The headline-grabbing news this week regarding Twitter facing possible contempt sanctions is an important reminder that organizations should consider developing a strategy for addressing social media governance. In criminal proceedings against protesters involved in the Occupy Wall Street movement, a New York state court ordered Twitter several weeks ago to turn over various tweets that a protester deleted from his twitter feed relating to the movement’s blocking of the Brooklyn Bridge last year. Twitter has delayed compliance with that order, which has invited the court’s wrath: “I can't put Twitter or the little blue bird in jail, so the only way to punish is monetarily.” The court is now threatening Twitter with a monetary contempt sanction based on “the company’s earnings statements for the past two quarters.”
At first blush, the proceeding involving Twitter may not seem paradigmatic for organizations. While most organizations do not engage in civil disobedience and typically stay clear of potential criminal actions, the conduct of the protester in unilaterally deleting his tweets raises the question of whether organizations have developed an effective policy to retain and properly supervise communications made through social networking sites.
Organizations in various industry verticals need to ensure that certain messages communicated through social media sites are maintained for legal or regulatory purposes. For example, financial services companies must retain communications with investors and other records that relate to their “business as such” – including those made through social networking sites – for at least three years under section 17a-4(b) of the Securities Exchange Act of 1934. Though this provision is fairly straightforward, it has troubled regulated companies for years. Indeed, almost two-thirds of surveyed asset managers reported that “regulatory recordkeeping” remains their greatest challenge with respect to social media.
Supervision is another troubling issue. With the proliferation of smartphones, burgeoning “bring your own device” (BYOD) policies and the demands of a 24-hour workday, supervision cannot be boiled down to a simple protocol of “I’ll review your messages before you hit send.” Yet supervision is necessary, particularly given the consequences for rogue communications including litigation costs, lost revenues, reduced stock price and damage to the company brand.
Though there are no silver bullets to ensure perfection regarding these governance challenges, organizations can follow some best practices to develop an effective social media governance policy. The first is that companies should prepare a global plan for how they will engage in social media marketing. This initial step is particularly important for groups that are just now exploring the use of social media to communicate with third parties. Having a plan in place that maps out a contact and communication strategy, provides for supervision of company representatives and accounts for compliance with regulatory requirements is essential.
The next step involves educating and training employees regarding the company’s social media policy. This should include instructions regarding what content may be posted to social networking sites and the internal process for doing so. Policies that describe the consequences for deviating from the social media plan should also be clearly delineated. Those policies should detail the legal repercussions – civil and criminal – for both the employee and the organization for social media missteps.
Third, organizations can employ technology to ensure compliance with their social media plan. This may include archiving software and other technology that both retains and enables a cost-effective supervisory review of content. Electronic discovery tools that enable legal holds and efficiently retrieve archived social media content are also useful in developing an efficient and cost-effective response to legal and regulatory requests.
By following these steps and other best practices, organizations will likely be on the way to establishing the foundation of an effective social media governance plan.