The folks in legal are often the last ones invited to the social media party. After all, they are often the “Dr. No” of the organization; who would want to let them in too early on any groundbreaking innovations? At best, they would certainly try to change it. At worst, they’d kill it. I have written about this before (in 2009) but believe it needs further treatment.
But the time has come to set those pre-judgments aside, and offer a legal a seat at the social head table. As advocacy groups place increasing emphasis on social media policies and government rules and regulations are in flux, business organizations face significant risks if their legal team is not involved in social business initiatives.
Successful strategic social media programs depend on legal involvement from counsel who understand the medium, and who can add value in two key areas. They should be well-versed in social media benefits, opportunities, rules and tools to help the company succeed while keeping the firm from running afoul of both the written and still-emerging rules and regulations governing social media activities.
Legal also needs to be involved in the social media business planning cycle from the beginning as a trusted advisor. In too many cases, the legal team get involved only after the marketing campaigns or online community efforts are well underway — and that’s often too late. This is when they have to slow the process and perform due diligence on policies and planning oversight to ensure compliance. Yet, if they had been brought in earlier they could have added speed to market. CMOs should reach out and offer legal a seat earlier in order to go faster in the long run.
If you are thinking about risks, the fact that these conversations are taking place without governance policies in place creates a host of potential liabilities for the organization. Most of them could be prevented with a bit of proper planning and strategic guidance ahead of time. For example, Intellectual Property (IP) risk is a fundamental issue with social business because the boundaries and regulations regarding social media and intellectual property are not well-understood and, in some cases, are still being formulated.
Moreover, the culture evolution of the Web means some social media assets may not be considered intellectual property even if they are covered by legal precedents. For example, most of us understand the rules that govern plagiarism, trademarks and copyright online, but photos and graphics are often freely “borrowed” without attribution. This can result in an organizational liability, which requires a cultural change through education as well as clearly-defined policies. Consider these issues:
- Does the organization have multiple social media policies or a comprehensive one to help define the rules of behavior online?
- Employee Participation in Public: How do your employees participate in social media — in your own domains such as Facebook or Twitter, or in open public forums?
- Public Comment Policy: What are the commenting/participation policies in place on your sites? Has legal benchmarked these against other organizations within and outside your industry or sector to ensure they are complete and take into account current best practices?
- Are in-house counsel up-to-speed with understanding and using social media so they can evaluate and guide social media policy and best practice without bias or undue prejudice?
- Is legal working in partnership with Marketing or Tech Support teams to help shape social efforts that are ongoing and evolving within those departments?
- Has legal reviewed the policies of other departmental for social media use? For example, does your company have a code of ethics to guide social media use in hiring? Do HR policies for hiring and exiting employees take social media into account?
- Does your company have a crisis management plan to mitigate social media issues? Is it well-understood and accessible across the organization?
Here is a recent article by Inc. Magazine that discussed how to avoid a social media law suit. And for all my lawyer readers, there is some great information to be found on the Martindale-Hubbell Connected online community dedicated to serving the needs of over 40,000 legal practitioners (my client).