Legal Status - MAY 2021
How to get better results in negotiating conflicts with employees.
In this article we provide some guidelines that will allow an organisation to obtain better results in those negotiations with individual employees that are potentially actionable: unfair dismissals, overtime, harassment at work, disciplinary sanctions, etc.
Often these disputes are delegated by the organisation to its lawyers, who often only become aware of the other party in pre-trial conciliation hearings. Is this strategy wrong? Sometimes it can be, especially if the organisation has an interest in reaching a settlement and avoiding what a court resolution. In these cases, we recommend the following:
1. Maintain an appropriate degree of communication and trust.
This does not mean practising “do-goodism”. It is about being tough on the problem but soft on the people. Working on communication and trust does two things: first, it avoids escalation of the conflict and thus prevents the other party from making it more important to take revenge on the organisation than to obtain benefit. Furthermore, it allows information to be obtained about the needs and perceptions of the other party, which often go beyond financial issues: it could be a letter of recommendation or an explanation, or professional recognition . When the organisation delegates the whole management of the negotiation to a lawyer whom the employee has never seen, this can be interpreted as a lack of consideration and interest in reaching an agreement. Therefore, it is important to assess in each case whether or not it is advisable for an official of the organisation to accompany the lawyer in their negotiations, always keeping a direct channel of communication open.
2. Find out the risk aversion of the other party.
Another highly important aspect to explore is how comfortable the other party is with the risk that the trial may entail. This is particularly important when the outcome of the trial is unclear (e.g. difficulty in producing evidence or when there is a grey area of law or jurisprudence). The greater the risk aversion, the easier it will be to reach a negotiated settlement.
3. Do not assume that the other party and/or your lawyer will not be interested in negotiating.
These types of disputes are often emotionally charged, so it is normal to be confronted with aggressive parties. It is therefore also normal for their lawyers to feel that they have to be tough in defending their clients. But this does not mean that they do not have a practical approach to conflict management. Many will be willing to negotiate if they feel they are recognised for their work and there is an interest in reaching a fair and mutually beneficial settlement. Of course, some people would rather go to court one way or another. However, this is not something that should be taken for granted. Always make sure to emphasize that you are willing to explore a quicker and more convenient solution than trial.
4. Take advantage of the negotiation space offered by mediation, arbitration, and conciliation services.
The Spanish Autonomous Communities establish the obligation to resort to a mediation or conciliation service as a compulsory step prior to a trial. This is an instance of negotiation that is often neglected. If used well, it is an opportunity to establish or improve communication with the other party, as well as to obtain important information that allows progress to be made towards the construction of an agreement.
5. Prepare for the negotiation.
From all the above comes the most important recommendation: invest time in preparing for the negotiation. This means being clear about the costs and risks of the legal alternatives, how to manage communication and the relationship, how to ascertain the interests of the counterparty, how to generate attractive settlement offers, and how and when to present them. A lawyer who is also a specialist in strategic negotiation can be of great help in these matters.
The preliminary draft of the General Law on Audiovisual Communication
The Secretaría de Estado de Comunicaciones [State Secretary for Telecommunications] expects the new legislative text of the new General Audiovisual Communication Law to be approved by the Council of Ministers between May and June 2021, and parliamentary debate and the subsequent approval of the final text would then immediately begin.
On 13 January, the Comisión Nacional de los Mercados y la Competencia National [Commission for Markets and Competition] (“CNMC”) published its report on the Draft Bill of the Anteproyecto de la Ley General de Comunicación Audiovisual [General Audiovisual Communication Law] (“APL”). The draft law will replace the current law and transpose the Directiva de Servicios de Comunicación Audiovisual [Audiovisual Communication Services Directive] (“DCSA”). Despite the fact that the DCSA was approved in 2018, Spain is not the only country that is behind in its transposition.
In this article we are going to share the most important new features of the APL, some more welcome than others, which seem to be increasing confusion and uncertainty in the world of audiovisual communication.
1. Contents and financing.
The APL obliges audiovisual platforms to include 30% of European films and series in their catalogue, 50% of which must be in Spanish. In this regard, it will not be enough for the platform to limit itself to including these works in its catalogue, it will also have to promote and give visibility to them.
It also establishes an obligation to finance European cinema with 5% of its revenue in Spain, except for those platforms with a turnover of less than 10 million euros per year.
The aim of these measures is to put the obligations of traditional audiovisual service providers, such as RTVE and other traditional private channels, on a par with those of platforms offering on-demand audiovisual services.
Before the DCSA, influencers were already considered audiovisual media service providers. The problem is that most content creators are based outside Spain and the European Union. Therefore, they are not required to comply with the obligations derived from national and European regulations. The Unión de Televisiones Comerciales en Abierto [Commercial TV Association] has already publicly requested the government to apply the law to influencers in order to ensure the protection of minors and consumers.
In this regard, the CNMC has found that most of the content broadcast by influencers on video-sharing platforms include unidentified commercial communications or audiovisual content that may be harmful or inappropriate for minors. It is worth noting that in January this year the 'Code on the use of influencers in advertising' adopted by the Spanish Association of Advertisers (AEA) and the Association for the Self-Regulation of Commercial Communication (AUTOCONTROL) came into force. With this Code, it is expected that self-regulation will increase the regulatory compliance of influencers in advertising.
