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Social media use at work – everybody’s doing it (but should they?)

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It comes as no surprise to see that new polls show that folks are using social media sites at work at an ever increasing rate.  In fact, if any poll had shown otherwise I would have suspected it was wrong. 

But is this large-scale use of social media a good thing, or a bad thing, when done by employees at work, while on the clock.  As it is with most things in law, the answer is: it depends.

Are you the type of business where having your employees build social networks is a critical part of their job?  For example, trying to keep sales and marketing staff off of social media, for many businesses, would be tantamount to corporate suicide.  Connecting with people is what sales and marketing folks are supposedto do, and allowing them to do their job through electronic means is, in many cases, necessary.  That said, does every member of the administrative staff need access to Facebook?  Perhaps (depending on the type of business) but in many other cases perhaps not. 

The better question, however, is this: What are you trying to accomplishby permitting access?  Does the employee at issue do their job better if they are connected?  Is the employee happier because of it?  Will it distract them from their job, or help them do their job more effectively?  Are you working in a regulated industry (like the securities industry) where social media use could present a whole bushel of additional problems?  Or are you an entrepreneurial start-up where you need everyone on staff to be reaching out at all times to everyone they know?

These are the types of questions you should ask yourself regularly, becuase while there is no right answer applicable to every business, the wrong answer defnitively involves never asking the question in the first place.

Are social media lawsuits inevitable?

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Following up on yesterday’s post about German regulators growing impatience with Facebook’s privacy policies, we now have news of a Canadian class action.  According to the the most recent report:

The suit contends that Facebook subjected [the Plaintiff] to a breach of privacy and the misappropriation of his personal information. It also alleges that Facebook intentionally used his information for commercial purposes, calling the company’s actions “malicious, deliberate, and oppressive.”

Actually, Malicious, Deliberate and Oppressive LLP would make an excellent name for a law firm, perhaps as co-counsel with Poor, Nasty, Brutish and Short LLP.  You see — I can never stop thinking about branding!

In any event, beyond the merits of this case (and Facebook, as might be expected, believes the case to be frivolous), these recent developments raise an interesting question: are lawsuits relating to social media privacy practices simply inevitable?

The answer, unfortunately, is almost certainly yes.  Consumer protection statutes in many states, and in a variety of other nations, are intentionally composed to capture a broad range of malevolent behavior.  As we all know, one of the real values in social media is in capturing information about the public.  The capture and use of data can often be spun (whether legitimately or not) as somehow predatory or deceptive.  Thus, the inevitability of lawsuits. 

That does not mean, however, that social media should be off the table.  In fact, the correct response is almost exactly in opposition to that view.  There is no way to completely eliminate risk in any activity that does not involve sitting alone in a padded room.  Social media engagement involves a significant potential opportunity, despite the risks.  Rather than run away, we should recognize that the risks are not large and, more importantly, are manageable.  When we systematically approach the ways in which we use and interact with social media, it becomes quite easy to identify the risks we are taking.  By modifying our behavior or pricing in the risk to the cost of our effort, we can easily manage whatever additional risks we have tkane upon ourselves. 

Moreover, as part of the equation, we must also consider the risk we take by doing nothing — for not engaging with social media may present an even larger risk than anything we might do on our Facebook page.

Innovation everywhere (and not a drop to drink)

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One of the remarkable things about travel today (and I am, in fact, traveling today!) is the fact that you are rarely ever “out of the office.”  Except for times when you are physically on an aircraft (and even that is changing quickly) you can almost always be reached.  This has implications for your mental state social media far beyond the fact that your Farmville farm is now always well tended.

When your employees, your customers and, well, you are all connected and communicating through social media all the time it blurs the sense of when you are actually at “work,” and when you are actually at “home.”  This can lead to serious errors (of the “worlds collide” variety) but can also lead to significant opportunities.  You see, to use a metaphor, information is like heat.


