Aggressive negotiation or blackmail?

Negotiations can be hard fought, with each party using whatever advantage is at their disposal to obtain the most favourable outcome they can. Such tough negotiation is all well and good as long as the actions of the parties, and the manner in which any “leverage” is used, does not stray over the line into blackmail.

Blackmail is a criminal offence. If you think that you have been subjected to blackmail in the course of negotiations, you should immediately seek advice from your solicitor.

What constitutes “blackmail”?

In very brief terms, for there to be blackmail there must be:

– An unwarranted demand;
– Such demand was made with “menaces”; and
– The demand is made with a view to gain for the person making it or an intent to cause loss to another.

A demand with menaces will be unwarranted unless the person making it does so in the belief that:

– he has reasonable grounds for making the demand; and
– the use of the menaces is a proper means of reinforcing the demand.

It will be a question of fact in any particular case whether the demands are made with a view to gain or an intention to cause loss. Indeed, the purpose of most negotiations is to improve one’s position at the expense of another. As such, it will generally be the manner in which the demands are made that result in an allegation of blackmail.

To be an offence under English law, one of the constituent elements of the blackmail must have taken place in England and Wales.

A real menace

This blog post will focus primarily on “menaces” as it is this aspect that generally causes the most distress and, when made, is often the point at which a person realises that, rather than simply being on the other side of tough negotiator, they may actually be a victim of blackmail.

“Menaces” are serious or significant threats (express or implied) and include threats of violence or other detrimental or unpleasant consequences. The threats a) should be such as to affect the mind of a reasonable person; or b) did, in fact, affect the mind of the victim and the accused knew his actions were likely to have such an effect.

Clearly, if in the course of negotiations, your counter party threatens violence towards you or a loved one you should immediately seek legal advice; however, often the threats are not so clear. Other acts which may constitute “menaces” include threats to:

1) publish pornographic images of someone on the internet;
2) make public allegations of improper or otherwise bad conduct;
3) report someone to the relevant authorities (for example the police, HMRC or the Home Office) for criminal or other wrongdoing; and/or
4) publish allegations about a company with the intent to lower its share value.

Veiled threats

The threats do not have to be express or overt. Phrases such as those set out below can give rise to blackmail:

1) “I am not making a threat, merely a promise…”;
2) “you never know who might find out those explicit photographs you sent…”; and/or
3) “wouldn’t it be a shame if the tax / customs / immigration authorities found out about X…”

If you are in any doubt as to whether you are at the other end of a blackmail attempt or simply on the other side of an aggressive negotiator, you should seek legal advice.

Michelle Quinn is Counsel and a senior associate at Grosvenor Law. She regularly advises in complex commercial matters, including in fraud, conspiracy, insolvency and breach of privacy disputes.