Class action litigation is developing at an incredibly fast pace in Europe, with some markets adapting more quickly than others. With the introduction of the Representative Actions Directive, all EU countries are now required have a mechanism of representative actions in place. The Directive improves consumers’ access to justice while it also foresees appropriate safeguards to avoid abusive litigation.

From a communications perspective, regardless of how class actions are being carried out across the different markets, there is an effective way that you could approach strategic communications. Dina Hudson, Senior Consultant at Byfield Reputation Counsel and Elizabeth James Tingen, Partner at Stark Narrative, discuss this after attending a European Class Action Summit in Amsterdam in the summer of 2024:

DH: “There are so many developments across Europe since the introduction of the representative actions directive and you know we're seeing how all of this is taking shape at varying rates and in different ways that's being implemented in different jurisdictions across Europe but I think the key thing about this from a communications perspective, as you say, is that having a coordinated and strategic approach, whether you're on the claimant side, defendant side, opt-in, opt-out, whatever jurisdiction you're in, is becoming increasingly crucial.

I think if you're on the claimant side, there is a natural need, especially in an opt-in action, to have a communication strategy that focuses on raising awareness of the initial launch of the campaign, initial launch of the action, and then thinking about how you use the communications throughout the life cycle of the claim.

EJT: Yeah, because of course it doesn't just stop after the book building process.

No, of course. You need the awareness in the initial stages for the book building, and I think we all agree that media is a really crucial part of that, but it needs to be a multifaceted campaign across different channels. But then as that claim progresses and you start thinking about how you want to reach remedies and settlements and other outcomes of the claim, then I think communications can be a really powerful tool to help advance that position too.

EJT: Exactly. And I think what I heard during the conference as well, from the defendant's side, the stance has changed slightly from thinking that they need to be purely reactive to considering how they can expand their approach; I think the manner in which these communication strategies are being executed and used as tools from both sides is becoming more sophisticated and it has to be taken into account. So from the defendant's side, what are some of the things that you've experienced personally in recent years, months?

DH: Yeah, it's an interesting point you say about defendants becoming more aware of the need for a communication strategy – from the outset. As you say, the sophistication of the claimant-side campaigns is growing. And also, as more and more of these claims are entering the public domain and the public are increasingly aware of what they can use and how they can use legal mechanisms to hold corporates to account, the need to protect the consumer base or your client base as a defendant should be on the top of the agenda for the board. In terms of tactics that you can deploy, I think directly rebutting the claim and having a strong position aligned to your legal defense is really important, but also taking a more holistic approach to how you communicate around the corporate initiatives that you're taking.

For example, if you have a privacy breach claim against you, what are you doing to protect your consumers, your customers? What changes have you already made? It's all about protecting that consumer base. And the way that you communicate more widely than just a legal claim should be really high priority.

EJT: Exactly. And I think the question at hand is really how media coverage related to a dispute will change the dial related to shareholder value. So that of course is the primary objective of the board's decision-making power. Traditional media is of unparalleled value, I think, and the way that these mediums are evolving and the way in which you have to consider your different stakeholder groups - of course social media is paramount.

So on some of these class actions that you're working on recently, what are the new ways in which you are using to target some of these groups?

DH: You raise a good point about the traditional media. I think that is always a fundamental pillar to a communication strategy, whether you're on the claimant side or the defendant's side. It's a way to reach massive groups of people and across the sector of your different audiences. And as you say, the third-party credibility that that offers is hugely important, that journalist perspective, the journalist's freedom to write the story as they wish, even if you're providing some of that information, adds that credibility that you say.

You also mentioned social media, hugely important, both on the claimant side and defendant side. I think everybody's probably familiar with claimant firms using digital advertising and the book building process, also as a way to get certain pieces of information out to the potential class or current claimants during the life cycle of the claim. From a defendant's perspective, though, social media and digital ads will always be hugely important because, similar to the claimants putting out those ads, any ads run by a defendant would interrupt that claimant journey and ensure that the narrative becomes more balanced again.