Yes, we’re all about the scientific analogies here at Legally Social! If you add information (heat) to a system, it tends to become more disordered (ergo, your stressed mental state when too much is going on in your life).  In other words, just as when you add heat to water, your brain moves towards the boiling point.  But, the more information that is added to the system, the more opportunities that arise for new ideas (a phase change — or innovation) to emerge. 

I know a few of my readers out there are gnashing their teeth at the ham-handed science, but the metaphor is an important one.  By surrounding yourself with staggering amounts of information all the time (and we are all doing this) the opportunity for innovation is increased by orders of magnitude.  There is, in other words, intellectual property waiting to be picked like ripe fruit from a tree.

But this raises an important question: how do you capture innovation that is floating freely around you in a social media environment?  Ah, this is where it becomes a tricky legal issue, indeed.

Companies need to reconfigure their notion of where “invention” actually happens.  Once upon a time,  most corporate R & D took place in a lab.  It was intentional.  Now, with the all-consuming nature of our information overload culture, the potential for invention is everywhere.  This means that businesses need to train their managers (and all of their employees) to become sensitized to innovation, and report it.  Companies can’t exploit their ideas if they don’t know they exist — and innovation today can represent a significant premium to any business.

So while you’re surrounding yourself with information, and discussing it with others, remember that everyone else you know is doing the same thing.  Good ideas come out of community, but good ideas are useless if they are quickly forgotten.

Social Media and Hierarchy

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Reihan Salam is an unorthodox, conservative commentator — and one of the more media savvy of the younger political thinkers (his equivalent on the left would probably be Matthew Yglesias). 

Salam began an interesting discussion on his Twitter feed yesterday, noting that traditional high school hierarchies have been undermined by the growth of social media.  While that question is interesting (and the subject of a fascinating new article in the Los Angeles Times — it turns out that “[f]ar from hampering adolescents’ social skills or putting them in harm’s way, as many parents have feared, electronics appear to be the path by which children today develop emotional bonds, their own identities, and an ability to communicate and work with others”) a more interesting question from the perspective of this blog is whether other kinds of hierarchies have been changed, and whether that has an impact on the way in which law interacts with social media.

The short answer to what seems like a hopelessly philosophical question?  The undermining of hierarchical relationships is devastating to our understanding of how the law should intersect with online behavior. 

The law is all about agency — it is about responsibility for your actions.  Tort law is about cause.  Contract law is about consent.  Criminal law is about actions and intents.  Even corporate law is, in the end, about drawing lines of control and placing responsibility.  The law assumes that everyone is eating a steak — a piece of meat is put on a grill, cooked, and then served.  You are tasting the steak, and little else — the steak itself and how it is cooked is the only variable to look at.  If you get a bad steak, blame the meat, or blame the cook.  There are no other options.

Social media is more like a long-simmering stew, or one of those 22 ingredient moles that Rick Bayless is always talking about.  If your mole has a problem, why did it fail?  There are an almost endless number of reasons why it didn’t work.  Finding blame for a bad mole is a great deal more difficult than finding blame for a bad steak.  Sure, you can still blame the chef — but what exactly went wrong?

The law will not be changing its approach any time soon — the law is like a big 19th century ship that takes time to steer.  Because of that, you should assume that your bad mole will be blamed on you — regardless of whether it was really a single, ill-tasting tomatillo added in by one of your sous  chefs.  This means you need more planning, and more guidelines.  There are now more things that can go wrong, and more people who can make mistakes.  This means that you need to consider those potential pitfalls ahead of time. 

The hierarchies of yore may no longer control how your business runs.  But the law still sees one — and may very well consider you to be the responsible party at the top.  So think not just of how you’re doing what you’re doing, but how the process will be perceived from the outside.  Or, even more importantly, how the process will be perceived if something goes wrong.

Even yet more personalization – with geotagging!

