CHAPTER 7
THE FIRST THING WE DO … LET’S WORK WITH THE LAWYERS
“The first thing we do, let’s kill all the lawyers.” That line, uttered by the otherwise forgettable character of Dick the Butcher in William Shakespeare’s Henry VI, Part 2, has been referenced so often that it’s become a cliché unto itself—a blanket denunciation usually intended to dismiss the entire legal profession as a negative and damaging influence on society.
It’s a common enough sentiment, isn’t it? Even in the corporate and organizational world—or perhaps especially in the corporate and organizational world—meeting with lawyers is usually grounds for grumbling, concern, or at the very least a significant dose of caffeine!
When social media and legal collide, the complaints usually hit the stratosphere. The uncontrolled and perceived “free-for-all” nature of conversations within social networks, along with the fact that any employee can theoretically engage in conversations about the brand or even purport to represent the brand, tends to make lots of legal departments plenty uncomfortable. Lindsay Lebresco remembers about her time at Graco, “The ‘hows’ of social media sometimes made legal nervous. After all, they didn’t use Facebook, they’d never heard of Twitter and Flickr, and this ‘blogging’ thing seemed strange to them too.”1 Graco’s attorneys were hardly unique; we had the same situation at General Motors, and I’m willing to bet that you’ll have it at your organization too. While your legal department is likely aware of social media, it is equally likely to not understand it—and in many cases, your lawyers may see it as a threat.
That said, you have to remember that lawyers are not the only ones reacting to social media in the “same old” fashion. (Marketers who see Facebook as a collection of 750 million eyeballs to whom one-way “messaging” can be sent come to mind.)
In turn, the caution of an organization’s attorneys is usually received by social media types as surefire proof that legal “doesn’t get it” and just wants to get in the way of progress. Legal’s job is to protect the company from risk and exposure, reducing or eliminating it when possible. A smart social media strategy specifically requires you to embrace a lack of control and rewards you for taking some risks. It would seem, at the surface anyway, that legal and social media might be an oil-and-water mix.
Whether a natural mix or a forced one, however, social media and legal departments are increasingly required to not only coexist but also in many cases cooperate. Zena Weist of H&R Block is quite matter-of-fact about this: “Legal needs to be at the table, roped in from the get.”2 Given the importance of getting social media right and the consequences of getting it wrong—and the seemingly opposite directions from which legal and social media might be approaching the same idea—frequent communication between the two groups is critical to an organization’s social media success. The rapid development of social media platforms and networks might have initially overtaken legal’s ability to restrain it, but this is rapidly changing—especially as cases involving social media begin to hit the courts and precedent is established. Just as in matters of traditional marketing or PR, legal and the social media team must increasingly work together.
This isn’t always a marriage easily understood from the outside. Sometimes, the “right” thing in social media is dangerous territory for corporations or large organizations. Anyone who’s ever worked inside a big company understands this reality. Yet acting in ways that protect a company’s self-interest can seem antisocial or antithetical to social media audiences accustomed to hearing the gospel of transparency.
For example, while at GM, I once found myself taken to task by some of the audience of the FastLane blog because during a UAW strike against GM, we weren’t posting the company’s negotiating position or explaining what specific elements of GM’s proposal the UAW was rejecting. To me, it stretched credibility to think that anyone associated with the blog would even be informed on the state of labor talks, much less discuss details in public while negotiations were ongoing and risk upsetting a potential settlement over something said in the post. But to many in the audience, our refusal to discuss details of the negotiations or go beyond an acknowledgment that there was a strike signified an incomplete commitment to transparency and openness and, in their eyes, cost us credibility in the social space. (Thankfully, most of the FastLane community sided with us on that one, but the dissent was common enough to draw out the conversation on the site for a day or two.) For many members of online communities (and more than a few self-proclaimed social media “experts”), transparency can seem a zero-sum game.
