Innovation vs. Litigation

Why Brands and Social Media Have a Legal Challenge

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Take a good look at the "curve" visual that goes along with this post. Look familiar? It should.

Increasingly, as I talk to folks from a variety of large brands and companies, I'm seeing an interesting shift. Not only is there a desire from individuals within large corporations, brands and businesses to leverage social media in some capacity, but increasingly there's an interest in going beyond "viral." After my talk at the the Web 2.0 Conference in New York, an individual who worked in the health-care sector approached me. He said something along these lines: "I believe in everything you just said and I think there is tremendous opportunity for my company to participate in social networks, but each time we try to initiate something, our legal department shoots it down."

Though sectors like health care are especially sensitive, I've heard similar tales from others. And yet there seem to be some examples of big brands that get out there and participate in social networks despite the risks. Dell, one of the more well-known case studies, has been doing it for years, through blogs, communities it's created and by jumping into a number of networks. Zappos has taken to extending its customer experience across social channels such as Twitter. Whole Foods has a useful presence on Facebook, where one of its representatives is active in the discussion boards, not only alerting members to promotions but also encouraging them to share recipes. Is legal asleep at the wheel of these companies?

There's a growing number of case studies of brands that go beyond putting their ads on social networks, and it's becoming increasingly clear that brands that figure out how to engage customers meaningfully through the use of social media can reap rewards, but there is some risk. To help understand that risk you need to truly understand how different social media is compared to something like, say, interactive marketing.

For starters, it's social, which means it's people-to-people, not technology-to-people. Secondly, you can't walk away that easily from social initiatives the way you can walk away from that microsite and banner campaign you just launched. (Well, you could -- but I wouldn't recommend it.) And lastly -- and most important -- you have to understand that social media as the killer app of our time has one killer feature that is designed to make your legal department cringe. It's called feedback. Even putting a simple video on YouTube means that you are opening yourself up to the opinions of anyone and everyone who has something to say. So what's a business, brand or large organization to do? I have a few suggestions.

Start Small
As marketers, we're trained to make a big splash. Participation in social networks often requires the opposite. Start small and test things out. Take calculated risks and plan for multiple scenarios. If your ultimate desire is to be active across multiple networks, start with one and figure out the nuances there. In other words, do what you can to manage the risk.

Find A Corporate Sponsor
Whether you've coordinated with legal or plan to after the fact, it's important to find someone high up in the organization that's willing to support and go to bat for your initiative. Try not to do something in a total vacuum if you can avoid it. When we launched our "always in beta" mash-up, which included live streaming video and a live chat, it was important to get the buy-in from someone high in our organization who understood the risks of opening ourselves up to feedback and would be co-accountable on whatever transpires after the fact.

Develop Participation Guidelines
The first question any organization has to ask itself is whether it's going toparticipate in the conversations. If you answer no, then you are most likely interested in simply getting your content out there. If it's yes, then hold on to your hats because you'll get positive, negative and neutral feedback on anything you put out there. Prior to launching your initiative, have these guidelines in place and be ready to change them on a dime because that's how quickly a plan can turn into an act of improvisation.

Don't Give Up
The explosion of participation in all forms of social media is actually not a trend or a fad -- it's a significant shift in how we human beings interact with the web, not unlike the shift in behavior as more people began buying merchandise, bartering or getting information online. If legal seems like a brick wall, don't give up since it's worth finding out if it even makes sense for your organization to participate in the first place. The only way you'll know for sure is if you try.

I could go on, but hopefully these offer food for thought. It's important to remember that the successful case studies that are slowly emerging often look less like advertising and more like a mash-up of customer service, communications, content delivery, etc. The legal department in your organization is there to help protect it from liability, while you may be there to serve your customers. While there's no silver bullet to this topic, it's important to remember that you're both in the service industry. And if meaningful participation in social networks provides a way to better serve customers, it's worth trying to balance innovation with litigation. Oh, and if you're interested in hearing about some social-media case studies from biggie companies such as Home Depot, Wells Fargo, Intel and UPS, you can check out the BlogWell conference at the end of the month.
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