Legal compliance through Online Reputation Management

Online Reputation Management (commonly referred to as "ORM") solutions are popular with companies that have social media initiatives. These solutions enable companies to monitor the social media landscape for keyword and brand mentions that they often select based on their areas of interest. Two local solutions are BrandsEye and saidWot (Disclosure: saidWot's sister company, Virtuosa, has been a client).

I came across an American solution that has an interesting approach. Hearsay Social appears to combine ORM with US financial services industry compliance solutions to provide a more holistic approach to the social Web. I have no experience with the product but their introductory video explains their approach nicely:

ORM solutions tend to do a good job monitoring the social Web for specified mentions. The emphasis has tended to be the marketing benefits this sort of monitoring brings to the table but there is another, perhaps more important, function these services could (and, to an extent, perhaps already do) perform: legal compliance. Legal compliance requirements vary from industry to industry and are fairly well addressed in conventional contexts. Financial institutions, for example, carefully monitor what their employees say in mainstream press and restrict communications about their financials over certain times of their financial year.

While some of these businesses are taking a greater interest in relevant mentions on the social Web, its not clear how many businesses regard ORM as a compliance tool in addition to a marketing tool. Well, the nature of ORM services does speak to a compliance aspect in that they often conduct some form of reputation scoring but, as I understand these solutions, the purpose of that scoring is more for marketing purposes to facilitate improved engagement and help shape marketing strategy than it is to ensure better compliance with the myriad legislative and regulatory compliance requirements.

The challenge with the social Web is that communications on the social Web exist outside corporate networks and are subject to third party control, variable user privacy settings and are distributed across a range of services (although probably concentrated on a few large ones like Facebook, Twitter, LinkedIn and, to a degree, Quora). Many businesses have implemented systems that help them monitor employee communications using email, instant messaging and perhaps even internal social media implementations but few seem to be tackling the social Web and what employees and customers say on the social Web from a legal compliance perspective.

A compliance-oriented approach to ORM could extend social media policies meaningfully and help companies track and store detailed reports setting out the extent and scope of resulting interactions. Such a solution will need to cater not just for specific legislative and regulatory requirements but also for businesses' own compliance programs (for example, programs to ensure Consumer Protection Act compliance through best practices). Records compiled by these solutions would also need to be detailed enough to fulfill an evidentiary role should interactions prove to be contentious down the line and be stored in an appropriate form and mechanism to meet evidentiary requirements.

ORM is fascinating work and just as social marketing should integrate a legal component, so should ORM. In fact, ORM solutions are potentially ideal compliance solutions too, with appropriate features

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Compliance can be tricky, especially when it comes to social media. Get in touch with us to discuss your business' requirements in more detail and how we can help your business be more legally compliant.

Social media policies are not big sticks

A number of people have spoken to me about their need to implement a social media policy and what I have found is that many of those people are unsure what this "social media policy" really is and what it is intended to achieve. They recognise a need for this document and want to have one developed. Part of my work is to help clients understand what social media policies are generally designed to achieve and how they can be used beneficially within organisations which struggle with the issues increased social media engagement introduce to the mix.

A story about the Commonwealth Bank social media policy broke the other day (I read the story on The Financial Brand site - thanks to Jeanette Verster for the link) which is a case study for how not to frame a social media policy and how not to approach social media usage. It is a shocking story of how one company saw a social media policy as a big stick which it has tried to use to beat its employees into submission. The bank, through the social media policy, even seeks to force employees to not only spy on their friends but assist the bank in action it may take against those friends for offending the bank.

I first wrote about social media policies just over a year ago and I asked whether your company has a social media policy? At the time social media policies were relatively unknown in South Africa but word quickly spread about these documents and how essential they are. Approaches to social media policies have varied. Some organisations have treated them as marketing fluff documents and other companies, like Commonwealth Bank, have treated them like something more akin to IT policies which tend to be more concerned with IT infrastructure abuses and, consequentially, tend to be punitive and intolerant. In Commonwealth Bank's case, its social media policy was accurately described as "draconian" and was offensive to employees' rights.

My take on social media policies (and your mileage will vary depending on who your lawyer is) is that social media policies should be designed to be partly educational, partly regulatory and partly a framework for social media use, within the organisation and/or in employees' personal capacity. The simple fact is that employees often make comments on Twitter or Facebook which range from being ill-advised to malicious and these comments can, and often do, impact negatively on the company's brand. Malicious employees will acted maliciously regardless but I believe that most employees are uninformed about the risks their activities pose to their employers. This is one reason for a social media policy. If it is properly drafted it will educate employees about the risks social media poses generally and how their social media use can prejudice their employer and its brand. The policy can even educate employees about the negative consequences for them personally if they mis-use social media.

That said, a social media policy isn't just about teaching employees about social media. It must serve the employer's marketing, strategic and legal requirements. Social media policies form part of a company's policy framework and while they usually have a very different tone to conventional policies (if drafted effectively), they are still an important tool the employer has to protect its reputation.

Why the emphasis on reputation? Because on the social Web and in social life generally, reputation is largely what many companies rely on to continue trading and adding value. Complaints sites like Get Closure are effective platforms consumers use to correct the power imbalance that exists between brands and consumers and to give themselves a voice which they use to take companies to task for poor service. The same principle applies to social networks like Twitter and Facebook and these social networks are quite possibly far more effective when it comes to spreading word about poor service, poor quality and consumer dissatisfaction generally.

As I have mentioned, a social media policy should educate employees about social media and its risks and, at the same time, establish parameters for what the employer considers to be acceptable use of social media in the context of its brand and the employment relationship. One of the underlying legal principles here is the employee's general obligations to further the employer's business interests, to be respectful and to be obedient. At the same time employers must be careful not to overstep their authority and infringe employees' privacy, association, expressive and other rights.

