I gave a speech to about 200 real-estate lawyers from all over B.C. last week on the use of social media in their practices, and some of the legal consequences of its misuse – by them or their clients.
Alerting attendees to the good, the bad and the ugly about Facebook, Twitter, YouTube, and even LinkedIn, and what can go wrong when they don't keep their eyes on the ball, I said social media was a minefield, where even the smallest mistake can result in horrendous damage to a company's online reputation.
The resounding message I heard from the group was this: "I have to be on it because my competitors are on it, and I have to be on it because my clients expect me to be on it. But I hate it."
Here are a three takeaways to help you hate it less, and to understand it more, so that if an online crisis occurs, you're better able to react to it.
First, as I've said before, many of the problems businesses encounter using social media are created by employees and contractors of the company. Do you have provisions within your employment agreements that allow you to fire-for-cause employees who trash your valuable brand or slag your management team or even their co-workers? In 2009, two bored employees from a Domino's Pizza franchise in North Carolina filmed themselves doing some rather disgusting things with cheese and pasta destined for a customer and idiotically posted the video to YouTube. They were fired, of course, convicted of a criminal offence, and the franchisee lost his Domino's franchise.
But nothing compared to the millions of dollars spent on lawyers, crisis managers and marketers brought in to deal with the repercussions of the video, and the additional millions of dollars in lost sales arising from customers who couldn't bring themselves to return to Domino's.
If the franchisee, as part of its employment agreement with its employees, had a social media policy in place that effectively said "use of YouTube, Facebook or other social media platforms that disparage the brand or any employee will result in immediate termination," do you think the employees in question would have videotaped their exploits and posted it for millions of people to see?
Or might they have realized "… I could be fired for this" and stopped?
I like to think you can "fix stupid" if people know there are consequences for improper social-media use, but we'll never know in this case. There was no such policy in place.
So as a New Year's resolution, if you're a small business with employees, you should create policies for social-media use by employees, making it clear what kind of conduct disparages the brand and will result in termination.
In order to make sure your policies are being complied with, you should monitor your brand's name and trademark with either a commercial service or a free service such as Google Alerts to see what people – especially your employees – are saying about you online.
The second takeaway is the ability to turn public-relations problems into successes, without having to hire lawyers. There's a great story I always tell about the Insurance Corporation of British Columbia (ICBC). Said one person on Twitter who made a claim: "Picking up my car later today from Kirmac … finally! Oh, and screw you ICBC."
Shortly after the Tweet was posted, a representative from ICBC tweeted back to him, and said "Hi [name withheld]it seems you're unhappy with us. Anything I can do to help?" A bit shocked that ICBC saw his tweet, the person replied: "ICBC for real? … LOL, it's all good, nothing can really be done now."
In addition to monitoring what customers were saying about ICBC, the corporation turned a consumer gripe into a PR coup. Note that ICBC did not threaten to call in its lawyers to deal with a customer complaint. It was a PR issue, not a legal one, and one must not confuse the two.
Horizon Realty of Chicago did, and it found out the hard way what happens when someone exercises the right to free speech when the company launched a legal action against one of its former tenants for tweeting about a mould problem in an apartment. "Who said sleeping in a mouldy apartment was bad for you? Horizon Realty thinks it's okay," said a disgruntled tenant, upset that the problem wasn't being remedied.
Horizon sued for $50,000, but the public backlash and outrage against it for using the court system to silence and intimidate a legitimate complainant was seen as heavy handed. So using lawyers to deal with your social media problems isn't always the best course of action. It can backfire.
Here's the third takeaway. What if you find, like the owners of Domino's Pizza did, that your brand is being disparaged on YouTube or Facebook? The key is to get the content down so that millions of people aren't seeing it. But how do you do it fast, especially if you're a small company without a huge legal budget and you can't readily afford to get injunctions against those two social media giants in the U.S.?
So if there are pizza boxes in the video that display your trademarks, or the hat worn by the employee doing nasty things with the cheese has copyrighted design elements, this will often give complainants the grounds they need to have Facebook or YouTube actually take down the content between 24 hours and 36 hours after your notice. Registered trademark numbers and an explanation of your complaint are essential – for example, "we own trademark XYZ. The user on URL page ABC is not authorized to use the mark and is infringing."
In any event, these three takeaways, just in time for the holidays, might make your social-media use easier, and allow you to hate it less in 2012.
Special to The Globe and Mail
Tony Wilson practices franchising, licensing and intellectual property law at Boughton Law Corp. in Vancouver, and he is an adjunct professor at Simon Fraser University. His newest book, Manage Your Online Reputation, was recently published. His column appears every other Tuesday on the Report on Small Business website.
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