Smart companies are embracing innovative legal solutions

I noticed that what companies were talking about started to change towards the end of 2010. I noticed that companies were talking to me about how they can best manage the inevitable risks their employees pose as more and more employees embrace and use social media services like Twitter. What I found especially interesting was a growing number of companies are acknowledging that simply cutting off access to social services can be detrimental to their businesses overall for a variety of reasons and that moderate access to social services may even be a requirement for their employees to work better and smarter.

Another trend I noticed and find fascinating is how companies are embracing necessitate fairly innovative solutions for challenges which are starting to emerge as they either adopt social services like Twitter and Facebook in their communications strategies and become more aware of the potential impact their employees may have in their own right. This point may seem like a duplication of my previous one but companies shouldn't just be concerned about implementing adequate internal policy frameworks like social media policies to govern how employees use social media and are made accountable to their employers for that usage. Companies should also take into account the possible implications employees' tweets may have with respect to 3rd parties who follow them. Should an employee's tweets have contractual significance that could bind the company? To what extent should employees clarify their relationship with the company and their ability to represent the company in their LinkedIn profile?

The Wikileaks debate focused a spotlight on radical transparency in the context of organisational and governmental information but what about all those mini-Wikileaks that have arisen and are bound to emerge as time goes on? What impact could an individual armed with sensitive corporate information and a distributed Internet-based publishing network have on the company? "Internet-based publishing network" sounds like a pretty involved and hard to obtain thing but that is pretty much what an average social network on the Web is, especially if it comprises interconnected social networks like Twitter, Facebook and LinkedIn. Individuals' reach is growing as their networks grow and just as social networks can be a powerful force for positive change, they can also be mis-used to disseminate secrets maliciously.

While there is considerable debate about whether something like Wikileaks should be permitted to exist and whether it provides a valuable service to us all, Wikileaks has shown us that the tools to replicate its work are pretty readily available. This doesn't necessarily mean that there will be a million more sources of government information being leaked but it does mean that sensitive information could leaks could, and probably have already, occur on smaller scales. This potential could change how companies interact with their customers, how people perceive their brands. The radical transparency Julian Assange works towards could become a new paradigm brands will have to adapt to.

More and more companies are embracing the social Web in their marketing and general communications activities. At the same time the social Web is continuing to grow, evolve and become more complex and this means that the challenges companies are facing are, themselves, becoming more complex. New services are gaining traction. Consider Quora, a social question and answer service which a remarkable number of Web and technology thought leaders are participating in. It is very sticky, contains a growing body of collective knowledge and its not really surprising that it was created by a former Facebook stalwart. Facebook itself is the single biggest only social network on the planet and well on its way to becoming one of the largest communities humanity has ever known. It is also becoming a fundamental part of its users online identity, if not their core online identity. It could become more valuable and useful than national identity. What does that mean for the social Web and the legal solutions necessary to accommodate these developments?

What is clear is that the social Web is a challenging and exciting space, the legalities that accompany its evolution are becoming increasingly complex and the solutions companies will require must be innovative. More of the same from your lawyers has never really been sufficient and it most certainly won't be this year or the years to come.

Are digital agencies ignoring legalities at their client's expense?

Digital agencies are expanding and innovating at a rapid pace to take advantage of the increasing demand for their services. This morning's news about the Brandsh, Cambrient and Stonewall+ merger to create Native is a pretty clear sign of the local digital agency ecosystem's development and perhaps even its maturation. It also reminds me that, in this push to serve and stimulate local business' demand for digital services, agencies may be neglecting the unpleasant legalities that impact on their campaigns, possibly at their clients' expense.

The social Web is an exciting space to work in and it changes pretty quickly. Campaigns designed to take advantage of its dynamics are often innovative and push the envelope both from a marketing and legal perspective. These campaigns often introduce novel legal issues which both underpin the campaigns themselves and must be sufficiently addressed or risk a wasted investment in the campaign's development, potential litigation for rights infringements and unwanted reputational harm.

So what should digital agencies be doing? My recommendation has always been that digital agencies incorporate a legal component into their campaign conception, planning, development and implementation. Think of it as a matter of prevention very possibly being better than the cure. Introducing a lawyer at an early stage and keeping that lawyer in the loop as the campaign is developed and implemented gives digital agencies the ability to identify and address any legal issues which may interfere with or even scuttle the campaign. Just as the agency's planning process is designed to lay a good foundation for the campaign's execution, incorporating legal advice from inception is intended to lay a sound legal foundation for the campaign. It is common sense from a legal perspective and while this approach is not a guarantee that legal challenges won't arise down the line, it is a way to reduce the likelihood of a sustainable claim arising.

Some agencies are very much aware of the need to cater for legalities and they develop their own frameworks to cater for possible legal issues. Unfortunately this DIY-style process often involves copying terms and conditions from other websites and developing frameworks based on other campaigns. The problem with this is that the "templates" used to develop the agency's legal framework are often poor copies of other templates or similarly drafted by well-meaning people who lack any meaningful legal training or competence. This is a recipe for disaster.

As self serving as this post sounds, the simple fact is that the legalities that impact on these remarkable campaigns are frequently not settled and require insight into both the law and the digital and social space these campaigns operate in to adequately anticipate and cater for possible challenges. DIY approaches or not taking adequate steps to cater for these legalities at all will only expose clients to a degree of risk they didn't anticipate and have negative consequences for the clients, their agencies and perceptions of these campaigns generally.

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Image credit: Richard Lovett, Creative Artists Agency by Robert Scoble, licensed CC BY 2.0