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Apparently the personalization discussed below was not nearly comprehensive enough for Mark Zuckerberg and the crew at Facebook.  Taking a cue from Twitter, Facebook has decided to add a Foursquare-like location feature to its popular social media platform.  Now, everyone can know that you are eating lunch at Hot Doug’s, or drinking a vodka flight with your paramour at some hip Russian tea house.

Geotagging, the newest hot thing in social media, has actually been around for several years.  Foursquare, Loopt, MyTown and even Twitter itself have functionality permitting you to automatically inform people of your location — and certain Facebook apps have been able to perform a similar function — letting everyone you know in on the secret of where you happen to be standing at this very moment.

You know, critical stuff like that.

Of course, it is easy to be cynical about geotagging, but it is undeniably entertaining once you get into it.  Foursquare itself is actually a kind of social media reality sport, encouraging “players” to accomplish things within the “game.”

Here at Legally Social, of course, our job is to spoil all of this fun with sneaky and irritating legal concerns.  Or, as my son would say, law stuff.  So what type of law stuff applies to geotagging?  Is this something essentially harmless, or are there more nefarious things going on here.

As usual in the world of social media, the answer is both.  Geotagging can be enormously effective as a data mining tool, allowing marketers to provide more directed and customized service to people who want it.  You get ads that you want, and you waste less time looking for things that you desire.  Sounds great! Of course, in producing all of this data (and make no mistake it is a lotof data) suddenly information about you is sitting in the cloud.  The cloud knows that you like to eat X and  drink Y.  The cloud know that you go to A, B and C stores.  Perhaps this information can be matched up with other information that someone has on you and that cross-referenced data can be used to further pinpoint your behavior and commercial habits.  Does you privacy policy address any of this?  When you sign up for a geotagging function are you reading the fine print, and determining what it really means for you?

Probably not.  But you should be! Companies need to look at their privacy policies far more often than they did in the past, as the pace of change increases and your marketing folks think of more ways to use social media to your advantage.  And consumers should take advantage of these policies to better understand what they’re getting into, as informed customers are more likely to set rational expectations based on what is really happening to them — and are thus less likely to get mad at you.  And in the end, that’s what much of this is about: proactively addressing dissonance before it becomes litigation or regulatory action.

Social Media: Apparently, no one has a policy.


At the social media law conference we held yesterday in cooperation with the Association of Corporate Counsel, nearly 200 in-house counsel gathered to hear the latest and greatest news about social media and the law.  It was a great program, and the session I moderated (on IP and social media) was particularly lively.  Kudos to everyone!

More troubling, however, was a single question asked by one of my partners: how many of your companies have social media policies?  Out of the nearly 200 folks in the audience perhaps 10 raised their hands. 

On the one hand (so to speak!), this is not a shocking result.  In-house counsel have so many things on their plate that getting ahead of the curve is often difficult, if not impossible.  There are also, to be fair, certain types of companies that legitimately don’t need or don’t want official policies dealing with social media usage.  However, for the vast majority of American businesses, not having a social media policy is akin to putting a “kick-me” sign on your backside. 

A social media policy (or, rather, a good social media policy) educates your employees about their boundaries.  It helps establish guidelines for the use of your brands.  It can control the use of content (user-generated and otherwise) and can give you comfort that there are rules in place to deal with an increasingly complex communication channel.  Without a social media policy, companies miss out on the opportunity to shape the behavior of the organization, and to communicate what is important to them in this brave new world. 

Perhaps one of the intimidating elements of the process is the fact that social media policies are not “one size fits all” products.  You can’t buy a template for a social media policy that will be worth, in the old saying, a bucket of warm spit.  You actually have to engage in some real thought about what it is your company does, and how it does it, in order to put something useful together.  You need to think about where you are now, what you want to do, and what you realistically expect to do — and then take into account the fact that as-yet-not-invented tools will likely be important six months from now.  But none of that should stop you.

Putting together a social media policy is hard.  But not having a social media policy is much, much harder.

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