Editor’s Note: I’m very pleased to provide you with a guest post by Sara Hawkins, attorney and author of the excellent “Blog Law” series. This post was written with American laws in-mind, though the concepts can be applied and adapted for the particular laws within your country, for those of us who are not American.
While you hope you’ll never be called on to implement the crisis management plan you created, the reality is you probably will. And when crisis hits, it’s not the time to discover that something critical was left out of the plan, not considered, or thought to be someone else’s responsibility.
Since your plan likely includes key personnel from each department, you know that in each different situation you’ll have the right corporate team to work with. Your crisis team may even include someone from the legal department, if the organization is big enough. For many businesses, though, the reality is that there is no legal department, and there may not even be an attorney they can call on. In essence, while you are not the legal advisor, you may be looked up to be knowledgeable about some legal basics.
Crisis management involves a multitude of disciplines. In trying to control the public perception during an organizational crisis, having a little bit of legal knowledge can be the difference between fueling the fire or beginning the first steps to extinguishing it. While there are many different laws, knowing a little about the following five laws will allow you to approach most situations with a more tailored plan.
5 Laws Every Crisis Manager Needs to Know
1. Defamation Law
The social nature of online communications makes it easy to say anything about anyone at any time. More and more, companies are finding out that they’re at the mercy of rating and review sites, bloggers who take exception with something the company says or does, or former employees who may take a professional dispute public. While defamation law varies from state to state, there are many key elements that are consistent across the country. Understanding those basics will allow you, as the crisis manager, to bring in the right people at the right time. Working with legal counsel, it will make it easier to craft a response that is both legally sensitive as well as informative. With the ability for the public to replicate the defamatory message at lightning speed, your job becomes even more critical.
2. Employment Laws
An employment-related crisis is likely one of the top areas you help your clients plan for. While there are thousands of very nuanced employment laws and regulations, there are some aspects of employment law that tend to be more critical than others. For example, knowing the position the NLRB has taken with regard to employees rights to share information on social media will make your job easier both with the public response as well as updating your clients. The same goes for whistleblower laws. Companies likely have a human resources department, but that does not always mean they’re capable of seeing the situation from a different perspective. Knowing how to communicate with HR in their own language adds credibility, regardless of whether you’re dealing with a waitress fired for sharing a photo of a receipt or an executive charged with insider trading.
3. Preservation of Data and Evidence
This is one area where there is not a very clear-cut legal guide. As a crisis manager you know the importance of sharing factual information. Your client also knows that there may be times they’d like to rewind and pretend something didn’t exist or happen. Social media has a way of reminding people of their past, should they forget. There are plenty of people who are analyzing your every word and step. We’ve read more than once about posts, updates, or tweets that have been deleted. It’s important to know that whether it’s evidence your client may need to prove their case or may be used against them failing to preserve the data or evidence not only makes your job more difficult but creates potential legal liability.
4. Disclosure Laws
Many in social media know about the FTC disclosure laws, but when it comes to crisis management, the alphabet soup of governmental organizations also may have disclosure laws, or, even more importantly, prohibitions on certain types of disclosures. When working with highly regulated issues such as banking, finance, securities, pharmaceuticals, or medical devices knowing if your client has limitations on what information can be shared is critical. You don’t have to be the expert on those laws, but knowing they exist and how they will impact your messaging will allow you to craft a plan that is proactive while still staying within the limitations. In addition, it can relieve stress with legal or compliance if they know you’re aware of their limitations.
5. Law Restricting Speech
Some people immediate invoke the First Amendment when it comes to their right to speak up and say whatever they wish. Unfortunately, the First Amendment is much more complex than most people understand it to be and in many instances it’s completely inapplicable. However, there may be circumstances where a company must restrict their own employees from speaking out or, in the alternative, times when preventing employees from certain types of speech are prohibited. In a time of crisis, that’s not the time to find out what, if any limitations there may be. This discussion is always much easier if the client involves legal counsel, however, when crafting a social media crisis management plan, if there is no member from legal on the team then it’s critical to determine what, if any, limitations on speech could come into play.
It’s not necessary to pore over legal books or sit in on legal education seminars to gain enough information to know the right questions to ask. If your’re working with a highly regulated organization, knowing what limitations you might have will allow you to more rapidly and concisely engate on the various social media platforms. Even more important is getting control of the message.