This is, I think, one of the major reasons for the disconnect that sometimes occurs between social media audiences and large organizations. The concept of self-protection seems so very “corporate” that audiences can forget that there are legitimate reasons in our litigious society for an organization to take steps to protect itself, even at the expense of open communication. This is also a big reason so many social media consultants and “gurus” aren’t taken as seriously as they think they should be within organizational walls and their messages don’t always resonate with employees of those organizations. It’s not that companies “don’t get it” or don’t want to engage with audiences; it’s that they recognize the limitations and exposures of answering every question that might be of interest to an audience. To those used to corporate structure and legal oversight, constant exhortations to be “authentic” and to “engage” can often seem naive or simplistic. Most social media “gurus” haven’t worked inside a truly big organization, and no matter how smart they are, this inexperience often shows; the same principles that may work well for individuals in social media can be quite impractical in a corporate setting. Corporate lawyers—and those trying to engage in social media from inside those corporations—understand this. Many who have never worked inside a big organization do not. That’s why so often the leading thinkers in social media find the actions of big companies in the social Web to be so frustrating.
That said, the advancement of social networking and technologies has led us to something of a Mexican standoff, with legal departments and social media practitioners warily eyeing one another, perhaps not trusting the other’s intentions but each hoping to survive with its concerns intact. Caught in the middle, perhaps, are the online audiences hoping to interact with the brands they care about.
In any such standoff, the participants have to be willing to drop their guns in order to survive. Even though much about social media makes many lawyers uncomfortable, and even recognizing that the need for protective measures is still present, legal departments are increasingly realizing that the businesses they work for have to be present in the social Web in order to remain relevant to a growing generation of customers.
On the other side, there is at least one compelling reason that brand social media representatives are increasingly involving their legal teams in the brand’s social media activities: because the lawyers are going to find out about them whether they were originally included or not. Perhaps even a couple of years ago it was possible to “just do it” without legal’s catching on because legal wasn’t paying attention to the space yet. But those days are long gone. Even if your organization hasn’t really jumped into social media yet, I can assure you that your attorneys are giving it a close eye and watching for developments in the space. Social media is as big and hot a topic in the organizational law field as it is in marketing and PR circles. And while most attorneys are reasonable enough to work with you when you’ve given them the chance to do so, they’re not going to be so forgiving if they’re being brought in after the fact to “clean up your mess” or try to apply company standards to something after the fact. Bringing lawyers into your effort from the very beginning, even if it means that you can’t do something you really wanted to do, saves lots of cycles of work, saves aggravation, and helps both sides get it right the first time. It also helps you build relationships with your legal team, getting you seen as a willing partner rather than a threat.
So whether social media thought leaders like it or not, big organizations cannot behave quite as openly as they might wish. Whether audiences like it or not, big companies and organizations cannot be as openly communicative—or just accede to every proposal we receive—as they think we should be. Whether social media leads inside big organizations like it or not, they can’t just go off executing social media programs without buy-in from the lawyers. And whether legal likes it or not, social media exists, and your company will increasingly be losing opportunities if it is not involved in it.
So, since we’re all kind of stuck with each other, shouldn’t we figure out some way to make this work?
What Legal Brings to the Implementation Strategy
Let’s start by examining why a legal team can be the brand’s social media lead’s best quiet ally when it comes to implementing organizational social media. Here are a few things that legal can do for you:
1. Ensure understanding of FTC regulation and compliance. In October 2009, the Federal Trade Commission actively inserted itself into social media, issuing guidelines regarding “endorsements” offered by bloggers and issuing organizations direction on what must be divulged to online audiences whenever they are courting bloggers’ opinions. As you might imagine, there are still shades of gray around much of the interaction that takes place in social networks between brands and individuals—and with so many new platforms emerging and technologies developing as quickly as they do, those guidelines are likely to evolve in some way. Unless your social media lead also happens to be a lawyer—a rare find indeed!—no one in your organization is more qualified to fully interpret and explain those guidelines than one of your attorneys. While it’s possible for your social media team to keep up on developments as to how other companies choose to enforce the FTC guidelines, your legal staff are the right people to interpret current or updated guidelines. The fact is, you need these guys to help keep you compliant.
2. Research case law and legal precedent as it develops. With as much talk as there has been over the past few years about social media, it is sometimes difficult to remember that social networks (as a mass phenomenon, anyway) haven’t even been around a decade and that Miley Cyrus has been a cultural phenomenon longer than business use of social media. There hasn’t really been a lot of time for case law or legal precedent to be established on various elements of social media. That doesn’t mean, however, that no precedents have been set or no cases have been tried. Familiarity with the cases that have reached courts can help inform everything from your social media policy to choices you make as to which bloggers to interact with and which campaigns to run. Your legal department will be able to not only follow these cases and precedents but also understand better than the rest of your organization any contexts and histories included in relevant decisions. Having your legal department keeping up on social media case law and precedent as it develops is a critical part of informing your social media efforts.
