I had mentioned a while ago in my very first ATL post that some of my work involves marketing. Well, some of that marketing involves social media. As the main social media lawyer for my business unit, I work with our strategic teams to figure out how to make the best use of social media technologies (e.g., Facebook, Youtube, blogs, smartphone apps, etc.). All within 140 characters at a time.
What’s it like? As lawyerly work goes, it’s fast-paced and feels kind of risky and cutting-edge. Kind of like Mission Impossible. You know, like if the movie had a lawyer character whose job it was to make sure that the Tom Cruise character signed a waiver every time he got a pack of explosive chewing gum. Really, even non-lawyers think this social media lawyering work is cool. Granted, the non-lawyers I’m talking about are sixty-year-old gamers who live at home with their mothers. But still!
There isn’t really a standalone body of “social media law,” so a lawyer who covers this area ends up being a sort of jack of few trades. Instead, law in social media involves work which falls into the following basic categories….
1. Advertising and promotions. When it comes to marketing in social media, as a general matter, lawyers look to apply all of the traditional rules that govern advertising and promotions to the company’s social media advertising. These include state and federal regulations, such as regulations regarding intellectual property, consumer notices, and privacy. For example, when the Federal Trade Commission requires that you can’t use words like “bonus” or “gift” to avoid complying with the restrictions around the word “free,” you can’t do that in social media advertising either. No, not even if you think the stuff you’re giving away as a “bonus” is useless crap.
The complication is that most of these regulations were passed before social media was sprung upon us. I know, you’d think that governmental agencies would have incredibly efficient processes (especially given our experiences with our local DMVs) to come up with new guidance on things like social media. Believe it or not, they’re not so quick. Instead, we’re stuck with rules that were promulgated back when it was considered a smart thing to share your mother’s maiden name with every internet site that asked for it. As a result, you have interesting questions to consider, such as whether you need to add a registered mark to a tweet.
When it comes to marketing, there are also contracts that of course need to be put in place, for example, with developers who create interactive apps for you. For some reason, they want lawyers to take a look at those.
2. Online monitoring and response. Customers are increasingly taking advantage of their ability to reach out and touch someone by complaining on their favorite companies’ Facebook and blog sites, as well as on other numerous online complaint sites. Customer service departments used to be able to take note of unhappy consumers’ grievances and then never call them back again. Now that any nobody out there can have an online presence, many companies take care to monitor and respond to online complaints that could go viral. Lawyers are often brought in to help craft responses to decrease the risk of posting a statement on a public forum.
There may also be positive online mentions of your company that your marketing group may want to promote. The social media lawyer’s role is again to assess any risk in repurposing the positive mention. For example, what permissions would you need to promote someone else’s blog that positively mentions your company’s products? If the company does promote the blog, what’s the likelihood that it will be held liable for any of the content on the blog that turns out to be inaccurate, offensive, etc.?
3. Employment matters. There are numerous employment issues involving social media. For example, there’s the situation where employees don’t think twice about posting their profound thoughts, like how their boss resembles a two-headed troll. And of course, there’s the messy state of affairs that ensues when some people assume that requiring interview candidates to share their Facebook passwords is a good practice. Maybe if we’re talking about your bratty teen because you plan to use her laptop for target practice. But not in the workplace, please.
4. Policies and procedures. Lawyers also help companies develop social media policies. There may be “external” policies which guide user behavior on company social media sites, disclaim the company’s liability for content on the site provided by users, give the company the right to take down content, etc. Even with these policies in place, there are unofficial rules of the social media road to consider. Which posts will your company choose to respond to or delete? Unlike traditional media, there can be backlash if you delete comments — people may just go and complain on other sites. Kind of like the super fun day when I closed comments on my ATL blog and the commentators invaded Kash’s article that followed. You just have to be prepared for things like that to happen.
There are also “internal” policies that lawyers create to guide employees’ use of social media. Will employees be permitted to use social media at work? If not, will blocking websites be effective, or will employees just go on their smartphones during work anyway to get their four-hour Angry Birds fix? What, if anything, will employees be allowed to communicate on social media sites about the company or the company’s clients?
It’s also an area where the volume of work only increases and flexibility is key. You need to apply traditional rules in a non-traditional environment. Social media users don’t always behave as expected, and lawyers should be ready to respond and assess risk at a moment’s notice. The tone is casual — none of this whereastoforethereinafter nonsense. Things are in small bytes because participants have the attention span of a baby bee with ADHD. But it really is pretty cool. My non-lawyer friend, Harvey, says so. He’s a Grandmaster in Starcraft.
Susan Moon is an in-house attorney at a travel and hospitality company. Her opinions are her own and not those of her company. Also, the experiences Susan shares may include others’ experiences (many in-house friends insist on offering ideas for the blog). You can reach her at [email protected] and follow her on Twitter at @SusanMoon.