Over the past few years, the external-facing digital activity of organisations and their employees, as individuals, has proliferated.
With an increasingly complex landscape of websites, social media channels, apps, platforms and tools, the associated risks have also grown. You have a valuable role to play.
Harnessing the digital worldDigital touch points can only proliferate.
New capabilities and services are being developed as we speak. Existing products are evolving constantly. Meanwhile, cloud-based services are maturing, adding new opportunity and complexity in equal measure.
While all this may enable us to open up new and sophisticated digital touch points with clients, it also presents significant challenges. So, just as you do with your internal digital workplace, you have a role to play in helping your organisation, team and individual colleagues navigate this new world. You need to minimise risk and be in a position to resolve problems swiftly. But to do this you need to understand what the tools are and how they work.- as we have said before [here] in the same way that we all know that ‘ignorance of the law is no excuse’, ‘ignorance of how your corporate IT and related systems work is no excuse’ is becoming the norm.
Social media activity comes in four broad types:
- Content posted on corporate channels as the voice of the organisation;
- Content posted by individuals in an official capacity as a representative of the organisation;
- Content posted by individuals in a private capacity; and
- Content posted by others about your organisation.
You may need to concern yourself with all four, but the greatest difficulty lies in the grey area between types 2 and 3.
If your company still produces a lot of hard copy materials - e.g. print, TV and radio advertising, mailings etc it is also worth remembering how these things interact with online content so that you synchronise changes to content (such a prices or specifications) in line with the slowest lead time for change format within which that content is contained.
Adding valueThe most common areas where you, as an in-house lawyer, can add value relate to:
- Guidelines and procedures for employees’ use of social media (including libel, political engagement and comparative advertising risks);
- Disputes over ownership of social media channels;
- Reviewing potentially litigious or sensitive content, posted either by employees or third parties;
- Issues arising from the above;
- Data protection;
- Ownership of and licences for Intellectual Property (e.g. images, logos, sounds) that are being used;
- Due diligence on new applications, for example where data resides; Decisions around bring your own device, remote work software access and other company policies and tools that might increase the chance of confusion/risk of accidental misuse;
- Review of practices and processes from a reputational risk perspective;
- Understanding how record retention and e-discovery apply these tools in the event of a dispute, a regulatory investigation, a "dawn raid", litigation, a subject data access request etc.
- Understanding how the organisation monitors and manages its digital profile - e.g. do you engage with consumer or media messaging about your company or not and if so when, how and who does it; and should you monitor external media for signs of users exchanging notes on how best to take advantage of weaknesses in your company - e.g. voucher/promotional codes; the "soft touch" contact centre number; the way to frame a product or service complaint to get the best benefit for the consumer out of your organisation; and/or for signs that you are failing to Treat Customers Fairly (a duty for Financial Services companies).
Here are four major considerations to bear in mind.
Firstly, social media moves fast and evolution of different services, new channel launches and fickle patterns of usage mean situations change rapidly. This article may well be out of date by the time you read it. Keep a watchful eye on new developments.
Secondly, problems are most likely to arise in the grey area where employees interact on social media for work, but as individuals rather than representatives of the organisation. If they own the accounts they post from (and even establishing this can be complex), working out if people are speaking on behalf of your organisation or in a private capacity is fraught with difficulty. The waters are even muddier from the customer’s point of view.
Thirdly, the challenge, as some in the IT community express it, is often a "PICNIC" one - "Problem In Chair, Not In Computer". Because social media activity is personal, you can only drive compliance through education. Be ready to educate employees about the risks of social media and the organisation’s expectations. Issuing dictats about how your employees behave outside work is a sensitive area. It is also complicated by the increasing use of bring your own device and remote access work applications meaning that an increasing number of employees are running private and work activity, often simultaneously, on the same screen - the potential for confusion and errors is significant. However, if an employee posts deeply offensive content, it could reflect badly on your organisation.
Lastly, social media capabilities are converging. Facebook and LinkedIn are adding capabilities such as livestreaming and blogging. Twitter owns the blogging platform, Medium.
The external digital and social media landscape
The external social media landscape is complex and changing, so what we provide below is very much an overview. Many categories also overlap and we’ve left professional collaboration sites such as Slack and internal channels out of the scope of this piece. You’ll find more about these in our separate article, Navigating the digital workplace.
Corporate websites and microsites
Corporate websites and microsites, such as websites dedicated to a campaign, remain important communication channels. They also tend to be predictable, although companies with multiple brands and presences in multiple countries often operate multiple websites. Sometimes, there’s less central control over the portfolio of sites than some central teams might like. There may also be different levels of interactivity on websites, which can make managing them complex - particularly about removing redundant content and about publishing statutory requirements and other notices in the right places and keeping them there especially on websites which sell products or services or provide information and for the websites of regulated entities (e.g. listed companies and/or those in the financial services sector).
