Shoot first, ask questions later. Good idea for Wyatt Earp. Bad idea for your business.
Far too often companies chose not to conduct a social media risk assessment in order to save a few dollars in the budget and instead opt to wait until something terrible happens and then react to it. That’s foolish. Especially when it comes to social media legal risks. What risks? How about:
- Firing someone for what they say on social media without having a social media policy, compliance procedures, or employee training and then learning that their social media activity was protected under federal law.
- Failing to train your marketing department on social media compliance in terms of what they can or cannot say in light of industry regulations and federal advertising laws.
- Opting not to protect your intellectual property and then later find that someone has built a competing brand, filed a trademark application, and is actively marketing on social media.
These aren’t just theoretical risks. They are very real, and very expensive mistakes. And they can do serious damage to your business if you identify and manage these risks in advance. Here’s why:
First, it’s penny-wise and pound-foolish to turn a blind eye to social media risks. To forgo a small investment in marketing compliance with the hope that you won’t experience a social media legal risk is like playing Russian roulette: you might get lucky a time or two, but eventually you’ll lose in a very big way when you start writing checks to expensive defense lawyers.
Everyone is on social media these days, and someone is bound to make a mistake. Investing in a social media risk assessment now will help you identify the social media legal risks your business faces not on in marketing, but human resources, technology, operations, and compliance so that you can manage them within the confines of your budget. That will save you money and a major headache in the long run.
Secondly, once disaster strikes, you’re already behind the eight ball and your attorney’s hands are tied behind their back. By the time you’ve fired some over their Facebook post about the company, and handed your lawyer the former employee’s demand letter, the facts are the facts and there’s nothing that can be done about them. If you didn’t take any proactive measures to prevent or mitigate the risk before hand by implementing a lawful social media policy, compliance procedures, and training employees on responsible social media use, there’s little your attorney can do other than try to negotiate a smaller settlement.
On the other hand, had you asked questions first by way of a social media risk assessment and developed the right policy and compliance program before firing the employee, you’ve empowered your attorney to take a more effective approach:
- First, your attorney would respond to your former employee’s demand letter with a copy of your social media policy setting forth the distinction between lawful and responsible social media use about the company and prohibited speech that could get the company and employee in serious trouble.
- Second, your attorney would attach evidence demonstrating the employee read and understood the policy since you would have determined the appropriate compliance procedures through your risk assessment and implemented them in a manner that works for your corporate structure.
- Third, your attorney would include records evidencing that your company was providing adequate training to all management and employees on proper and acceptable social media use. Your risk assessment would have helped you identify whether you maintained the appropriate training programs ad record keeping so that you could make adjustments before firing someone unlawfully.
- Finally, your attorney could assert how you would be entitled to an award of attorneys fees and other sanctions seek sanctions against the former employee and opposing lawyer if they decide to proceed with a frivolous lawsuit in light of the proactive measures you’ve taken to ensure compliance with the law.
And that is a much more effective use of your attorneys time then negotiating a settlement check. But this would not be possible unless you conducted a social media risk assessment in the first place.
So to all those gunslingers out there: next time you think about firing someone over their Facebook post or forgoing a small investment in protecting intellectual property or implementing responsible compliance procedures in order to shave a few dollars off the budget – consider this:
Take your finger off the trigger. Take a deep breath. And commission a social media risk assessment before you shoot yourself in the foot.