I've been speaking with a few lawyers and solicitors lately regarding the risks of various social media initiatives and tools.
Today, over lunch, it struck me that lawyers rarely - if ever - speak about the legal benefits of social media, the ways in which the use of social media can provide better outcomes for organisation, in a legal sense, than 'traditional' approaches to listening, communication, consultation and engagement.
So I've made a stab below at identifying some of the legal benefits of social media - please feel free to add your own, or debate my views, in comments.
Identifying potential legal risks early
The first legal benefit is the capability to monitor social media to identify any emerging concerns or issues that could lead to future legal risks for an organisation.
People often speak openly online about their concerns and frustrations. A trend of similar issues can represent an emerging issue with a policy, system or service delivery function that could eventuate as a court case or even a class action.
Social media provides an avenue to identify these trending issues quickly and gives organisations an opportunity to address them before they 'blow up' into the media and legal action.
Audit trails
One of the major benefits of the online channel is the capability to capture and track user behaviour - particularly when a user is registered and signs into a service. This can provide legal benefits through a clear audit trail of an individual's online activities to either verify their story, or prove it untrue.
Where an individual claims to not have viewed particular material, or to not have agreed to certain terms and conditions, a digital trail can provide veracity - for example when signing up to a particular online service, changing contact details or revealing personal information.
I have seen cases in government where an individual has claimed that their online account had been fraudulently modified by another party however, through auditing the digital records, it became possible to prove that it was a relative authorised to use the account who had made the changes, preventing any type of legal action against the agency providing the service.
In a case unrelated to government, recently an iPhone log was used to prove that an individual was being falsely accused of rape and in other cases email records and the logs from websites have been used to prove or disprove an individual's involvement in particular matters.
Where government employs social media tools for activities such as stakeholder or community engagement or consultation and some form of log-in or other way to recognise users (such as through a Facebook or Twitter identity) is in use, it becomes much harder for individuals to falsely claim that they were unaware of certain information or otherwise prove statements that could lead to agency legal liability.
Accessibility
The internet can be a cost-effective way to provide documents and discussions during a consultation process in an accessible manner, avoiding the legal risk of breaching the Disabilities Act.
Rather than holding a consultation by mail, where mailed submissions are scanned in and either not provided online at all, or presented as images - totally inaccessible to screen readers - government can hold online consultations where every submission is typed directly into the consultation site.
These submissions can be reviewed and published online in a manner accessible to all internet users. They can also be printed (maybe in braille) or read out by a machine over a phone line for non-users.
This use of the internet for consultations is a very cost-effective way for organisations to meet their obligations under the Disabilities Act and avoid legal action for providing submissions in a non-accessible manner.
Inclusion (equalising access)
Using the internet in engagement activities, alongside other approaches, allows a much broader range of people to participate - minimising the legal risks of decisions where some audiences claim they were not consulted.
Often those who work nights, have day jobs, young children, are physically less mobile, geographically distant or otherwise have commitments are less able to participate in face-to-face discussion with a government agency or its representatives.
Where these people are affected by the outcomes of a face-to-face engagement process these people could feel excluded and unheard. In some situations, could lead to legal action against certain policies or decisions.
By using the internet alongside other approaches within an engagement process - via a forum, blog, facebook page, or similar means - a government agency can ensure that audiences unable to attend a physical event are heard and their views considered.
This increases their feeling of inclusion and lessens the risk of developing poor policy, reducing the risk of policy failures which could lead to legal action.
So there you are - four legal benefits from using social media that can reduce an organisation's legal risks (versus not using social media).
Can you think of any others?
Nice one Craig, turning the argument on its head.
ReplyDeleteOne of my personal soap boxes is that there is too much content and not enough resources to manage it, leading to disclaimers like this:
‘We make no statements, representations, or warranties about the completeness or accuracy of, and you should not rely on, any information contained in this publication.’
One potential application of social media is to openly highlight incomplete, contradictory or erroneous content that we don’t have the resources to maintain or even remove. Embarrassing, yes. But the legal benefit would be in avoided claims rather than someone making a bad decision based on information that could have been more reliable through community input. A flow on benefit is the business case these comments help build for the content to be properly maintained.
Perhaps another way of looking at legal benefit is the cost of misinformed legislation. What is the cost of not fully considering the impact of a policy on the community who are unlikely to engage except through social media? Speaking professionally, some of the most successful consultation exercises that we have run of late have been significantly enhanced through social media, attracting participants whose views would otherwise have remained unknown.
What about the financial benefits of community-based moderation? Whereby the effort of alerting objectionable material is devolved to the community for our timely attention? Does this help mitigate the alternative legal liability of us pre-moderating, but then accidentally publishing objectionable material?
Lastly, and related more to the broader Gov2.0 agenda than social media is the legal benefits of creative commons licensing. As per our GILF Policy:
“The implementation of GILF will:
reduce liability in the department associated with the public release of government information by putting in place practices to identify and protect personal and other confidential information, intellectual property rights and third party copyright materials contained in the work”.
Thanks for a thought-provoking post.
Great Blog!
ReplyDeleteSocial media strategy in marketing is among the top issues on the Internet nowadays. It has became more popular than ever and is becoming increasingly important.
Great topic, because in my experience the lawyers (generally) are playing catch-up when it comes to social media, web 2.0 capabilities and Government 2.0.
ReplyDeleteToo often, they take a risk-averse approach, suggesting it is safer to do nothing, rather than giving it a crack and engaging with citizens where they are hanging out online.
You asked for some ideas about the legal *benefits* of social media. So here's my $0.02 worth...
1) Tracking down witnesses to a crime: there's that research (http://bit.ly/bmY7DH) showing everyone on Twitter is connected by only four degrees of separation (or nodes). Use Twitter or Facebook to help find that crucial witness who is going to prove someone's innocence.
2) The legal system costs money. Not just in lawyer fees, but in the administration of Justice. Great leaps are being made with efficiencies in the court technology to speed up the system, so why not use social media too? How about sending lawyers daily court lists by Twitter? Explaining legal decisions to victim groups gathered on Facebook? Or even crowdsourcing the transcription of historic hand-written judgements so people with a vision impairment can read them too?
3) How about helping the lawyer themselves? Networking is a key to any profession, and tools like LinkedIn or groups on Yahoo or Ning can give the lawyer access to a far larger professional network, training opportunities and ongoing development (maybe even in things like social media!)
4) My final idea for positive uses of social media is to help the lawyer's bottom line and make more money. If they used social media monitoring tools, they might know the online community is crying out for informed, rational, pragmatic advice when it comes to topics like online collaboration, defamation, and moderation. They could save time chasing ambulances, and identifying trends in the market to go and make a buck from. Unfortunately, fear is a powerful motivator.
Sure, there is a risk with doing government stuff online, but there is an even bigger risk by *not* doing it.
Disclaimer: Views are my own, and don't represent my employer.
Good points Darren!
ReplyDelete