When Silence Damages the Brand: Weighing legal vs. reputational risk
Your lawyer and your communications advisor may not always be on the same page – but in a crisis, it’s imperative to get them in the room together, fast.
I’ve seen it happen all too often: An organization in the middle of a firestorm. An angry public demanding answers. And company lawyers offering their legal advice: say nothing.
It’s understandable. It’s their job to protect their clients from legal risk. The problem is, silence isn’t neutral. And it means you no longer get to write the first draft of your story.
But framing the decision as “speak or stay silent” is too simplistic. This is not a choice between “should we listen to comms or legal?” Neither should be dismissed. But each require a different approach and a different measure of success, and it’s important to realize they operate on different timelines. While you are choosing between your company’s legal exposure and your community's trust, you've probably already waited too long.
Delaying communication out of fear of making the wrong move has its own consequences. Silence can read as guilt, indifference, or arrogance. And in the age of social media, silence is often filled by others ready to come to their own conclusions. While a lawsuit could play out over months or years in a controlled legal setting, reputational damage plays out in real time, in public, and can compound. The longer you wait to say something, the harder it is to undo the narrative someone else has written for you in the meantime.
Where I think many organizations go wrong is that they treat these two types of risks separately. Usually, legal counsel takes precedence, and the comms team is brought in later to figure out what can be said within the boundaries legal has established. Organizations that navigate crises well understand that they need both in the room from the start, so that together you can answer the question: How do we say what we need to in a way that protects us? Because the reality is you can usually say something. At the very least, you can acknowledge that something has happened. You can signal that you take it seriously. You can communicate that you're in the process of addressing it. You can express care for those who were harmed. None of these require you to admit liability. All of them preserve your credibility.
Here are the key questions to ask when deciding what to say:
1. What is the legal exposure, specifically?
2. Who are the stakeholders and what do they want?
3. Who is filling the narrative vacuum and what are they saying?
4. What is the cost of being wrong in each direction?
5. What are the reversible vs. irreversible decisions?
In some cases, the answers to these questions may lead you to conclude that the reputational benefits actually outweigh the legal exposure. Consider one of the most common examples of this tension: an employee does something publicly indefensible — misconduct, a discriminatory post, an act that goes viral for all the wrong reasons – and the organization faces immediate, intense pressure to act.
Legally, the decision to terminate their employment may be a complicated one. Without a fulsome internal investigation, it can expose the organization to a wrongful dismissal claim. Company lawyers will immediately flag this risk, as they should.
But you can probably think of more than one circumstance where an employee with questionable conduct was fired immediately. Why? Because the company ran a different risk calculation. They decided that the social cost of retaining this person — in staff trust, donor confidence, public credibility, and brand integrity — outweighed the financial cost of a potential legal settlement. They consciously choose reputational risk mitigation over legal risk avoidance.
I've watched organizations lose the trust of their stakeholders not because of what they did, but because of what they didn’t do. While the issue may have been surviveable, their silence or perceived inaction wasn't.
Remember that there is no risk-free option. Once you are in crisis, every decision will carry a consequence one way or another. The goal is not to eliminate risk but to make an informed, intentional trade-off that aligns with the organization’s long-term priorities.
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Ginella Massa is an award-winning Canadian broadcaster, sought after public speaker and the CEO of Massa Media & Communication Inc. She has worked in both TV and radio, behind the scenes and on air, at many of Canada’s major networks, including CTV, CBC, and CityNews. Ginella helps corporate clients, political action groups, and non-profits build strong communications plans through both traditional and social media.