I think that's really important. And it also ties in to the point around the holistic campaign that you can do. It may be that you don't want to actively say discourage people from joining this claim, but you could consider a campaign which reinforces the messaging such as ‘we value your privacy, we value you as a customer because of X, Y, and Z reasons’.

If designing a campaign from the claimant perspective you need multiple touch points; you need to take the claimants on a journey: from awareness about the claim, to signing up and then becoming an active claimant.

On the defendant perspective you need to think about how you interrupt that journey at various points. So in the book building process how do you effectively deter claimants from signing up, and limit the class size. And then how do you intercept that journey through the media, perhaps by initiating a corporate communication strategy that includes media relations.

I think other tools that you can deploy and things that we've seen recently is obviously the huge rise of influencers. So that could be people who have a massive audience specific to the claim that you're bringing is such a valuable way and an effective way of getting a message out amongst a specific sector or specific group of people. And then obviously other forms of advertising, billboards, TV, radio, which are all a bit more traditional but also incredibly valuable tools.

EJT: I heard in passing a comment about street art even.

DH: Yeah, there's a new thing that we've seen that's popping up around using street art as an advertising tool as a logo with a website link; if I saw something on the street like that would at least want to know what it's about even if it didn't get me over the line to signing up, is part of that touch point plan.

EJT: True, true. I t's good to be diverse in approach.

DH: People always have to be becoming increasingly creative as people get a bit stale of these ideas, so I think we'll see the types of campaigns evolving as more and more of these claims take shape and I suppose to an extent it becomes increasingly competitive to get different claimants to sign up to your particular claim.

EJT: And then one thing that was mentioned as during the Summit which I found really interesting was considering how transparency related to the entirety of the process, regardless of defendant or plaintiff, has a really big role to play in gaining trust from the general market related to class actions in Europe; there is a constant narrative about how Europe does not want to become a duplication of what's happening in the American culture of class actions.

And I think that no matter how we are involved in a singular class action, it lends to the broader narrative related to class actions in Europe and how that legal-ecosystem is developing because it's still relatively young in each jurisdiction and it's quite intriguing to see how it develops.  

DH: Yeah, absolutely. I think you raised two interesting points there around the trust that you require in a specific dispute, so amongst your claimants or your customers if you're on the defendant's side and absolutely maintaining trust or building trust is a hard thing to do and it requires a coordinated campaign over a long period of time to be honest and it goes back to that touch point piece on both sides and once you've built that trust then it makes it easier.

 But you also raised the point around the general trust towards the class action system, which I know, for example, in the UK has gone on a real journey over the last few years. As you say, people are sceptical and a bit cautious around becoming the US system.

But I think nobody wants that. So an education campaign and public awareness and understanding about how these types of claims are there to improve access to justice, there to be an opportunity to seek collective redress as the overall objective, is really crucial. But it requires strategic communications at all levels.

EJT: Yeah, and a long-term horizon. 

Related to the point about trust that we just discussed, you mentioned access to justice and that should be the cornerstone of why this directive exists and why legislation in each different jurisdiction exists. Although the concern about the duplication of the American system or culture surrounding surrounding class actions may be somewhat justified, the whole purpose of this legislation should be to enshrine access to justice, irrespective of the fact which side you're sitting on, plaintiff or defence, that should always be remembered and respected.

DH: Yeah, absolutely access to justice is, has and always will be at the heart of class actions, particularly in the markets that we're talking about where they're relatively new. I think a lot of people give a attention to the damages or compensation that people are awarded; but it's much more than that. It's also about the way it allows people to hold corporates accountable.

I think access to justice through compensation, but also access to justice through corporates having to change their ways and having to make changes in the way that they go about things, I think that's particularly prevalent in the ESG litigation, which is such a high profile trend at the moment.

EJT: In the case of the US system it's much more backwards looking - so what has been done and what are we being compensated for your past behavior - whereas in Europe it's much more forward thinking. So how are we going to address behaviour now to prevent things in the future? And I think those are two very big and important things to remember. And if Europe wants to retain some of the integrity that we're hoping to, then that's a good thing to preserve, of course.