New Media - Old Risks

Here's the second in a series of guest posts by our risk manager bud Leslie White of Croydon Consulting, LLC. Follow her on Twitter at @ltwhite. I'll also take this opportunity to let you know that Leslie has kindly agreed to work with us at SocialFish so that we can offer her guidance if you need help with drafting your own social media policies. We're also writing a white paper with Leslie about the hot topic that is Risk Management and Social Media Policies (yeah, I know, we need a pithier title). We'll let you know more about that soon!



This post is a follow-up to my first guest post (thanks Maddie), The Hidden Risks of Social Media – It’s Not What You Think, which discussed the business risks of social media. Business opportunities are lost while not participating in social media, and harm can arise from participating badly (not engaging the right communities and participants). However, I didn’t discuss the legal liability issues - which are what scares people the most.

Every social media presentation raises the risk question. The responses range from “don’t worry, be happy” to "it's the end of the world as we know it (Danger! Danger! Will Robinson!)". At the recent Blog Potomac, the speakers’ answers were on the lower end of the risk continuum - not surprising from people whose careers are built on social media. While social media risks are not cataclysmic, they exist and can have adverse reputational and financial consequences IF the exposures are not acknowledged and managed well.

According to Elizabeth Engel’s post, Shel Holtz said at Blog Potomac while discussing the barriers to social media, “2-3 years later none of what the lawyers warned us about has happened.” True, we have avoided the apocalypse so far, but we do not yet know all of the legal risks since it takes years for litigation to work its way through the United States court system. For example, Congress passed the Communications Decency Act in 1996 where Section 230 (47 U.S.C.§230) essentially bars claims to hold the service provider of an interactive computer service (your association) liable for tortuous or unlawful information that someone else disseminates through that service. The act seems fairly simple, but thirteen years later it is still being litigated.

Last month, the 9th U.S. Circuit Court of Appeals partially overturned the 2005 dismissal of a case against Yahoo! The appeals court in Cecilia L. Barnes vs. Yahoo! Inc. (May 7, 2009) ruled that the plaintiff’s allegations of a breach of contract by Yahoo! for failing to remove offensive material is not precluded by Section 230. This means the original case goes back to the U.S. District Court for litigation – costly for both parties. Is this court decision disastrous? No – but your association had better review its complaint procedures and train the appropriate personnel to respond appropriately. [More on the case here].

Social media is media, so that is where the risks are – defamation (libel or slander), disparagement, invasion of privacy, copyright or trademark infringement, and plagiarism - to name a few. Associations also have to worry about antitrust allegations and professional liability exposures from any standard setting, certification or accreditation activities. Media exposures have existed since the first spoken or printed word. However, the nature and complexity of these risks have changed with the adoption of social media.

First, associations have lost the illusion of control of what people are saying about your organization. Associations still have the same level of control over “official” information distributed or published through its Web sites, magazines, newsletters, training materials, and body of knowledge materials. But now staff and members are writing blogs, commenting on blogs, making videos and publishing material about your association and industry. People were doing these things before; you just did not know about it. One advantage of social media that is often overlooked is that now you can listen and find these conversations with just a little effort.

A more significant change is the speed with which this information travels through the universe. In the electronic world, information becomes “viral” because it can spread so quickly. Before, conversations involved a few disgruntled members or employees, now via the Internet and telecommunications the word spreads rapidly throughout the universe. Conversations take on a life of their own and your association cannot control them. But you can decide how to respond to the negatives and extol the positives. A strong social media strategy will help you manage these risks.

Social media is too important for associations to avoid or abandon due to fear of litigation, but a healthy respect for the risks is a good thing. I do believe the risks can be catastrophic IF you do not manage the risks proactively. Most exposures can be handled by policies (social media, code of conduct, crisis communication, and others) but all policies need to be supplemented with training. Most people mess up accidently because they did not know any better. Help your staff and members become smart social media participants. A little planning and training goes a long way. Good luck.

[photo credit]
--------------------------------------------------------