Evolution of Legal PR in 2016: Three Expert Opinions

Legal public relations has undergone a transformation as significant as any other aspect of law firm marketing has experienced over the past six to eight years. The economic downturn had an effect on law firm budgets, so the industry challenged itself to come up with more creative, yet less expensive, strategies that would still allow a firm’s thought leadership to reach critical audiences. Recognizing the benefits of public relations, including its wide reach and cost-effectiveness, law firms began leveraging the power of publicity even more, helping to fuel an evolution that has been dramatic and is still accelerating.

So as 2015 wraps up, what can we expect next year? I turned to three in-house legal PR professionals to ask for their opinions, examples and advice about what’s next for legal media relations. Meet Johanna Burkett, Public Relations Manager at Baker Donelson; Michelle McCormick, Director, Communication, at Bracewell & Giuliani LLP; and Michele Apostolos, Director, Marketing and Communications, JAMS.

Legal PR Is Evolving

Johanna Burkett Baker Donelson

When asked about the most important trend or shift in legal PR that has changed their PR strategy in 2015 or will do so in 2016, Ms. McCormick said, “The channels we use to tell our story are changing. A straightforward media campaign is no longer enough. We have to think about blogs, video, social media and how to get content into the hands of our clients and targets. We are all facing information overload. You need a tight, timely message to cut through the noise.”

Ms. Apostolos saw value in a strategy this past year that is reaping benefits, with plans to continue. “We increased our native advertising during 2015 and will likely double that activity next year,” she said. “Our PR and content manager, Tori Walsh, is responsible for the procurement of articles and managing the editorial calendars for these opportunities. Native is a key hybrid PR-advertising tool, which can be tracked and allows flexibility for content adjustments along the way.”

“PR is shifting toward playing a greater role in business development,” said Ms. Burkett. “By working with key practice areas to understand their business development goals, PR professionals can design a strategy that aligns with and can support business development initiatives. Making PR an integral part of the business development efforts adds to the value that PR brings.”

Marketing Will Continue to Integrate

All three recognize the importance of the convergence of media relations, content marketing and digital PR. Over the past year alone, more and more marketers are finding ways to align all marketing tactics via an integrated approach commonly referred to as “integrated marketing.”

“All these elements are essential to a comprehensive and integrated approach to PR,” said Ms. Burkett. “Oftentimes, when people think of PR, they likely think solely of the media relations aspect of PR. But PR is public relations, not just media relations, so an effective PR strategy should also encompass those channels outside traditional media that have the potential to shape public perception. And content marketing and digital PR typically allow for greater control of the message and offer a more direct channel to the audience. PR packs a bigger punch with a combination of earned, owned and shared media.”

Michelle McCormick Bracewell Giuliani

“This convergence is a positive trend because it allows us to be strategic and to coordinate our targeted messages across many mediums,” said Ms. Apostolos. “One unexpected result is that it has actually facilitated a closer working relationship among our communications team because people from different functions are collaborating more.”

Ms. McCormick said, “We don’t really have the luxury of focusing in one area anymore. We need to work across a variety of distribution channels. Media relations is still important, but it is not enough to get your message out. You need to be thinking broader. How can you use social media? How can you use video? We have been working hard over the last two years to incorporate more video into our efforts. It can be a bit of a challenge; you need to build champions.”

“We have been doing a lot of work on attorney bio videos and office videos, trying to show the personalities of our attorneys and each office, and they are all different,” Ms. McCormick continued. “Recently, we got a great piece of client feedback on our Dubai office video. The attorneys there were really pleased that people were responding favorably and that the video was helping them showcase more than just the one touch some clients might have with their lead attorney.”

JAMS also recognizes how effective video can be to the PR effort, and this year used video for its promotion of Mediation Week, an American Bar Association effort. “We used ‘#mediationworks’ in conjunction with a video campaign in which our mediators spoke about cases they resolved and the benefits of mediation,” said Ms. Apostolos. “Through this video initiative, we gained new Twitter followers and our LinkedIn analytics spiked during the month of October when the videos were shared.”

