Visualise this scenario. First, you are a lawyer (okay, I know this is tough for some). Secondly, social media is a burgeoning legal area where you need to know more. Thirdly, and bravely (given you are risk averse, somewhat conservative and nervous about causing offence), you have signed up to a range of social media platforms. This is Phase 1.
Before too long, you are tweeting, sharing, posting and linking. Your followers are growing. You have started blocking spammers. You have posted at least one thing you (slightly) regret. After a while, you are at the receiving end of tetchy comments on the home front such as: “Do you always have to be on that thing?”.
You are definitely ready for Phase 2!
To that end, last week I found myself a grateful attendee at SWARM, an annual conference in Australia for Online Community Managers. With Samantha McHugh, another IP Whiteboard contributor, we were there to learn answers to burning questions such as: What is an Online Community Manager? Are these guys social media cowboys? How do they manage social media legal risk? Do they know what to look out for?
The experience was humbling, enlightening and there were some aspects which were quite concerning, but not in the way one might expect.
1. What is an Online Community Manager?
Online Community Managers are people at the coal face of online forums (or in old fashioned parlance, “chat sites”). They moderate inappropriate comment, steer an online conversation in a particular direction, or decide to leave it alone. They instigate inspirational discussions. They encourage people to share stories and photos. They host fun competitions. They pick up the pieces of people going through tough times who wish to share their experiences in print. They make challenging decisions to block access to difficult types, and must deal with the consequences. And for a few, several times a year they call the police, who are able to track down an IP address, to check on a person possibly at imminent risk of self harm.
The role of an Online Community Manager is therefore akin to a diplomat, a sheepdog (a gently herding one, of the ‘Babe’ variety), a marketer, and a campaign manager, all rolled up in the one role. Some are social media or digital strategists. Others would like to be more strategically involved but don’t yet have a seat at the big table. All of this is in the context of an organisation’s social media presence on platforms such as Facebook, Twitter, Instagram, LinkedIn, as well as websites and Apps.
Online Community Managers can have past lives as youth workers or computer game creators or actors or advertisers, amongst other things. Their communities have subject matter as broad as the world itself. Some managers look after big brands. Others help people with mental health issues. Others look after families, or people who are sick, or people who need something. Peak bodies look after their members via online forums. Listed companies often have an online community presence. The list just goes on and on.
Passions can therefore vary. Some Online Community Managers just light up when discussing the concept of ‘community’! For them, there is no distinction between the offline and online worlds. Weighing heavily on their minds are the everyday judgment calls needed to create a great forum, with high quality interactions and minimum disruption. Others bring a more technological enthusiasm. They love numbers, buzzwords and technology intended to grow a community and measure its success. Probably all would agree that a blend of emotional intelligence and technological help is needed to make an online community really work. So it is really just where you sit on the continuum.
It is possible to be an expert in the field at the age of 26. After all, the industry is barely a decade old. There is no question these guys are way cooler than lawyers! Some have really awesome tattoos, and an attitude we strive for but will never attain.
2. Social Media legal and ethical issues
The people I met at SWARM are not cowboys. Quite the opposite. Online community managers do not carry lightly the burden of the decisions they make, conscious that their ethical choices can impact the long term behaviour of users (particularly children).
Here are some examples confronting these communities:
- Forums where people share issues of a personal nature (common to the not-for-profit, academic and government sectors) –
- Significant issues concern duty of care, privacy, duty to report to authorities, and methods for handling cyber bullying, particularly where minors are involved.
- Big brand forums where people post plainly misleading claims about products –
- Often these claims are about products they love (attributing to them virtual powers of invincibility)
- Dealing with these issues sensitively can be challenging, not to mention the need to run problematic claims through in-house lawyers first.
- Forums where the content is often defamatory, in circumstances where the protagonist can hide behind a cloak of anonymity.
- One might expect ‘complaint based forums’ to be those posing the greatest risk here, but that’s not so.
- Often, the problem arises when a person is banned from a community due to the intensity or inappropriate nature of their posts. This can lead to problematic behaviour on associated sites.
- Those with an axe to grind can also be technologically savvy, with access to multiple IP addresses which are hard to track.
- Forums where content is frequently sourced from third parties or posted by users, leading to questions about how that content can be legally used.
3. Concerns
In large part, my concerns distil to a single issue. There is a current disconnect between the legal community and those on the social media front line.
In my view, Online Community Managers are at risk of facing undue pressure in their role. This is because they take their responsibilities very seriously. Without adequate support, most will adopt the strictest threshold to maximise the prospect of compliance.
Here are two scenarios illustrating the problem.
Scenario 1 – Moderation
Online Community Managers know they need to moderate their forums actively for user comments likely to mislead or deceive. They have been told of the ASB decisions, the AANA code and the IAB guidelines. They have heard of the ACCC and ASIC. [I am deliberately using acronyms here.] Some are also familiar with ASX Guidance Note 8.
With all these acronyms, and without appropriate legal support, there is a prospect that the ‘law’ can become subsumed by ‘folk law’.
Presently, in my view the following legal support is needed:
- Someone to explain the powers and hierarchy of the bodies comprising these acronyms.
- Practical navigation of these specific and often competing requirements to the circumstances at hand.
- A proper explanation of the Australian Consumer Law, to help managers understand that a prescriptive approach will not work. Far better for them to understand a range of scenarios where the standard of appropriate conduct may not be met.
The upshot is that I received feedback from community managers who work seven days a week and who never clock off. They are interpreting the moderation requirements to “all the time”. One person was so worried about ASX Social Media Guidance Note 8., she was happy to receive alerts to new posts in the middle of the night!
Indeed, the prospect of excessive moderation can lead to unintended legal risks. For instance, by keeping an eye on the activities of members all the time (sometimes in forums for which one is not directly responsible) this might be capable of attracting a legal finding that there is a ‘duty of care’ towards individual participants. Unintended legal consequences could follow from this (eg in the spheres of defamation, negligence, reporting obligations and the like).
Scenario 2 – Terms and Conditions
SWARM confirmed impressions I have already gained this year. That is, most Online Community Managers are far more familiar with the terms and conditions of social media platforms (such as Facebook, Instagram and Twitter), than many members of the in house legal team.
This is because these terms and conditions are interminably long and really boring. And they change all the time. Within Legal, the task of inspecting Ts & Cs for changes will often be undertaken by:
- the secondee (who is often part of the organisation only for a short while);
- the most junior member of the team;
- a Legal Process Outsourcer; or
- no one.
The person with a vested interest will take a genuine interest in this detail. Of course, this is the Online Community Manager (or other social media type), whose KPIs depend on having a great social media presence. These are the people who bear the commercial consequences if, say, Facebook takes down an organisation’s page without notice for non-compliance.
It is worth stepping back and asking whether it is healthy for lawyers not to be heavily involved in this arena. Community managers need their help, particularly insights into the enforceability (or potential lack thereof) of these contractual terms. They also need someone with whom to test the impact of decisions they make.
4. What can we do?
We need to offer those at the coal face with more legal support (and I’m not talking about being the ‘handbrake’ here). It is also time to have unfettered discussions about how best to handle resource allocation, risk minimisation, training and so forth, so that Online Community Managers, and all those who touch social media within an organization, have the support they need.
I think one of the current risks with social media is that people identify themselves either as a member of the cool crowd, or as out of the loop. This has the capacity to hinder how we work through the issues together. And yet what is the downside in saying: I don’t understand and I want to learn? The sooner we nerdy lawyers can develop a common language and vocabulary with social media experts, and talk a LOT with each other, the better.
