Influencing the influencers

Oscar Wilde said: “With age comes wisdom.” As I turn 40 in April, I am given considerable cause to reflect on the wisdom of the full context of Wilde’s words, concluding as they do – “but sometimes age comes alone”.

I have a solid understanding of all things digital, including social media, as I am – by the skin of my teeth – a millennial. I have grown up alongside the development and explosion of the internet. I have dipped into various forms of social media that have come along since (Friends Reunited, anyone?)

I now have a LinkedIn account and a Twitter account which I use for professional purposes. In recent months, however, the truth in Wilde’s words has been brought home to me when addressing some of the ethical challenges posed to firms by the growing importance of social media in the lives of many of their staff.

Specifically, I have come to appreciate that people use social media in ways I had not appreciated; the degree to which some professionals want to broadcast their day to day lives – and their careers; and how much work firms have to do to understand and enable them to do that safely and responsibly.

In these days of Instagram influencers, personal brands, YouTube channels and micro-activism, it should come as no surprise that ambitious and dynamic people want to develop their sense of self, and their credibility through social media.

But what comes as a challenge is the range of ethical and regulatory questions facing firms, when these ambitions creep into their professional life as regulated lawyers – wanting to share their work experiences.

Management and protection

The starting point for all firms – and for the individual publishing on social media – must be to make sure their respective legal, regulatory and professional conduct obligations are upheld.

Social media content produced at work or about professional matters – even in the broadest of terms – has huge potential to engage or breach the Solicitors Regulation Authority’s (SRA) rules or principles (as well as the wider law).

The potential pitfalls all have to abide by. There will be a range of other matters to consider, not least the position of clients, staff or third parties who may not be directly identified but might feel identifiable (and therefore potentially vulnerable) as a result of the publication of content produced in the workplace – whatever the likelihood of that actually happening in reality.

On a practical note, even if the firm concludes that the risks involved are acceptable, it would be essential for that exercise of professional judgement to be properly recorded so the decision can be justified by reference to contemporaneous documentation if later required.

Corporate interest

Even if the overall concept is approved, it is likely at least some posts will then need to be reviewed to ensure compliance. That raises its own questions. Employment relationships are predicated on a contractual relation- ship featuring mutual trust and confidence; service and reward; and imposition and acceptance of rules.

Among those rules, in a great many firms there is likely to be a specific social media policy or guidance on the use of social media. Those guidelines will usually include guidance that employees must ensure they conduct themselves in accordance with clear rules (like the SRA’s code of conduct for individuals).

However, when the content does not actually breach confidentiality, but relates to work and raises other concerns for the firm, where does the line between private and personal lie? Most firms will not, as a rule, wish to become involved in what their employees do outside of their immediate professional sphere.

Yet those private activities potentially compromise the firm, causing it to want – or perhaps need – to reach into that individual’s private ‘space’. On the other hand, considerable opportunity potentially exists for firms in facilitating such initiative on the part of the individual, particularly in terms of projecting the firm into the consciousness of a new audience.

Where that is something the firm recognises and seeks to exploit, when does the individual’s ambition and imagination become no more than a marketing tool for the firm; and what are the implications of that for the individual and their liability for content?

How does the firm address those issues in a way that genuinely balances its own interests as against the individual’s, rather than exploiting the situation to its own advantage?

Monetisation

Conversely, the enterprising employee also has the opportunity to make their own money out of social media. Some social media platforms pay high-traffic channels for adverts they place on the channel once they hit a certain number of visitors.

So the individual would stand to profit personally from content generated from work done in the service of the firm – and, significantly, on behalf of clients.

It is quite normal for employers to allow employees to carry out financial and or business activities separate to their employment but in this case, the situation is self-evidently different.

How far – if at all – should that be per- mitted? Can this model be used to strike a balance between the firm’s interests and the individual’s? And in all of this, what of the duty on both to behave “in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons”?

This is not a challenge that is going away. Social media is here to stay and its influence will only grow as traditional news outlets, television channels and radio continue to die, to be replaced by more disparate, de-centralised access to information – and influence.

The core question when looking at these matters is this. When balancing the relevant risks, rights and obligations in each case, to what degree is it appropriate for a member of staff to document – and post on their story, channel or feed – content about their work and place it online, from which point it will pass out of the control of the firm or the individual?

Recent experience shows there is unlikely to be a perfect answer in any case, least still one that ‘fits all’. But it is a question firms will increasingly find themselves asking – and having to adjust to – as time hurtles on.

Gideon Habel is a partner at Leigh Day leighday.co.uk

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