3. Help develop your social media policy. While multiple parts of the organization should be involved in developing your social media policy (we’ll talk about that in the next chapter), your legal department or attorneys have a significant role to play in its creation. For starters, the legal team can point out proposed parts of the policy that could expose the organization to liability. In an environment where the line between personal and professional continues to blur, do you really want to empower every employee to join any online conversation taking place about your organization? The legal department will also have a sense of what protections it wants to write into the policy, which makes the policy more palatable to legal and more likely to be approved. Working with the social media lead on the policy will also familiarize an attorney with some of the challenges inherent in social media that the social lead faces every day—helping him to understand the needs of the social media team more clearly.
4. Develop rules and guidelines for online contests and promotions. At some point in the development of your programs and initiatives, you’re most likely going to run a contest or offer some sort of incentive for your fans and followers. Perhaps you give away a product or a service that you offer; perhaps it’s a contest in which the winners get to visit one of your facilities (if you’re a theme park, for example); or maybe you run a promotion in which you send a lucky winner to a landmark or vacation destination. Maybe it’s something as simple as giving a five-dollar gift certificate to one of your stores. If you’re a nonprofit, perhaps you give away access to one of your higher-priced and most anticipated fund-raising events of the year.
Whatever it is, there are going to be rules in place—set down by either federal or state law, or by company policy—governing what you can and cannot give away, how you can go about it (random drawing? some sort of qualification?), and how you might distribute the prize. Legal has probably done this kind of thing before with other marketing programs or campaigns. Even if it hasn’t, it’s still probably better qualified than you to identify the requirements you must adhere to in executing your giveaway. Contests and giveaways are huge winners in social media—done well, they drive and incent interaction from the audience with your brand—and you’re going to need legal to steer you through the ins and outs of executing your contests and managing the payoffs to the winners.
How to Win Friends and Influence People—Even If They’re Lawyers
At this point, I’m hoping that you’re agreeing that legal has a significant and important role to play in the development and ongoing existence of your social media program. It can be challenging, for the reasons outlined in the beginning of this chapter. The relationship with your organization’s legal team will likely be the most difficult of the relationships your social media team needs to build and will take more effort than the others to find common ground. But believe it or not, social media teams and lawyers can work together pretty well when they try to. Here are a few tips and tricks that will help you make this relationship work.
1. Look in the mirror—maybe the problem is you. Do you consider working with legal a “necessary evil”? If so, the first step in making things work smoothly between legal and social is for you to shift your mind-set.
Don’t just recognize the importance of the role of a legal team in developing your program. Welcome it. We’ve all been in rooms where it’s clear that the other folks at the table don’t want to be there or are resentful of having to meet with us. It’s not fun, and it usually results in our putting up walls or getting our guard up. Lawyers are people just like anyone else; if you make it clear that you neither want to work with them nor like having to do so, can you blame them for returning the favor?
If you’re looking for an active and healthy partnership with legal, you’ve got to drop the attitude before anything else. The lawyers’ job is to protect the organization; the social media team’s job is to be innovative marketers and drive actual business results. Both of these goals ultimately come down to doing what’s in the organization’s best interests—you’re not on opposing teams! Yes, there’s that element of risk aversion versus occasionally needing to take risks, but those are simply two different approaches toward the same goal.
Usually there is at least one pragmatist within legal who sees things for what they are and reacts accordingly, rather than being reactionary and trying to fight an uncomfortable change. Use your powers of observation to identify that person and set him as your target. (If no such attorneys are employed by your organization, it may call for the intervention of the executive champion with the head of the legal department to ensure the cooperation of the legal team.)
Build up your relationship with that person and develop some familiarity with, if not genuine affection for, each other—to the point where your meetings with him are convivial, not combative. The more you come off as a colleague and friend rather than a member of an opposing team, the better off you’re going to be. This shouldn’t be all that daunting. Building relationships with individuals is at the core of doing social media well. With your legal department, it’s a stronger tactic to try to deal with the same attorney and build that relationship so you earn that person’s trust—even to the point where he may advocate for you to other lawyers.
