Managing Social Media – Part 1
The Regulatory Issues
The past few years have seen a huge growth in the use of social media, both by individuals and within businesses, and alongside that growth has come the increase in the problems which individuals and businesses face in how to manage social media within the workplace. For those in the legal profession, issues such as confidentiality, regulatory problems, HR and recruitment issues, cyber bullying and discrimination, contempt of court, evidential issues, productivity problems and reputational difficulties are just the tip of the iceberg and firms everywhere are having to face the consequences of this expansion.
In this, the first article in a three part series dealing with the management of social media, we look at the nature of the problem and in particular some of the regulatory implications that arise. In the following two parts we will consider other types of problem including criminal, civil and employment and at some of the steps that firms can take in order to address the issues within their own firms.
Whatever your views about the Charlotte Proudman and Alexander Carter-Silk “incident” – and there seem to be many views stacking up on both sides of the divide – the fact remains that it has highlighted why firms need to make sure that their partners and staff are aware of the dangers of using social media and what is expected of them when doing so.
For those who have been out of the quite considerably sized loop – there have even been reports and commentary in Canada, India and Australia – the incident involved 27 year old barrister Charlotte Proudman who took exception to comments made by Alexander Carter-Silk, a partner at Brown Rudnick, when responding to a “contact request” on LinkedIn. The comments, which contained a reference to Ms Proudman’s photograph in her LinkedIn profile, were felt by Ms Proudman to have been sexist and offensive and represented what she described as “Unacceptable and misogynistic behaviour”.
What makes this matter particularly salutary is the fact that, although the exchange between the two people would have remained confidential had not Ms Proudman published the incident on Twitter, nevertheless she is proposing to refer the matter to the Solicitors Regulation Authority. Presumably Ms Proudman would need to rely mainly on the principles underpinning the SRA Handbook – namely acting with integrity (Principle 2) and behaving in a way that maintains the trust the public places in solicitors and in the provision of legal services (Principle 6) – and upon the duties set out in Chapter 2 of the SRA Code of Conduct “not discriminate unlawfully, or victimise or harass anyone, in the course of your professional dealings”.
One suspects that Mr Carter-Silk did not for a minute imagine that his comments would be made public – although that in itself would not excuse them if they were to be deemed offensive. However, an interesting point arises as to whether, even if he was failing to act with integrity, his comments could be a factor in damaging “the trust the public places in [solicitors] and in the provision of legal services”. Arguably that damage was caused by Ms Proudman’s subsequent publication of the comment to a wider audience.
Whilst most commentaries on the use of social media by law firms tend to focus on what firms should do to promote themselves and their services through the use social media it is equally important that firms also consider the implications of such activity and what they should be doing to guard themselves against the difficulties that can arise.
Social media has a very wide impact, and it is an impact which continues to grow as new ways of interacting, and new devices capable of interacting, are created. Wikipedia defines social media as a “means of interaction among people in which they create, share, and/or exchange information and ideas in virtual communities and networks” whilst the knowledge and information web site “Whatis.com” defines it as “the collective of online communications channels dedicated to community-based input, interaction, content-sharing and collaboration.” Whatever the definition, however, for most people social media comprises sites such as Facebook, Twitter, LinkedIn, Google+, Pinterest, Flickr, Instagram, YouTube and all of the other lesser methods of communication including WhatsApp and Reddit. The list is huge. However, whatever the method, the same simple caveat applies – be careful of what you say.
This particularly applies to professionals and especially lawyers who, because of the unique position in which they find themselves in relation to matters such as confidentiality, public reputation and status as an officer of the court, are far more vulnerable than the man in the street to accusation of inappropriateness, negligence and breach of other rights.
For most firms the key issues of which to be aware include:
- Regulatory issues such as codes of conduct and professional rules and the less precise concepts such as integrity;
- Criminal issues,
- Civil issues such as defamation and copyright issues;
- Reputational issues – both for the firm and for the individual;
- Employment and HR issues – including the use of social media as part of the staff selection process; and
- Procedural/managerial issues – including the steps that firms should be taken to minimise the risks posed by the use of social networking.
Those issues all boil down to being careful and thinking before you post anything and asking yourself the question – what are the implications of this post? As Robert McHale said in his book Navigating Social Media Legal Risks: Safeguarding Your Business “given the viral nature of social media, a single human mishap can damage a business’s reputation, brand equity and goodwill virtually in seconds.” That, in a nutshell, sums up the problem faced by Mr Carter-Silk. Because his comments, sent to an individual, were then promulgated via Twitter his reputation had almost instantly been called into question by just one ill-advised moment. One lapse of judgement.
Looking in a little more detail at some of these dangers we begin, inevitably, with the regulatory dangers.
The SRA Code of Conduct 2011 (“the Code”) contains a number of provisions which are capable of affecting the way in which a firm uses social media. From a regulatory perspective it is vital, therefore, that firms take steps to ensure that everyone associated with the firm does not, either intentionally or inadvertently, fall foul of those provisions.
As we have already mentioned, several of the core principles set out in the SRA Handbook can easily be breached by the use of social media. These include acting with integrity, behaving in a way that maintains the trust the public places in the individual and in the provision of legal services and running a business or carrying out a role in the business in a way that encourages equality of opportunity and respect for diversity. Thus, making libellous or defamatory comments about others (even potentially in a private exchange of views) could affect the integrity of the profession whilst publishing inappropriate pictures or accounts of inappropriate activity could destroy the public’s trust in legal services and making statements of a discriminatory or offensive nature could damage equality and respect for diversity.
