Maja Pawinska Sims 20 May 2019 // 6:59AM GMT
An agency being suspended by its client is such a rare occurrence that it’s always going to attract considerable interest when it does happen. Which is unfortunate for FleishmanHillard, which finds itself in limbo after being suspended by Bayer over its public affairs work for pesticide company Monsanto, bought by the German pharma and life sciences giant last year.
The circumstances are unusual, if not unique: French newspaper Le Monde and broadcaster France 24 have filed complaints with prosecutors, claiming that Monsanto has broken data protection and privacy laws in multiple ways.
The accusation is that Monsanto PR agency FleishmanHillard compiled a list in its Brussels office in 2016 — when Monsanto was in the middle of a debate on renewing authorization for glyphosate, the key ingredient in its controversial Roundup weedkiller —with the details of around 200 journalists (including from the two outlets that brought the complaint), researchers and policymakers. Some of the information, including notes on their stance on pesticides, was from publicly available sources, and some is said to be from private sources.
According to Le Monde, the list contravenes French law on four counts:
- 'Implementation of the processing of unlawful personal data';
- 'Collection of personal data by fraudulent, dishonest or unlawful means';
- 'Computerized storage of personal data revealing the political and philosophical opinions of a person without his consent'; and
- 'Unlawful transfer of personal data which is or is intended for processing to a State not belonging to the European Union or to an international organization'.
The central point, about political and philosophical opinions, is in Article 8.1 of the LIL Act, a French law relating to computers, files and freedoms that was brought into effect in 1978 and modified in 2018. The other clauses are from the same piece of legislation, as well as the EU's new General Data Protection Regulation (GDPR).
After at first denying it knew anything about the document, Bayer’s next response was to issue a statement announcing it had immediately suspended its relationships with the “involved external service providers”, which include FleishmanHillard and Publicis Consultants in France. Those are not the only agencies that Monsanto has enlisted to support its glyphosate campaigns in Europe — it is understood that the company has also worked with Irish firm Red Flag and FTI Consulting.
According to sources close to the matter, none of the agencies involved were aware of the imminent suspension — the length of which has not been confirmed, with anything from one month to until the end of this year being mooted by various sources — until Bayer issued the statement.
Bayer also pledged to support the French investigation, saying SVP of public and government affairs Matthias Berninger (who recently joined from Mars) would also be looking into the matter internally and deciding on any consequences.
The German multinational’s initial statement said: “After a first analysis, we understand that such a project has caused concern and criticism. This is not the way in which Bayer would seek to engage with different interest groups and society, and we apologize accordingly.” The statement also said that the company did “not tolerate any action that is contrary to ethics” but did not see there was evidence “at the moment” that the list had broken the law.
This was followed a few days later by Berninger telling Reuters that it was likely that similar lists existed elsewhere: “It’s safe to say that other countries in Europe were affected by lists... I assume that all EU member states could potentially be affected,” he said, adding: “When you collect non-publicly available data about individuals a Rubicon is clearly crossed.”
Sources from within Bayer and its agencies note that Berninger's language has been unusually strong from the outset. There have been talks over the past week between Bayer and FleishmanHillard parent Omnicom to establish that while FH’s work for the crop sciences division (which includes Monsanto) is suspended, it remains business as usual for other Omnicom agencies that work with Bayer, including Porter Novelli.
Bayer has told the Holmes Report it will be making another statement early this week, while FleishmanHillard’s latest statement says: “FleishmanHillard believes that the work it has done on behalf of clients is in keeping with the professional standards and established practices in our industry. FleishmanHillard is and always has been committed to the highest standards of ethical conduct in all we do, for ourselves and for our clients. We believe in being open, transparent, responsible and legally compliant in our activities.”
Stakeholder mapping vs data privacy
Whether the specifics of the complaint in regard to French law hold water, have FleishmanHillard and the other agencies involved in the case actually done anything out of the ordinary? Stakeholder mapping is standard practice in public affairs, after all: working out exactly who your supporters and detractors are, and those who wield influence and have the power to make decisions that affect your organisation, is a basic first step to establishing relationships, building dialogue, and shaping a communications strategy.
Unsurprisingly, few PR or public affairs practitioners were comfortable commenting about the case on the record, but the general reaction points to a measure of perplexity.
One senior European public affairs practitioner said: “This sounds like typical stakeholder mapping that we do all the time, using direct meetings and public information to map out where people stand – that’s public affairs. I’ve been in public affairs a long time and I’ve never heard of this law. If the French decide to investigate every agency doing this we’d be in deep trouble.”
Of course, ignorance of the law — especially when you consider the high-profile rollout of GDPR — is hardly a defence. "If you are writing about people in other jurisdictions in a way that is against the law then you are behaving like an idiot," says another UK practitioner. "Frankly a multinational agency should know better, but I suspect a lot of agencies don’t even know the legislation in their own countries."
If PR firms have not been considering the impact of European privacy legislation, they may want to begin now. A US public affairs veteran, for example, points out that "the biggest agencies in the world even use sophisticated CRM platforms loaded with information on specific influencers. However, now more than ever agencies need to be wary of privacy issues. It goes without saying that you must be fully aware of the local laws in the areas where you operate, and the global regulatory landscape is fluid."
