In this post, we’ll explore a real world civil litigation example which demonstrates the potential fine line between legitimate or at least acceptable litigation tactics and blackmail. These situations and scenarios happen far more commonly than you might imagine.
What is blackmail?
In legal terms, the concept of blackmail is one of the simpler and more easily understood areas of law – we tend to know it when we see it.
It’s also something that has manifested itself a lot more with the internet where revenge porn is just one type of blackmail – see here for a recent example – as such it’s quite surprising that if you google the term blackmail, there isn’t that much online and a lack of case law as well.
For the purpose of this article, we won’t go into the nuances of the differences between blackmail, coercion and extortion.
Blackmail is a serious criminal offence
Whilst perhaps not an offence which gets highly publicised in terms of sanctions, blackmail, where prosecuted and proven, is a serious criminal offence with a maximum 14 year prison sentence. Technically, it is an offence under section 21 of the Theft Act 1968.
The legal definition comprises the following elements :-
• an unwarranted demand
• made with menaces
• with a view to making a gain or causing a loss.
Aside from the criminal aspects, if, in a civil case, it reaches trial and a Judge becomes aware of attempted blackmail or coercion, the party involved can expect a rough ride to say the least.
Extorting money – how it can happen in practice
Civil cases tend to be predominantly about money but there are often other aspects. In today’s viral world, no-one wants bad publicity, some adverse information coming to light or for highly sensitive or confidential business critical information to surface.
It can be tempting to adopt what we might call, at this stage, pressure tactics on an opponent in order to :-
• Try and speed up or circumvent the high risk and slow court process
• To try and extract a better financial or other result than might otherwise be obtained strictly on the legal/factual case.
In fact, blackmail can arise, in our experience, where the initial motives are quite principled and this is where the danger can arise.
Take this example
Bob buys a ready meal in a well know supermarket. He microwaves his meal, digs in and starts eating, only to find a large, dead, decomposed animal of some kind in his meal. He’s violently ill and shocked.
He contacts the supermarket and they don’t handle things well – it takes them time to apologise, they then offer Bob a £20.00 voucher as an apology.
In strict legal terms, if Bob sues the supermarket, he might not obtain a judgment for that much more than £20.00 because English law is loss rather than compensation based in general terms.
Bob is outraged by the £20.00 offer. He has a figure in mind of £500.00 as suitable compensation. Perhaps Bob even has in mind giving most of that figure to charity but he wants the supermarket to take him and his complaint seriously.
Feeling frustrated and angry Bob writes a letter to the supermarket including these words :-
“Unless you increase your compensation offer to £500.00 I am going to the press and the authorities with my story”.
Technically speaking, the above could easily constitute blackmail. It’s just one example of the type of content clients often ask lawyers to write and where great caution and care needs to be exercised.
Even where a threat is not as obvious as in the above scenario, it can still constitute blackmail or coercion. It can be implied, if there is an obvious inference.
Additional risks of a possible blackmail situation or claim
Aside from the risk of a threat being reported to the police and possible action taken, a heavy handed threat, seeking to extract something which would not otherwise be available as a legal remedy in court, might also backfire in that :-
1. In a legal dispute it is never a good idea to threaten something which you aren’t fully prepared to do. If you threaten to go public with some embarrassing or harmful information, even if it’s factually accurate, and then don’t go through with your threat, you will lose almost all your credibility with your opponent. They will probably sense weakness and dig in or even take counter measures against you.
2. Being threatened can tend to make the opponent angry and more resolute. The temptation to disclose damaging information often arises where the person threatening feels up against it by facing a bigger, stronger opponent. This may mean a big company with big resources. Threatening such a company might result in them being determined to push back against you, to fight you tooth and nail. They may even be determined to make you pay one way or another.
Grey areas and legal skill and experience
As lawyers we certainly do not advocate blackmail in any shape or form. However, many disputes, as described above, are settled with reference to and including financial amounts or other concessions or considerations which would not be forthcoming at trial. A good lawyer will advise a client on how to maximise the chances of getting these outcomes in a way which does not constitute blackmail. Words used in letters and communications must be extremely carefully thought through and timing is generally of critical importance.
In addition to maximising outcomes, a good lawyer will also minimise risk. A letter or comment made, without good legal advice, which is badly worded or ill-timed can, whether through naivety or anger rather than malice, have very severe consequences.
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