The Importance of Professional Development

Given the fast-paced changes occurring in the public relations field, continuing education is more important than ever. The three PR pros I spoke with had resources in common that prove to be helpful in their personal professional development and in helping to keep them on top of their game.

“The Public Relations Society of America (PRSA) is a tremendous resource that offers numerous ways to stay informed,” said Ms. Burkett. “Their regular ‘Issues & Trends’ emails feature the latest articles from a variety of publications, highlighting topics related not only to PR and digital media, but also leadership and general business trends. PRSA’s on-demand webinars cover a range of topics, and local chapters offer the opportunity to network, discuss challenges and share best practices with other PR professionals. And, of course, the Legal Marketing Association (LMA) is another invaluable resource. To be able to connect directly with other PR professionals who work in the legal field is very beneficial in helping to stay on top of issues that are specific to the legal profession.”

Michele Apostolos JAMS

“Ragan.com has a lot of good tips and articles, and I’ve greatly benefitted from Ragan’s trainings in the past,” added Ms. Apostolos.

Ms. McCormick echoed similar resources. “I am a member of PRSA and LMA, and I am ever hopeful that we can get our local LFMP [Law Firm Media Professionals] chapter back up and running. I follow a lot of great peers I have met through these groups online and learn a tremendous amount from what they post and share on social media. I also enjoy Ragan’s PR Daily.”

The Next Generation of Legal PR Pros

Young legal PR professionals continue to be attracted to the field, and the three experts offered advice about PR skills for the next generation.

“Strong writing and effective storytelling are essential and timeless skills. While the formats may change over time, these foundational skills are absolutely necessary to differentiate yourself,” said Ms. Apostolos.

Ms. Burkett also advocates for the importance of strong communication skills. “From being able to write – whether it’s a press release or an email – to being able to talk to and maintain strong relationships with your clients and media contacts, being a good communicator is vital. And these days, it is a skill that is scarcer than people may think.”

Ms. Burkett continued, “Another important skill is storytelling – not just knowing how to tell a good story, but knowing when there is a good story to tell, and sometimes knowing when there isn’t a story to tell. Being able to recognize the difference greatly improves your value to your clients and to the media you work with.”

Ms. McCormick recommends developing your psychic tendencies. “Try to think of the questions your attorneys are going to ask before they do, and give them the answers. And then think about the questions they should ask you – and maybe don’t – and answer those, too. Don’t be afraid to ask questions. You are the subject-area experts in communications, but you are not in your attorneys’ areas of practice. If you don’t know what they are talking about, ask. You look much more foolish pretending you know or assuming.”

Ms. Burkett imparted final words of wisdom about the state of legal PR. “It would be easy to just say that the only constant is change,” she said. “While change is inevitable and being able to adapt to change will always be important, there is another constant in PR: relationships. Building and maintaining relationships with media and creating relationships between your clients, the media and the public are the foundation of what we do. Strong relationships will always be an important part of PR, regardless of whatever changes the profession may experience.”

Article By Vivian Hood of Jaffe

© Copyright 2008-2015, Jaffe Associates

How Lawyers Can Leverage LinkedIn to Build Their Practice, Part 2 of 2

The Rainmaker Institute mini logo (1)


Continuing from our previous post, here are 5 more tips for leveraging LinkedIn to build your client and referral base:

5Include All Your Web Links. You can add up to three links to your firm’s websites. There are default settings, but these are also customizable. So instead of www.TheRainmakerInstitute.com, I customized it to say “law firm marketing experts”, but it still links to my website. This is another place where you should use your keywords like: “Scottsdale bankruptcy attorney” or “Chicago divorce lawyer” and link it to your website, blog or even your Facebook fan page.

6. Make Your Profile Public. Remember, it’s called “social media” for a reason—you need to be social. Be sure to make your LinkedIn profile “public”, which means all the information you put in it is available to search engines to make it easier for people to find and connect with you.

