Media law wrangling in the New Wild West

The Internet is the new Wild West. Sure, there are huge expanses of uncharted territory left in the real world––Alaska, the deep sea, Antarctica––but charting something isn't the same as taming it, and the West was wild long after we'd mapped and criss-crossed it with railroads. The entrepreneurial spirit has always sought frontiers, and where there are frontiers, is the law ever far behind?

That's why I talked with Lisa McGrath, Boise NM law guru. She sees a lot of people treating new and social media like the traditional rules don't apply. Some of these rules, like copyrights, trademarks, and the general applicability of judiciously-drawn legal documents, seem intuitive; and yet she sees these rules being broken all the time.

But an unforeseen challenge to companies using NM may arise from an unexpected quarter: their own employees. The problem, she says, is pure common sense. Companies working with new media don't invite their legal departments to the table when drafting new and social media policies, or (worse) don't have policies at all.

What is a social media policy, you ask? It's a lot like a sexual misconduct or workplace discrimination policy, insofar as it informs the less-than-totally-formal functions of the workplace––a careful outline of the dos and don'ts for how a company's employees may use social media in their capacity as employees to A) protect that company's brand, and B) provide liability shielding. They also firmly establish access privileges and ownership of social media––something that can affect even small companies.

The failure to clearly establish ownership and access can play out like it did at The Bench Commission, where the employee responsible for updating the Commission's Facebook page left his job and took the Facebook password with him. Now, that local furniture store can't even update its page, and has to start from scratch––a tough thing to do when there's already a Commission Facebook presence.

I would have liked to include The Bench Commission in my article, but the owner, professing ignorance of social media, didn't feel he would be qualified to discuss the issue on record. This is unfortunate, because the article would have benefitted from the insights of someone licking his wounds over a SM misstep. 

McGrath also encourages social media training for employees, and I'm blown away that major users of social media like hospitals, airlines, and software companies don't train their employees to understand their media policies or how to use media effectively. What good are policies if you don't know they exist, or how they work?