What to Tell Your Legal Department About the Risks of Social Media

by Mike Moran March 26, 2016
March 26, 2016


This is an old topic–it predates even the term social media. I remember being asked about what to say to lawyers years ago about the “risks of blogging.” But apparently, it’s a topic that has legs, because someone recently asked me this very same question again. She seemed a bit sheepish about asking, so maybe that’s progress, telling me that their legal department is “very conservative.”

The first place to start is with the word risk. Social media actually does not pose a risk. A risk is something that might possibly go wrong. Social media going wrong is a certainty–it’s not a risk. If you do it long enough, eventually you will do something mind-numbingly stupid. It’s just a matter of time. So, let’s get it on the table. As valuable as social media might be, it is not pain-free. So, the point is to try to reduce the pain as much as you can, through training of your team, procedures on what to do, and expert advice when something dicey does happen.

But there are three points that I think you need to make to your legal team about social media:

  • All communication creates exposure. While it’s true that having employees on social media exposes the company to dangers, so does every other kind of communication. Using social media, employees might blab trade secrets, attack competitors, sexually harass someone, just say something embarrassing. But they can do any of those things in a media interview, at a public conference, over email, or on the phone. Just because those dangers exist in all of those venues is no reason to tell employees not to use phones. We train employees as to what behaviors are responsible, and sometimes we conduct additional training for employees allowed to do certain things (such as speak for the company in a media interview). We don’t just close down the channel of communication because someone could do something stupid with it–the problem is doing stupid things, not where they do it. There is no good place to sexually harass someone or blab a trade secret, so there is no reason to single out social.
  • We need to be present where our customers are present. Some lawyers started their careers before customers expected to communicate with companies through email. But we understand that we have to be responsive to
    email now because customers expect it. Likewise, customers more and more expect us to be present in social media, so we need to be there, too. It’s not optional, because communicating with customers the way they want to be communicated with is not optional.
  • Lawyers advise–they don’t decide. It’s the Legal department’s job to be conservative. It’s the Legal department’s job to give advice. It’s not the Legal department’s job to prohibit employee behavior. Only executives can do that. It’s important to understand that the Legal department might warn that they believe the risk is too high, but executives need to know that staying off social media has its own risks and that it is up to them to weigh these risks. Lawyers can’t actually tell company executives what to do–unless the executives let them. Executives must agree to “assume the risk” when lawyers are skittish and they know there is a business need to do something. Only executives can make the risk-reward trade-offs that come with running a company. They can’t run the other way every time a lawyer says something is risky.

I hadn’t gotten this question in a long time before this. Is this still an issue in your company?

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