2. Make the lawyers part of the team. Part of your job on the social team is to help your lawyers get up to levels of social media savvy similar to those that your team members have; doing so will make the rest of your job easier. While your lawyers are most likely aware of social networking, they are almost equally unlikely to have the same level of understanding of its potential or ramifications that your social team has acquired.
You first have to convey to the lawyers that social media is not a fad, it’s not going away, and it’s not something that large brands and organizations can ignore or avoid. Once you’ve made that point clear (and in 2012, this shouldn’t take too much convincing), you should move quickly on to including the legal team in your planning from the outset, not just bring them in after the fact to review an action or program they cannot change.
At GM, our Social Club meetings always included at least one representative from the legal team. While we didn’t always see eye to eye, it was amazing how much smoother my team’s relationship with legal became once we made a stronger effort to inform and educate them.
Doing this will help them recognize that while their preference might be to stay out of social media, it’s not an option—so their job is not to say no or block programs; it’s to understand the goal of a particular program or activity and then help the team find the least risky way to carry it out. At Dell, Richard Binhammer credits the legal team with being constructive in their approach. “Legal didn’t drop all their concerns,” he remembers, “but they came to the table with the approach of ‘how do we make this work?’ rather than ‘how do we stop it?’”3
Here’s the reality: every big brand I know that has been successful in social media so far has had its legal department well represented and included in the discussions about social and digital and the development of the organization’s social media program. I’m not aware of any big brand that’s found success while keeping its lawyers out of the loop and unaware.
3. Create social media experts within legal. From the legal side of the house, it’s important for one attorney to be designated as responsible for interacting with the social media team and developing expertise in the legal aspects of social media. Sometimes this is someone formally assigned by the department based on various skills and interests; other times, it can be someone who emerges informally through watercooler or hallway conversations with the social team. Either way, you need to have someone in legal who is the identified go-to attorney for social media.
Once that attorney has been identified, it’s critical that the social media team work directly with that attorney to help her become an expert in social media. Don’t just tell her what your organization’s team wants to do. Show your social media attorney how to be as smart in the social space as humanly possible. The social media evangelist in particular needs to spend a great deal of time with this attorney, educating, familiarizing, and providing as many educational resources as possible—everything from white papers to webinars to conference opportunities.
H&R Block’s Zena Weist also shares this assessment. She advises, “Get your legal contact engaged in the social media industry and its nuances—through conferences, social media business councils, and private communities. I think it helps for you to be right by your legal lead’s side while they are learning, so you can comanage through—and maybe you’ll learn a bit more about the law around your brand along the way as well!”4
Consider taking your “adopted” legal sister or brother to a conference with you, having her or him attend the local Social Media Club meeting with you, or designating this person to attend a webinar or join a private community (a Facebook group? other private communities?) on the organization’s behalf. Give this partner from legal a reading list of prominent influencers’ blogs or books—nothing too long or overwhelming, but representing just the handful of people whose thinking influences yours or who you think are most “on the ball” when it comes to this space. Send along articles or posts that you find particularly insightful. As new networks and platforms emerge, invite your attorney friend to join those networks or get an account on those platforms so that she can learn along with you. If you’ve built a decent relationship with someone online whose opinion you respect, whose influence you acknowledge, or whose endorsement you covet, introduce your attorney to him. The more your organization’s social media attorney knows about the space, the more she’s going to be able to help you—and the smoother your relationship is going to be. If you’re not making the effort to help her get educated, you can’t really complain that she doesn’t “get” social media, can you?
Ultimately, the idea of working with lawyers should not cause a lump in your throat or a rise in your blood pressure. Did you ever go to a theme park as a kid and spend hours working up the guts to ride the biggest roller coaster, chickening out a couple of times before finally staying on line long enough to anxiously board the ride, convinced that you’ll die of fright before the end of it … only to find out that the ride isn’t nearly as scary as you thought and that in fact having gone on it made your entire day at the theme park better? Working with legal on social media is a little like that. You can’t avoid it and hope to be successful, so you might as well screw up your courage, take a deep breath, put on the seat belt, and enjoy the ride. It might even make your job easier in the long run.