7. Don’t Use The Same Copy For Your Summary As Your Bio. The summary is not a place to talk about all the things you have done in your life. This is the place to position yourself as the go-to attorney in your particular practice area and geographical region.

8. Use LinkedIn Groups. LinkedIn Groups can be a very effective way to increase your visibility among niche audiences, like your target market. It takes a little while to get used to how this works. I recommend you start by ‘listening’ before diving in. There are some places you should start with, such as alumni groups and groups in the industry segments you follow. We run several LinkedIn groups you can join for free including: Phoenix Arizona Attorneys, Personal Injury Attorney Network and the Rainmaker Law Firm Marketing Group. Simply log into your LinkedIn account and search under groups. Once you understand how groups work, start your own focusing on your target market or potential referral sources (like CPAs, financial advisors or business brokers).

9Add LinkedIn To Your Email Signature. Most attorneys put their contact information in their email signature; add a link to your LinkedIn account. Here’s mine: http://Rainmaker.MyLinkInvitation.com. I would welcome the opportunity to connect with you on LinkedIn.

LinkedIn Logo

As soon as you start networking with LinkedIn, you increase your chances of reaching new clients and referral partners. However, be prepared, and be willing to work at it. This is not something you can “set and forget”.

If you’re not into social media or can’t make the commitment to put in the time and effort to network in several sites at the same time, this is the ONE social media site you should focus on. You may not see it at first, but with the combined use of the strategies and tips I have shared here, you will start to see your online network mature over time, leading to more prospects and referral partner relationships.

To read Part One – Click Here

Article by:

Stephen Fairley


The Rainmaker Institute

“The Power of Professionalism:” An Attorney’s Take on the Nexus Between Professionalism and Personal Success

The National Law Review a top volume legal news website

Professionalism serves as a constant in the legal profession but its potential benefits remain untapped. Among practicing attorneys, professionalism vacillates in between a theoretical concept and the more mundane aspect of working in a law firm environment. We study the topic in law school, abide by the Model Rules of Professional Conduct in our careers, are warned by our bosses of the consequences of acting in a manner not deemed professional. But can embracing professionalism elevate us in our own careers? Can professionalism uplift the legal community as a whole? Can professionalism serve as an omnipotent guidepost to attorneys across the spectrum?

Gregory Gallopoulos, Senior Vice President, General Counsel and Corporate Secretary for General Dynamics and selected keynote speaker for the upcoming 13th Annual SuperConference, seems to thinks so. In his speech entitled “The Power of Professionalism” that addresses in-house attorneys across the country at the SuperConference, Mr. Gallopoulos plans to explore the nexus between professionalism and personal success. In doing so, he simultaneously reframes professionalism from an abstract notion to a philosophy encompassing the hallmarks of law, as well as brings a sense of vigor back to the legal field.

In an interview with me regarding his speech, Mr. Gallopoulos explicated on professionalism, its upsides and consequences and how he envisions the legal industry. He identified key attributes of a professional in the legal industry as one who renders objective and independent counsel, free of barriers. The professional in her legal capacity is one with a mastery of legal knowledge and an adherence to ethical standards that are more rigorous than the norms.

In his analysis of how an attorney can embrace professionalism. Mr. Gallopoulos stressed the commerce-dominated world the attorney inhabits. He theorized that the legal professional must act intentionally in the interest of the law over monetary and ancillary factors. Moreover, the legal professional must constantly ensure her own independence– while attorneys owe a duty of loyalty to their clients, they cannot be dominated by their clients’ interests. Rather, they must strive to be objective and render advice based on the situational circumstances.

If the attorney is successful in doing so, she will enact the role of a professional as opposed to just an employee. Mr. Gallopoulos distinguished the two based on the professional’s obligations to the ethical standards of the profession that transcend employee duties. For instance, the professional’s advice cannot be tied to the employer-employee relationship if it is truly objective and independent. Instead, the lawyer’s obligation to the legal system supersedes that to his workplace.

