and public relations consultants the plaintiffs mounted an aggressive legal and PR campaign against the KPPU. Result: Both the District Courts and the Supreme Court ruled for them and chastised the KPPU.

Again, the question that needs to be asked is whether these companies could have influenced a decision to their favor if they had acted earlier, before the KPPU had made its decision?

There are no definite answers here but it is helpful to note that one of the objectives of Litigation PR is to deter the opposing party from taking the matter to court in the first place. By mounting a PR campaign early companies can send a powerful message to the other side that they are in for a bruising time, both in the courts of law and of public opinion, if they persist in taking the matter to court.

If the campaign is successful then the other side backs down and the problem goes away. Sun Tzu, who believes that the greatest victories are the ones achieved without having to go to war, would be happy. Your lawyers would not though, because this would result in vastly reduced billings.

If the case still goes to court then you stand a better change of a fair ruling when the media limelight is focused on the case. It will give the judges reason to pause and consider very carefully the implications of their decisions. The Manulife judges, for instances, were banished to outposts shortly after the scandal died down.

It is perhaps time for companies, especially multinational ones operating in Indonesia to consider Litigation PR as part of the legal arsenal against bad debtors and even worse judges. What is clear is that the old approach of softly, softly doesn't work any more while the still unconventional approach of enlisting the media to influence the outcome of a court case has been known to show some results.

The writer is Partner of PT Maverick Solusi Komunikasi, a PR consultancy specializing in crisis/issues management as well as brand communications.