Meanwhile, what might constitute standard practice for industry professionals can look rather different when viewed through the lens of those who don’t work in PR. As news about the case spread, the language being used to describe the 'Monsanto Dossier' in the media reflects the unease that continues to shape perceptions of lobbyists.
Terms such as "the latest PR scandal to engulf Bayer", "shady PR firm" and "Monsanto file scandal" spread quickly in coverage across the world. One newspaper in FleishmanHillard's hometown of St Louis, Missouri ramped up the tone of Bayer’s own statement in a story where it "admitted" that other "secret lists" might exist. The former French environment minister Segolene Royal, who is said to be one of the names in the dossier and who had campaigned to block sales of Roundup, told French press association AFP that it "says a lot about the methods of lobbyists... they carry out spying, infiltration, seek to influence, sometimes financially, I imagine."
Lobbying has had its "dark arts" moments, of course, and even with a heightened focus on professional standards and ethics across the industry, lines are probably still crossed on a regular basis. But stakeholder mapping, from public data at least, would hardly appear to merit public outrage, especially when you consider that similar efforts are presumably employed by op-ed editors and TV news show bookers the world over.
And, of course, there must be frustration for the majority of decent operators in the industry that once again, public relations is being viewed as a malign influence.
Another factor may be at play here: French authorities have typically taken a dim view of both Monsanto and Roundup. In January this year the French food and environment safety agency ANSES succeeding in banning the sale, distribution and use of Roundup Pro 360. In addition to the barrage of US class-action lawsuits that have determined Roundup causes cancer, there are high-profile cases in France, including from Paul François, a farmer from France’s rural Charente region, who is claiming more than €1 million in damages from Monsanto because he says its Lasso weed killer (now banned) has left him disabled.
"Monsanto is considered to be a public enemy"
Edouard Fillias, CEO of Paris-based communications agency Jin, believes the case is less about legal breaches and more to do with Monsanto’s reputation and the French political system. "I think the rules around lobbying and interest groups in the French democratic system is the story here. Our democratic life is very immature: France is a very centralized administration, and when interest groups fight to defend their interests it’s viewed by many as a kind of political hacking and is associated with bad reputations.
“This is actually all about Monsanto and an extension of a big debate in France which has turned nasty: Monsanto is considered to be a public enemy here, because we have such an attachment to agriculture and food."
Fillias adds: “There is a file, it’s been defined by an agency working for a customer who is in an interest group, so it become the focus for anger and opposition. We have only had a law since 2016 that says interest groups have the right to organise themselves and act, but it doesn’t define the rights of these groups. Unlike unions or political parties, the legislation doesn’t say that they are entitled to develop a knowledge base about the communities they are talking with."
Whatever the motivation, the reputational impact on all parties cannot be underestimated. Monsanto’s reputation globally can hardly get much worse, but any accusation that it was involved in illegal activity certainly won’t help. Bayer must have had some ideas of the possible legal costs it would be on the hook for when it bought Monsanto, but one wonders whether it has carried out robust due diligence into the potential reputational cost of being tacitly or overtly associated with everything Monsanto is accused of.
Sources also suggest that the company's public apology and internal investigation may sit uncomfortably with internal government affairs and PA teams that have been carried over from Monsanto, along with the relevant agencies. A swift apology might be a staple crisis management response, but it’s no doubt important to establish whether there might be something to apologise for in the first place.
Even if all parties are exonerated and the situation turns out to be "blown out of all proportion, with good people losing sleep for all the wrong reasons", as one senior Omnicom staffer put it, the case will inevitably be referred to in future coverage of Monsanto’s ongoing litigation, tainting all those involved.
It is not just internal staffers, either, that will feel their professionalism and credibility are being questioned. Bayer is a prestigious client, but its rapid decision to suspend agencies may give current and future partners pause.
Regardless of whether the ongoing French investigation evolves into a prosecution, or the effect on Bayer/Monsanto and its agencies’ relationships and reputations, there is probably a solid “back to basics” lesson here for agencies and their clients, in our data privacy-conscious times.
Gavin Devine, founder of public affairs agency Park Street Partners, says: "Everything to do with privacy and data protection is a minefield for every agency. When you then operate across jurisdictions you are adding to your risk exponentially, so being confident about legislation and regulations everywhere you are referring to is really important.
"All agencies suffer from the problem of controlling the people who have direct contact with clients, media or anyone outside the organisation — we don’t operate with only one person in an agency facing the outside world, we are all continually in contact with stakeholders, and while you might have the best policies in the world, making sure everyone is compliant when you’re moving as fast as most PR agencies are is difficult, and speaks to the vital need for audit and training."
Others pointed out that if Bayer/Monsanto and their agencies are considered to have acted illegally, this could potentially lead to even tighter data and privacy legislation, at a time when the PR industry is still adapting to the new GDPR framework.
Finally, it may even cut both ways for the French media outlets that have brought the complaint: as one senior public affairs professional said: "Show me a journalist without a list of contacts and expert commentators who are available to talk on specific subjects, and their likely viewpoint on that topic."
Additional reporting by Diana Marszalek