Mr. Gallopoulos argued that the benefits are twofold in that attorneys who conduct themselves professionally empower themselves in the workplace. By providing objective and independent counsel and assisting others, an attorney can gain stature that leaves her qualified, in turn safeguarding her job security. Secondly, the attorney can also earn personal success when acting in a professional manner. Mr. Gallopoulos stressed the personal satisfaction that comes from contributing to the profession and earning the approval of one’s peers.  He also established the common sense argument that the sought-after attorney is one who has impeccable judgment– that which is independent and objective.

But there are difficulties associated with acting in a professional capacity and Mr. Gallopoulos acknowledged this. The reality is that the world may not be prepared to hear independent and objective advice, regardless of whether these attributes may be the essence of the profession. However, Mr. Gallopoulos suggested that the competent lawyer can provide counsel to her clients with a sense of empathy that displays a commitment to assisting the client.

The question of whether professionalism serves a purpose in the contemporary legal setting still remains.  Mr. Gallopoulos readily pointed out that though it is far too easy to focus on pension plans and billable hours, the law is more than a means of earning livelihood. In his interactions with young attorneys, many of whom appear unhappy practicing law, he has noticed a failure to make professionalism a priority which would have provided them with a sense of contentment. In today’s evolving legal profession which has been affected by the failing economy, he urges attorneys to take the road less travelled and maintain professionalism, thereby contributing to the legal profession as a whole. In his portrait of professionalism, he depicted a structured legal profession that will flourish when its own thinking and methodology is shared and promoted by attorneys alike.

Article By:


Protect Your CEO’s Tweets and Posts from U.S. Securities Exchange Commission (SEC) Enforcement Action


The U.S. Securities Exchange Commission (SEC) Enforcement Division altered the jet stream of blogosphere commentary last December by, for the first time, recommending legal action against a CEO on account of a Facebook post. Immediately after the announcement, a blizzard of articles, tweets, and blogs buried the mediascape with opinions about the critical role of CEO social media use in the new economy, the wisdom or foolishness of allowing CEO’s to Tweet or post, and whether the SEC should be time warped back to the Stone Age it seems to prefer.

Sweeping away the accumulated hyperbole reveals two important takeaways from the SEC’s announcement, applicable to both public and private companies: i) the more things change, the more they remain the same, and ii) this latest “grave threat” to the modern world is not a crisis, but an opportunity. Social media can be a valid, legal, and effective way to communicate with investors, if it’s done right.

About Regulation FD

The SEC’s action responded to a July 2012 Facebook post by CEO Reed Hastings stating that members watched over 1 billion hours on Netflix in June. Netflix estimated that Hastings had reached 200,000 people through his Facebook, Twitter, and LinkedIn accounts. The SEC felt this was material information for investors and that by announcing it through social media, rather than more traditional outlets, Netflix had violated Regulation Fair Disclosure (Reg. FD).

The SEC adopted Reg. FD in 2000 to fix a perceived lack of fairness in the public securities markets. Before Reg. FD, public companies could share material information with analysts who participated in conference calls or meetings not open to smaller investors. Well-connected investors got trading advantages over the general public. Reg. FD prohibits public companies from providing material information to limited groups of investors without simultaneously making the information available to the entire marketplace.

Under Reg. FD, public disclosures must be made by “filing or furnishing a Form 8-K, or by another method or combination of methods that is reasonably designed to effect broad, non-exclusionary distribution of the information to the public.” The “other method” most often employed is a press release to an array of media outlets likely to disseminate the information broadly and quickly. Individuals and companies violating Reg. FD risk injunctions and monetary penalties.

Use of Social Media Growing, Creating Risks

Social media channels first became critical communication tools for companies after adoption of Reg. FD. A 2010 study of the 100 largest companies in the Fortune 500 found that 79% were using at least one of the four most popular social media platforms. See Burson-Marsteller Fortune Global 100 Social Media Study, Feb. 23, 2010, available at http://www.burson-marsteller.com/Innovation_and_insights/blogs_and_podcasts/BM_Blog/Lists/Posts/Post.aspx?ID=160

A 2012 Forbes article cited an IBM study saying 57% of surveyed CEO’s likely would be using social media by 2017. Mark Fidelman, IBM Study: If you Don’t Have a Social CEO, YourGoing to be Less Competitive, FORBES, May 22, 2012.