Furthermore, the increasing popularity of paid services for watching audiovisual content online also exposes consumers to so-called hybrid or interactive advertising. Unlike commercial communications on free-to-air television, which are addressed to the general public, hybrid advertising can be targeted to each type of customer, as the television or other media are connected to the internet. The CNMC warns that the insertion of hybrid or interactive advertising prevents consumers from being able to identify commercial communications. It therefore recommends ensuring that consumers give their consent prior to receiving commercial communications and that they have a simple and free method to withdraw their consent.
Television audiovisual media service providers may broadcast advertising messages with a limit of 12 minutes per hour. The APL removes this limit, setting instead a quantitative limit, but in certain time slots. According to the proposed wording, advertising messages may be a maximum of 45 minutes between 6.00 a.m. and 6.00 p.m. and a maximum of 72 minutes between 6.00 p.m. and midnight.
3. Protection of minors.
Currently only free-to-air linear TV service providers are obliged to rate digital content on the basis of age. Given the increased relevance of other service providers, the APL increases the obligations for providers of linear pay audiovisual media services and video-on-demand services, which will have to include age-rating of content.
The growing importance of video-sharing platforms has also brought new challenges for the protection of minors. The CNMC points out that it is necessary to signal the age rating of advertisements, whenever they are not “suitable for all audiences”. According to the CNMC, if this is not indicated, the parental controls used on content-sharing platforms do not work.
Undoubtedly, the most important update is that the APL considerably increases the obligations for providers of linear pay services and providers of on-demand services, according to the DCSA., An exemption for service providers with a low turnover is foreseen for the European quota obligations and the financing of European works.
The APL establishes that providers of on-demand audiovisual media services must in any case subtitle programmes or audiovisual content which may be of 'wider interest to the audience', without clarifying what this means.
For on-demand audio-visual services, the APL obliges providers to gradually incorporate accessibility tools in their programmes or content offered through a catalogue but does not regulate penalties for non-compliance with this obligation.
The APL adapts the current regulation to the new reality and to the different forms of digital entertainment consumption. In addition to this, it increases the obligations of providers of digital content services for video-sharing and on-demand television regarding content, financing, advertising, protection of minors and accessibility.
Corporate criminal liability and the importance of Corporate Compliance.
One of the most relevant changes in criminal law in recent years has been the introduction of criminal liability of legal persons. With the reform of the Criminal Code in 2010, companies became potentially criminally liable for their actions.
Consequently, all persons – both individuals and legal entities – are criminally liable for their acts or omissions, which can sometimes, depending on the seriousness of the acts, lead to criminal liability.
Notwithstanding the foregoing, not all entities with legal personality are criminally liable for their acts given that the Criminal Code excludes the State, Public Administrations, Regulatory Bodies, and other bodies exercising public sovereign powers from criminal liability. Initially, political parties and trade unions were also excluded from the scope of criminal liability, but this was subsequently amended and as of 2012 they may be criminally liable for their acts.
Thus, legal persons subject to criminal liability can be convicted as perpetrators of a crime in two cases:
In this regard, there is a specific number of crimes that can be committed by legal persons, the most common being money laundering, crimes against the Public Treasury, against privacy and public image, against the environment, swindling, extortion of assets and influence peddling.
Given that the criteria for the application of criminal liability covers trading companies’ employees, one of the systems that has acquired most relevance and prominence in the business world in recent years is Corporate Compliance.
This system entails the obligation for every company to implement a series of fully functional regulatory compliance and crime detection and prevention control mechanisms with the aim of preventing companies from incurring criminal contingencies, to the extent that, globally, the implementation of a Compliance system–adapted to the activity and size of each company – is no longer a voluntary option for most companies, but has rather become an actual requirement integrated into the company’s organisational structure.
Thus, one of the pillars of the control and prevention systems put into effect by companies is the implementation of training protocols for employees. The idea is that all employees get continuing training so that they are aware of the limits of the exercise of their functions within the company in an effective manner, and so that they have access to the appropriate reporting channels in the event of detection of potential criminal conduct.
Certainly, the most important question here is whether the exclusion of liability of a Trading Company can be established when the commission of the offence by one of its employees is clear. The answer is yes; the exclusion – or attenuation – of criminal liability shall be determined insofar as the company is able to prove that it did the utmost to detect and stop any criminal activity in the framework of its employees’ professional practice.
Let us recall the enormous impact – and media coverage – of the Volkswagen case, which had to pay millions in compensation and fines a few years ago due to a scandal uncovered by an internal investigation within the company, which revealed that a group of their engineers had falsified and manipulated data related to the emissions of certain diesel engines of its vehicles, in order to solve a problem that they did not know how to tackle in a legal way.
In conclusion, the importance of implementing a good compliance system within the business organisation can be crucial when it comes to exonerating companies when criminal activities are committed by their administrators or employees given that, as pointed out before, for a company to be criminally liable, the crime must be proven to be committed due to a lack of adequate control over business activity.