This article explores the main types of channels and suggests how you can help your organisation and employees to navigate this complex landscape and think about the legal issues that might arise from them for your organisation.
Over the past few years, the external-facing digital activity of organisations and their employees, as individuals, has grown.
With an increasingly complex landscape of websites, social media channels, apps, personal productivity tools and more, the associated risks have also grown. The introduction of generative AI adds a further level of complexity and risk. You have a valuable role to play.
Harnessing the digital world
Digital touch points can only proliferate.
The last few years have seen new capabilities and services developing. In terms of technology, social media is now relatively mature, but new channels and services come and go with products and platforms evolving constantly. TikTok has arrived, Twitter has turned to X and now people are looking for alternatives. Meanwhile, cloud-based services have matured, adding new opportunities and complexity in equal measure.
While all this has enabled many organisations to open new and sophisticated digital touch points with clients and drive brand engagement, it also presents significant challenges. So, just as you do with your internal digital workplace, in-house legal teams have a role to play in helping your organisation, team and individual colleagues navigate this world. You need to minimise risk and be able to resolve problems swiftly.
But to do this you need to understand what the tools are and how they work.
At a high level, digital and social media activity comes in four broad types:
1. Content posted on corporate channels as the voice of the organisation;
2. Content posted by individuals in an official capacity as a representative of the organisation;
3. Content posted by individuals in a private capacity; and
4. 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.
Adding value
The 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, reputational and comparative advertising risks).
- Disputes over ownership of social media channels.
- Reviewing potentially litigious or sensitive content, posted either by employees or third parties and any issues arising.
- Data protection and data privacy.
- Ensuring sites are compliant with accessibility requirements.
- 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.
- Getting on top of and staying informed about new emerging areas such as generative AI or the “metaverse”.
- Understanding how the organisation monitors and manages its digital profile:
- Do you engage with consumer or media messaging about your company or not and if so, when?
- How and who does it?
- 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?
- Any regulatory issues in posting content.
- Any signs that you are failing to treat customers fairly (a duty for Financial Services companies)
- And so on.
Major considerations
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 will almost certainly 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, 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.
Lastly, it is also complicated by the increasing use of bring your own device and remote work means 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.
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, personal productivity tools 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 can also be a myriad of different promotional sites for products, initiatives and campaigns which then get forgotten about but are left online; it can even be difficult to know the full scope of your digital footprint.
There may also be different levels of interactivity on websites, which can make managing them complex. There are also challenges about removing redundant content and about publishing statutory requirements and other notices in the right places and keeping them there for as long as requited; this especially applies to 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).
Social media
There has been a huge proliferation of social media sites, with many brands having a presence on them. Currently the major established ones include Facebook, X (formerly Twitter), Instagram, LinkedIn, TikTok, and YouTube, all of these are ostensibly not for work purposes with LinkedIn the obvious exception, but some do end up being used for work, for example by brands for recruitment. LinkedIn also now has a lot of non-work content on it. These are all based on followers and sharing content.
Other social media sites follow more of discussion thread model such a Reddit, Mumsnet or Nextdoor, but the capabilities of one social media site and others have increasingly resembled each other. You can start a group, follow another person, share rich media content, create more a of a “channel” approach with subscribers and so on.
Other social networks are particularly popular in some territories and not others. China, for example, heavily uses WeChat.
Many brands use social media influencers to promote products and services in posts or videos. There is a whole behind-the-scenes industry around this. Others employ celebrities as brand ambassadors who also use their social media channels to promote related products. These are now subject to advertising regulation in some markets.
It is also worth noting that some influencers have either “edgy” content or non-mainstream views. Some influencers have caused damage by association to brands that they have promoted through ill-chosen publicity seeking activity and commentary.
Messaging
Instant messaging (IM), chat and video calls are now incredibly popular. The line between a social media app and a chat app is blurred. WhatsApp and Snapchat, for example are very popular. WhatsApp is often used in a work context partly because of its ubiquity, but also because it is mobile-friendly. Some businesses and teams either actively encourage the use of WhatsApp or turn a blind eye to it, but it can have both associated security and safeguarding issues.
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; 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 Vimeo is also popular. Other social media frequently features short video; this is at the centre of TikTok and is also common on Instagram. Many brands use all these channels, and especially YouTube and Instagram, to engage and communicate with customers. Sometimes corporate videos that are embedded into a website are also hosted on YouTube or Vimeo.
Live streaming
Live streaming lets an individual broadcast a live video stream, usually from a camera, webcam or mobile device. Some corporates and other organisations are using this technology to enable people to follow their events. Facebook and YouTube are popular choices for Live streaming, but other solutions and services are available and can be integrated into other social media channels.
Blogging
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) with a worldwide industry of developers, designers, service providers and user forums. Other popular blogging platforms include Medium and publishing via LinkedIn.
Bookmarking and pinboards
Sharing collections of links and bookmarks has been around for a while but has seemingly dropped off in popularity in the last few years. A pin board site like Pinterest is still around and allows bookmarks to be represented by tiles linking to full content.
Podcasts
Podcasting is popular and many brands have dabbled in issuing podcasts. Popular podcast platforms include Acast and Spotify.
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, although the levels of moderation can sometimes feel non-existent. Discussion groups can also be provided through platforms and apps such as Reddit, Discord, Quora, Nextdoor, or themed sites such as Mumsnet.
Ratings sites
Depending on what your organisation does, it may feature on ratings sites. Examples of these include Tripadvisor, Amazon or Trustpilot where customers provide feedback and ratings about products and services they’ve bought. These reviews matter and can make a difference to your brand reputation, and occasionally there will be a need for a rebuttal or even to take something down via the channel. In practice, the latter option is not easy due to the policies of the individual sites. It is worth being aware of paid or AI-generated reviews 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 platforms like Minecraft and Roblox. Product placement within some of these games is now common. Events also take place in online gaming worlds like Fortnite.
Generative AI and digital assistants
More and more interactions are taking place with digital assistants such as Siri but also now with generative AI. Of course, the best-known application is ChatGPT but the space is moving so fast with new services and channels coming online. Managing risks around generative AI is a huge topic, but it seems likely that generative AI may become a way to interact with brands.
The Metaverse
There’s been a lot written about the Metaverse and what it is. Although there’s not really a consensus about its definition, its usually considered to be a set of virtual worlds where people can explore as avatars and interact with others, often incorporating virtual or augmented reality. An early example was Second Life. However, now much of the potential for the Metaverse is theoretical, and investment from companies like Meta (Facebook) has been significantly scaled back. It’s often been said that The Metaverse will be where we can interact with brands, meet colleagues and more, but now progress is very slow, and more focused on special events.
Conclusion
We can’t ignore the world of external social media and the wider digital footprint. 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. Messaging goes out quickly and usually does not go through approval workflows. Everything is also moving very quickly with new channels emerging and features added.
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 external digital channels offer.