A case from 2012 of where integrity proved to be an issue in relation to social media occurred when barrister David Harris was disbarred and fined £2,500 for, amongst other things, using Twitter to call opposing lawyers “slimebags” and to announce that he wanted to “let the whoring and drinking” begin after a case had finished.
Other examples where there could be an integrity issue include posting inappropriate images on Flickr or Facebook, making offensive comments about colleagues or opponents in cases in which the firm is acting, expressing extremist views, making sexual or similar references either generally or about colleagues, and posting pictures of one’s own inappropriate behaviour.
This is an area where there is overlap with other areas such as defamation, discrimination, bullying and reputational issues.
Diversity and Equality
We have already alluded briefly to Chapter 2 (Equality and diversity) of the Code and to the fact that discriminatory or offensive social networking could lead to a breach of the provisions designed to promote equality and diversity in the profession. This may even be the case where it is contained in personal social media exchanges as opposed to those of the firm itself – especially when through a business-focused medium such as LinkedIn.
Thus steps should be put in place to ensure that partners and staff are not posting discriminatory or offensive materials, are not engaging in activities which could be seen as discriminatory or which could dissuade others from using the firms services because they perceive the firm as a result to be discriminatory. Thus, for example, racist or homophobic comments on Twitter, jokes about those with a disability posted on Facebook, even “liking” a discriminatory comment made by someone else, could be deemed to be activity which would be contrary to the requirements of these regulations.
Possibly one of the greatest problems which any law firm will encounter in relation to social media will be that of confidentiality. Chapter 4 of the Code provides that “all members of the firm or in-house practice, including support staff, consultants and locums, owe a duty of confidentiality to … clients”. If, therefore, the use of social networking leads to a breach of those duties then inevitably the firm will have problems.
Thus, for example, a member of the firm Tweeting who they are acting for, inviting a client to link with them on Facebook, commenting on the work of a colleague in relation to a particular client’s matter, conducting an online discussion about work with a colleague without first ensuring that the conversation is secure or responding openly to a comment from a colleague or business associate are all obvious ways in which confidentiality may be breached using social media. However there are less obvious ways as well.
For example, a number of applications now contain the ability to state where a notification is coming from geographically. That in itself could be sufficient for the astute to become aware that you are acting for a particular client or in a particular matter. Alternatively, you might feel the need to comment on a matter online and in doing so reveal information that you could only have been able to comment in that way had you been acting for a particular person.
It is worth bearing in mind also that there is, for the purposes of the Internet and social networking, very little distinction between personal social networking with friends, for example via Facebook, and business social networking with colleagues, for example through LinkedIn. You must, therefore, be circumspect about all of your social networking activities wherever and whenever they are undertaken.
Conflict of Interests
Firms must be alive to the potential for conflicts of interest to arise as a result of social networking.
Whilst less likely to be a problem than breaches of confidentiality, nevertheless a conflict could arise through the injudicious use of social media. Chapter 3 of the Code provides that a solicitor must not act where there is a conflict between the solicitor and the client or between two current clients.
So for example a conflict could arise where a solicitor acting in a matter is, or as a result of a new approach becomes, friends with or a contact of someone involved on the other side of the matter.
Whether or not a conflict exists in reality, the client of the firm may still feel that a conflict has arisen between the solicitor’s duty to them as a client and their duty to the other person as a friend or contact. Even if the solicitor does not disclose information directly relating to the matter in question nevertheless the client may feel compromised or be concerned that there would be an opportunity where apparently innocuous information – such as where the solicitor will be on the following day – could lend support to their opponent’s case and questions may be raised as to the firm’s independence in dealing with the matter.
Similar to the issues in relation to discrimination, and forming part of the potential for harassment, firms need to be alert to the potential for social media to be used as a vehicle for bullying. Social media is often somewhere that individuals feel that they can make comments which would not be tolerated or acceptable if made in other arenas.
One of the difficulties which firms will experience is being aware of when bullying taking place – especially if it is in services to which they do not have access – for example an employee’s Facebook page to which they are not linked.
Cyber bullying is becoming a well-recognised phenomenon and is one which is not confined to children and schools. In 2012, ACAS reported that Cyber bullying at work was becoming as prevalent as non-electronic forms of bullying. A report entitled ‘Punched from the Screen’ found that eight out of ten employees had suffered some form of cyber bullying in the previous six months ranging from the receipt of offensive email or text, or being humiliated, ignored or gossiped about online.
The study claimed that as many as one in seven people had experienced cyber bullying on a weekly basis and that the effect of cyber bullying was worse than non-electronic forms, with some respondents showing greater mental strain and lower job satisfaction.
Other areas of regulation
Finally under regulation are a number of other provisions which could have a bearing on the regulatory aspects of using social networking. Not having in place a policy to deal with social networking or not having a provision in a contingency plan for what happens if the firm’s reputation suffers as a result of social networking, could be perceived as not taking steps to manage risk within the firm.
Failing to take account of Rule 8 of the Code relating to publicity when setting up LinkedIn pages or Twitter accounts for the firm could be deemed to be a breach of the rules.
Finally, communicating through social media with a party to a matter knowing that they have their own legal representation, or using social media to intimidate or abuse others or to criticise the role of their legal representatives could be perceived to be a breach of Chapter 11 of the Code – Relations with third parties.