Excerpted from an Association of Corporate Counsel blog by Wendy R. Leibowitz
About five years ago, Ethan Wall, the CEO and founder of The Social Media Law Firm, wrote a book called The Social Media Guide for Lawyers. At that time, every single comment and every post from a company had to pass through the legal department for approval. Now, the social media world has been transformed. Although legal advertising and ethics rules might not have changed, the idea of screening every post is laughable today. “Companies that act that way are going the way of the dodo bird,” Wall says.
As social media transforms communication, from White House tweets to an in-house counsel’s LinkedIn profile, social media policies must be updated for the age of Facebook, Twitter, Instagram, LinkedIn, YouTube, blogs and websites. In-house counsel must adapt companies’ strategic plans and content for an age when social media seems to permeate communications.
Sterling L. Miller, a blogger and general counsel of Marketo, thinks that his company is as well prepared as it’s ever been when it comes to social media. “It’s so important — you have to be very thoughtful about what you say and how,” he emphasizes. The social media policy is updated every year and now Marketo is changing over to Adobe’s policies. Still, the essentials remain the same.
1. Know your company’s audience and goals
Social media are tools to accomplish an objective. There are different purposes for different media. “Each company needs to decide for itself which social media can best further the company’s goals,” Wall advises.
Take a company like Whole Foods. The marketing department might decide that YouTube is a good channel for their company to share recipes for the holidays. Or they might want to launch a blog to share recipes. “Then, there’s Instagram or Facebook to publicize any updates,” Wall notes.
A media company might use Snapchat as well. Some platforms can monitor comments and would invite customers to comment. “The public is used to interacting with companies over social media… Invite the customer to tweet to them. Responding to comments is cheaper than paying employees at a call center,” he says. “From a risk standpoint, it’s almost counter-intuitive to block comments. People see the company as closed off or not transparent” if they block comments on some media. “Do complaints go away if you don’t deal with them?”
2. Improve your training
Miller urges in-house counsel to implement social media training that is effective, interactive, and repeated throughout the year. Many companies, like Marketo, “have to up our game,” he advises, particularly with regard to training.
Social media training must be as mandatory as sexual harassment or trade secret and privacy training, Miller says. He emphasizes that good training doesn’t involve sending emails to employees, but is interactive, at the desktop or classroom, and tailored to the company.
Given that some employees are far-flung, traveling, or working remotely, online training can work best, and the results of a quick online quiz at the end of the session can be collated to check for misunderstandings. The best training sessions are short and engaging, to keep people’s interest.
At the end of the training, people must sign the policy and commit to following it, Miller concludes. That puts the company on solid footing should an employee need to be disciplined for violating the policy. The best training sessions are repeated a few times a year.
The old training simply stated, “If you don’t want your mother to read it, don’t put it online.” That’s still true. Wall puts it succinctly: “Here are the guidelines — follow them.”
Wall advises in-house lawyers to omit legalese from social media policies and define the policies narrowly. “Don’t say, ‘don’t disclose confidential information on Facebook,’” which sounds obvious but is too vague.
3. Know the risks, but take them with caution
Lawyers are taught to spot risks and avoid them, but social media is so ubiquitous now that a modern company cannot avoid the risks. “The risks are there, but they are worth it,” Miller says. “Your employees will be on social media. Invest in training, don’t avoid the technologies.” Wall agrees: “Risk and reward are closely tied together.”
The horror stories are countless. Yet the best companies use them as educational tools, Wall says. For example, a Taco Bell employee licked the taco shells he was serving and placed a video of his taco tastings on social media. He was fired. There’s a good disciplinary, as well as a hygienic, lesson in that.
Aflac, the insurance company, hired comedian Gilbert Gottfried as their spokesman — he voiced the company’s mascot, a duck who quacked, “Aflac,” for many years. After a terrible earthquake hit Japan in 2011, he posted several insensitive tweets on Twitter, joking, for example, that real estate was now cheap in Japan. Though the company faced no legal liability, it fired him as its spokesman and apologized.
Wall says the companies involved in these and other incidents handled them well. “I want all corporate counsel to sit down and thoughtfully ask how they can use social media to further their companies’ objectives,” he says. The companies that do will win this generation, as well as those that follow.
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