A couple of weeks ago, I received an invitation to a lunchtime round-table event, to chat about social media and the law. “What’s not to like?”, I thought, and a few days later I was enjoying the delights of good company in an Italian restaurant in London’s Covent Garden (and wishing I hadn’t driven to the station that morning – more vino please!). Well, what’s not to like indeed – a couple of hours flew by and I could quite happy have whiled away another couple, had I not needed to get back to the office…
So, social media and the law. Really? Is that such a big deal?
In a word, yes!
You see, whilst we’re all enthusing about sharing our lives online and building digital relationships, there are some for whom that’s a little too risky. I’m not talking about over-sharing personal details here – exposing oneself to undesirable physical world impacts from digital world slip-ups – but about negatively impacting one’s employment as companies struggle to get their heads around a world where relationships are formed online as well as in the traditional methods. Indeed, even the round-table where we were discussing these issues was run under the “Chatham House rule” – precisely so that participants could speak openly and freely, without fear of the consequences of reporting what they said (reporting is fine, attribution is strictly off limits).
Starting the conversation with concerns about employees tweeting, there are a whole load of considerations, from issues of authenticity to accidentally committing an organisation to a contract. Some organisations maintain lists of approved social media users but what happens when an over-enthusiastic employee defends your brand using their personal account and crosses a line?
Ultimately, companies are trying to protect their reputation online and limit their liability in the digital space, just as they do in the physical world. But there’s no “one size fits all” solution: some brands may be “free and open”, others more “locked down” and it’s increasingly important to create policies for acceptable use of social media. The issue is that these policies need to be kept up to date, and need to reflect the real world. For example, an organisation might forbid its employees to affiliate themselves with a brand online. That’s OK on Twitter, Facebook, etc. but what about their online CV on LinkedIn? For all of my disclaimers absolving my employer of any views and opinions I express online (disclaimers that were, incidentally, triggered by an unclear social media policy), it’s still pretty easy to find who pays my salary and to establish a link between my personal views and a brand. Thankfully, I’m told, there is a legal distinction between a social media account used for work purposes and affiliation of a personal account to a company or brand.
Unfortunately, until “social” is embedded in our organisational DNA, there will be issues – and the legal minefield around developments in the way we use technology is not exclusively limited to social media. Take recent legislation on the use of “cookies” for example, described at the event as “stupid laws by stupid people, made for the wrong generation”.
It’s important to recognise that much of the movement into social seen by companies today is out of compulsion rather than quantified need – organisations need to consider what’s right for their brand. And what if social media isn’t purely a marketing tool, but about relationships? Enlightened companies are accepting that employees are increasingly linked online but it’s still important to “think and use your brain”. Microsoft’s blogging policy is often quoted as “blog smart” – it’s actually two pages that boil down to “don’t be stupid”. The important element is being careful not to make forward facing statements on behalf of the company and monitoring takes place to control any breaches (inadvertent or otherwise).
Ultimately, employee behaviour is hard to control. Generally, there is no malicious intent. As employers we need to explain the consequences of actions but educating people is difficult.
Then there’s the issue of what happens when an employee leaves a company. There are high-profile cases of influential tweeters taking their followers to a new organisation, or of companies claiming that a LinkedIn profile belongs to them. Many companies are only to happy to benefit from relationships (and skills) when staff are recruited but try to protect these assets when they move on – maybe a future legal case will clarify the situation, with a sensible judge telling companies that they can’t “have their cake and eat it” (one can hope).
Even in the most sales-focused organisations, handing over an address book is one thing but relationships are individual (people transact with people)… perhaps it’s the relatively new nature of social platforms that means the rules of engagement are still settling down?
There’s an argument that assets gained on company time belong to the company, but what exactly is company time? In our increasingly connected society, there’s a fine balance between an employment contract, bringing chores/devices to work and working extended hours outside the office. When do we stop being employees and start being individuals again? For many of us, there is no more 9 to 5!
A couple more points that I liked were: that corporate use of social media is not really about openness but about translucency; and that we have years of history with employees talking to customers – in shops! The difference now is the online evidence trail.
Some consider that the damage any one individual can cause online is limited anyway, that the Internet is “filling up”, with user-generated content increasingly buried in search results by bland, corporate results (which may be authoritative but make it hard to find any real information on making things work). On the other hand, if patent trolling is a valid business model (which it appears to be), what about copyright trolls, or social media offence trolls?
That brought us nicely onto copyright, which evolved because society saw creative endeavours that needed to be protected. But the nature and scope of copyright is that it can only exist where society respects and enforces the rules. That means that copyright does need to evolve, especially here in the UK, where there is no concept of “fair use”.
In summary, there are a lot of worries about social media and the law but nobody is really over concerned – we know that laws will change (eventually) – but there will be intervening years where the implications exercise the minds of everyone from board members downwards and only common sense can drive us through. That means that monitoring is required: companies can’t engage in social media unless they’re prepared to monitor and to be intelligent about what they find.
So, what was the biggest lesson for me? Actually, it was nothing to do with the law. I found that taking comprehensive notes whilst tweeting and eating lunch is difficult!