Recently the eDJ Group, a leading e-Discovery research and analyst firm released a report about social media as it relates to legal discovery. In it, they make it very clear to companies of all sizes that there’s no excuse for not managing and preserving social media content for compliance and litigation purposes.
Keeping Up with Social Media
Seven years after social media became mainstream, more and more businesses have adopted, embraced or otherwise accepted its presence into their marketing strategies. But many more companies haven’t begun to address it as part of a holistic e-Discovery strategy.
For some, they waited to see how others addressed it; for others, social media was a fad that didn’t warrant additional concern. However, as social media has become an accepted marketing and customer service channel, organizations are struggling to get caught up thanks to regulatory standards put into place by FINRA and the SEC.
Elements of a Social Media Governance Policy
There are many ways companies can effectively integrate social media governance policies. Previously we’ve outlined 9 Steps to Developing a Repeatable Social Media Litigation Readiness Plan. In the eDJ Group report, they encourage companies to be specific when designing their policy. It’s simply not enough to advise employees not to post company information on social media sites; rather it’s more important to outline particular types of information that cannot be shared or posted, like trade secrets, earning reports and other sensitive and proprietary information.
The report also recommends including the following elements in your organization’s social media policy:
- Guidance on acceptable use of company social media profiles for personal reasons
- Clear rules on whether and how employees can use company intellectual property in personal usage of social media
- Prohibition of disclosure of confidential information
- Ramifications for policy violations
There's No Such Thing as Privacy
While having a social media policy tailored specifically for your organization, its employees and socially acceptable behaviors is important, it’s also necessary to understand the legal implications of the privacy expectations of the major social media networks. The report cautions that many of these sites have “crafted policies in such a way as to allow discovery of information to happen should law enforcement or the Courts require.”
The report outlines the policies of some of the major social media publishers as they relate to eDiscovery:
What does this mean exactly for your organization? It means that information is not as private as users might think it is and it can be much easier to collect as well. It means that if a company does not proactively retain social media content, it can still be accessible.
Define, Collect, & Preserve
Ultimately, the report serves to remind us that there is much more to social media than sharing of information. The preservation of information shared is also a key component that companies must also prepare for. Much like anything for which a company must develop a strategy, it’s critical to define requirements based on what’s relevant to its culture and the regulatory standards of the industry. In order to determine what method to use for social media collection and preservation, companies must first answer several questions so as to define requirements, such as:
- Will we proactively archive and manage social media or only collect and preserve when litigation appears imminent?
- How many employees can we reasonably anticipate needing to ever collect and preserve social media from?
- Do we want employees to know they are being monitored and/or collected from? Further, do we want to monitor all employee usage or just that which is considered business use? How do we distinguish?
- What is a reasonable approach for our company? For example, if we can authenticate screenshots, do we need a more involved approach like a proxy or API?
The relationship between social media and e-Discovery will only grow stronger and more intertwined as technology and the social behaviors of businesses evolve. Companies are behooved to start creating clear and specific policies, evaluate compliance and legal drivers, and determine the right content capture mechanism so that as social media expands, they are ready to expand alongside it successfully.
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