The SEC itself uses social media to disclose important information such as speeches, trading suspensions, litigation releases, and administrative proceedings.

While some CEOs see social media as “part of their job description,” others try to minimize risk by having employees write or review tweets before posting, and some CEOs have already tried social media and moved on. See Leslie Kwoh and Melissa Korn, 140 Characters of Risk: Some CEO’s Fear Twitter, WALL STREET JOURNAL, September 26, 2012.

Not everyone does, or should, use all forms of social media. The point of Twitter, for example, is to provide information contemporaneously with the occurrence of a thought or an event. This promptness is both the differentiating touchstone of the medium and its source of danger. Quick, unconsidered, unscripted communications by senior executives of public companies pose risks in the form of leaked intellectual property, disclosed business plans, angered customers, litigious investors, and frothy regulators. The SEC Netflix announcement demonstrates the potential for liability arising from disclosures of information requiring consideration through social media focused solely on promptness. A Facebook post subjected to prior review might have been a better choice.

Even where the SEC does not act, executives may be at risk. In May 2012, retailer Francesca’s Holdings Corporation fired its CFO, Gene Morphis after he tweeted: “Board meeting. Good numbers = Happy Board.” Mr. Morphis, who was also active on other social media outlets, had a history of postings about earnings calls, road shows, and other work related matters. Morphis lost his job even though the SEC took no action. Rachel Emma Silverman, Facebook and Twitter Postings Cost CFO His Job, WALL STREET JOURNAL, May 14, 2012.

Social Media Without Big Risk

The SEC has never issued guidance about the use of social media, but it has issued guidance that websites could be deemed sufficiently “public” to satisfy Reg. FD when: (1) it is a recognized channel of distribution, (2) posting on the web site disseminates the information in a manner making it available to the securities marketplace in general, and (3) there has been a reasonable waiting period for investors and the market to react to the posted information. Indeed, “for some companies in certain circumstances, posting … information on the company’s web site, in and of itself, may be a sufficient method of public disclosure,” SEC Release No. 34-58288 (Aug. 7, 2008) at 18, 25.

This is an example of how “the more things change, the more they stay the same” when it comes to the intersection of law and technology. The purpose of Reg. FD is to make sure that all investors have access to the same information roughly simultaneously. The specific communications method is not important so long as the principle of public disclosure to the general market, not subsets of investors, is served. Because 8-K filings and press releases were the most common ways to quickly and broadly disseminate information in the past, investors knew where to look for them and could monitor those information outlets. Now, when companies establish their websites as well-known places to find press releases, SEC filings, and supplemental information, they, too, have become acceptable means for Reg. FD disclosures.

The same analysis applies to social media, as well as any new communications technology that may exist in the future. The critical question is: has the company sufficiently alerted the market to its disclosure practices based on the regularity, prominence, accuracy, accessibility, and media coverage of its disclosure methods? If so, social media should be just as acceptable as any other communication tool.

One company seems to have found the right balance. Alan Meckler, CEO of WebMediaBrands Inc. drew the SEC’s attention after a pattern of regularly disclosing company information through social media back in December 2010. The SEC’s Division of Corporation Finance questioned whether Mr. Meckler’s Tweets “conveyed information in compliance with Regulation FD.”SEC letter dated December 9, 2010. Despite, the investigation, the SEC brought no enforcement action.

To use social media with minimum SEC risk, the company must educate investors so that they know such communications will always occur at a particular place and at least simultaneously with other outlets. This is done by a regular pattern of social media disclosure and links to other sources, such as SEC filings, showing the way. A company should not force investors to win a shell game, finding the nut of important information in Twitter this time, on Facebook the next time, and Instagram after that. Consistency, predictability, and transparency are key. Used this way, social media present an opportunity to communicate with investors in new ways, not a source of legal problems.

