Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50878
expertise to keep as much work as pos- sible in-house. Even considering Molson's efforts there are many continuing to shrug off the significance of social media, seeing sites like Facebook and YouTube as fads that have sucked up untold hours of worker productivity and helped tarnish more than a few reputations via ill-con- sidered online posts. These naysayers would do well to consider how long it took the following technologies to reach 50 million users: radio, 38 years; televi- sion, 13 years; the Internet, four years. Facebook, meanwhile, reached 100 mil- lion users in just nine months. A recent tally pegged the site's global reach at 325 million active users. YouTube, created in 2005, has millions of users uploading an average of 20 hours of video each minute, and the site recently overtook Yahoo as the United States' second- largest online search engine. Canadians appear to be at the lead- ing edge of the social media surge. Forrester Research released a study indicating 57 per cent of about 6,000 surveyed Canadian Internet users said they actively use social networks like Facebook and MySpace, versus 51 per cent of U.S. users, and 38 per cent in the United Kingdom. The survey also showed many of them take an active approach to social media. About 18 per cent create content by writing a blog or uploading videos, while 28 per cent use the tools to act as a critic by post- ing ratings and reviews. Opinionated citizens clearly are no longer reliant on newspaper opinion editorial pages or radio call-in shows to speak out to a large audience. The shift has many experts hailing social media as much more than a pass- ing trend. They say it signals a profound change in the way people communicate, forcing businesses to alter their com- munications and marketing strategies. In-house lawyers, meanwhile, must play a key role in these efforts, helping companies secure their presence in the social media realm while avoiding a minefield of potential legal spats. Even with the statistics some are taking a wait-and-see approach given the legal questions in dealing with social media. Dante Tamburro, legal counsel at ING Direct Canada, says it remains unclear whether traditional advertising rules apply to social media. Based on that, his view is most in-house lawyers are using "general prudence guidelines" nose picking — was posted on YouTube and went viral, instantaneously circulat- ing to millions via Twitter. Experts suggest the company was slow to respond, as it did not utilize social media monitoring at the time. Domino's eventually took to social media forums, issuing responses to bloggers who post- I haven't seen anything in the legal world yet, or in the marketing world yet, that helps lawyers guide and advise clients. We're still in fi rst principles. DANTE TAMBURRO, ING Direct Canada to steer their approach. For example, it has yet to be determined whether an individual commenting on social media forums is considered to be doing so on behalf of his or her employer. "I haven't seen anything in the legal world yet, or in the marketing world yet, that helps lawyers guide and advise clients. We're still in first principles." In the meantime, ING is treating social media like any other form of communication, overseeing its pres- ence through normal processes such as a media monitoring service. The com- pany's human resources department has also communicated to employees a policy on appropriate use of social media. "The key point is it's a devel- oping area and we're trying to track its development and make sure that we advise internally accordingly," says Tamburro. While counsel are taking different approaches to a changed marketing and communications world, they certainly all want to avoid the damage to their companies that some have endured. In April 2009, Domino's Pizza Inc. got a rude awakening to the power of social media when a video of employees tam- pering with food — the clip involved ed the videos. It even uploaded an e-mail from one of the naughty employees stat- ing the tainted food was not served to customers. Domino's later posted its own response on YouTube, hoping to have it picked up by Twitter users and blogs. Like most PR crises beginning on social media, the story was picked up by mainstream media and reached a vastly larger audience. The lesson to be learned here is best captured by a comment from a Domino's spokesperson: "Any two idi- ots with a video camera and a dumb idea can damage the reputation of a 50-year-old brand." The incident also shows why companies must take an aggressive approach to communicating to employees just how they are permit- ted to behave on social media, both at work and home. Fasken Martineau DuMoulin LLP labour and employment law partner Karen Sargeant said, at a recent seminar in Toronto hosted by the law firm, that social media can have a far-reaching impact on the workplace. Some employ- ers, like the Government of Ontario in 2007, have reacted by taking the drastic move of banning the use of Facebook to keep workers on track. While lost INHOUSE FEBRUARY 2010 • 19