Employers are also increasingly finding themselves faced with a new communication paradigm. Employees are empowered by new communications technologies like smartphones which enable them to access their Twitter, Facebook and other online social services anywhere and anytime. They will do so on their tea and smoke breaks and if they can't access these services from their work computers, they will do it on their mobile devices, from home or elsewhere. As one attendee at a workshop I spoke at recently for a large creative agency pointed out, employees are also increasingly required to access services like Twitter and Facebook to do their jobs more effectively. It is no longer so easy to draw clear lines between work and personal communications and relationships. Companies must adapt to this new reality and make an effort to collaborate with their employees on how best to further and protect the company's interests while acknowledging, perhaps even fostering, employees' desire to engage with each other, their friends and families using these online services and tools.

I just want to caution against blindly copying other companies' social media policies. Developing and maintaining an effective social media policy (social media policies should be treated as evolving frameworks which must change as needed) is not a simple process of just writing something up and publishing it. Because of its nature, it should be tailored for the company's specific needs. As the Financial Brand article advises:

Just be sure you exercise some common sense. You don’t want to blindly copy the mistakes of other financial institutions. Just because another organization has a social media policy doesn’t mean that policy is any good or right for you.

Social media policies are complex documents designed to strike a balance between a number of competing considerations and tensions. They are not meant to be big sticks but rather opportunities to collaborate with employees to take better advantage of the social Web and its benefits.

Why our obsession with Facebook should matter to you

I just noticed this on Mashable and thought I would share it with you. There are some pretty interesting statistics which are worth bearing in mind when developing an approach to Facebook as a marketing channel as well as developing your approach to your employees' social media use, whether that be through a social media policy or similar policy framework within your business.

What is revealing about this infographic is that Facebook is an increasing part of younger people's lives, as well as us older types. This becomes an important consideration when deciding how much access to the social Web employers will permit. One risk (and I think it is a real risk) is that prospective hires may shy away from employers that are more restrictive than those who permit more moderate access to the social Web. Another consideration is how much news and information people receive through social networks. Often this news and information is what enables people to do their jobs a little more effectively in an increasingly connected world. Cutting off access to those social networks is going to be increasingly analogous to denying employees access to email.

Via: Online Schools

Social Media Governance

One of my friends pointed out this interesting presentation about Social Media governance. These slides highlight some important issues companies should bear in mind as they explore social platforms or launch their own initiatives.

Ragan Social Media Governance

View more presentations from The Fibonacci Design Group, LLC.

I found these slides pretty useful from a legal perspective because they highlight some very real business risks which require some sort of legal strategy to address.

Lessons from the digital communications and PR industry

I was invited to attend a breakfast with Text 100's CEO, Aedhmar Hynes this last Friday, where Hynes first presented to a group of marketers and country heads of multinationals about how she sees social media fitting into digital communications and public relations generally. She also spoke about trends she has been monitoring.

Aedhmar Hynes speaking about digital communications from Paul Jacobson on Vimeo.

Hynes' presentation was focused on trends in the public relations and digital communications space. At the same time I noticed some interesting parallels with my work as a lawyer. Hynes pointed out that while advertising, marketing and PR firms are competing to "own" digital channels, their clients' customers don't think in the same fragmented terms the agencies do (for example, above the line, below the line and so on). Customers want to access services and buy products that appeal to them or are relevant to them and it is the agencies' job to convey information to the customers how to do that using the appropriate channel.

I recounted a story Shel Israel told me at the WTF Conference the other day about how the Columbian government has established a government community which citizens can approach with queries or concerns without necessarily needing to know which government department or sphere is the appropriate one. Instead citizens can apparently submit their requests to the community as a whole and the various departments and bodies that make up that community will route the requests to the appropriate body and ensure that feedback reaches the citizen. I don't know how effective the community is in addressing citizens' concerns and requests but the model sounds a lot like what agencies need to do for their clients and, ultimately, the customers.

I wrote about the parallels I saw in the legal industry last year in my post titled "Speaking plainly about what we do" and I believe this is one of the communications challenges facing lawyers and a frustration clients experience. Clients don't necessarily appreciate the distinctions between different legal categories and are often not equipped to categorise their requirements. Clients also run into difficulty when they attempt to categorise their requirements without some familiarity with the law because they often confuse categories. Clients shouldn't be expected to have a grasp of the legalities when briefing a lawyer. All they should be asked to do is state the facts, their desired outcome and collaborate with their lawyer in developing a solution (or at least determining the preferred solution) and working towards that solution. It seems the communications and PR industry is facing a similar challenge.

Another topic which Hynes mentioned is how companies are adopting policies to address how employees communicate issues concerning their employers, their employers' business or the industries they are involved in. These policies take the form of social media policies for the most part and are becoming increasingly important as platforms like Twitter, Facebook, blogs and an increasing number of similar platforms give individuals a substantial audience and increase companies' exposure to a variety of risks. My concern is that companies frequently don't appreciate the likelihood of these risks manifesting largely because we haven't seen any public examples of employees' unrestricted social media use causing tangible harm to their employers or even competitors. The typical corporate response to these risks is to restrict access to the Web. This isn't enough, though. These companies are not addressing the real issues, they are just shifting the problem off their networks and out of their sphere of influence. Instead what they should be doing is engaging with employees about social media use and how its mis-use could prejudice various stakeholders, including those companies themselves. Social media policies are one way to do this.

Although the Text 100 event was focused on PR and digital communications, I find trends in these industries to be very instructive when it comes to my work as a lawyer in what is increasingly a marketing, communications and branding space.