©2013 von Briesen & Roper, s.c

Internet Defamation—What Can You Do When You Are the Target?

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We’ve all seen them.  Anonymous spewing hate-filled, defamatory statements on Facebook and Twitter, as well as in the comment pages of news stories on both local and national news.  The commenters have a certain entertainment value, until you or your business are in their sights.  So what do you do?  The answer is not always so simple, especially when you don’t even know who is speaking.

Internet freedom has allowed for an unprecedented expansion in opportunities for the Average Joe to speak, but that expansion has come with a price for those defamed on the internet.  In order to foster a free and expansive internet, in 1996 Congress enacted Section 230 of the Communications Decency Act, 47 U.S.C. § 230.  Section 230 grants interactive internet service providers (such as Facebook, Yelp, YouTube, and Twitter) immunity from civil defamation claims for user-created content.

There are very few exceptions to Section 230 immunity, with the only one recognized in case law being a case in which provider Roommates.com directed the posts to a certain extent using drop-down menus.  See Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9thCir. 2008).  Providers have learned from Roommates.com’s example and are careful to maintain their Section 230 immunity.

What this means in simple terms is that if you or your business is defamed on Facebook or Twitter, you can’t sue Facebook or Twitter, and you can’t force Facebook or Twitter to remove the defamatory postings.  Section 230 forces you to attempt to track down the user who originally posted the speech—often a virtual impossibility in this day and age when the vast majority of defamatory postings on the internet are done anonymously.

So what can you do?  First, don’t give up on social media and its ability to deal with at least some of the problems.  Interactive internet service providers are aware of the damage defamatory statements can do, and know that they risk losing their Section 230 immunity if they don’t self-police to a certain extent.  All interactive internet service providers have terms of service, and the majority ban defamatory and harassing speech.  Most will delete the offending material upon a showing that the material is indeed defamatory (i.e., not protected opinion), and most providers include a function allowing you to report the post directly from the webpage, without the need to send a demand letter from an attorney.

Furthermore, interactive internet service providers realize that though anonymity enjoys protections under the First Amendment, it also feeds a great deal of the ugliness seen on the internet today.  Facebook, for instance, requires posters to use their real names, and if Facebook is informed that a person is using a pseudonym, Facebook will disable the account.  Likewise, news sites are increasingly requiring commenters to link their comments to their Facebook accounts in order to provide a measure of accountability that anonymous posts lacked.  YouTube also recently began asking posters to use real names, though that is not currently a requirement.  Not all interactive internet service providers eschew anonymity – Twitter and Tumblr still tout the user’s ability to post anonymously – but increasing numbers of providers are requiring that speakers stand behind their comments.

If you can’t get posts removed through the interactive internet service provider, you still have legal options available.  Of course, quite often the best action at this point is no action.  Often defamation lawsuits are counterproductive in that they simply bring more attention to the posts than if the posts are simply ignored.  While difficult to do, sometimes ignoring a simply nasty post is the best policy.

If the post can’t be ignored but is not worth litigation, you can engage with the poster on the interactive site. If someone posts a negative review on Yelp, address the review and contest any factual misrepresentations.  If someone posts on your Facebook wall or sends an angry or defamatory Tweet, address the poster’s concerns.  You have the right to speak too, and quite often thoughtful, careful engagement is the best remedy.

Some posts are simply so egregious and damaging that they must be addressed in a court of law.  If action is warranted, and you are lucky enough to have the name of the poster, you can pursue traditional legal avenues available to victims of defamatory speech.

