Should Corporate Counsel Use Social Media? Serious Entertainment at the Corporate Counsel Forum Europe

The most enjoyable session at the Legal Week Corporate Counsel Forum Europe at Luton Hoo last week had the title Should Corporate Counsel Use Social Media? – Lessons Learnt and Opportunities Found. It came between the information management session in which I took part and a panel discussion moderated by Julia Chain of Huron Legal called Post-Crisis Era: Threats and Opportunities, whose opening references to double-dip recession set its tone. Social media may have seemed light relief in between these topics. That does not diminish its importance nor the serious impact, for good and bad, which its use may have on a company.

The session was a solo performance by Tim Bratton, in-house counsel at the FT, known to me hitherto only on Twitter as @legalbrat and from thelegalbratblawg. By “solo” I mean that Tim was the only person on the platform (and by “performance” I mean just that, a lively alternative to the stand-at-a-podium approach). Part of the point of his presentation was to show how he uses Twitter as a multi-way communications medium. Tweets sent live from the stage elicited replies from a number of lawyers and others, showing how one can exchange ideas, throw out questions and generally keep in touch with a range of people who have interests in common with you. Linda Cheung of CubeSocial has collected some of the resulting tweets in an article called How and why Lawyers use Twitter.

There was, Tim said, a serious marketing point amongst other motives – the FT is an information company which sells content; Twitter, blogs, FaceBook and other forms of social media are a way of reaching and engaging with new audiences. One of the points made in the earlier session about the role of general counsel was that those in one industry can benefit by sharing ideas with their equivalents in other industries – Richard Susskind predicted some time ago that this horizontal exchange of ideas was a potential threat to external lawyers who had hitherto been a company’s only source of legal information and ideas. Susskind’s point was to encourage external lawyers to take part in the conversation or risk being bypassed. Tim Bratton showed us how it was done.

Tim said that it was not just media companies who were engaging successfully via social media, giving Marks & Spencer and others as examples of companies with large followings. Nor is this just one-way traffic – I have seen or heard of BT Care, NHS Direct and Virgin Atlantic responding to tweets both promptly and publicly. The customers are using modern media, and it seems better to take part (or, at least, to observe) than to ignore what is being said about you.

The audience reaction varied. A few enthusiasts had signed up by the end of the conference; the attitude of others was captured by the delegate who asked about vetting mechanisms to ensure that the company kept control of what was being said in its name. Tim Bratton distinguished between company accounts, which should be treated as part of the marketing strategy, and those of individuals (like himself) who operated within guidelines, imposed or self-imposed depending on status.

There are three broad options here for a company – at the extremes, you can seek to ban the use of social media, enforcing the ban by disciplinary and technical constraints; at the other extreme, you can allow or, indeed, encourage a social media free-for-all. The middle course encourages positive and inventive use of new forms of media whilst setting down guidelines consistent with prudence and with broader company policies about HR and computer use. That middle course seems the most sensible.

I will follow this post with a collection of articles published at about the same time as the Forum, covering between them the uses, the benefits and the risks – not least the ediscovery risks – which social media can bring. Tim Bratton’s audience was the relatively narrow one implied by his session’s title – the lessons and opportunities for corporate counsel. If you strip away the optional “nice to have if you like that kind of thing” implications of marketing, community, sharing, learning, and all the interactive elements implied by the word “social”, you are left with a very dynamic and immediate source of risk. The human components include the unhappy customer, the disaffected employee, the plotter and the idiot, any of whom can communicate instantly and widely, and deliberately or accidentally, information ranging from the mildly embarrassing to the deeply threatening; that information can blacken a company’s name, give away its secrets and affect its share price.

It takes little skill and no expense to engage in any of this harmful behaviour. It is perhaps like the little side door in the castle wall which negates entirely the value of the moat, the drawbridge and the portcullis which guard the main entrance. Somebody with responsibility for risk management ought at least to know what the risks are.

This is a negative and defensive message. Most of the defensive measures which corporate counsel initiate are a pure cost with no ancillary benefit beyond allowing you to sleep better at night. Getting to understand social media brings a potential carrot along with the stick – you can use that understanding for positive purposes and even for pleasurable ones.

When I talk about eDisclosure / eDiscovery, I like to balance the messages of fear, uncertainty and doubt with more positive ideas about winning cases and winning work, together with the personal benefits which may accrue to those who have the relevant skills. Tim Bratton brought in all these elements in a session which was as entertaining as it was informative. What are you waiting for?

I am moderating a panel session called Social Media & eDiscovery: Huge Potential, No Precedent – Where Are We Headed? at IQPC’s Information Retention & eDiscovery Exchange in Munich from 14-16 November.

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