Advanced social media management for employment law practicioners

Advanced Social Media Management for Employment Law Practitioners

Dan MichalukJune 23, 2011

Advanced Social Media Management

The Outside Aggravator Scenario

• Departed employee• Persistent defamatory

attacks on former manager

• Publishes home phone number and address

Image Danilo Rizzuti /FreeDigitalPhotos.net

Advanced Social Media Management

The Outside Aggravator Scenario

• Questions• Does you have a duty to engage with the employee?

• If yes, what does discharging the duty require?

• Should you engage? If so, on what terms?

• What tactics short of engagement with the

aggravator are available?

Advanced Social Media Management

The Outside Aggravator Scenario

• HMHSS Tips• Help your client gain the proper perspective

• Ordinarily recommend independent counsel

• Okay personal support and workplace remediation

• Stress risks of engagement to align interests

• Beware of risks of engaging through an intermediary

• Test the downside of a joint-retainer agreement

Advanced Social Media Management

The Wikileaks Scenario

• Departed employee• Judgement proof• Has documents that

contain client PI• Clear threat to publish• “This is done in the

public interest”• “But I want cash”

Advanced Social Media Management

The Wikileaks Scenario

• Questions• Who are your internal stakeholders?

• Can you afford to give notice of proceeding?

• If yes, what does your first letter demand?

• Ultimately, what does “getting it back” mean?

Advanced Social Media Management

The Wikileaks Scenario

• HMHSS Tips• Don’t play armchair psychologist by assessing the

probability of rational behaviour – the risk of losing

control is unknowable

• Be very particular in the initial demand to create a

basis for a trover claim

• Set your client’s expectations – defendants may

loathe giving access to a personal computer

Advanced Social Media Management

Conducting Online Investigations

Advanced Social Media Management

Conducting Online Investigations

• Who?• No – You, external counsel, external counsel’s

admin

• Good - The responsible manager

• Better – Internal security

• Best – Online investigation pros (they exist)

Advanced Social Media Management

Conducting Online Investigations

• When?• Immediately

• Use alert services• It can be gone in 10 minutes

• Periodically• Duration is usually relevant• Don’t rely on page change identification services

Advanced Social Media Management

Conducting Online Investigations

• What?• Contextual information is always relevant

• Links can convey meaning

• Don’t take an overly narrow view

• Beware that different users may see different things

Advanced Social Media Management

Conducting Online Investigations

• How?• Print, PDF, video or whatever, provided…

• …it appears to be authentic• …it reasonably represents the publication• …it captures evidence about time and links• …its price is proportionate to what’s at stake

• You will usually need to create a physical log of

activity

Advanced Social Media Management for Employment Law Practitioners

Dan MichalukJuly 22, 2011