If you do not have the name, however, if you want to take action you will need to file a civil defamation lawsuit naming as defendant a John Doe.  Unfortunately, even though many interactive internet service providers will remove defamatory posts upon request, none will give up the names, email addresses, or IP addresses of posters without a subpoena.  Once litigation is filed, you and your legal counsel will have subpoena power to require the interactive internet service provider to give up the names, emails and IP addresses associated with the poster.  Normally the providers will still put up a fight even in light of a subpoena, but this is the only way available to obtain the identity of an anonymous poster so that you can hold them responsible for their defamatory speech.

While we have the right to free speech in the United States, our laws require us to take responsibility for what we say when we are wrong and our speech causes damage.  In the case of internet-based speech, it may be difficult to vindicate your rights and hold speakers responsible, but with persistence and a clear understanding of how interactive internet service providers work you can protect your good name on the internet.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

Why Social Media Matters to Lawyers – Reason #1: Personal-Effort Efficiency

The National Law Review recently published an article, Why Social Media Matters to Lawyers – Reason #1: Personal-Effort Efficiency, written by Steven Bell of Womble Carlyle Sandridge & Rice, PLLC:

Womble Carlyle


After all these years, I have concluded (as some, such as Mark Maraia have done long before me) thatrelationships are the foundation of client development at law firms.

Research by Hellerman Baretz Communications and BTI Consulting shows that, by far, personal referrals are the top driver for outside law firm engagements. Relationships with lawyers, existing clients, referral sources and other contacts are the lifeblood of any attorney’s practice, and I have been told that 70% of law firms’ new business derives from these relationships.

The same research shows that approximately 10 to 20 percent of a law firm’s business comes via online search engines such as such as Yahoo! and Google.

I know of only one activity that directly addresses both the initiation, advancement and monetization of relationships AND the enhancement of the digital footprint: social media. That alone is reason enough for attorneys to post, Tweet and comment. But there are other benefits for attorneys who engage in social media, including personal effort efficiency.

One of the real advantages of social media as a marketing exercise is that busy attorneys can fit it into their hectic schedules. Anyone with a little bit of technology education and a will to succeed in the information age can dash off a Tweet or a LinkedIn post, use it to initiate and/or advance a relationship, and create a ripple in the digital pond.  Thanks to mobile devices, one can even handle your social media activities while waiting for a meeting or sitting at the airport terminal.

Social media was tailor-made for the hectic, on-the-go lifestyle that most attorneys (and the professionals who support them) lead.

Next, Reason #2 – Out-of-Pocket-Spending Efficiency

Note: This post is the second blog entry based on a Nov. 17th presentation I made at the 2012 Lex MundiLatin America/Caribbean Regional Conference in Santiago, Chile.

Copyright © 2012 Womble Carlyle Sandridge & Rice, PLLC

When the Sky’s the Limit, Don’t Forget the Basics: Social Media, the Internet and Your Business

The National Law Review recently published an article by Charles H. Gardner of Much Shelist, P.C. regarding Social Media and Businesses:

In today’s diverse marketplace, social media sites, as opposed to a company’s own branded website, are poised to become a primary and potentially first point of contact with current and future generations of consumers. Techrevel.com recently reported that 56% of consumers who use Facebook, as an example, say that they are more likely to recommend a brand after becoming a “fan.” With the number of Facebook users approaching one billion, a strong social media presence has become a de facto mandate for businesses.

In response, start up and established businesses are growing more reliant on the Internet, and social media in particular, for marketing and sales. According to a recent Forrester Research study cited on Statistica.com, social media marketing expenditure is expected to grow to $5 billion in 2016, up from approximately $1.6 billion in 2011.

In this context, you may be exploring the possibility of making your company website more interactive. From a business perspective, creating a user experience on your branded website that is simpatico with social media reanimates the end user’s experience and revitalizes your brand. From a legal perspective, however, you may wonder how to enter (or expand your presence in) this pioneer media. How do you balance the advantages of interactivity with the added burdens of creating, maintaining and updating essential privacy, data security and other policies?

You can start by asking―and answering―the following questions:

Does your website have a privacy policy that is compliant with all federal, state and territorial laws?

