Social Media in the Workplace Workshop

Social Media in the Workplace 101Paul JacobsonWeb•Tech•Law@pauljacobson and @webtechlaw

The Law

“code is law”

“This regulator is code—the software and hardware that make cyberspace as it is. This code, or architecture, sets the terms on which life in cyberspace is experienced. It determines how easy it is to protect privacy, or how easy it is to censor speech. It determines whether access to information is general or whether information is zoned. It affects who sees what, or what is monitored. In a host of ways that one cannot begin to see unless one begins to understand the nature of this code, the code of cyberspace regulates.”

“Code is law” by Lawrence Lessig (http://harvardmagazine.com/2000/01/code-is-law-html)

<code> Law </code>

Bad legal code

Good legal code

Risk is part of the deal

Too

much

Not doing enough is foolish too

Like most things, you need a balance

The regulatory landscape is pretty complex

The problem isn’t the law ...

Social media in the workplace

Different use cases

Variety of tools and platforms

Social Media Policies

These are not your

employees!

Tremendous potential reach

Your employees are a mixed bunch

What are social media policies?

Social media policy: framework

and structure?

Give your people direction

Where does a social media policy fit in?

Employee’s duties towards an employer

To maintain reasonable efficiency

To further the employer's business interests

To be respectful and obedient

To refrain from misconduct generally

Measurement against clear standards

Are employees performing their duties?

“An employer's rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to

employees in a manner that is easily understood. Some rules may be so well established and known that it is not

necessary to communicate them.”

Code of Good Practice: Dismissal

Requirements for legally enforceable

policies

Did the employee contravene a rule or standard regulating conduct in, or of relevance to, the

workplace ... and ...

• Was the rule a valid or reasonable rule or standard?

• Was the employee was aware, or could reasonably be expected to have been aware, of the rule or standard?

• Has the rule or standard has been consistently applied by the employer?

What a social media policy is not

“Big Stick struggle” by pfly, licensed CC BY-SA 2.0

Case study

The Coca-Cola Company

Suggestions ...

The right tools

How it all works

Part of the policy framework

Implementation

Social Media GovernanceGoing beyond social media policies

Scope

Update frequency

Training and education

• Approval process;

• Continuity planning;

• Crisis planning; and

• Branding and similar guidelines

Copyright

Exclusive rights

Copyright owner or content creator

“Works”

Licenses as a tool

Employees’ and providers’ content

Risky practice

Suggested approach

Read licenses

Learn about exceptions to copyright infringement

Sensitive information

NDA’s come standard

Reciprocal

Good definitions

Clear and realistic scope

Poaching isn’t just about rhinos

Include confidentiality provisions in employment contracts too, perhaps even non-solicitation provisions too.

Reputation

What is reputation?

“Reputation is the opinion (more technically, a social evaluation) of the group of entities toward a person, a

group of people, or an organization on a certain criterion. It is an important factor in many fields, such as

education, business, online communities or social status.*”

*http://en.wikipedia.org/wiki/Reputation

“Reputation can be considered as a component of the identity as defined by others.”

*http://en.wikipedia.org/wiki/Reputation

The Streisand Effect*

*http://en.wikipedia.org/wiki/Streisand_effect

2003

Collection of 12 000 Californian coastal properties

Government sanctioned and commissioned project

She sued for $50 million

Went public and over 420 000 people viewed the photo online

Giggs Effect

• 2011 in the United Kingdom

• Obtained an anonymized privacy injunction (aka a “superinjunction”)

• Prohibited press from mentioning his name in the context of a scandal with a TV personality

• His identity broke on Twitter

• He sued Twitter and Twitter users ...

How did that work out for him?

Not so well ...

*Giggs was also named in Parliament under a form of privilege as the poster boy for problematic superinjunctions

“Perhaps most of all, the action is like pouring petrol on a fire. In response to the filing, thousands

more tweets are now pouring out naming the supposed individual all over again.”

- Paid Content article at the time

Case study - United Breaks Guitars

• Dave Carroll, travelling musician and, subsequently, social media expert;

• Custom $3 500 Taylor guitar smashed;

• United Airlines wouldn’t take responsibility;

• Wrote 3 songs about the experience and published them to YouTube ...

150 000 views in 1 day

3 000 000 views in 10 days

United’s share price dropped 10%*

*http://www.ibtimes.com/articles/20090724/youtube-complain-song-cost-united-airlines-180-million.htm

“If you try to stick up for what you have a legal right to do, and you're somewhat worse off because of it, that's an interesting concept.”

Michael Avery, Toshiba’s attorney, commenting on the 2007 Digg revolt

King 3

Recommended practices for better corporate governance

(Not legally mandated but a pretty good idea)

Mervyn King by Sveriges Informationsförening, CC BY NC 2.0

Chapter 8 - stakeholder relationships

“Any group affected by and affecting the company’s

operations”

“The board should appreciate that stakeholders' perceptions affect a company's reputation”

“The board should delegate to management to proactively deal with stakeholder relationships”

“The board should strive to achieve the appropriate balance between its various stakeholder groupings, in the

best interests of the company”

“Transparent and effective communication with stakeholders is essential for building and maintaining

their trust and confidence”

“The board should ensure that disputes are resolved as effectively,

efficiently and expeditiously as possible”

What do you do?

Develop and implement sound legal frameworks

Listen to what your stakeholders are saying

Reputation management = organisational imperative

“It takes 20 years to build a reputation, and 5 minutes to ruin it. If you think about

that, you will do things differently”

- Warren Buffett

Crisis Management

Issue escalation

Clear roles

Other things to consider

Discovery

Track communications and social media activity for

later reference

Don’t rely on Twitter search

Paul Jacobsonpaul@webtechlaw.com

@webtechlawwebtechlaw.com

Thank You

Questions?