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This is a 45 minute facilitated discussion for Canadian employment law practitioners on managing more complex social media issues.
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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