Vote "Yes" on social-media law

It's kind of exciting to witness the birth of a new area of law. (OK, maybe it's only exciting to lawyers. Look, we need the excitement, all right?) When new things arise in society at large, the law has to play catch-up. Thus the civil-rights advances in the 1960s led to discrimination law. The rise of the Internet in the 1990s led to a brand-new area of Interwebs law. Terrorism at the turn of the century led to a body of terrorist-related law (not to mention the whole PATRIOT Act). And so on. Since law is an industry that tends to favor precedent and authority over innovation, it can take us a while to get our act together.

Now it's social media's turn. Over the past five years, it has become clear to even the most Luddite of lawyers that social media is not a fad, that it's here to stay, and that it's rife with issues that will eventually involve lawyers. Which means we're going to need an area of law called social-media law. (Yes, with the hyphen. When you use it as a phrasal adjective before a noun, you hyphenate it. End of lesson.) And which also means we're going to need social-media lawyers.

[Important aside: I am not advocating that we need to hyperlegislate social media, and I am not saying that it's a good thing that we need lawyers in this area. It's just a fact. When humans interact, they get into disputes. You can choose to resolve disputes with lawyers, or you can resolve them with fisticuffs. Your call. Plus it's hard to punch people over the Internet.]

Right now, with a vacuum in the area of social-medial law and a dearth of social-media lawyers, employment lawyers are stepping up to fill the void. Unfortunately, most of them are taking what I call the "No" approach. These are the folks who are drafting blog policies like Harvard Law School's. (See "A two-word corporate blogging policy.") And LinkedIn policies that try to prevent departing employees from keeping their own contacts. (See "Who owns an employee's LinkedIn contacts?") And Twitter policies designed to, well, keep people off Twitter. (See "A twitterable Twitter policy.")

[By the way, Doug Cornelius (@dougcornelius) has accumulated an amazing database of well over 200 social-media policies on his Compliance Building blog. Most of them are exactly what I'm talking about — written in the "No" approach.]

As employment lawyers, they know all about drafting employee policies. But more often than not, they don't know much about social media. Which is a problem. When I see an announcement for a lawyer seminar on social media, I check out the bios of the lawyers presenting to see what their social-media creds are. I look to see what their blogs are called, how many Twitter followers they have, and how active they are on LinkedIn. What I usually find is nada. No blogs, no Twitter. No Klout score. Maybe a perfunctory listing on LinkedIn. In other words, they're not exactly social-media mavens.

[Quick note on Klout: By mentioning this new social-media "scoring" site, I'm not saying that it has any particular importance. It's just one company's way of measuring an individual's traffic on the Interwebs. For a decent introduction to Klout, read this article by The Boston Globe's Beth Teitell, "Ascent of the social-media climbers."]

And if they're not active in social media, they're much less likely to understand what makes social media the human phenomenon that it's become. Which means that they're more likely to tell their corporate clients that they should fear social media, and that they need prohibitive policies to minimize the chance of Very Bad Things happening.

I for one prefer the "Yes" approach. Yes, social media is here to stay. Yes, employees are going to tweet and Facebook and make connections with people on social-media sites. Yes, these employees can act as effective brand ambassadors for their companies, and they should be encouraged to do so. Yes, sometimes Bad Things relating to social media might happen, but we'll deal with them. We don't need draconian policies to prevent people from acting like idiots. People are going to do that from time to time anyway. Why throw out the good along with the bad?

If you have a company who wants restrictive social-media policies to prevent your employees from connecting with other people over social media, absolutely do not call me for help. (Or fax me. Or telex me, or whatever you guys are still using for communications.) You're not going to like what I'm going to tell you anyway.

But if you have a company and you understand that social media is a way for your company and your people to interact with the world, and you want guidance in this new area of social-media law, call me (617.439.4200). No, better yet: reach out to me on Twitter (@jayshep) or LinkedIn. I look forward to connecting with you.

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Update Right after posting this, I noticed an article on Inc. magazine's site, "How to Avoid a Social Media Lawsuit." (Yeah, no hyphen; right off the bat, you know it's suspect.) It pretty much proves my point. All kinds of "No" approach here. Even worse is an older linked article called "How to Write a Social Media Policy." Besides advocating that companies consider eighteen different policies, it also recommends a $149 "social media policies toolkit" so that you can roll your own. Yeah, you should definitely do that. If you're an idiot. Unbelievable. [Hat tip to @kevinokeefe.]

Comments

[Doug Cornelius]

Jay -

But aren't most HR policies written in the "no" approach?

In the end, you probably want to be able fire someone or bring a disciplinary action for a breach. That means you need to draw a line for what is good and what is bad. A sexual harassment policy is not going to tell you what kind of touching is appropriate. It's just going tell you what you can't touch.

I agree that SM policies should have some more "yes" in them if your company wants some of the benefits.

Like you, I find it hard to take SM advice from a lawyer who doesn't have a LinkedIn profile or any type of web 2.0 presence.