UK: Social Media Governance: Tips for In-House Counsel

Last Updated: 21 May 2012
Article by Suzy Schmitz, Rachel Boothroyd and Paul Garland

Corporate use of social media has rapidly become commonplace across most industries, proving there is no shortage of companies willing to provide the soundtrack to Zuckerberg's vision. Nor is it limited to the global consumer brands; from sewerage treatment companies to funeral homes, businesses are flocking to Facebook and other social media platforms.

Yet in the flurry to establish their themselves as 'influencers' online and engage directly with their customers, businesses often neglect the question of social media governance. Planning and implementing a governance strategy is important to ensure a cohesive approach across the business, identify risks and take steps to minimise them, and to manage crisis situations.

What we are seeing is that this aspect is often overlooked because the evolution and management of social media within a business can be driven by opportunity rather than risk. This can leave in-house counsel fielding the consequences of decisions rather than making them. Yet in our experience, the in-house counsel has a role to play in effective social media governance and can help protect their company as it 'socialises its brand', without diminishing the opportunity.

In this article we outline some tips for in-house counsel regarding social media governance. These should assist you to identify and communicate your role in your business' social media strategy.

1. Get the attention of the business

A common theme we are hearing is that the business does not see social media as an area that requires legal input.

The use of social media by businesses is still in its infancy, relative to other sales and communication channels. Yet there are already examples of where companies have made catastrophic mistakes. Despite this, many companies still hold the view that 'it won't happen to us'.

Although scare tactics can seem unsophisticated, using examples of where others have gone wrong can be an effective way to capture the attention of the business. The goal in doing so is to illustrate where the risks lie in poorly-thought out social media strategies.

Remember: Social Media is like sky-diving – the fact that risk exists is not a reason not to do it, but it is sensible to take precautions

2. Engage with the stakeholders

By its very nature, social media is a game of many players and is relevant to many aspects of a business including marketing, legal, HR and IT. We have illustrated this in the 'Corporate Social Media Matrix' set out below. No one needs to be left out of the conversation and everyone has something to contribute. If in-house counsel can help to facilitate discussion between these stakeholders, a company's social media strategy is likely to be more cohesive.

Remember: many parts of the business may feel they have a vested interest in social media – the company's strategy should reflect the objectives of these stakeholders

3. Plan for the worst, hope for the best

Picture this: You're in-house counsel as a food manufacturer. It is 9pm on a Friday night and your phone rings; it is a colleague telling you that they have seen a conversation on Twitter which alleges that your most successful product contains a harmful substance. The message has been re-tweeted extensively and someone has started an 'hate#' conversation about your company.

Is this the best time to decide on your crisis management strategy?

Planning for a crisis does not need to be complicated, but you need to ensure that it is done in advance. Simple details like ensuring there is a list of contact names and responsibilities and a decision-making matrix, as well as access to the relevant administration account and password, can help to contain an incident.

This is particularly important if you out-source the generation or moderation of your content to an agency or other third party; they need to know exactly who to call and when. Your contract with them also needs to specify clearly where the obligations lie in such a situation.

Remember: A social media crisis can rapidly get out of control – it is vital to plan ahead.

4. Develop a roadmap

Social media governance is an evolutionary process. Initially, your focus may be on information-gathering and centralising control of accounts and passwords, implementing broad guidelines and defining responsibilities. Further down the line, education and moderation will become more of a priority.

Plan your roadmap to governance and communicate it to the business. By demonstrating the steps involved, senior management can gain an understanding that social media governance is an on-going process.

Remember: social media governance is a tool to minimise risk, but also to communicate the benefits of social media across the business. The steps on your roadmap should seek to achieve both objectives.

5. Use the right resources

Think about what can be achieved internally. For example, do you have sufficient head count to ensure that content is being produced and moderated appropriately? In some cases, engaging a suitably qualified external agency to assist you company to produce, manage and moderate content, may be a cost-effective and advantageous option. For example, you may be able to structure the contractual arrangement to pass risk regarding IPR infringements and other liability onto the agency.

Remember: inaccurate or defamatory social media content can prove catastrophic; if you are you out-sourcing the generation and moderation of your social media content, make sure obligations are clearly defined and the party you are using is sufficiently experienced to manage the task.

6. Be aware of the contractual and regulatory landscape

Social media is an area abundant in contract and privacy terms. As with any other third party contracts, the in-house lawyer should be involved in the review and acceptance of these. Examples can include:

  • terms and conditions relating to social media platforms themselves (Facebook, Twitter etc)
  • if you use technology platforms for consolidating and managing content, agreements in place with the supplier/s
  • contract/s with moderation agencies
  • terms relating to use of Community Managers

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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