A clued-up legal team can help reap the rewards social media has to offer, says Kemp Little's Paul Garland

There is now a clear public expectation that every sizeable consumer-facing business will have a social media presence of some sort. In the next five years the same expectation (with a slightly different focus) will no doubt apply to law firms and most professional services firms too.

This sort of pressure on businesses to respond to their customers' technology expectations is nothing new – we saw it with corporate websites going from nice-to-haves to unquestionably essential in just a few short years. 

Businesses are busy moving up the chain of what Harvard Business School has neatly categorised as the six attitudes to social media (these range from folly, fearful and flippant to formulating, forging and fusing). Soon we'll all be forging and fusing and wondering how it was ever any different.

However, with social media there's a difference to what we have seen before, both in terms of scale and potential impact. The marketing, customer relations, product development, public relations and brand awareness benefits of interacting directly with your customers – while gathering hugely valuable customer data along the way – are clearly enormous and still evolving. We have, for example, barely scratched the surface of geo-location, mobile and targeted ad technology. 

But while the opportunities social media offers are huge, the corresponding legal and business risks are sizeable too and need careful management. 

This presents a raft of new challenges for the in-house legal team. Not all company legal teams are being given the board-level remit and resources needed to effectively manage this fast-growing and entirely new work-load. Yet this is an opportunity lost, as a well-prepared legal team can help their business reap all the rewards that social media has to offer.

Risk management in itself is not a problem – in-house legal teams, along with colleagues in compliance and insurance, are used to dealing with that as part of their daily work. The particular challenge posed by social media is the scale and range of new issues that are likely to arise and the number of stakeholders affected by those issues. 

The speed at which these issues can impact on a business is also unprecedented. We are now operating in a world where news of corporate communication errors (or even a period of silence that is viewed as inappropriate) can be spread across the world in moments. It can then be copied, parodied, re-tweeted and whipped up into a frenzy instantly. Likewise, perceived privacy breaches. 

Advances in technology mean that digital marketing campaigns can rapidly gather far more customer data than may ever be legitimately used, given the current Facebook (and similar) terms of use. 

Customer comments and questions on Facebook, Twitter and other message boards need to be replied to. Or do they? Someone within the company needs to be assessing the risks of not responding or even deleting negative posts, and legal needs to get linked in quickly if serious allegations as to product liability, or, for example, defamatory statements, are being made. 

If this issue is outsourced to an external moderation company, then the liability and responsibility needs to be carefully allocated between the parties and escalation protocols prudently established, particularly if the company faces a concerted PR attack. 

Corporate marketing departments are rightly steaming ahead in this new social world, assessing the latest digital, interactive campaigns that are being pitched to them. But the marketing teams need timely, knowledgeable legal support and guidance to ensure they are asking the right difficult questions. 

This can entail checking whether the proposed campaign complies with platform terms and conditions; establishing service levels and dealing with privacy and security issues; assessing relative risks between using canvas apps or social plugins; and ensuring exit and intellectual property rights provisions are fit for purpose.

Overall, it's a question of governance – who is responsible for anticipating and dealing with the issues? None of this is rocket science. The point is simply that there is a lot to be considered as social media becomes ubiquitous and, quite rightly, it is already making its way down the corridor to bang on the legal team's door. The business will rightly expect its legal advisers to be able to react fast and help pre-empt many of the issues. 

Getting that part right – giving legal teams the resources to support all of the technological and marketing strides being made by the business – will reap huge dividends. The companies that make that investment soon will have the best chance of coming out on top.

Paul Garland is executive partner and head of IP at Kemp Little.