Companies are increasingly turning to specialist agencies to manage their social media channels and monitor online conversation about their brands. However, whilst there are clear benefits to be gained from tapping into this specialist knowledge, such benefits need to be balanced against the risks of outsourcing a function that has the ability to go wrong - at break-neck speed.
Who decides when to respond to a defamatory response to a blog post? What should be the response time? Who needs to approve new Twitter streams? Who is monitoring the Facebook page outside of office hours? What is on brand and what is off brand? How tolerant should the company and its executives be to criticism? Have the agency received sufficient legal training? These are just some of the questions that companies will need to consider when outsourcing their social media functions to agencies.
Unfortunately, there is no one size fits all approach to managing social media risk. Whilst most large companies now have social media policies and guidelines for staff and contractors, the detail in terms of acceptance of legal risk, tolerance levels, crisis response procedures, and branding guidelines will vary from company to company. What is right for a consumer brand such as Coca-Cola will be very different to what is right for a major high street bank.
Imagine that having outsourced all your company's social media functions, the company is targeted in the middle of the night by an anonymous blogger who is making various false claims about the Chief Executive and a contract which he helped to secure. The allegation started on a blog but is now causing a stir on Twitter and Facebook discussion groups.
In this type of scenario, there is rarely time to convene meetings and conference calls to determine who has authority to control the response and determine what the response should be. No response or the wrong response can often increase the damage when a sensibly co-ordinated response would have dampened down the flames. The key is therefore to prepare for such scenarios in advance and ensure that the key procedures and policies are communicated to the agency and form part of the outsourcing contract.
In terms of its own legal liability, a company can be held legally liable for any third party material which it knows is being published on the social media channels which it controls. For example, if the company's Facebook page permits "fans" to post comments on the page, the company is able to remove them and so will be potentially liable if it refuses to respond to a complaint. This means that companies need to decide whether to pre-moderate discussions (therefore reducing the risk of objectionable content but sharing in the risk of publication), post-moderate, or reactively moderate (where the company simply reacts to complaints). Many companies are opting for a mixture of pre-moderation and post-moderation, depending on the level of risk created by the conversation and the desire to facilitate a real time conversation.
Once a problem is spotted, either by the company or its agencies, the company then needs to decide how to react. Empowering an agency to respond to social media comments may facilitate quick response but also runs the risk of being premature or off-message. It can therefore be helpful to think in advance of different levels of risk and devise procedures for dealing each level. For example, a company may opt for a traffic light system whereby a green issue can be dealt with by the social media team, amber issues need to be escalated to the legal team, and red issues go straight to senior management. A pre-determined crisis team of specialist can also help to save valuable time.
Finally, it's all very well having beautifully drafted outsourcing agreements with brand policies, key performance indicators, and crisis procedures, but if the correct training isn't put in place, the paper becomes worthless. When was the last time you read your office manual? Companies therefore need to get comfortable that external agencies understand their brand values, know how to react to different scenarios, and have received at least basic legal training so that they know when to escalate issues.
Ashley Hurst is a Partner in the Commercial Litigation team at Olswang LLP