Federal law (and several state laws) mandates that companies inform their users about the personally identifiable information (PII) they collect, how the company uses it, with whom the company may share it, and how users may “opt-out” of having their PII collected and shared. PII includes information such as name, social security number, biometric records, etc., that alone or when combined with other information such as date and place of birth, mother’s maiden name, etc., can be used to trace an individual’s identity. Because many states have regulations that are more restrictive than federal regulations, you should seek to comply with the laws of the most restrictive states. These laws may apply not only to information that you collect from your own company website, but also from your company social media pages.

Every company with a presence on the internet should have a privacy policy that is compliant, proactive and forward thinking. If you have a strong international presence, it should address issues of global compliance as well.

If your company website is interactive or likely to become interactive, are you following proper procedures to shield the company from liability?

Consumers are likely to continue their use of third-party social media sites, including Facebook, as an interactive first point of contact with a company. However, as branded company sites begin to mirror the functionality of traditional social media sites, company sites are including interactive features from blogs and community chat rooms to video sharing  and personalized profile pages that allow the posting of user-generated content (UGC). If your website includes these or similar features, then you are, in fact, also an interactive website.

There are two important legal protections for operators of interactive computer services. The Communications Decency Act (CDA) provides safe harbor (immunity from liability) for Internet Service Providers (ISPs). This shields an ISP from liability arising out of civil causes of action such as defamation, invasion of privacy, trade libel, etc. As a very general rule, as long as the provider is not a publisher of the content (importantly, they merely provide a place to post the content; they do NOT contribute to or edit it), they will not be held liable for the original posting of the offending UGC. While the term ISP is traditionally applied to services such as Yahoo!, Google, and AOL, recent case law suggests that if you operate an interactive computer service, you should, for the practical purpose of maintaining safe harbor protection, consider yourself a sort of ISP.

The Digital Millennium Copyright Act (DMCA) also contains important safe harbor provisions. Under the DMCA, “an operator of interactive computer services” is immune from liability for intellectual property (primarily copyright) infringement by a third party using the service provided that the provider follows certain registration, compliance and procedural guidelines.

Do you post and require users to agree to your company website’s terms of use?

One of the most valuable policies for a website owner is a terms of use policy (sometimes called “house rules” or a “user agreement”). Your terms of use tell your users what they can reasonably expect when using your site. For example, you may prohibit certain activities, such as hate speech, personal attacks, posting materials to which the user does not have the requisite legal rights, etc. By setting the ground rules of what you will allow on your site, you can monitor UGC for violations of the policy and remove or refuse to post such material objectively based upon your site’s posted terms and preserve your safe harbor protection. Remember, if an ISP edits or modifies content, it is treated as a publisher of content and can lose safe harbor protection. However, if an ISP removes content in its entirety for violating a documented policy, the ISP is not considered a publisher and is protected under the CDA for example.

A well-crafted terms of use policy, if correctly written and agreed to, also forms a “contract” between the end user and the website operator. For example, arbitration clauses can minimize the likelihood of class action lawsuits and the potentially negative publicity of high-profile trials. A transparent policy can also set reasonable expectations, engender goodwill and protect the company website owner.

Do you have internal procedures and policies in place to address data security, data breaches and personnel practices?

As soon as reasonably possible, before or after your site goes live, you should discuss data security with your attorney and a qualified information technology (IT) representative. Like privacy policies, data security policies should comply with federal law and regulations, as well as the laws of the most restrictive U.S. state or territory. It is wise to have written procedures for data protection and breaches, which should be provided to any personnel who will be dealing with the company’s electronically stored information (ESI), particularly to the extent that the ESI contains end users’ PII.

You should also have a separate personnel policy that educates your employees and contractors about the use of company technology, social media and the Internet, and that protects your company without unreasonably or illegally restricting your employees’ activities.

As a practical matter, social media is no longer merely an optional business tool. It is a primary source of communication, information and advertising. Developing sound social media and technology policies as early as possible can reduce your liability and exposure and allow your company room to grow in this new online world.

© 2012 Much Shelist, P.C.