The two best-known non-professional networking sites are Twitter and Facebook although there are many other very popular ones such as Mums Net. Most organisations have a presence on both for brand engagement. Many also use these platforms to provide customer service. Other social sites that began life as media sharing platforms have evolved into networking sites with a following capability. Instagram is a great example of this trend. The sites have increasingly data analytic capability - which can be bought/used but also can create issues such as the involuntary association of your brand with other content that you would not want to be associated with.
LinkedIn is the best-known professional social network. Many organisations have a corporate presence on the network, but LinkedIn’s power lies in the networking opportunities it offers individuals. In the last couple of years, the site has focused on publishing features. A problem for many people recently has been an increase in spam and frivolous posts. LinkedIn has been acquired by Microsoft, a move that may herald further integration with offerings like Office 365 and is already resulting in substantial feature set changes which are mostly driven towards forcing users to broadcast messages (rather than use closed user groups) and expose more personal data (in)voluntarily (the data analytic/mining reasons for this are self evident). Other professional networks are popular in particular countries and regions. For example, Xing is popular in mainland Europe. Google + initially had some professional use, but there’s a sense this platform has lost its way.
Instant messaging (IM), chat and video calls are now incredibly popular. We can interact via short text updates in real time on Facebook’s Messenger app, Skype and mobile apps such as SnapChat and WhatsApp, which is also owned by Facebook.
These services are distinct from work-oriented instant messaging apps such as Skype for Business. In addition, some, such as Skype and WhatsApp, have video call capability as well.
Many organisations also provide a branded live chat function as part of their customer support service, often via an outsourced provider. Don't forget that these are all subject to data protection laws and to litigation and subject data access request disclosure requirements - which is why knowing where physically the services are hosted and how they operate can be important.
Video and images
Media-sharing sites allow individuals and organisations to upload, share and comment on videos and images. The most famous channel is YouTube, but others include Vevo and Dailymotion. Instagram and Flickr, meanwhile are the best-known image-sharing sites. Many brands use all these channels, and especially YouTube and Instagram, to engage and communicate with customers. There is an increasing trend towards using "Video Loggers/VLoggers" to promote products and services - these are now subject to advertising regulation in some markets. It is also worth noting that, some VLoggers have caused damage by association to brands that they have promoted through ill chosen publicity seeking activity and commentary.
Blogging is one of the most mature social media channels. It allows individuals and organisations to publish both short and long articles and, often, readers to comment. Blogs feature as a part of many organisations’ websites. They also exist as standalone sites.
The world’s most popular blogging software is WordPress, a sophisticated content management system (CMS) in its own right with a worldwide industry of developers, designers, service providers and user forums. Other popular blogging platforms include Medium (see above) and the Pulse publishing feature on LinkedIn. Tumblr is a hybrid blogging platform with a focus on short, tweet-like updates.
A relatively new phenomenon, live streaming lets an individual broadcast a live video stream from a camera, computer cam or mobile device. Some corporates and other organisations are using this technology to enable people to follow their events. Periscope is a popular choice, however individuals can also live stream through Facebook. Other live streaming services offer integration with a range of social media channels.
Bookmarking and pinboardsSharing collections of links and bookmarks is nothing new. The bookmarking site, Delicious has been around for years. A more recent innovation is pin board sites, where bookmarks are represented by tiles linking to the full content. Best known in this sector is Pinterest.
Discussions boards and online forums
Discussion boards have been around in one form or another since the 1990s. Discussion boards or online forums are readily available, so can be integrated into, or accessible through, a website. A common use of forums is for customer support for IT services. They also give people with common interests, such as ownership of a particular model of car or breed of dog, a place to discuss experiences or share solutions to problems. In most cases, a moderator overseas a forum to enforce its guidelines. Discussion groups can also be provided through platforms such as LinkedIn and on sites like Reddit and the expert Q&A site, Quora.
Depending on what your organisation does, it may feature on ratings sites. Examples of these include TripAdvisor, Amazon or Trust Radius, where customers provide feedback and ratings about products and services they’ve bought. It is worth being aware of the increasing number of paid reviewers on some of these sites and the fact that they are now subjected to advertising standards regulation.
Your organisation may also feature on Glassdoor (and its equivalents) where employees leave anonymous feedback about their experience of working for your organisation. Negative feedback can usually be directly addressed, and some companies also encourage their (happier) employees to post positive reviews of the workplace.
Mobile apps, games and more
Social media functionality and the option to connect with others and self-publish is built into many other channels, including mobile apps, games and more. For example, you can connect with your friends on your Fitbit device and send them messages. Children connect with other players when they are playing online games like Minecraft. Product placement within some of these games is becoming more common.
The list is endless – and probably grew as you read this piece!
We can’t ignore the world of external social media. Whether you work for a B2C, B2B or a non-profit organisation, your employees will use social media - and your customers and other stakeholders most certainly will. It's a messy world where the official and unofficial voice becomes increasingly blurred. As an in-house lawyer, you can provide much-needed clarity with policies, guidelines and processes that minimise risk, protect staff and deal with issues in a straightforward way. In an ever-changing environment, this comes with its challenges. However, if you keep up to date with developments and actively provide guidance to employees, you’ll put yourself in the strongest possible position to take advantage of what social media offers.